Introduction

2015 was a banner year for the judicial elaboration of principles of Administrative Law in Energy Law and Regulation settings. A number of these developments have been discussed already in the pages of the Energy Regulation Quarterly. Nigel Bankes provided a mid-year state of the union report on the multifarious pipeline cases determined by or making their way through the Federal Court.² Kemm Yates and Sarah Nykolaishen followed that up with an assessment of the implementation of the 2012 federal procedural reforms to National Energy Board and Joint Review Board hearings on applications for certificates of public convenience and necessity for interprovincial and international pipelines.³ This came in the wake of the Supreme Court of Canada’s denial of an application for leave to appeal the rulings of the National Energy Board rejecting Charter challenges to provisions respecting participatory rights in the new procedures,⁴ though the article ranges much more widely than that. As well, Alan Ross, Michael Marion and Michael Massicotte discussed⁵ Ernst v Alberta Energy Regulator, a case involving claims for damages for regulatory negligence and violation of section 2(b) (“freedom of expression”) of the Charter resulting from the AER’s handling of complaints against EnCana respecting the company’s alleged damage to the plaintiff’s water supply. In 2013, the Alberta Court of Queen’s Bench had struck out Ernst’s claims against the AER,⁶ and this had been affirmed by the Alberta Court of Appeal.⁷ However, Ernst applied for and obtained leave to appeal to the Supreme Court of Canada on the Charter ground, a claim stemming from the AER’s refusal to accept further communications from her.⁸ For the most part, I have avoided the temptation to go over the ground covered already in those articles.⁹

Rather, as last year, I decided to confine my review to three topics involving the intersection between Energy Law and Regulation and the general principles of Administrative Law and judicial review. Those three topics are regulator participation in judicial review applications and statutory appeals challenging their decisions, the standard of review applicable in judicial review applications and statutory appeals involving decisions of energy regulators, and the role of energy regulators in the effectuation of the constitutional right of aboriginal peoples to consultation by the Crown and, where appropriate, accommodation with respect to proposals affecting their rights and as yet unresolved claims.

Energy Regulator Participation in Judicial Review Applications or Statutory Appeals from their Decisions

For nearly forty years, the issue of the extent to which public authorities can participate in judicial review of or statutory appeals from their decisions, and subsequent appeals from first instance court determinations has been a matter of continuing controversy in Canada. Indeed, it is an issue that has particular resonance in the world of energy regulation largely because the foundational Supreme Court of Canada authority involved review of a decision of the then Alberta Public Utilities Board.

In 1979, in Northwestern Utilities Ltd v Edmonton (City),¹⁰ Estey J, delivering the judgment of the Supreme Court, not only adopted a largely categorical approach to this question but also restricted the permissible categories of participation to very limited grounds of review. Even though the Board was permitted by statute to be heard on the argument of any appeal, as is the case today with the Alberta Utilities Commission,¹¹ the statute did not confer party status on the Board in the fullest sense of that term. This led Estey J to impose limitations on the Board’s right to be heard on appeals from its decisions. It could participate only to the extent of engaging with jurisdictional issues (in both the preliminary and collateral guises of the 1970’s rubric of jurisdiction), and, where necessary, to provide the reviewing court with an explanation of the record on which the judicial review or appeal was being conducted. For these purposes, jurisdictional questions did not include issues of natural justice (once again in terms of the rubric of the day) and certainly not intra-jurisdictional questions of law or the substantive merits of any determination on the facts.

However, at the very time that Estey J was writing his judgment, the world of Canadian judicial review was changing.¹² Deference, as exemplified by the patent unreasonableness standard of review, was becoming a critical part of Canadian judicial review principles. This gave rise to questions as to the role of the decision-maker when its decision was being challenged on the basis of patent unreasonableness. Five years after Northwestern Utilities, the Court, in Bibeault v McCaffrey,¹³ allowed the Quebec Labour Court participatory rights in contesting a patent unreasonableness challenge to its interpretation of a statutory provision conferring discretion over participatory rights at its hearings. Subsequently, in CAIMAW, Local 14 v Paccar of Canada Ltd,¹⁴ La Forest J, in what were technically obiter dicta,¹⁵ elaborated on the permissible role of tribunals in the context of the judicial review or statutory appeal of their decisions. They could be heard on what was the appropriate standard and also in justification of their decision as not patently unreasonable, though not to the extent of arguing that it was correct, as well as fulfilling the explanatory role identified in Northwestern Utilities.

However, in Alberta especially, Northwestern Utilities continued to cast a long shadow. More specifically, the view seemed to be that, as the Supreme Court had never repudiated it specifically, it still had binding force. The 2008 judgment of the Court of Appeal in Alberta (Human Rights Commission) v Brewer,¹⁶ provides a graphic example. There, the Court explained away La Forest J’s judgment in Paccar as not supported on this point by a majority of the Supreme Court, and then went on to hold that tribunals were not entitled to defend the reasonableness of their decisions on judicial review. Indeed, the Court also questioned whether a tribunal was entitled to even address the legal issue of what was the appropriate standard of review to apply to the various substantive issues posed by the judicial review application.

However, three years later, in Leon’s Furniture Ltd v Alberta (Information and Privacy Commissioner),¹⁷ it appeared as though that panel¹⁸ of the Court of Appeal had taken a much less categorical approach to the issue of tribunal standing and one that was much more multi-dimensional and fluid. Slatter JA, delivering the judgment of a unanimous Court of Appeal, seemed prepared to downgrade Northwestern Utilities. It was no longer to be applied strictly but rather treated as a “source of fundamental considerations.”¹⁹ This movement from a categorical approach to a multi-factorial approach paralleled what was occurring in a number of other Courts of Appeal across the country.²⁰

Any comfort level produced by this judgment did not last long. In 2013, Slatter JA, again speaking for a unanimous Court of Appeal, in Atco Gas and Pipelines Ltd v Alberta Utilities Commission,²¹ revisited this question in what was effectively a footnote to a judgment on an appeal from the Commission. Referring to both Northwestern Utilities and Leon’s Furniture, he asserted that the Commission’s submissions should have been “limited in tone and content [emphasis added].”²² Without providing detail, he then chastised the Commission for “argu[ing] the merits of the decision under appeal”,²³ particularly in a case where the Utilities Consumer Advocate was participating and providing “the necessary adversarial context.” Indeed, he even went so far²⁴ as to suggest that the Commission’s statutory immunity from the award of costs²⁵ would not apply where deterrent costs and administrative penalties were appropriate under the Alberta Rules of Court.

When leave to appeal to the Supreme Court was obtained in Atco and the Commission continued as an active participant notwithstanding the presence of the Utilities Consumer Advocate, there was some expectation that the Supreme Court might address the issue of tribunal standing particularly given the admonitions issued by Slatter JA.²⁶ In contrast, in neither the Ontario Divisional Court nor the Court of Appeal in a parallel case argued before the Supreme Court on the same day, Power Workers’ Union, Canadian Union of Public Employees, Local 1000 v Ontario (Energy Board),²⁷ was anything mentioned in the judgments below about the extent of the Board’s participation in defence of its own decision. However, when the matter reached the Supreme Court with the Board as appellant, the respondents raised issues as to the extent of the Board’s justifications of its original decision. ATCO’s factum expressed no such concerns.

