Overview

2016 (and the first month of 2017) have provided many important instances in both the courts and before energy regulators of the application and refinement of the principles of administrative law in the context of energy regulation. Given space limitations, in this survey, as with last year’s review, I will confine myself to a consideration of the more important aspects of that case law rather than evaluating the possible impact on energy law and regulation of judicial review decisions involving other statutory regimes.¹

More specifically, I will again assess some of the more important developments in energy settings of the role of regulatory agencies in the constitutional duty to consult and, where appropriate, accommodate Indigenous Peoples. This is an issue that will simply not go away and, while many of the cases decided in 2016 are very fact specific as to the detailed requirements of the duty to consult,² there are still a number of significant issues of principle that remain to be settled prominent among which are the powers and responsibilities of regulatory agencies.

2016 also witnessed the first sustained consideration of the conduct of judicial review in the context of projects in which the regulator (the National Energy Board or a Joint Review Panel) reported on applications for a decision by the Governor in Council, the product of the 2012 legislation reconfiguring the decision-making process for National Energy Board Act pipeline applications and designated projects under the Canadian Environmental Protection Act.³ Gitxaala Nation v Canada⁴ attracted considerable public attention because the applicants succeeded in derailing a major pipeline initiative on the basis of the failure of the Governor in Council to consult adequately with affected Indigenous Peoples. However, the Federal Court of Appeal also made some important rulings on the process and the scope for review of regulatory evaluation of the merits of projects subject to approval under the regime created by the 2012 legislation.

I will also consider in the context of Gitxaala Nation and the recusal of the panel assigned to conduct the National Energy Board’s Energy East hearings, the application of the principles requiring impartiality or a lack of bias in the conduct of energy regulatory hearings. Next, I move to a consideration of an issue that has arisen in the context of appeals with leave on questions of law and jurisdiction in energy regulatory statutes in Alberta: the extent to which the decision to grant or deny leave hinges, if at all, on the applicable standard of review – reasonableness or correctness. Finally, taking a liberty with my mandate, I will provide analysis of the Supreme Court of Canada’s first judgment in 2017, Ernst v Alberta (Energy Regulator),⁵ in which the Court upheld the application of an immunity provision in the Regulator’s statute to preclude an action for damages for violation of the plaintiff’s freedom of expression as guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms.

The Duty to Consult Indigenous Peoples – The Role of Regulatory Agencies

a. Introduction

During 2016, the role of regulatory agencies⁶ in fulfilling the Crown’s duty to consult Canada’s Indigenous Peoples was once again a prominent aspect of litigation across a broad swath of the energy regulation process. Indeed, there is much more to come in 2017, including the various challenges to the Kinder Morgan Trans Mountain Pipeline approval.⁷

b. Chippewas of the Thames First Nation and Hamlet of Clyde River⁸

At present, the Supreme Court of Canada has under reserve two appeals from judgments of the Federal Court of Appeal argued on November 30, 2016: Chippewas of the Thames First Nation v Enbridge Pipelines Inc.⁹ and Hamlet of Clyde River v Petroleum Geo-Services Inc.¹⁰ I discussed the Federal Court of Appeal judgments in these two cases in last year’s review.¹¹ Both concern the role of the National Energy Board in the consultation process but in different statutory contexts. In the former, the setting was the Line 9 reversal decision and, in the latter, it was the grant of an application for the conduct of an offshore seismic survey. In Chippewas of the Thames, the Federal Court of Appeal determined, in a matter where the Crown was not before it as a party, that the National Energy Board did not have authority to either assess whether the Crown had discharged its obligation to consult (a majority) or to itself fulfill the obligations of the Crown (unanimous).¹² In Hamlet of Clyde River, a unanimous and differently constituted panel of the Court determined that the Board had implicit authority to fulfill the Crown’s obligation to consult and that, in any event, the Crown was entitled to rely upon the Board’s proceedings as fulfilling at least in part its own obligations to consult. What these and other judgments point to is the continuing uncertainty (even after Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council¹³) as to the role of regulatory agencies in the consultation process. It is to be hoped that the judgments of the Supreme Court in these two cases will bring clarity to this highly contested area of regulatory authority both in terms of the underlying principles that should inform adjudication of these questions and, as part of this, what constitutes sufficient legislative signposting of the authority to engage in either or both of these roles.

c. Alberta Utilities Commission

In the meantime, in a ruling made during the Fort McMurray West 500-kV Transmission Project Proceeding,¹⁴ the Alberta Utilities Commission, in effect following¹⁵ the majority judgment in Chippewas of the Thames,¹⁶ ruled that it does not have authority to evaluate the adequacy of Crown consultation in a proceeding in which the Crown is not before it as either an applicant or participant. Despite its authority to determine constitutional questions provided for under the Administrative Procedures and Jurisdiction Act¹⁷ by way of Schedule 1 of the Designation of Constitutional Decision Makers Regulation,¹⁸ that authority was triggered only in situations where a constitutional question was properly before the Commission. At least in cases where the Crown was not a party to the application, it could not be said that the Court was seised of the constitutional question:

[The Commission] has no powers to direct the Crown to carry out Crown consultation or to make a decision on the adequacy of Crown consultation where the Crown is not before the Commission.¹⁹

In so holding, the Commission rejected the argument of the First Nations and Métis interveners that it was perfectly proper for the Commission to assess the adequacy of Crown consultation as part of determining whether the project that was before the Commission for approval was in the public interest. The Commission held that even though this would not have involved any order against the Crown, it would have amounted to illegitimately doing indirectly what it could not do directly.²⁰

The Commission then asserted that it would in any event have been premature to rule on the Crown’s efforts at consultation before the application was heard on the merits. It justified this conclusion on the basis that the hearings themselves might meet at least in part the Crown’s obligation to consult. In so doing, it pointed to the Alberta Court of Appeal’s endorsement of the proposition that the Crown can rely on the opportunities that exist for consultation “that are available within existing regulatory and environmental processes.”²¹

To the extent that these are all matters that are relevant to the Supreme Court’s determination of the two current appeals, it is likely that indirectly at least the judgment of the Court will also address the status of the Alberta Utilities Commission on the assessment of the Crown’s consultation efforts.

d. The Role of Proponents in Consultation

Moreover, it is also to be hoped that the Court will clarify not just the place of regulators in the consultation and assessment of the adequacy of consultation processes but also the role of proponents and its limits in the fulfillment of the Crown’s obligations and, in particular, at the direction of regulators.

In delivering the judgment of the Supreme Court of Canada in the 2004 foundational decision of Haida Nation v British Columbia (Minister of Forests),²² McLachlin CJ stated that

… the Crown may delegate procedural aspects of consultation to industry proponents seeking a particular development; this is not infrequently done in environmental assessments.²³

And, of course, the reality now is that directions for proponent “consultation” with affected Indigenous Peoples have become a routine and important aspect of many energy regulatory approval processes. However, there have always been lingering questions as to the extent to which the Crown can simply treat any such consultations as fulfilling its own obligations. After all, there is something quite perverse in assigning to proponents who are highly likely to be adverse in interest to affected Indigenous Peoples any significant role in the fulfilment of the Crown’s constitutional duty. Making proponents pay for consultation is one thing but relying even on their evidence and argument gathering is quite another.

Indeed, it is significant that in two sentences in the same paragraph from which the quote above is taken, McLachlin CJ makes it clear that, irrespective of any delegation of a role to a proponent, the responsibility remains that of the Crown. Before the quoted sentence, she states that the “Crown alone remains legally responsible for the consequences of its actions”²⁴ and then immediately after:

However, the ultimate legal responsibility for consultation and accommodation rests with the Crown. The honour of the Crown cannot be delegated.²⁵

Nonetheless, very early in 2017, there was an announcement of a seemingly new cause of action by affected First Nations against TransCanada: an action in damages for failing to consult “when conducting maintenance operations such as integrity digs on pre-existing lines”, activities which allegedly violated the First Nations’ Treaty Rights.²⁶ While moving from proponents as delegates of the Crown in conducting consultations to proponents as defendants in an action for damages for failing to engage in consultation seems a stretch to say the least, what the very commencement of this action points to is the critical need for greater clarity and legal definition of the role of not only regulatory bodies but also proponents in the consultation process.  

e. The Northern Gateway Pipeline Application²⁷

The most publicly visible judgment on the duty to consult during 2016 was undoubtedly that of the Federal Court of Appeal in Gitxaala Nation v Canada.²⁸ There, by a 2-1 majority, Dawson and Stratas JJA in a joint judgment held that the Governor in Council had failed to consult adequately affected First Nations when considering the report of the Northern Gateway Project Joint Review Panel. That duty to consult was triggered not only by the central role assigned to the Governor in Council in 2012 with respect to the decision whether or not to issue certificates for the construction of pipelines but also the Government’s commitment to consultation throughout what were classified as the five phases of the approval process. Under Phase IV, the promise was of “Crown consultation carried out on the report of the JRP prior to consideration of the response by Governor in Council.”²⁹

Keith Bergner has already provided an insightful and detailed comment on this case in the pages of this Journal³⁰ and I will not therefore engage fully with the many aspects of the duty to consult that arose in that litigation and, in particular, the majority’s extensive exploration of what as a practical matter “deep consultation” required on the part of the Governor in Council.³¹ Rather, I will confine myself to emphasising one particular aspect of the judgment: the relationship between the role played by the Joint Review Panel through the public hearing process and that of the Governor in Council in its consideration of the Panel’s report.

One of the affected First Nations made the argument that the Crown had in fact over-delegated its consultation responsibilities to the Joint Review Panel. Part of this argument focussed on the nature of the Joint Review Panel’s process. The Haida asserted that it was a “quasi-judicial process in which the Crown and Haida had no direct engagement.”³² In rejecting the over-delegation argument, Dawson and Stratas JJA relied³³ on the Supreme Court in Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council ³⁴ where the Court affirmed that the Crown could rely on participation by affected First Nations in a forum such as this as fulfilling at least part of its constitutional duty to consult. In this context, the Joint Review Panel process was one in which aboriginal groups could both learn about the nature of the project and its potential impact as well as providing an appropriate forum in which “to voice their concerns”.³⁵ Further, the Joint Review panel had both the mandate and the expertise required to “address mitigation, avoidance and environmental issues relating to the Project.”³⁶ In short, the Crown was justified in relying on the Joint Review Panel processes as a component of “the totality of measures”³⁷ that were necessary to fulfill the duty to consult.

