Introduction

Having shaken up the principles and methodology of Canadian judicial review of administrative action at the very end of 2019, the Supreme Court of Canada took a breather from Administrative Law throughout 2020. It is only in February of 2021 with the scheduled hearing of the appeal in Northern Regional Health Authority v Manitoba (Human Rights Commission)^[2] that the Supreme Court will return to the fray and confront at least one item of unfinished business resulting from Canada (Minister of Citizenship and Immigration) v Vavilov,^[3] and the two other judgments^[4] associated with that seminal precedent.

As a result, this annual survey of Administrative Law as it affects energy law and regulation will not involve the unpackaging of new Supreme Court judgments. Rather, its principal focus will be on the immediate impact of Vavilov and its close relatives on the conduct of judicial review of and statutory appeals from the decisions of all manner of energy regulators. In no sense will this provide a comprehensive survey of the consequences of Vavilov across the whole range of administrative decision-making. Rather, it will be a snapshot of the impact that Vavilov has had in the area of regulatory law that is the subject of this Journal. What has changed for judicial scrutiny of energy regulation decisions because of Vavilov, and what uncertainties has Vavilov created or left unresolved?^[5]

Among those uncertainties is Vavilov’s impact on the duty to consult and, where appropriate, accommodate the rights, claims and interests of Indigenous peoples. I have devoted a section to examining the question of whether Vavilov involves a recalibration of the standard to be applied in judicial review of energy regulators’ decision-making implicating those rights, claims, and interests. In a separate section, I will also range more broadly and consider other case law relevant to the continuing evolution of the duty to consult and other elements of the honour of the Crown as they bear upon energy law and regulation. Finally, in this context, I will also speculate upon the possible ramifications for energy regulators should Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples, be enacted.

The other domain that I will examine involves discretionary considerations relevant to access to judicial review of and statutory appeals from administrative decision-makers both at the front end of such proceedings and in the awarding of remedies.

THE IMPACT OF VAVILOV

Review by Way of Statutory Appeal

Undoubtedly, the most important, and, for that matter, most criticized^[6] change wrought by Vavilov is its adoption of a rule that, unless other standards are specified legislatively, where an administrative decision reaches the courts by way of statutory appeal, review will be taken place under the criteria established for appeals in civil litigation in Housen v Nikolaisen^[7] — correctness for pure questions of law, and palpable and overriding error for questions of fact and questions of mixed law and fact from which there is no readily extricable pure question of law.

For deference adherents, this sounded alarm bells. With the movement away from presumptive reasonableness review on statutory appeals to a correctness regime, even when a decision maker was interpretating its home or a frequently encountered statute, it was said would come an abandonment of judicial deference or respect for the decisions of many of Canada’s leading regulators. It was also contended that this lessening of commitment to deference would open the door to more frequent recourse to the courts from regulatory decision-making. This was seen by some as being far more to the advantage of regulated companies than to those seeking to vindicate the public interest on which regulatory regimes were predicated.^[8] In contrast, others who were equally concerned saw this aspect of Vavilov as increasing regulatory risk for a sector already threatened by regular exposure to judicial and appellate review.^[9]

At this point, it is far too early to assess whether this sea change has had those effects — an increase in the number of statutory appeals with the preponderance being brought by regulated entities as opposed to public interest groups or individually affected participants in the regulatory process. What also must be evaluated is the extent to which Vavilov has narrowed the scope gap between correctness and reasonableness review. Putting it another way, for deference adherents and regulatory agencies seeking to preserve respect for their expertise and, more generally, their operational autonomy and imperatives, the real question may be not so much about the impact of the reduction in deference in the domain of statutory appeals as the more general thrust of Vavilov in the direction of close scrutiny of all questions of law whether reaching the courts by statutory appeal or judicial review.

This possibility is underscored by several of the potentially relevant contextual factors that the Vavilov majority identified as bearing upon the conduct of reasonableness review. There was a general admonition that reasonableness is a “robust”^[10] form of review. When this is linked by references to questions to which there is only one correct answer,^[11] a concept of lack of authority^[12] that bears remarkable resemblance to the now otherwise discredited jurisdictional category, and the imperative of following the modern approach to statutory interpretation,^[13] there exists a distinct possibility that, in many instances, there will be little or no difference both in discourse and outcome as between correctness and reasonableness review. It is, however, in my view, too soon to assess by reference to the case law whether these fears are justified. It awaits empirical evaluation based on a broader sample than exists presently.

In the meantime, however, several of the energy law and regulation judicial reviews and statutory appeals from 2020 show how lower courts are responding to or coping with the new dispensation.

Deference or At Least Respect within Correctness Review

I have argued elsewhere^[14] that the change from reasonableness to correctness review in the context of statutory appeals had an immediate impact in Bell Canada v Canada (Attorney General),^[15] the appeal that the Supreme Court linked with Vavilov in its recalibration of the principles and methodology of judicial scrutiny on substantive grounds of administrative decision-making. My contention was that, under a reasonableness standard, the Canadian Radio-television Telecommunications Commission order would have withstood scrutiny. Under correctness, it was set aside as based on an error of law.

Subsequently,^[16] in an energy law context, Paul Daly made the same argument with respect to the judgment of the Manitoba Court of Appeal in Manitoba (Hydro-Electric Board) v Manitoba (Public Utilities Board).^[17] There, the Court, applying a correctness standard in the context of an appeal to the Court of Appeal under The Public Utilities Board Act,^[18] set aside a directive by the regulator to Manitoba Hydro

to create a First Nations On-Reserve Residential customer class…that was to receive a zero per cent increase.

It was held that the Public Utilities Board lacked jurisdiction to make such an order. It was contrary to a provision in the Hydro Act^[19] requiring that the customers of the utility not be classified solely on the basis of the region of the province in which they lived or the density of the population.

This judgment has already attracted a detailed case comment in the Quarterly by Patrick Duffy^[20] and I will refrain from further detail and analysis. However, in his case comment, Daly posits an argument in support of the legal validity of the directive and asserts that

…had the Board’s decision been reviewed on a standard of reasonableness, the result might well have been different. It is at least arguable that s. 39(2.2) can reasonably bear the Board’s interpretation.^[21]

Duffy is not as forthcoming but there are also hints in his analysis that the result may have hinged on the change from reasonableness to correctness review. And, doubtless, this form of speculation will continue as the change has more and more purchase in the domain of statutory appeals from administrative decision-makers.^[22]

However, Planet Energy (Ontario) Corp. v Ontario Energy Board,^[23] an early 2020 judgment of the Ontario Divisional Court, delivered by Swinton J, castes some doubts on the fears that I have expressed about the extent to which correctness review on statutory appeals will undermine the deference project. It involved a statutory appeal to the Court on a question of law and jurisdiction from the Ontario Energy Board’s imposition of penalties on the appellant following a finding that the appellant had contravened provisions of the Energy Consumer Protection Act, 2010,^[24] and the Board-developed Electricity Retailer Code of Conduct. The appellant’s principal contention was that the Board lacked jurisdiction to impose an administrative penalty as the relevant limitation period in the Ontario Energy Board Act, 1998,^[25] had expired. For reasons that I will discuss later in this survey, Swinton J held that the appellant should have raised the limitations issue with the Board either during the hearing, while the decision was still pending, or by way of an application for reconsideration as provided for in the Ontario Energy Board Act. In reviewing the case law and principles relevant to whether an appellant should be allowed to raise a new issue for the first time on an appeal to the Court, Swinton J opined that correctness review did not mean that deference to expertise had no role to play at least in the context of whether an argument could be raised for the first time on appeal to a court:

While the Court will ultimately review the interpretation of the Act on a standard of correctness, respect for the specialized function of the Board still remains important. One of the important messages in Vavilov is the need for the courts to respect the institutional design chosen by the Legislature when it has established an administrative tribunal (at para. 36). In the present case, the Court would be greatly assisted with its interpretive task if it had the assistance of the Board’s interpretation respecting the words of the Act, the general scheme of the Act and the policy objectives behind the provision.^[26]

In support of this consideration, Swinton J emphasised that it was as relevant to matters coming before the Court by way of appeal on a correctness standard as it was in the context of an application for judicial review where the standard of scrutiny would be that of reasonableness.^[27] More generally, this posture speaks to the importance of courts hearing an appeal from an administrative decision on a correctness basis being attentive to the reasons provided by the agency or tribunal. Correctness review is not an excuse for ignoring or not assessing seriously the reasons on which the first instance decision was taken.

Subsequently, in Enbridge Gas Inc. v Ontario Energy Board,^[28] Swinton J, again delivering (along with Favreau J) the judgment of the Divisional Court, did allow an argument to be raised for the first time on an appeal from the Board. However, in that instance, among the justifications for making an exception to the general principle, Swinton J noted that the matter in issue had been discussed and ruled on by the Board in “three prior decisions.”^[29] In concluding on this issue, she took pains to emphasise that allowing the appeal to proceed was not meant in any way to signal a departure from Planet Energy and its emphasis on the benefit to appellate courts in having the tribunal’s conclusion on a relevant issue.^[30]

The Relevance of Vavilov to Internal or Domestic Appeals, Reviews and Reconsiderations

Deference also surfaced in a rather different sense in the judgment of the Divisional Court delivered by Ducharme J in Hydro One Networks Inc. v Ontario Energy Board.^[31] It involved the Ontario Energy Board’s ultimate decision on a typical rate-related regulatory issue: a denial of Hydro One’s contention that Future Tax Savings of $2.595 billion should be allocated entirely to shareholders, and acceptance of the argument that 38 per cent of those tax savings should be allocated to Hydro One’s revenue requirements for 2017 and 2018 resulting in customers paying lower rates.

