A number of adjoining landowners had successfully sought review of a Minister’s order granting an expansion of a landfill before the court. The Court of Appeal reversed the chambers judge’s decision and determined that a Minister’s order was not patently unreasonable and the failure to provide reasons in these circumstances did not constitute a breach of procedural fairness.

24. September 2002 0

Administrative law – Environmental hearings – Judicial review – Standard of review – Patent unreasonableness – Breach of procedural fairness – Failure to provide reasons

Fenske (c.o.b. Glomick Farms) v. Alberta (Minister of Environment), [2002] A.J. No. 823, Alberta Court of Appeal, June 25, 2002, Berger, Costigan and Paperny, JJ.A.

The Beaver Waste Management Services Commission (the “Commission”) operated a landfill. The Director, Northeast Boreal and Parkland Regions (the “Director”) approved expansion of the landfill. Several affected landowners, the Respondents, appealed the approval to the Environmental Appeal Board (the “Board”). The Board held hearings and submitted recommendations and a report to the Minister of Environment, the Appellant. After receiving the Board’s report and recommendations, and pursuant to section 92 of the Environmental Protection and Enhancement Act (“EPEA”), S.A. 1992, c. E-13.3, the Minister issued an order. The order required the Commission to submit further information to the Director and required the Director to request comments from the Respondents and to hold further public meetings before making a decision. The Board’s report and recommendations were not released to the Respondents.

The Respondents sought review of the Minister’s order. The chambers judge held that the standard of review was reasonableness. The Minister’s order was not reasonable and the failure to give reasons violated the rules of procedural fairness. The chambers judge granted judicial review of the order and remitted the matter to the Minister for reconsideration and reasons.

The Court of Appeal reviewed the decision of the chambers judge on the standard of correctness. The Court of Appeal held that the chambers judge erred by lowering the standard of review of the Minister’s order from patently unreasonable to reasonableness based solely on the absence of reasons. Failure to provide reasons may have an impact on the reviewing court’s determination of the administrative body’s expertise; however, expertise is only one of four main factors to be taken into consideration when determining the appropriate standard of review. Expertise does not trump the other three, nor does the absence of reasons weigh against a high degree of deference where the expertise of the decision-maker can be ascertained by other means.

In this case the expertise of the Minister could be ascertained in the absence of reasons and therefore the chambers judge was incorrect; the appropriate standard of review was patent unreasonableness.

The Court of Appeal held that the Minister’s order was not patently unreasonable. The Minister had a broad discretion to confirm, reverse or vary the Board’s recommendation. In the context of the EPEA, the proceedings before the board and the Board’s report, the order was clearly not irrational.

The failure to provide reasons for an administrative decision is not a breach of procedural fairness per se. The situations in which reasons will be required are rare and are the exception, not the rule. This was not a situation in which reasons had to be provided.

The appeal was granted, the chambers judge’s Order was set aside, and the Minister’s Order was restored.

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