Category: Administrative Law Page 16 of 37

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.

For Shame: An Obvious and Fundamental Breach of Natural Justice by the Residential Tenancies Dispute Resolution Service (RTDRS)

By Jonnette Watson Hamilton

On January 19, 2016

In Administrative Law, Landlord/Tenant

By: Jonnette Watson Hamilton

PDF Version: For Shame: An Obvious and Fundamental Breach of Natural Justice by the Residential Tenancies Dispute Resolution Service (RTDRS)

Case Commented On: Kerr v Coulombe, 2016 ABQB 11 (CanLII)

A tenant, Gary Kerr, showed up for a hearing at the Residential Tenancies Dispute Resolution Service (RTDRS) in Edmonton. The hearing, initiated by the landlord, Betty Coulombe, against Gary and Jason Kerr, was scheduled for November 27, 2015 at 1:30 p.m. The tenant arrived on time and checked in with the receptionist. The receptionist told him to have a seat in the waiting room and said they would call him. At 2:30 p.m., the tenant checked with the receptionist again, wanting to know if he should continue to wait. The receptionist disappeared into the back and returned with an Order against the tenant. The Order stated that the landlord appeared by telephone and “Tenants are not participating.” As the tenant succinctly put it in his affidavit, “I did not have a chance to speak on our behalf” (at para 3). This scenario is reminiscent of Franz Kafka’s parable, “Before the Law”, where the man from the country patiently sits before a gatekeeper controlling entry into the law.

What the RTDRS did to Gary Kerr was, without question, a breach of natural justice: “an obvious and fundamental failure of natural justice” (at para 14). No administrative tribunal in the Canadian legal system — no matter how “fast, inexpensive, less formal” it bills itself — can leave a party cooling his heels in the waiting room and conduct a hearing without giving him a chance to speak. It may be fast, it may be inexpensive, and it may be informal — but it is not justice.

Court of Appeal Affords Deference to Alberta Securities Commission in Platinum Equities Case

By Shaun Fluker

On November 9, 2015

In Administrative Law, Securities

By: Shaun Fluker

PDF Version: Court of Appeal Affords Deference to Alberta Securities Commission in Platinum Equities Case

Case Commented On: Alberta (Securities Commission) v Chandran, 2015 ABCA 323

In February 2014 the Alberta Securities Commission found that Shariff Chandran was the governing mind of an elaborate scheme of capital market misconduct under the general umbrella of Platinum Equities and ruled that Chandran and others were guilty of contravening various provisions of the Securities Act, RSA 2000, c S-4 concerning the illegal distribution of approximately $58 million in securities to the public, misrepresentations, fraud, and conduct contrary to the public interest (See Re Platinum Equities Inc, 2014 ABASC 71). In addition to these administrative proceedings before the Commission, there are civil and criminal proceedings underway concerning Platinum Equities. In September 2014 the Commission issued its sanctions order 2014 ABASC 376 against Chandran and others for their misconduct under the Securities Act. Chandran asked the Court of Appeal to set aside a portion of these sanctions ordered by the Commission, and in Alberta (Securities Commission) v Chandran the panel of Justices Martin, O’Ferrall, and Shutz dismisses his appeal. The Court’s decision is a good example of how deference should work in substantive judicial review.

Section 38 of the Securities Act provides for a right of appeal to the Court by a person who is directly affected by a Commission decision. Notably section 38 does not limit this right of appeal to questions of law and neither does it require leave of the Court. Moreover, section 38 expressly states the Court may confirm, vary or reject the Commission decision, direct the Commission to re-hear the matter, or even decide the matter itself and substitute its decision for that of the Commission. In short, section 38 is a very generous and potentially intrusive statutory appeal provision.

The Fundamentals of Tribunal Standing and Bootstrapping in Judicial Review

By Shaun Fluker

On October 14, 2015

In Administrative Law, Supreme Court of Canada

By: Shaun Fluker

PDF Version: The Fundamentals of Tribunal Standing and Bootstrapping in Judicial Review

Case Commented On: Ontario (Energy Board) v Ontario Power Generation Inc., 2015 SCC 44

In Ontario (Energy Board) v Ontario Power Generation Inc. the Supreme Court of Canada revisits the fundamentals of standing for a tribunal in a judicial review or statutory appeal of its impugned decision. The substance of this case involves utility regulation in Ontario, and my colleague Nigel Bankes has written on that substance here. The relevant facts for this comment are simply that the Ontario Energy Board disallowed certain labour costs submitted by Ontario Power Generation in its rate application to the Board. The Ontario Divisional Court dismissed an appeal by Ontario Power, but the Ontario Court of Appeal reversed this finding, set aside the Board’s decision, and remitted the case back to the Board for reconsideration. The Board appealed to the Supreme Court of Canada. No doubt in response to what then appears to be the Board attempting to defend its impugned decision before the Supreme Court, the proper role of the Ontario Energy Board in these proceedings was raised and my comment here focuses on what the Supreme Court of Canada decides in this regard.

The Governor in Council Occasions Change and Delay in the National Energy Board’s Review of the Trans Mountain Pipeline Expansion Project: The Curious Case of PC 2015-1137

By Kirk Lambrecht, Q.C.

On September 15, 2015

In Administrative Law, Energy, Natural Resources

By: Kirk Lambrecht, Q.C.

PDF Version: The Governor in Council Occasions Change and Delay in the National Energy Board’s Review of the Trans Mountain Pipeline Expansion Project: The Curious Case of PC 2015-1137

Matter Commented On: Order in Council PC 2015-1137

In plain language, it seems that the Governor in Council shot the Trans Mountain Pipeline Expansion Project in the foot just as the Project was about the cross the finish line of a two year environmental assessment and regulatory review process overseen by the quasi-judicial National Energy Board [NEB]. A Governor in Council decision to appoint a Proponent’s witness to the NEB, taken while a Panel of the NEB was still considering the Proponent’s application, has occasioned the striking of a part of the Proponent’s evidence in the ongoing environmental assessment process (described here) and regulatory review process (described here) for the Trans Mountain Pipeline Expansion Project (described here). The Governor in Council’s action will cause unexpected changes and delays to these processes; and the clouds of future litigation which lay on the horizon for this Project now darken as a further consequence. This comment is structured around four questions: (1) what happened? (2) how could this happen? (3) will this affect Aboriginal consultation? and (4) what happens next?