INTRODUCTION

In 2013, in the first issue of the Energy Regulation Quarterly, the editors were kind enough to publish my paper, “Regulators and the Courts: A Ten Year Perspective.”^[1] This paper drew on presentations that I had made over the previous ten years at the annual CAMPUT (Canada’s Energy and Utility Regulators) Energy Regulation Course, as well as a chapter in the recently published Energy Law and Policy, edited by Gordon Kaiser and Bob Heggie.^[2] A further ten years have passed and I am once again privileged to be part of the tenth anniversary of the Energy Regulation Quarterly, and to provide my reflections on the major changes in Canadian Administrative Law over the past ten years that have had an impact on Energy Law and Regulation.

I have selected seven topics. Some arise directly from energy regulatory proceedings such as the emerging duty of candour applicable to participants in regulatory hearings; others deal with more general issues that have implications for the law affecting energy regulation, such as the standard of review applied by the courts in statutory appeals from and applications for judicial review of the decisions of statutory and prerogative bodies.

I. LEARNING TO LIVE WITH VAVILOV AND THE SPIES AMONG US

The most important Administrative Law judgment that the Supreme Court of Canada released during the first decade of the Energy Regulation Quarterly was undoubtedly Canada (Citizenship and Immigration) v Vavilov^[3] (to be read along with its companion judgment released the same day: Bell Canada v Canada (Attorney General)).^[4] In what could be described as more in the nature of a legislative than a judicial exercise, the Supreme Court stated its objective in these appeals from the Federal Court of Appeal as reforming and clarifying the principles governing judicial review of administrative action on substantive^[5] (but not procedural grounds^[6]) with a view to “ensur[ing] that the framework it adopts accommodates all types of administrative decision-making.”^[7]

In this segment, given the extensive case law and professional and academic discussion that the judgment has attracted, I will do no more than provide by way of a list an overview of the recalibration of substantive review engineered by the majority of the Supreme Court. I will then comment briefly on the extent to which the Court’s ambition of a comprehensive reform of the principles of judicial review of administrative action has fallen short.

Stated in this form, the Court’s recalibration seems pretty thin gruel for what was an ambitious project. Nevertheless, there were mixed reviews of the Court’s overturning of precedents (including its own) in which the presumption of deferential reasonableness review had attached to statutory appeals as well as applications for judicial review. There were also concerns about gaps and lack of clarity in the reach of the changes.

In this year’s survey article,^[12] I highlighted two such important matters. First, why did the Court distance itself from considering the contentious question of the relevance of standard of review analysis to issues of procedural fairness? Secondly, at a general level, were the new prescriptions ones that attached simply to the tribunal and regulatory agency decision-making, or did they also extend to review of various forms of legislative and executive decision-making and, especially, rule-making stretching from formal subordinate legislation (regulations and by-laws) to internal policies? Putting it in terms of judicial review and issues concerning standard of review, was review of these instruments still on the basis of jurisdictional error’s near cousin, ultra vires, and, even if so, did it now take place with reference to Vavilov’s prescriptions and especially conceptions of reasonableness?

As for the matter of procedural fairness, the Supreme Court provided a partial answer in 2022 in Law Society of Saskatchewan v Abrametz.^[13] With respect to the issue of whether Vavilov and it ambition for a comprehensive approach to substantive review has swept up the concept of ultra vires and decision-making to which it has customarily been applied, controversy continues. Further detail on each of these issues is contained in my annual survey of 2022 developments.

Rather than repeating that analysis here, let me now turn to what, at the end of the day, may be the most transformational aspect of Vavilov. In addition to simplifying the process of assigning the appropriate standard of review for decisions under review, the Court identified, as a second part to its mission, the provision of “additional guidance for reviewing courts to follow when conducting reasonableness review.”^[14]

Given the relative lack of attention that the Supreme Court had paid in earlier jurisprudence to the operational or detailed aspects of assessing the reasonableness of decisions under review, there is no doubting that this was a laudable initiative on the Court’s part. It is also the case that all the components of the Court’s lengthy list of considerations that bear on the reasonableness of a decision are not only sound at least when viewed in isolation but also extremely useful to lower courts in their assessment of the reasonableness of the decision under review. More generally, they provide an excellent road map for high quality reasons writing.

This starts with a general proposition, not new in Vavilov but endorsed by the Court. The duty to provide reasons requires decision-makers to meet the standards of “justification, intelligibility and transparency.”^[15] As a further incentive to high quality reasons, the Court also emphasized that, in the conduct of judicial review, the primary focus of the reviewing court should be on the reasons provided. There is a “reasons first”^[16] policy.

However, there are also dangers lurking when one aggregates the various components of the Court’s full checklist of considerations that go into the writing of a decision that will withstand reasonableness scrutiny. Consider the potential impact of the following partial synopsis from Vavilov:

Writing a decision that satisfies all the listed admonitions can quite easily be seen by a decision-maker as a daunting task and one that leads to excessively long decisions and a threat to the efficient management of the tribunal’s docket. For the entire range of administrative decision-makers, pitfalls exist around every corner.

Certainly, in Vavilov, the Court recognizes the dangers of going too far down this rabbit hole, and these cautionary warnings have been taken up by lower courts with statements such as “Although the reasons are brief, they are adequate to explain and justify the decision.”^[22]

An even bigger danger, assuming one accepts the Vavilov Court’s justification of the principle of deference,^[23] is that following all these precepts in the writing of decisions will give rise to a reviewing or appellate court in effect conducting correctness review of the decision-maker’s final product. This is not surprising in that the Court’s list of reasonableness criteria is just as easily transferrable to the writing of decisions review of which will be on the basis of correctness. It is more in the nature of a guide to good reasons writing irrespective of whether the decision will ultimately be subject to correctness or reasonableness review. In fact, there is more than the slightest hint of this in the dissenting judgment of Abella J. (generally, at least in theory, a strong proponent of deference) in Vavilov’s companion case, Bell Canada v Canada (Attorney General).^[24] A more recent example can also be found in Morningstar v Workplace Safety and Insurance Appeals Tribunal.^[25] The more the decision-maker tries to cover the reasonableness bases, the greater the chance of exposure to judicial review even where the standard of review is deferential reasonableness.

In short, the bottom line may be that there will be very little practical difference in terms of outcomes between correctness review on pure questions of law in the instance of statutory appeals and reasonableness review in the context of applications for judicial review. It still, however, remains to be seen whether this possibility has become a reality, and is the stuff of empirical research into all levels of judicial or appellate review of administrative action or inaction. An early April judgment of the Alberta Court of Appeal does, however, provide a further valuable illustration of this possibility.

In ATCO Electric Ltd v Alberta Utilities Commission,^[26] the Alberta Utilities Commission had been confronted by the destruction wrought by the Fort McMurray 2016 wildfires.^[27] What impact should the losses to ATCO facilities have on the tariffs that the Commission established under the Electric Utilities Act?^[28]

ATCO was seeking to recover its uninsured, undepreciated capital losses resulting from the fires in the rates charged to customers. The Commission refused to allow recovery of those losses ruling that they should be borne not by customers but by the company’s shareholders. Stated at its simplest, the Commission saw the situation as the converse of that which the Supreme Court of Canada had addressed on a correctness basis in ATCO Gas & Pipelines Ltd v Alberta (Energy and Utilities Board),^[29] the controversial Stores Block judgment. Were customers entitled to the benefit of sales of assets removed from the rate base on the basis that they were no longer used or required to be used as part of the calculation of ATCO’s rate base? The Court, in a ruling subsequently reinforced by the Alberta Court of Appeal on a reasonableness basis in FortisAlberta v Alberta (Utilities Commission),^[30] held that any proceeds from the sales of any such assets were for the benefit of the company’s shareholders, not its customers.

By reference to these two decisions, in the present matter, the AUC had ruled that principles of symmetry dictated that losses on rate base assets by reason of such extraordinary asset retirements should be borne not by the customers but by the shareholders. The losses arising out of such retirements from the rate base should not be corrected by the rate-setting process. In terms of the Act, they should no longer be treated as costs and expenses reasonably incurred even though they had initially and until the fires been treated as such.

ATCO sought and obtained permission to appeal on two grounds:

As a prelude to considering the merits of the appeal, in a judgment delivered by the Court, the panel of Watson, Slatter, and Kirker JJA located its role within the principles laid down in Vavilov and, in doing so, articulated important nuances to those principles. The Court commenced by acknowledging that, in the wake of Vavilov, the standard of review on matters coming to the Court by way of appeal on questions of law and jurisdiction was that of correctness for questions of law.^[32] Deference had no role to play. As for jurisdiction, in a footnote, the panel in effect excised “jurisdiction” from the statute:

All jurisdictional errors are errors of law. Reference to “law and jurisdiction” in the statute is merely a historical anomaly[.] Since there is no longer any presumptive difference in the standard of review the distinction is usually of no importance.^[33]

The panel then proceeded to provide a road map for managing the transition from a primarily reasonableness standard of review to review conducted by reference to the standards of civil appeals. While apparently accepting that the overall standard for questions of law in statutory appeal settings, absent legislation to the contrary, would be that of correctness, the Court questioned whether in “replacing”^[34] common law judicial review mechanisms with a right of appeal, the legislature had paid any heed to standard of review issues. Building on this assumption, the panel stated that the adoption of such an appellate regime, should not be seen as the legislature directing the Court, “to take over the management of the electrical distribution and transmission system in Alberta.”^[35] The panel supported this assertion by reference to a statement in FortisAlberta, where, within a now repudiated standard of reasonableness review, the Court had stated that regulatory decision-making of this kind had “political and economic aspects”^[36] on which Courts were “poorly positioned to opine.”^[37] This led the Court to then recognize that within a context where appeals were restricted to questions of law,

…the Court should not be quick to identify extricable questions of law in what are more properly categorized as mixed questions of fact and law, questions of policy, or matters of discretion.^[38]

The message seems clear: While there is no room for deference on pure questions of law, in all other such regulatory contexts, deference still rules. The Court then referenced^[39] the judgment of Swinton J for the Ontario Divisional Court in Planet Energy (Ontario) Corp. v Ontario Energy Board^[40] to the effect that a regulator’s reasons for decision have a significant role to play in the appellate court’s determination of correctness.

