Documents commented on: (1) An open letter from the Honourable Joe Oliver, Minister of Natural Resources, on Canada’s commitment to diversify our energy markets and the need to further streamline the regulatory process in order to advance Canada’s national economic interest, January 9, 2012;

(2) National Energy Board Act, RSC 1985, c N-7, s 52;

(3) Canadian Environmental Assessment Act, SC 1992, c 37, s 37.

On January 9, 2012, the day before the hearings by a Joint Review Panel (JRP) were due to open for the proposed Northern Gateway pipeline (NGP), the federal Minister of Natural Resources, Joe Oliver took the extraordinary step of issuing an Open Letter to Canadians. He followed this up with a series of media appearances. In his letter Minister Oliver made four main points. First, Canada needs to diversify its export markets for many products including oil. Second, “environmental and other radical groups” seek to block this opportunity and any underlying projects. Third, these “radicals” will “hijack our regulatory system,” stack public hearings, “kill good projects,” exploit any opportunity they can to delay project reviews. These radicals have access to foreign money to implement their goals. The delays that ensue are unacceptable. Fourth, Canada needs a fair and independent process to assess projects based on science and the facts - but the current system is out of balance and “is broken.”

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Case considered: British Columbia (Workers Compensation Board) v Figliola (”Figliola“), 2011 SCC

A recent SCC case again demonstrates the importance of jurisdiction in human rights cases. In Alberta, and in other provinces, a number of tribunals may have human rights jurisdiction. Thus, in some situations, complainants have potential access to more than one tribunal to resolve their issues. This can, however, lead to challenges regarding accountability, consistency, and efficiency. On the one hand, complainants want a fair, yet reviewable resolution of their human rights issue-on the other hand, respondents would like a final resolution of the complaint and to know the matter is not subject to re-litigation by a second tribunal (See: The Court, Marina Chernenko, “Neighbouring Tribunals and ‘Lateral Adjudicative Poaching’: Forum Shopping for Human Rights in British Columbia v. Figliola“)

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Decision commented on: Decision -/CMP.7 Modalities and procedures for carbon dioxide capture and storage in geological formations as clean development mechanism project activities
- adopted in December 2011.

The 17th United Nations Climate Change Conference and the seventh meeting of the parties to the Kyoto Protocol (CMP) took place in Durban in November-December 2011 and brought hope again to the international community fighting climate change. The negotiations were reasonably successful and blended together the implementation of the Convention and the Kyoto Protocol, the Bali Action Plan, and the Cancun Agreements, concluding with a decision adopted by Parties that a universal legal agreement on climate change is to be adopted as soon as possible, but no later than 2015.

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On January 16, 2012 the Alberta Court of Appeal issued a judgment that applies the Supreme Court of Canada’s decision in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 - ruling in Calgary (City) v Alberta (Municipal Government Board), 2012 ABCA 13 that the adequacy of reasons given by a statutory decision-maker are to be reviewed as a matter of substantive review on the reasonableness standard.

The decision in question results by way of appeal by the City of Calgary from Madam Justice Romaine’s decision in Calgary (City) v Alberta (Municipal Government Board), 2010 ABQB 719. I previously discussed that decision in a December 2010 Ablawg post (see here) and I have recently commented on the Supreme Court’s Newfoundland and Labrador Nurses’ Union decision (see here).

The purpose of this short comment is simply to note that the Court of Appeal has now applied the Supreme Court of Canada’s recent change in the law on sufficiency of reasons, and that earlier jurisprudence on reviewing the sufficiency of reasons given by a statutory decision-maker should be read with caution.

Decision considered: Alberta (Information and Privacy Commissioner) v Alberta Teachers Association, 2011 SCC 61 

Introduction

In its recent decision reversing the Alberta Court of Appeal’s decision in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association (Teachers’ Association), 2010 ABCA 26, the Supreme Court of Canada made significant statements with respect to issues of administrative law. In particular, a majority of the Court held:

1. When an issue is not raised before an administrative decision-maker it may nonetheless be raised in an application for judicial review. A court may, however, exercise its “discretion not to consider an issue raised for the first time on judicial review where it would be inappropriate to do so” (para 22).
2. In such cases deference may still be granted: “Where the reviewing court finds that the tribunal has made an implicit decision on a critical issue, the deference due to the tribunal does not disappear because the issue was not raised before the tribunal” (para 50).
3. In order to be deferential in such circumstances, the court may take into account the reasons that the administrator could have given had the issue been put before it. If a “reasonable basis for the decision is apparent to the reviewing court” then that will suffice (para 55). The court may also look at reasons offered by the administrative decision-maker on the issue in other cases to determine whether the decision-maker’s approach to the issue is reasonable. In some circumstances the court may remit the matter to the decision-maker to allow reasons to be prepared.
4. Finally, and most significantly, a majority of the Court, in reasons prepared by Justice Rothstein, called into question the ability to identify a “true question of jurisdiction” to which deference should not be granted. Justice Rothstein stated that he was “unable to provide a definition of what might constitute a true question of jurisdiction” (para 42).
5. Justice Rothstein held that when an administrative decision-maker interprets its home statute it is presumptively entitled to deference (para 34). Deference will not be offered where the interpretation raises constitutional questions, a question regarding the jurisdictional lines between tribunals or a question of law “that is of central importance to the legal system as a whole and that is outside the adjudicator’s expertise” (para 43). If a party claims that deference is not owed because the matter is a true question of jurisdiction, that party will “be required to demonstrate why the court should not review a tribunal’s interpretation of its home statute on the deferential standard of reasonableness” (para 39).
6. Finally, Justice Rothstein held that once a deferential standard has been identified, it is not necessary to question further how deferential the court should be: “Once it is determined that a review is to be conducted on a reasonableness standard, there is no second assessment of how intensely the review is to be conducted” (para 47).  