At first instance, the Ontario Energy Board Hearing Panel rejected Hydro One’s position. However, a Review Panel set aside that decision based on four interrelated errors. It therefore directed that the matter be reconsidered by a Rehearing Panel having regard to the Review Panel’s findings and all the evidence and arguments heard by both Panels.

The Rehearing Panel consisted of two members of the Hearing Panel and one member of the Review Panel. In its decision, the Rehearing Panel did not focus on whether the Hearing Panel’s final disposition could still be sustained given the flaws that the Review Panel had detected in its reasons. Rather, the Rehearing Panel asked whether the conclusions reached by the Hearing Panel could themselves still be justified despite the four interrelated flaws. Applying a test of reasonableness to those original conclusions, the Rehearing Panel determined that they could still be sustained and thereby upheld the original ruling. In so doing, the Rehearing Panel failed to identify any different approach or methodology that would justify such a conclusion. Hydro One appealed to the Divisional Court on a question of law and jurisdiction.

In allowing the appeal, Ducharme J, for a unanimous panel of the Divisional Court, held that, in subjecting the flawed reasons of the Hearing Panel to a reasonableness evaluation in the manner of deferential judicial review or statutory appeal,^[32] the Rehearing Panel had fettered its discretion and applied an incorrect legal test.^[33] It had not engaged in a full merits review of the ultimate outcome conditioned on the errors found by the Review Panel. This amounted to an error on a question of law or jurisdiction when viewed from a post-Vavilov correctness perspective. The further characterization of the decision as involving an improper fettering of discretion or authority was presumably based on the proposition that, when the Rehearing Panel viewed the original decision from the perspective of reasonableness, it was abstaining from more expansive correctness review.

In so holding, the Divisional Court at the very least has rejected the deployment by a Rehearing Panel of a reasonableness standard of review when a Review Panel has in effect called for a merits redetermination. However, it is also possible that Ducharme J is speaking to a more general concern about the deployment of a deferential reasonableness standard in the conduct of either a Review or a Rehearing.

In fact, such a characterization of the position taken by the Rehearing Panel finds justification in recent case law. The standard of review to be applied by internal tribunal or agency review or appellate bodies is not predicated on the methodology developed by Dunsmuir (and now presumably, Vavilov) for standard of review selection for judicial reviews and statutory appeals to the courts from administrative decisions. Rather, the appropriate standard of review should be based on an interpretation of the relevant statutory provisions^[34] establishing access to an internal review or appeal, an interpretation exercise that can produce a variety of appellate or review standards, including but by no means confined to reasonableness review.^[35]

Under such an approach, in the case of the Ontario Energy Board, the reference point becomes Part VII – Review of the Board’s Rules of Practice and Procedure and, in particular, Rule 42 – Motion to Review. Rule 42(1)(a) obliges those seeking a review to

…set out the grounds for the motion that raise a question as to the correctness of the order or decision…

This would suggest that, in this context, correctness, not unreasonableness will be the applicable standard.

Having regard to the fact that the appeal had been argued prior to the judgment in Vavilov, Ducharme J also went on to opine as to why the Rehearing Panel’s decision could not, in any event, have withstood reasonableness scrutiny. The Rehearing Panel had not explained how the Hearing Panel’s original decision could still be maintained despite the flaws identified by the Review Panel and that the Panel had been directed to accept as given. The reasons were not “transparent, intelligible and justified,” and they lacked internal coherence and a rational chain of analysis based on the evidence.^[36]

The case is also interesting from a remedial perspective in that section 33(4) of the Ontario Energy Board Act^[37] provides that, on an appeal,

[t]he Divisional Court shall certify its opinion to the Board and the Board shall make an order in accordance with the opinion, but the order shall not be retrospective in its effect.

Ducharme J held^[38] that this provision prevailed over section 134(1) of the Courts of Justice Act^[39] which states:

Unless otherwise provided, a court to which an appeal is taken may, (a) make any order or decision that ought to or could have been made by the court or tribunal appealed from.

As a result, the Divisional Court was confined to responding to the outcome of the appeal by way of a certificate; it could not step directly into the shoes of the Board and make an order or render a decision in favour of Hydro One and its shareholders on the merits of the allocation issues. In contrast, however, Ducharme J rejected the Board’s argument that the matter should be remitted to the Board for further consideration. Given that the Divisional Court was of the view that any allocation of the proceeds of the Future Tax Savings could not as a matter of law be allocated for the ultimate benefit of ratepayers as opposed to shareholders, it was appropriate for the Court in the certification to the Board of its opinion to frame the certificate in those terms. In general, such an in effect stepping into the shoes of the Board may be an exceptional occurrence. Nonetheless, when, on an appeal, the Court takes the position that the Board has erred with the outcome as a matter of law then being inevitable, the certification authority allows the Court to direct that the Board “reconsider” and make an order correcting the Hearing Panel’s decision and directing the allocation of the tax savings.

Vavilov, Deference and Procedural Fairness^[40]

In neither Vavilov nor Bell Canada was procedural fairness an issue on the facts. As a result, the references to procedural fairness were few. Early on, the Vavilov majority stated that

…reasonableness is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process [emphasis added].^[41]

That hinted that reasonableness might be deployed when courts were reviewing procedural rules and rulings for fairness. However, only a few paragraphs later, at paragraph 23, the majority spoke of the presumption of reasonableness review as attaching to

…judicial review of administrative decisions other than a review related to a breach of natural justice and/or the duty of procedural fairness [emphasis added].^[42]

This could be read in one of two ways: the presumption did not apply to procedural rules and rulings and a decision-maker’s entitlement to a reasonableness standard had to be otherwise justified, or, more generally, there was no room for reasonableness as a standard in such cases with correctness being the universal standard or, alternatively, standard of review being an alien concept in the realm of procedural fairness.

Finally, in a section of the judgment entitled “Procedural Fairness and Substantive Review,”^[43] the majority explored the links between the duty to give reasons (often seen as procedural in nature) and reasonableness review. In the course of this analysis, the majority stated that

…the specific procedural requirements that the duty imposes are determined with reference to all the circumstances.^[44]

The majority then went on to endorse the five part non-exhaustive list of factors listed in Baker v Canada (Minister of Citizenship and Immigration)^[45] that should “inform the content of the duty of procedural fairness in a particular case.”^[46] One of those five factors was described as “the choices of procedure made by the administrative decision maker itself.”^[47] Given the difficulty in bringing each of these propositions together in a coherent whole, it must be said that the majority was not sufficiently attentive as to how its new regime would affect challenges to rules and rulings on procedural grounds.

For the most part, however, Canadian courts, both before and after Vavilov, have treated the presumption of reasonableness review as not applying to issues of procedural fairness. Nation Rise Wind Farm Limited Partnership v Ontario (Minister of the Environment, Conservation and Parks)^[48] provides a post-Vavilov example in an energy regulation setting. The Divisional Court interpreted paragraph 23 of Vavilov as establishing that the “presumption of reasonableness does not apply to questions of procedural fairness.”^[49] The judgment then referred to other post-Vavilov perpetuation of the predominant Canadian position:

For the most part, at the Divisional Court and elsewhere, these issues are either reviewed on the correctness standard, or it is said that no standard of review applies.^[50]

Subsequently, the Divisional Court gave very short shrift to the Minister’s argument that his procedural choices were entitled to deference by reference to the fifth Baker procedural fairness intensity factor:

However, the Minister, like other administrative decision-makers is still required to comply with common law duties of fairness, unless those rules have been ousted by express statutory language or by necessary implication (which they have not)…^[51]

In Rogers Communications Canada Inc. v Ontario Energy Board,^[52] however, the Divisional Court attempted to come to terms with the continuing uncertainty about deference to procedural rules and rulings and the role of the fifth Baker criterion in order to produce a workable set of principles.

At stake was a challenge by Rogers on procedural grounds to the outcome of a comprehensive policy review of, among other matters, the regime governing the conditions under which electricity utilities regulated by the Board were required to allow cable TV companies, not otherwise regulated by the Board, to attach their wires to poles owned by the utilities. This policy set the rate charged by the utilities unless otherwise varied by agreement approved by the Board. Over several years, it had become clear from the rate variations agreed to between the parties and approved by the Board that the policy’s attachment rate was significantly out of line.

For the purposes of this review, the Board established a Pole Attachment Working Group (“the Group”) and hired an external expert consultant to facilitate the review exercise and, in particular, the effective functioning of the Group. As described by Lederer J,^[53] delivering the judgment of the Divisional Court, the Group did not include all interested parties. Rather, it was constituted by the Board based on expressions of interest, and comprised representatives of “the wireline industry, electricity distributors and consumer groups.” Rogers was not part of the Group.

Later in the judgment, Lederer J outlined the process that was followed:

• Four PAWG meetings,
• Further initial consultation through a request for comments from members of the PAWG,
• A “subsequent” review by the consultant,
• Followed by a report from the consultant,
• Followed by a draft report by the Ontario Energy Board,
• Further consultation through comments by members of PAWG, and
• A Final Report by the Board.^[54]

It was also relevant that the consultant’s report was made available for comment not only to the Group but also to other stakeholders and the public on the Board’s website.^[55] The Board also invited interested persons to provide comments on its draft report and received thirty-three submissions from

…interested stakeholders, including [owners of poles], ratepayer and consumer groups, and representatives of the [cable companies].^[56]

The latter group included Rogers which had been complaining about the Board’s process throughout.^[57] In its Final Report, the Board had responded to the submissions and reduced the pole attachment charge that it had proposed in its Draft Report as well as making some other transitional adjustments and clarifying that the new standard charge would not apply to those who had entered other pricing arrangements with the approval of the Board.