However, while there had not been over-delegation to the regulator, the Court also made it clear that the “totality of measures” under the 2012 legislative recalibration of the pipeline approval process were not exhausted by the extent of consultation provided by the Joint Review Panel. This was evidenced by both the existence of Phase IV of the terms of engagement for consultation on this particular project and the centrality of the Governor in Council in the whole decision-making process. In effect, the Governor in Council had accepted the terms of Phase IV and the responsibilities for consultation imposed on it when considering the report of the Joint Review Panel. However, perhaps even more importantly, the constitutional obligation of “deep consultation” (that the Crown conceded was necessary in this case), irrespective of the terms of Phase IV, carried with it extensive consultation requirements at this stage of the legislated process. This is underscored by the extent to which the Governor in Council’s mandate extended to the evaluation of various considerations that were not germane in the Joint Review Panel process.

In his case comment, Keith Bergner laments the extent to which the new legislative regime as interpreted by the majority “diminishes the role of the regulator and the importance of the regulatory hearing process”³⁸ presumably both generally and in the fulfilment of the duty to consult. If the Court’s judgment prevails on this point, it also seems likely that a return to a regime in which the regulator has more responsibility for the procedural components of the constitutional duty to consult cannot lawfully be accomplished simply by executive recalibration of the assigned responsibilities under the five Phase process adopted for the Northern Gateway application. For the Governor in Council to transfer its own responsibilities as recognized in this proceeding by the terms of Phase IV may very well require legislative amendment. To proceed otherwise would indeed provide a basis for an over-delegation argument. In the meantime, in the words of Keith Bergner, as long as the Joint Review Panel report on such applications is characterized, as it was by the Court, as a mere “guidance document”,³⁹ at the Governor in Council stage

… the consultation processes put in place will have to be robust enough to adequately underpin and inform the Governor in Council decision.⁴⁰

Moreover, despite the majority’s sense that this will not involve extensive delays and the need for significant extensions of the now legislated time limits to enable the fulfillment of the constitutional obligations and the demands of the Phase IV process, there is among Bergner and other commentators a sense that the enhancements will have to be significant and almost of necessity lengthy in the fulfillment.

Given that there will be no appeal⁴¹ and the new Government’s subsequent announcement that it would not be approving the Northern Gateway Project, the Court of Appeal’s judgment will, at least for now, provide the legal framework for the operation within the pipeline approval process of the constitutional duty to consult. Moreover, without the government having to respond to the remission of the matter for redetermination in accordance with the principles of consultation laid down by the Court, there will be no clear sense of what represents the detail of a satisfactory meeting of those principles.

What is also clear is that the majority’s delineation of what the duty to consult requires is situated within the operation of the new 2012 pipeline approval regime. For other regulatory decision-making under the National Energy Board Act and the Canadian Environmental Assessment Act the role of the regulators in the fulfilment of the Crown’s duty to consult may well be more extensive. It is also worthy of note that in early 2017, there has already been an example of a panel of the Federal Court of Appeal accepting a limited role for the Governor in Council in the exercise of another authority under the Canadian Environmental Assessment Act. Prophet River First Nation v Canada (Attorney General)⁴² involved the determination of a Joint Review Panel that the construction of a hydroelectric dam (Site C) would be “likely to cause … significant adverse environmental effects.”⁴³ Under the Act, on the making of such a determination, the Panel was obliged to refer the matter to the Governor in Council for a further determination of whether those effects were justified in the circumstances”.⁴⁴ While it was accepted that, in so determining, the Governor in Council had a duty to consult potentially affected First Nations, the critical question on the application for judicial review was whether the Governor in Council was obliged to go further and respond to arguments that the construction of the dam would actually violate their treaty rights.

In sustaining the judgment of Manson J of the Federal Court,⁴⁵ Boivin JA, delivering the judgment of the Federal Court of Appeal, held that the Governor in Council had no such obligation. In so holding, it seems as though this panel of the Court of Appeal had a rather different sense of the institutional capacities of the Governor in Council than that envisaged by Dawson and Stratas JJA in Gitxaala Nation. The Governor in Council lacked the “necessary hallmarks associated with adjudicative bodies: public hearings, ability to summon witnesses and compel production of documents and the receipt of submissions by interested parties.”⁴⁶ It was engaged in a polycentric task balancing a range of interests from the perspective of not just facts but policy.⁴⁷ It lacked the expertise or equipment “to determine contested questions of law and complex factual issues.”⁴⁸ Accordingly, the determination of whether the project would violate First Nation treaty rights was not within the mandate of the Governor in Council.

Given that the agreement establishing this federal/provincial Joint Review Panel also explicitly stated that the Panel could not make any conclusions or recommendations on violation of treaty rights,⁴⁹ the determination of such questions was not part of the core regulatory process and had to await the commencement of an action by the affected First Nations. Obviously, in this domain, context is everything though it does not help when the underpinnings of the analysis take such apparently divergent views on the capacities of the Governor in Council both legally and practically.

Gitxaala Nation v Canada – The Administrative Law Dimensions

a. Introduction

As well as being a leading precedent on the constitutional duty to consult Indigenous Peoples, Gitxaala Nation v Canada⁵⁰ has significant administrative law dimensions. In particular, the majority judgment of Dawson and Stratas JJA (with Ryer JA concurring to this extent) provides a valuable road map for judicial review applications arising out of the pipelines and designated projects approval process as significantly revised by the Jobs, Growth and Long-Term Prosperity Act, 2012. In short, by virtue of that legislation, the Governor in Council or effectively Cabinet assumed decision-making responsibility for approval of such facilities, a process that is preceded by the presentation of a report (including recommendations) from the National Energy Board or a Joint Review Panel convened under the National Energy Board Act and the Canadian Environmental Assessment Act. Upon approval (as in this instance), the Governor in Council issues a directive to the Board to issue a certificate for the project. Thereafter, there is a further or final phase, not in issue in Gitxaala Nation, involving various implementation permits and authorizations.

b. How to Proceed

Gixtaala Nation was a consolidated proceeding consisting of applications for judicial review and statutory appeals with respect to various stages of the pipeline approval decision-making process – the report of the Joint Review Panel, the Order in Council requiring the National Energy Board to issue certificates of public convenience and necessity, and the certificates issued by the National Energy Board in response to that directive.

However, notwithstanding the consolidation of the proceedings, Dawson and Stratas JJA commenced the analytical section of their judgment with a consideration of which among the three types of challenge was the appropriate forum for reviewing the substance of the pipeline approval process and the fulfilment of the Crown’s responsibility to consult and, where appropriate, accommodate. Here, the Court was clear. By virtue of the 2012 amendments, amendments which Dawson and Stratas JJA described as a “unique”⁵¹ and “complete code”,⁵² “the only meaningful decision-maker is the Governor in Council.”⁵³ It was for the Governor in Council and the Governor in Council alone to make a decision following an assessment of the reports and whatever other forms of information were gathered following receipt of the required reports. As a consequence, Dawson and Stratas JJA held that the only proper target of an application for judicial review was the decision of the Governor in Council. It did not lie against the Joint Review Board as that report did not make any decisions “about legal and practical interests.”⁵⁴ Moreover, whether the Joint Review Panel report was deficient in any way was solely for the Governor in Council, not the Court.⁵⁵

As for the subsequent role of the National Energy Board in issuing a certificate of public convenience and necessity, this was a purely formal step. The Board had to obey the directive of the Governor in Council.⁵⁶ Moreover, if the Court set aside the decision of the Governor in Council, this also undercut legally any certificate issued by the Board in obedience to the directive flowing from the now invalidated decision.⁵⁷

This specification of the Governor in Council decision as the only appropriate target of a judicial review application is certainly expressed in definitive or unqualified terms. It also takes strength from the normal posture of the Canadian courts that, as a matter of judicial discretion, applications for judicial review should not be countenanced with respect to preliminary stages of a process at least where consideration of the subject matter of the challenge is within the mandate of a later or the ultimate stage of a multi-stage process.⁵⁸ Thus, in terms of this judgment, whether there was any “deficiency” in the report was within at least the initial authority of the Governor in Council and any such challenges should be raised there and not by way of statutory appeal from or judicial review of an earlier stage of the process and most particularly the report of the Joint Review Panel.

What does, however, remain unclear from this is whether this amounts to a complete ban on any prior challenges of the processes culminating in a report to the Governor in Council. Putting it another way, what is the reach of the term “deficiency” for the purposes of determining whether any challenge must first be taken to the Governor in Council before engaging the Federal Court? Does the code argument and the sense of the Governor in Council as the first line venue for challenges to what has gone before extend mandatorily (as opposed to on the basis of discretion) to all manner of interlocutory rulings made in the context of the Joint Review Board process such as responses to allegations of a reasonable apprehension of bias or applications for intervenor status?

Given the stringent timelines imposed on the process by the 2012 legislative amendments, it may well be that the judgment’s declaration of the exclusivity of the Governor in Council as the initial point for challenging deficiencies in the process below should be read as comprehensively applying to all such challenges. Nevertheless, it would probably be unwise to treat the exclusivity principle as not subject to any exceptions.

c. Standing to Seek Judicial Review

In 2014, in Forest Ethics Advocacy Association v Canada (National Energy Board),⁵⁹ Stratas JA had ruled that the Association did not have either direct or public interest standing to bring an application for judicial review challenging various interlocutory rulings made by the National Energy Board in the context of Enbridge’s Line 9 reversal application. These rulings involved the scope of that hearing, the justificatory requirements imposed on those who wished to participate, and the rejection of a particular individual’s entitlement to participate as an intervenor as opposed to merely being allowed to provide comments on the application. In Gitxaala Nation, Northern Gateway relied on the Stratas holding for the argument that five groups did not have standing to seek judicial review of various elements of the overall decision-making process.⁶⁰

The groups in question (including the Forest Ethics Advocacy Association) were all special interest organizations which claimed expertise and engagement with issues that were relevant to the determination as to whether the project should be allowed to proceed, and, in the case of Unifor, represented workers whose interests would be affected by the approval of the project. All five groups had participated extensively as recognized interveners in the Joint Review Panel process.