The Court then^[41] concluded this analysis by cautioning against the disregard of decisions as no longer precedential when decided under a different standard of review. Just because the Court in FortisAlberta had upheld the Commission’s decision on a standard of reasonableness did not mean that the decision would have been different had the standard been correctness. In fact, there were many indicators in the judgment that the Court would also, if necessary, have held that the decision passed muster by reference to a correctness standard. Underlying this and other assertions was a more general sense that Courts should be respectful of otherwise binding authorities and presumptively treat them as continuing to be authoritative precedents.^[42]

As for the specific grounds on which permission to appeal was given, the Court spent some time dealing with the general parameters of review for fettering of discretion. In particular, the Court insisted that as a ground of review, as its name indicates, fettering comes into play only when there is discretion.^[43] Where the issue is a pure question of law, there is no discretion. Thus, even if a regulator or a lower court states that it is bound by a prior decision, that does not amount in and of itself to a case of fettering of discretion; it is a statement to the effect that “I am applying the law because I am bound by it.” It is an interpretation and application of the law. Only where a decision-maker asserts incorrectly that either it has no discretion or is bound when it is not will there be an error of law. This led the Court to in effect dismiss this ground of appeal as not being well-founded by reference to fettering of discretion principles:

The issue on this appeal is therefore not whether the Commission fettered its discretion, but whether it correctly applied the legal standards that governed in the circumstances.^[44]

This characterization, with which I have no quarrel, was to provide the methodology by which the merits of the appeal were to be evaluated.^[45] Did the Commission err in law in its understanding and application of the Stores Block and FortisAlberta judgments? Did the Commission as a matter of law correctly discern the legal principles on which the decision in each of those two cases were based, and, in fact, were the principles on which the Commission determined the second ground of the permission to appeal legally correct? In short, the argument from symmetry failed, Stores Block and FortisAlberta did not provide the path to success, and all depended on whether, in these extraordinary circumstances, the utility could continue to rely upon a right to recover costs prudently required as established by the Act. The failure to understand that undermined the Commission’s decision as a matter of law. Nonetheless, to the extent that the overall determination was a discretionary one, the appropriate disposition was to remit the matter to the Commission to be dealt with on a proper understanding of the Act and the precedents as well as competing policy considerations.^[46]

In this context, I will not engage further with the merits of the judgment except to say that, despite the Court’s flirtation with reasonableness within correctness review, the substance of the reasons for the Court’s conclusion on the merits is unadulterated correctness review from a purely legal perspective. Nonetheless, in this still transitional period from Dunsmuir^[47] to Vavilov, it does provide some important insights into how, even in statutory appeals on pure questions of law, there may nonetheless be occasions for elements of deference.

II. THE STANDARD OF REVIEW ON APPEALS FROM FIRST INSTANCE COURT DECISIONS ON APPLICATIONS FOR JUDICIAL REVIEW AND STATUTORY APPEALS – THE TENTACLES OF VAVILOV

In Agraira v Canada (Public Safety and Emergency Preparedness),^[48] a matter that originated as an application for judicial review to the Federal Court from a ministerial decision, LeBel J for the Supreme Court confronted the issue of the standard of review that should be applied on an appeal from the judgment of a first instance superior court, in this case, an appeal to the Federal Court of Appeal and subsequently to the Supreme Court of Canada on leave. Quoting^[49] from a Federal Court of Appeal judgment, LeBel J held that

…the question for the appellate court to decide is simply whether the court below identified the appropriate standard of review and applied it correctly. The appellate court is not restricted to asking whether the first-level court committed a palpable and overriding error in its application of the appropriate standard.^[50]

This meant that, in this particular context, the normal principles governing appeals from first instance determinations in civil litigation as established in 2002 in Housen v Nikolaisen,^[51] did not apply. The appellate courts were required to step into the shoes of the first instance court and ask on a correctness basis whether that court had established the appropriate standard of review. If it had, the appellate court would then determine whether that standard of review had been applied correctly. Indeed, even in situations where the first instance court had not correctly identified the appropriate standard of review, it was still up to the appellate court to itself apply the now established correct standard to the decision made.

Some people did not approve of that ruling.^[52] Among them was at least one Federal Court of Appeal Justice — Stratas JA.^[53] In fact, the Supreme Court itself appeared to be having doubts about Agraira. Without mentioning Agraira by name, in Canada (Citizenship and Immigration) v Harkat,^[54] the Court, in a majority judgment delivered by McLachlin CJ, applied Housen in its review of the factual components of a Federal Court determination that the issuance of a security certificate was reasonable, a conclusion that subjected Harkat to a removal from Canada order. The standard to be applied to the factual components of the determination was “palpable and overriding error” as established by Housen.

Subsequently, in Mahjoub v Canada (Citizenship and Immigration),^[55] Stratas JA, for the Federal Court of Appeal, followed Harkat. The only relevant difference from Agraira on the standard to be applied was that Harkat in effect started not with an application for judicial review in the Federal Court but as a reference to a judge of that Court by the involved Ministers for a determination as to the reasonableness of their issuance of a “certificate of inadmissibility.” It is a nice question whether that should have been enough to differentiate this context from Agraira and its prescription that the appeal court “step into the shoes” of the first instance court in reviewing for reasonableness even the factual conclusions on which the certificate was issued. In practical terms, what all this probably means for litigants is that review on the basis of reasonableness might well be a standard that is less deferential than that of “palpable and overriding error.”

Subsequently, in a case previewed by Mancini,^[56] Northern Authority v Horrocks,^[57] Brown J, delivering a 6-1 judgment of the Supreme Court, declined to reconsider the stance taken by the Court in Agraira.^[58] As in Agraira, the context was an application for judicial review, and Brown J in effect refused to respond to arguments that it was more appropriate to apply Housen v Nikolaisen to appeals from the first instance judicial review outcome than to maintain the Agraira approach. Agraira was “a recent decision of the Court and remains good law.”^[59] The consequence of this, in a duelling jurisdiction case (one of the exceptional categories where Vavilov prescribes correctness review), was that the role of the appellate Court remained not only correctness in the selection of the standard of review but also correctness in the application of that mandated standard to the issues of both law and fact. The only exception that Brown J was willing to acknowledge as a possibility for the overall application of the Housen principles was in situations where the reviewing judge, “acts as a decision maker of first instance.”^[60] Though it is not mentioned, Harkat might technically have been such a case.

Following Horrocks, it still seems as though there are logical and policy-based inconsistencies in the overall scheme not to mention some unanswered questions. Let us assume that Vavilov was justified to, in general, differentiate between the standard of review for pure questions of law depending on whether the question arose in the context of an application for judicial review (presumptively reasonableness subject to three or four exceptions) or a statutory appeal (“correctness”). What might that intuitively tell us?

I would suggest that it tells us that, in the case of the latter, any subsequent judicial assessment should evaluate the correctness of the decision under further appeal. In contrast, in the former context, an appeal to a higher court from an initial judicial review, unless there are reasons for giving up on the deferential standard of reasonableness review for pure questions of law the higher one gets in the judicial hierarchy,^[61] the assessment should be whether the initial reviewing court’s determination can withstand the appeal court’s assessment of the reasonableness of its decision.^[62] If one accepts that, then I would suggest it would be contrary to the overall scheme of Vavilov to substitute Housen appellate standards of correctness review for questions of law for the current presumption of reasonableness as the first instance standard of scrutiny on applications for judicial review. In other words, the starting point for the initial court encounter is critical. Stated more bluntly, Housen should not be adopted with respect to appeals from first instance court judicial reviews on questions of law at least as long as one wants as a matter of policy to perpetuate presumptive deferential review of decision-makers’ determinations of questions of law^[63] outside of statutory appeal regimes.

In contrast, however, my sense is that there is much to be said for a more nuanced approach to the review of mixed questions of law and fact, and factual or evidential findings. Here, it makes little sense to differentiate at the appellate court level in favour of more rigorous standards for intervention in the case of statutory appeals than in the instance of applications for judicial review. If one assumes that “reasonableness” is a less deferential standard than “palpable and overriding error,” then applying the latter as the test in the domain of appeals from first instance court decisions on a statutory appeal is inconsistent with Vavilov’s assessment of the place of statutory appeals. Appeals from determinations of fact and inextricably bound mixed questions of law and fact become that much more difficult to maintain than reasonableness review of such questions in the context of a judicial review (as opposed to appellate regimes). In short, there should generally either be parity or the roles reversed with “palpable and overriding error” the standard in the context of appeals in judicial review-initiated proceedings and “reasonableness” in the context of appeals from initial court determinations in appellate-based review regimes.^[64] In short, maybe the current state of confusion results from the fact that the two critical questions have attracted back to front answers. In that regard, Vavilov offers a tentacle of foundational principles to grasp in forging a path through the mire.

This proposition does, however, beg the question as to whether, in the context of applications for judicial review, substituting the test of “palpable and overriding error” for “reasonableness” on questions of fact or mixed law and fact from which there is no readily extricable pure question of law, would fly in the face of Vavilov. If one assumes that the general philosophy of Vavilov is to provide greater room for judicial evaluation of decisions in the case of statutory appeals but more restrained scrutiny in the context of applications for judicial review, that policy stance is compromised when, on questions of fact and mixed law and fact, the standards are more intrusive in the instance of applications for judicial review than in the case of statutory appeals.

If that argument from the general philosophy of Vavilov withstands scrutiny, then, at the very least, the standard of appellate scrutiny of findings of fact and mixed law and fact should be the same for both categories. Flowing from that is also the proposition that, in both instances, higher-level courts on appeals should actually ask the same question irrespective of whether the initial court encounter was by way of review or appeal: Did the first instance court err in finding (or not, as the case may be) that there was (or was not) a palpable and overriding error on an issue fact or mixed law and fact from which there was no readily extricable pure question of law?^[65]

III. ENERGY REGULATORS AND CONSTITUTIONAL INCLUDING CHARTER QUESTIONS

By 2013 and the first issue of the Energy Regulation Quarterly, the Supreme Court had already set the broad parameters of the current general position on the role of administrative decision-makers when confronted by constitutional (including Charter) issues.^[66] After considerable vacillation, the Court in 2003 in Nova Scotia (Workers’ Compensation Board) v Martin^[67] had established that, absent legislative intervention, administrative decision-makers with either express or implicit authority to determine questions of law had not just the jurisdiction but generally^[68] the obligation to determine questions of constitutional law that arose in the course of their decision-making. This extended to considering and opining on the validity of legislation though not the making of formal declarations of invalidity of legislation. At the same time, the Court, in Paul v British Columbia (Forests Appeal Commission),^[69] held that the same was true for issues of Indigenous Peoples’ rights and title.^[70] Seven years later, in R v Conway,^[71] the Court also held that where an adjudicative tribunal had jurisdiction to deal with constitutional question, it generally would be considered a “court of competent jurisdiction” for the purposes of providing a remedy under section 24(1) of the Charter.

Even by 2013, however, there had been legislative intervention in at least two provinces. In British Columbia, the Administrative Tribunals Act enacted in 2004^[72] created three categories of tribunal — those with jurisdiction to consider all constitutional questions,^[73] those with no jurisdiction to decide constitutional questions,^[74] and those without jurisdiction to decide Charter questions.^[75] The Act was subsequently amended to include detailed provisions and alternatives for jurisdiction over the province’s Human Rights Code.^[76]

In Alberta, as of 2006, by virtue of the Administrative Procedures and Jurisdiction Act,^[77] only those tribunals designated by regulation had jurisdiction to consider constitutional questions and then only to the extent prescribed.

As far as this affected energy regulators, there was a clear distinction between the situation in British Columbia and that in Alberta. In British Columbia, amendments to their constitutive statutes meant that both the Utilities Commission^[78] and the Mediation and Arbitration Board under the Petroleum and Natural Gas Act^[79] were designated as subject to both sections 44 and 46(3) of the Administrative Tribunals Act, meaning that they had no jurisdiction to decide constitutional questions or to apply the provisions of the Human Rights Code. That continues to this day with the Mediation and Arbitration Board rebranded as the Surface Rights Board.