Following the release of the Report, Rogers along with twelve other cable companies or carriers appealed to the Divisional Court under section 33(1) of the Ontario Energy Board Act^[58] seeking a quashing of the Final Report and a remission of the matter to the Board for a full hearing.

The appeal raised several issues. Among them, the Board argued that, as it had not made an order but simply issued a report, the proper procedure was an application for judicial review under the Judicial Review Procedure Act.^[59] For the cable companies or carriers, it was asserted that, as a matter of statutory interpretation, the review process engaged section 21(2) of the Ontario Energy Board Act^[60] and its requirement of a hearing “[s]ubject to any provision to the contrary.” For its part, the Board argued that the matter came within section 70(1.1) of the Act which conferred a discretion on the Board “with or without a hearing” to

…grant an approval, consent or make a determination that may be required for any of the matters provided for in a licensee’s licence.

In the alternative, the appellants argued that, even if the process did not come within section 21(2), they had greater procedural entitlements by reference to the doctrine of legitimate expectation and founded in prior practices and representations by the Board.

For present purposes, I will not dwell further on these grounds. Suffice it to say the Divisional Court held that the final report was in substance an order which meant that the appropriate way of proceeding was by an appeal under section 33(1).^[61] However, section 21(2)’s mandating of a hearing was negated by reason of the matter coming within section 70(1.1) of the Act.^[62] On the facts, there had been no triggering of a legitimate expectation that certain procedures would be followed.^[63] Therefore, to succeed, the appellants had to ground their procedural claims in the common law procedural fairness threshold and intensity criteria.

In terms of the standard of review to be applied to the Board’s procedural regime for its comprehensive review of the pole attachment policy, the parties had taken opposing positions. Rogers was asserting correctness review without any deference while the Board argued that its choices were entitled to “significant deference.”^[64]

In response, Lederer J^[65] initially quoted from two judgments that had grappled with this issue, one of a differently constituted Divisional Court, and the other from the Federal Court of Appeal.

In the post-Vavilov decision in Quadrexx Hedge Capital Management v Ontario Securities Commission, the Divisional Court acknowledged the subjection to correctness review of procedural fairness issues, but then acknowledged that there is not

…always a single “correct” view of the procedures to be followed.^[66]

Earlier, in the pre-Vavilov judgment in Maritime Broadcasting System Ltd. v Canadian Media Guild, Stratas JA of the Federal Court of Appeal had made a strong argument for the deployment of the reasonableness standard of review to scrutiny of the procedural choices of administrative tribunals and agencies.^[67]

Lederer J then^[68] adopted a compromise that in effect distilled the position taken by the Divisional Court:

It is not that a reasonableness standard applies. It is that correctness does not, in respect of procedure, perceive a single answer. The tribunal involved is best positioned to determine the appropriate process. The level of deference is determined through the application of the factors found in Baker v. Canada, in particular:

While this, of course, is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints.^[69]

When Lederer J returns to apply this standard to procedures adopted by the Board, he commences^[70] by citing an extract from the judgment of the Supreme Court of Canada in Martineau v Matsqui Disciplinary Bd. which identified a spectrum of decision-making for the purposes of evaluating the threshold for and the intensity of procedural fairness obligations.^[71] At one end, where no procedural fairness obligations attached were “discretionary and policy-oriented” decisions that did not attract any common law obligations of procedural fairness while, at the other extreme and requiring a full panoply of procedural fairness, were judicial or adjudicative decisions. In between, were “myriad” other forms of decisions attracting a “flexible gradation of procedural fairness.”

Interestingly, especially since Lederer J had located this policy review within a provision that allowed the Board to act with or without a hearing, he did not dwell on whether this process and its outcome were at the “discretionary and policy-oriented” end of the spectrum and, as such, not attracting any procedural fairness obligation. Rather, it was assumed that the procedural fairness threshold had been crossed and that what was at stake was the intensity of that obligation by reference to the five Baker factors.

Of those factors, however, Lederer J made it clear that, in this instance, the procedural choices of the Board had “particular significance.”^[72] He then cited two further Federal Court of Appeal judgments,^[73] the second^[74] of which, delivered by Evans JA,^[75] adopted the position that “correctness” was the standard but that the court in making that assessment “must be respectful of the agency’s choices.”

As previously articulated by Lederer J, this notion of deference or respect for procedural choices as a component of correctness review is a somewhat awkward compromise. This is further underscored by the incongruence of an assertion that there are no necessarily “correct” or “single” answers in the evaluation of how much procedural fairness is required notwithstanding that the formal standard of review is that of correctness. In reality, what seems to be going on is that the reviewing court is assessing whether, having regard to the first four Baker factors, the discretionary procedural choices made the agency, either generally or in the particular case, come within the range of procedurally fair possibilities. Albeit that this formulation does not specifically use the term “reasonable” or “reasonableness,” it bears all the hallmarks of a rose by any other name.

This is further underscored by Lederer J’s assessment of the procedures adopted in this instance:

This is a case where deference is owed to the Ontario Energy Board. The process is a balance of the demands of the review and the interests of the parties. The review was required. The default charge had been unchanged for 10 years. Input from the parties involved was required and obtained through the PAWG and subsequent comments. Expert assistance was needed, and a consultant retained and utilized. Ultimately, it was the responsibility of the Ontario Energy Board to consider and develop the approach to pole attachment. A draft report was prepared. Comments sought and, only then, a final report released.^[76]

He then concludes:

Deference applies to the decision of the Ontario Energy Board as to the process it adopted to conduct the policy review. The process, as adopted, accounts for and balances the factors enunciated in Baker v. Canada in a reasonable and appropriate way. The process being appealed, in its particular circumstances, was procedurally fair.^[77]

Doubtless, the last has not been heard of the approach to be taken for evaluating the procedural choices of tribunals for consistency with the principles of procedural fairness. What is, however, becoming clearer is that, even if the formal standard of review is that of correctness, tribunals and agencies which make reasonable procedural choices in light of the Baker factors are entitled to considerable deference when challenged on judicial review or statutory appeal on procedural grounds. That should be of considerable comfort to those tribunals and agencies confronted with the task of designing appropriate ways of responding to claims for participatory rights especially when the issues at stake are of a complex and policy-laden variety.

Vavilov and the Duty to Consult and Accommodate Indigenous Peoples

In a recent excellent two-part blog,^[78] Howard Kislowicz and Robert Hamilton address the question of how, if at all, Vavilov has affected the standard of review to be applied to decision-making engaging Indigenous rights, claims, and interests. In the first part, they consider statutory appeals, and, in the second, judicial review.

In the context of statutory appeals, the new norm will apply. On questions of law “including questions of statutory interpretation and those concerning the scope of the decision maker’s authority,” correctness will apply just as much in cases raising duty to consult and accommodate issues as it will in other appellate settings. The same holds for the “palpable and overriding error” test for questions of fact or mixed law and fact. However, as far as that second branch of the Housen test is concerned, the authors suggest that, whatever ambitions the Vavilov majority might have had for more intrusive review when a matter comes before the courts on a statutory appeal, the irony may be that for questions of fact and mixed law and fact, the reverse may be the case. This is because, in the view of the authors, it seems likely that, in appellate review of administrative decisions, reviewing courts will treat the “palpable and overriding error” as a more deferential standard than unreasonableness as applied to such questions on traditional judicial review.^[79] As the authors suggest in their concluding paragraph to Part 1, it is as though the Vavilov majority has reintroduced two varieties of deference reminiscent of the pre-Dunsmuir era of unreasonableness and patent unreasonableness. Is that what the majority really wanted or intended?

And it must be recognized that this issue does not arise for many energy regulators by reason of the legislative confining of appeals to the courts from their decisions to questions of law and jurisdiction. In that context, the critical questions will revolve around the reach of questions of law and jurisdiction and when a question of law is readily extricable from a determination of mixed fact and law.^[80]

In Vavilov, the majority articulated the scope of the constitutional questions exception to reasonableness review on applications for judicial review as follows:

Questions regarding the division of powers between Parliament and the provinces, the relationship between the legislature and the other branches of state, the scope of Aboriginal and treaty rights under s. 35 of the Constitution Act, 1982, and other constitutional matters [that] require a final and determinate answer from the courts. Therefore, the standard of correctness must continue to be applied in reviewing such questions [emphasis added].^[81]

At a general level, one of the questions raised by this statement is the extent to which this assertion of correctness review applies beyond pure questions of law to questions of fact, mixed law and fact, and exercises of discretion. The weight of precedents, including the duty to consult and accommodate case law,^[82] and the Vavilov majority’s unwillingness^[83] to interfere with the Doré v Barreau du Québec^[84] approach to judicial review when Charter rights, freedoms and values are in play would seem to suggest, while not explicit, that the majority was not extending correctness review to all aspects of such decision-making. Putting it another way, it was not repudiating reasonableness review with respect to questions of mixed law and fact, fact, and discretion when constitutional questions are involved.

Nonetheless, as Kislowicz and Hamilton argue,^[85] the Supreme Court has not been a model of clarity as to the aspects of the duty to consult and accommodate that attract correctness review and those elements where deferential unreasonableness is the standard. They also raise questions as to whether the duty to consult and accommodate are properly characterized as coming within the “scope of Aboriginal and treaty rights under s. 35 of the Constitution Act, 1982.” While this does not give full credit to the sophisticated nature of the authors’ arguments, is not the duty to consult and accommodate associated not just with the “rights” of Indigenous peoples but their ongoing claims? I will leave this fascinating question for another day though, in so doing, note that the Vavilov majority’s characterization of the scope of the constitutional questions exception to the presumption of reasonableness review also includes “other constitutional matters.” However, even that cannot be read as excluding the possibility of a sui generis approach to the task of drawing a constitutionally appropriate line between correctness and reasonableness review in the domain of the duty to consult and accommodate. And, at the end of the day, such a solution appears to be what the authors are after, a solution that for them would resolve in favour of correctness review for some of the areas of uncertainty at the margins.

