RULESWATCH

November 26, 2013

Cape Breton Explorations Ltd. v. Nova Scotia (Attorney General), 2013 NSCA 134

Filed under: Uncategorized — ruleswatch @ 10:11 pm

A judge of the Nova Scotia Court of Appeal has nicely threaded a path through a miniature administrative law, curial deference and procedural fairness law minefield in Cape Breton Explorations Ltd. v. Nova Scotia (Attorney General), 2013 NSCA 134.

Justice Linda Lee Oland has remitted a confidentiality order to the Utility and Review Board to allow it to develop reasons and bring the matter back for further review (on statutory appeal) by the Court.

The Board, reserving the right to review its order should a subsequent party raise the matter, had granted confidentiality to material supporting NS Power’s application for approval of a $93 million windfarm expenditure opposed by Cape Breton Explorations.

The Board’s Regulatory Rule set out its own criteria for such an order.

The Court held that the reasons as given by the Board for the appealed order did not show the Board’s “analytical path” to the confidentiality order or whether it had complied with the requirements of its own rule. The Court described the Board’s reasons as “slim.”

In its reasoning, Oland J.A. reached into the Civil Procedure Rules to apply the confidentiality provisions of Rule 85.04, (demonstrating an application of the general rules to its own process under Rule 90.02(1)). Looking at the decision under appeal it then reviewed the Board’s ruling, reached into obiter in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61to find guidance to show appropriate curial deference to the Board, in remittance.

Then over the vigourus attempts of the appellant Cape Breton Explorations Ltd. hoping to scuttle the confidentiality order high and dry in the Court of Appeal considered and dismissed its proposition that the Board was functus and could not have the matter remitted to it to send the matter back to the Board—again, nicely warning that the Board on considering the matter should take care that parties not be permitted to make arguments that they had not made earlier in argument before the Board.

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