In contrast, under the Alberta regime, the then Alberta Energy and Utilities Board, the Alberta Utilities Commission, and the then Energy Resources Conservation Board were designated as having jurisdiction to deal with all constitutional questions (as defined in the Act). That too is perpetuated today with respect to the Alberta Utilities Commission and the Alberta Energy Regulator. However, in the energy regulation context, there is one significant restriction. Under section 21 of the Responsible Energy Development Act, the Alberta Energy Regulator’s constitutive statute, it is provided that the Regulator

…has no jurisdiction with respect to assessing adequacy of Crown consultation associated with the rights of aboriginal peoples as recognized and affirmed under Part II of the Constitution Act, 1982.

That role and, more generally, the management of Indigenous consultation processes under the Responsible Energy Development Act is vested in the Aboriginal Consultation Office,^[80] an office established within the Alberta Ministry of Indigenous Relations though not having a specific statutory root.

While in other provinces, there are a few provisions dealing with the capacity of individual tribunals to deal with constitutional issues, the only other jurisdiction in which there is a statutory regime similar to that of either Alberta or British Columbia is Manitoba. Under section 2 of it’s The Administrative Tribunal Jurisdiction Act, enacted as recently as 2021 and proclaimed in force as from January 1, 2022, an administrative tribunal (as defined) “does not have jurisdiction to determine a question of constitutional law” unless conferred with that authority by a regulation made under the Act. Nonetheless, here too, as with Alberta, under section 1 of the Administrative Tribunal Jurisdiction Regulation, Manitoba’s principal energy regulator, the Public Utilities Board,

…has jurisdiction to consider all questions of constitutional law.

In contrast, however, by virtue of section 2 of the Regulation, the province’s Surface Rights Board’s jurisdiction over constitutional questions as defined is confined to

…a question of constitutional law that involves the distribution of powers under the Constitution of Canada between the federal government and provincial governments.

What is also relevant in determining the reach of any such restrictions is that statutory language matters. Thus, in 2010, in Rio Tinto Alcan Inc v Carrier Sekani Tribal Council^[81], McLachlin CJ, for a unanimous Court, held that the British Columbia Utilities Commission was not precluded from evaluating whether the Crown had fulfilled its duty to consult affected Indigenous interests in the context of an application for a rescoping order. The definition of “constitutional question” in section 1 of the Administrative Tribunals Act referentially incorporated the notice provisions in section 8 of the British Columbia Constitutional Question Act.^[82] It provides for the giving of notice where the “constitutional validity or constitutional applicability of any law is challenged” or “an application has been made for a constitutional remedy.” According to McLachlin CJ, the statutory language and structure did not amount to “a clear intention on the part of the legislature to exclude” the Commission’s capacity and duty to evaluate whether the Crown had “discharged its duty to consult with holders of relevant Aboriginal interests.”^[83]

In 2020, this precedent was relied upon by the Alberta Court of Appeal in Fort McKay First Nation v Prosper Petroleum Ltd.^[84] The case involved a challenge by the First Nation to a refusal by the Alberta Energy Regulator to consider whether a project approval was undermined by reference to the Honour of the Crown. In justification of its refusal, the Alberta Energy Regulator pleaded section 21 of the Responsible Energy Development Act. However, the Court rejected this argument primarily on the basis that the Honour of the Crown had dimensions beyond the parameters of the obligation to consult. As the First Nation was not premising its case on the duty to consult, the prohibition in section 21 was not applicable.

The Court also asserted that the Alberta Act’s definition of “constitutional law” did not cover the entire range of constitutional questions or issues that a particular regulatory initiative might implicate. Beyond the reach of the definition, the raising of these other constitutional norms, including the extent of treaty rights, triggered the authority of the Alberta Energy Regulator “over all constitutional questions.”

As for the duty to consult specifically, in matters otherwise coming within the jurisdiction of the Alberta Energy Regulator, the Aboriginal Consultation Office was the designated authority as established the previous year (2019) by the judgment of the Alberta Court of Appeal in Athabasca Chipewyan First Nation v Alberta (Minister of Aboriginal Relations, Aboriginal Consultation Office).^[85]

More generally, the principles with respect to authority over the duty to consult Indigenous Peoples were clarified in two 2017 judgments of the Supreme Court in an energy regulatory context: Clyde River (Hamlet) v Petroleum Geo-Services,^[86] and Chippewas of the Thames First Nation v Enbridge Pipelines Inc.^[87] I discussed the impact of these decisions in my review for 2017 and, in this context, will simply summarize the conclusions that the Court reached:

In summary, what emerges from Clyde River and Chippewas of the Thames is a nigh on comprehensive template for the fashioning of a range of regulatory processes which will overall meet the extent of the constitutional obligation and also establish structural norms within which the assessment of consultation efforts will take place. Beyond this, there is, of course, the spectre of judicial review or statutory appeal. However, with the creation of the framework, court proceedings are now more often concerned with an assessment of the procedures advanced in justification of the fulfillment of the duty than with issues of authority and the appropriateness of the structure within which a consultation regime exists.

IV. CONSTITUTIONAL LIMITATIONS ON JUDICIAL RECOGNITION OF THE DUTY TO CONSULT

In late 2014, Hughes J of the Federal Court, to the surprise of many, held that the duty to consult could be invoked in the context of primary legislation where there was a sufficient possibility that the legislation could have an adverse impact on the rights and interests of Indigenous Peoples. While it did not reach the preparation of primary legislation and the introduction of that legislation in Parliament, once introduced, the duty to consult was triggered. The extent of the duty would depend on the nature of the impact and the likelihood of the feared harm occurring. Given constitutional norms, it would, however, not be appropriate for a reviewing court to issue an injunction; rather, a declaration to the effect that the duty had not been met was the most that a court could do.^[89]

Virtually two years to the day later, the Federal Court of Appeal allowed an appeal from that judgment with the majority holding that, in terms of the Federal Courts Act, the legislative process did not implicate a “federal board, commission or other tribunal.” More generally, impressing the parliamentary process with such an obligation would involve, by reference to the unwritten constitutional principle of separation of powers, impermissible judicial interference with the operations of the legislative branch.^[90]

Almost another two years later, leave to appeal having been given, a majority of the Supreme Court affirmed the Federal Court of Appeal in holding that the courts did not have jurisdiction to impress on parliamentary processes a duty to consult when the rights, interests, and claims of Indigenous Peoples were in jeopardy in legislation before Parliament.^[91]

All nine judges accepted that the proceedings had been brought improperly in the sense advanced by the Court of Appeal. Applications for judicial review were available only with respect to the proceedings of a “federal board, commission or other tribunal” generally, and, by virtue specifically of section 2(2) of the Federal Courts Act, the Governor in Council or Parliament did not qualify. As for section 17(1) of the Federal Courts Act, conferring concurrent jurisdiction on the Federal Court “in all cases in which relief is claimed against the Crown,” it did not apply to the actions of members of the executive branch when exercising legislative power in the form not just of preparing and introducing legislation but also any further steps in Parliament on the path to enactment.

A majority^[92] of the Court, in the course of three different judgments, then went on to hold that, in any event, the duty to consult did not directly attach to the actions of the executive and the legislative branches at any stage of the legislative process through preparation to introduction to enactment. In justification of this proposition, the majority judgments in varying ways explained their position referencing parliamentary privilege, separation of powers, parliamentary sovereignty, and Canadian common law to the effect that legislative functions, absent statutory direction, do not attract the benefit of procedural fairness protections. However, at least four of the nine judges posited that a failure to consult might, in the context of subsequent attacks on the constitutionality and application of legislation, be relevant at the justificatory stage of the relevant analysis.

For the moment, however, it remains to be seen if such speculation is endorsed in any further judicial consideration of whether consultation is any way relevant to the enactment and implementation of primary legislation.

Moreover, a further layer may have been added by the enactment in June of 2021 of the United Nations Declaration on the Rights of Indigenous Peoples Act.^[93]

Article 19 of the Declaration provides:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them [emphasis added].

This commitment finds reinforcement in the preamble to the Act:

Whereas the Government of Canada is committed to taking effective measures — including legislative, policy and administrative measures — at the national and international level, in consultation with Indigenous peoples, to achieve the objectives of the Declaration [emphasis added].

There then follows a commitment to “the protection of Aboriginal and treaty rights — recognized and affirmed by section 35 of the Constitution Act, 1982.”^[94]

Will this provide a springboard to the judicial recognition of participatory rights in the processes of the enactment of primary legislation affecting Aboriginal rights such as the duty to consult, a concept that finds its origins in the Honour of the Crown? For these purposes, one of the critical questions is whether the Act gives rise to judicially enforceable rights. Or does the action plan committed to in sections 5 to 7 of the Act represent the totality of the legal mechanisms through which the promises of the Act will be effectuated, a legal mechanism that does not explicitly contemplate the participation of the courts?

Another way of analyzing the impact of the Act on domestic law is to ask whether the preamble’s recognition of the Declaration “as a source for the interpretation of Canadian law” does no more than speak to the deployment of the Act and the Declaration in the interpretation of existing Canadian law. Is it simply a commitment to have regard as a matter of interpretation to the Declaration when Courts and others are evaluating Crown action by reference to the Declaration, the Act, and other sources of Indigenous law? Or does section 4(a) of the Act, with its affirmation that the Declaration is “a universal international human rights instrument with application in Canadian law [emphasis added]” promise more than that. Rather, is section 4(a) a source of normative, legally enforceable rights which, in the case of the duty to consult, supersedes the Mikisew Court’s characterization of the legislative process as a “no go” arena?

It can also be argued that Mikisew Cree First Nation leaves dangling the important question of whether the duty to consult can be invoked with respect to the promulgation of various forms of subordinate legislation. Rowe J’s was the only judgment (with which Moldaver and Côté JJ concurred) that referred to (and then obliquely) the Canadian common law precedents in which the Supreme Court established that the implied duty of procedural fairness did not reach “legislative” functions of any species. In their dissenting judgment, Abella and Martin JJ certainly spoke generally to the issue:

Although the law of judicial review, which applies to the exercise of statutory powers or the royal prerogative, is often implicated in consultation cases, the duty to consult itself attaches to all exercises of Crown power, including legislative action.^[95]

In seeming contrast, Rowe J stated (case references omitted):

With respect to the duty to consult, the Crown’s actions are reviewable by the courts under the general principles of judicial review… These principles do not allow for courts to review decisions of a legislative nature on grounds of procedural fairness… As a general rule, no duty of procedural fairness is owed by the government in the exercise of any legislative function.^[96]

While he never says so explicitly, this dangling paragraph begs the question: Why include such a statement if not as an opinion that, at least generally,^[97] the duty to consult does not attach to the formulation and enactment of subordinate legislation? Whatever, given that this represents the position of only three judges in a nine-judge panel, it would be unwise to treat this statement as binding or even persuasive authority on this question. While it may state the law accurately with respect to other than the situation respecting the duty to consult, the duty to consult rests on different foundations than the common law principles respecting the application of the duty of procedural fairness. It can also be seen as flying in the face of Tsuu T’ina Nation v Alberta (Environment)^[98] in which the Alberta Court of Appeal held that the duty to consult attached to the adoption by way of Order in Council of a water management plan, clearly a legislative decision.

