Category Archives: Administrative Law

Narrowing the prospect of obtaining leave to appeal an ERCB decision: The troublesome aspect of judicial deference

Case considered: Berger v. Alberta (Energy Resources Conservation Board), 2009 ABCA 158 

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The Court of Appeal routinely decides applications for leave to appeal an Energy Resources Conservation Board (ERCB) decision on questions of law or jurisdiction pursuant to section 41 of the Energy Resources Conservation Act, R.S.A. 2000, c. E-10 (ERCA). In Berger v. Alberta (Energy Resources Conservation Board), Mr. Justice Frans Slatter denies a request from several applicants for leave to appeal a December 2008 ERCB approval issued to Highpine Oil and Gas to drill 3 sour gas wells in Parkland County west of Edmonton (ERCB decision 2008-135).

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Does the Punishment Fit the “Crime”?

Case considered: Bishop v. Alberta College of Optometrists, 2009 ABCA 175

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A hearing tribunal of the Alberta College of Optometrists found Dr. Donald Bishop guilty of professional misconduct due to billing infractions. Dr. Bishop appealed the decision to a panel of the Council of the Alberta College of Optometrists (the “Council”) and to the Court of Appeal, both of which upheld the decision, largely on factual grounds. Continue reading →

A Rock and a Hard Place

Case considered: ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2009 ABCA 171

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In its 2006 decision in ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, the Supreme Court of Canada held that the Alberta Energy and Utilities Board (EUB, now the Alberta Utilities Commission) had no jurisdiction to allocate proceeds on the sale of a utility asset to ratepayers where the sale of that asset resulted in no harm to ratepayers in terms of either rates or service. For a bare majority of the Court, Justice Bastarache held that the rights to assets rest without qualification with the utility. Continue reading →

Encouraging Complaint Procedures in Professional Regulation

Case Considered: Acupuncture Committee v. Wanglin, 2009 ABCA 166

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Oversight of health professionals in Alberta occurs through a modified form of self-regulation under the authority of the Health Disciplines Act, R.S.A. 2000, c. H-2. Section 9(1) of the Act provides for the establishment of committees to govern each health discipline, and subsections (3) and (4) provide that a majority of the members of each committee shall either be engaged or registered in that discipline (whichever applies). Regulatory oversight of those committees is then provided by the Health Disciplines Board.

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The protection of potable ground water through a purposive or objective approach to regulation

Case Considered: ERCB Decision 2009-029, CCS Corporation, Section 40 Review and Variance of Application No. 1515213, Class 1b Waste Disposal Scheme, Well 00/09-01-048-14W5M, Brazeau River, March 24, 2009

PDF version: The protection of potable ground water through a purposive or objective approach to regulation

There are at least five reasons to read and blog on this decision. First, it is very rare for the ERCB (“the Board”) to issue a reasoned decision on an application relating to a disposal well. Others include ERCB D 90-17 and D2002-055. The Board deals with most such decisions administratively. Typically there will be no reasoned decision and the general public will not have a clue that the Board has just approved a proposal to inject oilfield waste or acid gas into a geological formation unless they happen to live within a fairly circumscribed radius of the well. Other well operators are far more likely to receive notification than the general public. Second, the decision deals with a topic of crucial societal importance, the protection of potable groundwater and how to ensure that. Third, the decision contains a very interesting discussion of two different approaches to regulation. One approach (which we will term the prescriptive approach) seeks to set certain prescriptive standards that any project must meet in order to be approved. This approach works on the basis that if the proponent complies with that standard, the desired regulatory objective (e.g. protection of groundwater) will be achieved. The other approach (which we will term the purposive or objective approach) requires the applicant to meet the desired regulatory objective but affords the applicant greater discretion as to how it achieves that objective. Fourth, the decision offers some interesting comments on the interrelationship and respective responsibilities of the ERCB and Alberta Environment. And fifth it is important to look at this decision for what it might tell us about the Board’s approach to the regulation of disposal operations associated with carbon capture and storage.

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