Category Archives: Administrative Law

Will the Flurry of New Wind Energy Projects Face a Storm of Opposition?

By: Jeremy Barretto

PDF Version: Will the Flurry of New Wind Energy Projects Face a Storm of Opposition?

Decision Commented On: AUC Decision 3329-D01-2016, E.ON Climate & Renewables Canada Ltd., Applications for the Construction and Operation of the Grizzly Bear Creek Wind Power Project, May 19, 2016.

According to Alberta’s Climate Leadership Plan, renewable sources are expected to account for up to 30% of the province’s electricity generation by 2030—approximately triple today’s renewable generation. The provincial government is developing a competitive process to bring new renewable generation capacity to the grid, based on reports from an expert panel and the Alberta Electric System Operator. The first competition will be in Q4 2016.

As I’ve previously written, wind projects will likely obtain most government financial incentives, provided that such incentives are offered through a competitive auction for utility-scale renewable energy projects. That’s because upfront costs for wind energy projects are typically lower than other forms of renewable energy. The rapid development of wind energy in Ontario and recent Alberta decisions foreshadow potential vigorous opposition, and key process differences, for the anticipated flurry of new wind energy projects. Continue reading →

The Standard of Patent Unreasonableness Lives On

By: Shaun Fluker

PDF Version: The Standard of Patent Unreasonableness Lives On

Case Commented On: British Columbia (Workers’ Compensation Appeal Tribunal) v Fraser Health Authority, 2016 SCC 25 (CanLII)

In its recent British Columbia (Workers’ Compensation Appeal Tribunal) v Fraser Health Authority, 2016 SCC 25 decision, the Supreme Court of Canada engages in a review of a tribunal decision which emanates from British Columbia. From the perspective of administrative law jurisprudence, what is noteworthy about this decision is that the Supreme Court applies the standard of patent unreasonableness in its review. Yes that’s right – this is the same standard of review which was shown the door by the Supremes in Dunsmuir. This decision reminds us that the standard of patent unreasonableness lives on in judicial review where a legislature has preserved it under a statute, as is the case in British Columbia with sections 58 and 59 of the Administrative Tribunals Act, SBC 2004 c 45, but offers nothing explicit on how this fits into general principles of administrative law. Continue reading →

Community Consultation Is “Not Mere Window Dressing” in Development Permit Applications

By: Nickie Nikolaou

PDF Version: Community Consultation Is “Not Mere Window Dressing” in Development Permit Applications

Case Commented On: Thomas v Edmonton (City), 2016 ABCA 57 (CanLII)

Disputes between developers of new residential properties and landowners, especially in the context of mature neighborhoods, are common when variances are sought from local land-use bylaw standards. In Thomas v Edmonton (City), the Court of Appeal tipped the scales slightly in favor of landowners where the bylaw mandates community consultation. The Court held that where a development standard variance is required, and the applicable zoning bylaw mandates community consultation, that consultation is a condition precedent to obtaining a valid development permit. Moreover, the Subdivision and Development Appeal Board (SDAB) has no authority to waive the requirement. Continue reading →

Court of Queen’s Bench Strikes Prohibition on Pharmacy Inducements in Alberta

By: Shaun Fluker

PDF Version: Court of Queen’s Bench Strikes Prohibition on Pharmacy Inducements in Alberta

Case Commented On: Sobeys West Inc v Alberta College of Pharmacists, 2016 ABQB 232

In late March I wrote a post commenting on the difficult application of a standard of review analysis to a vires determination of subordinate legislation – see Does the Standard of Review Analysis Apply to a Vires Determination of Subordinate Legislation? The decision before me then was Sobeys West Inc v Alberta College of Pharmacists, 2016 ABQB 138, wherein Mr. Justice V.O. Ouellette selected the standard of correctness to assess the vires of a prohibition enacted as subordinate legislation by the Alberta College of Pharmacists (“College”). This comment now looks at the substantive decision issued April 22 by Justice Ouellette ruling that the prohibition is ultra vires the College. I think there are some doctrinal problems with the reasoning in this judgment which I explain below, and I conclude this comment by shining some light on the fact that the successful party – Sobeys – is a large and powerful national grocery retailer in Canada who appears to convince the Court that this matter is more about consumers than patients.  Continue reading →

Does the Standard of Review Analysis Apply to a Vires Determination of Subordinate Legislation?

By: Shaun Fluker

PDF Version: Does the Standard of Review Analysis Apply to a Vires Determination of Subordinate Legislation?

Case Commented On: Sobeys West Inc v Alberta College of Pharmacists, 2016 ABQB 138

The substance of the dispute in this decision is whether a prohibition enacted by the Alberta College of Pharmacists is lawful. Specifically, in April 2014 the College voted to amend its Code of Ethics to prohibit pharmacists from providing inducements – such as loyalty program points or other forms of consumer purchase rewards – to a patient for the acquisition of a drug or a service from them. The College provides a description of the inducement issue and its rationale for the prohibition here. Sobeys challenges the lawfulness of this prohibition, and thus seeks judicial review. It seems that the standard of review to be applied in this case became a significant issue in the hearing, and this decision by the Honourable Mr. Justice V.O. Ouellette is the Court’s reasons for selecting correctness – notwithstanding that both Sobeys and the College had agreed the standard should be reasonableness. The decision illustrates, or perhaps exposes, some uncertainty in the application of administrative law principles to legislative acts by delegates of the Legislature, and unfortunately I am not sure the reasoning provided by Justice Ouellette is helpful in resolving this uncertainty.

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