Even so, it was surprising that, in ATCO Gas and Pipelines Ltd v Alberta (Utilities Commission),²⁸ the Supreme Court had nothing to say about the Commission’s participation as respondents to the appeal. Indeed, in one sense, it might have been thought that ATCO was the more problematic of the two on the issue of tribunal standing, given the Utility Consumer Advocate’s presence as a party to the appeal. In contrast, in none of the three courts in the parallel case was there any other party defending the position of the Ontario Energy Board. Be that as it may, in Ontario (Energy Board) v Ontario Power Generation Inc,²⁹ Rothstein J, delivering the judgment of the majority (with the dissenting judge, Abella J not saying anything about the issue), dealt extensively with the issue of tribunal and agency participation in statutory appeals and applications for judicial review and the extent to which they can defend their decisions.³⁰

In confronting Northwestern Utilities, Rothstein J reiterated the concerns that animated Estey J’s categorical approach to the issue of tribunal participation, concerns that he did not see as in any way rejected by the Courts of Appeal that had moved away from the categorical approach.³¹ What was at stake was balancing preservation of a tribunal or agency’s adjudicative neutrality (as potentially compromised by aggressive tribunal defence of the merits of the decision under review³²) against the importance of the reviewing or appellate court having the benefit of the best defence of the outcome reached by that tribunal or agency as well as access to “useful and important information and analysis”³³ not otherwise apparent on the record. However, Rothstein J endorsed³⁴ the discretionary approach as adopted in Leon’s Furniture, and other Courts of Appeal. In this context, he noted that tribunal participation was still subject to the discretionary approach even where, as here, the relevant statutory provision specified the entitlement of the tribunal to be heard on an appeal or judicial review application.³⁵ He then identified the factors that the first instance court should consider in exercising its discretion. As in the various Court of Appeal judgments, the presence of other parties to the proceedings who could defend the tribunal’s decision fully loomed large. He then continued:

Whether the tribunal adjudicates individual conflicts between two adversarial parties or whether it instead serves a policy-making, regulatory or investigative role, or acts on behalf of the public interest, bears on the degree to which impartiality concerns are raised. Such concerns may weigh more heavily where the tribunal served an adjudicatory function in the proceeding that is the subject of an appeal, while a proceeding in which the tribunal adopts a more regulatory role may not raise such concerns.³⁶

Moreover, it was at this point in his judgment that Rothstein J broadened his consideration of the issue beyond the discretion of the first instance court to the role of the Board as an appellant before the Supreme Court of Canada (as opposed to its status as a respondent before the Divisional Court and the Court of Appeal).³⁷

In the particular circumstances of this case, the indicators were all in favour of permitting the Board broad participatory rights and “full party status”³⁸ as an appellant. There was no one else to defend the decision of the Board³⁹ and the Board was involved in a broad, public interest regulatory role. Accordingly, the Board was entitled to argue the reasonableness of its decision. This should also presumably be read in conjunction with Rothstein J’s earlier recognition⁴⁰ of the ability of expert, field-sensitive tribunals “to explain how one interpretation of a statutory provision might impact other provisions within the regulatory scheme, or to the factual and legal realities of the specialized field in which they work.”

Having determined as a threshold matter that the Board had standing to participate and make submissions, Rothstein J then moved to consider what limitations should be imposed on that participation to guard against inappropriate bootstrapping, or supplementing or sanitizing otherwise deficient decisions. His particular focus was advancing new arguments that had not been part of the original decision. Here, the compromise was to allow tribunals the ability to “offer interpretations of their reasons or conclusions and to make arguments implicit within the original reasons”.⁴¹ As well, a tribunal was entitled to “explain its established policies and practices to the reviewing court even if these arguments were not included in the tribunal’s original decision.”⁴² As well, he was prepared to countenance responses to arguments made by a counterparty.⁴³ However, “entirely new arguments” were off limits.⁴⁴ Rothstein J also endorsed previous cautions as to the tone in which tribunals should participate. Aggressive partisanship was not to be countenanced.⁴⁵ Applying these cautionary principles to the Board’s participation on the appeal, Rothstein J found the Board’s submissions appropriate save in one respect. The line was crossed when the Board said in its submission it would probably reach the same result if the matter were remitted back for reconsideration under a differently expressed prudent investment test.⁴⁶

In sum, while the concerns about the dangers of tribunal participation that animated Northwestern Utilities survive, what is clear is that the Supreme Court has moved away from determining the participatory status of tribunals simply on the basis of categories or grounds of judicial review. While still relevant, the grounds of judicial review are just one factor in determining whether by reference to a range of considerations, tribunals have standing to participate. Probably the most important of these factors is the extent to which there are other parties before the Court defending the tribunal’s decision. However, participation by another party or intervenor in support of the tribunal’s decision is not automatically a decisive factor. This is underscored when, as already noted, in ATCO, Rothstein J, despite the concerns of the Alberta Court of Appeal, made no comment on the Commission’s defence of its decision even though the Utilities Consumer Advocate was supporting the Commission before the Supreme Court.⁴⁷

Notwithstanding the liberal attitude taken by Rothstein J and the clarity that he has brought to most of the critical dimensions of this problem, there are still some questions that remain outstanding. 1. What is the role of decision-makers other than tribunals (such as the Governor in Council in approving pipelines), and particularly those who are not required to and do not provide reasons for their decisions? 2. What is the situation with decision-makers which have failed to meet a reasons requirement either entirely or inadequately? How far can they go in relying on Dunsmuir v New Brunswick and Bastarache and LeBel JJ’s characterization of reasonableness review as involving assessment (quoting David Dyzenhaus) “of the reasons offered or which could be offered in support of the decision [emphasis added]”?⁴⁸ 3. In practical terms, how, in both factums and oral submissions, should counsel for decision-makers give effect to the admonition that, while they can contend for the reasonableness of a decision, they should not (unless correctness is the accepted standard of review) argue the merits of the decision under review or appeal?

What is clear, however, is that there are some practical ways in which difficulties can be avoided in the sense of the agency or tribunal anticipating likely challenges to its participation or more commonly the scope for its participation. Particularly when an agency or tribunal has to seek intervenor status in order to participate (as generally in the Federal Court and Federal Court of Appeal), as Stratas JA makes clear in Canada (Attorney General) v Quadrini,⁴⁹ it is important to set out the basis or justification for involvement in concrete terms and by reference to the established criteria or standards. Even where an agency or tribunal is before the court as a party, the same holds to the extent that supporting factums should demonstrate recognition of the limits on participation and provide justification for any potentially controversial participation in terms of those limits (particularly in dealing with the substantive challenges to its decision). If feasible under the relevant Rules of Court, it may also be advisable where there is another party or intervenor defending the agency or tribunal’s decision to delay or to seek leave to delay the filing of a factum until such time as the other parties or intervenors have filed their factums. Indeed, this was the advice provided by the Alberta Court of Appeal in Atco Gas and Pipelines v Alberta (Utilities Commission).⁵⁰

Finally, it is important to reiterate that the principles now established in Ontario Power Generation are subject to modification either in primary legislation or Rules of Court. Thus, as just noted, the Federal Courts Rules⁵¹ create a regime where decision-makers subject to the judicial review jurisdiction of the Federal Court and Federal Court of Appeal must normally seek intervenor status under Rule 109 in order to participate in judicial review proceedings. Only where the Attorney General is “unable or unwilling” to act as respondent and defend the decision-maker can the decision-maker seek status as a party,⁵² and it is only where the decision-maker is actually accorded party status that the decision-maker will have status to appeal any first instance decision reviewing or setting aside its decision. Indeed, this may also apply to the National Energy Board to the extent that section 29(12) of the National Energy Board Act, while permitting the Board to be “heard” on an appeal to the Federal Court of Appeal from one of its decisions, does not confer party status on the Board, thereby implicitly precluding it from seeking leave to appeal an adverse decision to the Supreme Court of Canada.⁵³ This stands in stark contrast with the Judicial Review Procedure Acts of both British Columbia and Ontario in which it is provided that decision-makers may participate at their option as parties to judicial review petitions or applications.⁵⁴

Standard of Review: The Rhetoric and the Reality

a. Introduction

Almost eight years after the Supreme Court of Canada in Dunsmuir⁵⁵ and subsequently Canada (Citizenship and Immigration) v Khosa⁵⁶ reconfigured the principles respecting the standard of review on judicial review applications and statutory appeals, courts across the country (including the Supreme Court itself) continue to be preoccupied with teasing out the detailed application of those principles. Indeed, as more and more refinements are added to the template for determining whether the standard of review should be that of correctness or reasonableness, and how to actually conduct reasonableness review, questions are inevitably arising as to whether the jurisprudence applying the modified principles has become even more complex than the state of affairs which Dunsmuir and Khosa purported to simplify and make more coherent.⁵⁷

b. Reasonableness: the Predominant Standard of Review for Energy Regulators

For the most part, however, energy regulators have benefitted from the Dunsmuir principles in the sense that reasonableness has become the almost invariable standard of review for judicial review of and statutory appeals from their decisions. Ontario Power Generation⁵⁸ provides a typical example. At issue substantively was whether the statutory mandate to set rates that were “just and reasonable” legally committed the Ontario Energy Board to a commonly used and judicially recognized methodology for assessing the costs of the regulated utility – a no hindsight assessment of the prudence of operating expenditures starting with a presumption of prudence. And, if there was no obligation to apply that particular methodology, had the Board exercised its discretion and deployed an appropriate methodology in this instance?  

In briefly addressing the issue of standard of review,⁵⁹ Rothstein J, delivering the judgment of the majority, noted that the parties all accepted that the standard of review respecting the Board’s setting of rates and approving payment amounts under the Act was that of reasonableness. He also went on to emphasise that to the extent that the questions before the Board involved the interpretation of provisions in its home statute, the Board was entitled to a presumption of reasonableness review. Moreover, there was no basis in this context for any assertion that the presumption had been rebutted. Reasonableness was therefore the standard to be applied in the Court’s assessment of whether the legislative provision calling for the setting of just and reasonable rates was subject to the implicit gloss and particular methodology asserted by the respondents.

In contrast, in ATCO,⁶⁰ the standard of review issue was contested. It too involved rate setting methodology and the issue of whether the regulated utility was entitled to recover costs which were reasonable on the basis of a no hindsight prudence assessment by the regulator. The only material difference from the legislative regime in issue in Ontario Power Generation was the specific reference to the recovery of “prudent” and “prudently incurred costs” in the relevant Alberta statutes. Despite this, the Commission determined that there was no compulsion to assess the prudence of costs by reference to a specific point in time and, in particular, the time at which the cost was incurred. In the Alberta Court of Appeal,⁶¹ the standard applied to the Commission’s determinations on this issue was that of reasonableness. However, in the Supreme Court, ATCO contended by reference to previous case law that the standard to be applied should have been that of correctness on the basis that “true questions of jurisdiction” were at stake, a category which under Dunsmuir⁶² always attracted correctness review.

Rothstein J, delivering the judgment of the Court, spent little time rejecting this argument and agreeing with the Court of Appeal that the standard of review should be that of reasonableness. In so doing, he again⁶³ raised the possibility that the category of a true question of jurisdiction might no longer exist but went on to emphasise that, if it did, it was a “rare and exceptional category.”⁶⁴ Given that   ratemaking methodology was in issue, this was a question that was at the very “heart”⁶⁵ of the Commission’s expertise and deserving of “a high degree of deference.”⁶⁶ He then also noted that as it involved the Commission interpreting its home statute, the resolution of the matters in issue was entitled to the benefit of a presumption of reasonableness review.⁶⁷

This reaffirmation of the entitlement of energy regulators to the benefit of reasonableness when engaged in core ratemaking functions seemingly puts to rest notions such as correctness review being the standard to apply when fundamental regulatory questions are in play, questions that some have characterized as the common law principles of rate of return regulation or as part of the underlying regulatory compact.⁶⁸ What is left dangling, however, is the fate of the three decisions on which counsel for ATCO relied in asserting an entitlement to correctness review: the judgment of the majority of the Supreme Court of Canada in the notorious Stores Block decision (ATCO Gas and Pipelines Ltd v Alberta (Energy and Utilities Board)),⁶⁹ and the judgments of the Alberta Court of Appeal in Shaw v Alberta Utilities Commission,⁷⁰ and ATCO Gas and Pipelines Ltd v Alberta Utilities Commission.⁷¹

Stores Block involved the issue of whether the regulator could order that consumers were entitled to benefit from the proceeds of the sale of an asset being removed from the rate base. In Shaw, the Court of Appeal was confronted with the issue of whether a ministerial declaration that a particular transmission project was of a “critical” nature removed the authority of the Commission to scrutinize the project by reference to its broad overriding public interest mandate.⁷² ATCO (2009) involved the Court setting aside seemingly on a correctness basis the regulator’s determination that a change in the use of assets within the rate base constituted a “disposition” requiring the regulator’s approval.

Rothstein J characterized each of these decisions as “not analogous to the matter at hand.”⁷³ Nonetheless, there is reason to believe that they should at the very least be treated with caution in so far as they each espoused correctness as the appropriate standard of review. First, it is abundantly clear that each of them involved the regulators interpreting provisions in their home statute, an exercise now clearly raising a presumption of deferential reasonableness review. Secondly, Rothstein J’s musings about the continued existence of a category of “true” jurisdiction calls into question the deployment of that concept in both Stores Block and Shaw. Thirdly, it is also the case that the task in which the regulator was engaged in both Stores Block and ATCO (2009) was an incidental part of its ratemaking role. Thus, in terms of Rothstein J’s reasons for selecting reasonableness review as the appropriate standard in ATCO (2012), none of these three presents a strong case or basis for correctness review.

Perhaps, in terms of Dunsmuir, Shaw might still be justified as appropriately applying a correctness standard as it involved a question as to “the jurisdictional lines between two or more competing specialized tribunals,”⁷⁴ in this instance the government, on the one hand, and the Commission, on the other. However, that was certainly not the case in Stores Block; there the question was one of statutory interpretation at the core of the then Board’s regulatory mandate. I would therefore venture to assert that on standard of review, ATCO (2012) implicitly overrules Stores Block.

Indeed, a week before the Supreme Court of Canada released its judgments in Ontario Power Generation and ATCO, on September 18, 2015, a panel of the Alberta Court of Appeal in effect came to the same conclusion with respect to the authority of Stores Block on standard of review; it had more than likely been overtaken implicitly by subsequent Supreme Court of Canada authority. This was in FortisAlberta Inc. v Alberta (Utilities Commission),⁷⁵ a case involving the Commission setting a path for the treatment for rate purposes of utility disposition of stranded assets. In according the Commission’s decisions deferential reasonableness review,⁷⁶ Paperny JA, delivering the judgment of the panel and echoing⁷⁷ an earlier judgment of Fraser CJA,⁷⁸ stated:

Were Stores Block to be decided today, it is certainly possible that the majority approach on standard of review might more closely mirror that of the dissent.⁷⁹

That position now finds further support in the judgment of Rothstein J in ATCO.

c. But What Does Reasonableness Review Involve in Practice?

It may be comforting for energy regulators and those benefitted by their decisions to know that the standard of review for not only questions of fact and mixed law and fact but also pure law will generally be that of reasonableness. Nonetheless, despite an initial pronouncement of reasonableness as the standard, what follows is in all too many instances “disguised correctness” review. Now is not the place to catalogue all the evidence in support of the pervasiveness of this phenomenon. Paul Daly captures it well when he argues in his blog that many judgments are “characterized by purely pro forma references to correctness and reasonableness, an absence of detailed discussion of the general principles of standard of review and lengthy explanations of substantive law designed to guide lower courts.”⁸⁰

It is useful to consider both Ontario Power Generation and ATCO from this perspective. On both, the standard of review analysis is sparse and to the point. This was not surprising in Ontario Power Generation as the standard of review was not contested (though this is not necessarily determinative). However, it was contested in ATCO, though perhaps the cursory nature of the analysis is explained by the lack of merit of the argument for correctness review. What is, however, worthy of note is that most of the commentary on these cases by energy law experts concentrates on the extent to which they have altered or accepted agency alteration of the substantive law and principles of energy regulation.⁸¹ In this realm, and understandably so, the substantive outcome counts for far more than the fact that that outcome is said by the reviewing court to have been based on a reasonableness assessment which allows for more than one correct answer than on a definitive correctness analysis. A new substantive rule is in effect established and more than likely to be applied or accepted by energy regulators even though theoretically it may not be the only possible and reasonable interpretation of the relevant statute.

In large measure, this has become the reality because of the way in which courts reason to a conclusion on the substantive merits of cases where they have just come from acknowledging an obligation of deference to the regulator. This point can be illustrated by reference to ATCO, though the same kind of analysis can be deployed with respect to Ontario Power Generation and, among others, the Alberta Court of Appeal judgment in FortisAlberta v Alberta (Utilities Commission).⁸²

As noted already, the substantive issue in both ATCO and Ontario Power Generation can be broken into two segments: Did the statute oblige the regulator to apply a particular methodology and no other in deciding whether to allow the regulated utility the amount of cost recovery that it was claiming? If the statute did not require a single unvarying methodology, was the methodology adopted by the regulator acceptable?

If we look to the section in Rothstein J’s judgment in ATCO on the first order question, what do we find? Rothstein J addresses the first order question in the following way:

Though the statutes do contain language allowing for the recovery of “prudent” costs, [they] do not explicitly impose an obligation on the Commission to conduct its analysis using a particular methodology any time the word “prudent” is used. Further, reserving the opinion on whether the term “prudently incurred” might require a particular no-hindsight methodology, in this particular case the bare use of the word “prudent” does not, on its own, mandate a particular methodology.⁸³

Seemingly, what Rothstein J has done here in relation to the first order question is provide a definitive answer to that question: As a matter of law, the regulator is not obliged to follow one and only one methodology in the assessment of what are “prudent” costsIrrespective of the merits of this particular conclusion, Rothstein J’s analysis seems to be a clear example of correctness review. Moreover, it is not rescued from that fate or characterization by the assertion with which the next paragraph commences: “It is thus apparent that the relevant statutes may reasonably be interpreted not to impose the ATCO Utilities’ asserted prudence methodology on the Commission.”⁸⁴ Of course, a statute can be reasonably interpreted that way if that reading has already been assessed as correct. Thereafter, the majority’s evaluation of the reasonableness of the methodology chosen under an interpretation that allows for choice and creates discretion fits much more comfortably or satisfactorily into a reasonableness analysis, though even here the discussion of the choice that was made reads at times like a correctness evaluation of the various components or elements that went into that choice. However, in situations where the Court is about to sustain the regulator’s exercise of discretion, not too much harm is done to the enterprise of reasonableness review by sustained justification of the reasons for and the basis of the discretionary choice.

Among recent Court of Appeal judgments, however, there are flagrant examples of mere lip service to reasonableness review on all aspects of the decision under scrutiny. Of the energy cases in the period under review, the most palpable of these is Cape Breton Explorations Ltd v Nova Scotia (Attorney General).⁸⁵ This involved an appeal from a decision of the Nova Scotia Utility and Review Board approving Nova Scotia Power Inc.’s application to include in its rate base a $93 million dollar investment in a wind project. The approval depended on the interpretation of terms in the Board’s constitutive legislation.

In delivering the judgment of the Nova Scotia Court of Appeal, Farrar JA accepted the agreement of the parties that the standard of review was that of reasonableness.⁸⁶ Ultimately, he concluded that the decision was unreasonable on the basis that it did “not fall within the range of possible outcomes,” an accepted badge of or test for unreasonableness.⁸⁷ However, in the 110 paragraphs between the initial identification of the standard of review and this conclusion, there is scarcely a mention of reasonableness and any test for assessing reasonableness. It is straight correctness statutory interpretation characterized by statements such as “the UARB erred in its interpretation of service”⁸⁸ in the relevant provision of the Act and “it would be an error for the Board not to take into account” certain provisions of the relevant legislation.”⁸⁹ This way of proceeding undercuts the whole enterprise of truly deferential reasonableness review.⁹⁰ It also, of course, poses problems for those participating in any judicial review or statutory appeal, including the regulator. To what extent should one anticipate the possibility of a judge or panel bent on “disguised correctness” review when drafting a factum, when deciding in the case of the regulator on the permissible scope for participation, and in the making of oral arguments before the reviewing court? If the whole standard of review enterprise is not to fall further into disrepute, the Supreme Court of Canada needs to articulate more fully a template for the conduct of proper or appropriate deferential reasonableness review and to condemn disguised correctness review in all of its various forms.⁹¹

Duty to Consult Aboriginal Peoples

a. Introduction

Litigation over the duty to consult and, where appropriate, accommodate aboriginal peoples and their rights and claims continues apace. Much of the extensive litigation is, however, now concerned not so much with ascertaining the governing legal principles⁹² as with highly fact dependent determinations as to the strength of the aboriginal claim, the extent of the consultation (and accommodation) obligations, and whether any consultation and accommodation that did take place was sufficient to meet the Crown’s obligations. Very recent examples include the judgments of Manson J of the Federal Court in Prophet River First Nation v Canada (Attorney General),⁹³ Sewell J of the British Columbia Supreme Court in Prophet River First Nation v British Columbia (Minister of Environment),⁹⁴ and the British Columbia Court of Appeal in Ktunaxa Nation v British Columbia (Minister of Forest Lands and Natural Resource Operations),⁹⁵ in all of which the Court held that the Crown had fulfilled its responsibilities.

In this review, I will not canvass the case law involving whether the extent and detail of consultation was of sufficient depth or intensity to satisfy the demands of the Crown’s responsibility. Rather, I want to return to a topic that, despite Supreme Court attention, continues to generate considerable controversy – the roles that administrative tribunals or regulatory agencies play in the duty to consult and, where appropriate, accommodate aboriginal peoples. Under what circumstances, if any are tribunals and agencies through their hearings legitimate participants in the very process of consultation and accommodation? When is it appropriate, perhaps even mandatory in responding to applications potentially affecting aboriginal rights and claims for tribunals and agencies to determine whether the Crown has fulfilled its duty to consult and, where appropriate, accommodate aboriginal peoples? And, what is the impact of a finding by an administrative tribunal or agency that the Crown has not met that obligation?

The leading Supreme Court of Canada judgment respecting these issues remains Rio Tinto Alcan Inc v Carrier Sekani Tribal Council.⁹⁶ There, it will be recollected that the Supreme Court held that the ability of a tribunal or agency to itself engage in consultation and fulfill the Crown’s duty to consult did not, as opposed to the situation of the determination of other questions of law, arise presumptively out of the general authority to determine questions of law; it required express or implicit statutory authorization.⁹⁷ Relevant to the determination of whether a tribunal had the authority to itself engage in consultation was an inquiry into whether the tribunal “possess[ed] the remedial powers to do what it is asked to do in connection with the consultation”⁹⁸, presumably an inquiry of particular pertinence when the argument is that the power to consult is implicit in the relevant statute. In contrast, where relevant, tribunals and agencies, by virtue of their capacity to determine questions of law, did at least presumptively have the ability to assess whether the Crown had fulfilled its duty to consult and, where appropriate, accommodate aboriginal peoples and their rights and interests. Indeed, it is not going too far to suggest that, as with other constitutional questions, tribunals and agencies not only have the capacity but also the obligation to determine, where relevant to their decision, that question.

Tribunal Consultation

In 2015, in Hamlet of Clyde River v TGS-NOPEC Geophysical Co. ASA (TGS),⁹⁹ the Federal Court of Appeal confronted the issue of whether the National Energy Board (“NEB”) had implicit authority to engage in consultation and thereby be the agent for fulfilment of the Crown’s constitutional duty. The context was an application for judicial review of an authorization to conduct an offshore seismic study. It was claimed that the NEB had approved the study in the absence of sufficient or adequate consultation with an affected aboriginal community.

As part of the reasons for upholding the approval, Dawson JA, delivering the judgment of the Court, held that the relevant legislation implicitly authorized the NEB to engage in consultation. This arose out of the obligation of the NEB, in this particular variety of approval process, in the assessment of the environmental impacts of the proposal to take account of the use of the affected land and its resources “for traditional purposes by aboriginal peoples” as well as the NEB’s discretion to allow public participation in the decision-making process, the legislative history of the processes, and the NEB’s commitment as part of its processes to aboriginal consultation. According to Dawson JA, this meant that the NEB “had a mandate to engage in a consultation process such that the Crown may rely on that process to meet, at least in part, its duty to consult.”¹⁰⁰ While it is questionable whether a non-legislative commitment on the part of a tribunal to actually engage in consultation can count as an indicator of legislative conferral of the authority to consult, what the judgment does suggest is that implicit authorization may follow quite readily from legislative specification of an obligation to take account of aboriginal rights and claims. It will be interesting to see if that holds up in future considerations of this issue.

In an extensive blog on this case, “The Federal Crown Fulfilled its Consultation Obligations when the National Energy Board Approved a Seismic Program in Baffin Bay”,¹⁰¹ Nigel Bankes argued that significance should also be placed on the fact that this was a final decision; it was not one of the category of NEB decisions that required approval from the Governor in Council, though it must be noted that, as a precondition of approval, the Minister had either to have approved a benefits plan or waived that requirement.

