By: Nigel Bankes
PDF Version: What is the Test for Leave to Appeal from the Decision of a Regulatory Tribunal in Alberta?
Case commented on: Judd v Alberta Energy Resources Conservation Board, 2014 ABCA 41
The provincial legislature has chosen to “channel” judicial supervision of the decisions of Alberta’s energy regulators to the Alberta Court of Appeal. The legislature achieves this channeling through two linked provisions in the relevant legislation. The first is a strong privative clause which purports (I say purports because such a measure can never be completely successful for constitutional reasons: Crevier v Attorney General of Quebec, [1981] 2 SCR 220, Dunsmuir v New Brunswick, 2008 SCC 9) to exclude ordinary judicial review applications. Then, having purported to close the door, the legislature cracks it open again with a provision that allows an aggrieved party to appeal the regulator’s decision on a point of law or jurisdiction, but only with leave. The leave application is heard by a single judge who is charged with assessing whether the matter should be heard by three of his or her colleagues on the merits of those alleged points of law or jurisdiction. The relevant provisions of the Energy Resources Conservation Act, RSA 2000, c E-10 in force at the time read as follows: