Category: Administrative Law Page 8 of 39

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.”

Vavilov on Standard of Review in Canadian Administrative Law

By Shaun Fluker

On February 6, 2020

In 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.

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

By Nigel Bankes

On January 3, 2020

In Administrative Law

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.

Category: Administrative Law Page 8 of 39

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

Vavilov on Standard of Review in Canadian Administrative Law

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

Public Interest Standing and Wild Horses in Alberta

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