In Hamlet of Clyde River, Dawson JA does not confine herself to a consideration of whether the NEB had, in terms of Carrier Sekani, explicit or implicit legislative authority to engage in consultation with aboriginal peoples. Irrespective of whether that authority existed, the Supreme Court had also recognized the entitlement of the Crown to rely on procedures created for other purposes as satisfying the duty to consult if those other processes involved a satisfactory level of consultation.¹⁰² In such cases, Dawson JA asserted¹⁰³ that the Crown’s duty had not been delegated. “Rather, it is a means by which the Crown can be satisfied that Aboriginal concerns have been heard and, where appropriate, accommodated.” Given the extent to which regulatory agencies have actually made aboriginal consultation part of their processes both by way of requirements imposed on proponents and directly through their hearings, this may represent a very convenient alternative to having to establish explicit or implicit conferral of authority on those agencies of authority to discharge the Crown’s constitutional duty.

However, this approach is not without its potential pitfalls. In both of the Supreme Court judgments on which Dawson JA relied, Taku River Tlingit First Nation and Beckman, the consultations relied on took place not as part of the processes of an independent regulatory agency but within a departmental setting. Where an independent regulatory agency is implicated (such as the National Energy Board), the deployment of this justification may be problematic particularly where, as in Hamlet of Clyde River, the regulatory agency is the final decision-maker. This potential problem is well-illustrated by the following question: What if the Crown is not satisfied with the consultation processes of the independent regulatory agency? What can the Crown do about it? Can it direct the independent regulatory agency to engage in fuller or better consultation without an express statutory authorization to do so? Is it adequate to maintain that the Crown then fulfills its responsibilities by appearing in support of an aboriginal people’s application for judicial review of the independent agency’s decision?

There are two other dimensions to this overall question that I also want to identify. In the foundation judgment on the duty to consult, Haida Nation v British Columbia (Project Assessment Director),¹⁰⁴ McLachlin CJC, delivering the judgment of the Supreme Court, stated that the Crown could delegate some of the procedural aspects of the duty to consult to proponents. This might suggest that even where an independent regulatory agency lacks the necessary authority to itself act as the Crown’s delegate in the conduct of consultation, the Crown can nonetheless still rely on that agency’s rules and practices with respect to proponent consultation as fulfilling in part the Crown’s own consultation requirements. Of course, the answer to that question might also hinge on whether in a more general sense the Crown can assess and rely on consultations that form part of the processes of an independent regulatory agency.

Finally, it is also the case that, irrespective of whether a decision-maker has authority to discharge the Crown’s duty to consult and, where appropriate, accommodate, that decision-maker may still be legally responsible for engaging in the equivalent of consultation with aboriginal peoples not only through the common law principles of procedural fairness but also as a consequence of section 35 of the Constitution Act, 1982.¹⁰⁵ However, in the 2015 judgment in Chippewas of the Thames First Nation v Enbridge Pipelines Inc, Ryer JA held that whatever duties to engage with aboriginal peoples arose out of section 35 and other aspects of its mandate, it was not a springboard to asserting that the NEB had the authority to fulfill the Crown’s Haida consultation duties.¹⁰⁶ This was a different and distinct responsibility. In this respect, does the reference to other aspects of the NEB’s mandate call into question Dawson JA’s discerning of the conferral of legislative authority to consult in the legislative references to aboriginal interests? Is Ryer JA implicitly asserting that this is too thin a basis for asserting legislative authority to fulfill the Crown’s responsibilities?

Now that leave to appeal to the Supreme Court of Canada has been sought in both Hamlet of Clyde River and Chippewas of the Thames First Nation, perhaps the Supreme Court will seize the opportunity to resolve the differences between Dawson JA and Ryer JA as well as other contested issues discussed below.

Tribunal Assessment of Crown Consultation

In Carrier Sekani, there is no suggestion in the judgment of McLachlin CJC that the authority of the British Columbia Utilities Commission to consider whether the Crown had engaged in adequate consultation and accommodation depended in any way on the Crown being a party to the proceedings before the Commission. However, the reality was that the Crown in the form of both the Government of British Columbia, the formal applicant for approval of a sale, and BC Hydro, a Crown agent and the purchaser under the sale agreement, were parties to the proceedings both before the Commission and in Court.

This has raised questions as to whether the ability of a regulatory agency to assess whether the Crown has engaged in adequate consultation and, where appropriate, accommodation, depends on the Crown being a party to the regulatory proceedings. The latest consideration of this issue was in Chippewas of the Thames First Nation.¹⁰⁷ There, Ryer JA, delivering the judgment of a majority of the Federal Court of Appeal, and affirming his own pre-Carrier Sekani judgment in Standing Buffalo Dakota First Nation,¹⁰⁸ held after extensive discussion¹⁰⁹ that, despite its jurisdiction to determine questions of law arising in proceedings before it, the NEB had no authority on an application to which the Crown was not a party to determine whether the Crown had met its constitutional duty to consult.

In a vigorous dissent,¹¹⁰ Rennie JA held that Standing Buffalo Dakota First Nation had been overtaken by Carrier Sekani, and that, in any event, could be distinguished in the sense that, as opposed to Standing Buffalo Dakota First Nation, in this instance, an application for approval of the reversal of flow in a pipeline, the NEB was the final decision-maker; the approval of the Governor in Council was not required.

As the judgments in Chippewas of the Thames First Nation make clear, the issue of agency assessment of the Crown’s efforts at consultation when the Crown is not before the agency as a participant raise practical problems respecting procedural and remedial issues. When a tribunal or agency has final decision-making authority in relation to a proposal and that agency is confronted with an assertion that the Crown has not consulted adequately, what happens? Can the tribunal or agency require the Crown to appear and account for itself? Must the agency hold off making a decision until such time as it is convinced either that the Crown has consulted adequately or is prepared to indicate to the tribunal or agency that it is satisfied that the processes of the tribunal or agency have fulfilled the Crown’s own obligations to consult? If having found that the Crown has failed to fulfill its Haida responsibilities, does a tribunal or agency have authority to order the Crown to remedy that deficiency?

These concerns partially fuelled the judgment of Ryer JA, and, in this context, he cited¹¹¹ the judgments of McLachlin CJC in both Haida¹¹² and Carrier Sekani¹¹³ to the effect that, at the end of the day, if the tribunal or agency lacked sufficient remedial capacity, the affected aboriginal peoples could always seek “appropriate remedies in the courts.” However, given that in Carrier Sekani this statement was made in the course of justifying the British Columbia Utilities Commission’s authority to determine whether the Crown had fulfilled its Haida duties, it is not necessarily a decisive consideration in the determination of whether that authority exists. In this regard, it is worth noting that in dissent, Rennie JA was critical of a solution that would see any impasse as broken only by after the event judicial review. For him,¹¹⁴ the judgment of the Supreme Court of Canada in Tsilhqot’in Nation v British Columbia¹¹⁵ had placed a gloss on Haida and Carrier Sekani and their suggestion that judicial review was available if all else failed:

The suggestion that the only remedy lies in an after-the-event judicial review of a Minister’s letter is inconsistent with the Supreme Court in Tsilhqot’in at paragraph 78 where the Court reiterated that the duty to consult “must be discharged prior to carrying out the action that could adversely affect the right.” According to the jurisprudence, the duty to consult should have been discharged prior to the issuance of a section 58 order. This can be achieved by requiring the Board to ask the questions required by Carrier Sekani.

While this does not provide an answer to the various remedial and procedural questions respecting the capacities of the tribunal or agency, it at least counsels early addressing of the issue of consultation and encourages tribunals and agencies to be creative in finding workable solutions to any problems raised in situations where the Crown is not a party to the proceedings.

Clearly, however, absent legislative resolution, these issues will not go away and more judicial attention is warranted. Perhaps further guidance and clarity will emerge from the litigation involving the Northern Gateway Pipeline approval process. The applications for judicial review arose out of a joint review panel process in which there was a detailed protocol respecting consultation with affected aboriginal peoples, but where the Crown was before the joint review panel as an intervenor, and the outcome of which required Governor in Council approval. This matter is currently under reserve in the Federal Court of Appeal before a panel consisting of Dawson, Stratas and Ryer JJA.¹¹⁶

*David J. Mullan, Emeritus Professor, Faculty of Law, Queen’s University.