Prior to these blogs, the Federal Court of Appeal had delivered its judgment in which the Governor in Council’s second approval of the TransMountain Pipeline Expansion was being challenged by six Indigenous groups on the basis that the Governor in Council’s process had failed to meet the obligations arising out of the duty to consult and, where appropriate, accommodate Indigenous rights, claims and interests: Coldwater Indian Band v Canada (Attorney General).^[86]

In responding to the claim on which the application for judicial review was based, the Federal Court of Appeal asserted (and all the parties apparently agreed) that Vavilov had not altered materially the principles governing selection of the appropriate standard of review.^[87] As the Governor in Council’s approval had come before the Federal Court of Appeal on an application for judicial review, it was to be presumed that the standard of review would be that of reasonableness.^[88] Moreover, given that the “scope” of the duty to consult was not being contested, the section 35 of the Constitution Act, 1982 correctness exception identified in Vavilov was not triggered.^[89] (It is worthy of note, in terms of the blog, that the Court elided “scope” in the context of the reach of section 35, and “scope” in terms of the determination of whether the duty to consult and its reach applied without considering whether section 35 was the sole or principal location for the assertion of the existence of the duty to consult and accommodate.)

In this context, the Court also stated that it was not its role to express a view as to the adequacy of consultation. To do this would be to engage in disguised correctness review.^[90] At first blush, this might seem a rather peculiar position given that the very focus of the application for judicial review was on whether the Governor in Council had responded adequately to the earlier Federal Court of Appeal judgment^[91] finding that there were defects in the process of consultation that preceded the original approval of the pipeline expansion. However, the nuance becomes apparent in the very next paragraph in which there is another elision this time involving the merits of the of the approval decision and the duty to consult and, perhaps, to accommodate:

Rather our focus must be on the reasonableness of the Governor in Council’s decision including the outcome reached and the justification for it. The issue is not whether the Governor in Council could have or should have come to a different conclusion or whether the consultation process could have been longer or better. The question to be answered is whether the decision approving the Project and the justification offered are acceptable and defensible in light of the governing legislation, the evidence before the Court and the circumstances that bear upon a reasonableness review.^[92]

What remains unclear, however, is whether this collapsing of the duty to consult into the evaluation of the merits of the approval is meant to signal that there is no room for separate reasonableness challenges to, on the one hand, the reasonableness of the consultation process, and, on the other, the reasonableness of the substantive determination.

Thereafter, the Court went on to apply the Vavilov contextual approach to the conduct of reasonableness review.^[93] In this regard, the Court acknowledged Vavilov’s insistence that the backdrop to this evaluation must start with and focus on the reasons for the decision.^[94] It also emphasised the relevance of the earlier Court’s identification of what was needed in “a brief and efficient consultation process”^[95] to address the shortcomings in the first process. There then followed a listing and application of those among the Vavilov contextual considerations that were relevant to an evaluation of the second approval process.

Here, the Court started with the empowering legislation and its implicit vesting of primacy in the Governor in Council, not the courts, for a determination on the merits including as an integral part the assessment of the adequacy of consultation.^[96] Next, the Court moved to the law concerning the procedural content of the duty to consult,^[97] law which in some senses corresponded to administrative law standards of procedural fairness but which emphasized that, under a standard of reasonableness, perfection was not expected.^[98] More generally, in what finds parallels in Rogers Communications Canada Inc. v Ontario Energy Board,^[99] discussed earlier, those involved in designing and implementing the process followed were to be given “leeway”^[100] or, what has been described in other articulations of reasonableness review, “a margin of appreciation.”^[101] On the other hand, the process of consultation must demonstrate that “the rights claimed by Indigenous peoples” were “considered and addressed…in a meaningful way.”^[102] Other words and phrases from the extensive case law then followed as the Court provided further elaboration of what “meaningful” and “reasonableness” involved: “good faith,”^[103] “dialogue,”^[104] “grappl[ing] with the real concerns.”^[105] As for situations where “deep consultation”^[106] was necessary, the Court spelled out specific though non-binding procedural steps:

• the opportunity to make submissions for consideration;
• formal participation in the decision-making process;
• provision of written reasons to show that Indigenous concerns were considered and to reveal the impact they had on the decision; and
• dispute resolution procedures like mediation or administrative regimes with impartial decision-makers.^[107]

Providing a context for or framing all of this^[108] were the objectives spelled out in the foundational Supreme Court of Canada judgment on the duty to consult and, where appropriate, accommodate, Haida Nation v British Columbia (Minister of Forests):

[What] is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake[?]^[109]

There then followed a lengthy analysis of the concepts of the “honour of the Crown”^[110] and “reconciliation.”^[111] Of special note in all of this is the Court’s continued recognition of the proposition that a commitment to reconciliation

…does not dictate any particular substantive outcome.^[112]

That would mean that Indigenous peoples

…would effectively have a veto over projects such as this one.^[113]

This led the Court to recognize that it was necessary to avoid placing too stringent a standard in the evaluation of consultations. That would court the dangers of creating a de facto veto right.^[114] Moreover, the same held in the context of the process of accommodation.^[115] In passing, however, and, I will return to this later, the issue of powers of veto has again resurfaced with the introduction of Bill C-15 and its purported incorporation into Canadian law of the rights and obligations found in the United Nations Declaration on the Rights of Indigenous Peoples.

The Court then noted that the Governor in Council’s approval did not mark the end of the obligation to consult; there would be continuing obligations to consult throughout the life of the project.^[116] Similarly,^[117] balanced against Vavilov’s specification of the importance of the decision under review to those affected as a contextual factor,^[118] was the possibility that through the consultation and accommodation process might come “positive long-term relationships”^[119] between the Crown and Indigenous groups, and, presumably also, proponents.

Thereafter, the Court of Appeal proceeded to analyse in detail the process that had been followed in response to the flaws identified in the earlier Court of Appeal judgment. I will not dwell in this context on that examination. However, the terms of the Court’s ultimate holding are relevant to an understanding of how this Court conceived of the approach to deferential reasonableness review:

As the Governor in Council has explained in the Recitals and in the Explanatory Note, and as is apparent from the record before us, it could reasonably adopt the view that the limited flaws identified by this Court [in the earlier judicial review] had been adequately addressed and that reasonable and meaningful consultation had taken place.

In further recognition of Vavilov’s admonition that reasonableness review should start with the reasons, it is also noteworthy that the Court’s evaluation of whether the Governor in Council’s decision was reasonable starts with the proposition that

[t]he Governor in Council’s explanations do not suffer from the errors in reasoning or logical deficiencies of the sort identified by the Supreme Court in Vavilov.^[120]

Suffice it to say in conclusion that the Court’s template for the conduct of reasonableness review of issues of consultation and accommodation provides an eminently practical basis for future courts dealing with such issues in accordance with the spirt of Vavilov. Certainly, there may remain issues as to the precise location of where the line exists between correctness and reasonableness review in this setting. However, at no point in the elaboration of reasonableness review by reference to several of the Vavilov contextual factors, does the Court succumb to the temptation of disguised correctness review. The apple dangled but was recognized and left alone.

Legislative Override

In last year’s review, I cited Nigel Bankes’ Blog^[121] in which he was critical of Vavilov’s subjection of statutory appeals from administrative decision-making to correctness review on questions of law, and, more generally, to the standards of appellate court scrutiny of judgments in civil law matters as laid down in Housen v Nikolaisen. As a matter of principle, it was wrong-headed and would in any event would raise its own problems of application. Professor Bankes, however, went on to recognize that the Vavilov majority had left room for legislative specification of other standards of review for statutory appeals.^[122]

In the immediate aftermath of Vavilov, there has not been a huge rush on the part of legislatures to take up this offer. However, there is one Alberta example with tangential impact on energy law and regulation. In Part 4 – Appeal and Judicial Review of the Land and Property Rights Tribunal Act,^[123] an Act amalgamating into a single tribunal four previously separate land regulatory tribunals (including the Surface Rights Board^[124]), section 19 provides:

On an application for judicial review of or leave to appeal a decision or order of the Tribunal or on an appeal of a decision or order of the Tribunal, the standard of review to be applied is reasonableness.

What is immediately striking about this provision is its application of a universal standard of reasonableness across the whole spectrum of court review of the tribunal’s decision-making under the Act: judicial review, statutory appeals, and even applications for leave to appeal. One consequence is that, in the domain of statutory appeals, Vavilov is statutorily reversed. That means that not only on pure questions of law but also questions of fact and mixed law and fact, Housen v Nikolaisen^[125] will no longer apply. Reasonableness will be the universal standard; it will not be correctness on pure questions of law or “palpable and overriding error” for questions of fact, discretion, and mixed law and fact.

However, this imposition of a universal reasonableness standard raises another more general question: Whether on statutory appeals or applications for judicial review is it constitutionally permissible for a legislature to substitute reasonableness review for correctness review with respect to the Vavilov rule of law categories for which correctness is the appropriate standard of review:

[C]onstitutional questions, general questions of law of central importance to the legal system as a whole and questions regarding the jurisdictional boundaries between two or more administrative bodies.^[126]

It remains to be seen, if and when that question arises in the context of the Land and Property Rights Tribunal, how a reviewing court will respond to it.

