2022 Developments in Administrative Law Relevant To Energy Law and Regulation


That Canada (Citizenship and Immigration) v Vavilov[1] would put to rest all significant standard of review selection and application problems was always hoping for too much. After much judicial, professional, and academic quarreling over a range of issues arising out of or left unresolved by Vavilov,[2] during 2022, ending a period of abstinence, the Supreme Court of Canada returned to the fray and endeavoured (with varying levels of success) to settle some of the more significant questions arising out of its 2019 judgment. This annual survey is dedicated principally to a discussion of the relevant judgments each of which in different ways has significance for Energy Law and Regulation.

In the second half of the survey, I move away from standard of review and identify a number of other judgments, principally but not exclusively of the Supreme Court of Canada, dealing with a range of other issues that have resonance in an Energy Law and Regulation setting: the reach of the obligation of procedural fairness and the application of the doctrine of legitimate expectation in the context of regulation-setting or legislative-type functions, the nascent duty of candour in the course of regulatory proceedings, the range of remedies available for abusive and/or procedurally unfair delay in the processing of administrative proceedings, and the Supreme Court of Canada’s elaboration or refinement of the criteria for recognizing public interest standing in both constitutional and administrative law challenges.


i. Introduction

One of the apparent ambitions of Vavilov[3] was the adoption of a standard of review template that would cover the universe of judicial review of administrative action on substantive grounds[4] Whether a challenge to administrative action came before a court by way of an application for judicial review, a statutory appeal, or, presumably, a collateral challenge,[5] Vavilov[6] established criteria for determining the appropriate standard of review, and, thereafter, the considerations by which a court should conduct review in its application of the appropriate standard.

In the now over three years since Vavilov was decided,[7] not surprisingly, there has been significant judicial teasing out of a number of the aspects of both standard of review selection and the contextual adaptation of the various standards of review outlined in the majority judgment in Vavilov[8] For example, did the previous exception to the presumption of reasonableness review for questions of law in the case of matters that were potentially subject to scrutiny at first instance by both a court and an administrative agency still apply? Was the Supreme Court majority’s omission of this category from its limited list of situations where the presumption of reasonableness review was rebutted deliberate or accidental? Given Vavilov’s emphasis on the primacy of reasons in the search for unreasonableness, how should a reviewing court assess reasonableness with respect to decisions for which reasons were not required or otherwise not provided by the decision-maker?

In the instance of the former, the Court, without admitting responsibility, has “restored” the exception to the list of situations where the presumption of reasonableness review is rebutted and questions of law are reviewed on a correctness standard.[9] As for the latter, various courts have provided extensive guidance on how reasonableness review is to be conducted in the absence of reasons.[10]

However, given the majority’s ambition that the Vavilov principles should apply across the spectrum of administrative decision-making on substantive grounds, there are at least two domains where that qualified universality of approach has been questioned seriously but in somewhat different ways:

  1. Given Vavilov’s apparent exclusion of questions of procedural fairness from its standard of review template, what standards are to be applied to such challenges? Is it even appropriate to speak in terms of standards of review for procedural questions?[11]
  2. In the case principally but not exclusively of subordinate legislation, are there other situations where the universality of Vavilov’s approach to substantive review is compromised and where judicial scrutiny is still conducted by reference to traditional ultra vires standards or some variant thereof?

Moreover, it is relevant that there are contexts where these two questions elide as in the instance of challenges, direct or collateral, to legislated procedural rules on the basis that they do not comply with the principles of procedural fairness.[12]

In 2022, the Supreme Court provided a partial but still not definitive answer to the first question. While the second question has attracted considerable attention, both judicial and academic, we still await a resolution of which of two competing conceptions (or perhaps a merger of the two) should prevail. In this section of the survey, I will deal with both issues from the perspectives of both precedent and principle.

ii. Procedural Unfairness – Standard of Review – The Impact of Abrametz

In Law Society of Saskatchewan v Abrametz,[13] the Supreme Court revisited review for delay in administrative proceedings, an issue last confronted by the Court in its 2000 judgment in Blencoe v British Columbia (Human Rights Commission).[14] In the course of disciplinary proceedings initiated by the Law Society, Abrametz had applied for a stay on the basis of delay amounting to an abuse of process.[15] The Hearing Committee had denied his application and he appealed that decision to the Saskatchewan Court of Appeal as provided for by section 56(1) of The Legal Profession Act, 1990.[16] The hearing of an appeal under section 56(1) required leave from a judge of the Court of Appeal but was not restricted as to grounds. On that appeal, Abrametz was successful, and a stay was issued.[17] The Law Society sought and obtained leave to appeal to the Supreme Court.

Parenthetically, it is relevant that the underlying setting for the hearing of this appeal to the Supreme Court was different from that in Blencoe.[18] In Blencoe[19] the matter came to the courts by way of a petition for judicial review under the British Columbia Judicial Review Procedure Act,[20] filed after the human rights complaint had been set down for a hearing. In his petition requesting a stay, Blencoe alleged excessive delay in the processing of a human rights complaint against him such as to amount to both a denial of procedural fairness and an abuse of process.[21] In contrast to Abrametz,[22] there had been no formal request for a stay within the administrative process. There was no internal decision on that issue for the British Columbia Supreme Court to review. Rather, the Court in effect conducted a trial at first instance of Blencoe’s excessive delay allegation.[23] Issues of standard of review were simply not relevant as the Court was not reviewing a decision. It was also an era when the notion of a reviewing court deferring to a tribunal on procedural issues would have had little traction. Even Dunsmuir v New Brunswick[24] was still seven years away. Consequently, the failure of the Supreme Court to say anything about standard of review was unsurprising.

In contrast, in Abrametz,[25] there was an actual decision to be judicially reviewed within the framework of a statutory appeal regime. In fact, it is likely that today a Canadian court would hesitate to allow such a judicial review petition or application to proceed without the appellant or applicant having first raised the matter formally with the designated regulator or the hearing tribunal.[26] More pertinently, it was also the case that, in an era of increasing attention to the standard of review issue, there had been some Supreme Court attention to the question of its relevance to judicial review on procedural grounds.

Until Abrametz, the leading precedent on the standard of review to be applied to allegations of procedural unfairness was the judgment of LeBel J in Mission Institution v Khela.[27] Khela was involuntarily transferred back to a maximum security penitentiary and sought judicial review of that decision by way of an application for habeas corpus to the British Columbia Supreme Court. When the matter reached the Supreme Court, LeBel J addressed the issue of the standard by which a reviewing court should assess procedural questions. Initially, his position seemed straightforward:

The standard of review for determining whether the decision maker complied with the duty of procedural fairness will continue to be “correctness”.[28]

However, thereafter, in responding to the argument that there had been procedural unfairness resulting from the denial of access to certain relevant materials based on a warden’s “risk” assessment, LeBel J went on to say:

The Commissioner, or her or his representative, is in the best position to determine whether such a risk could in fact materialize. As a result, the Commission, or the warden, is entitled to a margin of deference on this point. Similarly, the warden and the Commissioner are in the best position to determine whether a given source or informant is reliable. Some deference is accordingly owed on this point as well.[29]

Obviously, how to reconcile these two statements together poses a problem. The initial statement as to the continuation of correctness review for questions of procedural fairness is not focussed simply on the threshold determination of whether there is an entitlement to any level of procedural fairness; it extends to the details of any such procedural fairness entitlement. Yet, in the second statement, LeBel J seems to accept that there are at least some situations where the decision-maker is entitled to deference in the evaluation of arguments pertaining to the content of procedural fairness entitlements in a particular case. In this instance, that evaluation was whether to derogate from normal entitlements to access to relevant material based on a risk assessment.

