Alberta Law Review (ALR)
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The Paradox of Canadian Progress: A History of Law in Canada, Volume Two, Law for the New Dominion, 1867–1914, Jim Phillips, Philip Girard & R Blake Brown (Toronto: University of Toronto Press, 2022)
Full text linkRules, Principles, and the Reformation of Judicial Review
Full text linkThis article analyzes two different approaches to judicial review: the model of rules (whereby the legal validity of an administrative decision hinges on its formal attributes) and the practice of principle (whereby the legal legitimacy of an administrative decision hinges on whether it has been rendered fairly and justified reasonably in light of its legal context). The author argues that the shift toward the practice of principle facilitates the type of complex and contextual normative assessments that are required to promote the rule of law across a broad range of administrative decision-making. However, the author finds that the Supreme Court, in recent cases, has favoured developing and clarifying a new model of rules which has inadvertently created “grey holes” of legality, which exacerbate the risk of arbitrary dismissal in the realm of public employment and stultifies the culture of justification where administrative decisions are subject to a statutory right of appeal
Thumbs, Fingers, and Pushing on String: Legal Accountability in the Use of Federal Financial Incentives
Full text linkThe federal government makes extensive use of its spending powers to establish programs intended to influence private behaviour in furtherance of public policy objectives. Incentives are frequently used where more conventional policy instruments would not be appropriate or available. However, in many situations, such programs lack adequate legal structure. The author concludes that the minimal legal structure allows for tremendous administrative flexibility, but detracts from effective accountability, and can negatively affect operational fairness. Taking a functional approach to analysis, the author argues that since incentives are public policy instruments intended to alter behaviour, they are akin (though not identical) to conventional regulatory approaches, and so should be subject to many of the same legal principles and structures as apply to conventional policy instruments. The effect would be more open and accountable frameworks for the creation and operation of incentives, which should result in better designed and more fair and efficiently functioning incentive regimes
Tax Incentives: Problems in Identification and Accountability
Full text linkIn this commentary on Thumbs, Fingers, and Pushing on String: Legal Accountability in the Use of Financial Incentives by Webb, the author tackles the thorny issue of defining tax expenditure incentives. He argues that although tax expenditure incentives are a powerful financial instrument for the federal government, scarce information is available about their effectiveness, and thus there are genuine problems with respect to accountability
The Push for Electrification and a Net-Zero Grid: Developments, Reactions, and Implications
Full text linkCanada’s Draft Clean Electricity Regulations are poised to play a key role in achieving the federal government’s goal of achieving net-zero carbon emissions by 2050. If implemented in their current state, the Draft Clean Electricity Regulations will place significant restrictions on electricity generation that is not low or non-emitting — restrictions which sometimes conflict with the interests and priorities of provincial governments. This article surveys the policy and legislative trends which have arisen across Canada from this federal-provincial dynamic — including concerns over electricity resource adequacy, climate goals, and grid stability. Pursuing aggressive electrification will require major shifts from the status quo, but law and policy should seek to balance the priorities of different jurisdictions rather than imposing a singular one-size-fits-all approach
Unearthing the “Established Citizen”: International Students’ Inaccess to Justice from Housing to Study Permits
Full text linkThis article outlines the liminal status of international students in Canada, which stems from their characterization as perpetual outsiders, or “others.” This othering, caused by the intersection of Canadian law and policies, has led to greater vulnerability of international students. Canadian law serves to protect a specific beneficiary — the “established citizen” class — which results in a lack of access to justice for racialized and vulnerable groups, including international students. Historical examples include housing initiatives displacing Black tenants and the gentrification of Vancouver’s Chinatown, where the interests of residents were overlooked in favour of serving the “established citizenry.” International students, having been villainized as “others” responsible for the housing crisis, are unfairly viewed as a foreign threat to the interests of the “true Canadian.
Selecting Standards of Review on Statutory Appeals: A Major Change from Vavilov Garnering Minimal Attention but Having Significant Theoretical and Practical Implications
Full text linkAlthough the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov has garnered attention for its simplification of standard of review analysis, often overlooked is the impact the decision had regarding statutory appeals: that selection of the standard of review on statutory appeals is now governed by the Housen v. Nikolaisen framework. This article describes the substantial impact this change has had in jurisdictions where statutory appeals are a prominent method of judicial review, using Saskatchewan as an example. The article explores the implications that Vavilov’s treatment of statutory appeals has had on administrative law theory and practice, emphasizing the impact of questions of law on statutory appeals being reviewed on the standard of correctness
The Impact of Private Climate Change Litigation and Recent Competition Act Amendments on the Canadian Energy Sector: Regulatory and Legal Developments Shaping the Path Forward
Full text linkThis article examines the rise of private climate change litigation in Canada, focusing on efforts to hold corporations accountable for their contributions to climate change and their environmental representations. Canadian courts are increasingly engaging with climate claims, despite ongoing challenges such as a reluctance to interfere with corporate discretion. These cases draw on tort, corporate, and competition law, reflecting growing legal and regulatory pressure. As international precedent and domestic reforms converge, climate risk is becoming a material legal issue for Canadian energy companies. This article contends that as Canadian law continues to respond to climate-related issues, energy companies must proactively incorporate climate risk into their governance and operations to mitigate potential liabilities and maintain competitiveness in an increasingly climate-conscious market
Data Centres, AI, and Electrification — Legal and Corporate Approaches to Growing Power Demands in Canada
Full text linkAs the use of generative AI increases, data centres have become increasingly common, with corporations seeking to rapidly expand their infrastructure to sustain their technology and services in response to rising demand. This growth in data centres presents shareholders and governments with new investment opportunities. In this context, this article unpacks the physical, economic, and legal implications of the increased demand for data centres and considers the potential consequences of their accelerated construction, which is currently set to outpace electricity generation and the necessary transmission investments. This article also explores the challenges faced by electricity regulators, as well as corporations, that wish to construct data centres, including legislative constraints, strained electricity grids, and the difficulty of implementing sustainable energy sources