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Cases Considered: Rasouli v Sunnybrook Health Services Centre, 2011 ONCA 482

This case involves the issue of consent under Ontario’s Health Care Consent Act, 1996, SO, 1996 c 2, Schedule “A” (the “Act”). While no similar law exists in Alberta, the case, through its discussion of the conflict between doctors’ ability to determine treatment, and the patient’s ability to refuse, raises issues that extend beyond the legislative boundaries of Ontario.

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Decision considered: D.W.H. v D.J.R., 2011 ABQB 608

Background

Mr. H. and Mr. R. lived together as partners and planned to have a baby through a surrogate mother. Mr. R’s sperm was used to conceive the baby, S, with Ms. D as the surrogate mother. Ms. D lived with the two fathers and Mr. R when the baby was first born. After that, the baby lived with the two male partners and visited the surrogate mother once or twice a week. The couple separated when S was 3 years old and Mr. H. applied for access. Madame Justice Eidsvik in D.W.H. v D.J.R., 2009 ABQB 438 found that the child had a mother (who was the surrogate), but no father who could be recognized in law (see my previous post “Gay fathers not seen as a parental unit under the Family Law Act“). Mr. H was given access until November 2007 when, based on a parenting assessment, contact was discontinued. Mr. H.’s relationship with S has since almost completely ceased. Mr. H. applied for guardianship but his application was opposed.

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Case considered: R v Caron, 2011 ABCA 385

Gilles Caron has been a very present figure before the Alberta courts since ABlawg began posting comments in late 2007 (see here). Caron is challenging the constitutionality of Alberta’s legislation on the basis that the province’s laws are not enacted in both English and French. That issue is now before the Court of Appeal (see 2010 ABCA 343 and here). Caron’s litigation has also involved an access to justice component in that he has pursued interim costs awards to fund his litigation. That issue went to the Supreme Court of Canada, which ruled that the Alberta government was required to fund Caron’s language rights challenge (see 2011 SCC 5, [2011] 1 SCR 78 and here). The lingering question was, to what extent was such funding required? That issue was recently considered by the Alberta Court of Appeal. In a decision written by Justice Jean Côté, Caron was awarded far less funding than he sought for the Court of Appeal litigation, and in the form of a loan rather than a grant (see 2011 ABCA 385).

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Case considered: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62

Earlier this month the Supreme Court of Canada issued its decision in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, upholding the ruling of an arbitrator concerning vacation entitlements in a labour dispute. This unanimous Supreme Court of Canada decision written by Madam Justice Abella has changed the law in Alberta governing judicial review for adequacy of reasons provided by an administrative decision-maker. For earlier commentary and background for this post, readers should review my December 2010 ABlawg entitled “What is the applicable standard of review in assessing the adequacy of reasons?” The issue concerns the measure of judicial deference owed to an administrative decision-maker in reviewing the adequacy of reasons given for decision. (more…)

Decision considered: R v Kasim, 2011 ABCA 236.

The Respondent claimed to have drunk no more than 3 or 4 beers between 7 and 8:30 p.m. on September 18, 2008. He was behind the wheel soon after. At about 9 p.m. he complied with a lawful demand for an Intoxilyzer breath sample and the two samples he provided measured 100 mg percent, or 20 mg percent over the legal maximum of 80 mg of alcohol in 100 millilitres of blood. At trial the Respondent testified that his body temperature was elevated as he was suffering from the flu or a fever that day. This testimony was corroborated, and the trial judge accepted it. The Respondent’s expert witness, Dr. Malicky, testified that given the Respondent’s elimination rate, and an elevated body temperature, “his blood alcohol level at the time should have been approximately 36 mg percent if he had three containers of beer, and 60 mg percent if he had four containers of beer” (R v Kasim, [2010] AJ No 969, para 64). The Respondent argued that the test results were therefore askew and that raised a reasonable doubt as to whether he the violated the Criminal Code (RSC, 1985, c C-46). Both the Provincial Court judge and Queen’s Bench summary conviction appeal judge found for the Respondent. By consent order the Crown appealed to the Court of Appeal on a single issue: “The summary conviction appeal judge erred in law in her interpretation of s. 258(1) (c) of the Criminal Code” (CA decision at para 7). These Criminal Code provisions set out presumptions that subject to certain time and other limitations Intoxilyzer readings of blood alcohol are accurate. The provisions also limit permissible challenges to the presumed accuracy.

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