1. Parts of this review article draw on a paper, “The Year in Review – Recent Developments in Administrative Law, 2014-15” that I presented for the Continuing Legal Education Society of British Columbia publication, Administrative Law Conference 2015 (Vancouver, BC, November 2015).
2. Nigel Bankes, “Pipelines, the National Energy Board and the Federal Court” (2015), 3 ERQ 59.
3. Kemm Yeates, QC and Sarah Nykolaishen, “National Energy Board Procedural Reform – Round 2 Goes to the Regulator” (2015), 3 ERQ 37.
4. Quarmby v Canada (Attorney General), [2015] SCCA No 113 (QL), application for leave to appeal dismissed without reasons, September 10, 2015.
5. Allan L. Ross, Michael Marion and Michael Massicotte, “Supreme Court of Canada Will Hear “Charter Damages” Case Against Alberta’s Energy Regulator” (2015), 3 ERQ 45 . See also Jennifer Koshan, “Leave to Appeal Granted in Ernst v Alberta Energy Regulator” April 30, 2015, online: ABlawg.ca <http://ablawg.ca/2015/04/30/leave-to-appeal-granted-in-ernst-v-alberta-energy-regulator/>.
6. Ernst v EnCana Corporation, 2013 ABQB 537, 570 AR 317.
7. Ernst v Alberta (Energy Resources Conservation Board), 2014 ABCA 285, 580 AR 341.
8. Leave to appeal granted (30 April 2015) and appeal heard (12 January 2016) and currently under reserve in the Supreme Court of Canada: [2014] SCCA No 497.
9. And, of course, there are other topics that could have been discussed but have been omitted for reasons of space. Thus, for example, the new federal Government’s letter to those appointed to boards, agencies and tribunals in the dying days of the previous Government requesting their voluntary resignation (and including one permanent member of the National Energy Board) raises serious issues of independence particularly in the case of appointees to adjudicative tribunals and regulatory agencies. See Bruce Cheadle, “Tory appointees to face grilling before parliamentary committee”, National Post, December 31, 2015 and Shawn McCarthy, “Liberals unlikely to dislodge NEB appointees before 2020”, Globe and Mail, January 2, 2016. Concerns about a lack of independence also surfaced in the Trans Mountain Pipeline hearings. The Pro Information Pro Environment United Peoples Network (PIPE UP) moved for various forms of relief before the hearing panel (including a quashing of the entire proceedings) on the basis of the appointment to the Board of another new pemanent member who prior to his appointment had provided written evidence to the Board on behalf of the proponent. Despite the fact that the panel had struck this evidence from the record, PIPE UP alleged that the appointment of this new member had tainted the process as had the alleged involvement of the non-sitting Chair of the NEB in that appointment. The public interest group also challenged the composition of the panel alleging that a three person panel which included two temporary members lacked sufficient independence. On December 7, 2015, the NEB rejected all of these challenges: Hearing Order OH-001-2014, Trans Mountain Pipeline ULC (Trans Mountain), Application for the Trans Mountain Expansion Project (Project), Pro Information Pro Environment United People Network (PIPE UP) – Notice of motion filed 13 October 2015, Ruling 101. For an earlier detailed examination of the ramifications of the appointment of the Board member who had provided evidence in support of the proponent, see Kirk Lambrecht, QC, “The Governor in Council Occasions Change and Delay in the National Energy Board’s Review of the Trans Mountain Pipeline Expansion Project: The Curious Case of PC 2015-1137” 15 September 2015, ABlawg.ca, online: ABlawg <http://ablawg.ca/2015/09/15/the-governor-in-council-occasions-change-and-delay-in-the-national-energy-boards-review-of-the-trans-mountain-pipeline-expansion-project-the-curious-case-of-pc-2015-1137/>.
10. Northwestern Utilities Ltd v Edmonton (City), [1979] 1 SCR 684.
11. Alberta Utilities Commission Act, SA 2007, c A-37.2, s 29(12): “The Commission is entitled to be represented, by counsel or otherwise, on the argument of an appeal.” There is a similar provision in the National Energy Board Act, RSC 1985, c N-7, the only difference being the substitution of “heard” for “represented.” However, this provision does not cover National Energy reports provided for under ss 52 and 53 (pipeline certificate applications) and ss 29 and 30 (environmental assessments of designated projects) of the Environmental Assessment Act, 2012, SC 2012, c 19.
12. CUPE v New Brunswick Liquor, [1979] 2 SCR 227, was decided just under six months after Northwestern Utilities.
13. Bibeault v McCaffrey, [1984] 1 SCR 176, at p 191.
14. CAIMAW v Paccar of Canada Ltd, [1989] 2 SCR 983, at para 40.
15. La Forest J delivered the judgment of himself and Dickson CJC. The other majority judges did not express any opinion on the issue of tribunal standing. However, in dissent, L’Heureux-Dubé J, expressed agreement with this aspect of the La Forest judgment: at para 64. McIntyre J took no part in the decision meaning that there was not a majority of the panel of six in support of the La Forest position.
16. Alberta (Human Rights Commission) v Brewer, 2008 ABCA 160, 432 AR 188 [Brewer].
17. Leon’s Furniture Ltd v Alberta (Information and Privacy Commissioner), 2011 ABCA 94, 502 AR 110, at paras 16-30 [Leon’s Furniture].
18. The panel in Brewer was Côté, Conrad and Paperny JJA while the panel in Leon’s Furniture was Conrad, Berger and Slatter JJA.
19. Leon’s Furniture, supranote 17 at para 28, citing Children’s Lawyer for Ontario v Goodis (2005), 75 OR (3d) 309 (CA), at para 35 [Children’s Lawyer].
20. Among the principal authorities in this movement towards a factorial/discretionary approach were Robertson JA in United Brotherhood of Carpenters and Joiners of America, Local 1386 v Bransen Construction Ltd., 2002 NBCA 27, 249 NBR (2d) 93, Goudge JA in Children’s Lawyer, supra note 19, and Stratas JA in Canada (Attorney General) v Quadrini, 2010 FCA 246, [2012] 2 FCR 3 [Quadrini].
21. Atco Gas and Pipelines Ltd v Alberta Utilities Commission, 2013 ABCA 310, 556 AR 736, at paras 12-13 (The panel in this case was Costigan, Martin and Slatter JJA).
22. Ibid at para 12.
23. Ibid.
24. Ibid at para 13.
25. Alberta Utilities Commission Act, SA 2007, c A-37.2, s 29(13): “Neither the Commission nor any member of the Commission is in any case liable for costs by reason or in respect of an appeal or application.”
26. However, at the hearing of the case before the Supreme Court, the Utilities Consumer Advocate’s counsel preceded the Commission. In its factum, at para. 22, the Commission characterized its submissions as confined “to addressing the standard of review and to showing that the Commission had acted within its core rate-setting function when it considered the Appellant’s submissions before it, and had given reasoned, rational rejections to each of the arguments and that its approach was a reasonable approach for the Commission to take.”`
27. Power Workers’ Union, Canadian Union of Public Employees, Local 1000 v Ontario (Energy Board), 2013 ONCA 359, 116 OR (3d) 793, rev’g 2012 ONSC 729, 109 OR (3d) 576.
28. ATCO Gas and Pipelines Ltd v Alberta (Utilities Commission), 2015 SCC 45 [Atco Gas].
29. Ontario (Energy Board) v Ontario Power Generation Inc, 2015 SCC 44 at paras 42-57 [Ontario Power].
30. For other commentary on this aspect of the case, see Paul Daly, “A Principled Stand on Tribunal Participation in Judicial Review: Ontario (Energy Board) v. Ontario Power Generation Inc, 2015 SCC 44” (25 September 2015), Administrative Law Matters, blog, online: ALM <http://www.administrativelawmatters.com/blog/2015/09/25/a-principled-stand-on-tribunal-participation-in-judicial-review-ontario-energy-board-v-ontario-power-generation-inc-2015-scc-44/ >; Shaun Fluker, “The Fundamentals of Tribunal Standing and Bootstrapping in Judicial Review” (13 October 2015), ABlawg.ca, online: Ablawg <http://ablawg.ca/2015/10/14/the-fundamentals-of-tribunal-standing-and-bootstrapping-in-judicial-review/> ;and John Mastrangelo, “Shifting from Impartial Decision-Maker to Adversarial Opponent: Tribunal Standing on Judicial Review in Ontario Energy Board v. Ontario Power Generation” (1 October 2015), Thecourt.ca, online: TheCourt.ca <http://www.thecourt.ca/2015/10/01/shifting-from-impartial-decision-maker-to-adversarial-opponent-tribunal-standing-on-judicial-review-in-ontario-energy-board-v-ontario-power-generation-2/>.
31. Ontario Power, supra note 29 at paras 41 and 52.
32. Personally, I have always thought that this was a much overrated concern particularly in the instance of regulatory agencies including energy regulators.
33. Ontario Power, supra note 29 at para 52.
