Alberta Law Review (ALR)
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Process, Substance, and Judicial Review\u27s (A)symmetry
No full textThis article addresses an apparent asymmetry in the law of judicial review of administrative action. While procedural review is explicitly concerned with the rights of people who find themselves subject to public administrative power, rights do not figure in the prevailing account of substantive review. Instead, courts have treated substantive review as an opportunity to promote the rule of law and give effect to legislative intent. The author argues that the asymmetry is merely apparent, and that especially following Canada (Minister of Citizenship and Immigration) v Vavilov, substantive review is best understood as a rights-oriented enterprise. More specifically, substantive review vindicates a right to justification according to law held by the legal subject of an administrative decision. This account makes the legal subject visible within the law of substantive review and allows us to see the law of judicial review more generally as an integrated domain concerned with administrative law rights.
Note on expert review: This article went through double-blind expert review, in compliance with the Alberta Law Review\u27s typical peer review process. The other articles in this issue were subject to single-blind expert review
Procedural Fairness and Incentive Programs: Reflections on the Environmental Choice Program
Full text linkThis paper explores the application of concepts of procedural fairness to the federal government\u27s Environmental Choice Program\u27s decision-making processes. While Canadian courts have traditionally required public bureaucrats to act "fairly" when implementing command models of regulation, they have only recently been confronted with demands that regulators implementing economic incentive programs also act in accordance with procedural fairness norms. Procedural fairness has been justified through a number of related arguments, all of which focus on the protection of private interests of individuals adversely affected by the exercise of bureaucratic power. The paper argues that procedural fairness should characterize both decision-making categories within the Environmental Choice Program, and within incentive programs generally. However, the paper argues that the justification for the application of fairness norms in government incentive programs should be the promotion and support of program policies. At best, the protection of private interests is the means through which program benefits can be optimally designed, and effectively delivered to the public. The paper describes the Environmental Choice Program\u27s decision-making processes, and divides the program\u27s operations into two categories. CATEGORY 1 decisions involve the development of environmental standards, and the negotiation of the licensing agreement through which private firms are permitted to use the federal government owned ECOLOGO. CATEGORY 2 decisions involve individual licensing, licence termination and renewal decisions. The paper then discusses the ways in which effective participation of a wide range of interest groups is encouraged in both categories of decisions through access to information, representation on decision-making bodies, and appeal and review processes. Finally, the paper describes the environmental benefits associated with effective participation as an example of the public polic
Recent Judicial Decisions of Interest to Energy Lawyers
Full text linkEnergy lawyers are frequently met with challenging legal issues within a rapidly changing regulatory and legal environment. It is essential to stay up to date on the latest case law from courts across Canada, and this article reviews and summarizes recent judicial decisions across a wide range of subject matter. The authors review cases dealing with arbitration, Indigenous law, environmental law, bankruptcy and insolvency, contracts, corporate law including plans of arrangement, royalties, taxes, employment, and others. Several themes emerge, including the increasing focus on environmental priorities and the expansion of director and corporate responsibility
The Journalistic Sources Protection Act and CSIS Foreign Interference Whistleblowers
Full text linkThis article assesses the effectiveness of Canada’s new Journalistic Sources Protection Act (JSPA) that aims to protect confidential news sources. The authors argue the reforms implemented under the JSPA as interpreted by the Supreme Court of Canada, while an improvement over the common law, do not go far enough. They argue that an interpretation of the JSPA should create a rebuttable presumption of non-disclosure, and that greater deference should be afforded to journalists who adhere to standard journalistic practices. The article finishes with a look at the case of the CSIS foreign electoral interference whistleblowers and how a reinvigorated interpretation of the JSPA as applied to that case would better advance the remedial purpose of the legislation. 
Five Years Later: Did Vavilov Kill Deference? Findings from the Ontario Divisional Court
Full text linkIn the 2019 decision Canada (Minister of Citizenship and Immigration) v. Vavilov, the Supreme Court of Canada attempted to provide greater clarity on the legal foundations and application of administrative law in Canada. This article presents new empirical data on the impact of Vavilov on decisions of the Ontario Divisional Court and considers what the results mean for practices of democracy, accountability, and the rule of law. The findings in this article reveal that Vavilov has had a significant judicial impact on Ontario Courts’ deference toward the decisions of administrative decision-makers, but that the lower standard of review associated with reasonableness creates the potential for arbitrary decisions and the abuse of state power for overtly partisan purposes
The Effect of Tariffs on Local and International Energy Trade
Full text linkThis article discusses the ongoing trade war initiated by the United States and its impacts on Canada’s energy sector. Canada’s retaliatory trade measures have escalated tensions, thus prompting additional tariffs and ultimately jeopardizing cross-border economic efficiency. There have been varying responses across Canadian provinces to the trade war, with energy-producing provinces emphasizing the need for trade diversification. This article argues that if Canada reduced regulatory obstacles provincially, it could increase Canada’s resilience against external trade disruptions. Further, the impact of the current trade war has influenced geopolitical stability, thus industry leaders must enhance energy security in the long-term to mitigate risk to the industry
Comments on: Thumbs, Fingers, and Pushing on String: Legal Accountability in the Use of Financial Incentives - by Kernaghan Webb
Full text linkCanada\u27s Clean Energy Transition Post-Inflation Reduction Act
No full textPolicy-makers in major economies face the dual challenge of reducing emissions for long- term environmental benefits while maintaining economic stability in the short term. The United States’s Inflation Reduction Act marks a pivotal move for the US in that direction, offering both challenges and opportunities for Canada as it strives to meet its own net-zero emissions target by 2050. This article focuses on Canada’s federal policies, the effects of which have been underwhelming thus far. Canada is not on track to meet its emission targets and faces a growing productivity crisis. This article encourages Canadian policy-makers to consider streamlining regulations and clarifying investment tax credits to better stimulate investment in decarbonization and emissions reductions in the energy sector and surrounding industries. Canada should focus on developing a more robust national industrial strategy that directly supports clean energy development and leverages its existing strengths in areas like carbon capture and clean electricity. By aligning with global environmental movements and utilizing its geographical and existing resource strengths, Canada can build a more resilient economy while meeting its environmental targets
Reasonableness Review and the Interdependence of Process and Substance after Vavilov
Full text linkThis article examines the shared conceptual foundations and practical features of the law of substantive judicial review set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, and the law of procedural review established in Baker v. Canada (Minister of Citizenship and Immigration). The article begins by exploring conflicting notions of legality: one based in legislative authority that prioritizes correctness and tends to separate process from substance, and the other based in a culture of justification that recognizes the interdependency between process and substance. It concludes that the latter –– the “reason oriented” approach –– is the theoretical foundation underpinning both the Vavilov and Baker frameworks. Accordingly, it finds that these two frameworks are highly similar in terms of the contextual factors they prescribe, and that they both rely heavily on the relationship between the procedure used to reach a decision and its substantive outcome. The article concludes by suggesting that reasonableness is already the standard of review both applicable and applied to procedural matters