In considering Northern Gateway’s challenge to their participation, Dawson and Stratas JJA applied the following test for direct interest standing: Was the decision one that “affects [their] legal rights, imposes legal obligations upon [them], or prejudicially affects [them] in some way”?⁶¹ In response, they determined that all of these groups had sufficient “legal and practical interests”⁶² to justify direct standing.

Long gone is the previously parsimonious approach that the courts took to public interest groups asserting standing as of right and on behalf of their members to challenge administrative action.⁶³ Indeed, to the extent that the Court emphasised their participation in the Joint Review Panel process, there may almost be a presumption of direct standing to seek judicial review once a regulatory agency provides participatory opportunities and those opportunities are taken up. The importance of participation with the blessing of the agency is also manifest in the contrast that the Court draws between the situation in this case and that which confronted Stratas JA sitting alone in Forest Ethics.⁶⁴ There, Forest Ethics had not even attempted to participate in the Line 9 reversal hearings let alone make any representations to the National Energy Board on the subject matters of the three specific interlocutory rulings. What this leaves open for future consideration, however, is whether a group denied standing or intervener status by an agency might still subsequently be able to assert direct interest standing to seek judicial review at the end of the process.

d. Standard of Review

As discussed above, Dawson and Stratas JJA held that the decision of the Governor in Council was at least generally the relevant or exclusive target for any attack on the outcome of the multi-stage pipeline approval process called for under the 2012 amended legislation. Within that framework, Dawson and Stratas JJA went on to rule that “the amorphous nature and breadth of the discretion that the Governor in Council must exercise”⁶⁵ justified not only a deferential reasonableness standard of review but also one which afforded the Governor in Council the “widest margin of appreciation”⁶⁶ over the multifarious issues of “policy and public interest”⁶⁷ that came within the statutory mandate. To be sure, they did not go so far as to hold that the exercise of discretion was non-justiciable. However, by classifying the scope of the potentially relevant considerations as “more properly within the realm of the executive”⁶⁸ and by emphasising the practical reality that a legislative vesting of power of this kind in the Governor in Council “implicated”⁶⁹ the Cabinet, Dawson and Stratas JJA made it clear that the courts should be extremely reluctant to interfere in such a process in the name of unreasonableness.

The judgment does, however, confirm that this virtual immunity from judicial review for unreasonableness is not a universal feature of any decision-making by the Governor in Council but a characteristic of the very particular statutory mandate under which the Governor in Council was operating in this case. In this regard, Dawson and Stratas JJA instanced situations where the Governor in Council was engaged in the determination of questions of law.⁷⁰ There, the application of the reasonableness standard of review could be more intrusive. Similarly, they started out this portion of their judgment by discussing and distinguishing⁷¹ Council of the Innu of Ekuanitshit v Canada (Attorney General).⁷²

This too involved judicial review of the Governor in Council but under the 1992 version of the legislation. There, the role of the Governor in Council was the approval of a government response to a report from a Joint Review Panel. The essence of the Governor in Council’s evaluative process was whether a decision “made” by others (the Joint Review Panel and three government departments) on an environmental assessment should be approved. Within that narrower legislative mandate and its particular focus on environmental matters, the decision taken by the Governor in Council was subject to a rather different set of questions than applied under the 2012 amendments. As the Federal Court of Appeal ruled in that case, it could ask whether the Governor in Council and the departments had adhered to the requirements of the legislation with intervention being appropriate only where the Governor in Council’s order was made without following the specified legislated process, “without regard for the purposes of the Act”, or had “no basis in fact.”⁷³

This standard of review analysis prompts two interrelated comments.

First, judgment in Gitxaala Nation was delivered on June 23, 2016. On July 14, the Supreme Court delivered its judgment in Wilson v Atomic Energy of Canada Ltd.⁷⁴ In delivering a separate concurring judgment, Cromwell J categorically rejected the variable “margin of appreciation” approach developed principally by Stratas JA as the appropriate way in which to calibrate reasonableness review across a very broad spectrum of statutory and prerogative decision making.⁷⁵ Abella J appeared to be similarly critical of the Stratas “margin of appreciation” approach which he had deployed in the Court of Appeal judgment⁷⁶ from which Wilson was an appeal. After referring to that aspect of the Stratas judgment below,⁷⁷ she went on to state:

But to attempt to calibrate reasonableness by applying a potentially indeterminate number of varying degrees of deference within it unduly complicates an area of law in need of greater simplicity.⁷⁸

It is noteworthy, however, that the other members of the majority did not engage in discussion of the appropriateness of the “margin of appreciation” approach.⁷⁹ Moreover, even Abella J in her judgment traded in the concept of reasonableness as a context-sensitive or -specific inquiry,⁸⁰ and broad and narrow ranges of acceptable answers or outcomes.⁸¹ For my part, I find it difficult to discern where for practical purposes the difference lies between this approach to reasonableness and one which describes the scope for intervention in terms of a variable “margin of appreciation”.

Secondly, I do remain puzzled as to why Dawson and Stratas JJA took the time to distinguish the regime before the Court in Innu of Ekuanitshit from that before the Court in Gitxaala Nation. Probably, the explanation lies in the applicant’s reliance on the earlier case as a justification for more intensive review in the name of reasonableness than the Gitxaala Nation Court was willing to countenance. However, it might also be that the Court was asserting that the specific examples of grounds of review to which the Court referred in Innu of Ekuanitshit had no application to the present statutory regime: failure to follow the prescribed legislative process, deciding without regard to the purposes of the Act, or no basis in fact for the decision.

Indeed, this possibility is given credence by the Court’s reference to the fact that many of the First Nations were arguing that the processes prescribed under the 2012 amendments to the Canadian Environmental Assessment Act were not followed,⁸² an argument that Dawson and Stratas JJA never did seem to address directly.⁸³ Why that argument could have no traction as matter of law within the reasonableness standard of review in Gitxaala Nation, I do not understand. Indeed, it is particularly troubling given the Court’s specification of the Governor in Council’s decision as at least the primary locus for any judicial review application in relation to this decision-making process. In the making of such an application for judicial review, I would have thought that it would be perfectly proper to assert that legislatively designated processes had not been followed with the final decision undermined if that was established to the satisfaction of the Court.⁸⁴ Indeed, the same argument can be applied to assertions of failure to adhere to the purposes of the Act and lack of any support for the decision on the facts (though, given the breadth of the relevant considerations and facts under this legislative scheme, I can certainly see how this would be a very rare possibility).

e. Application of the Reasonableness Standard of Review to the Merits of the Governor in Council’s Decision

Given the extent of the margin of appreciation to which the Court held the Governor in Council was entitled, there was no surprise, leaving the issue of First Nation consultation aside, in the Court’s holding that there was no basis for intervention in the name of unreasonableness. Indeed, the merits of the unreasonableness argument are dealt with in one short paragraph:

The Governor in Council was entitled to assess the sufficiency of the information and recommendations that it had received, balance all the considerations – economic, cultural, environmental and otherwise – and come to the conclusion that it did. To rule otherwise would be to second-     guess the Governor in Council’s appreciation of the facts, its choice of policy, its access to scientific expertise and its evaluation and weighing of competing public interest considerations, matters very much outside of the ken of the courts.⁸⁵ 

As suggested above, while this does not go as far as amounting to a holding of non-justiciability, it comes close to it. Nonetheless, the Court’s ultimate ruling that the processes engaged in by the Governor in Council and its advisors violated the constitutional rights of First Nations does underscore the point that review is not completely excluded. It is also important to recall the “good faith” requirement as most recently articulated by Tremblay-Lamer J of the Federal Court in Turp v Minister of Foreign Affairs.⁸⁶ In dismissing the challenge to the Ministerial issuance of export permits for weaponry destined for Saudi Arabia, she emphasised the breadth of the statutory discretion reposed in the Minister of Foreign Affairs⁸⁷ and the illegitimacy of a reviewing court engaging in a reweighing of the various considerations animating the Minister’s decision-making process⁸⁸ but did reserve the possibility of a bad faith-based challenge and other administrative law grounds that might apply in that context.⁸⁹ Of course, establishing the bad faith of the Governor in Council as personified in Cabinet and the responsible Ministers is a massive evidential challenge in contexts such as this.⁹⁰

f. Bias

The Court of Appeal dealt with the issue of bias in the context of its consideration of whether the Crown failed in its duty to consult and, in particular, in the context of an allegation that the Crown had not consulted in good faith. It was said that the outcome of the process was pre-ordained with one of the indicators being statements made in 2011 by the then Minister of Natural Resources, a member of Cabinet, to the effect that the project was in the national interest and that steps needed be taken to ensure that the regulatory process was less duplicative and more expeditious.⁹¹

In rejecting this argument,⁹² Dawson and Stratas JJA referenced Supreme Court of Canada authority to the effect that the duty of impartiality was context sensitive⁹³ and that the demands imposed by that duty in the case of a policy-based decision by Cabinet were not as rigorous as was the case with judicial or quasi-judicial decision makers.⁹⁴ Rather,⁹⁵ the test to be applied to this form of decision maker was that developed by the Supreme Court in Old St. Boniface Residents Association Inc. v Winnipeg (City)⁹⁶ in the context of municipal council by-law making. Were the statements relied upon an “expression of a final opinion on the question in issue” or, in the terminology of Old St. Boniface, did they demonstrate that the “decision-maker’s mind was closed such that representations to the contrary would be futile”? On the facts presented, the Court was not about to reach this conclusion on the basis of comments by a single Minister made years before the actual decision by the Governor in Council.

