Author: Shaun Fluker Page 5 of 37

B.Comm. (Alberta), LL.B. (Victoria), LL.M. (Calgary).
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Judicial Review on the Vires of Subordinate Legislation: Full Vavilov, Partial Vavilov or No Vavilov?

On February 6, 2023

By: Shaun Fluker

Cases Commented On: Auer v Auer, 2022 ABCA 375 (CanLII) and TransAlta Generation Partnership v Alberta (Minister of Municipal Affairs), 2022 ABCA 381 (CanLII)

PDF Version: Judicial Review on the Vires of Subordinate Legislation: Full Vavilov, Partial Vavilov or No Vavilov?

This comment examines two decisions issued concurrently by the Alberta Court of Appeal in late November 2022 that reject the application of a standard of review analysis when reviewing the vires (aka legality) of a ‘true’ regulation, (the need for the modifier is explained below). This is a topic that I have casually followed for some time. In 2016 I wrote Does the Standard of Review Analysis Apply to a Vires Determination of Subordinate Legislation? and in 2018 I wrote Judicial Review on the Vires of Subordinate Legislation. Together these earlier posts describe an uncertainty that has reigned for years over whether a standard of review analysis applies to the vires determination of subordinate legislation. In its overhaul on standard of review in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII) (Vavilov), the Supreme Court of Canada did not explicitly address this question (for my overview on standard of review under Vavilov see Vavilov on Standard of Review in Canadian Administrative Law). The uncertainty has evolved into a jurisprudential conflict. In Portnov v Canada (Attorney General), 2021 FCA 171 (CanLII) (Portnov), the Federal Court of Appeal ruled that a Vavilov standard of review analysis applies to the vires determination of regulations (Portnov at paras 23 – 28; see more recently Innovative Medicines Canada v Canada (Attorney General), 2022 FCA 210 (CanLII)). In Auer v Auer, 2022 ABCA 375 (CanLII) (Auer) and TransAlta Generation Partnership v Alberta (Minister of Municipal Affairs), 2022 ABCA 381 (CanLII) (TransAlta Generation) the Court of Appeal rules that Vavilov may partially apply to some regulations but not ‘true’ regulations (Justice Feehan departs from the majority in Auer on this point: Auer at para 117)).

Confirmed in Law: The Decision-Maker for COVID-19 Public Health Orders in Alberta is the Chief Medical Officer of Health

By Shaun Fluker

On October 28, 2022

In COVID-19, Health Law

By: Lorian Hardcastle and Shaun Fluker

Decision commented on: CM v Alberta, 2022 ABKB 716 (See here for the decision, which was not on CanLII as of the date of writing)

PDF Version: Confirmed in Law: The Decision-Maker for COVID-19 Public Health Orders in Alberta is the Chief Medical Officer of Health

In the winter of 2022, the Alberta government repealed the bulk of its COVID-19 public health measures in an effort to be among the first provinces to re-open. On February 8, 2022, the Premier announced that children would no longer be required to mask in school and, on that same day, the Minister of Education (Adriana LaGrange) issued a written statement that “school boards will not be empowered by provincial health order or recommendations from the CMOH to require ECS – grade 12 students to be masked to attend school in person or to ride a school bus.”

For the Record: Who Makes COVID-19 Public Health Orders in Alberta?

By Shaun Fluker

On August 2, 2022

In COVID-19

By: Shaun Fluker and Lorian Hardcastle

Decisions commented on: CM v Alberta, 2022 ABQB 462 (CanLII); CM v Alberta, 2022 ABQB 357 (CanLII)

PDF Version: For the Record: Who Makes COVID-19 Public Health Orders in Alberta?

In an effort to be a frontrunner in the race to remove COVID-19 public health measures during the early months of 2022, the Alberta government made several notable moves, including decisions on masking. On February 8, 2022, the Premier announced that children would no longer be required to wear masks in school as of February 14 and that children under 12 would not be required to mask anywhere. On the same day, the Minister of Education took the opportunity to issue her own written direction that “[A]s of February 14, 2022 school boards will not be empowered by provincial health order or recommendations from the CMOH to require ECS – grade 12 students to be masked to attend school in person or to ride a school bus.” This direction by the Minister was a notable departure from her earlier position that schools were explicitly permitted to implement public health measures to respond to their own local context.

The Alberta Sovereignty Act and the Rule of Law

By Shaun Fluker

On June 22, 2022

In Constitutional, Rule of Law

By: Martin Olszynski, Jonnette Watson Hamilton, and Shaun Fluker

Matter Commented On: The Alberta Sovereignty Act and the Free Alberta Strategy

PDF Version: The Alberta Sovereignty Act and the Rule of Law

Last week, United Conservative Party (UCP) leadership hopeful Danielle Smith announced that, upon her election as Premier, she would introduce the Alberta Sovereignty Act, legislation described as the “cornerstone” of the Free Alberta Strategy (Strategy), published back in the fall of 2021 (see story here). Briefly, this law would purport to grant the Alberta Legislature the power “to refuse enforcement of any specific Act of Parliament or federal court ruling that Alberta’s elected body deemed to be a federal intrusion into an area of provincial jurisdiction” (Strategy at 22). Legal academics have dismissed the idea as one that would clearly offend Canada’s constitutional order, but to date mainstream media commentary has failed to acknowledge the fundamentally unlawful and undemocratic nature of this proposal.

Anti-SLAPP Legislation in Ontario Developing into a Procedural Framework Post-Pointes Protection

By Shaun Fluker

On June 15, 2022

In Civil Procedure, Vexatious Litigants

By: Shaun Fluker

Case Commented On: Dent-X Canada v Houde, 2022 ONCA 414 (CanLII)

PDF Version: Anti-SLAPP Legislation in Ontario Developing into a Procedural Framework Post-Pointes Protection

This very short post has a simple purpose: to make the point that Alberta is falling behind Ontario (and British Columbia) in the development of anti-SLAPP procedures. Anti-SLAPP legislation provides a procedural mechanism for persons to seek and obtain summary dismissal of litigation solely intended to strategically suppress expression on matters related to the public interest.