Category Archives: Appellate Practice

Yatar v TD Insurance Meloche Monnex: Limited Statutory Rights of Appeal and The Availability of Judicial Review

By: Shaun Fluker, Drew Yewchuk, and Nigel Bankes

Case Commented On: Yatar v TD Insurance Meloche Monnex, 2024 SCC 8 (CanLII)

 PDF Version: Yatar v TD Insurance Meloche Monnex: Limited Statutory Rights of Appeal and The Availability of Judicial Review

This post discusses the recent Supreme Court decision in Yatar v TD Insurance Meloche Monnex, 2024 SCC 8 (CanLII) (Yatar). The decision addresses the availability of judicial review of administrative decisions when the legislature has established a restricted statutory right of appeal for those same decisions. This unanimous decision is an important affirmation of the continued availability of judicial review – at least for grounds of review not covered by the statutory appeal right. However, it seems likely that this decision, especially when read together with the Court’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII) (Vavilov) will encourage parallel or sequential filings under both the statutory appeal provisions and for judicial review. Continue reading →

Alphabow’s Regulatory Appeal: The AER Hearing Panel Misunderstood Their Job

By: Drew Yewchuk

Decision Commented on: Alphabow Energy Ltd: Regulatory Appeals of AER Orders (Regulatory Appeals 1943516 and 1943521), 2024 ABAER 001 (Alphabow)

PDF Version: Alphabow’s Regulatory Appeal: The AER Hearing Panel Misunderstood Their Job

This is a comment on an Alberta Energy Regulator (AER) hearing panel decision following a regulatory appeal of enforcement action against a company that was failing to meet the AER’s expectations for regulatory compliance.

Because of an administrative law mistake by the AER hearing panel, the decision is not what it should be. The AER’s handling of financially troubled corporations with large closure liabilities, significant unpaid debts, compliance troubles, and financial problems is a multi-billion dollar policy problem for Alberta. The decision should have assessed the AER’s policy approach to one of these companies, but the hearing panel misunderstood their role and assessed only procedural fairness and ‘reasonableness’ in the restricted sense that word applies on judicial review. As a result, the decision is less interesting than it should be, since it only finds that what the AER did was legal and says nothing about whether it was good policy or in the public interest. Continue reading →

Stores Block Meets Vavilov: The Status of Pre-Vavilov ABCA Decisions

By: Nigel Bankes

Decision commented on: ATCO Electric Ltd v Alberta Utilities Commission, 2023 ABCA 129 (CanLII)

PDF Version: Stores Block Meets Vavilov: The Status of Pre-Vavilov ABCA Decisions

This case is an appeal of the ATCO Fort McMurray fire decision of the Alberta Utilities Commission (AUC). In this case, a panel of the Court of Appeal made an important statement as to the status of previous court decisions on AUC-related matters that were rendered prior to the Supreme Court of Canada’s decision in Minister of Citizenship and Immigration v Vavilov, 2019 SCC 65. Continue reading →

Dispensing Speedy Justice: The Supreme Court of Canada & Decisions from the Bench

By: Lisa Ann Silver

PDF Version: Dispensing Speedy Justice: The Supreme Court of Canada & Decisions from the Bench

Recently, I was asked to comment on the recent Supreme Court of Canada decision on R v Stephan, 2018 SCC 21. The decision, given from the Bench immediately after the argument of the appeal, took many media outlets by surprise. The media, and to a large extent, lawyers, are not accustomed to speedy decision-making from the Supreme Court. We collectively expect the Court to reserve judgment and then, after months of diligent research and writing, the Court issues an unassuming missive that the judgment will be rendered on X date at Y time. I have often waited at my computer close to the appointed hour in order to immerse myself in the expectation of a new judgment release. For instance, I eagerly awaited the release of R v Marakah, [2017] 2 SCR 608 and R v Jones, [2017] 2 SCR 696, at 9:45 a.m. EST to be first in line to the lines of decision-making, which would, we all hoped, reveal the answers to the perplexing issues raised by the s. 8 issues surrounding the seizure of text messages found on a 3rd party’s smart phone. True, the Supreme Court could disappoint as reality often does not live up to expectations. But at least we had 200 paragraphs on which to mull over how we should have or ought to have known better. So, when the Stephan decision was rendered so quickly, I began to wonder if this was a trend on the part of the Supremes or whether it was merely my own biases coming into play. I was determined, therefore, to see if in fact the Supreme Court is rendering from the Bench more often than in the past and if so, why.

Continue reading →

Jurisdictional Matters Concerning Environmental Protection Orders Under the Environmental Protection and Enhancement Act

By: Shaun Fluker

PDF Version: Jurisdictional Matters Concerning Environmental Protection Orders Under the Environmental Protection and Enhancement Act

Case Commented On: Director (EAP) v Alberta (Provincial Court), 2017 ABQB 3 (CanLII)

During April and May of 2010 a significant gasoline spill occurred at a gas station located at 6336 Bowness Road in Calgary. The underground petroleum plume spread to adjacent properties, and in December 2010 the Director of Alberta Environment issued a remediation order under the Environmental Protection and Enhancement Act, RSA 2000, c E-12 (EPEA). The site is now an empty lot, and while remediation activities have been conducted there is disagreement on whether the property is fully cleaned up. Metaphorically speaking, this petroleum plume also spread to the Alberta legal system. A preliminary search in preparation for writing this comment revealed no less than 10 decisions concerning the spill: (1) the Director’s December 2010 remediation order; (2) a December 2011 decision by the Alberta Environmental Appeals Board concerning an appeal of the December 2010 remediation order (Gas Plus Inc and Handel Transport v Director (Alberta Environment), Appeals No 10-034, 11-002, 008 & 023R; (3) a revised remediation order issued in January 2012 incorporating the Board’s recommendations; (4) an Order of the Court of Queen’s Bench issued in December 2012 concerning the January 2012 revised remediation order; (5) 2 interlocutory decisions by the Court of Queen’s Bench in relation to civil proceedings concerning the spill (Floate v Gas Plus, 2015 ABQB 545 (CanLII) and Floate v Gas Plus, 2015 ABQB 725 (CanLII)); (6) a decision by the Calgary Development Authority to deny a permit to construct a new gas station on the site and a March 2015 decision by the Calgary Subdivision and Development Appeal Board dismissing an appeal of the development decision (Re SDAB2014-0146, 2014 CGYSDAB 146 (CanLII)); and (7) a decision issued in January 2017 by the Honourable Mr Justice P.R. Jeffrey quashing a mediation order issued by the Honourable Judge H.A. Lamoureux in relation to the dispute over remediation. This comment examines this most recent decision by Justice Jeffrey in Director (EAP) v Alberta (Provincial Court), 2017 ABQB 3 (CanLII), which addresses jurisdictional matters concerning environmental protection orders under EPEA and the inherent authority of the court. Continue reading →