There is no reason to take issue with any of this. However, it does merit the observation that even though the argument failed, the Court’s countenancing of the possibility of a challenge to Cabinet decision-making based on bias or a lack of impartiality underscores the fact that the judgment of Estey J in 1980 in Canada (Attorney General) v Inuit Tapirisat of Canada⁹⁷ can no longer be taken as authority for the absolute immunity of the Governor in Council from procedural unfairness challenges in the context of its engagement with the decisions or reports of regulatory agencies whether by way of appeals to Cabinet or a regime for the approval of reports or recommendations.

Bias, the National Energy Board and the Energy East Hearings

As Dawson and Stratas JJA made clear in Gitxaala Nation, the test for what constitutes a reasonable apprehension of bias varies depending on the nature of the decision-maker and the task in which the decision-maker is engaged. Indeed, the notion of a context-sensitive approach to an evaluation of whether there was disqualifying bias emerged initially in a judgment of the Supreme Court of Canada involving a utilities regulator, the Newfoundland Board of Commissioners of Public Utilities.

Newfoundland Telephone Co. v Newfoundland (Board of Commissioners of Public Utilities)⁹⁸ involved allegations of bias based on statements made by a consumer representative on a panel of the Board engaged in a hearing into the costs and accounts including executive salaries at the Newfoundland Telephone Co. In delivering the judgment of the Supreme Court of Canada, Cory J, as with Dawson and Stratas JJA in Gitxaala Nation, justified a more relaxed standard for members of regulatory agencies performing a policy making function and, in particular, where appointed as representative of an interested constituency or the regulated community. There was nothing necessarily wrong with the appointment of such “representatives” whether authorized specifically by statute (as in this case) or not. Indeed, it was quite appropriate for members of a hearing panel to make public statements indicating strong opinions on matters that would be in issue at the hearing prior to the actual hearing provided that that expression of opinion was not indicative of

… pre-judgment of the matter to such an extent that any representations to the contrary would be futile.⁹⁹

However, once the hearing commenced (and this is where the member crossed the line), circumspection was required – the closed mind test ceased to apply and the standard test for tribunals was triggered, that of a “reasonable apprehension of bias”.¹⁰⁰ Nonetheless, even within that standard test, it was still necessary to calibrate the issue of what facts were sufficient to disqualify to the actual task of the regulator with those involved in policy matters receiving more leeway than those performing a truly adjudicative function.¹⁰¹   

It is against this background that I want to analyse the decision of the three members of the National Energy Board’s panel hearing the Energy East and Eastern Mainline applications¹⁰² (as well as that¹⁰³ of the Board’s Chair and Vice-Chair) to recuse themselves from further participation in those hearings in response to a public interest group’s assertion of disqualifying bias. In making that decision, did the members of the panel and the Chair and Vice-Chair respond too readily to the demand for their recusal?

In short, that demand for recusal arose out of the involvement of two members of the hearing panel (along with the Chair of the Board and various staff members) in a January 2015 meeting with the former Premier of Quebec, Jean Charest. This meeting was characterized as part of the Board’s preparation for its National Engagement Tour in which the Board would be crossing the country with a view to “improving relationships with municipalities and Indigenous peoples [and] improving pipeline safety and environmental concerns.”¹⁰⁴ At that point, the Board was also engaged in setting up the hearing on the two projects and beginning to deal with applications for participatory status.

When word of the meeting with Jean Charest started surfacing in news media reports and among those groups opposed to the applications, the Board’s response was that the purpose of this and other meetings held during two days in Montreal in January 2015 was the gathering of Quebec perspectives on matters germane to the National Engagement Tour and did not involve any discussion of the two applications. However, it eventually was admitted that the Energy East project was discussed at the meeting with Jean Charest, at which point the Board apparently changed tack and described this as just one of a number of meetings with stakeholders (including those opposed to the project) as part of preparation for the upcoming hearings.¹⁰⁵

While standing alone, the meeting with Jean Charest may not have been problematic, the fact that the former Premier was a paid consultant for TransCanada Pipelines Ltd, one of the applicants on the two projects, added a critical dimension. Similarly, the Board’s apparent lack of transparency and shifting ground on the facts of what had happened muddied the waters and, with the commencement of the hearings, increased the stridency of the calls for the panel to recuse itself. The most spectacular manifestation of this concern with both the process and the issues at stake in the two applications was the panel’s abandonment because of disruption of the Montreal phase of the hearing.¹⁰⁶

At that point, the panel and the Chair of the Board acted on the matter of alleged bias and treated the communication from the public interest group as a formal motion requesting that the members of the panel recuse themselves, along with other associated actions.¹⁰⁷ However, even this course of action produced criticism and, in particular, that it was inappropriate for the panel itself to make this decision.¹⁰⁸ Nonetheless, the panel persisted (justifiably in my view¹⁰⁹) and considered written comments from those participating at the hearings.

The upshot of all of this was that on September 9, 2016, two rulings were issued: in the first, all three members of the panel recused themselves. Two did so on the basis of the perceptions created by their being part of the group that met with Jean Charest¹¹⁰ and the third on the basis of perceptions of taint resulting from his association in the hearings to that point with the other two members.¹¹¹ In addition, the Chair of the Board and the Vice-Chair, Mercier, who was also a member of the panel and both of whom had been at the meeting with Jean Charest, announced that they would not participate in any of their limited administrative duties with respect to the hearing, including the assignment of a new panel.¹¹² As part of this second ruling, it was also stated that the Board would be reassigning to other files staff members who had attended the meeting with Jean Charest.¹¹³

Among the questions raised by this whole matter is that foreshadowed by the scene setting discussion of the more relaxed standards to which members of regulatory agencies with significant policy making components are held. Did the members of the panel and the Chair and Vice-Chair recuse themselves too readily? Were the meetings with Jean Charest as well as with some of the participants in the upcoming hearings not the kind of pre-hearing engagement with the issues that Cory J was willing to countenance in the Newfoundland Telephone case? Or, were the recusals more the product of a political or strategic response to the volume of the protests about the continued participation of the panel than any genuine assessment of whether the law required recusal?

My sense is that, as a matter of law, the panel was correct in its decision to recuse itself as were the Chair and the Vice-Chair in relation to their administrative duties with respect to the hearings. There are two reasons for this. First, the Board contributed to the apprehensions that the process was biased by its seemingly shifting ground on both the facts and the justification for what had happened. Complete transparency from the moment that the concerns surfaced could perhaps have changed the outcome. Secondly, however, unlike Newfoundland Telephone, this was not a case of allegedly disqualifying perceptions of attitudinal bias.¹¹⁴ Indeed, unilateral meetings with parties and those with an interest in the subject matter of a hearing implicate not only the principles respecting bias but also another aspect of procedural fairness: the taking of evidence and submissions behind the backs of the other parties to or participants in the proceedings. Here too, under Canadian law, perceptions matter. As Dickson J (as he then was) said about ex parte meetings in Kane v Board of Governors of University of British Columbia:

We are not here concerned with proof of actual prejudice but rather with the likelihood of prejudice in the eyes of reasonable persons.¹¹⁵

In all of the circumstances of this case, the explanation that the Board and staff members who met with Jean Charest did not know that he was a paid consultant for TransCanada Pipelines was almost certainly not enough to assuage those reasonable persons.

What is to be learned from all of this? First, it should not be read as calling into question initiatives such as the National Energy Board’s National Engagement Tour. However, it should also be recognized that, when such Tours involve private meetings with affected constituencies or their representatives, there are dangerous shoals. One of those shoals is encountered when those with whom the Board is meeting privately are parties to or have a material interest in an upcoming Board hearing. It is at that point that other parties and interests, if they come to know about the meetings, begin to have perceptions of impropriety in the form of the improper insinuation of evidence and representations on the subject matter of the hearing. And, of course, as this recent imbroglio illustrated graphically, the response to this concern is not to try to ensure that the meetings remain secret. Rather, the concerns counsel against private meetings and that all such engagements take place on the public record and with full transparency at least when the meetings involve those with an interest in matters pending hearing before the Board. Finally, one of the other lessons for the Board in all of this is that it should be proactive in any extra-hearing engagements of this kind to ask those with whom they are meeting either privately or publicly whether they have any interests in any applications currently before the Board.

Indeed, as a footnote illustrating the costs that can be paid by crossing the line of what is acceptable is that the new Energy East panel has responded to further challenges and agreed to start the hearing process all over again with all decisions of the previous panel removed from the record.¹¹⁶ This means that, among other matters, the new hearing panel will be re-evaluating all applications for participatory status as well as the list of issues to be considered as part of the environmental assessments aspects of the hearing.

