Category Archives: Administrative Law

The Alberta Energy Regulator in the Post-Information World: Best-in-Class?

By: Shaun Fluker and Sharon Mascher

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Statement Commented On: Alberta Energy Regulator Public Statement 2017-01-13

As readers will know, on Friday January 13, 2017 the Supreme Court of Canada released its decision in Ernst v Alberta Energy Regulator, 2017 SCC 1 (CanLII) and our colleague Jennifer Koshan set out what the Court actually decided in her Die Another Day: The Supreme Court’s Decision in Ernst v Alberta Energy Regulator and the Future of Statutory Immunity Clauses for Charter Damages comment posted to ABlawg on Monday January 16. Our comment here critically reflects on the Public Statement issued by the Alberta Energy Regulator (AER) on Friday the 13^th on the Ernst decision. This statement reads like the work of a spin doctor and harms the credibility of the AER as a ‘best-in class regulator’. In our view the Public Statement is inappropriate, contains inaccuracies, and should be rescinded by the AER. Continue reading →

Board Cannot Ignore Injurious Affection Losses

By: Nigel Bankes

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Case Commented On: Koch v Altalink Management Ltd, 2016 ABQB 678 (CanLII)

This case involves WATL (the Western Alberta Transmission Line) and parcels of land owned by the Kochs that will be bisected by the line. The principal point of law involved relates to the injurious affection suffered by the lands retained by the Kochs (i.e. these are Koch lands which lie outside the area of the right of way acquired by Altalink). It is a standard principle of compensation law that such losses should be recoverable. However, in this case, Altalink, in an argument accepted by the majority of the Surface Rights Board panel hearing the case, took the position that the Kochs had bought the lands at a price that was already discounted from its original market value by the prospect of WATL being constructed. Accordingly, the Kochs had suffered no injurious affection losses and were therefore not entitled to any compensation under this head of damages. On this theory the party that had suffered the loss was the vendor to the Kochs and to compensate the Kochs for injurious affection would to award them a windfall. The minority would have awarded injurious affection damages of $125,780. The Kochs appealed. Continue reading →

The Dangers of Inconsistency (and Consistency) in Supreme Court Jurisprudence

By: Alice Woolley

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Case Commented On: Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 (CanLII)

I can’t decide whether I am more excited that the Supreme Court issued a decision dealing with two legal issues of great interest to me – administrative law standard of review and statutory incursions into solicitor-client privilege – or irritated that the Court’s handling of both issues is so annoying. Because it is the end of term, and I’m as grumpy as any other professor at the end of term, I am mostly irritated. Irritated because on standard of review the Court seems literally incapable of a consistent and practical approach, while on solicitor-client privilege the Court has been so consistent that it risks fetishizing the significance of solicitor-client confidentiality to the point of jeopardizing other important legal interests.

On standard of review the Court needs to stop. It needs to stop trying to articulate and apply a set of rules for judicial deference to administrative decision-makers. It should instead let administrative judicial review be a matter of practice and the appropriate judicial attitude, one of respectful attention to any decision-maker’s reasons for a particular decision, while recognizing that judges provide a sober second thought through judicial review, particularly on matters of legal interpretation. Along with significantly shifting every decade or so, the rules identified end up being misleading at best and unhelpful at worst, failing to capture the basic and in the end relatively straightforward idea that standard of review reflects. The Court’s attempt to articulate rules governing standard of review is like a baseball coach trying to develop a set of rules for players to use when deciding whether to swing, when the appropriate advice is both simple and incapable of more precise articulation: swing at a strike; don’t swing at a ball (or, alternately, swing at a pitch you have the skill to hit, and leave the rest alone).

On solicitor-client privilege, the Supreme Court can certainly claim to have been consistent: solicitor-client privilege is generously defined and strenuously protected. On the whole, that seems to me a good thing. But this decision raises the possibility that that consistent and vigorous protection may go beyond what is necessary for protection of the privilege, and may occur at the expense of other values of importance to the legal system. Continue reading →

Selim v Alberta: Reasonableness is Not Always Fairness

By: Geea Atanase

PDF Version: Selim v Alberta: Reasonableness is Not Always Fairness

Case Commented On: Selim v Alberta (Information and Privacy Commissioner), 2016 ABQB 562 (CanLII)

Summary

This case involves a judicial review, on a standard of reasonableness, of a refusal by the Information and Privacy Commissioner to conduct an inquiry stemming from a decision by the Calgary Police Service (CPS) to close an access to information request file. The decision of Alberta Court of Queen’s Bench Justice J.B. Veit hinges on the legislative intent behind the Freedom of Information and Protection of Privacy Act (FOIPPA), RSA 2000 c F-25, and the authority of the Commissioner to refuse to conduct an inquiry, as well as on the reliability of the evidence on which the Commissioner relied in making the decision. However, the decision in this case has wider implications that fall outside of the scope of judicial review, and points to a striking lack of accountability on the part of CPS when it comes to the conduct of one of its own. Rather than address the magnitude of the injustice to which the appellant was subjected in this case, Justice Veit focuses almost exclusively on applying a standard of reasonableness in reviewing the decision of the Commissioner. Continue reading →

The Supreme Court of Canada (By a Slim Majority) Confirms the Presumption of Deference in Alberta

By: Shaun Fluker

PDF Version: The Supreme Court of Canada (By a Slim Majority) Confirms the Presumption of Deference in Alberta

Case Commented On: Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47

In 2015 the Alberta Court of Appeal issued two decisions which suggested the Court is attempting to curtail the presumption of deference in the judicial review (or statutory appeal) of statutory tribunal decisions in this province: see Edmonton (East) Capilano Shopping Centres Ltd v Edmonton (City), 2015 ABCA 85 (CanLII) (Capilano, ABCA) which I commented on in Where Are We Going on Standard of Review in Alberta? and Stewart v Elk Valley Coal Corporation, 2015 ABCA 225 (CanLII) which I commented on in Fundamental Legal Questions and Standard of Review in Alberta. The Supreme Court of Canada granted leave to appeal on both decisions, and on November 4 the Supreme Court issued its decision in Capilano: Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47 (Capilano) . The slim majority judgment (5-4) written by Justice Andromache Karakatsanis reverses the Court of Appeal on both its standard of review analysis and on the merits of the case by restoring the assessment review board decision. The result for standard of review analysis is that the presumption of deference to substantive decisions made by statutory tribunals should be alive and well in Alberta, but it should be noted there is a growing resistance to the presumption not only at the Alberta Court of Appeal but also within the Supreme Court of Canada. Continue reading →