The Director (South Saskatchewan Region, Operations Division, Alberta Environment & Parks) Applicant - v. -, 2017 ABQB 3

Court of Queen’s Bench of Alberta Citation: Director (EAP) v Alberta (Provincial Court), 2017 ABQB 3 Date: 20170104 Docket: 1601 01673 Registry: Calgary Between: The Director (South Saskatchewan Region, Operations Division, Alberta Environment & Parks) Applicant - and - The Provincial Court of Alberta, Handel Transport (Northern) Ltd., Gas Plus Inc. and 1645151 Alberta Ltd.

Respondents Corrected judgment: A corrigendum was issued on February 17, 2017; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice P.R. Jeffrey _______________________________________________________ In respect of the Order of The Honourable Judge H.A.

Lamoureux Dated the 10 th day of February, 2016 (Docket No: 151484078Z1) [ 1 ] At issue in this application are the vires of an Order of a judge of the Provincial Court of Alberta and the legality of the process by which the Applicant has challenged the vires of that Order. The issues arise in the context of environmental remediation of lands within the City of Calgary.

Background [ 2 ] On November 27, 2015, the Director of Alberta Environment & Parks for the South Saskatchewan Region, Operations Division (the “ Director ”), applied to the Provincial Court of Alberta for an order authorizing entry onto private lands (the “ Access Application ”). Those lands are owned by the respondents Handel Transport Ltd., Gas Plus Inc. and 1645151 Alberta Ltd. (the “ Land Owners ”). The lands are the subject of earlier orders that set out various remediation requirements (the “ Remediation Orders ”). [1]

[ 3 ] The Director believes there has not been satisfactory compliance with these Remediation Orders. He applied to the Provincial Court of Alberta, pursuant to s 250(5) of the Environmental Protection and Enhancement Act (“ EPEA ”), [2] for the right to enter the Land Owners’ property to carry out the remediation work that he considered remained to be done, pursuant to

section 245 of the EPEA . [3] [ 4 ] The Land Owners disagree regarding the condition of their land and oppose the Access Application. [ 5 ] The parties appeared before a judge of the Provincial Court of Alberta (the “ PCJ ”) to address the process they would follow leading to the hearing of the Access Application.

In that context the parties agreed, and the PCJ approved, that the Provincial Court’s civil process would apply. [ 6 ] On January 26, 2016, the Land Owners cross applied for an order requiring the parties submit to mediation. [ 7 ] The Director resisted the request of the Land Owners to have the PCJ order them into mediation rather than hear the Access Application. The Director argued that the PCJ did not have jurisdiction to do so.

The PCJ heard the parties with respect to her jurisdiction to order mediation and, on February 10, 2016, concluded that she had “inherent authority under the Rules of Court to allow judges to assist parties to resolve their disputes through appropriate directions.” [4] She explained: [5] The Court can apply

section 8 of the Provincial Court Act and the Court can look at, in doing so, the foundational rule of the Queen’s Bench’s Rules of Court, Rule 1.2 and the general authority Rule 1.3; to allow it to say that the Rules of Court promulgated just a few years ago, do engage an expansive authority to allow any judge to direct the parties to proceed to a dispute resolution process, whether that be a trial or facilitated negotiation, an interest based mediation, an adjudicative mediation, a mediation-arbitration or a trial; to allow the Court to exercise authority to look at the vast array of dispute resolution processes which are now available, to allow people and corporations to resolve disputes in an efficient, cost effective, expeditious manner.

The Court says that it can access those Rules of Court and the inherent authority contained within them, to take the necessary steps to encourage parties to resolve disputes by themselves, with the assistance of a mediator, with an effective and efficient process that the parties can design themselves. That is really the intent of the Rules of Court when they were redrafted in a massive process of a few years ago; to give parties through the assistance of the Court, the tools and means to resolve their disputes, short of trials. That’s not a policy statement.

