Author Archives: Shaun Fluker

About Shaun Fluker

B.Comm. (Alberta), LL.B. (Victoria), LL.M. (Calgary). Associate Professor. Please click here for more information.

More Justice for the Western Chorus Frog

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Case Commented On: Groupe Maison Candiac Inc. v Canada (Attorney General), 2018 FC 643

Groupe Candiac is another case of legal success for endangered species at the Federal Court, and the second victory for the endangered western chorus frog in Québec. Over the past decade or so, the Federal Court has consistently ruled in favour of applicants seeking to enforce provisions in the federal Species At Risk Act, SC 2002 c 29 (SARA) and ABlawg has followed these judgments on matters such as the designation of critical habitat, the protection of critical habitat, and recovery strategies. In Groupe Candiac, Justice LeBlanc rules the federal power to issue an emergency protection order in section 80 of SARA covering provincial lands does not offend the division of powers under the Constitution Act 1867 and is otherwise lawful. Groupe Candiac is particularly relevant to Alberta, since the only other emergency protection order issued by the federal government under SARA since its enactment in 2002 protects the greater sage grouse located in southern Alberta. Groupe Candiac affirms the legality of this important power in SARA for the federal government to act swiftly to protect endangered species in the face of provincial inaction. Unfortunately for endangered species it is a hollow victory because federal officials are anything but swift when it comes to implementing the protective measures in SARA, and instead they regularly employ administrative discretion to undermine the effectiveness of the legislation.

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Peaks of Grassi Development in Canmore: Procedural Fairness and Municipal Bylaws?

By: Shaun Fluker

PDF Version: Peaks of Grassi Development in Canmore: Procedural Fairness and Municipal Bylaws?

Case Commented On: Gruman v Canmore (Town), 2018 ABQB 507 (CanLII)

Municipal governance in the Town of Canmore is undoubtedly a challenging proposition. Canmore is a four-season tourism and recreation destination, which attracts a large range of visitors and inhabitants with diverse interests. The town is also situated at the mouth of the Bow Valley; it must be a constant struggle to achieve development goals while not spoiling the environmental riches which make Canmore the attractive destination that it is. This diverse range of interests and concerns results in relatively frequent municipal disputes in the town. The dispute in question here concerns a proposed new residential development in the Peaks of Grassi – a subdivision located on the west side of Canmore along the lower slopes of Ha Ling Peak. In 2015 Canmore council amended a bylaw to allow for residential development in what is currently an urban environmental reserve located in the Peaks of Grassi subdivision. The bylaw amendment was challenged in a judicial review application heard in March 2017, and in July 2018 Justice Gates allowed the application and quashed the bylaw amendment on procedural fairness grounds (see here for media coverage on this decision). Continue reading →

A Short Comment on the Public Interest Costs Exception

By: Shaun Fluker

PDF Version: A Short Comment on the Public Interest Costs Exception

Case Commented On: Canadian Centre for Bio-Ethical Reform v Grande Prairie (City), 2018 ABCA 254 (CanLII)

The normal rule in Canadian litigation is that costs follow the event, and this is reflected in rules 10.29(1) and 14.88(1) of the Alberta Rules of Court, Alta Reg 124/2010 which state the successful party is entitled to a partial indemnification of its legal costs. In exceptional cases the successful party may be awarded full indemnification (solicitor-client) or no costs at all. An award of costs lies in the discretion of the judge. The public interest exception to the normal costs rule is available to shield the losing party from a costs award, and I discussed this exception at some length in The Public Interest Exception to the Normal Costs Rule in Litigation. For a good overview on costs in public interest environmental litigation see also Costs and Access to Justice in Public Interest Environmental Litigation. This comment touches briefly on the decision by the Court of Appeal to deny an application for the public interest costs exception in Canadian Centre for Bio-Ethical Reform v Grande Prairie (City), 2018 ABCA 254 (CanLII).

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The Great Divide on Standard of Review in Canadian Administrative Law

By: Shaun Fluker

PDF Version: The Great Divide on Standard of Review in Canadian Administrative Law

Case Commented On: Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2018 SCC 31 (CanLII)

In an unusual move earlier this year, the Supreme Court of Canada announced it would consider the nature and scope of judicial review in a trilogy of upcoming appeals in Bell Canada, Vavilov, and National Football League, and specifically invited the parties to make submissions on standard of review. This open invitation to revisit the standard of review framework established by Dunsmuir v New Brunswick, 2008 SCC 9 did not come as a surprise to followers of Canadian administrative law who have observed a divide form amongst the current members of the Supreme Court (only one of whom – Justice Abella – was sitting when Dunsmuir was argued) on how to select the standard of review. This division is fully apparent in Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2018 SCC 31 and is the subject of this post. Elysa Darling and Drew Lafond have recently analyzed the substance of the merits in Canadian Human Rights Commission on ABlawg here, and my post will focus only on the standard of review analysis by the Court in the case.

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Judicial Review is about the Legality of State Decision-Making

By: Shaun Fluker

PDF Version: Judicial Review is about the Legality of State Decision-Making

Case Commented On: Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26 (CanLII)

The Supreme Court of Canada has reversed the Alberta Court of Appeal decision in Wall v Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses, 2016 ABCA 255 (CanLII) which ruled the Highwood Congregation decision to expel one of its members was subject to judicial review on the basis of an alleged breach of procedural fairness. In this unanimous judgment, the Supreme Court ruled that the Court of Appeal stretched the reach of judicial review too far in holding that this mechanism of judicial oversight applies to a decision of a non-state actor.

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