Tag Archives: Administrative

Pridgen v. University of Calgary, 2012 ABCA 139

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An appeal from a Chambers decision that the University of Calgary’s decision to discipline students was unreasonable when they posted about an instructor and criticized the quality of class instruction on a social networking site. This ground for appeal was dismissed for reasons including:

- the Review Board did not provide reasons of how the conduct of these students met the bar for misconduct, simply drew a conclusion that it did;
- there was no discussion of whether the defence of justification or fair comment could apply to the students’ statements;
- while hearsay evidence is generally admissible at administrative tribunals, that does not eliminate the need to “evaluate the quality of the evidence”, here described as “double or triple hearsay of an extremely vague nature” (paras 59-60).

The other ground for appeal was the Chambers Judge’s decision that the Charter applied. (The Review Board had held, citing McKinney v University of Guelph, [1990] 3 SCR 229 as authority, that the Charter does not apply to universities in any circumstances.) This appeal was also dismissed. The Chambers decision that the provision of post-secondary education is government policy, governed by statute, was upheld. “In exercising its statutory authority to discipline students for non-academic misconduct, it is incumbent on the Review Committee to interpret and apply the Student Misconduct Policy in light of the students’ Charter rights, including their freedom of expression.” (para 112)

Pridgen v. University of Calgary, 2012 ABCA 139

Gateway Charters Ltd. (Sky Shuttle) v Edmonton (City), 2012 ABCA 93

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The City of Edmonton was seeking to have reinstated an order for the Sky Shuttle to cease operations of its airport shuttle service until it obtains the proper license as per the Edmonton Vehicle for Hire Bylaw. The order was overturned when the respondant made an application for judicial review under the Rules of Court. The City challenged the ABQB’s jurisdiction to grant judicial review, claiming that because of a privative clause in the Community Standards and Licence Appeal Committee Bylaw, the only recourse of appeal available to Sky Shuttle was the appeal process set out in the Municipal Government Act.

The Court held that the City does not have the jurisdiction to enact a bylaw limiting the jurisdiction of the Court of Queen’s Bench to grant judicial review:

[12] In Alberta, the substantive right to judicial review is found in Part 3, Div. 2, Subdiv. 2, of the Rules of Court. These Rules are regulations authorized by s. 28.1(1)(b)(ii) and (2) of the Judicature Act, RSA 2000, c. J-2. The City is not able to enact bylaws that conflict with enactments: Municipal Government Act, ss. 1(1)(j), 13. It follows that the City is unable to limit the jurisdiction of the Court of Queen’s Bench to grant judicial review. Exceptionally clear wording in the statute would be required to authorize that.”

Gateway Charters Ltd. (Sky Shuttle) v Edmonton (City), 2012 ABCA 93

McCauley Community League v Edmonton (City), 2012 ABCA 86

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Development permit – Expiry – Apartment Housing – Extended Medical Treatment Services – Edmonton – McCauley Community League – Subdivision and Development Appeal Board – Niginan Housing Ventures

[1] The appellant Community League attempted to appeal a development permit given to the respondent Niginan Housing Ventures. The respondent Subdivision and Development Appeal Board dismissed the appeal on the basis that it had not been filed within 14 days, as required by s. 686(1) of the Municipal Government Act, RSA 2000, c. M-26. The Board also concluded that it did not have jurisdiction to decide if the development permit had expired. The appellant was granted leave to appeal further to this Court: McCauley Community League v Edmonton (City), 2011 ABCA 327.

[46] By way of postscript it is worth noting how unhelpful it was for the development officer not to give notice of this development permit to the appellant and other interested parties, even if it was a Class A permit. It was well known that this was a controversial development that was opposed by some people. The failure to give notice created great uncertainty on this file. It meant, even on the position taken by the respondents, that the appeal period on the development permit issued May 5, 2008 did not begin to run until over 2.5 years later in November 2010. While the Bylaw may not require notice of Class A permits, that does not mean that giving notice is not a good idea. As was pointed out in Coventry Homes at para. 32, one of the reasons for the short appeal period is to provide certainty to the developer. Failing to give notice of development permits that are obviously controversial helps no one.

Held: The appeal is allowed.

McCauley Community League v Edmonton (City), 2012 ABCA 86

Big Loop Cattle Co. Ltd. v. Alberta (Energy Resources Conservation Board), 2012 ABCA 64

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This was an appeal from a decision of the ERCB approving a Suncor project that affected the Stoney Nakoda/Eden Valley Reserve. The issue on appeal was the Board’s failure to characterize the Reserve as an “urban centre”.

An urban centre is defined as: “a city, town, new town, village, summer village, hamlet with not fewer than 50 separate buildings, each of which must be an occupied dwelling, or similar development the [Board] may designate as an urban centre.” (para 4) The Board stated that the Reserve was not an urban centre “because the area of the [Reserve] nearest the trunk line has an estimated average residence density of five residences per quarter section, less than the residence density of eight residences per square section necessary to qualify for an urban centre designation.” (para 5)

“[11] … In our view, the Board did not exercise this discretion in a justifiable, transparent or intelligible way. Its decision not to qualify the Reserve as an urban centre falls outside of the range of acceptable and rational outcomes that are defensible in respect of the facts and law (Dunsmuir at para 47).”

“[12] In choosing not to characterize the Reserve as an urban centre, the Board imported considerations extraneous to the Directive 056 definition. The concern for density appears to be drawn from the “unrestricted country development” designation also set out in Directive 056.”

Held: The appeal is allowed.

Big Loop Cattle Co. Ltd. v. Alberta (Energy Resources Conservation Board), 2012 ABCA 64

Aurora v. Safeguard Real Estate Investment Fund LP, 2012 ABCA 58

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Companies’ Creditors Arrangements Act – Leave to appeal required for decision made after “final order under the Act”? – Test for leave to appeal – Standard of review

“[6] … the Court’s final order in the CCAA proceedings expressly provided that the applicant’s claim was to be resolved in accordance with the procedure set out in the Claims Procedure Order, which was clearly an order made under the CCAA. In other words, the “final” CCAA order in the Concrete Equities’ insolvency was not final in the sense that the applicant’s claim was yet to be resolved.”

“[7] … where the jurisdiction of the chambers judge to hear and decide the application is founded on the applicant’s objection to a CCAA-appointed monitor’s decision and on an order of the Court made pursuant to the CCAA reserving the applicant’s right to make that objection, the decision the chambers judge makes on that objection is made “pursuant to the Act” and leave is required to appeal it.”

“[15] The test for leave to appeal involves a single criterion subsuming four factors. The single criterion is that there must be serious and arguable grounds for the appeal.”

“[17] The standard of review for this highly fact-driven conclusion is overriding and palpable error.”

Held: Leave to appeal denied.

Aurora v. Safeguard Real Estate Investment Fund LP, 2012 ABCA 58