The Standard of Review and Applications for Leave to Appeal

In 2014, in FortisAlberta Inc. v Alberta (Utilities Commission),¹¹⁷ in the context of an application for leave to appeal on questions of law aspects of two decisions of the Commission, McDonald JA was confronted with an argument that the standard of review to be applied to the determinations in question was a relevant consideration. This argument was based on precedents in which earlier leave judges had teased out the standard Alberta Court of Appeal test as to whether the appeal raised a “serious, arguable point”.¹¹⁸ Among those factors was “whether the appeal is prima facie meritorious.”¹¹⁹ While acknowledging that there was authority¹²⁰ supporting the relevance of the applicable standard of review to that question, McDonald JA tantalizingly ruled in this case without any detailed reasons that

… the decision as to what is the appropriate standard of review is to be determined by the panel hearing the appeal and I will give it no consideration in coming to my ruling herein.¹²¹ 

Subsequently, however, McDonald JA, in at least three 2015-16 rulings on leave applications,¹²² toed the earlier line and deployed the application of the reasonableness standard to the questions of law raised by appellants as justification for rejection of applications for leave to appeal in particular on the basis that it is not prima facie meritorious. More particularly, he ruled in these cases by reference to the presumption that tribunals interpreting their home statute are entitled to the deferential reasonableness standard of review and the Dunsmuir test for reasonableness that the decision under attack falls

… within a range of possible acceptable outcomes that are defensible in respect of the facts and the law.¹²³

Four comments are in order:

1. In some of these cases, the issues raised by the appellants as questions of law seemed heavily suffused with facts and, as such, not, in any event, subject to an appeal on questions of law and jurisdiction, save to the extent that there was an extricable pure question of law.
2. The test applied (“demonstrat[ion] that there is a meritorious argument on the law”) appears to require that the appellant establish to the motion judge’s satisfaction that the argument will almost certainly succeed on appeal. On its face, this is more demanding or onerous than establishing a “serious, arguable case”.
3. Nonetheless, to the extent that the leave provision is aimed at weeding out appeals for a variety of reasons, there is no reason to exclude from consideration of the likelihood of success the test or standard that the appellant must meet to succeed on the appeal – that the outcome does not come within the range of possible, acceptable meanings.
4. To the extent to which McDonald JA’s 2014 holding in FortisAlberta is an outlier, he may well have changed his mind, or perhaps, more satisfactorily, it was not clear in that instance that the issues raised were reviewable on a reasonableness rather than a correctness basis. By reference to the latter explanation, where it is the correctness of the ruling that may be in issue rather than its reasonableness, there is no reason to weigh the applicable standard of review as counting against the appellant. It is a neutral factor.

Regulatory Liability for Violation of Charter Rights and Freedoms – Ernst v Alberta Energy Regulator¹²⁴

Canadian law limits dramatically the extent to which regulators are exposed to civil or extracontractuelle liability in the performance of their multifarious responsibilities. There are many juristic reasons for this, particularly with respect to negligence as opposed to bad faith in public office claims. To the extent that regulators engage in policy making as opposed to the operational side of their mandate, there will generally be immunity.¹²⁵ Similarly, in the exercise of judicial or quasi-judicial functions, there is also for the most part immunity.¹²⁶ Modern Canadian law is reluctant to detect the existence of a duty of care on the part of regulators towards members of the public affected by their operations.¹²⁷ Moreover, even if a duty of care prima facie exists, it may be negated by considerations of public policy not normally encountered in the domain of private negligence or extracontractuelle law such as the exposure of the regulator to unlimited liability on the part of a potentially broad segment of the public.¹²⁸ Moreover, in many instances, there will be relevant statutory immunity provisions which on their face seem to resolve the matter.¹²⁹

Most of these considerations found expression in the judgment of the Alberta Court of Appeal in Ernst v Alberta (Energy Resources Conservation Board)¹³⁰ in affirming the striking out of the plaintiff’s negligence claim. Ernst asserted that the Board (the predecessor of the Alberta Energy Regulator) had negligently administered its regulatory regime by failing to take sufficient steps to protect her water supply from harm by EnCana which was engaged in various energy related and Board regulated activities in the region of her property.

Among the significant considerations that led the Alberta Court of Appeal to sustain the decision of the case management judge was a provision in the then Energy Resources Conservation Act¹³¹ respecting regulatory liability. Section 43 provided:

No action or proceeding may be brought against the Board or a member of the Board … in respect of any act or thing done purportedly in pursuance of this Act, or any Act that the Board administers, the regulations under any of those Acts or a decision, order or direction of the Board.

(That provision has now been replaced by section 27 of the Responsible Energy Development Act¹³² covering the Alberta Energy Regulator:

No action or proceeding may be brought against the Regulator, a director, a hearing commissioner, an officer or employee of the Regulator, or a person engaged by the Regulator, in respect of any act or thing done or omitted to be done in good faith under this Act or any other enactment.)

In a judgment delivered by the Court (consisting of Côté, Watson and Slatter JJA), it was held that this provision had the effect of barring all common law torts claims against the Board. In so doing, the Court rejected an argument to the effect that, as opposed its successor, this provision did not cover omissions, only “acts or things done.” It would have been “absurd” to apply the provision to only half of the Board’s conduct in the exercise of its mandate.¹³³

Ms. Ernst did, however, advance other claims. One of these related to action that the Board took in response to her public criticisms of the Board in relation to this matter. The Board’s Compliance Branch for just under two years allegedly refused to receive communications from her through the usual public channels unless she agreed to raise her concerns only with the Board and not publicly or with other citizens. She claimed that this action violated her freedom of expression as guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms (“the Charter”) and entitled her to make a claim for damages. Here too, the Court held that section 43 was fatal to the cause of action.¹³⁴ There was no general principle that provisions that excluded tortious or extracontractuelle liability for Charter violations were unconstitutional and impermissibly restrictive of the jurisdiction of section 96 courts under section 24(1) of the Charter to award “such remedy as the court considers appropriate and just in the circumstances.” Among the justifications for this conclusion was that the “long standing remedy for improper administrative action has been judicial review.”¹³⁵ The Court also referenced the existence of a statutory appeal from orders of the Board to the Court of Appeal, albeit with leave.¹³⁶

Subsequently, Ernst sought and obtained leave to appeal the judgment of the Alberta Court of Appeal not on the negligence issue but on whether section 47 precluded her Charter damages claim. In the pages of this journal in December 2015, Ross, Marion and Massicotte looked forward to “guidance from the Supreme Court as to the proper framework for addressing the interplay between statutory immunity provisions and Charter damages claims against state actors.”¹³⁷ Unfortunately, the Supreme Court, in a judgment delivered on January 13, 2017,¹³⁸ a year and a day after the case had been argued before it, dashed those hopes.

Certainly, Ms. Ernst lost her appeal to the Supreme Court of Canada, and four of the judges (in a judgment delivered by Cromwell J) basically affirmed the reasoning of the Alberta Court of Appeal on this point though with more developed analysis. In particular, Cromwell J, as well as asserting the primacy of applications for judicial review as the remedial response to unlawful state action,¹³⁹ drew support from the reasons why courts have recognized common law restrictions on the exposure of public authorities to liability in damages¹⁴⁰ and the legislative expression of those reasons in common immunity provisions as exemplified by section 43.¹⁴¹  These expressions of common law and legislative policy could be deployed in justification of the constitutionality of section 43 in so far as it also on its face created immunity from Charter-based damages claims.

However, the other member of the majority, Abella J, in a separate judgment, held that the appeal should be dismissed because Ernst had at no point given the requisite formal notice of a constitutional challenge. Ernst could not justify this omission on the basis that she was not challenging the constitutional validity of section 43, but its application or operability to her cause of action. This in no way altered the fact that her application and operability based claims depended on establishing that section 43 was unconstitutional, a reality that Ernst in effect acknowledged in the Supreme Court. One could not avoid the notice of constitutional question requirements by pleading one’s case in this manner. This was an “improper collateral attack”¹⁴² on the provision.

As for the minority, in a judgment penned by McLachlin CJ, Moldaver and Brown JJ and concurred in by Côté J, they held, first, that it was not plain and obvious that Charter damages could not be an appropriate and just remedy on the facts pleaded,¹⁴³ and, secondly, that it was also not plain and obvious that, as a matter of interpretation (as opposed to constitutional law), the immunity provision reached the conduct that was alleged to give rise to the claim in this case.¹⁴⁴

In his judgment, Cromwell J was particularly critical of the minority.¹⁴⁵ The parties had accepted that it was plain and obvious that on its face section 43 precluded any claim for Charter damages, a conclusion with which the four judges agreed. Therefore, it was unfair to determine the case on a basis on which the parties had had no opportunity to make submissions. He also expressed the view that it called into question the scope of many (“scores of”) similar immunity clauses on which there had previously been no doubt that they were sufficiently expressed to cover all manner of Charter damages claims.¹⁴⁶

In commenting in this context on the judgment of the Supreme Court, I do not want to dwell on the issue of the failure to give notice of a constitutional question¹⁴⁷ and the merits of Abella J’s analysis of why it was fatal here to a consideration of the merits of Ernst’s constitutional arguments. However, it does provoke a couple of observations, observations that lead into matters of more direct concern to the merits of the constitutional argument. It is puzzling that, of the nine judges, only Abella J paid any attention to this issue of notice. After all, it was as recently as 2015 in Guindon v Canada¹⁴⁸ that the Supreme Court set out authoritatively the exceptional circumstances in which it should allow a constitutional argument to be made when there had been no requisite notice in the courts below. Abella J both acknowledged Guindon and engaged with it in determining this was not an exceptional case according to the criteria laid down in that leading precedent.¹⁴⁹

Of course, viewing the matter from the perspective of Cromwell J and the three judges who agreed with him, it might be that they did not address this issue on the basis that they were about to come to a conclusion that supported what more than likely would have been that argued for by the Minister of Justice and Solicitor General of Alberta, and the Attorney General of Canada had notice been given and they had appeared. Indeed, this was the position of the Alberta Court of Appeal which noted but did not respond to the objections before the panel based on a lack of notice made by the Alberta Minister of Justice and Solicitor General.¹⁵⁰ However, particularly in the case of the Attorney General of Canada, this assumption may have involved rather too much speculation.

However, it also worthy of note that Abella J did take a position on at least three points deployed by Cromwell J in his judgment. Do these in any way salvage the case in the sense of providing a majority on at least some aspects of the merits of the challenge to section 43 or its application to the pleadings in Ernst?

First, Abella J was of the view that the immunity clause was “absolute and unqualified”¹⁵¹ and could only give way on the basis of a successful constitutional challenge.¹⁵² In so holding, she rejected any notion that it might be interpreted so as not to apply to “punitive” conduct as alleged by the plaintiff¹⁵³ or that it did not reach beyond the Board operating in an adjudicative capacity.¹⁵⁴ As a consequence, it may well be that the “minority” judgment must be taken as incorrect to the extent that it leaves open the possibility of the provision (and ones like or identical to it) not applying as a matter of interpretation in some situations.

