A decision to grant or refuse public interest standing is a discretionary decision and is afforded appellate deference. The Court of Appeal affirmed the chambers judge decision, finding that the chambers judge correctly identified and expressly addressed each of the applicable factors when exercising his discretion to decide not to grant public interest standing to the appellants.

Administrative law – Judicial review – Standing – Parties – Appeals

Zoocheck Canada Inc. v. Alberta (Minister of Agriculture and Forestry), [2019] A.J. No. 666, 2019 ABCA 208, Alberta Court of Appeal, May 24, 2019, B.K. O’Ferrall, T.W. Wakeling and J. Strekaf JJ.A.

The applicants’ concern was with the care of an elephant named Lucy, who they would like to have moved from the Edmonton Valley Zoo (“Zoo”) to a more appropriate facility. The issue on this appeal was whether the court should overturn the discretionary decision of the chambers judge to deny the appellants public interest standing to seek judicial review of a decision by the Minister of Environment and Parks to renew the Zoo’s permit under section 13(1) of the Wildlife Act, RSA 2000, c W-10.

Discretionary decisions of chambers judges attract deference and would only be set aside if the judge had misdirected himself on the applicable law or made a palpable and overriding error in his assessment of the facts.

Canadian courts have adopted a “flexible discretionary approach” to grant public interest standing in appropriate cases. The court in Downtown Eastside Sex Workers United Against Violence Society v. Canada (Attorney General), 2012 SCC 45 explained the approach at para 37:

In exercising the discretion to grant public interest standing, the court must consider three factors: (1) whether there is a serious justiciable issue raised; (2) whether the plaintiff has a real stake or a genuine interest in it; and (3) whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the matter before the courts.

Regarding the first factor, the chambers judge found that a “serious and justiciable issue is not simply one that engages the public interest, or indeed, one that poses serious questions” but that it “must be viewed in the context of the actual decision the Applicant asks the Court to review”. In this case, the applicants’ concern was with the care of the elephant and whether the Zoo was in compliance with the Animal Protection Act, RSA 2000 c A-41 and what they argued were the applicable zoo standards. However, there was no decision under the Animal Protection Act to be reviewed as the application before the court dealt with the renewal of a zoo permit pursuant to the Wildlife Act.

The chambers judge acknowledged that it might seem counterintuitive that zoo licensing provisions were not intended to function as animal protection legislation, but such responsibility for animals were allocated to the Animal Protection Act, while the Wildlife Act was focused on regulating wildlife, including hunting, transportation, importation and exportation of wildlife and related offences. The Wildlife Regulation, AR143/97 provisions on zoo permits dealt primarily with logistical considerations. Section 76 of the Wildlife Regulation defines “zoo standards” for the purpose of zoo permit eligibility and expressly excludes the standards related to the Animal Protection Act.

The appellants were not alleging that the Zoo’s permit renewal failed to satisfy the requirements of the zoo standards as defined by s. 76 of the Wildlife Regulation, but instead argued that a broader meaning of zoo standards should be incorporated into the requirements for permit renewal. This would require the court to disregard the clear and unambiguous words of the legislation to define zoo standards narrowly for zoo permit issuance, but also disregard the words in provincial standards.

The appellants also argued that the Zoo is breaching a broader duty to prevent the elephant from being in distress contrary to the Animal Protection Act. However, this would require the court to find the Zoo had committed offences under animal protection legislation, even though no proceedings had been commenced against the Zoo under the legislation by the responsible authorities.

Regarding the second and third factor, the chambers judge correctly stated that the question was whether the appellants had a real stake or genuine interest in the decision of the Minister to renew the Zoo permit. The chambers judge found that the applicants did not have a genuine interest in the application because their challenge of the Zoo permit was for the collateral purpose of securing a relocation of the elephant to another facility and that making a complaint under the Animal Protection Act would be a more reasonable and effective way to bring the issue of the elephant’s well-being before the court.

The Court of Appeal affirmed the chambers judge decision, finding that the chambers judge correctly identified and expressly addressed each of the applicable factors when exercising his discretion to decide not to grant public interest standing to the appellants. The applicants did not demonstrate that the chambers judge acted on wrong principles, failed to give sufficient weight to all relevant considerations, or his overall assessment was not reasonable.

The appeal from the denial of public interest standing was dismissed.

However, it was determined that the chambers judge erred in finding that the appellants’ application for public interest standing was a collateral attack on the 2010/2011 Proceedings. This aspect of the chambers judge’s decision was set aside.

In the dissenting reasons of Justice O’Ferrall, the appeal should have been allowed as the application judge erred both in finding the applicants’ application was a collateral attack on the prior proceedings and in denying their application for public interest standing. He was of the opinion that the case should go to trial for consideration of the important points of law that impact both the protection of animals and the public’s interest in government compliance with the law.

This case was digested by Jackson C. Doyle, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Jackson C. Doyle at jdoyle@harpergrey.com.

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