It is also possible to construct a majority of the Court in support of the proposition that the duty to consult does apply to subordinate legislation. Abella and Martin JJ’s judgment to the effect that it applies to primary legislation obviously implies that it of necessity also applies, where otherwise called for, to subordinate legislation. Karakatsanis J (with whom Wagner CJ and Gascon J concurred) specifically stated that her conclusions with respect to primary legislation did not apply to subordinate legislation. This adds up to five members of the Court supporting directly or inferentially the duty to consult’s threshold application to other than primary legislation. Provided later Courts do not see this combination of otherwise opposing views on the matter of primary legislation as simply dicta, that could have resolved the issue. It may, however, be unwise to rely on this as settling what otherwise might appear to be an ongoing debate.^[99]

It also is the case that the constitutional underpinnings to the proposition that the duty to consult does not attach to the process of enactment of primary legislation do not have the same resonance in the case of subordinate legislation. To the extent that they are based on the privileges and prerogatives of Parliament or the Legislative Assemblies and qualified legislative supremacy, they do not transcend that arena and give rise to immunities on the part of the executive branch in the exercise of delegated legislative authority.

V. COMMON LAW TRIGGERING OF PROCEDURAL FAIRNESS OBLIGATIONS

Cabinet Appeals and Approval Processes

As noted in the previous section, in justification of his position that the duty to consult did not arise in the context of legislation both primary and subordinate, Rowe J relied^[100] in part on at least one judgment in which the Supreme Court had rejected on common law grounds a claim to procedural fairness in the context of a Cabinet appeal, in that instance an appeal from the Canadian Radio-television and Telecommunications Commission (CRTC) to the Governor in Council. In Attorney General of Canada v Inuit Tapirisat of Canada, Estey J characterized the Cabinet’s function as legislative and not subject to review on the basis of procedural unfairness.^[101] It is, however, doubtful that Inuit Tapirisat has survived at least with respect to the classification of an appeal to the Governor in Council from a regulatory agency as legislative in nature.

In Canadian National Railway Co v Canada (Attorney General),^[102] Rothstein J, delivering the judgment of the Court, expressed doubts as to the continuing status of Inuit Tapirisat on the issue of procedural fairness^[103] with respect to Cabinet appeals, and stated that the Governor in Council “does not act in a legislative capacity” when determining appeals from the Canadian Transportation Agency.^[104] It “engages in its own substantive adjudication of the issue brought before it [emphasis added].”^[105] Albeit in the context of evaluating the application of standard of review analysis to the substantive review of a Governor in Council decision, the Court opened the door to challenges to Cabinet appeal processes on the grounds of procedural unfairness.

The Duty to Consult Indigenous Peoples

To the extent that the duty to consult is seen as a common law construct aimed at the effectuation of the written and unwritten constitutional protections possessed by Indigenous peoples, it operates on a different and broader canvas than the general common law principles of procedural fairness. With the controversial exception of direct enforcement in the context of the enactment of primary legislation just discussed, it is a duty that has resonance across the entire universe of statutory and prerogative decision-making. In both the standards for its invocation and the intensity of its requirements, it stands apart from the extent to which common law procedural fairness is impressed upon governmental decision-making.

This proposition is encapsulated in the albeit dissenting judgment of Abella (and Martin JJ) in Mikisew Cree Nation:

Because the honour of the Crown infuses the entirety of the government’s relationship with Indigenous peoples, the duty to consult must apply to all exercises of authority which are subject to scrutiny under s. 35.^[106]

Moreover, the reach of the duty to consult is probably at its most relevant and effective in the domain of executive and policy decisions that engage Aboriginal rights, a domain that is normally off limits for the common law duty of procedural fairness. In other ways, as I have argued already, the threshold for the triggering of the duty to consult is of a quite different character than the general common law threshold requirements for the duty to act in a procedurally fair manner. Thus, where what is at stake is an as yet definitively established right or claim, the application of the duty as well as the intensity of the procedural obligations that it imposes depend in large measure on the court’s analysis of the strength of the as yet undetermined or unsettled claim. That is so whether the decision-making context is legislative, executive, or adjudicative action on the part of or implicating the Crown, or, in terms of the common law procedural fairness threshold, decision-making “on broad grounds of public policy.”^[107] It is also reflective of the reality that claims to the benefits of the duty to consult are for the greater part collectively based and concerned with decision-making or action that is general in its impact.

It should, however, be acknowledged that, even when the degree of consultation is required to be deep, as illustrated by the judgment of the Federal Court of Appeal in Gitxaala Nation v Canada,^[108] the evaluation of the level of consultation can look very much like the analysis courts apply in reviewing compliance with common law procedural standards in response to allegations of bias, the adequacy of reasons, and, more generally, notice, disclosure and other potential sources of procedural unfairness.

Common Law Principles Respecting the Invocation of the Duty of Procedural Fairness

While this paper is concerned largely with changes and evolutions in Administrative Law that have an impact on energy law and regulation, I read that as not precluding evaluation of domains where there has in fact been little or no change. For the most part, the threshold for the application of the common law of procedural fairness is one such domain. As outlined above, the one clear exception is in the context of appeals to the Governor in Council from regulatory decision-making, a process now classified as “adjudicative” in nature. Procedural obligations may also attach to the Governor in Council and subordinate legislation generally where the duty to consult is triggered. However, more generally, in Mikisew, Rowe J accurately describes the current state of the law. Inuit Tapirisat, from 1980, is still authoritative on the general principle even if no longer governing in the instance of Cabinet appeals:

As a general rule, no duty of procedural fairness is owed by the government in the exercise of any legislative function.^[109]

In a thorough-going canvassing of this issue in 2018^[110], Kane J of the Federal Court reaffirmed this aspect of Inuit Tapirisat and made it clear that, for these purposes, legislative action included the Governor in Council in the making of subordinate legislation. Kane J also relied on another 1980 Supreme Court judgment that is accepted as authoritative in this domain: Martineau v Matsqui Institution (No. 2).^[111] There, Dickson J (in a judgment with which Laskin CJ and McIntyre J concurred) stated:

A purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection.^[112]

This suggests an even broader limitation on the reach of implied procedural fairness. Subsequently, in 1990, in Knight v Indian Head School Division No. 19,^[113] L’Heureux-Dubé J characterized this concept in terms of a distinction between decision-making powers of a “legislative and general nature” which did not attract the duty to act in a procedurally fair manner and those of a “more administrative and specific manner” which generally did trigger the obligation. In further elaboration, in 2002, Oland JA, delivering the judgment of the Nova Scotia Court of Appeal in Potter v Halifax Regional School Board,^[114] described the distinction as existing on a sliding scale in terms of levels of generality with decisions directed at a particular individual at one end and decision-making having broad policy dimensions and creating norms rather than deciding on their application to particular situations.

It was on the basis of this articulation that in 2022 in TransAlta Generation Partnership v Alberta (Minister of Municipal Affairs),^[115] the Alberta Court of Appeal in an energy regulatory setting determined that the issuance of ministerial guidelines setting depreciation standards did not attract a duty of procedural fairness albeit that the particular aspect of the guidelines that was under challenge affected a discrete and limited number of coal-fired electricity generation plants. In doing so, the Court of Appeal distinguished^[116] the judgment of the Ontario Superior Court in Tesla Motors Canada ULC v Ontario (Ministry of Transportation).^[117] There, in cancelling a subsidy programme for the purchase of electric vehicles, the Minister had created a grace period but in a letter to Tesla had indicated that it could not take advantage of the grace period. In holding that Tesla was distinguishable, the Alberta Court of Appeal stated:

There, a single entity was intentionally targeted by a Minister for irrelevant purposes. That is not the case here. The fact that the 2027 Linear Guidelines may affect the interests of coal-fired electric power generation property owners differently than they affect the owners of other types of properties does not transform the Minister’s legislative act into an “administrative” decision attracting a duty of procedural fairness.^[118]

On such narrow margins may the application of the standard test rest.

It was also of note that, in TransAlta, the Court of Appeal rejected the argument that, if the common law did not trigger an obligation of procedural fairness, the affected companies could nonetheless assert the application of the doctrine of legitimate expectation. In terms of the standard test for a finding of legitimate expectation,

…the evidence relied upon by the appellants fails to establish a clear, unambiguous, and unqualified representation that the appellants would be consulted on the impugned provision.^[119]

On its face, this would seem to impose a high evidential burden resting on those asserting a “legitimate expectation” and one that raises questions as to the making out of a legitimate expectation arising out of conduct such as in the case of departures from long-standing practices.

When one adds to this the continued admonition that the Canadian version does not extend to the deployment of legitimate expectation as a path to a substantive (as opposed to a procedural) right,^[120] as well as uncertainty as to whether it can even be invoked with respect to decision-making not otherwise subject to a common law duty of procedural fairness,^[121] the current prognosis for the health of this doctrine cannot be favourable.

VI. ETHICAL DIMENSIONS OF REGULATORY PROCESSES

In my past two annual surveys,^[122] I have discussed the Alberta Utilities Commission’s enforcement proceedings with respect to the ATCO group of companies and, more specifically, arising out of a contract entered into by ATCO. The allegations arose in the context of a rate application by ATCO Electric. They involved, at a general level, an allegation of lack of frankness or candour on the part of ATCO Electric in its justification of it rates application and what was alleged to involve a strategy to transfer to ATCO Electric’s ratepayers the costs of a contract that ATCO Electric had entered into at above fair market value in order to benefit a non-regulated affiliate.

There is no doubt that this is the stuff of which scandals are made and ATCO was quick to respond once the Commission’s Enforcement Staff applied to the Commission to authorize the commencement of enforcement proceedings under sections 8 and 63 of the Alberta Utilities Commission Act with a view to determining whether ATCO had violated any provisions of the relevant legislation, and, if so, should pay an administrative penalty. Enforcement Staff’s application was made after an investigation on November 29, 2021.^[123] On November 30, 2021, ATCO released the results of its own internal investigation. To quote a news report from that same day:

An internal investigation undertaken by ATCO showed that failures in the company’s procedures and disclosure processes resulted in contraventions of the Inter-Affiliate Code of Conduct, a set of rules ATCO’s regulated companies follow to ensure fair business practices and proper disclosure.^[124]

The then Alberta Energy and Utilities Board had approved that Code on May 22, 2003.^[125] First among the list of underlying objectives set out in section 1.1 of the Code is the following:

In its online introduction to its own Inter-Affiliate Code of Conduct, Fortis Inc is more blunt. The Code

…ensures that all transactions between FortisAlberta and our affiliates are conducted a fair and transparent manner.^[126]

Despite ATCO’s mea culpas and justifications for actions that it said were essentially for the benefit of a First Nation community, the other party to the relevant contract, the matter proceeded and eventually resulted in Commission approval of a settlement agreement that Enforcement Staff had negotiated with ATCO.^[127] That agreement, as recounted in my 2022 survey article, sustained Enforcement Staff’s allegation that ATCO had breached its “fundamental duty of honesty and candour to its regulator”^[128] and amounted to a failure to ensure that the information that it provided to the Commission was “full, fair and accurate.”^[129] Among the sanctions imposed under the settlement agreement was payment by ATCO of an administrative penalty of $31 million.

Whether the sanctions imposed on ATCO were appropriate, I will leave to others to debate.^[130] However, what is more significant is the message sent not just by the extent of the penalty but also the precedent that it sets in its recognition that failures to meet ethical and legal standards of conduct in a regulatory context have consequences. In this respect, I repeat from my 2022 survey article the powerful statement of Vice-Chair Larder for the Commission approving the settlement:

The second aspect of the harm to ratepayers is difficult to quantify, but very serious. There is a broader harm to ratepayers and all other participants in the regulatory system resulting from ATCO Electric’s actions. In making its decisions, the Commission must be able to rely on the information presented by the utility as full, fair and accurate. This is a fundamental premise of the Electric Utilities Act and our regulatory system more generally, as set out above. ATCO Electric’s contraventions represent an egregious breach of trust, which has eroded the public’s trust and confidence in the Commission’s regulatory process, and the Commission’s trust of ATCO Electric. Regardless of the financial harm suffered, this harm is in and of itself material and significant.^[131]

Undoubtedly, this represents a clarion call as to the responsibilities of those who in varying capacities rely on the even-handedness of regulatory processes. Without candour and transparency on the part of all participants, the compact on which those processes are based can be gravely, if not fatally compromised. It also elevates the status of regulatory codes of conduct and recognition of duties of candour and transparency to more than an acknowledged but seldom invoked component of a corporate website into documents that have meaning and is truly reflective of a commitment to underlying values.

Moreover, the principles are ones that should apply not just to the participants in regulatory hearings. As illustrated by the ongoing furore over the Alberta Energy Regulator’s delay in releasing information about a serious tailings point leak especially affecting local Indigenous communities,^[132] regulators themselves have responsibilities of candour and transparency. Calls for the dismantling of the Alberta Energy Regulator and expressions of a loss of confidence in the regulator are rooted in the same values that were at stake in the ATCO transgressions.^[133]

VII. DEFENDING DECISIONS – THE ROLE OF THE DECISION-MAKER

Under our traditional litigation model, courts do not appear as parties to appeals from their decisions. Conventional wisdom is that their decisions and the formal record of their proceedings form the basis on which the appeal or review is to be conducted. It is unseemly and inappropriate for them to be heard otherwise in justification of the merits of their decisions.

In 1979, those same principles were for the most part adopted by the Supreme Court of Canada in Northwestern Utilities Ltd. and al. v Edmonton,^[134] a rate application proceeding before the then Alberta Public Utilities Board. Northwestern asserted that, at least on the particular facts of this matter, the Board should take into account pre-application losses in a rate-setting exercise. The Board accepted that argument. Edmonton appealed that decision successfully to the Appellate Division of the Alberta Supreme Court.^[135] The City also prevailed on a secondary argument that the Board had not fulfilled a statutory obligation to provide reasons for its decision. On Northwestern’s appeal to the Supreme Court of Canada, Estey J, delivering the judgment of the Court, upheld on both grounds the judgment of the Appellate Division.^[136]

Estey J then moved on to consider the role that counsel for the Board had taken before the Supreme Court, a role that Estey J described as “active and even aggressive participation.”^[137] Despite the fact that section 65 of the The Public Utilities Board Act^[138] entitled the Board “to be heard upon the argument of any appeal,” this did not mean that the Board had the same participatory rights as the parties who had appeared before it. In the absence of explicit statutory recognition that the Board had parity of status with the contesting parties on the appeal or a provision that provided for full or partial decision-maker submissions, its role was more in the nature of that of an amicus curiae. In concrete terms, this meant that the Board’s participation was an “explanatory” one with reference to the record before the Court and “to the making of representations relating to jurisdiction.”^[139] For these purposes, issues of natural justice and compliance with the statutory obligation to provide reasons did not count as matters of jurisdiction nor did the reach and interpretation of the relevant statutory provision respecting past losses cross that threshold; it went to the merits of the matter and was not jurisdictional in nature.^[140]

The core of Estey J’s concerns with more active Board engagement in the hearing of the appeal on either of the two issues is captured well in the following statement:

Such active and even aggressive participation can have no other effect than to discredit the impartiality of an administrative tribunal either in the case where the matter is referred back to it, or in future proceedings involving similar interests and issues or the same parties. The Board is given a clear opportunity to make its point in its reasons for its decision, and it abuses one’s notion of propriety to countenance its participation as a full-fledged litigant in this Court, in complete adversarial confrontation with one of the principals in the contest before the Board itself in the first instance.^[141]

In my earlier commentary on this issue,^[142] I trace the case law in which slowly but surely the wheel turned. Both the Supreme Court and appellate courts (including appeals from and judicial review of energy regulators) began to recognize that this issue was not resolved satisfactorily by imposing blanket or “categorical” bans on tribunal participation based on the concept of jurisdiction and an acceptance that issues of natural justice or procedural fairness were jurisdictional in nature.

Especially influential in the evolution in the jurisprudence were judgments of Goudge JA of the Ontario Court of Appeal in 2005^[143] and Stratas JA of the Federal Court of Appeal in 2010.^[144] More generally, the movement in Canadian judicial review law away from the concept of jurisdiction as a boundary setter required a rethinking of the “categorical” approach in this domain. The more that standard of review case law evolved, the more it became clear that jurisdiction was far from a bright-line basis for determining what was allowable as a matter of discretion and what was not.

The culmination came in 2015 and the judgment of Rothstein J for a majority of the Supreme Court of Canada in Ontario (Energy Board) v Ontario Power Generation Inc.^[145] Here, the Court rejected explicitly the categorical approach to determining the role of the decision-maker in court challenges to its decisions. In its place, Rothstein J held that the proper approach was one which treated the issue as a matter of discretion for the reviewing or appellate court in which various factors, at times conflicting, should be weighed in determining the extent, if any, of the decision-maker’s role.

On one side of this balancing exercise were the concerns about the maintenance of impartiality and the principle of finality that Estey J articulated so strongly in the extract from his judgment that I quoted earlier and that Rothstein J acknowledged.^[146] However, there were countervailing concerns rooted in the importance of the appellate or reviewing court having the benefit of the best defence of the tribunal’s decision, something that would at least on occasion require access to “useful and important information and analysis” available to the tribunal but not otherwise apparent from the record of the hearing.^[147]

Obviously, as in Northwestern Utilities,^[148] the decision under review was that of an energy regulator. However, as opposed to Northwestern Utilities, where the contesting parties before the Board were active participants in the two court proceedings, there was no party defending the Board’s decision in the Divisional Court in Ontario Power Generation.^[149] For Rothstein J, this was an important consideration in the evaluation of the decision-maker’s role in the judicial review, and it remains so to this day whenever issues as to the decision-maker’s participation are raised. Without the unlikely presence of the Attorney General or the appointment of an amicus curiae, the Board’s decision would otherwise not have been defended.

It does, however, bear pointing out that in another appeal heard in parallel with Ontario Power Generation, a regulator made submissions in defence of the adequacy of its reasons and the appropriate standard of review despite the presence of a party defending the merits of its decision. This was in ATCO Gas and Pipelines Ltd v Alberta (Utilities Commission),^[150] involving a successor to the Alberta Public Utilities Board, the decision-maker in Northwestern Utilities, and the participation in support of the Commission’s decision of the Utilities Consumer Advocate. In its judgment in that case, the Supreme Court was silent on the appropriateness of the Commission making submissions given the presence of the Consumer Advocate. This remains puzzling especially given that Slatter JA, delivering the judgment of the Alberta Court of Appeal had been very critical of the scope of the Commission’s submissions.^[151] However, at the very least, in the spirit of Rothstein J’s judgment, it is implicitly clear that, under participation standards that are contextual and nuanced in nature, the presence of a party arguing in defence of the board or tribunal’s decision remains a consideration but, neither now nor even under Northwestern Utilities for that matter, disqualifying of the decision-maker’s participation.

What does put distance between Northwestern Utilities and the new regime is Rothstein J’s acceptance that, on the facts of Ontario Power Generation, with one minor exception, the Board did not exceed the permissible reach of its participatory licence when making submissions to the Supreme Court as to the reasonableness of the decision under review.^[152] This was certainly not something that Estey J would have countenanced in Northwestern Utilities. What is also of significance is that Estey J appeared to lump all administrative tribunals together for the purposes of establishing ground rules for the role of the decision-maker in judicial review and statutory appeal proceedings. Not so, asserted Rothstein J in Ontario Power Generation. The nature of the tribunal proceedings was relevant in considering the weight to be assigned to concerns about impartiality and the ultimate assignment of capacity to participate in an appeal or judicial review:

Whether the tribunal adjudicates individual conflicts between two adversarial parties, or whether it instead serves a policy-making, regulatory or investigative role, or acts on behalf of the public interest, bears on the degree to which impartiality concerns are raised.^[153]

In this regard, the Ontario Energy Board was clearly in the latter category and thus deserving of greater tolerance when appearing in defence of its decision or elements thereof.

Nonetheless, it is important to recognize that the characterization of a tribunal as one that resolves conflicts between two adversarial parties rather than one that is more focussed on policy making and public interest regulation does not mean that tribunal participation in defence of its decisions is necessarily truncated. Beyond the realm of energy regulation, a clear example exists in the context of workers’ compensation claims adjudications. There, the nature of the process is much closer to traditional adjudicative functions than, for say, rate setting regulation. However, it is also the case that, quite frequently, on an appeal from or judicial review of such benefit allocations, there will be no one appearing in support of the tribunal’s decision. In that context, the calculus may appear to be somewhat different yet, nonetheless, the courts since Ontario Power Generation do recognize greater participation than would ever have been acceptable to Estey J in Northwestern Utilities. This is apparent from a series of British Columbia Workers’ compensation judgments in which there was no one appearing in support of the decision under review. This opened the door to the Workers’ Compensation Appeal Tribunal being permitted to make representations as to the correctness of the decision under review.^[154]

Even where there is a party appearing in support of the decision under appeal or review, there may be occasions on which limited participation of the tribunal will be allowed. This is well illustrated by an Ontario judgment involving that province’s equivalent of the British Columbia Workers’ Compensation Appeal Tribunal. In Hydro Ottawa v Ontario (Workplace Safety and Insurance Appeal Tribunal,^[155] the Court allowed the Tribunal, despite the presence of a party defending its decision, to

…present arguments concerning the applicable standard of review, jurisdictional issues, policy considerations, and the interrelationship of legislative provisions [in two relevant Acts].^[156]

However, the Court indicated that it would not be taking into account those portions of the Tribunal’s factum in which it addressed “the reasonableness of the decision.”^[157]

Some might lament the change from the categorical approach to the issue of decision-maker participation in defence of its decisions as a retreat from certainty. However, once one accepts the porous nature of jurisdiction as a controlling concept and the inherent uncertainty of the precise boundaries of an explanatory role, it should be obvious that, under the Northwestern Utilities principles, appeals to the advantages of certainty over contextual discretion lose much of their impact. What is also clear is that the relevant contextual factors will interact in varying ways in the search for an appropriate delineation of the precise role of the decision-maker.