34. Ibid at paras 52ff.
35. Ibid at para 58.
36. Ibid at para 59. It is worth noting that the movement from a categorical approach to a discretionary approach carries with it a potential disadvantage in some instances. To the extent that the categorical approach was based on the various legal grounds of review, first instance mischaracterization of the list of included categories or of the legal nature of the ground on which review was being sought would be an error of law subject to correctness review on appeal or further appeal. In contrast, appeals from first instance decisions under the discretionary approach will generally be conducted on a deferential reasonableness standard common to the review of all manner of first instance exercise of judicial discretions.
37. In this regard, note should also be taken of Moore v College of Physicians and Surgeons of British Columbia, 2014 BCCA 446, application for leave to appeal denied: [2015] SCCA No 26, in which Lowry JA questioned whether the Health Professions Review Board had status to appeal a decision of the British Columbia Supreme Court setting aside one of its decisions in which the College was supporting the physician who was the applicant in the petition for judicial review.
38. Ontario Power, supra note 29 at para 62.
39. Ibid at para 60.
40. Ibid at para 53.
41. Ibid at para 69.
42. Ibid at para 68.
43. Ibid.
44. Ibid at para 69.
45. Ibid at para 71.
46. Ibid at para 72.
47. It is, however, worthy of note that a week before the Court delivered its judgments in Ontario Power Generation and ATCO, yet another panel of the Alberta Court of Appeal dealt with a challenge to the extent of the Commission’s participation in an appeal in which the Utilities Consumer Advocate was also a participant. This was in FortisAlberta Inc v Alberta (Utilities Commission), 2015 ABCA 295 [Fortis Alberta] (application for leave to appeal to the Supreme Court of Canada filed in November 2015: [2015] SCCA No 475 (QL)). In rejecting the challenge, Paperny JA (delivering the judgment of herself, Watson and Rowbotham JJA) stated (at para 105):
48. The appellants assert that in this case the Commission has gone beyond [what is permissible] in its factum. I disagree. The Commission’s factum sets forth the context in which the decision was made, the issues that the Commission was grappling with in the UAD proceedings, the approach taken in considering those issues, and the conclusions reached. It was in this case necessary and helpful to the court for the Commission to point out those parts of its reasons that discuss the rationale underlying its policy decisions, particularly given their jurisprudential overlay. The appellants submit that certain portions of the Commission’s factum appeared argumentative or suggested that it was entering the fray. I would not characterize the submissions in that way; in the circumstances of this appeal and given the breadth and nature of the proceedings, those portions were of assistance to the court.
49. Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 48 [Dunsmuir], citing David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in M Taggart, ed, The Province of Administrative Law (Hart, 1997), 279, 286. For general discussion of the impact on the conduct of reasonableness review of inadequate reasons, see the judgment for the Court of Abella J in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708 at paras 13-26.
50. Quadrini, supra note 20 at para 22.
51. Supra note 21 at para 13.
52. Federal Courts Rules, SOR/98-106 (as amended).
53. The reference to the Attorney General obviously raises another issue not canvassed in Ontario Power Generation or commonly in other case law involving the participatory rights of decision-makers. To what extent is the Attorney General, rather than the actual decision-maker, the appropriate upholder of any decision by a public body? Where this is a role of the Attorney General, what if the Attorney General for whatever reason decides not to defend the decision under attack? Where the Attorney General exercises an entitlement to become a party to an application or petition for judicial review (as, for example, provided for in s 16 of the British Columbia Judicial Review Procedure Act), does that preclude participation by the decision-maker save as the nominal respondent? Where the Attorney General assumes the role of defender of the decision under attack, do the same limits and discretionary considerations applicable to the decision-maker itself apply to the Attorney General? These and other related questions are issues that can await another day!
54. There is nothing in the Rules of the Supreme Court of Canada, SOR/2002-156, that would suggest otherwise.
55. Judicial Review Procedure Act, RSO 1990, c J.1 (as amended), s 9(2); Judicial Review Procedure Act SBC 1996, c 241 (as amended), s 15(1). See Children’s Lawyer, supranote 19 at paras 25-26.
56. Supranote 48. Abella J in dissent in Ontario Power Generation accepted that reasonableness was the standard but, in her view, the decision was unreasonable.
57. Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339.
58. See eg Paul Daly, “The Signal and the Noise in the Supreme Court of Canada’s Administrative Law Jurisprudence” (20 December 2015), Administrative Law Matters, blog, online: ALM <http://www.administrativelawmatters.com/blog/2015/12/20/the-signal-and-the-noise-in-the-supreme-court-of-canadas-administrative-law-jurisprudence/>.
59. Supra note 29.
60. Ibid at para 73.
61. Supra note 28.
62. Supra note 21 at para 6.
63. Dunsmuir, supra note 48 at para 59.
64. He initially raised this in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 SCR 654, at para 34. Now, see also the judgment of Moldaver J for the majority of the Court in McLean v British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 SCR 895, at para 25.
65. Atco Gas, supra note 28 at para 27. (See for an energy case in which the exceptional nature of the category of true jurisdictional question was endorsed: Shin Han F&P Inc v Canada-Nova Scotia Offshore Petroleum Board, 2014 NSCA 108, 353 NSR (2d) 335 at paras 52-57 (application for leave to appeal dismissed on July 2, 2015: [2015] SCCA No 51 (QL).
66. Ibid.
67. Ibid.
68. Ibid at para 28 (as specifically recognized in Alberta Teachers’ Association, supra note 63). What is required to rebut the presumption remains a matter of some uncertainty. Thus, in Edmonton East (Capilano) Shopping Centres Ltd v Edmonton (City), 2015 ABCA 85, 12 Alta. LR (6^th) 236, a panel of the Alberta Court of Appeal deployed as one of the factors justifying correctness review of determinations of questions of law by assessment review boards, the fact that an appeal from a board’s decision required leave of a judge of the Alberta Court of Queen’s Bench. Leave to appeal to the Supreme Court of Canada was granted on September 24, 2015: [2015] SCCA No 161 (QL). Given that leave is required to appeal from the Utilities Commission to the Alberta Court of Appeal, does that generate an argument for possible correctness review of determinations of questions of law by the Commission? That seems unlikely, an assessment that has been give considerable weight by the more recent judgment of the Supreme Court of Canada in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 at paras 42-44, in which the Court rejected a similar argument in respect of the leave to appeal provisions in the Immigration and Refugee Protection Act, SC 2001, c 27.See for further elaboration the important article: George Vegh, “Is there a Doctrine of Canadian Public Utility Law?” (2007), 86 Can Bar Rev 319.
69. ATCO Gas and Pipelines Ltd v Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 SCR 140 [Stores Block].
70. Shaw v Alberta Utilities Commission, 2012 ABCA 378, 539 AR 315.
71. ATCO Gas and Pipelines Ltd v Alberta Utilities Commission, 2009 ABCA 246, 464 AR 275 [ATCO 2009].
72. The Court upheld as correct the Commission’s determination that the government declaration of criticality precluded the Commission from assessing the project on the basis of its general public interest authority.
73. Atco Gas, supra note 28 at para 27.
74. Dunsmuir, supra note 48 at para 60.
75. Supra note 47.
76. Ibid at paras 87-103.
