Category Archives: Administrative Law

Giving deference to the adequacy of reasons

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Case considered: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62

Earlier this month the Supreme Court of Canada issued its decision in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, upholding the ruling of an arbitrator concerning vacation entitlements in a labour dispute. This unanimous Supreme Court of Canada decision written by Madam Justice Abella has changed the law in Alberta governing judicial review for adequacy of reasons provided by an administrative decision-maker. For earlier commentary and background for this post, readers should review my December 2010 ABlawg entitled “What is the applicable standard of review in assessing the adequacy of reasons?” The issue concerns the measure of judicial deference owed to an administrative decision-maker in reviewing the adequacy of reasons given for decision. Continue reading →

The Elephant in the Courtroom

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Case Considered: Reece v Edmonton (City), 2011 ABCA 238

In March 2011 the Court of Appeal heard an appeal by Zoocheck Canada, People for the Ethical Treatment of Animals, and Tove Reece (collectively referred to as Zoocheck here) from Justice John Rooke’s August 2010 decision to strike Zoocheck’s application for a declaration that the City of Edmonton is violating the Animal Protection Act, RSA 2000 c. A-41 by keeping Lucy the Elephant in its Valley Zoo. See my previous ABlawg comment Lucy the Elephant v Edmonton (City) for some analysis of Justice Rooke’s decision (Reece v Edmonton (City), 2010 ABQB 538), the background concerning Lucy’s health problems and living conditions in the zoo, the applicable legislative framework, and the City’s motion to strike the Zoocheck application. In its August 2011 Reece v Edmonton (City) decision the Court of Appeal dismisses the Zoocheck appeal, with the majority written by Justice Frans Slatter upholding the finding at the Court of Queen’s Bench that the application for a declaration constitutes an abuse of process. In her lengthy dissenting opinion, Madame Justice Catherine Fraser rules the Zoocheck application is not an abuse of process and should go to trial. This Court of Appeal decision is noteworthy to me for three reasons: (1) the sharp contrast of legal theory underlying the majority and the dissent; (2) the environmental ethic informing Justice Fraser’s dissent; and (3) the comments made by Justice Fraser concerning the availability of public interest standing.

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A single window for the permitting of energy projects in Alberta: who will look out for the chickens?

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Report commented on: Enhancing Assurance: Developing an integrated energy resources regulator, a discussion document, May 2011

In a discussion paper released on May 9, 2011 under a covering message from Premier Stelmach, the provincial government has announced its intention to create a single window for the permitting of energy projects in the province. The proposal envisages a single new board that will have all of the current responsibilities of the Energy Resources Conservation Board (ERCB) plus the following additional responsibilities (as they pertain to energy projects including conventional oil and gas, oilsands, and coal – and in the future perhaps mining):

1. The responsibilities currently vested in Alberta Environment under the terms of the Environmental Protection and Enhancement Act, (EPEA) RSA 2000c. E-12, and the Water Act, RSA 2000, c.W-3 to conduct EIAs, issue licences and authorizations under the Water Act and EPEA and to deal with reclamation and remediation on private land.

2. The responsibilities currently vested in Sustainable Resource Development (SRD) to issue public land dispositions including mineral surface leases, and to deal with reclamation and remediation on public land.

Does this make sense?

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Giving legal effect to the designation of the Grizzly Bear as an endangered species under the Wildlife Act (Alberta)

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Decision considered: Shell Canada – Application for licenses in the Waterton Field, 2011 ABERCB 007

In March 2008 the Alberta department of Sustainable Resource Development (“SRD”) issued the Alberta Grizzly Bear Recovery Plan 2008-2013 (“SRD Grizzly Bear Recovery Plan“) under section 6 of the Wildlife Act, RSA 2000, c. W-10. The goal of the SRD Grizzly Bear Recovery Plan is to restore and ensure the long-term viability of a self-sustaining grizzly bear population in Alberta (SRD Grizzly Bear Recovery Plan at page 20). On June 9, 2010 the Minister of Sustainable Resource Development enacted the Wildlife (Endangered Animal, 2010) Amendment Regulation, Alta Reg 86/2010 which designates the grizzly bear as an endangered species under the Wildlife Act. In this comment, I set out how this designation in law implicates the decision-making powers of the Energy Resources Conservation Board (“ERCB” or “Board”).

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Access to Justice and Human Rights Cases

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Case Considered: McClary v Geophysical Services Inc., 2011 ABQB 112

Not being able to afford legal representation occurs quite frequently in civil and criminal legal cases. Some individuals choose to self-represent-either because they cannot afford legal counsel, or because they want to present their own cases. Inability to afford legal counsel has become a critical problem that leads to an acute lack of access to justice in Canada. In Alberta, recent cuts to the Legal Aid program will likely have serious effects on people with both civil and criminal issues. Even in tribunal matters, or matters where one is not required to be legally represented, such as the human rights process in Alberta, not having legal representation can have important consequences, both for the courts and for the litigants. While in some matters at the Commission (and later on appeal to the courts), the Act permits counsel to be assigned to represent and advise complainants, McClary was not such a matter. Also, it is important to note that in all matters before the Commission, respondents must hire their own legal representation should they desire it. The limited availability of legal counsel for parties in human rights cases exists partly because the human rights process is supposed to be user-friendly and low-cost to complainants and respondents.

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