In the following year, 2015, Stratas JA in Bergeron v Canada (Attorney General)[30] without purporting to resolve the Khela dilemma, provided an account of what he described as a “jurisprudential muddle” on the issue of the role of deference in the domain of procedural fairness. Since then, he has continued to document the perpetuation of this state of confusion in his regularly updated (and now including Abrametz), “The Canadian Law of Judicial Review: Some Doctrine and Cases.”[31]

As noted above, the procedural context for Abrametz[32] was a statutory appeal with leave to the Saskatchewan Court of Appeal. Rowe J, delivering the judgment of an 8-1 majority reversing the Saskatchewan Court of Appeal and refusing a stay of proceedings, seemed to be very careful to limit the scope of the ruling on the issue of standard of review to the context of statutory appeals. In other words, one is led to speculate immediately as to why he did not include within the ambit of his brief discussion consideration of the role of standard of review for assertions of procedural unfairness questions on applications for judicial review especially.

This case allows the Court to clarify the standard of review applicable to questions of procedural fairness and abuse of process in a statutory appeal…This does not depart from Canada (Citizenship and Immigration) v. Khosa[33]…and Khela[34]…as those decisions related to judicial review and to the granting of the prerogative writs.[35]

Putting this in an energy regulatory setting, the judgment explicitly covers regulatory regimes where, as in the case of the Alberta Utilities Commission, there is an appeal on questions of law and jurisdiction with leave to the Alberta Court of Appeal[36] but not the situation in jurisdictions where access to judicial review from an energy regulator is not by way of statutory appeal but through the regular application for judicial review process[37]. In that limited context, Rowe J acknowledged that Vavilov[38] was a case of substantive, not procedural review but asserted that, in the case of statutory appeals to the courts, Vavilov was “categorical.”[39] Both substantive and procedural challenges were to be dealt by reference to “appellate standards of review”[40]: correctness for questions of law and “palpable and overriding error for questions of fact and of mixed law and fact.”[41]

It is implicit in Rowe J’s judgment that, where there is a right of appeal to a court from an administrative decision, the scope of that appeal provision includes procedural unfairness challenges, at least where it is open-ended, (and presumably also when it is restricted to questions of law and jurisdiction though there may be a question about fact-based procedural determinations). However, why the majority was of the view that Vavilov was “categorical” as to the applicability of appellate standards is not at all clear. What makes the situation with respect to the standard of review “categorical” in the case of statutory appeals based on procedural unfairness but seemingly uncertain in the case of the application of the Vavilov standards of review in the context of judicial review on procedural grounds? More generally, how can it be said that the Vavilov majority was categorical as to the application of the standards of review to procedural unfairness in an appellate setting when the majority stated specifically that its realignment of standard of review principles related to substantive review and did not include procedural unfairness challenges? In short, it would appear to be more accurate to characterize the application of statutory appeal standards to procedural unfairness challenges as an addition or extension to, and not an application of Vavilov. It answered partially a question left open by Vavilov.[42]

The disclaimer that the Court was not “depart”ing from Khosa[43] and Khela[44] because they were procedurally instances of judicial review and not a statutory appeal is not useful especially given the level of controversy over the standard of review for procedural unfairness challenges commenced by way of applications for judicial review and the very meaning of Khela.[45] Given that state of affairs, it was scarcely appropriate for the Supreme Court to so confine its judgment on the issue of standard of review. A justification based on a principle that appellate courts should not expand unduly the reach of their rulings when not required to resolve the dispute would have sounded somewhat hollow here.

It is even more surprising that the majority chose not to respond explicitly to the detailed challenge issued by Côté J in her dissenting judgment.[46] She did not accept as “categorical” the application of Vavilov standards to questions of procedural fairness in any context be it a statutory appeal or an application for judicial review. She also called into question the somewhat glib assertion by Rowe J that the majority was not calling into question Khela[47] and Khosa.[48] As for the application of the Vavilov standards, there is also a disconnect that arises out of the following statement by the majority:

30. Whether there has been an abuse of process is a question of law. Thus, the applicable standard of review is that of correctness.[49]

When, however, the majority judgment comes to the merits of the abuse of process challenge, the primary focus is not so much on the guiding legal principles on abuse of process but, in a fact-suffused setting, the evaluation of the relevant facts and the application of the law to those facts. This is the domain of “palpable and overriding error,” not correctness, and Rowe J acknowledges as much.[50]

In contrast to the majority’s folding in of questions of procedural fairness into the Vavilov review formula generally applicable to appellate scrutiny of administrative action, Côté J took the position that the law governing procedural fairness was largely a common law construct existing apart from but foundational to the merits of administrative decision-making and substantive review of such decision-making on the now prevalent standard of reasonableness. Moreover, she claimed that

…the application of common law principles falls squarely within the expertise of the judiciary[51]

As such, she held that Vavilov had no direct application to questions of procedural fairness, and it was not appropriate to engraft on to a statutory appeal regime the Housen standards of review for challenges alleging procedural unfairness. Across the entire range of statutory decision making, the standard of review (unless modified statutorily and in compliance with constitutional norms[52] for procedural unfairness review was that of correctness. There was no principled difference between review of decision-making on procedural grounds in a statutory appeal regime and/or by way of an application for judicial review. Khosa[53] and Khela[54] still reigned. Procedural fairness was a legal standard for which the overall standard of review was that of correctness.[55]

However, Côté J did not leave it there. In her introductory analysis, she states:

Admittedly, the majority’s approach usually leads to the same result where the enabling statute establishes an appeal mechanism.[56]

Why she thought that was so is developed along the way in the next two sections of her dissenting judgment and is most directly manifest in her attempt to reconcile the seemingly inconsistent statements by LeBel J in Khela[57] As the dissent progressed, she qualified her adoption of an overall standard of correctness by making a distinction between the identification and application of the relevant legal principles, on the one hand, and the decision-maker’s “underlying findings of fact,”[58] on the other. On the latter, as in Khela[59] and its risk assessment aspect, the decision-maker was entitled to deference.[60] She also instanced procedural rulings in situations where the decision-maker had room for choice. Provided the process adopted came within the “bounds of fairness,” the decision maker was entitled to “considerable deference” in its choice between or among procedures.[61]

In terms of Côté J’s objectives, this part of her judgment does provide a credible, indeed convincing basis for reconciling LeBel J’s seemingly inconsistent statements in Khela[62] As such, it recognizes justifiably that there are elements of procedural fairness review when, despite correctness being the overarching standard of review, there will be room for deference to aspects of the decision-making process that are subject to procedural unfairness challenges. While Côté J does not characterize this sense of deference as the formal equivalent of Vavilov review of the reasonableness of elements of a decision-making process, that may be of little moment. What really matters is that she accepts there is no principled objection to the application of different standards to different parts of a decision-making process that is under review on procedural grounds. Outside of the zones of correctness review, whether the process is described in terms of “reasonableness,” “deference” or “palpable and overriding error” may not really matter. In fact, Côté J herself asserts that, in a practical sense, there may not be that much difference between outcomes based on the majority’s statutory appeal-based test and her minority blend of correctness and deference.[63]

However, there is one aspect of the Côté J approach that might have led to more intrusive review on procedural unfairness grounds than would result from the majority’s application of the Housen[64] formula as adopted in Vavilov. Under Housen, questions of mixed fact and law are reviewed on a palpable and overriding error standard. In contrast, Côté J appears to see no room for deference beyond the review of “underlying findings of fact.” This seems confirmed by her statement:

I reiterate that the application of a legal standard to the facts is a question of law subject to correctness review.[65]

Unless there is a difference (and I cannot see one) between the process of applying law to the facts as found and the determination of questions of mixed law and fact, on this point, there are significant differences as between the two judgments and their sense of where correctness yields to “palpable and overriding error” or, its apparent equivalent, deference.

