Author Archives: Shaun Fluker

About Shaun Fluker

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

Divergence at the Court of Appeal on What Amounts to Unreasonable Decision-making

By: Shaun Fluker

PDF Version: Divergence at the Court of Appeal on What Amounts to Unreasonable Decision-making

Case Commented On: Hunter v College of Physicians & Surgeons of Alberta, 2014 ABCA 262

In this judgment the Court of Appeal reviews a disciplinary decision made by the College of Physicians & Surgeons of Alberta against one of its physician members. I think the judgment is noteworthy to a broader audience of administrative law scholars and practitioners because of the stark contrast in how the majority and the dissent apply the reasonableness standard to review the College’s decision. The majority judgment written by Justice Slatter and Madam Justice Veldhuis dismisses the appeal by the physician using only 6 paragraphs of reasons to conclude the disciplinary decision is reasonable. The dissenting opinion written by Justice O’Ferrall concludes the College’s decision is unreasonable and in doing so probes much further into the impugned regulatory process and the record in this case. There would appear to be a divergence of views at the Court of Appeal in how to apply the reasonableness standard in judicial review.

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Syncrude v Canada: Where is the gatekeeper when you need one?

By: Shaun Fluker

PDF Version: Syncrude v Canada: Where is the gatekeeper when you need one?

Case Commented On: Syncrude Canada Ltd v Attorney General of Canada, 2014 FC 776

This post continues on from the introductory comment posted by Nigel Bankes on September 11, 2014 (here) concerning this case, and discusses the administrative law aspects in Justice Zinn’s decision. Briefly put, Syncrude challenges the validity of the Renewable Fuels Regulations, SOR/2010-109 enacted pursuant to section 140 of the Canadian Environmental Protection Act, 1999, SC 1999, c 33 [CEPA]. Section 139 of CEPA together with the Renewable Fuels Regulations require diesel fuel produced, imported or sold in Canada to contain renewable fuel of at least 2% by volume.  Syncrude produces diesel fuel, and is thus subject to this requirement unless it can successfully argue the Renewable Fuels Regulations are ultra vires the authority of the  Governor in Council or that there is some other legal defect in how the rules have been administered against it. My comment focuses on two points in the decision, namely: (1) are the Renewable Fuels Regulations unlawful because they do not conform to the regulation making powers of the Governor in Council set out in section 140 of CEPA?; and (2) did the Minister err in law by failing to afford Syncrude procedural fairness in administering the regulations?

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What Happens When an Insolvent Energy Company Fails to Pay its Rent to a Landowner?

By: Shaun Fluker

PDF Version: What Happens When an Insolvent Energy Company Fails to Pay its Rent to a Landowner?

Decision commented on: Petroglobe v Lemke, 2014 ABSRB 401

The law in Alberta provides an energy company with the right of surface access on private lands to drill for oil and gas.  This access allows the company, among other things, to construct an access road and clear lands for the well site.  In most cases, the company and the landowner enter into a surface lease whereby the company agrees to pay rent in exchange for this access.  In other cases, surface access is governed by a Right of Entry Order issued by the Alberta Surface Rights Board (website) whereby the company obtains access in exchange for the payment of rent.  This case is about what happens when an insolvent company fails to pay its rent.

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Northern Gateway Approved Despite Uncertain Environmental Effects: Is This What Sustainable Development Looks Like?

By: Shaun Fluker

PDF Version: Northern Gateway Approved Despite Uncertain Environmental Effects: Is This What Sustainable Development Looks Like?

Decision commented on: National Energy Board, Northern Gateway Decision Statement

On June 17, 2014 the National Energy Board issued a decision statement to Enbridge under section 54(1) of the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52 announcing that the federal Governor in Council had approved the Northern Gateway pipeline subject to the 209 conditions recommended by the Northern Gateway panel (The panel report was the subject of earlier ABlawg comments here and here). The Governor in Council accepted the panel’s recommendations that the pipeline will have significant adverse environmental effects to populations of woodland caribou and grizzly bears, but that these effects are justified in the circumstances. I will comment on this approval by comparing it to another major resource project decision issued on the very same day, June 17, 2014 – albeit one issued on the other side of the globe in New Zealand.

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Leave to Appeal Granted in NRCB Case Concerning Participatory Rights and the Interpretation of ‘Directly Affected’ Persons Entitled to a Hearing

By: Shaun Fluker

PDF Version: Leave to Appeal Granted in NRCB Case Concerning Participatory Rights and the Interpretation of ‘Directly Affected’ Persons Entitled to a Hearing

Decision commented on: JH Drilling Inc. v Alberta (Natural Resources Conservation Board), 2014 ABCA 134

The Alberta Court of Appeal has granted leave to JH Drilling to appeal a ‘standing’ decision by the Natural Resources Conservation Board (NRCB).  While not a decision on the merits of the issue, this leave decision is significant because the question for appeal will concern the NRCB’s interpretation of ‘directly affected’ in its governing legislation to determine participatory rights before the Board.  Moreover, the interest asserted by JH Drilling to be directly affected here is one of a commercial nature – JH Drilling is not a landowner or resident in the immediate vicinity of the proposed project in this case.  To my knowledge, this merit hearing will be the first time the Court of Appeal considers participatory rights before the NRCB.

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