Category Archives: Administrative Law

Justice for Some

By: Alice Woolley

Case Commented on: Green v Law Society of Manitoba, 2017 SCC 20 (CanLII)

Introduction (AKA: A General Complaint About Injustice)

On March 30, 2017 the Supreme Court issued its judgment in Green v. Law Society of Manitoba, 2017 SCC 20 (CanLII).

Rarely have so many judicial resources been spent on a case worthy of so little.

Sidney Green was called to the bar of Manitoba in 1955. In 2011, the Law Society of Manitoba introduced a requirement that all lawyers complete 12 hours of professional development a year. Mr. Green refused to participate. He said that “the CPD activities available to him would not have been helpful to him in his practice” (at para 48). The CEO of the Law Society of Manitoba sent Mr. Green a letter “notifying him that if he did not comply with the Rules within 60 days, he would be suspended from practising law” (at para 10). The CEO also told him, however, that Mr. Green should let the Law Society know if it had made a mistake, and if he needed more than 60 days that period could be extended (at para 10). Mr. Green still did not complete his professional development. Instead he sought judicial review and retained Charles Huband, formerly of the Manitoba Court of Appeal (1979-2007), to assist him.

Mr. Green’s application was unsuccessful at the Manitoba Court of Queen’s Bench (2014 MBQB 249 (CanLII)). It was unsuccessful at the Manitoba Court of Appeal (2015 MBCA 67 (CanLII)). The Supreme Court nonetheless granted leave. Continue reading →

Jurisdictional Matters Concerning Environmental Protection Orders Under the Environmental Protection and Enhancement Act

By: Shaun Fluker

PDF Version: Jurisdictional Matters Concerning Environmental Protection Orders Under the Environmental Protection and Enhancement Act

Case Commented On: Director (EAP) v Alberta (Provincial Court), 2017 ABQB 3 (CanLII)

During April and May of 2010 a significant gasoline spill occurred at a gas station located at 6336 Bowness Road in Calgary. The underground petroleum plume spread to adjacent properties, and in December 2010 the Director of Alberta Environment issued a remediation order under the Environmental Protection and Enhancement Act, RSA 2000, c E-12 (EPEA). The site is now an empty lot, and while remediation activities have been conducted there is disagreement on whether the property is fully cleaned up. Metaphorically speaking, this petroleum plume also spread to the Alberta legal system. A preliminary search in preparation for writing this comment revealed no less than 10 decisions concerning the spill: (1) the Director’s December 2010 remediation order; (2) a December 2011 decision by the Alberta Environmental Appeals Board concerning an appeal of the December 2010 remediation order (Gas Plus Inc and Handel Transport v Director (Alberta Environment), Appeals No 10-034, 11-002, 008 & 023R; (3) a revised remediation order issued in January 2012 incorporating the Board’s recommendations; (4) an Order of the Court of Queen’s Bench issued in December 2012 concerning the January 2012 revised remediation order; (5) 2 interlocutory decisions by the Court of Queen’s Bench in relation to civil proceedings concerning the spill (Floate v Gas Plus, 2015 ABQB 545 (CanLII) and Floate v Gas Plus, 2015 ABQB 725 (CanLII)); (6) a decision by the Calgary Development Authority to deny a permit to construct a new gas station on the site and a March 2015 decision by the Calgary Subdivision and Development Appeal Board dismissing an appeal of the development decision (Re SDAB2014-0146, 2014 CGYSDAB 146 (CanLII)); and (7) a decision issued in January 2017 by the Honourable Mr Justice P.R. Jeffrey quashing a mediation order issued by the Honourable Judge H.A. Lamoureux in relation to the dispute over remediation. This comment examines this most recent decision by Justice Jeffrey in Director (EAP) v Alberta (Provincial Court), 2017 ABQB 3 (CanLII), which addresses jurisdictional matters concerning environmental protection orders under EPEA and the inherent authority of the court. Continue reading →

Tolling Methodologies On Federally Regulated Pipelines In Northeast British Columbia

By: Nigel Bankes

PDF Version: Tolling Methodologies On Federally Regulated Pipelines In Northeast British Columbia

Matters Commented On: (1) National Energy Board (NEB), Letter decision on the Application of Westcoast Energy Inc for Review of the Decision of Members Ballem and Lytle, in Report GH-003-2015 (Towerbirch Report), Respecting the Toll Treatment of the Tower Lake Section (TLS), and (2) NEB letter to NOVA Gas Transmission Ltd (NGTL), Westcoast Energy Inc (Westcoast) and Alliance Pipeline Ltd (Alliance), re Examination to Determine Whether to Undertake an Inquiry of the Tolling Methodologies, Tariff Provisions and Competition in Northeast BC, 16 March 2017 (the Tolling Methodology Process Letter).

