Category Archives: Administrative Law

What is sauce for the goose is sauce for the gander (and other, more mixed, metaphors): and a prediction as to the role of power and influence on law-making in the province.

Cases Considered: ATCO Midstream Ltd. v. Alberta (Energy Resources Conservation Board), 2009 ABCA 41.

PDF Version: What is sauce for the goose is sauce for the gander (and other, more mixed, metaphors): and a prediction as to the role of power and influence on law-making in the province.

The cases are legion in which the Energy Resources Conservation Board, supported by the Court of Appeal, has denied standing to public interest interveners, First Nations (e.g. Dene Tha’ First Nation v. Alberta (Energy and Utilities Board), 2005 ABCA 68) and fellow-travellers on the grounds that they lack an adequate legal interest in the subject matter of the application. What is interesting about this case is that, this time, the ox that is gored is a sacred cow. Two sacred cows in fact; a leading provincial utility and gas processor (ATCO), and a petrochemical interest (NOVA) that the province spawned. At a formal level the result might be celebrated in terms of respect for the neutrality of the law and equality before the law. Respect may be tempered if we think the rule to be a bad rule.

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Don’t you forget about me: Remembering the rest of administrative law after Dunsmuir

Cases Considered: Bear Hills Charitable Foundation v. Alberta Gaming and Liquor Commission 2008 ABQB 766; East Prairie Métis Settlement v. Alberta (Métis Settlements Ombudsman) 2009 ABQB 31.

PDF Version: Don’t you forget about me: Remembering the rest of administrative law after Dunsmuir

In March 2008 the Supreme Court of Canada released its decision in Dunsmuir v. New Brunswick, 2008 SCC 9, in which it rearticulated the appropriate approach to identifying and applying the standard for judicial review of administrative decisions. The significance (or not) of this re-articulation has been discussed elsewhere on ABlawg (see here and here). What perhaps needs to be better understood, however, is that in rearticulating the standard of review, the Supreme Court did not change other principles of administrative law. Two recent decisions of the Alberta Court of Queen’s Bench indicate that there may be some confusion on this point. In one case, the Dunsmuir analysis was used by the Court to consider a question of administrative procedure, even though procedural questions are not properly subject to standard of review analysis. In another case, the Dunsmuir analysis was used by the Court to review a decision properly characterized either as procedural or non-dispositive which, again, makes the use of a Dunsmuir analysis inapt.
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Obtaining leave to appeal an ERCB decision: Where is the justice?

Cases Considered: Bearspaw Petroleum Ltd. v. Alberta Energy and Utilities Board, 2008 ABCA 405;
Bearspaw Petroleum Ltd. v. Alberta Energy and Utilities Board, 2009 ABCA 3.

PDF Version: Obtaining leave to appeal an ERCB decision: Where is the justice?

Section 41 of the Energy Resources Conservation Act, R.S.A. 2000 c. E-10 provides for an appeal from a decision of the Energy Resources Conservation Board (ERCB) on questions of law or jurisdiction with leave of the Court of Appeal. The test for leave includes a consideration of four factors: (1) whether the point on appeal is of significance to the practice; (2) whether the point raised is of significance to the action itself; (3) whether the appeal is prima facie meritorious; and (4) whether the appeal will unduly hinder the progress of the action. Bearspaw Petroleum Ltd. v. Alberta Energy and Utilities Board is one of many recent leave to appeal decisions from the Court (See for example “Landowners, Procedural Fairness and Alberta’s Energy Resources Conservation Board” ). What strikes me about this decision is how it compares to the Court’s decision to deny leave to appeal in Sawyer v. Alberta Energy and Utilities Board, 2007 ABCA 297 (see “Standing against public participation at the Alberta Energy and Utilities Board”).

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A case of Disablement and Deference under the Workers’ Compensation Act

Cases Considered: Schneider v. Alberta (Appeals Commission for Alberta Workers’ Compensation), 2008 ABQB 662.

PDF Version: A case of Disablement and Deference under the Workers’ Compensation Act

Maurice Schneider was exposed to asbestos at work in the late 1960s and subsequently developed asbestosis, a drastic reduction in lung capacity whose primary symptom is severe shortness of breath. The disease has a long incubation period before symptoms become apparent (see http://en.wikipedia.org/wiki/Asbestosis). On March 10, 2003 Schneider underwent studies that confirmed he suffers from a mild pulmonary impairment (asbestosis), and in September 2004 the Alberta Workers’ Compensation Board accepted that Schneider’s asbestosis was the result of workplace exposure. Schneider was accordingly entitled to benefits under the Workers Compensation Act, R.S.A. 2000, c. W-15.

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Water management planning and the Crown’s duty to consult and accommodate

Cases Considered: Tsuu T’ina First Nation v. Alberta, 2008 ABQB 547

PDF Version: Water management planning and the Crown’s duty to consult and accommodate

*Thanks to Christina Smith and Monique Passelac-Ross for comments on an earlier draft.

Alberta’s new Water Act (R.S.A. 2000, c. W-3) calls for the development of water management plans (Part 2(1) of the Act). Once adopted, a water management plan will guide decision-making within the area of the plan on a range of matters, including the issuance and transfer of water licences. Because of concerns that the waters in parts of the South Saskatchewan River Basin (SSRB) were already over-allocated, the Government put a priority on developing a plan for the SSRB. The first phase of the plan was approved in June 2002 and the second and final phase was approved by Cabinet in August 2006 (http://environment.alberta.ca/documents/SSRB_Plan_Phase2.pdf).

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