Category: Administrative Law Page 8 of 39

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

On January 3, 2020

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).

Public Interest Standing and Wild Horses in Alberta

By Shaun Fluker

On November 22, 2019

In Administrative Law, Environmental

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.

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

By Shaun Fluker

On October 30, 2019

In Administrative Law, Energy

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.

Federal Court of Appeal Provides Reasons in TMX Leave Applications

By Nigel Bankes

On September 11, 2019

In Administrative Law, Energy, Environmental

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.

Application for Mistrial and Judicial Recusal Denied

By Serena Eshaghurshan

On July 31, 2019

In Administrative Law

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.