A useful illustration is provided by TransAlta Corp v Alberta (Utilities Commission).^[158] In the context of a proceeding in which the critical issue was the application and interpretation of the principles of res judicata, the Court recognized the status of the Commission to make submissions on the merits of that issue. Despite that there were other parties to the appeal,^[159] each of those parties had conceded that they lacked the capacity to defend this aspect of the Commission’s decision.^[160] However, the Court was careful to make it clear that this did not amount to a licence to supplement its reasons in resistance to possible concerns about their adequacy. This would have amounted to impermissible “bootstrapping” as a result of which the Court indicated that it was not going to take into account anything in the Commission’s factum that elaborated upon the reference in the Commission’s decision to “previous [unnamed] rulings.” The matter turned on a pure question of law that could and should be addressed on the basis of the formal record of the proceedings “as exists and without additions.”^[161]

In fact, if there is any trace of a categorical approach to the issue of tribunal participation, it lies in the recognition that bootstrapping or the making of entirely new arguments is not permissible. This , of course, as Rothstein J makes clear in Ontario Power Generation,^[162] is not a prohibition that attaches only to submissions made by a tribunal subject to an appeal or an application for judicial review. It has a much broader reach than that and applies as a principle of general application in the context of strictures on what any party to an appeal or an application for judicial review is permitted to do.

However, in the context of tribunal participation in appeals and applications for judicial review, the principles against bootstrapping and the making of new arguments have to be differentiated from other forms of representation that are permissible especially in the context of regulatory and policy-focussed agencies. As outlined by Rothstein J in Ontario Power Generation,^[163] the prohibition on bootstrapping does not prevent arguments that are implicit in the reasons given for the decision now under attack, or, more generally, that provide explanations, interpretations, and background to that decision. Provided there is no inconsistency with the reasons for decision or an attempt to provide variations or qualifications to those reasons, explanatory submissions should generally be permitted.

Obviously, given the extent of the case law largely interpreting but, in some instances, building upon Ontario Power Generation, at the margins there are still outstanding issues as well as differing views on how to apply the Rothstein principles. As already emphasised given the contextual variations under which this issue can arise, that is not surprising. I believe it is also fair to say that some judges have at an intuitive level less tolerance for tribunal defence of their decisions than others. Nonetheless, the movement away from the rule-bound approach in Northwestern Utilities^[164] has resulted in an appropriately more nuanced and situation-specific approach to this important issue and that is a good thing.

CONCLUSIONS

Much of the discourse about Administrative Law over the past decade and the life of the Energy Regulation Quarterly has continued to centre on the standard of review. That attention became even more focussed with the judgment of the Supreme Court of Canada in Vavilov. For those who for whatever reason favoured a lessening of judicial deference to statutory and prerogative decision-making, there was certainly some comfort to be taken from Vavilov albeit that the judgment’s most discussed change — no longer any deference for pure questions of law in statutory appeals — has not proved to be the game changer that was anticipated. Moreover, to the extent that the Court stated explicitly that it was conducting an exercise that would establish standards for the universe of administrative action, that ambition was not achieved. Uncertainty still exists over standard of review templates for judicial review for procedural unfairness and, even more significantly, judicial review of subordinate legislation and other manifestations of executive power.

However, if we change our attention from the intricacies of standard of review and the frequent follies that have attended the evolution of that aspect of judicial review law to a more process-oriented perspective, there is much to celebrate in the developments of the last decade. For all its warts with respect to standard of review, the lasting impact of Vavilov may rest in its articulation of the various elements that underpin reasonableness review. In general, the deference project was one that I signed on to and I do worry about the extent to which Vavilov involves a rejection of expertise as a restraining influence on judicial review. Nonetheless, the Court’s articulation of the factors that should be the focus of administrative decision-makers wishing to avoid judicial review also provides a first-rate checklist for the writing of high quality reasons. Surely, no one can quarrel with that.

Early in the ten years under review, there was another significant focus on process that has contributed to the effective conduct of judicial review proceedings. I refer here to the judgment of Rothstein J in Ontario Power Generation that moved the law away from a formalistic, categorical to a functional approach in determinations of the extent to which tribunals themselves could participate in the judicial review process. At last, there was recognition that there were many situations where at least some level engagement on the part of the decision-maker could lead to better informed decision-making.

At the regulatory agency level, the Supreme Court aided in some measure by Courts of Appeal and the agencies themselves, continued to establish procedural norms for the duty to consult and, where required, accommodate Indigenous Peoples whose rights, claims and interests were affected by regulatory proceedings. Once again, functionalism and pragmatism informed much of this evolution.

Remarkably, the same spirit has not generally informed judicial encounters with attempts to move the threshold for invoking the duty to act fairly from other than formulaic incantations to a more functional and expansive approach to participatory opportunities. In this respect, one should be thankful for the extent to which legislators, both primary and subordinate, as well many but unfortunately not all agencies and tribunals through their rulemaking authority have contributed to the procedural fairness project.

I also trust that the recent Alberta Utilities Commission disciplinary proceeding against ATCO will lead to a greater awareness that it is in the interests of all participants in regulatory processes (including the agencies themselves) that transparency and candour is the expected and accepted norm. Commitment to the protection of the public interest demands no less and should lead to the recognition of a new regulatory compact even within the regulation of what at times are highly competitive markets.

 

* David J. Mullan, Emeritus Professor, Faculty of Law, Queen’s University. Parts of this paper owe much to exchanges with John M. Evans, former Justice of the Federal Court of Appeal.