Côté J also places store in the notion that in procedural fairness review the role of the Court is not a search for an optimal procedure. A reviewing court is in effect concerned with whether the minimum standard for satisfying the scope of the overall obligation of procedural fairness has been satisfied.[66] I can, however, find nothing in the majority judgment that would suggest that the application of the Vavilov statutory appeal test for review on procedural fairness grounds would lead to anything more than the minimum required by the obligation of procedural fairness. Once the minimum has been achieved, the case is over. There is no precedent for “While I accept that you have met the minimum standards, you surely could have done better than that.”

Where does this leave the state of the law on the standard of review applicable to procedural unfairness claims?

  1. Where the context is a statutory appeal, unless modified statutorily, the proper standard of review for procedural fairness is now extended to that established in Vavilov for review on substantive grounds in an appellate setting — correctness for questions of law, and palpable and overriding error for questions of fact and mixed questions of law and fact.[67]
  2. Where the context is an application for judicial review and perhaps any collateral challenge including an action for damages, Khosa and Khela remain good law with correctness being the overarching standard of review for procedural fairness.
  3. However, Khela and both the majority and the minority in Abrametz accept that there is room for some form of deference to fact-based determinations by decision-makers relevant to any claim of procedural unfairness.
  4. In the preceding context, it is probably the case that there is no significant difference between “deference” as articulated in both Khela and the minority judgment in Abrametz, and the respect that is implicit in the Abrametz majority’s deployment of the “palpable and overriding” error standard for such fact-based determinations.
  5. At least in the context of statutory appeals, the Abrametz majority judgment (as opposed to that of the minority) extends this deferential posture necessarily implicit in the “palpable and overriding error” standard to mixed questions of law and fact.
  6. It is unlikely that, in the context of applications for judicial review or collateral challenges, correctness would be the standard for review of a decision-maker’s application of law to the facts and, its equivalent, the determination of a mixed question of law and fact.
  7. Given the majority’s failure to engage clearly with the earlier Supreme Court judgments in Khosa and Khela, there may nonetheless be lingering doubts as to correctness as the umbrella or general standard or starting point for the conduct of judicial review for procedural unfairness in the context of applications for judicial review and collateral attack.

It is also important to recognize in any analysis of the standard of review for procedural unfairness that, whether by way of appeal, application for judicial review, or collateral attack, there are varying contexts in which such issues will be raised.

While not frequent nowadays, there may be issues as to whether the threshold for a right to procedural fairness has even been crossed.[68] Thereafter, one of the most common scenarios for a procedural unfairness allegation will, as in Khosa, Khela, Blencoe, and Abrametz, arise out of the range of the various historic common law components of the content of procedural fairness such as an absence of bias, access to relevant materials, representation by counsel, and, of course, even though unusually, excessive delay and abuse of process. Generally, on both the threshold and the content, there are established tests that have evolved over time. Identifying successfully the relevant tests is properly seen as a question of law, but whether it is always a question of law on which the courts hold the upper hand is a quite different matter.

Current law including the majority judgment in Abrametz on balance favours the position that such identification exercises should be reviewed, irrespective of context, on a correctness basis. However, once one moves away from common law-established standards to challenges to the deployment of statutory or even internal procedural policies, the situation possibly changes.

To state the issue in its perhaps starkest form: Assume a set of regulatory procedures authorized by statute that has been forged in the cauldron of both internal and stakeholder consultations and finds justification in policy and position papers. Is it appropriate for a reviewing court to scrutinize on a correctness standard the detail of those procedures (whether in the context of a direct challenge or their application to a particular proceeding) in terms of compliance with common law procedural norms and appealing to the pre-eminence of the courts in matters of procedure? Has the case been made for denying to the tribunal or agency the respect to which they are generally entitled in the context of the exercise of their substantive discretionary powers? What makes their judgment on often context-specific procedural questions any more suspect than their exercises of statutorily-conferred substantive discretionary powers?

Provided the tribunal identifies correctly the common law tests or criteria relevant to such requests (as, for example, in the case of a request for representation by counsel), there is a strong argument, whether the setting be a statutory appeal or an application for judicial review, that respect should be accorded to a tribunal’s reasoned application of the correctly identified test to the relevant facts of a contested procedural request.

In conclusion, I would simply suggest that there are more nuanced questions to be addressed by the courts in this whole domain and involving an argument for deferential review of procedural rules and rulings beyond the limited categories identified in Khela and Abrametz. It is also important to keep in mind that, whether it be by way of primary or subordinate legislation or soft law, procedural obligations are by far and away now the product of “legislative” exercises, the outcome of which has involved frequently an integrated assessment of procedural needs in light of a full understanding of the detail and complexities of the substantive objectives of the relevant regulatory regime.

iii. Judicial Review of Subordinate Legislation – and Duelling Courts of Appeal – Herding Katz

In several judgments delivered during 2022, Courts of Appeal took differing positions on the relevance of Vavilov and its standard of review methodology to review engaging subordinate legislation in all of it various manifestations. This disagreement was paralleled in the academic and professional commentary on the case law and the appropriate judicial stance for the conduct of such review exercises.[69]

At the centre of the controversy (judicial, professional, and academic) is the issue whether, in the wake of Vavilov, judicial review of subordinate legislation defined broadly fits within the presumption of reasonableness review endorsed by the majority. Or, do pre-Vavilovian precedents that conducted review by reference to the concept of ultra vires still prevail or, at the very least, have a claim to legitimacy?

For Stratas JA of the Federal Court of Appeal, in two judgments in particular,[70] the answer to this question was seemingly straightforward. Vavilov’s objective was to establish a template for discerning the appropriate standard of review for substantive (but not procedural) challenges across the entire spectrum of administrative decision-making. Unlike the situation with procedural unfairness challenges, there were no express substantive review exclusions from the reach of the Vavilov majority judgment. While the majority did not deal explicitly with this issue, as pointed out by Stratas JA,[71] in Vavilov,[72] the majority, in the context of rejecting the continued existence of true questions of jurisdiction,[73] incorporated references to Supreme Court precedents on the conduct of judicial review of subordinate legislation.[74]

In each of these two precedents, Green v Law Society of Alberta[75] and West Fraser Mills Ltd. v British Columbia (Workers’ Compensation Appeal Tribunal),[76] the Court at least in part engaged in review by reference to standards of reasonableness. Moreover, there was no suggestion in this part of the Vavilov analysis that review of subordinate legislation was beyond the judgment’s reach and ambitions, and the universality of the recalibrated template. Rather, for Stratas JA, the compelling inference was that it too comes within the template and that the traditional modality of review under the rubric of ultra vires and involving in effect correctness review did not survive Vavilov. More specifically, Vavilov represented an implicit overruling of Katz Group Canada Inc. v Ontario (Health and Long-Term Care),[77] an earlier 2013 judgment of the Court, in which Abella J reviewed subordinate legislation by reference to the ultra vires principle, and, in effect, conducted correctness review, a form of analysis now seemingly rejected by Vavilov. Put simply, for Stratas JA, Katz was no longer good law and the principles of precedent dictated that he apply Vavilov[78] and subject the subordinate legislation in each of the two cases to reasonableness review.

