Category: Administrative Law Page 19 of 39

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.

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

By Shaun Fluker

On January 12, 2015

In Administrative Law, Statutory Interpretation

By: Shaun Fluker

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

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.

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

By Nigel Bankes

On December 10, 2014

In Administrative Law, Energy, Utility Regulation

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.