Category: Administrative Law Page 17 of 37

By: Shaun Fluker

PDF Version: Fundamental Legal Questions and Standard of Review in Alberta

Case Commented On: Stewart v Elk Valley Coal Corporation, 2015 ABCA 225

The Court of Appeal has issued another strong statement on standard of review and clearly asserts its intention to place boundaries on the application of a presumption of deference in the judicial review (or statutory appeal) of tribunal decisions. Readers may recall my earlier post where I commented on the direction taken by the Court on standard of review in Edmonton (East) Capilano Shopping Centres Ltd v Edmonton (City), 2015 ABCA 85 particularly in relation to the Court’s reluctance to defer to the interpretation by a tribunal of its home statute. It has seemed in recent years that the Supreme Court of Canada has come out strongly in favour of deference to legal determinations by statutory tribunals concerning their home legislation, and so the Capilano decision struck me as an outlier. The Court’s reasoning in Stewart v Elk Valley Coal Corporation builds on its earlier Capilano judgment and thus further indicates the Court has plans to rework the presumption of deference in judicial review for Alberta.

Does a Privative Clause Completely Oust Judicial Review?

By Shaun Fluker

On July 9, 2015

In Administrative Law

By: Shaun Fluker

PDF Version: Does a Privative Clause Completely Oust Judicial Review?

Case Commented On: Green v Alberta Teachers’ Association, 2015 ABQB 379

Green v Alberta Teachers’ Association is a short judgment by Justice T.D. Clackson in a judicial review of disciplinary action taken by the Alberta Teachers’ Association. A hearing committee organized under the bylaws of the Association found that Green had committed professional misconduct. Green appealed that decision to a 4 person appeal committee under the Association bylaws, and the appeal committee split 2 – 2 on whether to grant Green’s appeal. The tie vote resulted in the committee dismissing her appeal because of an Association bylaw that states the decision of a committee shall be by majority. Green sought judicial review on the grounds that it was procedurally unfair to lose her appeal on a tie or, alternatively, that the appeal committee’s decision was unreasonable for failing to follow an earlier Court of Appeal decision on point. Justice Clackson dismisses Green’s application, and in doing so he makes some interesting remarks on the application of privative clauses to judicial review.

The Application of stare decisis in Administrative Decision-Making

By Shaun Fluker

On May 19, 2015

In Administrative Law

By: Shaun Fluker

PDF Version: The Application of stare decisis in Administrative Decision-Making

Case Commented On: Altus Group v Calgary (City), 2015 ABCA 86

In Altus Group v Calgary (City), 2015 ABCA 86, the Alberta Court of Appeal confronts the application of stare decisis to administrative tribunal decision-making. Some would say it is a truism that statutory decision-makers are not bound by precedent given the fact-intensive and policy-laden nature of their work, and that most tribunal members have little or no substantive legal training. Jurists of Diceyan thought have surely held this position and indeed typically point to the very absence of stare decisis in administrative law to bolster their suspicion of and disregard for statutory decision-making and to justify the need for intrusive judicial scrutiny. In modern times, a tribunal seeking to downplay arguments based on precedent might be expected to respond along the lines of “[w]hile our earlier decisions may be relevant and even persuasive in this case, we are not bound by these previous rulings.” But on the other hand, many administrative law practitioners have no doubt appeared before a tribunal who references its earlier decisions and the need for consistency to support a particular ruling. Perhaps all we can say for sure is that the application of stare decisis to administrative decision-making is a tricky business.

Solicitor-Client Issues and the Information and Privacy Commissioner

By Linda McKay-Panos

On April 28, 2015

In Administrative Law, Privacy

By: Linda McKay-Panos

PDF Version: Solicitor-Client Issues and the Information and Privacy Commissioner

Case Commented On: University of Calgary v JR, 2015 ABCA 118 (CanLII)

The Alberta Court of Appeal (per Justice Russell Brown, with Justices Myra Bielby and Patricia Rowbotham concurring) recently ruled that a delegate of the Alberta Information and Privacy Commissioner did not have the statutory authority to issue a notice to the University of Calgary to produce documents so that the Commissioner could determine whether the University had properly claimed that the records were subject to solicitor-client-privilege. Further, the Commissioner did not have the statutory authority to compel the production of the records.

JR sued the University, alleging wrongful dismissal and other legal issues. During the litigation, when the parties exchanged affidavits of records, JR did not object to the University asserting solicitor-client-privilege for some of the documents. The litigation was resolved (see 2012 ABQB 342) and JR has had no involvement in the litigation since then (at para 3).

Where Are We Going on Standard of Review in Alberta?

By Shaun Fluker

On March 13, 2015

In Administrative Law, Municipal Law

By: Shaun Fluker

PDF Version: Where Are We Going on Standard of Review in Alberta?

Case Commented On: Edmonton East (Capilano) Shopping Centres Limited v Edmonton (City), 2015 ABCA 85

In Edmonton East (Capilano) Shopping Centres Limited v Edmonton (City) the Court of Appeal has upheld an earlier chambers decision of Associate Chief Justice Rooke to set aside an Edmonton assessment review board decision. This ought to have been a fairly routine administrative law case, however the Court of Appeal chose to engage in the fundamentals of judicial review and purports to add a new exception to the presumption of deference I wrote about early in January 2015 on ABlawg (see Some Thoughts on the Presumption of Deference under the Dunsmuir Framework on Substantive Judicial Review). The Court of Appeal has perhaps also significantly altered the relationship between the superior courts and administrative tribunals in Alberta. I say this because on an initial glance, it is difficult to reconcile the reasoning of the Court of Appeal in this judgment with recent jurisprudence from the Supreme Court of Canada on standard of review generally and the jurisprudence in Alberta which has developed in relation to the Edmonton assessment review board itself. Administrative law scholars and practitioners will no doubt be interested to watch how this unfolds in Alberta.