Interestingly, in the federal domain in Bill C-11, Part 2 of which is the Personal Information and Data Protection Tribunal Act, section 102(2) provides that, for appeals to the Tribunal, the standard of review for questions of law will be correctness, and, for questions of fact and mixed law and fact, “palpable and overriding error” — a legislative mandating of the Housen v Nikolaisen civil appeals standard of scrutiny. Nothing is said in the Bill about the standard of review to be applied by the Federal Court on applications for judicial review from the Tribunal’s decision. If this provision is enacted in its current form, that will undoubtedly raise questions as to whether the role of the reviewing court will be to assess the decision under appeal by reference to the same standards that the Tribunal itself was required to apply or whether the Tribunal will be entitled to the presumption of reasonableness not only for its determination of questions of law but also its rulings on questions of mixed fact and law.

Also worthy of note are the recommendations in the January 2021 Final Report of the Ontario Capital Markets Modernization Taskforce. In proposing that there be a separate Adjudicative Tribunal established within the framework of securities regulation in Ontario,^[127] the Taskforce, with reference to Vavilov, recommends reinstating reasonableness as the standard of review for questions of law in any appeals to the courts from the decisions of the recommended Tribunal.^[128] That formulation then leaves over the question whether the standard of review for questions of fact, discretion, or mixed law and fact would also be reasonableness, or the Housen v Nikolaisen standard of palpable and overriding error.

Interestingly, the Taskforce does not refer to that question but does make it clear that the legislated standard of review should not apply to issues of natural justice or procedural fairness, or to any of the existing Vavilov rule of law-based correctness categories.^[129] This at least avoids the question posed above in relation to the standard of review designation in the Act establishing the Alberta Land and Property Rights Tribunal.

It now remains to be seen whether the Alberta initiative or versions of it is picked up in relation to other tribunals and agencies (including energy regulatory bodies) not only in that province but also more broadly across Canada. However, should any jurisdiction want a reversion to the pre-Vavilov position, Nigel Bankes,^[130] by reference to the Alberta Utilities Commission, has an elegant solution:

Standard of Review on Appeal

29A Notwithstanding the use of the word “appeal” in section 29, the Court of Appeal shall apply the same standard of review to an appeal as it would apply to an application for judicial review under Part 3, Division 2 of the Rules of Court.

INDIGENOUS RIGHTS AND ENERGY REGULATION

It is not only with respect to the duty to consult and, where appropriate, accommodate that energy regulators must confront issues affecting Indigenous peoples. In 2020, this point was underscored in two rather different though not completely unrelated contexts that I will discuss in this section.

The United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”)

In varying ways, since its adoption by the United Nations General Assembly on September 13, 2007, UNDRIP has figured prominently in discourse on the future of energy regulation in Canada. The biggest flashpoint has been the provisions in UNDRIP referring to “free, prior and informed consent.” Article 19 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].

Similarly, by Article 32, States commit to

…consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

It was these provisions that led to Canada’s initial unwillingness to endorse the Declaration. The salient concern was that, if incorporated into Canadian law, they would in effect give Indigenous peoples a veto over the administrative or legislative approval of any project that impacted their rights, claims, and interests. The apparent requirement of “free, prior and informed consent” would override the position taken by the Supreme Court of Canada that the duty to consult and, where appropriate, accommodate did not confer on Indigenous peoples an unrestricted right to withhold consent to any project that affected their section 35 and other constitutional rights.

However, notwithstanding the perpetuation of those concerns about the impact of adopting UNDRIP as part of Canadian domestic law, Canada eventually endorsed the Declaration in 2010 in a qualified way. Five years later, the Liberal election platform promised implementation of the Declaration, and this was reiterated during the 2019 election campaign. In the meantime, in 2016, Canada had entered an unqualified endorsement of the Declaration at the United Nations. Subsequently, British Columbia enacted legislation incorporating the Declaration into its law.^[131] In Ottawa, a private member’s Bill^[132] aimed at making the Declaration part of Canadian law had been passed by the House of Commons in 2018, but ultimately died on the Order Paper when Parliament was dissolved on the calling of the fall 2019 election.

Then, eventually, on December 3, 2020, the Government introduced in the House of Commons Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples.^[133]

In the Department of Justice Summary appended to the Bill, it is stated that, when enacted, it will commit Canada to “take all measures necessary to ensure that the laws of Canada are consistent with” the Declaration. Section 4(a) then provides that among the purposes of the legislation is to

affirm the Declaration as a universal international human rights instrument with application in Canadian law.

This follows on and seemingly goes somewhat further than one of many recitals in the legislation’s preamble:

Whereas the Declaration is affirmed as a source for the interpretation of Canadian law [emphasis added].

However, the Department of Justice,^[134] in its website entry explaining the Bill and its purposes, seemed to take a view of the Bill’s impact that did not give effect to the requirement of “free, prior and informed consent.”

References to “free, prior and informed consent” are found throughout the Declaration. They emphasize the importance of recognizing and upholding the rights of Indigenous peoples and ensuring there is effective and meaningful participation of Indigenous peoples in decisions that affect them, their communities or the territories.

…If passed, this legislation would not change Canada’s existing duty to consult Indigenous groups, or other consultation and participation requirements set out in other legislation like the new Impact Assessment Act.

In a without attribution technical briefing for the press, a senior government official is reported as saying quite remarkably that

…the bill is not written to make UNDRIP a part of Canadian federal law, but instead identifies the declaration as a human rights instrument that governments and courts can use to guide the development and interpretation of Canadian law.^[135]

In any event, the Minister of Justice apparently told the press that

…meaningful consultation is what is embodied in free, prior and informed consent. The word veto does not exist in the document.^[136]

However, as an editorial in the Globe and Mail states:

The problem is that the word “consent” has a meaning. It normally means the power to say yes or no, full stop.^[137]

Nonetheless, I suppose that a strained interpretation of the relevant provisions in the Declaration might however be that the words “in order to obtain their free, prior and informed consent” should be read as “in a good faith endeavour to obtain their free, prior and informed consent” or “with a view to obtaining their free, prior or informed consent.” In that way, for example, the obligations imposed by the Bill could be seen as not giving a veto but as allowing for the perpetuation of existing Supreme Court principles respecting the duty to consult and, where appropriate, accommodate. However, in my view, this may be too much of a stretch. What is also clear is that if the Bill becomes law, there will almost inevitably be regulatory proceedings and litigation in which Indigenous groups urge upon regulators and judges their version of the meaning of the critical wording and that it does in effect create a veto power.

The Honour of the Crown – Beyond the Duty to Consult and Accommodate

Fort McKay First Nation v Prosper Petroleum Ltd.^[138] involved an appeal by the First Nation from a decision of the Alberta Energy Regulator (AER) approving (subject to authorization from the Lieutenant Governor in Council^[139]) a bitumen recovery project which would be located close to First Nation’s Moose Lake Reserves. The First Nation argued that the AER had wrongfully refused to consider whether the honour of the Crown demanded that the project not be approved until the conclusion of ongoing negotiations between the First Nation and the Government of Alberta on the creation of a Moose Lake Access Management Plan (MLAMP) “to address the cumulative effects of oil sands development on the First Nation’s Treaty Eight Rights.”^[140]

As a matter of process, Prosper^[141] and Alberta^[142] argued that consideration of whether the honour of the Crown was engaged and affected the decision was beyond the competence of the AER. Section 21 of the Responsible Energy Development Act^[143] provided that the AER did not have jurisdiction to consider the adequacy of Crown consultation in matters coming before it. The reason for the provision was the assignment of that responsibility and, more generally, for management of consultations to the Aboriginal Consultation Office.^[144]

However, the Court of Appeal determined that this did not excuse the AER from considering other “relevant matters involving aboriginal peoples”^[145] arising out of its mandate. To the extent that the First Nation was invoking the honour of the Crown, while the honour of the Crown did not give rise to “an independent cause of action,”^[146] it was not confined to assuring the fulfilment of the duty to consult. It had been recognized as relevant to three other situations.^[147] It can give rise to a fiduciary obligation when the Crown “assume[d] discretionary control over a specific Aboriginal interest.” It “govern[ed] treaty-making and implementation.” It also “require[d] the Crown to act in a way that accomplishes the intended purpose of treaty and statutory grants to Aboriginal peoples.” Moreover, this was not a case in which the First Nation was relying on the duty to consult. In terms of the three other honour of the Crown infused situations, the First Nation was basing its claim on the assertion that engaged the implementation of the obligations that were contained in Treaty 8.^[148] That aside, its claims were more broadly based in the sense that the First Nation was asserting, based on the principle of reconciliation, that the AER should have evaluated “whether the MLAMP process was relevant to assessing whether the Project was in the public interest.”^[149] The Court also rejected the argument that these matters were for Cabinet when it came to determine whether it should give effect to the AER’s approval of the project.^[150]

Since the AER had never addressed these matters,^[151] the appropriate course of action was for the matter to be remitted for reconsideration taking into account “the honour of the Crown and the MLAMP.”^[152]

In her concurrence, Greckol JA went somewhat further than the other two members of the Court of Appeal. In her view, the First Nation had established that the honour of the Crown with respect to treaty implementation had been engaged.^[153] The majority preferred to leave that threshold question to the AER’s reconsideration, a reconsideration that would be on the basis of yet to be developed full evidentiary record.^[154]

Reliance on the honour of the Crown has also surfaced in the context of an Alberta Utilities Commission (AUC) ruling on which leave has been given to appeal to the Court of Appeal: AltaLink Management Ltd. v Alberta Utilities Commission.^[155] The dispute arose out of AltaLink’s transfer of an equity interest in part of an electricity transmission line to two First Nations. This transfer attracted additional annual auditing and hearing costs arising out of the partnership between AltaLink and the two First Nations. In approving the transfer, the Commission ruled that those additional costs should not be borne by ratepayers but by the partnership. Among the grounds on which this ruling was challenged was that it failed to respect the honour of the Crown. The AUC, it was asserted, should have acted on a more holistic basis and with particular reference to the public interest in the creation of such partnerships between regulated utilities and First Nations.^[156] Basically, the assertion was that the public interest in such efforts at reconciliation should lead to the added costs being borne by ratepayers, not the partnership.

