Link: Case Summary Document
Citation:  ABQB 397
Acknowledgement:The Pemsel Case Foundation thanks The Australian Centre for Philanthropy and Nonprofit Studies for its contribution in the drafting of this Case Note.
Application for judicial review of a government inquiry about foreign funding of anti-Alberta energy campaigns.
1. The Alberta government established an Inquiry in July 2019, headed by Steve Allan, a Calgary forensic accountant, to investigate allegations that environmental campaigns against Alberta’s oil and gas sector were being funded by foreign interest groups.
2. Ecojustice Canada Society (Ecojustice) is a nonprofit organisation that brings public interest lawsuits involving environmental problems in Canada. It brought an application for judicial review of the Inquiry.
3. In Ecojustice Canada Society v. Alberta 2020 ABQB 736 Ecojustice applied for an injunction to stay the Inquiry until the Court had disposed of its application for judicial review, but the Court declined to grant it. It should be noted that the Inquiry’s terms of reference have been amended since the initial filing of the action. Documents such as Rules of Procedure and Practice, the Engagement Process, the Inquiry Framework, a Ruling on the Interpretation of the Terms of Reference, a form of Application for Standing as a Participant for Commentary, and a sheet of frequently asked questions have all been made available through the Inquiry’s web site.
4. In this hearing Ecojustice sought to halt the Inquiry into anti-Alberta energy campaigns, or given the current timing, to restrict the publication of the report and other information. It brought an application alleging the following grounds:
a) The Inquiry was brought for an improper purpose and was therefore ultra vires the authority granted to the Lieutenant Governor in Council under section 2 of the Public Inquiries Act. Ecojustice asserted in its application that the Inquiry had been called to justify the government of Alberta’s intent to harm the reputations, economic viability and freedom of expression of organizations which have opposed its position with respect to oil and gas development, as opposed to addressing a matter of pressing public interest. Further, Ecojustice argued that public comments made by government officials and incorporated in the Order in Council (OIC) and Terms of Reference (T of R) demonstrated that it was established for partisan political purposes, as opposed to independent fact-finding on a matter of public interest.
b) Certain matters identified in the OIC and T of R were matters of exclusive federal jurisdiction and therefore ultra vires the jurisdiction of the Lieutenant Governor in Council to so order. Exclusive federal jurisdiction relates to the transfer of funds from outside Canada to organizations within Canada; the funding of Canadian organizations by municipal, provincial and territorial governments outside of Alberta and the government of Canada; the charitable status of Canadian organizations; and the opposition to the transportation of Alberta oil and gas resources by railways and pipelines under federal jurisdiction.
c) The OIC and T of R for the Inquiry, the political context of the Inquiry, and the Inquiry commissioner’s political donations to the United Conservative Party and the now Minister of Justice, led to a reasonable apprehension of bias. Further, Ecojustice claimed that the OIC and T of R predetermined the existence of anti-Alberta energy campaigns and foreign funding of those campaigns; predetermined that Canadian organizations disseminated misleading or false information about the Alberta oil and gas industry; and pejoratively labelled certain
positions as anti-Alberta.
5. The Court examined the case law and found it was not empowered to review (at ):
…the policy merits of the subordinate legislation; any underlying political, economic, social, or partisan considerations; the motives for enacting the subordinate legislation; whether it is necessary, wise or effective; whether it will succeed in achieving its stated objectives; the sufficiency of the evidence before the decision maker(s); and the validity of the decision maker(s) beliefs.
6. Rather, the Court should only strike subordinate legislation if it: 1) is irrelevant, extraneous, or completely unrelated to the statutory purpose; or 2) fails to comply with a necessary statutory requirement; or 3) was enacted in egregious circumstances such as bad faith.
7. The Court found that the OIC met the statutory requirements. The preamble stated that the subject matter was in the public interest and there was evidence that cabinet made its own assessment of the subject matter and exercised its discretion to direct the Inquiry independently of the statements of members of the government outside the legislature. The fact that the Inquiry may report on the funding of certain people or groups was not in and of itself bad faith or egregious circumstances such that court intervention might be warranted.
8. The Court found that the pith and substance of the OIC was to discover and report on the existence of a perceived threat to Alberta’s energy industry and explore ways of addressing that threat if considered necessary, and not as Ecojustice argued, the transfer of funds (at ). Further the OIC was found to be intra vires, with federal authority in relation to pipelines and railways being merely incidental. The claim that the Inquiry would lead to the revocation of charitable status of certain entities was too speculative at this time.
Reasonable Apprehension of Bias
9. The Court found that this application was premature and that there were no exceptional circumstances present. Ecojustice failed to identify to whom a duty of fairness was owed and who breached the duty of fairness, if one existed. No hearing had been held prior to the Court proceedings and Ecojustice would have to await the outcome of the Inquiry and the Commissioner’s final report.
10. Further, the Court found Commissioner Allan had the ability to manage a public inquiry of this nature while adhering to the highest standards of impartiality and integrity both personally and in overseeing the infrastructure of the process.
11. The Court dismissed the application by Ecojustice. The OIC enacting the Inquiry was not ultra vires since it was not brought for an improper purpose. The OIC was not ultra vires the Court’s jurisdiction as it did not encroach on federal matters and the OIC, the T of R and Commissioner Allan’s prior conduct did not raise a reasonable apprehension of bias.
Implications of the case:
The interim report of the Inquiry was delivered to the government of Alberta on 31 January 2021. The Muttart Foundation has made its submission to the inquiry that is to enquire into organizations that have allegedly received foreign funding to make statements about Alberta’s energy industry, and that submission is publicly available on its website.
The case may be viewed at: