Category Archives: Administrative Law

Opening a Can of Worms: What are the Applicable Market Rules for Generation Where the Generator Fails to Use the Entire Output?

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Decision Commented On: EPCOR Water Services Inc., EL Smith Solar Power Plant, February 20, 2019, Decision 23418-D01-2019

This decision raises important questions as to the applicable rules for self-generation where the generator seeks to export any surplus to the grid. The decision deserves to be read by all those engaged in self-generation beyond the micro and small levels, including self-generation that benefits from designation as an industrial system.

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Peaks of Grassi Development in Canmore: Procedural Fairness and Municipal Bylaws?

By: Shaun Fluker

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Case Commented On: Gruman v Canmore (Town), 2018 ABQB 507 (CanLII)

Municipal governance in the Town of Canmore is undoubtedly a challenging proposition. Canmore is a four-season tourism and recreation destination, which attracts a large range of visitors and inhabitants with diverse interests. The town is also situated at the mouth of the Bow Valley; it must be a constant struggle to achieve development goals while not spoiling the environmental riches which make Canmore the attractive destination that it is. This diverse range of interests and concerns results in relatively frequent municipal disputes in the town. The dispute in question here concerns a proposed new residential development in the Peaks of Grassi – a subdivision located on the west side of Canmore along the lower slopes of Ha Ling Peak. In 2015 Canmore council amended a bylaw to allow for residential development in what is currently an urban environmental reserve located in the Peaks of Grassi subdivision. The bylaw amendment was challenged in a judicial review application heard in March 2017, and in July 2018 Justice Gates allowed the application and quashed the bylaw amendment on procedural fairness grounds (see here for media coverage on this decision). Continue reading →

The Great Divide on Standard of Review in Canadian Administrative Law

By: Shaun Fluker

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Case Commented On: Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2018 SCC 31 (CanLII)

In an unusual move earlier this year, the Supreme Court of Canada announced it would consider the nature and scope of judicial review in a trilogy of upcoming appeals in Bell Canada, Vavilov, and National Football League, and specifically invited the parties to make submissions on standard of review. This open invitation to revisit the standard of review framework established by Dunsmuir v New Brunswick, 2008 SCC 9 did not come as a surprise to followers of Canadian administrative law who have observed a divide form amongst the current members of the Supreme Court (only one of whom – Justice Abella – was sitting when Dunsmuir was argued) on how to select the standard of review. This division is fully apparent in Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2018 SCC 31 and is the subject of this post. Elysa Darling and Drew Lafond have recently analyzed the substance of the merits in Canadian Human Rights Commission on ABlawg here, and my post will focus only on the standard of review analysis by the Court in the case.

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ABQB Upholds Arbitrator’s Decision on Innocent Absenteeism, the Duty to Accommodate and Notice

By: Linda McKay-Panos

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Case Commented On: Canadian National Railway Company v Teamsters Canada Rail Conference, 2018 ABQB 405 (CanLII) (CNR)

Canadian National Railway (CNR) applied unsuccessfully to the Alberta Court of Queen’s Bench (ABQB) (per Justice W.N. Renke) for a review of the Arbitration Award made under Case No 4510, December 5, 2016 (the Award). Because CNR is a federal undertaking, the applicable legislation includes the Canada Labour Code, RSC 1985 c L-2 (CLC) and the Canadian Human Rights Act, RSC 1985 c H-6 (CHRA).

CNR terminated an employee (Grievor) for innocent absenteeism on January 30, 2015. The Teamsters Canada Rail Conference (Union) submitted a grievance opposing the termination. Because CNR declined the grievance, the matter went to Arbitration (before Arbitrator John Moreau) as provided for in the Memorandum of Agreement between CNR and the Union (CNR at paras 3 and 4). The Grievor was successful at the Arbitration, and Justice Renke upheld the Arbitrator’s decision.

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Is Non-denominational Education a Secularism Principle or a Violation of Human Rights Law?

By: Hasna Shireen and Linda McKay-Panos

PDF Version: Is Non-denominational Education a Secularism Principle or a Violation of Human Rights Law?

Case Commented On: Webber Academy Foundation v Alberta (Human Rights Commission), 2018 ABCA 207 (CanLII)

In 2015, the Alberta Human Rights Tribunal (AHRT) found that a private school in Calgary (Webber Academy) had unlawfully discriminated against two Muslim high school students by prohibiting them from performing certain prescribed Sunni prayers on the school campus. The AHRT awarded the students $12,000 and $14,000 respectively as damages for distress, injury and loss of dignity (see 2015 AHRC 8 (CanLII)). The Court of Queen’s Bench of Alberta (per Justice G.H. Poelman) upheld that decision (see 2016 ABQB 442 (CanLII), and see the ABlawg post on this decision). Webber Academy appealed the decision to the Alberta Court of Appeal (ABCA), adding new constitutional issues. The Court of Appeal (per Justices Jack Watson, Patricia Rowbotham, and JD Bruce MacDonald) sent the matter back to the AHRT for re-determination after it has heard appropriate evidence and argument on all the issues. The ABCA held that the AHRT was better placed to make the necessary findings of fact, mixed fact and law, or questions of law alone that were within its jurisdiction. The ABCA noted that there may be remaining discrete issues under the Canadian Charter of Rights and Freedoms, such as the constitutionality of s 4 of the Alberta Human Rights Act, RSA 2000, c A-25.5 (AHRA), which prohibits discrimination in services customarily available to the public, including education. The ABCA ordered a new hearing with a new panel of the Tribunal, and the AHRT was ordered to refer any Charter questions by way of a stated case to the Court of Queen’s Bench for resolution. (Webber at para 52).

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