In the recently released decision Normko Resources Inc. v. Alberta (Minister of Environment and Parks), the Alberta Court of Appeal confirmed that the record of proceeding for a judicial review must contain all the materials before the decision-maker, including all briefings between two decision-makers in a bifurcated proceeding.
The case and decision
This case arose from a decision originally made by the Minister of Environment and Parks (the Minister) under Alberta’s Public Lands Act (the Act). That Act governs the lease, sale and use of Crown lands in Alberta. Under the Act, parties are entitled to file appeals of certain decisions made by Alberta Environment and Protected Areas (formerly Alberta Environment and Parks) to the Public Lands Appeal Board (the Appeal Board). The Act creates a bifurcated appeal process: the Appeal Board hears the appeal, but does not actually decide the appeal. Instead, the Appeal Board prepares a report summarizing the submissions made by the parties and makes a recommendation to the Minister, who makes the final decision.
Normko Resources Inc. (Normko) had been issued an administrative penalty for contravening the conditions of its lease, which it appealed to the Appeal Board. After hearing the appeal, the Appeal Board sent the Minister its report, a memorandum from the Chair of the Board, a briefing note and a draft ministerial order slightly varying the penalty. The Minister accepted the Board’s recommendation, and issued a ministerial order in the from recommended by the Appeal Board.
Normko applied for judicial review. The Minister then declined to produce the briefing note from the Appeal Board as part of the record of proceedings required to be produced by the decision-maker in a judicial review. The Minister argued that the briefing note was privileged advice and need not be disclosed.
Both the Chambers Justice and the Court of Appeal disagreed with the Minister, finding that the statue did not contemplate the Appeal Board acting as a private legal advisor to the Minister. The Court drew a distinction between the type of advice the Appeal Board provides to the Minister, and the advice the Minister might receive from their own legal advisors. While the latter might credibly be subject to claims of privilege, the former is not. As such, the Court ruled, normal expectations surrounding administrative decision-making – including transparency – must govern and the briefing note had to be produced.
Conclusion
The Normko decision affirms previous guidance from the Supreme Court of Canada that the administrative decision-making process is founded on the principle that the exercise of public power must be justified, intelligible and transparent. Impacted parties and the court hearing a judicial review need to be provided with all materials that informed the decision.
In this case, the Court appeared to be concerned that the Minister was receiving confidential advice from the Appeal Board despite the statutory requirement for the Appeal Board’s recommendations to be disclosed. Unless a decision-maker can claim credibly assert privilege over a document, the default is for all materials – including any notes passed between a recommending body and a deciding body – to be disclosed.
If you have any questions about this decision and how it impacts your business, or about judicial review of administrative decisions generally, please reach out to the authors Laurie Livingstone and Dan Collins.