1. David J. Mullan, “Regulators and the Courts: a Ten Year Perspective” (2013) 1 Energy Regulation Q, online: ERQ <energyregulationquarterly.ca/articles/regulators-and-the-courts-a-ten-year-perspective-1>.
2. “Administrative Law and Energy Regulation” in Kaiser and Heggie (eds), Energy Law and Policy (Toronto: Carswell, 2011) at 35.
3. 2019 SCC 65, [2019] 4 SCR 653.
4. 2019 SCC 66, [2019] 4 SCR 845.
5. Supra note 3 at paras 2, 10–11, 16, 23.
6. Ibid at para 23.
7. Ibid at para 11.
8. Outlined by the Supreme Court in Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235.
9. For an early example where Paul Daly argues that the change may have impacted the outcome, see Paul Daly, “Rates and Reserves: Manitoba (Hydro-Electric Board) v Manitoba (Public Utilities Board), 2020 MBCA 60” (13 October 2023), online: Administrative Law Matters <www.administrativelawmatters.com/blog/2020/10/13/rates-and-reserves-manitoba-hydro-electric-board-v-manitoba-public-utilities-board-2020-mbca-60>.
10. And presumably also palpable and overriding error in the domains of review of findings of fact, and mixed law and fact, and, more generally, reasonableness review.
11. This category was restored in 2022 in SOCAN v Entertainment Software Association, 2022 SCC 30.
12. David J. Mullan, “2022 Developments in Administrative Law Relevant To Energy Law and Regulation” (2023) 11:1 Energy Regulation Q, online: ERQ <energyregulationquarterly.ca/regular-features/2022-developments-in-administrative-law-relevant-to-energy-law-and-regulation>.
13. 2022 SCC 29.
14. Supra note 3 at para 2.
15. Ibid at (inter alia) para 100, citing to Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 47.
16. Ibid at paras 84, 143.
17. Ibid at para 103.
18. Ibid at paras 85, 105.
19. Ibid at para 127.
20. Ibid at paras 118, 120.
21. Ibid at paras 105–26.
22. Ratman v Workplace Safety and Insurance Appeal Tribunal, 2022 ONSC 3923 (Div Ct) at para 13 (per Swinton J). For a further example (also by Swinton J), see Radzevicius v Workplace Safety and Insurance Appeals Tribunal, 2020 ONSC 319 (Div Ct) at paras 17–20, 56–58.
23. As articulated in Vavilov, supra note 3 at para 30 and elsewhere in the judgment.
24. Supra note 4 at paras 94–96.
25. 2020 ONSC 319 (Div Ct).
26. 2023 ABCA 129.
27. ATCO Electric Ltd., Z Factor Adjustment for the 2016 Regional Municipality of Wood Buffalo Wildfire, 21609-D01-2019, 2019 LNAUC 170
28. SA 2003 c E-5.1.
29. 2006 SCC 4, [2006] 1 SCR 140.
30. 2015 ABCA 295, 28 Alta LR (6^th) 252, leave to appeal refused [2016] 1 SCR ix, and commented on in my review of 2015 developments: David J. Mullan, “2015 Developments in Administrative Law Relevant to Energy Law and Regulation” (March 2016) 4:1 Energy Regulation Q, online: ERQ <energyregulationquarterly.ca/articles/2015-developments-in-administrative-law-relevant-to-energy-law-and-regulation>.
31. Supra note 26 at para 14.
32. Ibid at para 16.
33. Ibid.
34. Ibid, where the Court describes the appeal provision as having “replaced” common law judicial review.
35. Ibid.
36. Ibid.
37. Ibid.
38. Ibid. This raises a serious question as to whether, in such situations, judicial review remains an alternate route for such mixed questions of fact and law, and factual determinations. It seems implicit that such a route has been removed by the legislation but cf Nigel Bankes, “Statutory Appeal Rights in Relation to Administrative Decision-Maker Now Attract an Appellate Standard of Review: A Possible Legislative Response”, (3 January 2020), online (pdf): Ablawg <ablawg.ca/wp-content/uploads/2020/01/Blog_NB_Vavilov.pdf>. I am also grateful to Professor Bankes for providing me with the originating application for judicial review in Benga Mining Limited v Alberta Energy Regulator, in which the applicant for judicial review is applying to the Alberta Court of King’s Bench for judicial review of a decision on an unreasonableness basis on the grounds of factual error and error with respect to mixed questions of law and fact, neither coming within the scope of the statutory appeal provision applicable to the review of decisions of the Alberta Energy Regulator with leave on questions of law and jurisdiction: Responsible Energy Development Act, SA 2012 c R-17.3, section 45(1). It remains to be seen whether this application survives any motion to strike on the basis that it is excluded implicitly by the statutory appeal provision. If residual access to judicial review as a matter of interpretation is precluded, then, as posited in my conversation with Professor Bankes, the only apparent justification for the application for judicial review would be based on a constitutional guarantee in the sense of a modified version of Crevier v Quebec (AG), [1981] 2 SCR 220, with Crevier’s guarantee of review for jurisdictional error now read as replaced by a guarantee of access to a superior court with review for unreasonableness or possibly all errors of law.
39. Ibid.
40. 2020 ONSC 598 (Div Ct) at paras 26, 31. I discussed the implications of this judgment in David J. Mullan, “2020 Developments in Administrative Law Relevant to Energy Law” (2021) 9:1 Energy Regulation Q, online: ERQ <energyregulationquarterly.ca/regular-features/2022-developments-in-administrative-law-relevant-to-energy-law-and-regulation>.
41. Supra note 26 at paras 17–18.
42. For a convincingly critical analysis of this aspect of the Court’s judgment, see Nigel Bankes “Stores Block Meets Vavilov: The Status of Pre-Vavilov ABCA Decisions” (1 May 2023), online: Ablawg <ablawg.ca/2023/05/01/stores-block-meets-vavilov-the-status-of-pre-vavilov-abca-decisions>.
43. Supra note 26 at para 21. The whole question of fettering also featured in a case on which I commented in David J. Mullan, “2021 Developments In Administrative Law Relevant to Energy Law And Regulation” (May 2022) 10:1 Energy Regulation Q, online: ERQ <energyregulationquarterly.ca/regular-features/2021-developments-in-administrative-law-relevant-to-energy-law-and-regulation#sthash.SqpSsi2k.dpbs>; See also AltaLink Management Ltd v Alberta (Utilities Commission), 2021 ABCA 342.
44. Ibid at para 22.
45. Ibid at para 23.
46. Ibid at para 62, as directed by section 29(11)(c) of the Alberta Utilities Commission Act providing that where the Court directs the variation of a decision, “the Court shall refer the matter back to the Commission for further consideration and determination”. I have previously discussed the question of “When to Remit” in David J. Mullan, “2020 Developments in Administrative Law Relevant to Energy Law” (2021) 9:1 Energy Regulation Q, online: ERQ <energyregulationquarterly.ca/regular-features/2020-developments-in-administrative-law-relevant-to-energy-law1>.
47. Dunsmuir v New Brunswick, supra note 15.
48. 2013 SCC 36, [2013] 2 SCR 559 at paras 45–46.
49. Ibid at para 45.
50. Telfer v Canada Revenue Agency, 2009 FCA 23 at para 18.
51. Supra note 8 at para 37.
52. See the extensive discussion by Mark Mancini, “Horrocks: What Happens to Agraira?” (9 March 2020), online: Double Aspect <doubleaspect.blog/2020/03/09/horrocks-what-happens-to-agraira>.
53. See Mancini, ibid, citing to page 60 of the then current version of Justice Stratas’ “The Canadian Law of Judicial Review: Some Doctrine and Cases” (Last updated 28 October 2022), online: SSRN <papers.ssrn.com/sol3/papers.cfm?abstract_id=2924049>; See also his judgment in Hupacasath First Nation v Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4 at paras 74–78. Incidentally, Stratas JA was not on the Telfer panel of the Federal Court of Appeal.
54. 2014 SCC 37, [2014] 2 SCR 33 at para 108.
55. 2017 FCA 157, [2018] 2 FCR 344 at paras 56–58.
56. Supra note 52.
57. 2021 SCC 42.
58. Ibid at para 12.
59. Ibid.
60. Ibid citing (inter alia) the Hon. J.M. Evans, “The Role of Appellate Courts in Administrative Law” (2007) 20 CJALP 1 at 30–34. Evans JA (as he then was) delivered the judgment of the Federal Court of Appeal in Telfer, supra note 50.
61. And, there may be!
62. I would hesitate, however, to impose a further layer of reasonableness review at this level as manifest in the question: Was it reasonable for the first instance court to determine that the answer provided to a question of law by the decision-maker was reasonable?
63. Including mixed questions of law and fact from which there is a readily extricable pure question of law.
64. I unashamedly acknowledge the influence that Mark Mancini has had on my thinking about this knotty problem including “Horrocks: What Happens to Agraira?”, supra note 52, and Keith Brown & Mark Mancini “Post-Horrocks Judicial Review Appeals: Deference on Questions of Evidence?” (20 December 2022), online: SSRN <papers.ssrn.com/sol3/papers.cfm?abstract_id=4284018>, scheduled to appear in the Canadian Journal of Administrative Law and Practice. See also for commentary on Horrocks in Paul Daly, “Steady as She Goes: Northern Regional Health Authority v Horrocks, 2021 SCC 42”, online: <www.administrativelawmatters.com/blog/2021/10/22/steady-as-she-goes-northern-regional-health-authority-v-horrocks-2021-scc-42>.
65. Of course, this argument assumes that the relevant legislation does not speak directly or explicitly to the role of the first instance court, as in the case where the first instance court is confined in either setting to review of questions of law. In that context, the problem is finessed.
66. See my account in David J. Mullan “Regulators and the Courts: a Ten Year Perspective” (November 2013) 1 Energy Regulation Q, online: ERQ <energyregulationquarterly.ca/articles/regulators-and-the-courts-a-ten-year-perspective-1>.
67. 2003 SCC 54, [2003] 2 SCR 504.
68. Admittedly, this begs the question as to which administrative decision-makers are implicitly authorized to deal with questions of law. All decision-makers subject to a duty of procedural fairness in their decision-making? If the class is more expansive than that, where is the line to be drawn? What about those performing legislative or executive functions such as rule-making or the promulgation of subordinate legislation? How much is to be read into the acceptance by Rothstein J (for the Court) in Canadian National Railway v Canada (Attorney General), 2014 SCC 40, [2014] 2 SCR 135 at paras 33–37, 48–49 to the effect that the Governor in Council in hearing appeals from the Canadian Transportation Agency has the authority to not only determine broad questions of policy and fact, but also questions of law. For a recent recognition of this holding, see Sagkeeng v Government of Manitoba, 2021 MBCA 88 at paras 31, 96–97. More generally, for an analysis in the immediate aftermath of Martin and Paul, see John M. Evans, “Principle and Pragmatism: Administrative Agencies’ Jurisdiction over Constitutional Issues” in Grant Huscroft and Michael Taggart (eds), Inside and Outside Canadian Administrative Law (Toronto: University of Toronto Press, 2006) at 377.
69. 2003 SCC 55, [2003] 2 SCR 585.
70. More recently, however, doubt has been raised as to whether there is an exact parallel between questions of Indigenous rights and other constitutional questions for these purposes. In Ktunaxa Nation v British Columbia (Forest, Lands and Natural Resources Operations), 2017 SCC 54, [2017] 2 SCR 386 at para 85, McLachlin CJ and Rowe J for the majority, stated
    Without specifically delegated authority, administrative decision makers cannot themselves pronounce upon the existence or scope of Aboriginal Rights, although they may be called upon to assess the prima facie strength of unproved Aboriginal claims and the adverse impact of proposed government actions on those claims in order to determine the depth of consultation required [emphasis added].
    The extent to which this detracts from the general principles established in Martin and Paul, and, more specifically, the duty of consultation remains uncertain. However, it seems likely that this statement has to be understood in light of the context in which it was made. The application for judicial review was with respect to the adequacy of consultation in a process leading to ministerial approval of a development. Within that judicial review framework, it would not have been within the authority of the Minister to have moved on to consider whether the as yet unproven claim was established on the merits. That was for a court as part of a trial of the issue respecting the validity of the Nation’s as yet unproven claim. It is, however, unfortunate that the Court did not cite and explain why Paul did not apply. See the discussion of this issue in Heckman, Mullan, Promislow, and Van Harten, Administrative Law: Cases, Text, and Materials (Toronto: Emond, 8^th ed, 2022), ch 13, The Jurisdiction of Tribunals to Decide Constitutional Questions, at 765–66.