It’s actually built right into the Rules of Court, as [ counsel for the Respondents ] says, in the very foundational rules which he quotes in his brief, 1.2 and the general authority 1.3. [6] [ 8 ] Therefore, also on February 10, 2016, the PCJ ordered the parties into mediation (the “ Mediation Order ”), in effect placing the Access Application in abeyance. The Mediation Order contains the following terms: 1. The Applicant and Respondent shall proceed to Court ordered mediation on February 25, 2016 at 9:00 a.m. at the offices of Perry Mack, Q.C., Court appointed mediator. 2.

The Court directs that the parties attend the mediation on February 25, 2016, for a full day, commencing at 9:00 a.m., and that mediation within the following provisions of this Order be conducted in good faith. 3. The Court orders the following parties to be in attendance at the mediation: Mr. Mallet (Counsel for the Applicant), Mr. Bourget, Mr. Kraus, Representative from CH2M Hill, Mr. Stepper (Counsel for the Respondent), a Representative from Handel, Gas Plus and the numbered company, respondents on the motion with full authority, a representative from Curtis Engineering. 4.

The Court orders that the Respondents on this Motion shall pay the cost of the mediation on February 25, 2016, subject to the rights of the Respondents to deduct 50% of the mediator’s fees from any portion of remediation expense to be borne by the Respondents with respect to the land, the subject matter of this Application. 5. The following matters shall be addressed by the mediator, inter alia , the mediator shall facilitate a decision as to an appointment of a third independent expert to work with CH2 and Curtis Engineering.

The mediator has authority to choose the independent expert for the parties failing agreement on February 25, 2016. 6. Once the parties or the mediator chooses the independent expert, the panel of three experts from the Respondent, the Applicant and the third independent expert, will be working to prepare a joint remediation protocol, which must be completed by April 30, 2016. 7. On February 25, 2016, the parties, with the assistance of the mediator, will agree on a mutual agenda of issues to be addressed by mediation. The agenda is to be created by 4:00 p.m., February 25, 2016, and emailed to the Court.

The mediator has authority to table a list of issues to be addressed in mediation, failing agreement between the parties. 8. The agenda shall be forwarded to the Court by email by the Applicant and the Respondent through their counsel no later than 5:00 p.m., February 25, 2016. [ 9 ] The Director immediately commenced this application for judicial review of the Mediation Order, saying the PCJ does not have jurisdiction to render it.

The Mediation Order was stayed pending determination of this application. [ 10 ] The Land Owners say the Mediation Order is within the PCJ’s jurisdiction and that this Court is without jurisdiction to hear this challenge to the Mediation Order by way of judicial review. The Land Owners say this application is a nullity because any such challenge must proceed by way of appeal, not judicial review.

Issues [11] The issues before the Court therefore are: 1. Whether this application is a nullity because the Director should have proceeded by way of appeal of the PCJ’s decision not byjudicial review (the “Procedural Question”); and 2. If judicial review is available to the Director, then: a. What is the standard of review; and b. Did the PCJ’s decision that she has jurisdiction to order mediation in these circumstances meet that standard (the “JurisdictionalQuestion”). [12] For the reasons that follow I grant the application.

The challenge is properly commenced by way of judicial review, thestandard of review is correctness, and the PCJ incorrectly (and unreasonably) exceeded her jurisdiction. Procedural Question [13] The Provincial Court of Alberta is a statutory creation: R v H(RJ) (2000), 2000 ABCA 111 , 186 DLR (4th) 468(ABCA). Accordingly, to challenge one of its decisions the Director must exhaust all statutory remedies before resorting to judicialreview: Harelkin v. University of Regina, (SCC), [1979] 2 SCR 561. If there is no adequate alternate remedy available,then judicial review is available.

The Alberta Court of Appeal in Merchant v Law Society of Alberta, 2008 ABCA 363, at para 3, put itthis way: [...] If there is a clear right of appeal, and the appeal would be an adequate remedy, only in very exceptional circumstances will thecourts grant judicial review instead.

