Category Archives: Administrative Law

Some Comments on Bill 24, the COVID-19 Pandemic Response Statutes Amendment Act, 2020

By: Shaun Fluker

 PDF Version: Some Comments on Bill 24, the COVID-19 Pandemic Response Statutes Amendment Act, 2020

Legislation Commented On: Bill 24, the COVID-19 Pandemic Response Statutes Amendment Act, 2020, 2nd Sess, 30th Leg, Alberta, 2020

Lawmaking by the Alberta government in response to COVID-19 has been somewhat disorganized and very non-transparent. As well, Alberta seems to be the only Canadian jurisdiction which seized on the public health emergency as an opportunity to double-down on Henry VIII lawmaking by the Executive. These are troubling observations in a political system where the legitimacy of governance is based upon an open, accountable, and predictable legislative process. The need to act swiftly and flatten the curve of COVID-19 certainly justified some deviation from the lawmaking norm in a representative democracy, but Alberta has relied extra heavily on executive and delegated legislative authority in its COVID-19 lawmaking. Accordingly, it would have been reasonable to expect the Legislature to restore some normalcy to lawmaking when the state of public emergency ended in Alberta on June 15.

On June 18, the Minister of Health introduced Bill 24, the COVID-19 Pandemic Response Statutes Amendment Act, 2020 into the Legislature, and most of the Act came into force on June 26 with royal assent. As the Legislature’s first comprehensive post-emergency response to COVID-19, as opposed to subject-specific legislation or the lawmaking thus far enacted by the Executive and its delegates, it is disappointing to observe how little this statute offers. However, on its first reading the Minister of Health did at least promise a forthcoming comprehensive review of the Public Health Act, RSA 2000, c P-37, and Bill 24 requires this to commence no later than August 1.

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The Discipline of Vavilov? Judicial Review in the Absence of Reasons

By: Nigel Bankes

PDF Version: The Discipline of Vavilov? Judicial Review in the Absence of Reasons

Decision commented on: Alexis v Alberta (Environment and Parks), 2020 ABCA 188 (CanLII)

One of the “wait-and-sees” following the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII) was the question of whether or not (and if so, to what extent) the Court’s guidance as to reasonableness review (where applicable) would result in a greater degree of scrutiny of the reasoning supporting administrative decisions. Another but related question was the application of that guidance to decisions for which there is no duty to provide reasons, and where the decision-maker provides no such reasons. This recent decision of the Court of Appeal (unanimous in terms of the decision to quash – some difference between the members of the Court as to the remedy) provides guidance on both questions.

The decision does suggest that reasonableness scrutiny will be more searching and that the failure to provide reasons may not render the decision inscrutable or presumptively reasonable. One possible result of this is that it might lead government lawyers acting for statutory decision makers to advise their clients to provide reasons, even where not obliged to do so by statute or natural justice. The rationale for doing so would be to make sure that as convincing a case as possible can be made for the decision in question, and to forestall the possibility that a reviewing court will draw inferences or identify unbridgeable gaps in reasoning between an application and an ultimate decision. If so that would be a good outcome. As another panel of the Court of Appeal has observed in another recent decision (Mohr v Strathcona (County), 2020 ABCA 187 (CanLII) at para 35 (per Slatter JA)), reasons serve “(a) to tell the parties why a decision was made; (b) to provide public accountability for that decision; and (c) to permit effective appellate review.” See also an earlier post on the importance of reasons in administrative decision-making in a somewhat different context: “Reasons, Respect and Reconciliation.”

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Vavilov on Standard of Review in Canadian Administrative Law

By: Shaun Fluker

PDF Version: Vavilov on Standard of Review in Canadian Administrative Law

Case Commented On: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII)

In the summer of 2018, I wrote about disagreement within the Supreme Court of Canada over the role of contextual factors in the selection of a standard of review in Canadian administrative law (see The Great Divide on Standard of Review in Canadian Administrative Law). At that time, the Court had arrived at yet another fork in the road on standard of review and stated it would address the matter head-on in a hearing scheduled for late 2018. Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII) (Vavilov) is the result of that hearing, and Vavilov has, once again, amended the law applicable to selecting and applying the standard of review. This post is my analysis of Vavilov, and is organized as follows: (1) an overview on the law regarding standard of review up to Vavilov; (2) the law as per Vavilov on selecting the standard of review; (3) the law as per Vavilov on applying the standard of reasonableness; and (4) a short conclusion. I am admittedly somewhat late to this party. My colleague Nigel Bankes has previously written on an aspect of Vavilov here (which I reference below) and I also encourage readers interested in this topic to have a look at Paul Daly’s analysis of Vavilov here. Continue reading →

Statutory Appeal Rights in Relation to Administrative Decision-Maker Now Attract an Appellate Standard of Review: A Possible Legislative Response

By: Nigel Bankes

PDF Version: Statutory Appeal Rights in Relation to Administrative Decision-Maker Now Attract an Appellate Standard of Review: A Possible Legislative Response

Decision Commented On: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII)

The Supreme Court of Canada used Vavilov and its companion cases Bell Canada v Canada (Attorney General), 2019 SCC 66 (CanLII)) (the Super Bowl Case) and Canada Post Corp. v Canadian Union of Postal Workers, 2019 SCC 67 (CanLII) as an opportunity to re-examine its approach to judicial review of administrative decisions. The Court reaffirmed much of the Dunsmuir approach (Dunsmuir v New Brunswick, 2008 SCC 9 (CanLII), [2008] 1 SCR 190) as refined in the subsequent case law. In particular, it has reaffirmed that in most cases the standard of review is reasonableness. The Court also reaffirmed a series of exceptions to that presumption namely where the legislature has indicated that a different standard should apply, and where the rule of law requires that a correctness standard should apply (i.e. constitutional questions, general questions of law of central importance to the legal system as a whole, and jurisdictional boundaries between two or more administrative bodies).

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Public Interest Standing and Wild Horses in Alberta

By: Shaun Fluker

PDF Version: Public Interest Standing and Wild Horses in Alberta

Case commented on: Alberta’s Free Roaming Horses Society v Alberta, 2019 ABQB 714 (CanLII)

This decision grants public interest standing to Alberta’s Free Roaming Horses Society and one individual (the ‘Applicants’) seeking declarations and mandamus in relation to a 2005 ministerial designation of public lands under section 9 of the Stray Animals Act, RSA 2000, c S-20. The Applicants assert that the Minister responsible for the administration of public lands under the Act failed to comply with a statutory requirement to form an opinion in relation to designating lands upon which persons may be licensed to capture and dispose of wild horses. They accordingly sought a judicial declaration that the 2005 land designation is void and an order requiring the Minister to form the opinion and publish it prior to making any future land designations under section 9 of the Act. The Province responded that the Applicants do not have standing to commence these proceedings and that the proceedings should be struck as an abuse of process. The Province also sought summary dismissal on the basis that the Applicants’ claim is barred by a limitation period. In this decision, Mr. Justice B.A. Millar ruled that the Applicants have public interest standing, but he summarily dismissed the application because the proceedings relate to a decision made in 2005 which is far beyond the 6 month time limitation for seeking judicial review under section 3.15(2) of the Alberta Rules of Court, Alta Reg 124/2010. Continue reading →