Category Archives: Administrative Law

One Person, Two Universities, Three Alberta Cases

 PDF version: One Person, Two Universities, Three Alberta Cases

 Cases Considered: Oleynik v University of Calgary, 2012 ABQB 189 (Case #1); University of Alberta v Alberta (Information and Privacy Commissioner), 2012 ABQB 247 (Case #2); Association of Academic Staff of the University of Alberta v University of Alberta, 2012 ABQB 248 (Case #3)

These three cases involve personal privacy issues in the process of applying for a research grant from Social Sciences and Humanities Research Council of Canada (SSHRC). Two of the cases suggest that the access to information requests to Universities were being used to obtain evidence to support allegations of bias in decision-making.

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Federal Court of Appeal confirms that a SARA protection statement must offer the critical habitat of a listed species real legal and non-discretionary protection

Case commented on: Minister of Fisheries and Oceans v. David Suzuki Foundation (the Killer Whale case) 2012 FCA 40

PDF Version: Federal Court of Appeal confirms that a SARA protection statement must offer the critical habitat of a listed species real legal and non-discretionary protection

A unanimous Federal Court of Appeal in a decision authored by Justice Mainville has largely affirmed Justice Russell’s decision at trial in a case dealing with the legal protection of the critical habitat of two populations of killer whale listed as threatened or endangered under the terms of the Species at Risk Act (SARA), SC 2002, c 29. ABlawg’s post on the trial decision is available here: “SARA has a spine as well as teeth.”

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Supreme Court of Canada Saves Timing for the Alberta Information and Privacy Commissioner

PDF version: Supreme Court of Canada Saves Timing for the Alberta Information and Privacy Commissioner 

Decision considered: Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61

This case has been followed closely by those interested in information and privacy procedures. The issues raised by the decision were discussed in my previous blog (see here). [Editor’s note, also see Alice Woolley’s ABlawg on this decision True Questions of Jurisdiction: Administrative Law’s Unicorns]

In sum, the Information and Privacy Commissioner (IPC) received complaints that the Alberta Teachers’ Association (ATA) had disclosed personal information in contravention of Alberta’s Personal Information Protection Act, SA 2003 c P-6.5 (PIPA). At the relevant time, subsection 50(5) provided that an inquiry must be completed within 90 days of the complaint being received, unless the IPC notified the parties that he or she was extending the time period. The IPC took 22 months from the initial complaint before extending the date on which the inquiry would be concluded. Then, seven months later, an adjudicator issued an order on behalf of the IPC, finding that ATA had contravened the PIPA. The ATA applied for judicial review, arguing for the first time that the IPC had lost jurisdiction for failing to extend the time period for the inquiry within 90 days of the complaint being received. The chambers judge quashed the adjudicator’s decision on the basis of timing, and the majority of the Court of Appeal upheld the chambers judge’s decision. As noted in the blog above, this decision prompted the rare move on the part of the IPC, who publicly expressed concern about the implications of the Court of Appeal ruling.

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Giving deference to the adequacy of reasons in Alberta

Case considered: Calgary (City) v Alberta (Municipal Government Board), 2012 ABCA 13

On January 16, 2012 the Alberta Court of Appeal issued a judgment that applies the Supreme Court of Canada’s decision in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 – ruling in Calgary (City) v Alberta (Municipal Government Board), 2012 ABCA 13 that the adequacy of reasons given by a statutory decision-maker are to be reviewed as a matter of substantive review on the reasonableness standard.

The decision in question results by way of appeal by the City of Calgary from Madam Justice Romaine’s decision in Calgary (City) v Alberta (Municipal Government Board), 2010 ABQB 719. I previously discussed that decision in a December 2010 Ablawg post (see here) and I have recently commented on the Supreme Court’s Newfoundland and Labrador Nurses’ Union decision (see here).

The purpose of this short comment is simply to note that the Court of Appeal has now applied the Supreme Court of Canada’s recent change in the law on sufficiency of reasons, and that earlier jurisprudence on reviewing the sufficiency of reasons given by a statutory decision-maker should be read with caution.

True Questions of Jurisdiction: Administrative Law’s Unicorns?

PDF version: True Questions of Jurisdiction: Administrative Law’s Unicorns?

Decision considered: Alberta (Information and Privacy Commissioner) v Alberta Teachers Association, 2011 SCC 61 

Introduction

In its recent decision reversing the Alberta Court of Appeal’s decision in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association (Teachers’ Association), 2010 ABCA 26, the Supreme Court of Canada made significant statements with respect to issues of administrative law. In particular, a majority of the Court held:

  1. When an issue is not raised before an administrative decision-maker it may nonetheless be raised in an application for judicial review. A court may, however, exercise its “discretion not to consider an issue raised for the first time on judicial review where it would be inappropriate to do so” (para 22).
  2. In such cases deference may still be granted: “Where the reviewing court finds that the tribunal has made an implicit decision on a critical issue, the deference due to the tribunal does not disappear because the issue was not raised before the tribunal” (para 50).
  3. In order to be deferential in such circumstances, the court may take into account the reasons that the administrator could have given had the issue been put before it. If a “reasonable basis for the decision is apparent to the reviewing court” then that will suffice (para 55). The court may also look at reasons offered by the administrative decision-maker on the issue in other cases to determine whether the decision-maker’s approach to the issue is reasonable. In some circumstances the court may remit the matter to the decision-maker to allow reasons to be prepared.
  4. Finally, and most significantly, a majority of the Court, in reasons prepared by Justice Rothstein, called into question the ability to identify a “true question of jurisdiction” to which deference should not be granted. Justice Rothstein stated that he was “unable to provide a definition of what might constitute a true question of jurisdiction” (para 42).
  5. Justice Rothstein held that when an administrative decision-maker interprets its home statute it is presumptively entitled to deference (para 34). Deference will not be offered where the interpretation raises constitutional questions, a question regarding the jurisdictional lines between tribunals or a question of law “that is of central importance to the legal system as a whole and that is outside the adjudicator’s expertise” (para 43). If a party claims that deference is not owed because the matter is a true question of jurisdiction, that party will “be required to demonstrate why the court should not review a tribunal’s interpretation of its home statute on the deferential standard of reasonableness” (para 39).
  6. Finally, Justice Rothstein held that once a deferential standard has been identified, it is not necessary to question further how deferential the court should be: “Once it is determined that a review is to be conducted on a reasonableness standard, there is no second assessment of how intensely the review is to be conducted” (para 47).  

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