And this Court similarly in BP Canada Energy Company v Alberta Energy and Utilities Board, 2003 ABQB 875, at para 29, said:“Where an applicant has access to an adequate right of appeal, judicial review should be declined.” [14] The parties disagree on whether an appeal is available to the Director as an adequate remedy, by which to challenge the PCJ’sMediation Order. The Director says it is not, leaving only judicial review. [15] The Land Owners say the Provincial Court Act provides a right to appeal on civil matters and that it applies here. They relyspecifically on s-s 46(1), which states: 46

(1) Any party may appeal a decision of the Provincial Court to the Court of Queen’s Bench, (

a) within 30 days after the judgment is given, by (

i) filing in the Provincial Court a notice of appeal setting out the grounds of appeal, and (ii) serving the notice of appeal on (

A) the respondent, and (

B) any other person that the Court of Queen’s Bench directs, and (

b) by filing in the Court of Queen’s Bench not later than 7 days after the last day for service of the notice of appeal on those partiesserved pursuant to clause (a) (

i) a copy of the notice of appeal referred to in clause (a)(ii), (ii) an affidavit of service of the notice of appeal, and (iii) a copy of a requisition to a clerk of the Provincial Court for a transcript of evidence together with a receipt for payment of thetranscript. [16] I disagree. The appeal rights referred to in s 46 deal with appeals from Provincial Court decisions on civil claims, not toAccess Applications under the EPEA. [17] The Land Owners say this appeal right applies in this case also because the parties agreed to abide by the Provincial Court’scivil rules and the s 46 right of appeal arises in

Part 4 of the Provincial Court Act governing civil claims. Regardless, an agreement of theparties cannot bestow jurisdiction on the Provincial Court (here a right of appeal) that it does not otherwise have. [18] Even if the Director had available the statutory right of appeal in s 46 of the Provincial Court Act, it would only permit achallenge to the content and substance of the Mediation Order. The Director is not challenging the content of the Mediation Order; he ischallenging whether it is within the jurisdiction of the PCJ to make any such order.

The Director may very well accept its content, ifforced to abide by it. [19] In Doucet v Adult Forensic Psychiatric Services and AGBC, 2000 BCCA 195, at para 36, the BC Court of Appeal said:

Jurisdiction is regarded as the legal authority of a court to entertain an action, petition or other proceeding. In criminal matters, jurisdiction is the legal power by which a court is authorized to deal with a particular accused in respect of a particular offence. [See E.G. Ewaschuk, Criminal Pleading & Practice in Canada , 2d ed. (Aurora, Ontario: Canada Law Book, Release May 1999) at 1:0010.] [ 20 ] As a challenge to the jurisdiction of the PCJ, this application should not have come to this Court by an appeal.

Proceeding by judicial review is acceptable, as would have been proceeding by certiorari simpliciter. See, in that regard, for example, R v Russell , 2001 SCC 53 , at para 19 . [ 21 ] If I am incorrect in that conclusion, and judicial review is not available to the Director, the Land Owners ask me to declare the application a nullity. They appear to hope that then the Director would return to constructive discussion of their differences, as had occurred at least once before consensually and as the PCJ obviously thinks would help.

However, if judicial review is not available to the Director and I declare this application to be a nullity, it is quite clear that the Director will continue to challenge the Mediation Order, just by proper legal process. The issues before me now would be back in front of this Court on virtually identical arguments on the Jurisdictional Question. [ 22 ] If I am incorrect and judicial review is not available to the Director, he asks me to exercise my discretion to hear the application in any event.

This Court has exercised such curative powers before; see for example: W(ED) v Alberta (Director of Child Welfare) , 2005 ABQB 304 , at para 10 ; A(

L) v Alberta (Director, Child, Youth & Family Enhancement Act) , 2010 ABQB 138 , at para 19 , Beauchesne v Beauchesne , 2012 ABQB 308 , at para 30 . The Court has broad powers to cure procedural irregularities under s 8 of the Judicature Act , RSA 2000, c J-2 and ARC rule 1.5 . [ 23 ] In these circumstances, if there has been procedural error in how it has come before the Court, I would continue to hear the matter. First, all the same arguments and considerations are already before the Court.

The core issue is before the Court now; the refusal to hear and decide now the Jurisdictional Question within the judicial review would serve no useful purpose. [ 24 ] Second, too much time has already been lost as a consequence of the Mediation Order and the challenge it necessitated to its vires . The refusal to hear and decide the Jurisdictional Question now within this judicial review would only exacerbate the delay to any site remediation that is outstanding (if the Director is correct), which delay is contrary to statutory purposes.

