A Serving of Procedure: Environmental Defence Canada Inc. v Alberta, 2024 ABKB 265

I am sure that many of you often lie awake late at night, staring at the ceiling and wondering “how would I serve a judicial review application on a member of a public inquiry commission?” You will find an answer in Environmental Defence Canada Inc. v Alberta, 2024 ABKB 265.

A few years ago the Alberta government initiated a public inquiry under provincial legislation into allegations that foreign organizations were funding anti-energy campaigns contrary to the province’s interest. Jackson Stephen Allan was appointed as the Commissioner by the provincial cabinet (by way of Order in Council) and, at the conclusion of his activities (funded by the Minister of Energy) delivered his final report to the Minister. At that point, his mandate ended and the Commission’s website was defunct.

The appellants sought to bring judicial review proceedings setting aside the final report. They served their application on the Minister, the Minister for Justice and Solicitor General, and the Crown in right of Alberta. But they never served their application on Mr. Allan. Service of applications is fundamental: a party to a judicial review application should evidently know that proceedings have been commenced. Here, a dispute arose about whether he had been properly served — and if he wasn’t, it would now be too late to serve him. The appellants asked the Application Judge to confirm and validate service under the provincial rules of court but he refused. They appealed to the superior court, where Hayes-Richards J allowed their appeal.

Service is governed by rule 3.15(3) of the provincial Rules of Court:

(3) An originating application for judicial review must be served on

(a) the person or body in respect of whose act or omission a remedy is sought,

(b) the Minister of Justice or the Attorney General for Canada, or both, as the circumstances require, and

(c) every person or body directly affected by the application.

Clearly Mr. Allan fell under (a) or (c). The Respondents argued that he definitely fell under (c), which required that he had to be served as someone directly affected. Hayes-Richards J was unimpressed:

I reject the proposition that Mr. Allan is personally affected by the judicial review because of the unique nature of a public inquiry and because the grounds of the application involve negative allegations against him. That is akin to saying a judge has a personal interest in an appeal because their reasoning is questioned. I find Mr. Allan, in his personal capacity, has no direct or legal interest in the outcome of the judicial review (at para. 25).

Although the point was left undecided, Hayes-Richards J also doubted that double service could be required: someone falls either under (a) or (c) but not both (at para. 26).

Next, how does one effect service on an individual exercising statutory functions? Did Mr. Allan have to be served personally or was it enough to serve the sponsoring department, Crown and other minister? Hayes-Richards J concluded that serving those who were served was sufficient. This is a matter regulated by rule 11.14:

11.14 (1) A commencement document may be served on an entity established by or under an enactment, or an entity not otherwise described in this Part, that is capable of being the subject of an action,

(a) by being left

(i) with an officer or administrator of the entity who appears to have management or control responsibilities with respect to the entity, or

(ii) with an individual who appears to have management or control responsibilities with respect to the entity at the entity’s principal place of business or activity in Alberta, or at the entity’s place of business or activity in Alberta where the claim arose, or

(b) by being sent by recorded mail, addressed to the entity, to the entity’s principal place of business or activity in Alberta.

For Hayes-Richards J, the Minister and/or the Crown (both of whom were properly served) had the necessary management or control responsibilities within the meaning of rule 11.14, leaning heavily on the purpose of the rule and the common sense proposition that service on a statutory entity “should not be onerous” (at para. 37):

I am not persuaded by the Respondents argument that practical considerations of service are irrelevant, and the Appellants had a full six months to arrange service, including substitutional service, if necessary, of the judicial review but waited until the very last day. The idea that the Crown/Minister of Energy who enabled the statutory entity can now argue that failure to serve Mr. Allan personally is fatal to this appeal is untenable, and in my view violates the foundational principles of the Rules of Court. Rule 1.2(1) says that the purpose of the rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective manner.

The OIC required Commissioner Allan to provide a final report to the Minister of Energy by a specific date. The Minister had to publish that report within 90 days. During that 90 days, Commissioner Allan had no further mandate or responsibilities set out in the OIC. Commissioner Allan also had no further mandate or responsibilities during the six-month period in which a judicial review could be filed and served. Depending on the timing of service, there is a potential nine-month gap between the conclusion of Commissioner Allan’s mandate and service of a judicial review application. The issue of who has management and control during that potential nine-month gap could have been easily resolved within the OIC if it had simply set out an address for service for the Commission/Commissioner Allan that was in place for six months after the publishing of the final report. There was no requirement for the Crown/Minister of Energy to do so, but it would have avoided the issue that is now before me. The Commission website was defunct. Commissioner Allan had no further mandate. Service of a statutory entity should be straightforward, not an exercise in tracking down the private individual who once held these statutory positions.

 

I accept that r 11.14 provides a clear pathway for Commissioner Allan to be served. Finding that a party must seek out to personally serve a statutory entity would be contrary to r 11.14 and violate the foundational rules. I find that when the commencement documents were served, Commissioner Allan’s mandate was over, he personally had no role in respect of the Commission at the time, and the Crown and/or the Minister of Energy held complete and exclusive control of the Commission, the statutory Commissioner role, and the Commissioner’s final report (at paras. 38-40).

Notably, Hayes-Richards J agreed with the appellant’s submission that service on statutory entities should be facilitated rather than hindered:

Statutory entities are not private persons who can choose to live private lives that may be difficult for another party to locate. They are public bodies in respect of which procedural issues that can undermine the administration of justice, such as potential to evade service, should not remotely exist (at para. 37).

Sleep easy, folks!

 

This content has been updated on May 15, 2024 at 20:25.

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