Should this appeal succeed, it may very well presage more frequent appeals to the honour of the Crown in regulatory proceedings engaging the rights, claims and interests of Indigenous peoples. Process, not in the sense of the mechanics of consultation but the canvas on which such decision-making takes place (the range of relevant factors), may expand considerably.

OTHER PROCESS AND REMEDIAL ISSUES

Applications for Leave to Appeal

In granting leave to appeal in AltaLink Management Ltd. v Alberta Utilities Commission,^[157] Strekaf JA referred to the five factors that the Alberta Court of Appeal generally considered in determining whether to grant leave to appeal from an energy regulatory decision,^[158] and, in short order thereafter, provided reasons for allowing the application. This is in stark contrast to some other judgments of single judges of the Court on leave applications especially in cases were leave is denied.

The judgment of Watson JA in FortisAlberta Inc. v Alberta (Utilities Commission)^[159] exemplifies the contrast. Focusing largely on the third criterion (“whether the appeal is prima facie meritorious”) in the list of relevant considerations, Watson JA proceeded^[160] to engage in what was to all intents and purposes an in-depth, precedent-based consideration of the merits of the principal ground on which leave to appeal was being sought.

Whether the purpose of imposing a statutory leave requirement is well-served by such extensive canvassing of the merits is an interesting question. To the extent that it explains to applicants why they are likely to lose on the merits of the grounds on which they are seeking leave, it can perhaps be justified in the sense that adequate reasons, albeit not coming from whom you wanted to deal with your appeal, may assuage the loser’s disappointment. It may also serve to underscore that, while the first instance reasons were questionable, nevertheless, there were other very good reasons why the applicant had deserved to lose at first instance. That too may make the denial of access to a full-blown appeal more palatable.

On the other hand, on a going forward basis, to the extent to which the applications judge makes pronouncements on the merits of the case, there will, if the same issue arises again, be questions as to the precedential value of those pronouncements. There also must be questions as to extent to which the time-consuming crafting of lengthy reasons for either granting or denying leave to appeal are an appropriate use of judicial time given the usual sense of leave provisions as providing a filter against appeals with little or no chance of success reaching the next level. If the matter is not worthy of the Court of Appeal’s time, why should a third or more of that time be transferred to or taken up by the leave judge expounding on the merits of the grounds of appeal?

The Raising of New Issues on an Application for Judicial Review or a Statutory Appeal

As mentioned earlier, Planet Energy (Ontario) Corp. v Ontario Energy Board^[161] gave rise to an issue as to whether the Board had levied an administrative penalty out of time. Section 112.5(2) of the Ontario Energy Board Act^[162] provides that

[the] Board shall not make an order under subsection (1) in respect of a contravention later than two years after the later of,

(a)the day the contravention occurred; and

(b)the day on which evidence of the contravention first came to the attention of the Board.

Planet Energy had not raised this issue at the hearing before the Board given that the limitation period had not run, and only did so while the Board’s decision was still under reserve. This led Planet Energy to argue that the situation was an exception to the normal principle that all issues should be raised before the administrative decision maker; that neither on an application for judicial review nor, as here, a statutory appeal,^[163] could they be advanced for the first time before the reviewing court.

In rejecting this argument,^[164] Swinton J outlined the rationales behind the accepted position. To allow the matter to be argued for the first time before the reviewing court would mean that the court would be flying in the face of the legislature’s choice to leave such matters at first instance to determination by the board or tribunal. It would also mean that the reviewing court would not have the benefit of the board’s or tribunal’s position on the contested issue. Finally, in some instances, it might prejudice a respondent’s ability to introduce relevant evidence and lead to the court having to review the matter based on an incomplete record.^[165]

In responding to Planet Energy’s urging the Divisional Court to treat this as an exceptional situation, Swinton J dismissed an argument based on the time that the Board normally took to render a decision. The performance standard on which counsel relied was for rate, not enforcement proceedings.^[166] Secondly, she faulted the appellant for not drawing the attention of the Board to the potential problem as the tolling of the limitation period approached.^[167] Alternatively, the appellant could have applied to the Board for a reconsideration as provided for in the Act.^[168] In that regard, the Court rejected as a general principle the position taken by the Alberta Court of Appeal in Alberta Power Ltd. v Alberta (Public Utilities Board)^[169] to the effect that the existence of a reconsideration or review power did not preclude the exercise of a right of appeal to the courts. In the circumstances of this proceeding, reconsideration should have been sought. Finally,^[170] Swinton J dismissed the contention that an exception should be made given that what was at stake was a “pure question of law” on which, since Vavilov, the standard of review would be that of correctness. Even accepting that it might be a pure question of law subject to a correctness standard of review, this ignored the fact that

…the Board is an expert and highly specialized tribunal that can assist the Court in the exercise of statutory interpretation by providing context and a consideration of various interpretations.^[171]

In any event, she went to rule that it was not a pure question of law since by reference to the limitation provision there had to be a determination of when, as a matter of fact, the Board had evidence of the relevant contravention.^[172]

To buttress this analysis, Swinton J noted that the section had never been interpreted by the Board and described some of the difficulties in giving meaning or effect to what she described as an “unusual provision.”^[173] Nevertheless, the Divisional Court’s rejection of the appellant’s arguments on this issue strikes me as being a very close call. However, it certainly illustrates how deference to a regulatory agency’s decision-making prerogatives founded in legislative choice of regulatory instrument can play a role in the exercise of discretionary procedural and remedial powers on judicial review and statutory appeals from tribunals and agencies.

Swinton J’s distinguishing of the Alberta Court of Appeal judgment in Alberta Power Ltd. also raises the issue of whether, when there is access to a review or reconsideration within the tribunal, the starting point should be that these avenues co-exist; that, save in exceptional circumstances, the choice of whether to forego the review or reconsideration possibility and proceed directly to judicial review or a statutory appeal should be that of the losing party. At some point, this merits a more developed judicial assessment of why the principles of exhaustion of domestic avenues of recourse do not apply to review and reconsideration provisions.

It is also pertinent to recollect that, as noted earlier, in Enbridge Gas v Ontario Energy Board,^[174] Swinton and Favreau JJ did allow an issue to be raised for the first time in an appeal to the Court from the Board. The issue here was whether in a rate-setting matter, the utility’s timing of its rates application should be a factor in the setting of final rates and, more particularly, whether the date from which final rates were to become effective need not correspond to the date fixed earlier for the commencement of interim rates.

Following extensive citation^[175] from Planet Energy,^[176] Swinton and Favreau JJ held, relying on the judgment of Rothstein J in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association,^[177] that this should be treated as an exceptional situation even though “the appellant should have raised the issue before the OEB.”^[178] First, the issue of whether the timing of the application was a relevant consideration in fixing the date from which the final rates applied was described as a question of law on which there were no facts in dispute. Secondly, this was an issue which the Board had addressed in previous cases and found that, as a matter of law, the timing of the application was a relevant factor. In other words, the Court had the benefit of the Board’s reasoning on the issue. “Most significantly,”^[179] the issue’s recurrence after three previous decisions supported the proposition that the time had come for there to be a definitive resolution. In support of the normal rule, Swinton J did, however, emphasise that this should in no way be interpreted as an invitation to bypass the Board. This was a matter involving “unique circumstances.”^[180]

When to Remit

One of the collateral issues considered by the majority in Vavilov^[181] was the question of when a reviewing Court should simply quash a decision and not remit the matter to the decision-maker for determination in accordance with the reasons provided by the reviewing or appellate court. Normally, respect for the decision-making prerogatives of the respondent dictates that remission back for reconsideration is the proper course of action. Moreover, as seen in the earlier discussion of Hydro One Networks Inc. v Ontario Energy Board,^[182] remission in a formal sense is statutorily required by section 33(4) of the Ontario Energy Board Act.^[183]

However, the Vavilov majority went on to accept that there are situations in which a remission

…would stymie the timely and effective resolution of matters in a manner that no legislature could have intended.^[184]

Nation Rise Wind Farm Limited Partnership v Ontario (Minister of the Environment, Conservation and Parks,^[185] a post-Vavilov judgment of the Ontario Divisional Court, provides one such example in an energy regulation setting.

It involved an appeal to the Minister from a decision of the Ontario Environmental Review Board giving regulatory approval to a large wind energy project. The Minister allowed the appeal and revoked the regulatory approval on the basis that the project would cause catastrophic harm to a colony of bats. On an application for judicial review of the Minister’s decision, the Divisional Court^[186] held that the Minister had no right to raise an issue that had not been in play before the Board and that had not been raised in submissions of the parties on the appeal. On a reasonableness test, the Minister had misconceived the scope of his role, and, on the record, there was no evidential support for his factual finding as to harm that would be suffered by the bat colony.^[187] He had also failed to act in a procedurally fair manner in several respects.^[188]

The Court then went on to consider the appropriate remedial response in accordance with the guidance provided by the Vavilov majority.^[189] This led to the Court determining that this was not a case for quashing and remitting to the Minister for redetermination in accordance with the Court’s reasons. Rather, the Minister’s decision should simply be quashed with the effect being the reinstatement of the Board’s original decision.