The powers delegated to the Director in the EPEA in respect of site remediation, including the extraordinary power to access private land and undertake remediation that is not otherwise occurring, indicate that the Legislative Assembly intends environmental remediation not languish but be addressed promptly. [ 25 ] Third, whether it proceeds by judicial review or appeal, the standard of review I apply will be the same. If heard by way of appeal, as a question of law the Jurisdictional Question would be reviewed for correctness: Aldred v Alberta (Attorney General) , 2005 ABCA 221 , at para. 6 .

Similarly, if heard by way of judicial review the standard of review is also correctness, for the reasons I provide next. [ 26 ] Therefore this application is proceeding by way of judicial review. Standard of Review [ 27 ] I turn next to which standard of review applies: reasonableness or correctness.

The standard of review is determined in two steps, described by the Supreme Court of Canada in Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190, at para 62 : First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question.

Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review. [ 28 ] This two-step approach in Dunsmuir was recently affirmed by the Supreme Court of Canada in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd , 2016 SCC 47 , at para 22 : Unless the jurisprudence has already settled the applicable standard of review ( Dunsmuir , at para. 62 ), the reviewing court should begin by considering whether the issue involves the

interpretation by an administrative body of its own statute or statutes closely connected to its function. If so, the standard of review is presum ed to be reasonableness: ( Mouvement laïque québécois v. Saguenay (City) , 2015 SCC 16 , [2015 ] 2 S.C.R. 3, at para. 46 ). [...] [ 29 ] In this case the question of which standard of review applies is not resolved under the first step; it is not already settled in the jurisprudence. Moving to the second step, the Provincial Court Act is the PCJ’s home statute.

In that respect the standard of review is presumed to be the more deferential standard of reasonableness. [ 30 ] The EPEA is not the PCJ’s home statute or closely connected to it. Applications by the Director under s 250(5) for access to private lands are very rare; counsel for the Director believed this to be the first. But the Access Application under EPEA is merely the background context to the Jurisdictional Question. The PCJ has jurisdiction to hear the Access Application by s 9.2(

b) of the Provincial Court Act . [7] The Jurisdictional Question arises predominantly from the PCJ’s

interpretation of her home statute. [ 31 ] However, the presumption of reasonableness as the standard for reviewing an administrative body interpreting its own statute or one closely connected to it, may be rebutted if the issue falls within one of four narrow categories. If so then the standard of review is correctness. From Edmonton , at para 24: The four categories of issues identified in Dunsmuir which call for correctness are constitutional questions regarding the division of powers, issues “both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise”,

“true questions of jurisdiction or vires”, and issues “regarding the jurisdictional lines between two or more competing specializedtribunals” (paras. 58-61). When the issue falls within a category, the presumption of reasonableness is rebutted, the standard of review iscorrectness and no further analysis is required (Canadian Artists’ Representation v. National Gallery of Canada, 2014 SCC 42, [2014] 2S.C.R. 197, at para. 13; McLean v.

British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at para. 22). [32] In this case the presumption of reasonableness is rebutted because the Jurisdictional Question falls within a number of thefour aforementioned categories, different categories depending on how the Jurisdictional Question is characterized. [33] First, the Jurisdictional Question is in one sense a constitutional question. It involves the division of powers between s 96 ands 92.

That is, it raises the question of whether a province’s powers under s 92 of the Constitution Act, 1867 enable it to create a court ofsuperior jurisdiction akin to those created pursuant to s 96 of the Constitution Act, 1867.The Jurisdictional Question might appear to notbe the sort of “division of powers” question intended by that phrase in Dunsmuir, which in common legal usage refers to the division ofpowers between ss 91 and 92 of the Constitution Act, 1867.

However the category of constitutional issues subject to review on acorrectness standard is not limited to that narrow understanding of division of powers questions. The Court in Dunsmuir said, atparagraph 58 (emphasis added): [...] correctness review has been found to apply to constitutional questions regarding the division of powers between Parliament and theprovinces in the Constitution Act, 1867: Westcoast Energy Inc. v. Canada (National Energy Board), (SCC), [1998] 1S.C.R. 322.