I would, however, venture the following observation: It is noteworthy that, well before the advent of the Charter, in the landmark case of Roncarelli v Duplessis,¹⁵⁵ a majority of the Court held that a notice provision for an action for damages against a public official for acts “done by him in the exercise of his functions”¹⁵⁶ was not triggered in the case of the bad faith of exercise of power or an exercise of power which did not come within the scope of that official’s authority. Has the Court moved so far from the principles of that judgment to now accept the position that actions that might have violated the Charter should be included within the immunity established by provisions such as section 43? Did the addition by the legislature of the word “purportedly” achieve that end and put paid to the Roncarelli restrictive interpretation argument?  If so, it is at least of some moment that the replacement to section 43 applicable to the Energy Regulator is excluded in the case of actions by the Regulator that are not taken in “good faith”. However, should the new provision, nonetheless, still be read as preventing actions based on alleged violation of rights and freedoms guaranteed by the Charter? In other words, can there be damages claims based on the bad faith exercise of public power but not Charter violations? That would be ironic!

Secondly, in the course of her judgment,¹⁵⁷ Abella J mounts a spirited justification of immunity provisions such as section 43 especially in the case of adjudicative tribunals or agencies. Much of this parallels Cromwell J’s bases for upholding the constitutional validity of such provisions. However, what is clear is that Abella J is speaking from a different perspective with that being the inappropriateness of dealing with constitutional challenges to such provisions without representations from the relevant Minister or Ministers to whom notice must be given, and in the absence of a full record including what might be said by way of a section 1 justification of such provisions.  While, in some sense, the strength of her statements might indicate a very strong disposition to sustaining the constitutional validity of such provisions, as a matter of precedent, it does not go so far as to give the Cromwell judgment majority status on the issue of constitutionality.

In particular, at least implicitly, there is a clear divide between the two judgments on the methodology for dealing the issue of the constitutionality of provisions such as section 43. The Cromwell judgment is confident in its assertion of the justifications for the constitutionality of such provisions based on the discerned policies of the common law, the perpetuation of such immunities by the legislature, and the limitations on recourse to Charter damages identified in the leading precedent of Vancouver (City) v Ward.¹⁵⁸ In contrast, despite all the similar justificatory discussion including protection of the independence of judicial and quasi-judicial decision makers, Abella J at the end of the day still wants to make these assessments against the backdrop of an evidentiary record and on the assumption that there is seemingly a section 1-like evidentiary burden on the government. There should be no nibbling away at the reach of such immunity provisions “without a full and tested evidentiary record.”¹⁵⁹ She then continued:

It may or may not be the case that governments will be able to justify immunity from Charter damages, but until the s 1 justificatory evidence is explored, this Court should not displace the necessary evidence with its own inferences.¹⁶⁰

Given this, it is particularly regrettable that there is no explicit engagement in the Cromwell judgment with this critical question of how to approach challenges to statutory limitations on remedial responses to alleged Charter violations.¹⁶¹

Thirdly, the other principal point on which there might seem to be apparent accord between the Cromwell and Abella judgments is with respect to judicial review being the primary way of vindicating Charter challenges to administrative action which allegedly has violated a Charter right or freedom (or Charter values, if they do indeed represent a separate category of review for unlawful administrative action). However, here too, the role of judicial review as the normal manner of recourse in such cases is seemingly being deployed for different purposes. For Cromwell J, it provides an argument in favour of the constitutionality of section 43; excluding a claim for damages does not unconstitutionally limit access to remedies for Charter challenges to administrative action, because as a matter of constitutional law, judicial review is available. Given, however, that Abella J is otherwise careful not to accept that the provision is necessarily constitutional, her assertion that judicial review is available cannot really be interpreted as anything more than a statement that, on the facts of this case, that is what Ernst should have done rather than pursuing an after the event action for damages. In other words, as a matter of discretion,¹⁶² this was not in any event a case for allowing the action for damages to proceed given the opportunity that Ernst had to apply for judicial review and, in that setting, making the substantive Charter violation argument. However, there is a big difference between deploying the availability of an application for judicial review as a basis for sustaining the constitutional validity of an immunity provision (Cromwell J) and asserting that an application for judicial review is either normally or on the facts of the particular case the appropriate way in which to proceed (Abella J).

As for the merits of the argument that an application for judicial review provides one of the justifications for the constitutionality of the relevant provision, three observations are in order: 1. The existence of and failure to seek judicial review is at common law not an automatic basis for striking out an action for damages; it is a matter of judicial discretion.¹⁶³ 2. While the illegitimate collateral attack argument was to my knowledge never made in Roncarelli v Duplessis,¹⁶⁴ a strict application of the collateral attack rules would have meant that the merits of that highly significant common law constitution based challenge would never have been determined. 3. Even Cromwell J is not dogmatic about the issue conceding that, in some instances, an application for judicial review is not the most appropriate way of proceeding to call into question administrative action on the basis of alleged Charter violations. In this regard, he cites claims for damages for Charter violations arising out of the conduct of criminal prosecutions.¹⁶⁵

To me, this raises the question why, on any occasion, when judicial review fails to provide an adequate remedy for the vindication of Charter rights, freedoms and perhaps values, the possibility does not exist that immunities such as section 43, as a matter of constitutional law, either do not apply or should be read down to allow for an alternative damages claim. As I read the Cromwell judgment, this would increase the exposure of the state and regulatory bodies to the costs and inconvenience of litigation on all such occasions when such a plea was made and provide an incentive to plaintiffs to always plead that excuse for not seeking judicial review.¹⁶⁶ However, I question whether intuitively this is obviously the case particularly given the discretion that exists at common law for refusing to allow such forms of collateral attack. Moreover, if remedial discretion rather than a dogmatic rule is the way of the common law in dealing with such issues, why should this not also act as a source of guidance in assessing the constitutional reach of provisions such as section 43 at least absent government evidential justification of a complete ban or immunity of the kind seemingly demanded by Abella J?

In sum, Ernst is a frustrating decision. In particular, in the division that exists among the three judgments, there is a failure to resolve the key question on which the appeal was taken and leave was given: the constitutionality of an immunity provision which the Alberta Court of Appeal held precluded the pursuit of civil claims for damages against a regulatory agency even for violation of Charter rights and freedoms. Certainly there are indicators that Abella J, who created the majority for dismissing the appeal, would struggle to find such a provision unconstitutional even if read to preclude all manner of Charter claims. Nonetheless, a definitive ruling must now await a further appeal to the Supreme Court in which the critical issues of substance and methodology are raised much more cleanly than in Ernst.

In the meantime, most regulatory agencies can take comfort from the fact that, at common law and even without the benefit of a statutory immunity provision, they are not exposed to negligence or extracontractuelle liability. And, while the bad faith exercise of authority can give rise to liability at common law, properly drafted statutory immunities may also eliminate this as a risk. Also, particularly for regulators exercising judicial or quasi-judicial powers, there will be many occasions on which at common law, courts will hold that the appropriate course of action is an application for judicial review rather than a form of collateral attack on a decision by way of an action for damages. Moreover, at the very least, the Supreme Court judgment in Ernst has to be read as extending this presumptive primacy of judicial review to the exclusion of a cause of action for damages to decisions that allegedly violate a Charter right or freedom whether by reliance on common law remedial discretion or, if the Cromwell judgment prevails ultimately on the constitutional issue, by the mandatory operation of an appropriately worded immunity provision. Indeed, given Cromwell J’s reliance in Ernst on both the common law justifications for limited civil liability exposure on the part of regulators and the principles identified in Ward under which courts should consider whether damages are an appropriate and just remedy under section 24(1) of the Charter, it may well be that he and the judges who concurred in his judgment would not have countenanced an action such as that brought by Ms. Ernst even in the absence of section 43, the immunity provision.

