Category Archives: Administrative Law

Some Thoughts on the Presumption of Deference under the Dunsmuir Framework in Substantive Judicial Review

By: Shaun Fluker

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Case Commented On: Alberta Treasury Branches v Alberta Union of Provincial Employees, 2014 ABQB 737

This is a run-of-the-mill judicial review decision by Justice Don Manderscheid in early December. The decision reviews statutory interpretation conducted by the FOIP Commissioner acting under the Freedom of Information and Protection of Privacy Act, RSA 2000 c F-25 (FOIP Act) to settle a dispute between Alberta Treasury Branches (ATB) and the Alberta Union of Provincial Employees (AUPE) over the obligation of ATB to disclose certain bargaining unit information to AUPE. While there is nothing particularly unusual about this case, it does provide a good platform from which to revisit some of the fundamentals in judicial review as we enter 2015. This post first describes the legal issues in this case, and then summarizes how Manderscheid J. resolves them. I conclude with some thoughts on the developing presumption of deference in substantive judicial review post-Dunsmuir.

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How much discretion does a regulator have to limit the recovery of a utility’s legal costs?

By: Nigel Bankes

PDF Version: How much discretion does a regulator have to limit the recovery of a utility’s legal costs?

Case Commented On: ATCO Gas and Pipelines Ltd v Alberta (Utilities Commission), 2014 ABCA 397

In this case the Court of Appeal confirmed that the Alberta Utilities Commission (AUC) has some level of discretion as to the extent to which it allows a regulated utility to recover its prudently incurred legal costs from its customers when that utility participates in hearings called by the AUC to consider generic issues of interest to all regulated utilities and their customers and shareholders. One member of the Court (Justice Peter Martin) thought that the Commission went too far in denying recovery in relation to one set of costs and would have sent that matter back to the Commission.

The decision is interesting because it involves the intersection between an adjudicator’s discretion to allow for the recovery of legal costs and the general principle that a utility ought to have the opportunity to recover all of its prudently incurred operating costs (including the legal costs associated with rate setting) through the tariff approved by the regulator. A decision that recognizes that a utility has prudently incurred certain costs but which then denies the utility even the opportunity to recover those costs will generally be unsupportable: BC Electric Railway Company v Public Utilities Commission, [1960] SCR 837. In this case however there were special considerations and thus while the majority found the Commission’s decision both reasonable and correct, the decision is not likely of broad application – a point that Chief Justice Fraser herself seems to acknowledge at paras 70 – 73. In particular, and notwithstanding other and rather more sweeping statements from the Chief Justice (see, for example para 106, quoted below, and paras 110 – 111), it is not likely that the decision can be applied in the more routine situation in which a utility incurs legal costs as part of preparing and presenting its general rate application (GRA) to the AUC for it to set just and reasonable rates. The AUC may still scrutinize those legal costs on prudence grounds (and see here in particular Justice Martin at para 171) to ensure that the utility is not gold-plating its costs (e.g. where it chooses to retain expensive outside counsel to undertake a task that could be more economically dealt with in-house) but it likely cannot say (even on a reasonableness standard of review) that the legal costs associated with preparing and presenting a GRA are not recoverable.

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Judicial Supervision of the National Energy Board (NEB): The Federal Court of Appeal Defers to the NEB on Key Decisions

By: Nigel Bankes

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Cases Commented On: Forest Ethics Advocacy Association and Donna Sinclair v National Energy Board, 2014 FCA 245; City of Vancouver v National Energy Board, and TransMountain Pipeline ULC, Order of the Federal Court of Appeal, Docket 14-A-55, per Justice Marc Nadon, October 16, 2014, denying leave to appeal the NEB’s scoping decision, Hearing Order OH-001-2014, 23 July 2014.

The National Energy Board (NEB) has its plate full; so too does the Federal Court of Appeal which has been hearing both judicial review applications and leave to appeal applications in relation to a number of projects including the Northern Gateway Project (Enbridge), the Line B Reversal and Line 9 Capacity Expansion Project (Enbridge), and the TransMountain expansion Project (Kinder Morgan). Interested readers can obtain details of these projects as well as Board decisions on the NEB’s website. I provided an assessment of the state of play in the Northern Gateway applications in a comment published in the Energy Regulation Quarterly.

The term “judicial supervision” in this post is designed to encompass both the idea of judicial review and appellate review of NEB decisions by way of appeal to the Federal Court of Appeal (FCA) (with leave). The normal route for obtaining judicial supervision of the NEB is by way of appeal (with leave) but one of the most significant recent decisions we have seen in this area, the Forest Ethics and Sinclair case, came before the Court on an application for judicial review. The case is important because it establishes, at least in the circumstances of that case, that the Board did not err in ruling that it did not have to consider the larger environmental effects of a pipeline project including the contribution to climate change made by the Alberta oil sands and facilities and activities upstream and downstream from the pipeline project.

This post aims to do three things. First it explains the different ways in which a party may seek judicial supervision of an NEB decision. Second, it examines the Forest Ethics and Sinclair decision and finally it offers some brief commentary on one important practical and philosophical difference between the way in which the Federal Court of Appeal treats leave applications and the way in which it treats judicial review applications – reasons.

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The Charter Issue(s) in Ernst: Awaiting Another Day

By: Jennifer Koshan

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Case Commented On: Ernst v Alberta (Energy Resources Conservation Board), 2014 ABCA 285

My colleagues Martin Olszynski and Shaun Fluker have posted comments on the Alberta Court of Appeal decision in Ernst here and here. In addition to the regulatory negligence claim against the Energy Resources Conservation Board (ERCB) and Alberta Environment they cover in their posts, Ernst brought a claim against the ERCB for breach of the Charter. More specifically, she alleged that the ERCB violated her freedom of expression under section 2(d) of the Charter by “punishing her for criticizing the ERCB in public and to the media, and … because she was prohibited and restrained in her communication with the ERCB” (2013 ABQB 537 at para 39). In response to the ERCB’s application to strike the statement of claim, Chief Justice Wittman found that the Charter claim, although novel, was not doomed to fail and should not be struck. However, section 43 of the Energy Resources Conservation Act, RSA 2000, c. E-10 (ERCA) barred Ernst’s Charter claim against the ERCB (2013 ABQB 537 at paras 42, 82-88). Although the ERCB did not appeal the finding that the pleadings disclosed an arguable claim for a breach of the Charter, the Court of Appeal upheld Wittman CJ’s finding that section 43 of the ERCA barred any Charter claim by Ernst.

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Access vs Privacy: A Mounting Rivalry

By: Ronaliz Veron

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Case Commented On: Covenant Health v Alberta (Information and Privacy Commissioner), 2014 ABQB 562

Covenant Health v Alberta, 2014 ABQB 562, addresses a difficult power struggle that can develop between government facilities responsible for caring for the elderly, and the family members who question that care. It also examines the conflicting interests that arise when a public health body is asked to disclose records that contain patient data and non-patient information. In navigating the interaction between the Health Information Act, RSA 2000, c H-5 and the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 (Freedom of Information Act), Judge Wakeling’s reasons reveal a mounting rivalry between the right to access personal information and the right to privacy. In the end, the Court, after engaging in a balancing exercise, clearly chose to favour privacy rights over access rights.

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