There are, however, complications. In Innovative Medicines, on December 5, 2022, Stratas JA delivered the judgment of a panel of the Federal Court of Appeal otherwise consisting of Locke JA and Woods JA. While Woods JA concurred with the holding that the challenged regulation survived challenge, she dissociated herself[79] from those parts[80] of Stratas JA’s judgment in which he justified his application of Vavilov on the merits as well as on the basis of binding precedent.

The waters were muddied further when the very next day de Montigny JA delivered the judgment of the Federal Court of Appeal in International Air Transport Association v Canadian Transportation Agency.[81] In this judgment, with which Pelletier and Locke JJA concurred, de Montigny JA worried about the assertion that Katz was no longer good law.[82] In particular, he referenced[83] the 2021 energy regulation judgment of the Supreme Court of Canada in Reference re: Greenhouse Pollution Pricing Act.[84] There, the majority considered whether the extensive discretionary powers conferred on the Governor in Council to, among other things, make regulations in effect permitted unconstitutional impingement on the jurisdiction of the provinces. In rejecting that argument, the majority of the Court relied on both Katz (and Vavilov), in support of the conclusion that any such exercise of executive power had to be consistent with the otherwise constitutional objectives of and other specific provisions in the Act. Failure in that regard would expose the exercise of authority to judicial review. There was nary a mention of reasonableness or deference. At least in that context and for those purposes, Katz survived.[85]

De Montigny JA also asserted that unreasonableness review in the model of Vavilov was a difficult fit for the review of subordinate legislation[86]. In this context, he referenced favourably[87] the extra-judicial position taken by his former colleague, Evans JA. Evans is of the view that, as the promulgators of subordinate legislation are not explicitly or even implicitly bestowed with the capacity to decide questions of law, the Vavilov template for judicial review should not apply. Ultra vires review should persist in the domain of attacks on delegated legislation; it is not the same as the now repudiated review for jurisdictional error applicable to other forms of administrative decision-making.[88]

It was also in another Energy Regulatory context that the Alberta Court of Appeal in TransAlta Generation Partnership v Alberta (Minister of Municipal Affairs),[89] applied the Katz ultra vires standards to the review of a statutorily based Ministerial Guideline on the basis that Katz had not been overtaken or modified. In so doing,[90] the Court drew upon both Vavilov and Reference re: Greenhouse Gas Pollution Pricing Act in support of the holding that Katz had not been overruled and that the traditional modalities of ultra vires review had survived Vavilov.

With respect to the continuing authority of Katz, the Court of Appeal[91] referred to two paragraphs in the majority judgment in Greenhouse Gas Pollution Pricing.[92] In both, the majority cited Katz approvingly and with particular reference to the paragraph in Katz containing the following statement:

A successful challenge to the vires of regulations requires that they be shown to be inconsistent with the objective of the enabling statute or the scope of the statutory mandate.[93]

What is, however, confusing is that the majority in Greenhouse Gas Pollution Pricing cites Vavilov along with Katz for the proposition that

…the Governor in Council’s discretion is limited both by the statutory purpose of the [Act] and by specific guidelines set out in the statute for listing decisions[94].

While, on its face, this might be interpreted as speaking to ultra vires review, the paragraph cited from Vavilov appears in that portion of the majority judgment identifying the contextual considerations that form the Vavilovian reasonableness criteria.[95] It also raises the question whether the Supreme Court has folded a version of traditional ultra vires review into the Vavilov template for assessing the reasonableness of decisions (including the promulgation of subordinate legislation). If that is so, the reality may be that all the controversy is much ado about nothing. That may be too cynical. However, if this analysis is correct, in domains when the reach of the governing statutory scheme is in issue as expressed in terms of “the rationale and purview of the statutory scheme under which it is adopted,”[96] there may be little, if any difference between correctness review in the name of Katz and reasonableness review of subordinate legislation in the name of Vavilov. Nonetheless, the time for putting an end to this kind of speculation has surely arrived. It is therefore to be hoped that, in the near future, the Supreme Court has the opportunity to put all of this to rest.

iv. What Gives – No Standard of Review for Regulatory Takings?

In Annapolis Group Inc. v Halifax Regional Municipality,[97] by a five to four majority, the Supreme Court of Canada widened the scope of the principles governing the right to compensation for the constructive taking of private property, a matter of interest in the realm of energy regulation.[98] The allegation of constructive taking arose out of the Halifax Regional Municipality (“HRM”) rezoning the property in question and, thereafter, refusing applications by the owner for various forms of development, actions for which the HRM refused the Annapolis Group compensation. Eventually, this led to Annapolis commencing an action against HRM pleading unjust enrichment, misfeasance in public office, and improper use of regulatory powers for the purposes of constructively seizing Annapolis Group’s land for use as a public park without compensation. The matter reached the Supreme Court of Canada in the context of a motion by HRM for a striking out of the third of those grounds, the improper use of regulatory powers, and the ultimate disposition was that, in the light of the majority’s expansion of the scope of what counted as constructive taking, the matter should proceed to trial on this as well as the other two grounds on which HRM had conceded.

From one perspective, this was Roncarelli v Duplessis[99] and Canada (Attorney General) v TeleZone Inc.[100] territory — civil claims for compensation for the alleged use of statutory powers for an improper purpose — but they were not cited by either the majority or the minority. Similarly, in neither judgment was there any attention paid to the fact that what was at stake here was the review, albeit in a civil liability context, of a range of decisions taken under statutory powers. Access to judicial review is not raised as a possibility nor as required[101] before the adjudication of any civil action for the improper use of statutory power. Rather, the matter proceeded in the manner of a regular civil action in which a question of law was critical to Annapolis Group’s prospects of success on the facts. In short, what were the relevant law and tests respecting constructive or regulatory takings, and, in view of that law, did Annapolis Group have any reasonable prospect of success on the claim for compensation or damages?

Here too, questions arise as to the universality of the substantive review principles set out in Vavilov. Moreover, in this instance, there appears to be no recognition that Vavilov might have relevance and that the HRM in its assessment of the scope and application of the rules governing constructive or regulatory takings might be entitled to a measure of deference or reasonableness review.

Why that is so must of necessity be a matter of conjecture. One possibility is that the law respecting expropriation is sui generis, and, especially in the context of constructive or regulatory takings, the product of a historically distinctive body of common law principles that are engrafted on to the relevant exercises of statutory power. In this respect, there may be an implicit link with Vavilov especially to the extent that the majority in Vavilov[102] brings within the categories of decision-making subject to review for unreasonableness interpretations of statutory power that are “inconsistent with applicable common law principles.”


i. Procedural Fairness, Legitimate Expectation, and Ministerial Guidelines

In TransAlta General Partnership,[103] the Alberta Court of Appeal dealt with a challenge to the validity of subordinate legislation (in the form of ministerial guidelines authorized by statute) and an allegation of procedural unfairness arising out of the issuance of those guidelines. The guidelines set standards for the charging of depreciation in establishing the value of regulated industrial properties for municipal taxation purposes. The four applicants operated coal-fired electricity generation plants. Though the evidence before the Court was not definitive, there were probably at least two other such operations in the province. All four applicants had entered into “off-coal” agreements with the provincial government under which they received substantial annual sums. Under the ministerial guidelines, it was provided that there would be no depreciation adjustments arising out of the cessation or reduction of coal-fired emissions as part of an off-coal agreement, or provincial or federal legislation.

