Category Archives: Administrative Law

Procedural Fairness and the Alberta Inquiry into Anti-Alberta Energy Campaigns

By: Shaun Fluker

PDF Version: Procedural Fairness and the Alberta Inquiry into Anti-Alberta Energy Campaigns

Order Commented On: Order in Council, O.C. 125/2019 (July 4, 2019)

In early July the Lieutenant Governor in Council commissioned an inquiry under power granted by section 2 of the Public Inquiries Act, RSA 2000, c P-39 (the ‘Inquiry’) to investigate and report on any anti-Alberta energy campaigns that are supported, in whole or in part, by foreign organizations. This comment focuses on the threshold question of whether the doctrine of procedural fairness applies to this Inquiry, and examines the potential legal sources of a fairness obligation. I am not digging into the specific allegations of unfairness already directed at the Inquiry (see here and here), but rather my question is more generally whether those persons who are investigated by the Inquiry have a legal right to know and meet the case being compiled against them. This question arises because, on the one hand, an inquiry such as this could be seen as merely a fact-finding mission with no mandate to decide anything or impose liability on anyone, and historically the common law neither imposed fairness obligations on such investigations nor provided remedies in these cases. On the other hand, the Terms of Reference for the Inquiry attached to Order in Council, O.C. 125/2019 suggest a somewhat close relationship between this investigation and decisions with potential adverse consequences for certain groups. As well, the overtly partisan basis for the Inquiry means it is likely that any findings or recommendations made by the commissioner have the potential to damage the reputation of persons named in his report, even if no further actions are taken by the Minister of Energy or the Lieutenant Governor in Council. Continue reading →

Federal Court of Appeal Provides Reasons in TMX Leave Applications

By: Nigel Bankes, Martin Olszynski and David Wright

PDF Version: Federal Court of Appeal Provides Reasons in TMX Leave Applications

Decision Commented On: Raincoast Conservation Foundation v Canada (Attorney General), 2019 FCA 224.

On September 4, 2019, the Federal Court of Appeal (FCA) granted leave to six of the twelve parties who had applied for judicial review of Cabinet’s decision to re-approve the Trans Mountain Expansion (TMX) project. This post situates this most recent development in the broader TMX context and examines this rare instance of the FCA providing reasons in a leave decision. Continue reading →

Application for Mistrial and Judicial Recusal Denied

By: Serena Eshaghurshan

PDF Version: Application for Mistrial and Judicial Recusal Denied

Case Commented On: R v JNS, 2019 ABQB 557 (Can LII)

In July 2019, the Honourable Mr. Justice Steven N. Mandziuk of the Court of Queen’s Bench of Alberta (ABQB) heard an application for a mistrial and his recusal as the presiding judge over a criminal matter. The Applicant, JNS, sought the remedy due to Justice Mandziuk presiding over both his child support case and his criminal trial. Justice Mandziuk declared that there was no evidence or appearance of judicial bias and dismissed the application. Continue reading →

The Bill 12 “Turn off the Taps” Litigation: Justice Hall Orders a Stay in BC’s Action

By: Nigel Bankes

PDF Version: The Bill 12 “Turn off the Taps” Litigation: Justice Hall Orders a Stay in BC’s Action

Case Commented On: British Columbia (Attorney General) v Alberta (Attorney General), 2019 ABQB 550

This decision concerns Preserving Canada’s Economic Prosperity Act, SA 2018, c P-21.5 also known as the “Turn Off the Taps” legislation. I commented on Bill 12 here and commented on the decision of the Kenney Government to bring this legislation into force here. The decision to bring the legislation into force prompted the Attorney General of British Columbia (AGBC) to renew its application to the Alberta Court of Queen’s Bench to have the legislation declared unconstitutional. The Attorney General Alberta (AGAB) responded by bringing an application to strike BC’s application on the basis that the AGBC had no standing to sue for a declaration as to the constitutional invalidity of Alberta legislation. This is Justice Robert Hall’s decision on that application. Continue reading →

The Elephant in the Courtroom Redux

By: Shaun Fluker

PDF Version: The Elephant in the Courtroom Redux

Case Commented On: Zoocheck Canada Inc v Alberta (Minister of Agriculture and Forestry), 2019 ABCA 208 (CanLII)

Lucy the Elephant lives at the Edmonton Valley Zoo and, for more than a decade, her advocates have been calling on government officials to facilitate her transfer to a warmer climate. She is a long-time resident at the Edmonton Zoo (since 1977), and zoo officials responsible for her well-being assert that Lucy is well-cared for at the zoo and that it is not in her best interest to be moved. Her advocates dispute this position, and there is a dedicated campaign for an independent scientific assessment of Lucy that would produce an expert veterinarian opinion on whether she can and/or should be moved. In addition to this battle of medical experts, Lucy’s advocates have appeared before Alberta courts seeking to use the force of law to get the Edmonton Zoo to acquiesce on the move of Lucy. They have been unsuccessful at each turn. The first set of proceedings was almost 10 years ago, and I commented on them in Lucy the Elephant v. Edmonton (City) and in The Elephant in the Courtroom. The focus of this comment is the more recent proceedings and, in particular, the Court of Appeal’s ruling that Lucy’s advocates do not have standing to engage in legal proceedings to challenge the renewal of a permit for the Edmonton Zoo. Continue reading →