The Court provided several reasons for this stance which coalesced to justify the discretionary determination:

1. Given that the Minister had no authority to decide the appeal on grounds not raised by the parties, there would be no point in remitting the matter to the Minister simply to cure that defect.
2. Even if the Minister did have authority to consider the plight of the bats, there was no evidence on the record supporting his dire prognostication as to their fate.
3. Moreover, the Minister had made it clear that the only reason that he allowed the appeal was because of the bats.
4. Finally, and relying on the Vavilov majority’s endorsement of the “urgency of providing a resolution to the dispute” as a relevant consideration, the Court referred to the completion pressures that the project was facing from the Independent Electricity Service Operator and the possibility of cancellation of the project even if the Minister dismissed the appeal on a reconsideration.

Given all those considerations, the Divisional Court was clearly correct in simply quashing the Minister’s decision with the implicit message being that this disposition did not leave any room for the Minister to attempt to reconsider on his own initiative.

1. I am grateful for interactions with Paul Daly, former Justice of Appeal, John Evans, and Justice of Appeal David Stratas each of whom provided me with insights that were critical to my writing of this article.*David J. Mullan, Emeritus Professor, Faculty of Law, Queen’s University.
2. 2017 MBCA 98, 416 DLR (4^th) 385, leave to appeal to SCC granted, [2017] SCCA 462 (QL). One of the issues in this case is whether on an appeal from judicial review, the appeal Court should apply the standards applicable in appeals from a lower court in civil case, continue to be on a de novo or correctness basis, or some other sui generis combination. It is scheduled to be argued on February 16, 2021.
3. 2019 SCC 65 [Valilov].
4. Bell Canada v Canada (Attorney General), 2019 SCC 66 [Bell], and, delivered the following day, Canada Post Corporation v Canadian Union of Postal Workers, 2019 SCC 67.
5. For another assessment, see Shaun Fluker, “Vavilov and the Judicial Review of Natural Resources, Energy and Environmental Decisions in Canada”, (2020) 123 Resources 1, online: <ssrn.com/abstract=3702774>.
6. Starting with the excellent and still persuasive blog by 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 (blog): Ablawg <ablawg.ca/wp-content/uploads/2020/01/Blog_NB_Vavilov.pdf>.
7. 2002 SCC 33.
8. See, in particular, the presentation by Cristie Ford, “Vavilov’s First Birthday” (5 January 2021) at 01h:21m:20s, online (video): Youtube <youtu.be/TPEgXuoXqqw?t=4880> (The conference was mounted on December 18, 2020 by Professor Paul Daly of the University of Ottawa Faculty of Law).
9. See e.g. Jonathan Drance, Glenn Cameron & Rachel Hutton, “The SCC Vavilov Decision: Will it Increase Regulatory Risk?” (2020) 8:4 Energy Regulation Q 60, online (pdf): ERQ <www.energyregulationquarterly.ca/wp-content/uploads/2020/12/ERQ_Volume-8_Issue-4-2020.pdf>.
10. Vavilov, supra, note 3 at paras 12, 13, 67, 72, 138.
11. Ibid at para 124.
12. Ibid at paras 65–68, 109–11.
13. Ibid at paras 116–22.
14. David Mullan, “Judicial Scrutiny of Administrative Decision Making: Principled Simplification or Continuing Angst?” (2020) 50 Adv Q 423 at 453.
15. Supra note 4.
16. Paul Daly, “Rates and Reserves: Manitoba (Hydro-Electric Board) v. Manitoba (Public Utilities Board), 2020 MBCA 60” (13 October 2020), online (blog): 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/>.
17. 2020 MBCA 60.
18. CCSM c P280.
19. CCSM c H190, ss 39(2.1)-(2.2).
20. Patrick Duffy, “Manitoba Hydro v. Manitoba Public Utilities Board: Reduced Rates for Indigenous Peoples Overruled” (2020) 8:3 Energy Regulation Q 47, online (pdf): ERQ <www.energyregulationquarterly.ca/wp-content/uploads/2020/09/ERQ_Volume-8_Issue-3-2020.pdf>.
21. Daly, supra note 16.
22. See also for another regulatory law appeal not otherwise discussed in this survey: East Hants (Municipality) v Nova Scotia (Utility and Review Board), 2020 NSCA 41. It is discussed by Fluker, supra note 5 at 4.
23. 2020 ONSC 598 Planet Energy.
24. SO 2010, c 8.
25. SO 1998, c 15, s 112.5(2).
26. Supra note 23 at para 31.
27. Ibid at paras 26–30.
28. 2020 ONSC 3616.
29. Ibid at paras 31–33 (I return to this issue in the concluding section of this article).
30. Ibid at para 33.
31. 2020 ONSC 4331 [Hydro One Networks].
32. Responsibility for this may in fact rest at least in part with the form of the Rehearing Procedural Order describing the role of the Rehearing Panel in terms of whether the Original Decision was “reasonable regarding the allocation of future tax savings between shareholders and ratepayers.” Recited in Ducharme J’s judgment, ibid at para 41.
33. Supra note 31 at paras 48–51.
34. Of course, it might be objected that the choice between correctness and reasonableness for judicial review and statutory appeal purposes is also an exercise in statutory interpretation. However, that “interpretative” exercise takes place within a constitutional guarantee of judicial review and a range of other constitutional and rule of law imperatives. It is much more generalized than a statutory interpretation exercise located within the confines of a particular statutory regime and that is not adorned with such a constitutional overlay.
35. See the lengthy analysis in Huruglica v Canada (Citizenship and Immigration), 2016 FCA 93 at paras 36–104, in the context of appeals from the Immigration and Refugee Board Refugee Protection Division to the Refugee Appeal Division. And, for a post-Vavilov affirmation of that position, see Mekhashishvili v Canada (Minister of Citizenship and Immigration), 2021 FC 65. See also City Centre Equities Inc. v Regina (City), 2018 SKCA 43 at paras 37–101, with respect to property assessment appeals from the Saskatchewan Municipal Board of Revision to the Assessment Appeals Committee. Paul Daly has also written about this issue: see e.g. Paul Daly, “Unresolved Issues after Vavilov I: Internal Appeals” (4 May 2020), online (blog): Administrative Law Matters <www.administrativelawmatters.com/blog/2020/05/04/unresolved-issues-after-vavilov-i-internal-appeals/>.
36. Hydro One Networks, supra note 31 at paras 52–54.
37. Supra note 25.
38. Supra note 31 at paras 55–60.
39. RSO 1990, c C.43 (as amended).
40. For my earlier discussion of this issue, see “Judicial Scrutiny of Administrative Decision Making: Principled Simplification or Continuing Angst?”, supra note 14 at 434–35. Prior to Vavilov , I also dealt with this issue in “2014 Developments in Administrative Law Relevant to Energy Law and Regulation” (2015) 3:1 Energy Regulation Q 17 at 21–23, both generally and with particular reference to discretionary powers of the then NEB over participatory rights. The issue of agency determinations on participatory rights as an aspect of procedural fairness was also the focus of a discussion of Delta Air Lines v Lukács, 2018 SCC 2, in “2017 Developments in Administrative Law Relevant to Energy Law and Regulation” (2018) 6:1 Energy Regulation Q 19 at 19–24.
41. Supra note 3 at para 13.
42. Ibid at para 23.
43. Ibid at paras 76–81.
44. Ibid at para 77.
45. [1999] 2 SCR 817 at paras 22–23, 174 DLR (4^th) 193.
46. Vavilov, supra note 3 at para 77.
47. Ibid.
48. 2020 ONSC 2984.
49. Ibid at para 123.
50. Ibid at para 124.
51. Ibid at para 134.
52. 2020 ONSC 6549 [Rogers Communications].
53. Ibid at para 14.
54. Ibid at para 77.
55. Ibid at para 16.
56. Ibid at para 17.
57. Ibid at para 15.
58. Supra note 25.
59. Presumably, part of the motivation for the Board taking this position was that judicial review of questions of law under the Judicial Review Procedure Act, RSO 1990, c J.1 would have given the Board the benefit of the presumption of reasonableness whereas on an appeal correctness would in the aftermath of Vavilov be the appropriate standard.
60. Supra note 25.
61. Rogers Communications, supra note 52 at paras 44–47. The Board had not issued a formal order establishing the new and higher default charge. However, Lederer J held that, irrespective of this and the Board’s position, the increase in the charge brought about by the Final Report was in reality and effect an Order.
62. Interestingly, despite the conclusion that the matter came within the scope of section 33(1) and the Divisional Court’s appellate jurisdiction, Lederer J held, ibid at paras 32–33, Vavilov notwithstanding, that reasonableness was the test to be applied in the interpretation of whether this was a matter requiring a hearing by reference to section 21(2) or was a matter of discretion for the Board by reference to section 70(1.1).
63. Ibid at paras 61–68. (Although I have not discussed the legitimate expectation argument in any detail, the Court’s analysis of and application of the principles of legitimate expectation to the facts is instructive and an invaluable resource for the understanding of the Canadian version of this source of procedural entitlements.)
64. Ibid at para 27.
65. Ibid at paras 28–29.
66. 2020 ONSC 4392 at para 81.
67. 2014 FCA 59 at para 50. I noted this judgment in my 2014 survey: supra note 40 at 21–22.
68. Rogers Communications, supra note 52 at para 30.
