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.