Such questions, as well as other constitutional issues, are necessarily subject to correctness review because of the unique roleof s. 96 courts as interpreters of the Constitution: Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003SCC 54 ; Mullan, Administrative Law, at p. 60). The Jurisdictional Question raises the question of whether a province has constitutional authority to create a court with inherentjurisdiction, as the PCJ found she had been granted under the Provincial Court Act’s incorporation by reference of the Alberta Rules ofCourt.

It is therefore a constitutional question that the PCJ must answer correctly. [34] Second, in another sense the Jurisdictional Question engages the correctness category of ascertaining the line of demarcationbetween two competing specialized tribunals, here the Provincial Court of Alberta and the office of the Director under the EPEA.

Canthe PCJ require the Director to become subject to a “remediation protocol” that someone else determines (here a panel of three experts)?Or, is determining the remediation protocol the Director’s exclusive statutory jurisdiction? [35] Third, in yet another sense, the Jurisdictional Question is a true question of jurisdiction. I am aware of the Supreme Court ofCanada’s expressions of doubt that there may exist any “true question of jurisdiction”.

It repeated this sentiment most recently inEdmonton, at para 26: This category is “narrow” and these questions, assuming they indeed exist, are rare (Canadian Broadcasting Corp. v. SODRAC 2003Inc., 2015 SCC 57, [2015] 3 S.C.R. 615, at para. 39; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association,2011 SCC 61, [2011] 3 S.C.R. 654, at paras. 33-34). It is clear here that the Board may hear a complaint about a municipal assessment.The issue is simply one of interpreting the Board’s home statute in the course of carrying out its mandate of hearing and decidingassessment complaints.

No true question of jurisdiction arises. [36] In the ATA case referred to in that quote, the Supreme Court of Canada said, in respect of this narrow category of truequestions of jurisdiction, at para 39: As long as the true question of jurisdiction category remains, the party seeking to invoke it must be required to demonstrate why thecourt should not review a tribunal’s

interpretation of its home statute on the deferential standard of reasonableness. [37] In this case the PCJ’s

interpretation of her home statute was not for the purpose of carrying out her mandate, but for purposesof deciding whether she had the inherent jurisdiction from which she believed she could render the Mediation Order. In the words ofEwaschuk, adopted by the BC Court of Appeal in Doucet already quoted above, jurisdiction deals with “the legal authority of a court toentertain an action, petition or other proceeding.” The question of whether a statutory body can expand its own powers to includeinherent jurisdiction, merely by its

interpretation of its home statute, would seem to me to be a question that must answered correctly and,therefore, is a “true question of jurisdiction.” However, I need not go so far in this case. The law continues to caution against branding asjurisdictional that which is not: Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., (SCC), [1979] 2 S.C.R. 227, affirmed in Dunsmuir, at para 35, and again in Alberta (Information and Privacy Commissioner) v. ATA, atpara 33. Whether this case at long last has unearthed a true question of jurisdiction need not be decided.

But if not for the JurisdictionalQuestion already falling within the other two correctness categories, I would find that the Director’s evidence and circumstancesdemonstrate that it does constitute a true question of jurisdiction. [38] Since the question at issue falls within the categories that rebut the presumption of reasonableness, it is not necessary toproceed to the full standard of review analysis under the rest of the second step in Dunsmuir. Correctness is the standard of review I amto apply.

Jurisdictional Question [39] The PCJ erred, and in any event was unreasonable, in concluding she has inherent jurisdiction. Further, even if she hasinherent jurisdiction, she could not order this particular mediation for three additional reasons. First, it encroaches on the Director’sexclusive statutory jurisdiction. Second, it constitutes a collateral attack on the Remediation Orders. Third, it requires the expenditure offunds by the Provincial government without any such statutory power to do so. i. No inherent jurisdiction

[40] The Provincial Court of Alberta possesses no inherent power: R v H(RJ) (2000), 2000 ABCA 111 , 186 DLR (4th)468 (ABCA) at para 12. Only superior court judges appointed under s 96 of the Constitution Act, 1867 have inherent jurisdiction:Kourtessis v MNR, (SCC), [1993] 2 SCR 53 at pp. 65-66. That line of binding authorities alone is dispositive of theapplication.