The four companies challenged this aspect of the guidelines on various substantive grounds but also on the basis that they had been denied procedural fairness prior to the issuance of the guidelines. They further alleged that they had had a legitimate expectation of consultation, and that that expectation had not been met. Both at first instance[104] and in the Alberta Court of Appeal, it was accepted that the standard of review for determination of the procedural questions was that of correctness.[105]

The allegation of procedural unfairness raised the threshold question of whether the four applicants were entitled to any level of procedural fairness or participatory rights prior to the promulgation of the impugned guideline. Was this an excluded “legislative” function according to the relevant case law?[106] Or, was it “administrative” in nature thereby triggering an entitlement to at least some level of procedural fairness?

In further elaboration, the Court quoted from Brown and Evans, Judicial Review of Administrative Action in Canada.[107] The relevant characteristics of a “legislative” function were that it be

…of general application and when exercised will not be directed at a particular person [and] that its exercise is based essentially on broad considerations of public policy, rather than on facts pertaining to individuals or their conduct.[108]

In the current context, the Court of Appeal was seemingly not impressed by the argument that the applicants were only four in number and the whole specific group at present no more than two more. They would apply to all other property owners subject to an “off-coal” agreement. This meant the guidelines were “rules of general application and not directed at an individual entity.”[109] It mattered not that the guidelines might affect them differently from other property owners.[110]

For these purposes, the Court of Appeal advanced as a counterpoint Tesla Motors Canada ULC v Ontario (Ministry of Transportation).[111] There, the Ontario Government had cancelled a subsidy programme for those purchasing electric cars but established a two-month transition period. However, without holding any kind of hearing, the Minister sent a letter to Tesla to the effect that its customers could not take advantage of the grace period. There, the effect on Tesla was “distinct and unique”[112] and was the result of “intentional…targeting…for irrelevant purposes.”[113] In contrast, no such argument existed in TransAlta for transforming the Minister’s legislative act into an “administrative decision” subject to the principles of procedural fairness.

As for the argument based on legitimate expectation, the Court of Appeal noted the uncertainty as to whether the doctrine of legitimate expectation could generate a right to a hearing in the case of legislative functions to which no such obligation would otherwise attach.[114] However, given that, in any event, the evidence before the Court did not “establish a clear, unambiguous, and unqualified representation,”[115] the claim was doomed. While the Court does not dwell on the evidence on which the applicants relied, as stated in the allegations, the best that could be said is that there had been discussions of various kinds with a range of government officials on the part of some of the four applicants but nothing that could qualify as a sufficiently explicit representation as to further engagement.[116]

While this case represents a conventional analysis and application of the procedural fairness threshold test and the principles of legitimate expectation, it is nonetheless, given binding precedents, restrained in responding to the applicants’ arguments and any wider conceptions of the law respecting the triggering of both procedural fairness and legitimate expectation.

Where the border lies between general and specific for the purposes of triggering an obligation of procedural fairness could have been teased out more fully. Moreover, the deployment of Tesla is problematic. The fact that Tesla was “intentionally targeted by a minister for irrelevant purposes”[117] may certainly strengthen the applicant’s case but more so in the direction of a free-standing ground of review. Whether decision- making calls for procedural fairness is not necessarily or even relevantly linked in any way to considerations of misconduct on the part of a government official. Even more importantly, the judgment illustrates that, without legislative endorsement or voluntary acceptance, notice and comment processes have little or no role to play in crossing the threshold for procedural fairness entitlements. The common law continues to be unresponsive to that challenge.

In focussing on whether there had been “a clear, unambiguous, and unqualified representation”[118] that there would be consultation, the Court of Appeal (and perhaps this was the fault of counsel) never considers explicitly whether this is a situation where the conduct (as opposed to the words) of government officials might have generated a legitimate expectation claim. Here too, of course, facts are crucial, and it may be that they did not provide any realistic bases for such an argument. More generally, the case perpetuates the conservative position that the Canadian courts have taken to the reach of the principles of legitimate expectation. It also makes clear that Canadian law is still far from recognizing legitimate expectation as a basis for a substantive claim at least in exceptional cases.[119]

ii. The Duty of Candour

In last year’s survey,[120] I discussed the application by the Alberta Utilities Commission’s (AUC) Enforcement Staff to the Commission itself under sections 8 and 63 of the Alberta Utilities Commission Act[121] for the commencement of regulatory enforcement proceedings against ATCO under various corporate entities and specifically ATCO Electric Ltd. for violations of the Alberta Electric Utilities Act[122] in the context of a rate deferral application that it had made to the Commission.[123] Among the allegations asserted by AUC Enforcement Staff in its application for permission to commence enforcement proceedings was that ATCO had acted in such a way as to conceal relevant information in order to minimize the possibility of regulatory disallowance. In support of its allegations, AUC Enforcement Staff, in addition to specific allegations, asserted that ATCO had, more generally, breached its “fundamental duty of honesty and candour to its regulator,”[124] a duty that required that the information it provided to the Commission be “full, fair and accurate,”[125]

The culmination of this matter in 2022 was Commission approval of a settlement agreement entered into between AUC Enforcement Staff and ATCO Electric.[126] This agreement required ATCO, among other sanctions, to pay an administrative penalty of $31 million. In the reasons provided by Vice-Chair Doug Larder for approving the settlement agreement, he endorsed Enforcement Staff’s acceptance and description of the duty of honesty and candour resting upon those participating in regulatory proceedings conducted by the Commission.[127] He also located the existence of such a duty within the ISO Rules, the Inter-affiliate Code of Conduct, and the Electric Utilities Act, violation of all of which had been admitted by ATCO.[128]

Vice-Chair Larder also elucidates powerfully the extent to which this failure to act with candour and transparency generated, in addition to financial costs, its own separate form of harm to ratepayers:

The second aspect of the harm to ratepayers is difficult to quantify, but very serious. There is a broader harm to ratepayers and all other participants in the regulatory system resulting from ATCO Electric’s actions. In making its decisions, the Commission must be able to rely on the information presented by the utility as full, fair and accurate. This is a fundamental premise of the Electric Utilities Act and our regulatory system more generally, as set out above. ATCO Electric’s contraventions represent an egregious breach of trust, which has eroded the public’s trust and confidence in the Commission’s regulatory process, and the Commission’s trust of ATCO Electric. Regardless of the financial harm suffered, this harm is in and of itself material and significant.[129]

Vice-Chair Larder’s statement speaks for itself and represents an important accretion to and justification for the underlying good faith obligations of regulated entities in the context of regulatory hearings, and perhaps, more generally, within the regulatory process.[130]

The duty of candour is also one that could cut both ways as argued by Paul Daly in a recent blog[131] describing the extent to which, in jurisdictions other than Canada, government (conceived broadly) respondents have a duty of candour in the sense of “full and fair disclosure” for the benefit of both the reviewing court and applicants for judicial review.[132] This is, of course, an obligation elements of which lawyers already owe in the context of civil, criminal, and administrative proceedings. However, it is also useful to locate it as an obligation of the respondent entity itself in the context of all forms of judicial review proceedings and not just in the prosecution of criminal charges. Daly obviously hopes for Canadian precedents to add to the list of English, Irish, Northern Irish, and Australian courts that have recognized and expanded upon such a duty. It will therefore be interesting to see whether this has any resonance in the conduct of judicial review in Canada.

iii. Remedies for Delay in the Exercise of Administrative Duties and Powers

In each of the two leading cases, Blencoe[133] and Abrametz,[134] on delay in the exercise of administrative powers, the factual context was one in which the applicant or appellant was facing allegations of misconduct. Blencoe arose out of a complaint of violation of a human rights code and Abrametz a failure to meet professional conduct standards. Exposure to such processes, which, in Abrametz, the majority described as “sui generis” at least in the case of professional disciplinary proceedings and certainly not criminal,[135] nonetheless implicated reputational and other career affecting considerations for those seeking judicial review. They also are proceedings where the most significant remedial response hoped for by the applicant or appellant is a permanent stay.

