3.15: Originating application for judicial review
3.68: Court options to deal with significant deficiencies

Case Summary

This was a Judicial Review Application brought by the Appellant, pursuant to an Originating Notice filed in respect to a decision (the “Decision”) by the Public Health Appeal Board (the “Board”). The Decision dismissed the Appellant’s Appeal of enforcement measures taken by the Alberta Health Services (the “AHS”) in respect to various orders issued by the Chief Medical Officer (“CMOH”) to address the Covid-19 pandemic.

The AHS filed a Cross-Application to strike the Originating Notice on the grounds that it: (1) constituted an abuse of process and the issues sought to be reviewed were moot; (2) was filed outside the 6-month limitation period; and (3) failed to name the Board as Respondent. The third point had previously been resolved, as the AHS had since been named Respondent.

The AHS argued that as a consequence of the AHS Orders having been rescinded and the re-issuance to the Applicant of a new permit, the Applicant’s Application for Judicial Review was moot on the grounds that a “legal controversy between the parties no longer exist[ed], the substratum of the litigation ha[d] disappeared, or a judicial ruling would have no practical effect on the rights of the parties”. In addition, the AHS argued that the Application constituted an abuse of process, which should be stricken pursuant to Rule 3.68(2).

The Court applied the two-step test established by the Supreme Court of Canada in Borowski v Canada (AG), 1989 CanLII 123 (SCC). The Court found that, although the Orders had been rescinded, there was still a live issue as Inspection Reports were still available on the AHS website, and therefore, there could be a remedy to be had.

The AHS also submitted that the Originating Notice was filed outside of the 6-month limitation period for filing a Judicial Review Application, pursuant to Rule 3.15(2), arguing that the Rules of Court must be strictly construed and could not be varied or extended. The AHS also relied on its own procedural rules, which stipulated that the 6-month period commenced when the Board communicated its Decision, rather then when it provided its written Decision. The Appellant argued that they were unable to file an Application until they were fully informed about the merits of the proceeding, which could only reasonably take place following receipt of the full Decision.

The Court, while acknowledging that administrative decision makers are authorized to craft their own procedural rules, stated that administrative decision makers do not have the force of law and cannot affect a party’s substantive right to bring an Originating Notice for Judicial Review within a certain period.

For the reasons set out above, AHS’ Cross-Appeal was dismissed.

Moving to the Originating Notice, the Applicant sought a declaration that the Decision was unreasonable. As the Applicant’s submissions focused on procedural fairness, the Court reviewed if the Board breached its duty of procedural fairness and if the Decision was reasonable.

The Appellant argued that there was a breach of procedural fairness because the Order received was absent of Appeal information. The Court noted that not every procedural irregularity constitutes a material breach of the Applicant’s procedural fairness rights. The Court did agree that the Applicant’s Order should have included the appropriate Appeal information; however, found that the deficiencies were rectified when the Inspector provided the requisite information to the Appellant upon realizing the Appeal information was missing, so the Applicant could proceed with its Appeal.

In reviewing the reasonableness of the Decision, the Court found the Decision to be justified, intelligible, and transparent. The Court held the Board acted within its jurisdictional limits and identified the issues it was jurisdictionally empowered to answer. The Court accepted that the Inspector was credible and truthful, and considered the evidence used by the Board to be both relevant and material to its final determination.

In the end, the Court dismissed the Appellant’s Application for Judicial Review.

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