Category: Administrative Law Page 19 of 37

By: Shaun Fluker

PDF Version: Divergence at the Court of Appeal on What Amounts to Unreasonable Decision-making

Case Commented On: Hunter v College of Physicians & Surgeons of Alberta, 2014 ABCA 262

In this judgment the Court of Appeal reviews a disciplinary decision made by the College of Physicians & Surgeons of Alberta against one of its physician members. I think the judgment is noteworthy to a broader audience of administrative law scholars and practitioners because of the stark contrast in how the majority and the dissent apply the reasonableness standard to review the College’s decision. The majority judgment written by Justice Slatter and Madam Justice Veldhuis dismisses the appeal by the physician using only 6 paragraphs of reasons to conclude the disciplinary decision is reasonable. The dissenting opinion written by Justice O’Ferrall concludes the College’s decision is unreasonable and in doing so probes much further into the impugned regulatory process and the record in this case. There would appear to be a divergence of views at the Court of Appeal in how to apply the reasonableness standard in judicial review.

Federal Court of Appeal Reviews CEAA “Justification” Determination for Lower Churchill Falls

By Martin Olszynski

On September 19, 2014

In Administrative Law, Environmental

By: Martin Olszynski

PDF Version: Federal Court of Appeal Reviews CEAA “Justification” Determination for Lower Churchill Falls

Case Commented On: Council of the Innu of Ekuanitshit v. Canada (Attorney General), 2014 FCA 189

At least three times in the course of the past year, an environmental assessment (EA) panel convened under the Canadian Environmental Assessment Act 2012, SC 2012, c 19 (CEAA, 2012) has concluded that a project is likely to result in significant adverse environmental effects: Shell’s Jackpine Mine Expansion, Taseko’s New Prosperity Mine, and Enbridge’s Northern Gateway Pipeline. In the case of both Jackpine and Northern Gateway, the federal Cabinet determined that these effects were “justified in the circumstances,” but not so for New Prosperity. In none of these instances, however, did the relevant “Decision Statement” pursuant to section 54 of CEAA, 2012 contain any explanation or reasons for Cabinet’s decision. The Federal Court of Appeal’s recent decision in Council of the Innu suggests that this approach is wrong. This litigation involved the Lower Churchill Hydroelectric Project proposed by Nalcor in Newfoundland. This project was reviewed under the previous CEAA regime but the relevant provisions are virtually unchanged. Like the three EAs referred to above, the panel concluded that the project was likely to result in significant adverse environmental effects. Unlike the three projects referred to above, however, the government did provide a detailed explanation for its determination that the significant adverse environmental effects were justified in the circumstances. The Council challenged this determination (the Council also challenged the sufficiency of Aboriginal consultation; this post focuses only on the justification issue).

Syncrude v Canada: Where is the gatekeeper when you need one?

By Shaun Fluker

On September 12, 2014

In Administrative Law, Climate Change, Environmental

By: Shaun Fluker

PDF Version: Syncrude v Canada: Where is the gatekeeper when you need one?

Case Commented On: Syncrude Canada Ltd v Attorney General of Canada, 2014 FC 776

This post continues on from the introductory comment posted by Nigel Bankes on September 11, 2014 (here) concerning this case, and discusses the administrative law aspects in Justice Zinn’s decision. Briefly put, Syncrude challenges the validity of the Renewable Fuels Regulations, SOR/2010-109 enacted pursuant to section 140 of the Canadian Environmental Protection Act, 1999, SC 1999, c 33 [CEPA]. Section 139 of CEPA together with the Renewable Fuels Regulations require diesel fuel produced, imported or sold in Canada to contain renewable fuel of at least 2% by volume. Syncrude produces diesel fuel, and is thus subject to this requirement unless it can successfully argue the Renewable Fuels Regulations are ultra vires the authority of the Governor in Council or that there is some other legal defect in how the rules have been administered against it. My comment focuses on two points in the decision, namely: (1) are the Renewable Fuels Regulations unlawful because they do not conform to the regulation making powers of the Governor in Council set out in section 140 of CEPA?; and (2) did the Minister err in law by failing to afford Syncrude procedural fairness in administering the regulations?

What is the Test for Leave to Appeal from the Decision of a Regulatory Tribunal in Alberta?

By Nigel Bankes

On February 7, 2014

In Administrative Law, Appellate Practice

By: Nigel Bankes

PDF Version: What is the Test for Leave to Appeal from the Decision of a Regulatory Tribunal in Alberta?

Case commented on: Judd v Alberta Energy Resources Conservation Board, 2014 ABCA 41

The provincial legislature has chosen to “channel” judicial supervision of the decisions of Alberta’s energy regulators to the Alberta Court of Appeal. The legislature achieves this channeling through two linked provisions in the relevant legislation. The first is a strong privative clause which purports (I say purports because such a measure can never be completely successful for constitutional reasons: Crevier v Attorney General of Quebec, [1981] 2 SCR 220, Dunsmuir v New Brunswick, 2008 SCC 9) to exclude ordinary judicial review applications. Then, having purported to close the door, the legislature cracks it open again with a provision that allows an aggrieved party to appeal the regulator’s decision on a point of law or jurisdiction, but only with leave. The leave application is heard by a single judge who is charged with assessing whether the matter should be heard by three of his or her colleagues on the merits of those alleged points of law or jurisdiction. The relevant provisions of the Energy Resources Conservation Act, RSA 2000, c E-10 in force at the time read as follows:

Shell Jackpine Mine Expansion Project: The Mysterious Case of the Missing Justification

By Martin Olszynski

On December 12, 2013

In Administrative Law, Energy, Environmental

PDF Version: Shell Jackpine Mine Expansion Project: The Mysterious Case of the Missing Justification

Document commented on: Decision Statement Issued under Section 54 of the Canadian Environmental Assessment Act, 2012 re: Shell Jackpine Mine Expansion Project (2013 ABAER 011/Decision 2013-011)

Last Friday (December 6, 2013), the federal Minister of the Environment, Leona Aglukkaq, released the long-awaited decision statement for Shell’s Jackpine Mine Expansion project. As I wrote here, the joint review panel concluded – for the first time in the oil sands context – that the project was likely to result in numerous significant adverse environmental effects. This conclusion triggered the application of subsection 52(2) of the Canadian Environmental Assessment Act, 2012, SC 2012, c 19 (CEAA, 2012), pursuant to which the Governor in Council (GiC) must determine whether the project is nevertheless “justified in the circumstances.” This the GiC did. Or at least, we are told that it did.