Category Archives: Administrative Law

Are the Alberta Ethics Commissioner’s actions subject to parliamentary privilege or judicial review?

By: Hasna Shireen

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Case Commented On: McIver v Alberta (Ethics Commissioner), 2018 ABQB 240

Ric Mclver, a member of the Legislative Assembly of Alberta, made comments during Question Period about power companies. His comments were subject to a complaint that he was in conflict of interest as his wife is a sole shareholder and director of a power company. The Ethics Commissioner investigated and determined that he breached the Conflict of Interest Act, RSA 2000, c C-23 [CIA] [Any following references to legislative sections are assumed to be to the CIA unless otherwise noted] and eventually sanctioned Mr. McIver. He was ordered to apologize to pay $500 and to apologize to the Legislative Assembly. In an application for judicial review, Mr. McIver challenged the Ethics Commissioner’s decision and argued that she exceeded her jurisdiction in interfering with his free speech (McIver, para 2). Justice Janice Ashcroft of the Alberta Court of Queen’s Bench addressed the following issues.

What is the role of the Ethics Commissioner in this judicial review?
Is the decision to sanction Mr. McIver subject to judicial review, or is it protected by the constitutional doctrine of parliamentary privilege?
If the decision is subject to judicial review, did the Ethics Commissioner exceed her jurisdiction? (McIver, para 9)

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Foreclosing Mortgagees’ Liability for Tenants’ Security Deposits

By: Jonnette Watson Hamilton and Shaun Fluker

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Case Commented On: CIBC Mortgages Inc v Bello, 2018 ABQB 176 (CanLII)

This appeal from an order of a Tenancy Dispute Officer of the Residential Tenancy Dispute Resolution Service (RTDRS) is worth noting for several reasons. First, it appears that the question of whether a mortgagee becomes a “landlord” under the Residential Tenancies Act, SA 2003, c R-17.1 (RTA) upon foreclosing on leased residential premises had not been addressed before. This is an important question for tenants looking to recover their security deposits and for foreclosing mortgagees who have not received those security deposits from their mortgagor. Second, the standard of review to be applied on an appeal from a Tenancy Dispute Officer’s order has been controversial within the Court of Queen’s Bench of Alberta. Some decisions have held that correctness is the standard, whereas others, including this one, hold that the standard is one of reasonableness. Third, the court’s clear statement and elaboration of the purpose of the RTA–to address the power imbalance between landlords and tenants–should be helpful to tenants in future cases. Fourth, the decision is a good example of statutory interpretation and eminently suitable for a first year law school course on legislation. Finally, insofar as Tenancy Dispute Officers are not required to give reasons as part of their written orders, the occasional appeals of those orders (which must be accompanied by a transcript of the Tenancy Dispute Officer’s oral reasons) offer rare glimpses into the legitimacy of the dispute resolution services provided by the RTDRS. Continue reading →

Self-Incrimination Immunity and Professional Misconduct

By: Nicholas Konstantinov

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Case Commented On: Toy v Edmonton (Police Service), 2018 ABCA 37 (CanLII)

In Toy v Edmonton (Police Service), the Alberta Court of Appeal dismissed former Constable Elvin Toy’s appeal of a 2015 ruling that led to his discharge from the force. That year, the Law Enforcement Review Board upheld a Presiding Officer’s decision convicting Toy of deceit and misconduct in the course of fabricating evidence at an earlier proceeding. Toy argued that the Board failed to apply the appropriate standard of review to correct the Presiding Officer’s error in law, which resulted in admitting involuntary testimony that offended his privilege against self-incrimination. Continue reading →

Dunsmuir is Dead – Long Live Dunsmuir! An Argument for a Presumption of Correctness

By: Martin Olszynski

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Case Commented On: Garneau Community League v Edmonton (City), 2017 ABCA 374 (CanLII)

Garneau is the latest judicial plea to the Supreme Court of Canada to do something about the standard of review – three judges, three judgments, all concurring in the result but each getting there somewhat differently. The case involves Alberta’s Municipal Governments Act, RSA 2000 c M-26, including statutory rights of appeal that are similar to those recently considered by the Supreme Court (and only slightly less recently considered by the Alberta Court of Appeal) in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47 (CanLII). In this post, I highlight Justice Watson’s and Slatter’s concerns about the standard of review framework as set out in Dunsmuir v New Brunswick, 2008 SCC 9 (CanLII) and its progeny. Before doing so, however, I first provide a primer on the Dunsmuir framework wherein I flag some of my own concerns. Drawing on these two parts, I then propose two concrete changes to the Dunsmuir framework that in my view would render it more coherent and stable, both doctrinally and practically. Continue reading →

Procedural Fairness in the Issuance of a Ministerial Order to Dismiss a Municipal Councilor under Section 574 of the Municipal Government Act

By: Shaun Fluker

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Case Commented On: Buryn v Alberta (Minister of Municipal Affairs), 2017 ABQB 613 (CanLII)

Municipalities in Alberta are creatures of statute and thus subject to both the oversight of the Minister of Municipal Affairs (Minister) and Alberta courts. When the affairs in a municipality go offside, the Municipal Government Act, RSA 2000, c M-26 (MGA) provides mechanisms for bringing matters back into line. Municipal affairs in Thorhild County seem to have taken a turn for the worse several years ago, and led to the submission of a petition by electors asking the Minister to inquire into the conduct of the Thorhild municipal council and its chief administrative officer. The MGA provides the Minister with authority to conduct an inquiry into the affairs of a municipality or the conduct of municipal councilors. These powers are exercised on a fairly regular basis, with 33 entries listed on the government website since December 2009. The inspection into the affairs at Thorhild culminated in a Ministerial Order dismissing three members of the Thorhild council. On the eve of the recent municipal election, in Buryn v Alberta (Minister of Municipal Affairs) Madam Justice Dawn Pentelechuk quashed the Ministerial Order as unlawful for failing to afford the councilors procedural fairness.