77. Ibid at paras 92-93. Interestingly, Paperny JA took a rather different attitude to the Supreme Court’s correctness assessment of the substantive issues in Stores Block. In sustaining the Commission’s decision in which the Commission had interpreted and applied the substantive legal principles and rules identified on a correctness basis in Stores Block, Paperny JA stated (at para 76): “The Commission, and this Court, are bound by Stores Block and the subsequent decisions from this Court. Only legislative amendment, reconsideration, or a reversal of Stores Block can change that.” For comment on this issue in the light of the substantive assessments in both Ontario Power Generation and ATCO (2012), see Nigel Bankes, “The Regulatory Treatment of Stranded Assets in Alberta” (15 October 2015), ABlawg.ca, online: ABlawg < http://ablawg.ca/2015/10/15/the-regulatory-treatment-of-stranded-assets-in-alberta/>. I do not engage in this review with that question. Suffice it to say that on the substantive issues in Stores Block, Professor Bankes suggests that it may now be authority only on the particular issue determined in that case, the entitlement of the regulator to deal with the distribution of surpluses generated by the disposition of assets no longer part of the rate base.
78. ATCO Gas and Pipelines Ltd v Alberta (Utilities Commission), 2014 ABCA 397, 588 AR 134, at paras. 58-68 and particularly at para 66. The other two members of the panel, Côté and Martin JJA, did not deal with the standard of review issue.
79. Fortis Alberta, supra note 47 at para 92.
80. Supra note 57. See also Paul Daly, “Uncovering Disguised Correctness Review? Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47 (28 October 2015)”, Administrative Law Matters, blog, online: ALM <http://www.administrativelawmatters.com/blog/2015/10/28/uncovering-disguised-correctness-review-wilson-v-british-columbia-superintendent-of-motor-vehicles-2015-scc-47/>.
81. See eg Moin Yahya, “ATCO Pensions, Ontario Hydro, Prudency, and Reasonableness: a Case Comment on Ontario (Energy Board) v Ontario Power Generation Inc. & ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission)” (2015) 3 ERQ 49 ; Zineida Rita, “ ATCO Gas and Pipelines Ltd. v. Alberta: Why You Are Paying More on Your Electricity Bill” (18 October 2015), The Court.ca, online: The Court <http://www.thecourt.ca/2015/10/18/atco-gas-and-pipelines-ltd-v-alberta-why-you-are-paying-more-on-your-electricity-bill/>; and Nigel Bankes, “Methodological Pluralism: Canadian Utility Law Does Not Prescribe any Particular Prudent Expenditure or Prudent Investment that a Regulator Must Apply” (9 October 2015), ABlawg.ca, online: Ablawg <http://ablawg.ca/2015/10/09/6476/>.
82. Fortis Alberta, supra note 47.
83. Ibid at para 46.
84. Ibid at para 47. In her dissent in Ontario Power Generation, supra note 29, at paras 137-38, Abella J, also applying a reasonableness standard, branded as unreasonable the Board’s failure to apply the “well-established set of principles” of prudence review that both it and the Ontario Court of Appeal in Enbridge Gas Distribution Inc v Ontario Energy Board (2006), 201 OAC 4 (CA) had previously endorsed.
85. Cape Breton Explorations Ltd v Nova Scotia (Attorney General), 2015 NSCA 35, 357 NSR (2d) 376 [Cape Breton Explorations]. For a similar analysis, see William Lahey, “Cape Breton Explorations Ltd v Nova Scotia (Attorney General)” (2015), 3 ERQ 65, at pp 68-69.
86. Cape Breton, supra note 85 at para 40.
87. Ibid at para 150.
88. Ibid at para 66.
89. Ibid at para 119.
90. It is, however, worthy of note that the decision of the Court of Appeal was reversed legislatively. Section 29 of the Electricity Plan Implementation Act, SNS 2015, c 31, which received Royal Assent on December 18, 2015, added section 35B to the Public Utilities Act, RSNS 1989, c 380 and thereby restored the relevant item to Nova Scotia Power Inc’s rate base.
91. Indeed, in the Federal Court of Appeal, Stratas JA, in cases such as Canada (Minister of Transport, Infrastructure and Communities) v Farwaha, 2014 FCA 56, 455 NR 157 and Canada (Attorney General) v Boogaard, 2015 FCA 150, has advanced this project in useful and sophisticated ways.
92. 2016 had barely commenced when on January 13, Koenigsberg J of the British Columbia Supreme Court delivered a judgment with potentially significant regulatory dimensions, including the scope of the duty to consult. In Coastal First Nations v British Columbia (Environment), 2016 BCSC 34, at paras 184-213, she held that the British Columbia government had failed to meet its consultation obligations when it ceded by agreement authority to the National Energy Board over the Northern Gateway Pipeline approval process and in failing to respond to requests to terminate that agreement. These actions, which involved forgoing its own authority under the provincial Environmental Protection Act, SBC 2002, c 43, even if otherwise permissible, triggered a duty to consult aboriginal peoples. I will leave more detailed comment on this decision and its ramifications for next year’s review. See also for a regulator determination that there had been inadequate consultation: Chief Gale and the Fort Nelson First Nation v Assistant Regional Water Manager & Nexen Inc. et al., Decision No. 2012-WAT-013(c), British Columbia Environmental Assessment Board, September 13, 2015, discussed by Nigel Bankes, “Provincial Environmental Appeal Boards: A Forum of Choice for Environmental (and First Nation) Plaintiffs?” (11 September 2015), ABlawg.ca, online: Ablawg <http://ablawg.ca/2015/09/11/provincial-environmental-appeal-boards-a-forum-of-choice-for-environmental-and-first-nation-plaintiffs/>; and Erica C. Miller, “BC’s Environmental Appeal Board Overturns Nexen Water Licence on Appeal by Fort Nelson First Nation” (2015), 3:4 ERQ 41.
93. Prophet River First Nation v Canada (Attorney General), 2015 FC 1030.
94. Prophet River First Nation v British Columbia (Minister of Environment), 2015 BCSC 1682.
95. Ktunaxa Nation v British Columbia (Minister of Forests Lands and Natural Resource Operations), 2015 BCCA 352, at paras 76-93. This judgment is also noteworthy by reason of the First Nation raising an argument that the Ministerial decision to approve a resort violated its right to freedom of religion under section 2(a) of the Canadian Charter of Rights and Freedoms. The Court of Appeal also rejected this argument. It is, however, now the subject of an application for leave to appeal to the Supreme Court of Canada filed on October 2, 2015: [2015] BCCA No 417 (QL).
96. Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 SCR 650.
97. Ibid at paras 60-63.
98. Ibid at para 60.
99. Hamlet of Clyde River v TGS-NOPEC Geophysical Company ASA (TGS), 2015 FCA 179 [Hamlet River], application for leave to appeal to the Supreme Court of Canada filed on October 16, 2015: [2015] SCCA No 430 (QL).
100. Ibid at para 65.
101. Nigel Bankes, “The Federal Crown Fulfilled its Consultation Obligations when the National Energy Board Approved a Seismic Program in Baffin Bay” (3 September 2015), ABlawg.ca, online: ABlawg<http://ablawg.ca/2015/09/03/the-federal-crown-fulfilled-its-consultation-obligations-when-the-national-energy-board-approved-a-seismic-program-in-baffin-bay/>.
102. Hamlet River, supra note 99 at para 44, citing Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 SCR 550 at para 40 and Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 SCR 103, at para 30. See also the judgment of Barnes J in Brokenhead Ojibway Nation v Canada (Attorney General), 2009 FC 484, 345 FTR 119 at para 25.
103. Hamlet of Clyde River, supra note 99 at para 46.
104. Haida Nation v British Columbia (Project Assessment Director), 2004 SCC 73, [2004] 3 SCR 511 [Haida] at para 53.
105. See Standing Buffalo Dakota First Nation v Enbridge Pipelines Inc, 2009 FCA 308, [2010] 4 FCR 500 and Chippewas of the Thames First Nation v Enbridge Pipelines Inc, 2015 FCA 222 [Chippewas], at paras 61-63. (On January 11, 2016, the Toronto Star reported that the First Nation was seeking leave to appeal the latter decision to the Supreme Court of Canada: “Ontario First Nation takes Line 9 pipeline fight to Supreme Court”. The application for leave to appeal was filed on December 18, 2015: [2015] SCCA No 524 (QL).
106. Ibid at paras 61-63.
107. Ibid.
108. Ibid at paras 50-56.
109. Ibid at paras 21-56.
110. On the issue of whether the NEB was empowered to itself engage in consultation in fulfilment of the Crown’s Haida responsibilities, Rennie JA, ibid at para 120, agreed with the majority.
111. Ibid at para 32.
112. Supra note 104 at para 51.
113. Supra note 96 at para 63.
114. Chippewas, supra note 105 at para 125.
115. Tsilhqot’in Nation v British Columbia, 2014 SCC 44, [2014] 2 SCR 257.
116. For another dimension of the issues of consultation that arose out of the Northern Gateway process, see Coastal First Nations v British Columbia (Environment), supra note 92. See on this case, on line: National Observer <http://www.nationalobserver.com/2016/01/13/news/breaking-bc-supreme-court-rules-favour-coastal-first-nations-battle-over-enbridge>.