69. Supra note 45 at para 27.
70. Supra note 52 at para 79.
71. [1980] 1 SCR 602 at pp 628–29, 106 DLR (3d) 385.
72. Supra note 52 at para 94.
73. Ibid at para 95. This was another judgment of Stratas JA, also the subject of my 2014 survey:Forest Ethics Advocacy Association v Canada (National Energy Board), in which he referred to the “experience and expertise” of the National Energy Board in determining participatory rights: see 2014 FCA 245 at para 72.
74. Ibid at para 96.
75. Re:Sound v Fitness Industry Council of Canada, 2014 FCA 48 at para 42.
76. Rogers Communications, supra note 52 at para 97.
77. Ibid at para 100.
78. Howard Kislowicz & Robert Hamilton “The Standard of Review and the Duty to Consult and Accommodate Indigenous Peoples: What is the Impact of Vavilov? Part 1” (20 November 2020), online (pdf): ABlawg <ablawg.ca/wp-content/uploads/2020/11/Blog_HK_RH_DTCA_Part_1.pdf>; Howard Kislowicz & Robert Hamilton “The Standard of Review and the Duty to Consult and Accommodate Indigenous Peoples: What is the Impact of Vavilov? Part 2” (24 November 2020), online (pdf): ABlawg <ablawg.ca/wp-content/uploads/2020/11/Blog_HK_RH_DTCA_Part_2.pdf>.
79. However, it should be noted that there is as yet no consensus on this matter. Thus, in Quadrexx Hedge Capital Management Ltd., supra note 66 at para 78, the Ontario Divisional Court appears to equate in some contexts unreasonableness and palpable and overriding error:
    The word “palpable” means “clear to the mind or plain to see”, and “overriding” means “determinative” is the sense that the error “affected the result”. The Supreme Court has held other formulations capture the same meaning as “palpable error”: “clearly wrong”, “unreasonable” or “unsupported by the evidence [emphasis added and footnotes omitted].
    The authors acknowledge this and also recognize a duty to consult judgment of the Nova Scotia Supreme Court to the same effect: Sipekne’katik v Nova Scotia (Minister of the Environment), 2020 NSSC 111 at para 60. However, they then cite a number of more recent Supreme Court of Canada and Court of Appeal precedents which contain characterizations of the “palpable and overriding” error standard in far more deferential terms. In so doing, they cite Stratas JA of the Federal Court of Appeal in Canada v South Yukon Forest Corporation, 2012 FCA 165 at para 46:
    Palpable and overriding error is a highly deferential standard of review… “Palpable” means an error that is obvious. “Overriding” means an error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall.
80. See e.g. Sipekne’katik, ibid at paras 61–67.
81. Supra note 3 at para 55.
82. Starting with the foundational judgment of the Supreme Court of Canada in Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 [Haida Nation].
83. Supra note 3 at para 57.
84. 2012 SCC 12.
85. With reference not only to supra note 82, but also more particularly Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53.
86. 2020 FCA 34 [Coldwater Indian Band].
87. Ibid at para 25.
88. Ibid at para 26.
89. Ibid at para 27.
90. Ibid at para 28.
91. Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153.
92. Supra note 86 at para 29.
93. Ibid at paras 32–63.
94. Ibid at para 31.
95. Ibid at para 32.
96. Ibid at paras 33–36.
97. Ibid at paras 37–46.
98. Ibid at para 38
99. Supra note 52.
100. Supra note 86 at para 38.
101. In the context of the review of energy regulators and the Northern Gateway saga, see the judgment of Dawson and Stratas JJA in Gitxaala Nation v Canada, 2016 FCA 187 at para 6.
102. Supra note 86 at para. 40.
103. Ibid at para 41.
104. Ibid.
105. Ibid.
106. Ibid.
107. Ibid.
108. Ibid.
109. Supra note 82 at para 45
110. Coldwater Indian Band, supra note 86 at paras 43–46.
111. Ibid at paras 47–56.
112. Ibid at para 53.
113. Ibid.
114. Ibid at para 54.
115. Ibid at para 58.
116. Ibid at para 61.
117. Ibid at paras 62–63.
118. Supra note 3 at paras 133–35.
119. Coldwater Indian Band, supra note 86 at para 62.
120. Ibid at para 66.
121. David Mullan, “2019 Developments in Administrative Law Relevant to Energy Law and Regulation” (2020) 8:1 Energy Regulation Q 28, online (pdf): ERQ <www.energyregulationquarterly.ca/wp-content/uploads/2020/04/ERQ_Volume-8_Issue-1-2020-1.pdf>.
122. Supra note 6.
123. SA 2020, c L-2.3, enacted by section 6 of the Red Tape Reduction Implementation Act, 2020 (No. 2), SA 2020, c 39 (which received Royal Assent on December 9, 2020).
124. The others were the Land Compensation Board, the Municipal Government Board, and New Home Buyer Protection Board.
125. Supra note 7.
126. Supra note 3 at para 53.
127. Walied Soliman et al., “Capital Markets Modernization Taskforce Final Report” (January 2021) at 20, online (pdf ): Government of Ontario <files.ontario.ca/books/mof-capital-markets-modernization-taskforce-final-report-en-2021-01-22-v2.pdf>.
128. Ibid at 23–24.
129. Ibid.
130. Supra note 6.
131. Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c 44.
132. Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, 1^st Sess, 42^nd Parl, 2019 (as passed by the House of Commons 11 June 2019).
133. Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples, 2^nd Sess, 43^rd Parl, 2020 (first reading 3 December 2020).
134. Department of Justice, “Bill C-15: United Nations Declaration on the Rights of Indigenous Peoples Act” (last modified 26 January 2021), online: Government of Canada <www.justice.gc.ca/eng/declaration/about-apropos.html>.
135. Ryan Patrick Jones, “Liberals introduce bill to implement UN Indigenous rights”, CBC News (3 December 2020), online: <www.cbc.ca/news/politics/liberals-introduce-undrip-legislation-1.5826523>.
136. “Question for the Trudeau government: What does UNDRIP stand for?”, The Globe and Mail (7 December 2020), online: <www.theglobeandmail.com/opinion/editorials/article-question-for-the-trudeau-government-what-does-undrip-stand-for/>.
137. Ibid.
138. 2020 ABCA 163. For other commentary on this judgment, see Nigel Bankes, “The AER Must Consider the Honour of the Crown” (28 April 2020), online(blog): ABlawg <ablawg.ca/2020/04/28/the-aer-must-consider-the-honour-of-the-crown/>; See also Martin Ignasiak, Sander Duncanson & Jesse Baker, “Resource Projects and the Honour of the Crown” (2020) 8:3 Energy Regulation Q 43, online (pdf): ERQ <www.energyregulationquarterly.ca/wp-content/uploads/2020/09/ERQ_Volume-8_Issue-3-2020.pdf>.
139. By virtue of section 10(3) of the Oil Sands Conservation Act, RSA 2000, c O-7.
140. Supra note 138 at para 1.
141. Ibid at para 32.
142. Ibid at para 34.
143. SA 2012, c R-17.3.
144. An office within the Ministry of Indigenous Relations: supra note 138 at para 49.
145. Ibid at para 57
146. Ibid at para 54.
147. Ibid at para 53
148. Ibid at para 56.
149. Ibid at para 57.
150. Ibid at paras 62–67.
151. Ibid at paras 68–71.
152. Ibid at para 71.
153. Ibid at paras 72–83.
154. Ibid at para 70.
155. 2019 ABCA 482.
156. Ibid at paras 13–14
157. Ibid at para 10.
158. a.whether the point on appeal is of significance to the practice;
     b.whether the point raised is of significance to the action itself;
     c.whether the appeal is prima facie meritorious;
     d.whether the appeal will unduly hinder the progress of the action; and
     e.the standard of appellate review that will be applied on the merits
     In an earlier annual survey, I have discussed various aspects of this test: David J. Mullan, “2017 Developments in Administrative Law Relevant to Energy Law and Regulation” (2018) 6:1 Energy Regulation Q 19 at pp 32–33.
159. 2020 ABCA 271. See also Milner Power Inc. v Alberta (Utilities Commission), 2019 ABCA 127.
160. Ibid at paras 81–111.
161. Supra note 23.
162. Supra note 25.
163. See Rowan v Ontario Securities Commission, 2012 ONCA 208 at paras 70–71, 77, and cited by Swinton J, supra note 23 at para 20.
164. Supra note 23 at paras 16–34.
165. For other recent consideration of this issue in the context of a Charter challenge raised for the first time in judicial review proceedings, see the judgment of Stratas JA in Forest Ethics Advocacy Association v Canada (National Energy Board), 2014 FCA 245 at paras 37ff. I commented on this in “2014 Developments in Administrative Law Relevant to Energy Board and Regulation”, supra note 40. The leading Supreme Court of Canada precedent on this issue remains the judgment of Rothstein J in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Federation, 2011 SCC 61 at paras 23–28, a case in which an exception was made to the normal position. It is cited and distinguished by Swinton J, supra note 23 at paras 17–19
166. Supra note 23 at paras 21–22.
167. Ibid at para 23.
168. Ibid at paras 24–25.
169. 1990 ABCA 33 at paras 7–8.
170. Supra note 23 at paras 26–33.
171. Ibid at para 26.
172. Ibid.
173. Ibid at para 27.
174. Supra note 28.
175. Ibid at paras 27–28.
176. Supra note 23.
177. Supra note 165 at para 28.
178. Supra note 28 at para 29.
179. Ibid at para 33.
180. Ibid.
181. Supra note 3 at paras 139–42.
182. Supra note 31.
183. Supra note 25.
184. Supra note 3 at para 142.
185. Supra note 48.
186. With Swinton and Favreau JJ again members of the panel.
187. Supra note 48 at paras 118–20 (a summary of conclusions).
188. Ibid at paras 125–54.
189. Ibid at paras 156–63, quoting at para 157 from Vavilov, supra note 3 at para 142