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Judicial Review on the Vires of Subordinate Legislation

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On May 24, 2018

In Administrative Law

By: Shaun Fluker

PDF Version: Judicial Review on the Vires of Subordinate Legislation

Case Commented On: West Fraser Mills Ltd. v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22 (CanLII)

Judicial review on the vires of subordinate legislation is a subject I previously examined in a March 2016 post concerning subordinate legislation enacted by the Alberta College of Pharmacists and its dispute with Sobeys over the use of consumer inducements in retail pharmacies. I noted back in 2016 there was some uncertainty over the standard of review a court should apply when reviewing the vires of legislation enacted by a statutory tribunal or other delegate. Indeed, the whole concept of judicial review on the vires of subordinate legislation is a bit murky in Canadian administrative law. The Supreme Court’s decision in West Fraser Mills Ltd. v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22 (CanLII) addresses the topic, but unfortunately the Court is split and fails to situate its reasoning with the Court’s Katz Group Canada Inc. v. Ontario (Health and Long Term Care,  2013 SCC 64 (Katz) decision which also addresses the principles governing a vires determination of subordinate legislation. The majority in West Fraser Mills rules that the principles set out in Dunsmuir govern judicial review on the enactment of subordinate legislation by a statutory tribunal, and therefore where the tribunal’s governing legislation provides for the power to enact subordinate legislation the presumption of reasonableness applies to a review on the vires of that legislation. The dissenting justices hold the standard ought to be correctness.

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The Balance of Confidentiality

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On May 23, 2018

In Human Rights, Privacy

By: Anoushka Pamela Gandy

PDF Version: The Balance of Confidentiality

Case Commented On: Campbell v Alberta (Chief Electoral Officer), 2018 ABQB 248

Campbell involves an appeal from a decision of the Chief Electoral Officer of Alberta to sanction Jarrett Campbell and Jaskaran Sandhu during the provincial election held on May 5, 2015. The Chief Electoral Officer applied to the Court of Queen’s Bench for guidance regarding what should be contained in a Certified Record produced by the Electoral Officer under Alberta’s Elections Act, RSA 2000, c E-1 [Elections Act]. The main issue before the court was whether the Chief Electoral Officer was able to redact information that is confidential and irrelevant to the appeal (Campbell, at para 2).

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

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On May 22, 2018

In Access to Justice, Appellate Practice

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.

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Arbitrator’s Decision re Post-Incident Drug and Alcohol Test Upheld on Judicial Review

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On May 14, 2018

In Arbitration, Labour/Employment

By: Linda McKay-Panos

PDF Version: Arbitrator’s Decision re Post-Incident Drug and Alcohol Test Upheld on Judicial Review

Decision Commented On: Canadian Energy Workers’ Association v ATCO Electric Ltd, 2018 ABQB 258, (CEWA)

Clearly, challenges surrounding drug and alcohol testing policies and procedures take up quite a bit of time and energy of companies, unions, arbitrators and eventually, courts. The factual context is very important in these cases. This leads to the courts often deferring to the fact finding and conclusions drawn by tribunals.

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Canada’s interpretation of the Hague Convention on the Civil Aspects of International Child Abduction – the influence of the new hybrid approach on a child’s objection to return

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On May 10, 2018

In Family, International Law

By: Rudiger Tscherning

PDF Version: Canada’s interpretation of the Hague Convention on_the_Civil Aspects of International Child Abduction – the influence of the new hybrid approach on a child’s objection to return

Cases Comment On: Office of the Children’s Lawyer v Balev, 2018 SCC 16; Erhardt v Meyer, 2018 ABQB 333; Husnik v Barbero Salas, 2018 ONSC 2627

Introduction

On November 9, 2017, the Supreme Court of Canada (SCC) heard the appeal in Office of the Children’s Lawyer v JPB and CRB (Supreme Court of Canada, Leave to Appeal (37250)) (Balev), a case which raises important issues about the interpretation of the Hague Convention on the Civil Aspects of International Child Abduction. For an overview of the background and issues arising from the Balev litigation, see my earlier posts at here, here, and here. The SCC rendered its decision in Balev on April 20, 2018.

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