Canada’s online legal magazine.

Archive for the ‘Administrative Law’ Columns

Oil’s Well Does End Well for Alberta Environmental Regulator

In August 2017, I reported that the SCC would hear an appeal from the Court of Appeal for Alberta (Orphan Well Association v Grant Thornton Limited, 2017 ABCA 124). The case related to the jurisdiction of a regulatory body, not in terms of its governing statute, but in terms of a classical constitutional law question and division of powers. The conflict – or apparent conflict – was between a provincial regulator’s authority on environmental matters and the federal government’s jurisdiction over bankruptcy.

This case involved Redwater, a bankrupt oil and gas company that owned over one hundred . . . [more]

Posted in: Administrative Law

From NAFTA to the CUSMA/USMCA – a New Trade Template?

Part I. The New Deal and Continued Uncertainty

On September 30th, after 14 months of difficult talks, Canada and the United States announced the successful completion of their NAFTA re-negotiations. Whether the latest U.S. deadline was “real” or not, it is likely that both the Trump Administration’s threat that it would proceed with a U.S-Mexico agreement without Canada and the risk for the United States that such a bilateral deal would not pass Congressional review spurred both countries to make the last minute concessions that led to agreement in principle on the renamed United States-Mexico-Canada Agreement (“USMCA . . . [more]

Posted in: Administrative Law

Law, Regulation, Policy, Rule, Guideline, or Mere Suggestion?

Or As My Kids Might Say, “Do I Have To?”

For some who do not routinely work in the field of administrative law, the idea of statutory authority is generally thought of as the statute itself and whatever regulations might be created by cabinet in relation to the statute. However, administrative law is replete with examples of statutes that grant administrative bodies the authority to create regulations or other kinds of rules.

There is also ample case law regarding scope of an administrative body’s authority to create regulations, rules, guidelines, or other principles by which it might compel or direct. . . . [more]

Posted in: Administrative Law

Where the Sunshine List Don’t Shine

In 2015, the Alberta government extended coverage for disclosure of public servant salaries (aka the sunshine list) to those who make more than $125,000 per year. The new legislation was celebrated by all political parties as a victory for “transparency” and “open government”, and the right of taxpayers to know how public money is being spent. The legislative record is replete with these platitudes yet devoid of any specific policy objective.

When Ontario created their list back in 1996, the immediate goal seemed to be to shame public servants as a prelude to government cutbacks. If the longer term objective . . . [more]

Posted in: Administrative Law, Intellectual Property

Five New Pillars of U.S. Trade Policy (A.k.a. the “Poison Pills”)

Canadian business is navigating through a period of growing uncertainty in terms of both global politics and trade, and faces unprecedented challenges with respect to marketing, production and investment decisions. In the current climate, the Government of Canada’s policy can be summarised in the words of Minister Chrystia Freeland: “Hope for the best, plan for the worst.”

A review of the apparently fixed U.S. position in the NAFTA negotiations is both telling and discouraging for the future of the agreement and North American trade. Canada’s early “charm offensive” led by the Prime Minster, combined with an engagement strategy tied to . . . [more]

Posted in: Administrative Law

TWU or Not TWU – That Was the Question

While it is still early days, it is probably safe to say that if the Trinity Western 2018 decision[1] becomes a long-standing case of note, it will be because of its significance regarding Charter principles and not because of the role it played in the furtherance of administrative law.[2] Most of the ink (or electrons) spilled in the months and years leading up to the recent Supreme Court of Canada decision was not because Canadians – lawyers and lay-people alike – were anticipating the latest pronouncement on standard of review or procedural fairness or jurisdiction. The primary interest . . . [more]

Posted in: Administrative Law

Steam Whistle Brewing v. Alberta Gaming and Liquor Commission: Court of Queen’s Bench of Alberta Applies the R. v. Comeau Doctrine in the Latest Beer Case

On June 19, 2018 Steam Whistle Brewing and Great Western Brewing scored an historic victory against the Alberta Gaming and Liquor Commission: Madam Justice Marriott of the Alberta Court of Queen’s Bench declared Alberta’s beer mark-up regime unconstitutional, and awarded the brewers over $2 million in restitution. The full decision can be read here. The decision also marks the first time a court has been called on to apply the Supreme Court of Canada’s recent statement of the law in R v. Comeau with respect to the proper interpretation of s. 121 of the Constitution Act as it relates . . . [more]

Posted in: Administrative Law

Aluminum & NAFTA Negotiations – a New Era of Global Trade?

Since the summer of 2017 Canada, Mexico and the United States have been negotiating with the objective of agreeing on a revised NAFTA—sometimes called NAFTA 2.0. Most observers take the view that the talks have not gone well to date. The U.S. Administration is now signaling that it wants to take a hiatus until after the Congressional mid-term negotiations in November. This, in spite of renewed pushes from Canada and the newly elected Mexican President’s calls to accelerate the talks. It seems that the parties cannot even agree on the timetable, and it has grown increasingly clear that there is . . . [more]

Posted in: Administrative Law

Voluntary Associations: Courts, Mind Your Own Business. SCC: Okay.

*Update:* Since this post was written, the Supreme Court of Canada issued its decision in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32. In short, the court upheld the law societies’ right to regulate accreditation of law schools, in the context of competing LGTBQ and religious rights.

Plus: We’re Not Done With Dunsmuir

During the playoffs, ice hockey is the delight of everyone, to paraphrase Brown J in Canada (Attorney General) v. Igloo Vikski Inc., [2016] 2 SCR 80. But who is the greatest hockey player of all time? The Hockey Writers weighed in . . . [more]

Posted in: Administrative Law

Can You Hear Me Now?

It is not just cellphone mascots who desire to be heard. Many people who have matters before administrative decision makers expect to be heard; often that expectation is that they will be able to make oral submissions. In my personal experience, I find that many people believe that they can present their case better orally than in writing. The reasons may vary: they might not believe themselves capable of presenting a strong written case; they might not have the level of schooling that makes it easy for them to make written presentations; there might be language issues; or they might . . . [more]

Posted in: Administrative Law

Nova Scotia’s Unfiltered Brewing Challenges Nova Scotia Liquor Corporation’s “Regulatory” Charges

Canada’s liquor control and licensing regimes remain under siege; for how much longer provincial governments will be able to enforce their antiquated monopolies over the import and sale of alcohol is anyone’s guess, but the forthcoming Supreme Court of Canada decision in R. v. Comeau is expected to go a long way in answering this increasing controversial question.

While Comeau will be decided along Constitutional rather than regulatory lines, for administrative law practitioners the field of liquor control and licensing remains a rich source of beverage for thought.

For brewers and distillers, especially those of the “craft” or “micro” ilk, . . . [more]

Posted in: Administrative Law

Canada-EU – Old Ties, New Trade Partners

For Canadian business, the threat of U.S. withdrawal from NAFTA is the biggest and most immediate challenge. Without progress that satisfies the U.S. Administration, the current NAFTA negotiations may end with the U.S. issuing a Notice of Withdrawal that starts the six month clock on formal U.S. withdrawal from the Agreement and the market uncertainty that will likely follow.

Canada can and will survive the U.S. withdrawal from NAFTA. Canada and the U.S. have deep economic ties and market integration that will result in trade between the countries continuing, but on different terms. To address the problem of dependence on . . . [more]

Posted in: Administrative Law