Northeast British Columbia is an area of expanding natural gas production due to a number of significant shale gas plays in the area including Horn River, Liard, and Montney.

Historically this area of the province was first served for conventional sour gas production by Westcoast Transmission. Westcoast offered producers a bundled service including sour gas processing as well as mainline transmission down to the lower mainland and on to serve markets in the Pacific Northwest. This entire system has long been federally regulated by the National Energy Board (NEB), a practice that was legally and constitutionally confirmed by the majority judgement of the Supreme Court of Canada in Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 SCR 322, 1998 CanLII 813 (SCC). More recently the area has also come to be served by Alliance’s “bullet pipeline” and by extension of the NGTL system from Alberta into BC. The Alliance Pipeline is a point-to-point pipeline which transports liquids rich gas from this area and northwest Alberta to the Chicago market hub. Alliance came on stream in 2000. Its construction was backed by 15 year contracts. Few shippers elected to renew and “accordingly, Alliance developed its New Services Offering (NSO), which incorporated new services and tolling methodologies on the pipeline. Alliance applied for Board approval of the NSO in 2014.” The Board’s Reasons for Decision on that matter (RH-002-2014) are available here. The NGTL system is the old NOVA intraprovincial transmission system which began life in the 1950s under the name Alberta Gas Trunk Line (AGTL) and subsequently morphed into NOVA before merging with TransCanada PipeLines (TCPL) in 1998. Historically, AGTL and NOVA were provincially regulated until brought under federal regulation in 2009: see ABlawg post here. The AGTL\NOVA business model was quite different from that of Westcoast. NOVA focused its attention on the transmission system and left the producers to assume responsibility for owning and constructing in-field processing facilities to produce pipeline quality gas for delivery to the AGTL\NOVA system.

The result of these developments is that the natural gas transmission scene in northeast BC no longer looks like a natural monopoly, and has not for some long time. Instead, there is competition for natural gas production and competition to fill transmission systems with gas. No pipeline system feels this more acutely than the NGTL system and its sister, the TCPL mainline, which needs additional volumes of gas to make up for the declines in conventional gas production in the western Canadian Sedimentary Basin (WCSB). Continue reading →

Reasons, Respect and Reconciliation

By: Nigel Bankes

PDF Version: Reasons, Respect and Reconciliation

Case Commented On: Kainaiwa/Blood Tribe v Alberta (Energy), 2017 ABQB 107 (CanLII)

Reconciliation between Canada’s settler society and First Nations and other indigenous communities certainly requires mutual respect but it should also require reasons in appropriate cases according to Justice Paul Jeffrey, at least where the Crown dismisses an application for the exercise of a statutory discretion which is closely linked to efforts to right an historic grievance. This is an important decision which should be required reading for every Minister of the Crown with a responsibility for the relationship between Her Majesty and Canada’s first peoples, and for all senior civil servants responsible for advising those Ministers. Continue reading →

Seeking Leave to Appeal a Statutory Tribunal Decision: What Principles Apply?

By: Shaun Fluker and Drew Yewchuk

PDF Version: Seeking Leave to Appeal a Statutory Tribunal Decision: What Principles Apply?

Case Commented On: Bokenfohr v Pembina Pipeline Corporation, 2017 ABCA 40 (CanLII)

Statutory provisions which provide for an appeal from a statutory tribunal to a superior court have not received much critical attention in Canadian administrative law. In 2010 the Alberta Law Reform Institute contemplated a study on statutory appeals to the courts from adjudicative decisions, and in preparation for that study the Institute compiled an inventory of adjudicative tribunals and their statutory appeal mechanisms published in Administrative Adjudicative Decisions: Statutory Review Mechanisms. The Institute decided not to pursue this study, which is unfortunate because there is plenty of uncertainty surrounding the application of these provisions including, for example, how they operate alongside the inherent authority of a superior court to engage in judicial review of administrative decisions. That point does not concern us here, but rather our focus is on the typical legislative requirement that a prospective appellant to obtain leave or judicial permission to proceed with the statutory appeal of a tribunal decision. What principles guide the court in deciding whether to grant leave to appeal? The leave to appeal decision in Bokenfohr v Pembina Pipeline Corporation, 2017 ABCA 40 (CanLII) provides a recent illustration for the purpose of exploring this question. Continue reading →