In contrast, where the applicant or appellant alleging delay is the “victim” of the alleged misconduct, the relevant perspectives will often be somewhat different. In those contexts, their concerns about delay will be based among other considerations on the threat delay poses to the integrity and ultimate viability of the proceedings and their desire for vindication and recompense. They will want the complete opposite of a permanent stay of proceedings. For them, relief in the form of a mandatory injunction or an order in the nature of mandamus directing an expedited hearing will be the most effective form of relief.

The same remedial response will also predominate in cases where an applicant or appellant is seeking a benefit or licence from the state. Their interest is in obtaining that benefit or licence as soon as possible or, at the very least, an order that there be no further delay in the actual taking of a decision as opposed to the actual awarding of the licence or benefit.

Surprisingly, however, especially given the glacial speed with which the wheels of state often turn, there are few precedents involving benefit or licence seekers applying for such forms of mandatory relief. However, in an energy regulatory context, the 2020 judgment of Romaine J in Prosper Petroleum Ltd. v Her Majesty the Queen in Right of Alberta,[136] involving an application for approval of an oil sands project, provides an example. In June 2018, the Alberta Energy Regulator had found the project to be in the public interest and the matter then proceeded for approval to Cabinet as required by the relevant statute. More than nineteen months later, Cabinet had still not issued a decision despite demands by the proponent.

Romaine J, applying the standard tests for a mandatory interlocutory injunction and relief in the nature of mandamus, and rejecting the argument that, at least in this context, these amounted to impermissible remedies against the Crown,[137] held, that on a balance of convenience, Prosper Petroleum had established its case that there had been reviewable abusive delay. In this context, Romaine J noted that the applicant was not seeking an order that there be a decision in its favour but that the Cabinet actually make a decision.[138] The Court therefore granted a mandatory interim injunction and an order of mandamus directing that the Cabinet take that decision within ten days.

While this proved to be a somewhat Pyrrhic victory in that Strekaf JA[139] then granted the Crown’s application for a stay of proceedings pending the disposition of an appeal to the Court of Appeal from Romaine J’s decision.[140] Nonetheless, that did not call into question the principles on which Romaine J based the award of relief. Strekaf JA made it clear that she was not opining on the merits of the appeal beyond holding that, in terms of the test for the grant of a stay pending appeal, Alberta had crossed the threshold of a “serious” question to be tried.[141] In what may have partially assuaged Prosper Petroleum’s disappointment, Strekaf JA also took into account that Alberta committed to proceed with the appeal on an expedited basis should it obtain the stay.[142]

What is now significant as a result of Abrametz is that, without any qualifications or confining to the context of professional discipline or other forms of complaint processes, Rowe J in Abrametz endorsed the use of mandamus and an order for an expedited hearing as remedies for abusive or procedurally unfair delay. He also accepted that, provided internal avenues of recourse had been exhausted, such orders could be available “even before an abuse of process exists,” something that could avoid worries as to whether the applicant might fail because of undue delay in seeking relief.[143]

The question left dangling is the extent to which benefit or licence seekers have access to such relief when there is systemic delay at a high volume tribunal. When might it be appropriate for a reviewing court to order a clearance of the backlog or, alternatively, the granting of the benefit or licence being sought? Is it ever appropriate except where constitutional rights are in play for a court to order directly the expenditure of resources to rectify a systemic delay? That however is an issue that is unlikely to occur in an energy regulatory setting.[144]

iv. I’m Still Standing

In British Columbia (Attorney General) v Council for Canadians with Disabilities,[145] in the context of a Charter challenge to the constitutionality of legislation affecting involuntarily detained mental health patients, the Supreme Court of Canada revisited its decade earlier judgment on public interest standing in constitutional litigation: Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society).[146] In upholding the Council’s standing to continue to trial on its constitutional challenge, the Supreme Court refined and expanded upon its elaboration of the relevant principles in Downtown Eastside Sex Workers.

In his “View from the Top: Administrative Law in the Supreme Court of Canada, 2022,”[147] John Evans provides a comprehensive analysis of the judgment. Rather than repeat let alone summarize that analysis, I will confine myself to highlighting four points.

  1. While the judgment does not deal with the matter specifically, Evans JA argues that it can be inferred that the Supreme Court’s judgment also speaks to public interest standing in administrative law challenges.
  2. As exemplified by Downtown Eastside Sex Workers,[148] those bringing challenges in the name of the public interest in order to enhance their claim to standing will add as a party someone who is directly affected. In the present case, the two such litigants had dropped out. However, the Supreme Court stated that it was not necessary that there also be before the court an applicant or plaintiff who meets normal standing requirements.[149] As a general matter, such a party was not required, and, even where the grant of public interest standing turned on the existence of a “concrete and well-developed factual setting,”[150] there were clearly surrogates for a directly affected co-applicant or plaintiff. Nonetheless, the presence of such an applicant or plaintiff could be relevant and helpful in the providing of a sufficient factual context to meet the standards required by the Court on that score.
  3. As opposed to the British Columbia Court of Appeal,[151] the Supreme Court, after a lengthy analysis,[152] concluded that considerations of legality and access to justice did not attract “particular weight”[153] among the factors bearing upon the Downtown Eastside Sex Workers template for evaluating public interest standing claims. “[N]o one purpose, principle or factor takes precedence in the analysis.”[154]
  4. Especially in situations where a public interest standing issue is dealt with in the setting of a motion to strike out, favourable determinations may still be subject to re-evaluation at later stages in the litigation.[155]

All these aspects of the judgment contribute to a valuable elaboration of the principles and practical imperatives for evaluating a public interest standing claim whether in the context of either a constitutional or administrative law proceeding.