71. 2010 SCC 22, [2010] 1 SCR 765.
72. SBC 2004 c 45.
73. Ibid, s 43
74. Ibid, s 44.
75. Ibid, s 45.
76. Ibid, ss 46.1–46.3. The application of these provisions was and is left to amendments to the constitutive statutes of tribunals governed by the Act.
77. RSA 2000 c A-3 (as amended).
78. See Utilities Commission Act, (as amended by Administrative Tribunals Act) RSBC 1996 c 473 s 2(4)).
79. See Petroleum and Natural Gas Act (as amended by Administrative Tribunals Act) RSBC 1996 c 361 s 13(6)).
80. Though the Alberta Utilities Commission Act contains no such limitation, in 2016, the Alberta Utilities Commission ruled that it did not have authority to evaluate the sufficiency of the Crown’s consultations at least when the Crown was not before it either as an applicant or other participant. See Alberta Utilities Commission, Proceeding 20130, Ruling on jurisdiction to determine the questions stated in Notice of Questions of Constitutional Law, October 7, 2016. For details as to the functioning of the Aboriginal Consultation Office, see “Proponent-led Indigenous consultations”, online: Government of Alberta <www.alberta.ca/proponent-led-indigenous-consultations.aspx>.
81. 2010 SCC 43, [2010] 2 SCR 650.
82. RSBC 1996, c 68.
83. Supra note 81 at para 72.
84. 2020 ABCA 163. I discuss this judgment in David J. Mullan, “2020 Developments in Administrative Law Relevant to Energy Law” (2021) 9:1 Energy Regulation Q, online: ERQ <energyregulationquarterly.ca/regular-features/2020-developments-in-administrative-law-relevant-to-energy-law1>.
85. 2019 ABCA 401, affg 2018 ABQB 262, a judgment discussed in David J Mullan, “2018 Developments in Administrative Law Relevant to Energy Law and Regulation” (2019) 7:1 Energy Regulation Q, online: ERQ <energyregulationquarterly.ca/articles/2018-developments-in-administrative-law-relevant-to-energy-law-and-regulation>.
86. 2017 SCC 40, [2017] 1 SCR 1069.
87. 2017 SCC 41, [2017] 1 SCR 1099.
88. [1994] 1 SCR 159.
89. Mikisew Cree First Nation v Governor in Council, 2014 FC 1244.
90. Canada (Governor General in Council) v Mikisew Cree First Nation, 2016 FCA 311, [2017] 3 FCR 298
91. Mikisew Cree First Nation v Canada (Governor in Council), 2018 SCC 40, [2018] 2 SCR 765.
92. Abella J, Martin J concurring, accepted that the constitutional to consult could be impressed in the name of the Honour of the Crown in the process of enacting legislation.
93. SC 2021, c 14.
94. See also section 2(2) of the Act declaring that the Act is to be construed as upholding the rights of Indigenous Peoples as recognized and affirmed in section 35 of the Constitution Act, 1982.
95. Supra note 91 at para 75.
96. Ibid at para 168.
97. In fact, three of the four precedents deployed by Rowe J involved arguments for participatory rights in the context of the introduction and passage of primary legislation: Reference re Canada Assistance Plan, [1991] 2 SCR 525 at 558; Wells v Newfoundland, [1999] 3 SCR 199 at para 59, and Authorson v Canada (Attorney General), 2003 SCC 39, [2003] 2 SCR 40 at para 41. The sole exception was Attorney General of Canada v Inuit Tapirisat of Canada, [1980] 2 SCR 735 at 758–59, a judgment rejecting the application of the duty of procedural fairness in the context of an appeal to the Governor in Council from a decision of the CRTC.
98. 2010 ABCA 137.
99. See the discussion of this issue under the heading “Does the Duty Apply to Legislative Action?” in Heckman, Mullan, Promislow, and Van Harten, Administrative Law: Cases, Text, and Materials (Toronto: Emond, 8^th ed., 2022), ch 8, The Duty to Consult and Accommodate Aboriginal Peoples, 391 at 407–10. More recently, see the partially dissenting judgment of Corbett J in Association of Iroquois and Allied Indians v Ontario (Minister of Environment, Conservation and Parks), 2022 ONSC 5161 (Div Ct) at paras 19–31, analysing Mikisew. Swinton J (Penny J concurring), at para 1 of her judgment, concurred with Corbett J on the holding in his judgment in which this issue was discussed. Corbett J also notes (at para 21), Karakatsanis J’s favourable reference (at para 51) to Nigel Bankes “The Duty to Consult and the Legislative Process: But What About Reconciliation?” (21 December 2016), online: ABlawg <ablawg.ca/2016/12/21/the-duty-to-consult-and-the-legislative-process-but-what-about-reconciliation>.
100. Supra note 91 at para 168.
101. Attorney General of Canada v Inuit Tapirisat of Canada, supra note 97.
102. 2014 SCC 40, [2014] 2 SCR 135.
103. Ibid at para 39. It “may not represent the current law.”
104. Ibid at para 51.
105. Ibid at para 52.
106. Supra note 91 at para 63, and cited by Corbett J in Association of Iroquois Indians, supra note 99 at para 25.
107. See Martineau v Matsqui Institution, [1980] 1 SCR 602 at 628.
108. 2016 FCA 187, [2016] 4 FCR 418.
109. Supra note 97 at para 168.
110. Canadian Union of Public Employees v Canada (Attorney General), 2018 FC 518 at paras 119–34.
111. [1980] 1 SCR 602.
112. Ibid at 628.
113. [1990] 1 SCR 653 at para 26.
114. 2002 NSCA 88 at para 40
115. 2022 ABCA 381.
116. Ibid at paras 95–98.
117. 2018 ONSC 5062.
118. Supra note 115 at para 98.
119. Ibid at para 102, a test endorsed by the Supreme Court of Canada in Agraira v Canada (Public Safety and Emergency Preparedness), supra note 48 at para 95, citing D.J.M. Brown and J.M. Evans, Judicial Review of Administrative Action in Canada at 7:1710.
120. Ibid at para 101, citing (inter alia) Agraira.
121. Ibid at para 102.
122. David J. Mullan, “2021 Developments In Administrative Law Relevant to Energy Law And Regulation” (May 2022) 10:1 Energy Regulation Q, online: ERQ <energyregulationquarterly.ca/regular-features/2021-developments-in-administrative-law-relevant-to-energy-law-and-regulation>; See also David J. Mullan, “2020 Developments in Administrative Law Relevant to Energy Law” (2021) 9:1 Energy Regulation Q, online: ERQ <energyregulationquarterly.ca/regular-features/2020-developments-in-administrative-law-relevant-to-energy-law1>.
123. Application of AUC Enforcement Staff for the commencement of a proceeding pursuant to sections 8 and 63 of the Alberta Utilities Commission Act, (30 November 2021), online (pdf): <mma.prnewswire.com/media/1699659/ATCO_Ltd__ATCO___Canadian_Utilities_Announce_Regulatory_Shortfal.pdf>.
124. “ATCO & Canadian Utilities Announce Regulatory Shortfalls and Propose Corrective Actions” (30 November 2021), online: newswire.ca <www.newswire.ca/news-releases/atco-amp-canadian-utilities-announce-regulatory-shortfalls-and-propose-corrective-actions-875746622.html>.
125. “ATCO Group  Inter-Affiliate Code of Conduct” (22 May 2003) Appendix 5 to EUB Decision 2003-040, online (pdf): ATCO <www.atco.com/content/dam/web/for-home/natural-gas/atco-group-affiliate-code-of-conduct.pdf>.
126. “Compliance”, online: FortisAlberta <www.fortisalberta.com/about-us/our-company/compliance>.
127. AUC Decision 27013-D01-2022.
128. Supra note 119 at para 2(d).
129. Ibid at para 141.
130. For a critical analysis of financial penalties imposed by the Alberta Energy Regulator for violation of the terms of a regulatory approval order, AER Administrative Penalty 202304-03, Ovintiv Canada ULC, see Drew Yewchuk, “Administrative Penalties at the Alberta Energy Regulator: A Gentle Slap on the Wrist for Ovintiv” (12 April 2023), online (pdf): ABlawg <ablawg.ca/wp-content/uploads/2023/04/Blog_DY_AER_Penalties.pdf>
131. Supra note 127 at para 91.
132. See Emma Graney, “Alberta didn’t reveal Imperial Oil leak for months, says Environment and Climate Change Canada” (9 March 2023), online: The Globe and Mail <www.theglobeandmail.com/business/article-imperial-oil-leak-indigenous> and “First Nations call on Ottawa to oversee investigation on Imperial Oil industrial leak” (18 April 2023), online: The Globe and Mail <www.theglobeandmail.com/business/article-first-nations-call-on-ottawa-to-oversee-investigation-on-imperial-oil>; See also Drew Yewchuk “The Alberta Energy Regulator and the Disclosure Without Delay Rule in FOIP” (6 March 2023), online: ABlawg <ablawg.ca/2023/03/06/the-alberta-energy-regulator-and-the-disclosure-without-delay-rule-in-foip>. In the context of applications for judicial review, see Paul Daly, “The Prospects for Candour: Solutions for the Limited Record Problem” (12 April 2022), online: Administrative Law Matters <www.administrativelawmatters.com/blog/2023/04/12/the-prospects-for-candour-in-canada-solutions-for-the-limited-record-problem>.
133. For other media commentary on regulator failings that can lead to a loss of confidence on the part of the regulated and the public generally, see in a securities regulation context Ken Kivenko and Ed Waitzer, “OSC needs to take accountability seriously or risk losing public confidence”, The Globe and Mail, (30 January 2023), and Nicolas Van Praet, “Quebec securities regulator says it has overhauled how it does investigations”, The Globe and Mail, (15 February 2013).
134. [1979] 1 SCR 684 [Northwestern Utilities].
135. (1977) 3 AR 317 (SCAD).
136. Supra note 134 at 708–11.
137. Ibid at para 708.
138. RSA 1970 c 302. The current successor to this provision is section 29(12) of the Alberta Utilities Commission Act, SA 2007 c A-37(2). For other provisions dealing with the status of the decision-maker on applications for judicial review of or appeals from their decisions, see eg section 72(4) of the Canadian Energy Regulator Act, SC 2019,c 28, section 33(3) of the Ontario Energy Board Act, 1998 SO 1998 c 15 Sched B, and, more generally applicable to tribunals, section 15(1)(b) of the British Columbia Judicial Review Procedure Act, SBC 1996 c 241 section 9(2) of the Ontario Judicial Review Procedure Act, RSO 1990 c J.1, and sections 2 and 109(1) of the Federal Court Rules, SOR/98-106, which read in combination provide for the participation of tribunals as interveners in appeals from or judicial reviews of their decisions. Suffice it to say that irrespective of the way tribunal participatory rights are formulated in any of these provisions, courts have generally held that, as in Northwestern Utilities, the common law principles governing tribunal participation are treated as implicitly read into the relevant provision. See, in particular, Ontario (Energy Board) v Ontario Power Generation, 2015 SCC 44, [2015] 3 SCR 147 at paras 58–59 (per Rothstein J) with reference to the Ontario provision. For more recent applications in the context of the Alberta Utilities Commission Act, see Milner Power Ltd v Alberta (Utilities Commission), 2019 ABCA 127 at paras 26–29 (per O’Ferrall JA) and TransAlta Corp v Alberta (Utilities Commission) 2022 ABCA 37 at para 14. It should, however, be noted that the restrictions on participation do not apply where a tribunal or regulatory agency is being sued at common law or under the Charter for damages, as in Ernst v Alberta Energy Regulator, 2017 SCC 1, [2017] 1 SCR 3 at para 54. Somewhat ironically Cromwell J saw this exposure as one of the justifications for a statutory immunity from liability. The regulator would not have to justify itself, something that could “compromise the decision-maker’s impartiality or the finality of his or her decision.”
139. Supra note 134 at 709.
140. Ibid at 709–11.
141. Ibid at 709.
142. David J. Mullan, “2015 Developments in Administrative Law Relevant to Energy Law and Regulators” (2016) 4:1 Energy Regulation Q, online: ERQ <energyregulationquarterly.ca/articles/2015-developments-in-administrative-law-relevant-to-energy-law-and-regulation>.
143. Ontario (Children’s’ Lawyer) v Goodis (2005) 75 OR (3d) 309 (CA).
144. Canada (Attorney General) v Quadrini, 2010 FCA 246, [2012] 2 FCR 3. See also the judgment of Robertson JA in United Brotherhood of Carpenters and Joiners of America, Local 1386 v Bransen Construction Ltd., 2002 NBCA 27, 249 NBR (2d) 93.
145. Supra note 138 at paras 42–72 [Ontario Power Generation].
146. Ibid at paras 41, 52.
147. Ibid at para 52.
148. Supra note 134.
149. Supra note 134 at para 60.
150. 2015 SCC 45, [2015] 3 SCR 219.
151. ATCO Gas and Pipelines Ltd v Alberta Utilities Commission, 2013 ABCA 310, 556 AR 736 at paras 12–13.
152. Supra note 138 at para 60.
153. Ibid at para 59.
154. See CS v British Columbia (Workers’ Compensation Appeal Tribunal), 2019 BCCA 406, 31 BCLR (6^th) 1 at para 48. More recently the same position was taken in Pereira v British Columbia (Workers’ Compensation Appeal Tribunal), 2022 BCSC 1654 at paras 22–23, and Ahluwalia v British Columbia (Workers’ Compensation Appeal Tribunal), 2022 BCSC 2139 at paras 18–21.
155. 2019 ONSC 4898.
156. Ibid at para 7.
157. Ibid.
158. Supra note 138.
159. Normally, the presence of other parties defending the decision under attack will mean that the decision-maker’s role will be “significantly restricted”: The Office of the Utilities Consumer Advocate v Alberta (Utilities Commission), 2021 ABCA 282 at para 3 (per Slatter JA), in the context of a successful application by three utilities to be added as parties to an application for leave to appeal. However, it is noteworthy that in Consumer Advocate v Newfoundland and Labrador (Board of Commissioners of Public Utilities), 2022 NLCA 39 at paras 11–27, the Court allowed the Board to argue the merits in the context of an application for leave to appeal despite the participation of Newfoundland Power arguing in support of the Board’s decision and against the grant of leave to appeal. (Interestingly, in Fortis Alberta Inc v Alberta (Utilities Commission), 2020 ABCA 271 at paras 72–78, Watson JA, in refusing to hear oral submissions from the Commission called into question any Commission defence of its decision in the context of an application for leave to appeal.)
160. Ibid at para 14.
161. Ibid at para 16.
162. Supra note 138 at para 63.
163. Ibid at paras 63–72.
164. An aspect of Estey J’s judgment that does survive is his seeming condemnation of “active and even aggressive participation” on the part of the decision-maker presumably even on the then permissible grounds of jurisdiction and explanation: supra note 134. Rothstein JA, supra note 138 at paras 71–72 (citing Goudge JA in Goodis, supra note 143 at para 61, cautions the Board (and its lawyers) as to the “tone” in which they defend their decisions. They should not adopt the “aggressive partisanship of an adversary” (quoting Goudge JA). In this regard, Rothstein J (at para 72) criticized the Board for asserting that even if the Board’s position on the central question was rejected, on any remission, this would not affect the overall outcome. It is, however, uncertain as to what in other circumstances would amount to “aggressive” participation and what the sanctions would be for an overly adversarial factum or oral submission. In the latter regard, Rothstein J (at para 72) speaks of taking steps “to limit tribunal standing so as to safeguard this principle.” However, he tantalizingly leaves dangling the nature of any such limitation. Perhaps, a caution to “tone it down” in the case of oral submissions and a striking of offensive parts of a factum.