* David J. Mullan, Emeritus Professor, Faculty of Law, Queen’s University.
1.   Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47 is probably the 2016 non-energy judgment of the Supreme Court that has the most direct impact on energy regulatory law. Among the issues raised was whether the normal presumption of deferential reasonableness review when a tribunal is interpreting its home and closely related statutes applied in the context of appeals with leave on questions of law and jurisdiction from an Assessment Review Board. A majority of the Court held that application of the presumption remained appropriate and applied it to the question of law raised by the application for judicial review. This has obvious relevance for all situations in which there is a statutory right of appeal from an energy regulator requiring leave of the court and even when confined to questions of law and jurisdiction.
2.   See e.g. Prophet River First Nation v British Columbia (Minister of Forests, Lands and Natural Resources Operations), 2016 BCSC 2007. In the Northern Gateway context, also of significance is Coastal First Nations v British Columbia (Minister of the Environment), 2016 BCSC 34, in which Koenigsberg J held that British Columbia could not rely upon the federal Joint Review Panel process as satisfying its own consultation responsibilities with respect to the process under the provincial environmental protection legislation.
3.   The Jobs, Growth and Long-Term Prosperity Act, SC 2012, c 19, s 52 repealing  and replacing the 1992 Canadian Environmental Assessment Act, SC 1992, c 37 and amending the National Energy Board Act, RSC 1985, c N-7.
4.   Gitxaala Nation v Canada, 2016 FCA 187 [Gitxaala Nation].
5.   Ernst v Alberta Energy Regulator, 2017 SCC 1.
6.   In 2016, the Federal Court of Appeal also ruled on the issue whether the courts could, in the name of the duty to consult, assess the process of preparing, introducing, and passing primary legislation which might adversely affect an aboriginal claim or right. A First Nation had sought a declaration that the government had failed to fulfill the duty to consult aboriginal peoples in the context of the preparation, introduction and passage of the controversial 2012 omnibus Bills, legislation that it was claimed would, in its diminution of environmental protection have adverse impacts on various aspects of aboriginal hunting, fishing and trapping rights. In late 2014, in a decision discussed in my 2014 review (“2014 Developments in Administrative Law Relevant to Energy Law and Regulation” (2015) 3 ERQ 17, at 29), Hughes J of theFederal Court had held that the duty to consult was triggered at the point at which the legislation was introduced in Parliament: Mikisew Cree First Nation v Governor in Council, 2014 FC 1244. In early December 2016, the Federal Court of Appeal reversed that decision: Mikisew Cree First Nation v Canada (Minister of Aboriginal Affairs and Northern Development), 2016 FCA 311. As well as holding that the legislative process did not implicate “a federal board, commission or other tribunal” in terms of the judicial review jurisdiction of the Federal Courts Act, with particular reference to the exclusions in section 2(2) of that Act, de Montigny JA (Webb JA concurring) went on to hold that judicial intervention of this kind in the legislative process would violate the unwritten constitution’s recognition of the doctrine of separation of powers. Though concurring in the outcome, Pelletier JA would have recognized section 17 of the Federal Courts Act as a provision justifying the kind of declaration sought in this case; it existed independently of the judicial review provisions of the Act. He was also unwilling to countenance the doctrine of separation of powers as a justification for excluding judicial scrutiny of legislative process in the name of the duty to consult aboriginal peoples. On the other hand he would not endorse triggering of the duty to consult in the case of general legislation “which is not aimed at specific Aboriginal groups or to territories to which they have, or claim, an interest)” (para 97). For an excellent commentary on this case, see Nigel Bankes, “The Duty to Consult and the Legislative Process: But What About Reconciliation?”, Ablawg.ca, December 21, 2016.
7.   See, in this regard, Tsleil-Waututh Nation v Canada (National Energy Board), 2016 FCA 219. Here, the Federal Court of Appeal dismissed various appeals arising out of early stages of the Trans Mountain Pipeline application process. In essence, the appeals were dismissed because the First Nation had failed to first raise the matters in issue before the Board. This included what was a change in position for the First Nation, the contention that the National Energy Board itself had responsibility for fulfilling the constitutional duty to consult affected First Nations. However, the Court made it clear that this was without prejudice to the right of the First Nation to raise the consultation and other of its issues once the Governor in Council had issued its decision on the already released National Energy Board report on the application. The list of still pending Trans Mountain court challenges can be found on the National Energy Board’s website in the file “Court Challenges to National Energy Board or Governor in Council Decisions”, online: <http://www.neb-one.gc.ca/pplctnflng/crt/index-eng.html>.
8.   For a more complete account, see Nigel Bankes, “The Supreme Court of Canada Grants Leave in Two Cases Involving the National Energy Board and the Rights of Indigenous Communities” (2016) 4 ERQ.
9.   Chippewas of the Thames First Nation v Enbridge Pipelines Inc, 2015 FCA 222, application for leave to appeal granted on March 10, 2016: [2015] SCCA No 524 (QL) [Chippewas of the Thames].
10.   Hamlet of Clyde River v TGS-NOPEC Geophysical Company ASA (TGS), 2015 FCA 179, application for leave to appeal granted on March 10, 2016: [2015] SCCA No 430 (QL) [Hamlet of Clyde River].
11.   David J. Mullan, “2015 Developments in Administrative Law Relevant to Energy Law and Regulators” (2016) 4 ERQ 19, at 30-34.
12.   For valuable insights into this issue, see Chris W. Sanderson, Q.C. and Michelle S. Jones, “The Intersection of Aboriginal and Administrative Law: When does a Regulatory Decision Constitute “Crown Contemplated Conduct”?” which also appears in this issue of the Energy Regulation Quarterly. Sanderson and Jones argue that there has been too little attention paid to the second of the three requirements for the existence of a duty to consult set out by McLachlin CJ in Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 SCR 650: the requirement of “Crown-contemplated conduct.” At the risk of distorting a complex argument, I take the authors’ position to be that where the Crown is not before the regulatory agency as in the case of “private proponents seeking approval from statutory decision-makers to engage in conduct that is alleged to have adverse effects on Aboriginal rights and claims”, absent express legislative conferral of consulting authority or responsibilities  on the regulatory agency, it will be difficult to locate the requisite “Crown-contemplated conduct.”
13.   Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 SCR 650.
14.   Alberta Utilities Commission, Proceeding 20130, Applications 21030-A001 to 201030-A015, Ruling on jurisdiction to determine the questions stated in Notices of Questions of Constitutional Law, October 7, 2016. For other commentary on this ruling, see Martin Ignasiak, Jessica Kennedy and Justin Fontaine, “Alberta Utilities Commission Confirms it has no Jurisdiction to Assess Crown Consultation” (2016) 4 ERQ.
15.   Ibid, at paras 109-13.
16.   Supra, note 9.
17.   Administrative Procedures and Jurisdiction Act, RSA, c A-3, s 16.
18.   Designation of Constitutional Decision Makers Regulation, AR 69/2006, Schedule 1 designated the Commission as having authority to determine all constitutional questions.
19.   Supra, note 14 at para 113.
20.   Ibid.
21.   Ibid, at para 116.
22.   Haida Nation v British Columbia (Minister of Forests), [2004] 3 SCR 511.
23.   Ibid, at para 53.
24.   Ibid.
25.   Ibid.
26.   See Michelle McQuigge, “First Nations sue TransCanada to refine consultation process”, The Globe and Mail, January 10, 2017.
27.   Other commentary on this judgment includes Keith B. Bergner, “The Northern Gateway and the Federal Court of Appeal: The Regulatory Process and the Crown’s Duty to Consult” (2016) 4 ERQ 53; Sharon Mascher, “Note to Canada on the Northern Gateway Project: This is NOT What Deep Consultation With Aboriginal People Looks Like”, Ablawg.ca, August 12, 2016; and Martin Olszynski, “Northern Gateway: Federal Court of Appeal Applies Wrong CEAA Provisions and Unwittingly Affirms Regressiveness of 2012 Budget Bills”, Ablawg.ca, July 5, 2016.
28.   Supra, note 4. (Ryer JA dissented on this aspect of the judgment on the basis that the Governor in Council had consulted sufficiently.)
29.   See Bergner, supra, note 27 at 54.
30.   Supra, note 27.
31.   However, particularly noteworthy in the majority’s discussion of the content of “deep consultation” is the emphasis (at paras 311-324) on the importance of reasons demonstrating that consultation did take place, that aboriginal concerns were taken into account, and the “impact” that those concerns had on the decision-making. For these purposes, the majority relied not only on the specific directive in section 54(2) of the National Energy Board Act that the Governor in Council “set out the reasons for making the order” that the National Energy Board issue a certificate but also the components of deep consultation set out by McLachlin CJ, delivering the judgment of the Court in Haida Nation v British Columbia (Ministry of Forests), supra, note 22 at para 44.
32.   Supra, note 4 at para 211.
33.   Ibid, at para 214.
34.   Supra, note 13 at para 56.
35.   Supra, note 4 at para 216.
36.   Ibid, at para 217.
37.   Ibid, at para 214.
38.   Supra, note 27 at 61.
39.   Supra, note 4 at para 317.
40.   Supra, note 27 at 62.
41.   At least by the proponents or the government: see “Northern Gateway pipeline project won’t appeal federal court decision”, The Globe and Mail, September 20, 2016 and John Paul Tasker and Chris Hall, “Ottawa won’t appeal court decision blocking Northern Gateway pipeline”, CBC News, posted September 20, 2016, <http://www.cbc.ca/news/politics/enbridge-northern-gateway-federal-court-1.3770543>. However, the Raincoast Conservation Foundation applied on September 21, 2016, for leave to appeal the Court’s ruling that the JRP report was not subject to judicial review: see [2016] SCCA No 386 (QL). However, leave to appeal was denied on February 9, 2017.
42.   Prophet River First Nation v Canada (Attorney General), 2017 FCA 15.
43.   Supra, note 3 at s 52(4)(a).
44.   Ibid, at s 52(4)(b).
45.   Prophet River First Nation v Canada (Attorney General), 2015 FC 1030.
46.   Supra, note 42 at para 70.
47.   Ibid, at para 71.
48.   Ibid, at para 72.
49.   See clauses 2.5(a), (d) and (e) of the JRP Agreement and Terms of Reference: Ibid, at para 10.
