The Court of Appeal addressed whether Section 56 of the Responsible Energy Development Act, SA 2012, c R-17.3 (“REDA”) constitutionally bars judicial review of decisions by the Alberta Energy Regulator (“AER”) on questions of fact or mixed fact and law. The case arose out of the AER’s refusal to approve the Grassy Mountain Coal Project, with the project proponent and two supporting First Nations seeking Judicial Review of that Decision. The Court upheld the Chambers Judge’s ruling that Section 56 of REDA ousted judicial review jurisdiction in this context, despite arguments that Constitutional and Indigenous rights were implicated.

From a procedural standpoint, Khullar J.A., in dissent, noted that the tests under Rule 7.3 (Summary Dismissal) and Rule 3.68 (Strike) are distinct. On an Application for Summary Judgment under Rule 7.3, the test is whether, having regard to the record and the issues, it is possible to fairly resolve the case on a summary basis or whether there is a genuine issue requiring Trial. In contrast, on an Application to Strike a claim for lack of a reasonable claim, the test is whether, assuming the facts pled are true, it is “plain and obvious” that the claim cannot succeed.

Justice Khullar also reaffirmed the scope and operation of Rule 3.68(2)(a), which permits the Court to strike a claim for lack of jurisdiction. The Chambers Judge dismissed the Judicial Review Applications on that basis, holding that the privative clause in Section 56, coupled with an appeal mechanism under Section 45, removed her authority to review the AER’s findings. The Appellants challenged this ruling, asserting that the reasons were inadequate and that it was not “plain and obvious” that the Applications could not succeed. However, Khullar J.A. noted that Rule 3.68(2)(a) does not require the same “plain and obvious” standard used under Rule 3.68(2)(b) (Failure to Disclose a Reasonable Cause of Action) and that the absence of legal or factual analysis in the reasons was appropriate, given that the ruling turned solely on jurisdiction.