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

  1. 2019 SCC 65, [2019] 4 SCR 653 [Vavilov].
  2. Ibid.
  3. Ibid.
  4. In describing its mission, the majority judgment in Vavilov, ibid at paras 2,10–11, 16, 23, speaks of reforming and clarifying the law respecting judicial review of administrative action on substantive grounds in the most general of terms. The only apparent qualification is that review on natural justice and/or procedural fairness grounds is not included: see para 23 (though see my fuller discussion in David J. Mullan, “2020 Developments in Administrative Law Relevant to Energy Law” (2021) 9:1 Energy Regulation Q 21, online: ERQ <energyregulationquarterly.ca/regular-features/2020 developments-in-administrative-law-relevant-to-energy-law1#sthash.GE4Qu5Ra.dpbs>). That qualification aside, however, the majority, at para 11, stated its objective as “ensur[ing] that the framework it adopts accommodates all types of administrative decision-making.”
  5. Though, on this issue, see the later discussion in II (iv), “What Gives?”, below.
  6. Supra note 1.
  7. Ibid.
  8. Ibid.
  9. SOCAN v Entertainment Software Association, 2022 SCC 30 In dissent on this issue, Karakatsanis and Martin JJ (at paras 115–19) rejected the creation of a further category under which the presumption of reasonableness review is rebutted. The three existing categories recognized in Vavilov were exhaustive).
  10. See Vavilov, supra note 1 at para 138. In such cases, attention inevitably turns to the outcome.
  11. Or, stating it another way, are courts to deal with issues of procedural fairness on a non-deferential correctness basis? However, for an earlier judgment to the effect that standard of review has no role to play in procedural unfairness challenges, see Moreau-Bérubé v Nouveau-Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 SCR 249 at para 74 (per Arbour J delivering the judgment of the Court).
  12. I use “legislated” here to cover the entire range of statutorily authorized instruments: e.g., Governor or Lieutenant Governor in Council regulations, procedural rulemaking by administrative agencies and tribunals, municipal by-laws. However, as will be seen, the approach to judicial review of such instruments may not be universal. There may also be an issue with respect to the review of various soft or internal procedural instruments not specifically authorized by statute.
  13. 2022 SCC 29 [Abrametz].
  14. 2000 SCC 44, [2000] 2 SCR 307 [Blencoe].
  15. Abrametz did not argue that the delay had given rise to hearing unfairness but confined his challenge to abuse of process: supra note 13 at paras 41–42.
  16. SS 1990-91, c L-10.1.
  17. 2020 SKCA 81.
  18. Supra note 14.
  19. Ibid.
  20. RSBC 1996, c. 241.
  21. Ibid.
  22. Supra note 13.
  23. 49 B.C.L.R. (3d) 216.
  24. 2008 SCC 9, [2008] 1 SCR 190.
  25. Supra note 13.
  26. See the judgment of Rowe J for the majority in Abrametz, supra note 13 at para 79.
  27. 2014 SCC 24, [2014] 1 SCR 502 [Khela].
  28. Ibid at para 79.
  29. Ibid at para 89.
  30. 2015 FCA 160 at paras 67–71.
  31. David Stratas, “The Canadian Law of Judicial Review : Some Doctrine and Cases” (2022) at 88–95, online (pdf) : SSRN <papers.ssrn.com/sol3/papers.cfm?abstract_id=2924049>. More explicitly judgmental was a former justice of the Federal Court of Appeal in John M. Evans, “Fair’s Fair: Judging Administrative Procedures” (2018) 28 CJAL&P 112, and now, with reference to Abrametz, see his “View from the Top: Administrative Law in the Supreme Court of Canada, 2022”, a supplement to Brown and Evans, Judicial Review of Administrative Action in Canada, (Toronto: Thomson Reuters, 1998) (loose-leaf updated 2022).
  32. Supra note 13 at 4.
  33. 2009 SCC 12, [2009] 1 SCR 339 [Khosa]. At para 43, purportedly relying upon Dunsmuir, Binnie J, delivering the judgment of the majority, asserted that procedural fairness review is conducted on a correctness basis.
  34. Supra note 27.
  35. Supra note 13 at paras 26, 28.
  36. Alberta Utilities Commission Act, SA, c A-37.2, ss 29(1) and (2).
  37. See e.g. Energy and Utilities Board Act, SNB, c E-9.18, s 52(1).
  38. Supra note 1.
  39. Abrametz, supra note 13 at para 27.
  40. Ibid.
  41. Ibid at para 29. As established in the context of civil litigation by Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235.
  42. Supra note 1.
  43. Supra note 33 at 8.
  44. Supra note 27.
  45. Ibid.
  46. Abrametz, supra note 13 at 160–85, Part A of which is headed “Inconsistency with Khela.”
  47. Supra note 27 at 6.
  48. Supra note 33.
  49. Abrametz, supra note 13 at para 30.
  50. Ibid at paras 103–24, and especially para 124.
  51. Ibid at para 168.
  52. Ibid at para 172.
  53. Supra note 33.
  54. Supra note 27.
  55. Abrametz, supra note 13 at paras 165–69.
  56. Ibid at para 169.
  57. Supra note 27.
  58. Abrametz, supra note 13 at para 174.
  59. Supra note 28 at para 6.
  60. Abrametz, supra note 13 at para 174.
  61. Ibid at paras 176–77 (citing once again Khela, and, inter alia, Council of Canadians with Disabilities v VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 SCR 650 at para 231, and Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 at para 27).
  62. Supra note 27.
  63. Abrametz, supra note 13 at para 164.
  64. Supra note 41.
  65. Abrametz, supra note 13 at para 182.
  66. Ibid at paras 178–79.
  67. Including presumably procedural challenges on Charter violation grounds.
  68. See, however, in an energy regulatory context, TransAlta Generation Partnership v Alberta (Minister of Municipal Affairs), 2022 ABCA 381 at paras 88–102, and rejecting the application of the principles of procedural fairness to the issuance of statutorily authorized Guidelines. I will discuss this aspect of TransAlta Generation later in this survey.
  69. References to much of the relevant professional and academic analysis as well as case law are to be found in the judgment of the Alberta Court of Appeal in TransAlta Generation Partnership v Alberta (Minister of Municipal Affairs), ibid at paras 45–49, and the judgment of Stratas JA in Innovative Medicines Canada v Canada (Attorney General), 2022 FCA 210 at paras 26–29, 43.
  70. Portnov v Canada (Attorney General), 2021 FCA 171, and Innovative Medicines Canada v Canada (Attorney General), ibid, responding to a contrary position taken by the Alberta Court of Appeal in Auer v Auer, 2022 ABCA 375 and TransAlta Generation Partnership, supra note 68.
  71. See Innovative Medicines Canada, ibid at para 34.
  72. Supra note 1 at paras 65–67.
  73. In Dunsmuir, the majority, supra note 24 at para 59, had cited United Taxi Drivers’ Fellowship of Southern Alberta v Calgary (City), 2004 SCC 19, [2004] 1 SCR 485, a case involving a challenge to the validity of a municipal by-law, as an example of a true question of jurisdiction subject to correctness review.
  74. Vavilov, supra note 1 at para 66, in which the majority appears to use the difficulty of distinguishing between correctness vires or jurisdictional review of subordinate legislation and its exercise, and the “unremarkable application of an enabling statute”, the best example being the case of a broad grant of authority to promulgate subordinate legislation in accordance with the objectives of the empowering act. All this was in support of the excision of the concepts of jurisdiction and vires from the rubric of Canadian judicial review law.
  75. 2017 SCC 20, [2017] 1 SCR 360.
  76. 2018 SCC 22, [2018] 1 SCR 635.
  77. 2013 SCC 64, [2013] 3 SCR 810.
  78. And, in the second of the cases, Innovative Medicines Canada, supra note 69 at para 27, that, as required by the Federal Court of Appeal precedential rules, he apply his own previous judgment for the Court of Appeal in Portnov, supra note 70 at paras 26–27.
