3.21: Limit on questioning
3.22: Evidence on judicial review

Case Summary

The Government of Alberta recommended a public inquiry into anti-Alberta energy campaigns supported by foreign organizations (the “Inquiry”). The Lieutenant Governor in Council initiated the Inquiry by Order in Council 125/2019 (the “OIC”). In the OIC, Jackson Stephens Allan was appointed as the Commissioner to conduct the Inquiry (the “Commissioner”). Ecojustice Canada Society (“Ecojustice”) brought an Application for Judicial Review requesting that the Court find the Inquiry unlawful. The named Respondents included the Commissioner.

A preliminary issue was the substance of the evidentiary record for the purposes of determining the issues in the Application. Pursuant to Rule 3.22, when making a decision on an Application for Judicial Review, the Court may consider: (a) the certified copy of the record of proceedings; (b) a transcript of Questioning, if it was permitted under Rule 3.21; (c) anything permitted by any other Rule or by enactment; and (d) any other evidence permitted by the Court.

The Commissioner submitted his record and a supplemental record (the “Record”). The Commissioner argued that the Record would provide the Court with fulsome evidentiary materials that would assist in putting the submissions of Ecojustice in a proper context. The Commissioner further argued that if he did not provide the Record, then Ecojustice could have requested that the Court grant it the right to question the Commissioner under Rule 3.21 and enter any resulting transcript under Rule 3.22(b). Finally, the Commissioner argued that in cases where an allegation of bias is made, additional evidence may be admitted to fill gaps in the evidence (Bergman v Innisfree (Village), 2020 ABQB 661). In sum, the Commissioner chose to file the Record in order to avoid delay, additional expense and to enhance the efficiency of the proceedings.

The Court accepted that the Record, which included correspondences between the Commissioner and Ecojustice, and details of the Commissioner’s political donations prior to the OIC, was necessary to fill gaps in the evidence and was helpful to the Court in its consideration of the allegation of bias. The Court admitted the Record pursuant to Rule 3.22(d).

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