50.   Supra, note 4.
51.   Ibid, at para 92.
52.   Ibid, at para 119.
53.   Ibid, at para 120.
54.   Ibid, at para 125.
55.   Ibid. Note also in the context of section 22(1) of the National Energy Board Act providing for appeals from decisions or orders of the Board with leave on questions of law and jurisdiction, the insertion in 2012 of section 22(4) providing that reports (or any parts thereof) submitted by the Board to the Governor in Council under various provisions of the Act and the Canadian Environmental Assessment Act, 2012 are not “a decision or order of the Board” for the purposes of section 22(1). This provision formed part of the backdrop to the Federal Court of Appeal’s subsequent ruling in Tsleil-Waututh Nation, supra, note 7, that the First Nation could not raise certain issues in the context of an appeal under section 22 with respect to a proceeding covered by section 22(4).
56.   Ibid, at para 126.
57.   Ibid, at para 127.
58.   The leading authority remains Harelkin v University of Regina, [1979] 2 SCR 561. See also Howe v Institute of Chartered Accountants of Ontario (1994) 19 OR (3d) 483 (CA).
59.   Forest Ethics Advocacy Association v Canada (National Energy Board), 2014 FCA 245, [2015] 4 FCR 75. I discussed this ruling in “2014 Developments in Administrative Law Relevant to Energy Law and Regulation” (2015) 3 ERQ 17, at 19-20.
60.   Supra, note 4 at para 85.
61.   Ibid, at para 86.
62.   Ibid, at para 84.
63.   See e.g. L’Association des Propriétaires des Jardins Taché Inc v Les Enterprises Dasken Inc, [1974] SCR 2.
64.   Supra, note 4, at paras 86-87.
65.   Ibid, at para 141.
66.   Ibid, at para 155.
67.   Ibid, at para 145.
68.   Ibid, at para 140.
69.    Ibid, at para 144.
70.   Ibid, at para 153, citing among other authority Canadian National Railway Co v Canada (Attorney General), 2014 SCC 40, [2014] 2 SCR 135.
71.   Ibid, at paras 129-39.
72.   Council of the Innu of Ekuanitshit v Canada (Attorney General), 2014 FCA 189.
73.   Supra, note 4 at para 135, citing ibid, at paras 40-41 in turn citing the judgment at first instance: 2013 FC 418 at para 76.
74.   Wilson v Atomic Energy of Canada Ltd, 2016 SCC 29.
75.   Ibid, at para 73.
76.   Wilson v Atomic Energy of Canada Limited, 2015 FCA 17, [2015] 4 FCR 467.
77.   Supra, note 74 at para 18.
78.   Ibid.
79.   In a one paragraph judgment concurring in the outcome reached by Abella J, McLachlin CJ, Karakatsanis, Wagner and Gascon JJ (at para 70) declined to consider whether the standard of review template should be reconfigured.
80.   Ibid, at para 22.
81.   Ibid, at para 33.
82.   Supra, note 4 at para 131.
83.   Was that because there was no substance to the argument, because the applicants had not raised the question at the Governor in Council stage of the process, or because it was an impermissible ground of review in this specific process?
84.   Though given the Court’s emphasis on the location of the Governor in Council as the initial repository of authority to make such assessments, presumably the context in which such questions would arise be that of the Governor in Council’s response to any such argument made to it by a party, participant or someone with standing.
85.   Supra, note 4 at para 157.
86.   Turp v Minister of Foreign Affairs, 2017 FC 84.
87.   Ibid, at para 36.
88.   Ibid, at para 37.
89.    Ibid, at paras 50 and 55.
90.   See e.g. Thorne’s Hardware Ltd v Canada, [1983] 1 SCR 106.
91.   Supra, note 4 at para 192.
92.   Ibid, at paras 195-200.
93.   Ibid, at para 196, citing Imperial Oil Ltd v Quebec (Minister of the Environment), 2003 SCC 58, [2003] 2 SCR 624.
94.   Ibid, at paras 197-98.
95.   Ibid, at para 199.
96.   Old St. Boniface Residents Association Inc v Winnipeg (City), [1990] 3 SCR 1170.
97.   Canada (Attorney General) v Inuit Tapirisat of Canada, [1980] 2 SCR 735.
98.   Newfoundland Telephone Co v Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 SCR 623.
99.   Ibid, at para 27.
100.   Ibid, at para 35.
101.   Ibid, at para 39.
102.   Hearing Order OH-002-2016, Energy East Pipeline Ltd and TransCanada Pipelines Limited, Energy East Project and Asset Transfer (Energy East), and Eastern Mainline Project (Eastern Mainline), Notices of motion from Stratégies Énergétiques and the Association québécoise de lutte contre la pollution atmosphérique, and Transition Initiative Kenora (TIK), Ruling No 28 (September 9, 2016).
103.   Ibid, Chair and Vice-Chair Decision Statement (September 9, 2016).
104.   National Energy Board News Release, “Energy East Hearing Panel Steps Down”, September 9, 2016.
105.   See the summary contained in an August 30, 2016 Globe and Mail editorial, “Credibility gap” and also Campbell Clark, “NEB’s missteps make Energy East a political problem for Trudeau”, The Globe and Mail, August 30, 2016.
106.   See Shawn McCarthy, “Energy East hearings put on hold over complaints against NEB members”, The Globe and Mail, August 31, 2016.
107.   See Chair and Vice-Chair Decision Statement, supra, note 102.
108.   See Ruling No 28, at 2, supra, note 101.
109.   The general position under Canadian law is that the first step in any pre-emptive bias challenge is for those with concerns to ask the member or members of multi-member panels to recuse themselves and for the impugned member or members to rule on that challenge: See e.g., Communications, Energy and Paperworkers Union of Canada, Local 60N v Abitibi Consolidated Company of Canada, 2008 NLCA 4. Thereafter, if the request for recusal is denied, that ruling becomes subject to judicial review. Indeed, this was the position taken by the panel in its recusal ruling.
110.   Ruling No 28, supra, note 101 at Appendix 1, Recusal Statement of Member Gauthier and Appendix 2, Recusal Statement of Member Mercier.
111.   Ibid, at Appendix 3, Recusal Statement of Member George.
112.   See September 9, 2016 Decision Statement of the NEB Chair and Vice-Chair addressed to All OH-002-2016 Parties.
113.   Supra, note 103.
114.   It should, however, be noted that while the panel was considering the recusal “motion”, another public interest group challenged the participation of one of the panel members on other grounds: the perceptions arising out of the fact that shortly after his appointment to the Board, the company of which he had been chief executive officer had secured a contract to do work for TransCanada in connection with the Energy East project. See Shawn McCarthy, “NEB member’s business ties to TransCanada queried”, The Globe and Mail, September 3, 2016.
115.   Kane v Board of Governors of University of British Columbia, [1980] 1 SCR 1105, at 1116.
116.   See National Energy Board News Release, January 27, 2017, “Energy East Hearing to restart from the beginning” and Ruling No 1 of the new panel.
117.   FortisAlberta Inc v Alberta (Utilities Commission), 2014 ABCA 264.
118.   Chevron Standard Ltd v Energy Resources Conservation Board, 1983 ABCA 187, at para 13.
119.   Atco Electric Limited v Alberta (Energy and Utilities Board), 2003 ABCA 44, at para 17.
120.   Atco Electric Limited v Energy and Utilities Board (Alberta), 2002 ABCA 45, at para 14 and Nycan Energy Corp v Energy and Utilities Board (Alberta), 2001 ABC 31, at para 4.
121.   Supra, note 117, at para 26.
122.   ATCO Power Ltd v Alberta (Utilities Commission), 2015 ABCA 405, at paras 17-19; Remington Development Corp v ENMAX Power Corp., 2016 ABCA 6, at paras 28-30; and Direct Energy Regulated Services v Alberta (Utilities Commission), 2016 ABCA 156, at paras 11 (where there is reference to divergence of opinion on the Court of Appeal) and 29-32. (See also the judgment of Berger JA in Kikino Metis Settlement v Husky Oil Operations Ltd, 2016 ABCA 228, at para 12 where, in granting leave, he professed to be “[m]indful of the standard of review in respect of an extricable question of law in the interpretation of the tribunal’s home statute.”)
123.   Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, at para 47.
124.   For other commentary, see Lorne Sossin, “Damaging the Charter: Ernst v. Alberta Energy Regulator”, theCourt.ca, January 20, 2017,  and Jennifer Koshan, “Die Another Day: The Supreme Court’s Decision in Ernst v. Alberta Energy Regulator and the Future of Statutory Immunity Clauses for Charter Damages”, Ablawg.ca, January 16, 2017. See also the reaction to the Alberta Energy Regulator’s press release praising the judgment in Shaun Fluker and Sharon Mascher, “The Alberta Energy Regulator in the Post-Information World: Best in Class?”, Ablawg.ca, January 18, 2016.
125.   See e.g. Just v British Columbia, [1989] 2 SCR 1228 and R v Imperial Tobacco Canada Ltd, 2011 SCC 42, [2011] 3 SCR 45.
126.   See e.g. Welbridge Holdings Ltd v Winnipeg (Greater), [1971] SCR 957.
127.   See e.g. Cooper v Hobart, 2001 SCC 79, [2001] 3 SCR 537.
128.   Ibid and Alberta v Elders Advocates of Alberta Society, 2011 SCC 24, [2011] 2 SCR 261.
129.   See e.g. Proceedings Against the Crown Act, RSO 1990, c P.27, s 5(6), immunizing the Crown from liability for persons functioning in a judicial capacity including the execution of judicial processes.
130.   Ernst v Alberta (Energy Resources Conservation Board), 2014 ABCA 285, 580 AR 341.
131.   Energy Resources Conservation Act, RSA 2000, c E-10.
132.   Responsible Energy Development Act, SA 2012, c R-17.3.
133.   Supra, note 130 at para 22.
134.   Ibid, at paras 23-30.
135.   Ibid, at para 30.
136.   Ibid.
137.   Alan 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.
138.   Supra, note 5.
139.   Ibid, at paras 32-41.
140.   Ibid, at paras 42-49.
141.   Ibid, at paras 50-55.
142.   Ibid, at para 114.
143.   Ibid, at paras 153-78.
144.   Ibid, at paras 179-86.
145.   Ibid, at paras 15-17.
146.   Ibid, at para 17.
147.   Or, for that matter, on the application in this case of the test for striking out a claim on the basis that it did not reveal a cause of action.
148.   Guindon v Canada, 2015 SCC 41, [2015] 3 SCR 3.
149.   Supra, note 5 at paras 102-12.
150.   Supra, note 130 at para 7. At para 9, the Court stated that it was not necessary to deal with that issue to resolve the appeal.
151.   Supra, note 5 at para 70.
152.   Ibid, at para 73.
153.   Ibid, at paras 71-72.
154.   Ibid, at para 71.
155.   Roncarelli v Duplessis, [1959] SCR 121.
156.   Article 88 of the Code of Civil Procedure.
157.   Supra, note 5 at paras 114-20.
158.   Vancouver (City) v Ward, 2010 SCC 27, [2010] 2 SCR 28.
159.   Supra, note 5 at para 120.
160.   Ibid.
161.   At para 23, Cromwell J does state that the onus did lie on Ms. Ernst to create a record adequate to permit a decision on the provision’s unconstitutionality. However, from that point on, he deals with the constitutionality of section 43 on the basis of juristic principles and policies and not the record; on the basis of argument, not evidence.
162.   As recognized, for example, by Binnie J, delivering the judgment of the Court in Canada (Attorney General) v TeleZone Inc, 2010 SCC 62, [2010] 3 SCR 585.
163.   Ibid.
164.   Supra, note 155.
165.   Supra, note 5 at para 38.
166.   Ibid, at paras 56-57.