  79. Ibid at para 67.
  80. Ibid at paras 28–43.
  81. 2022 FCA 211.
  82. Ibid at paras 186–90.
  83. Ibid at para 190.
  84. 2021 SCC 11. In dissent, at paras 600–07, Rowe J located the review of regulations on division of powers grounds as a matter of ultra vires. However, more generally, Rowe J would apply the Vavilov reasonableness methodology to the review of subordinate legislation.
  85. Ibid at para 73 and 87 particularly. It is however worth noting that both Stratas JA in Innovative Medicines, supra note 45 at para 69, and de Montigny, supra note 81 at para 191, made a point of stating that the outcome would have been the same irrespective of the methodology adopted.
  86. Ibid at para 189.
  87. Ibid.
  88. John M Evans, “Reviewing Delegated Legislation After Vavilov: Vires or Reasonableness?” (2021) 34 CJAL&P 1. It is unclear whether Evans would also exclude from Vavilov’s reach all decision makers that lack the capacity to deal with questions of law or whether it is simply an add on to the legislative character of the decision-making as a reason for characterizing the review of subordinate legislation as appropriately classified as an example of ultra vires review. See also Auer v Auer, supra note 70, where Pentelechuk JA (Crighton JA concurring), expresses many of the same arguments and concerns in rejecting the argument that Vavilov has inferentially overruled Katz. While agreeing with the majority that the relevant statutory guidelines were valid, Feehan JA reached that conclusion on the basis of a blend of Vavilov’s criteria for reasonableness review and criteria derived from Katz.
  89. Supra note 69 at paras 40–53, following Auer v Auer.
  90. Ibid at para 48. The Court, at para 45, also cited the Evans JA article as had Pentelechuk JA in Auer, ibid at para 39.
  91. Ibid.
  92. Supra note 84 at paras 73, 87.
  93. Katz, supra note 77.
  94. Reference re: Greenhouse Pollution Pricing Act, supra note 84 at para 73.
  95. Vavilov, supra note 1 at para 108.
  96. Ibid, citing Catalyst Paper Corp. v North Cowichan (District), 2012 SCC 2, [2012] 1 SCR 5 at para 15.
  97. 2022 SCC 36.
  98. From the position taken by the Court in 1996 in Canadian Pacific Railway Co. v Vancouver (City), 2006 SCC 5, [2006] 1 SCR 227.
  99. [1959] SCR 121.
  100. 2010 SCC 62, [2010] 3 SCR 585.
  101. In fact, Binnie J, delivering the judgment of the Court in TeleZone, ibid at paras 18–23, would not have classified this as a form of collateral attack or, on the facts of that case, requiring as a prerequisite an application for judicial review.
  102. Supra note 1 at para 111.
  103. Supra note 69.
  104. 2021 ABQB 37.
  105. Supra note 69 at para 8.
  106. The relevant authorities are found, ibid at para 88.
  107. (Toronto: Thomson Reuters, 1998) (loose-leaf updated 2022), ch 7 at p 38.
  108. Supra note 69 at para 90.
  109. Ibid at para 94.
  110. Ibid at para 98.
  111. 2018 ONSC 5062 [Tesla].
  112. Supra note 69 at para 97, citing Tesla, ibid at para 59.
  113. Ibid at para 98.
  114. Ibid at para 102. However, the Court does reference the dissenting judgment of Evans JA in Apotex Inc. v Canada (Attorney General), [2000] 4 FC 264 (CA) at paras 99–127, in which he indicated support for the application of the legitimate expectation principle even where the function was legislative and a duty of procedural fairness did not otherwise arise. Subsequently, the Evans position was again rejected in Canadian Union of Public Employees v Canada (Attorney General), 2018 FC 518 at paras 56, 84, 157.
  115. Ibid, taken from Canada (Attorney General) v Mavi, 2011 SCC 30, [2011] 2 SCR 504 at para 68.
  116. Ibid at paras 34–36.
  117. Tesla, supra note 111 at para 98.
  118. At least, the Court of Appeal does cite Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 SCR 559 at para 95; Ibid at para 100, recognizing that a legitimate expectation can arise out of conduct including past practices as well as representations.
  119. As first recognized in England over twenty years ago in R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213. Compare the Canadian position as set out in the judgment, ibid at para 101, rejecting the possibility.
  120. David J. Mullan, “2020 Developments in Administrative Law Relevant to Energy Law” (2021) 9:1 Energy Regulation Q 21, online: ERQ <energyregulationquarterly.ca/regular-features/2020 developments-in-administrative-law-relevant-to-energy-law1#sthash.GE4Qu5Ra.dpbs>.
  121. SA 2007, c A-37.2.
  122. SA 2003, c E-5.1.
  123. Application of AUC Enforcement Staff for the commencement of a proceeding pursuant to sections 8 and 63 of the Alberta Utilities Commission Act, 29 November 2021, online (pdf) : <efiling-webapi.auc.ab.ca/Document/Get/719764>.
  124. Ibid at para 2(d).
  125. Ibid at para 141.
  126. AUC Decision 27013-D01-2022.
  127. Ibid at paras 70–74, 91.
  128. Ibid at para 70.
  129. Ibid at para 91.
  130. The settlement agreement in fact raises other questions with Administrative Law dimensions which could also have formed part of this survey: the extent to which the law respecting the approval of settlement agreements in Criminal Law matters has resonance in the domain of regulatory enforcement proceedings (see paras 64–69 and also AUC Rule 013; Rules on Criteria Relating to the Imposition of Administrative Penalties); the participation of public interest bodies in the settlement process; and the appropriateness of the sanctions imposed.
  131. Paul Daly, “An Introduction to the Duty of Candour” (5 January 2023), online: Administrative Law Matters <www.administrativelawmatters.com/>; See also, Paul Daly, “The Prospects for Candour in Canada: The Importance of the ‘Record’” (23 January 2023), online: <www.administrativelawmatters.com/>.
  132. Citing Donaldson MR in R v Lancashire County Council, ex parte Huddleston [1986] 2 All ER 941 at 945.
  133. Supra note 14.
  134. Supra note 13.
  135. Ibid at para 54.
  136. 2020 ABQB 127.
  137. Ibid at paras 3–31.
  138. Ibid at paras 24, 29.
  139. Prosper Petroleum Ltd. v Her Majesty the Queen in Right of Alberta, 2020 ABCA 85 [Prosper].
  140. For further litigation involving this project, see Fort McKay First Nation v Prosper Petroleum Ltd., 2020 ABCA 163, involving a First Nation challenge to the AER’s approval decision, with the decision of Cabinet still awaited at that point. I discussed this aspect of the proceedings in “2020 Developments in Administrative Law Relevant to Energy Law”, (2021) 9:1 Energy Regulation Q 21, online: ERQ <energyregulationquarterly.ca/regular-features/2020-developments-in-administrative-law-relevant-to-energy-law1#sthash.hKAGIQNa.dpbs>.
  141. Prosper, supra note 139 at para 20.
  142. Ibid at para 29.
  143. Supra note 12 at paras 78–82, and especially para 80.
  144. Outside of the criminal law setting, the question of remedies for systemic delay has found fertile ground in the domain of judicial salary commissions. For a relatively recent judgment, see Newfoundland and Labrador Assn. of Provincial Court Judges v Newfoundland and Labrador, 2018 NLSC 140.
  145. 2022 SCC 27 [Council for Canadians].
  146. 2012 SCC 4, [2012] 2 SCR 524.
  147. Supra note 31.
  148. In addition to the Society, a long-time, former sex trade worker was also a plaintiff.
  149. Council for Canadians, supra note 145 at paras 63–67.
  150. Ibid at para 66.
  151. 2020 BCCA 241, 41 BCLR (6th) 47.
  152. Council for Canadians, supra note 145 at paras 28–59.
  153. Ibid at para 56.
  154. Ibid at para 59.
  155. Ibid at paras 69–70.


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