Nevertheless, because of the Land Owners’ detailed arguments that a PCJ has such jurisdiction, and the flawed reasoning ofthe PCJ in finding jurisdiction, further comment is warranted. [41] All the Provincial Court of Alberta’s powers are conferred upon it by statute, either expressly or by necessary implication: R vDoyle, (SCC), [1977] 1 SCR. 597, (1976) 35 CRNS 1, at 6. That principle of jurisdiction by necessary implication wasre-iterated in R v Gunn, 2003 ABQB 314, at para 36: Even in Doyle v.

The Queen, which is often cited as authority for the principle that statutory courts have only that jurisdiction expresslyconferred on them, the Court recognized that such courts must have the jurisdiction to make such orders as are necessarily incidental tothose powers they already have. [42] The PCJ found she had inherent jurisdiction from the ARC, which she said applied to matters before her as a matter of statute.She relied upon s 8 of the Provincial Court Act, which states: 8(1) The practice and procedure of the Court shall be as provided in this Act and the regulations.

(2) Where this Act or the regulations do not provide for a specific practice or procedure of the Court that is necessary to ensure anexpeditious and inexpensive resolution of a matter before the Court, the Court may (

a) apply the Alberta Rules of Court, and (

b) modify the Alberta Rules of Court as needed. [43] The PCJ’s conclusion that the combination of s 8 of the Provincial Court Act and the ARC confer upon her inherentjurisdiction is incorrect, and unreasonable, for the following reasons. [44] First, the ARC do not confer inherent authority on any of the courts applying them. The provincial Legislature that enacted theARC is constitutionally unable to confer any inherent authority on any court, by rules of court process or otherwise. Only superior courtjudges appointed under s 96 of the Constitution Act, 1867 have inherent jurisdiction: Kourtessis.

Inherent authority is a hallmarkdistinctive of courts of superior jurisdiction. A province cannot create a court of superior jurisdiction: Crevier v AG (Quebec) et al., (SCC), [1981] 2 SCR 220. [45] If the Province of Alberta did purport by legislation to repose in the Provincial Court of Alberta (or in any court), the inherentjurisdiction relied upon by the PCJ, that legislation would be unconstitutional. By concluding she had the inherent powers of a s 96 courtvia provincial legislation, the PCJ in effect concluded the provincial Legislative Assembly created a s 96 court.

In Crevier at p 234 theCourt stated, in the context of provincial privative clauses purporting to oust the review of a s. 96 court (emphasis added): In my opinion, where a provincial Legislature purports to insulate one of its statutory tribunals from any curial review of its adjudicativefunctions, the insulation encompassing jurisdiction, such provincial legislation must be struck down as unconstitutional by reason ofhaving the effect of constituting the tribunal a s. 96 court. [46] A court cannot attribute to itself a jurisdiction that it does not have: L’Alliance des Professeurs Catholiques de Montreal vLabour Relations Board of Quebec, (SCC), [1953] 2 SCR 140 at p 155.

In that case the Court further observed: “Itseems that this proposition is so evident that it has no need of demonstration.” [47] Second, the PCJ does not have inherent jurisdiction expressly or by necessary implication from her other powers. The test forwhether a statutory body enjoys any particular power by necessary implication was articulated by the Alberta Court of Appeal in R vRJH, 2000 ABCA 111, at para 27: Adding provisions to a statute by necessary implication cannot be done on a judicial whim.

The test to be met before provisions may beadded requires “so strong a probability of intention that an intention contrary to that which is imputed...[by the statute]... cannot besupposed”: (Re) Smoky River Coal Ltd. and United Steel Workers of America, Local 7621 et al. (1984), (AB KB), 8D.L.R. (4th) 603 (Alta. Q.B.). No such strong probability of intention exists here. I am unable to find even a possibility of such an intention in any of the materialssubmitted on this application.

No such incidental powers are necessary for the Provincial Court to discharge its mandate in the hearing ofthe Access Application, to use the phrasing of the test in R v Gunn, 2003 ABQB 314, at para 41. [48] The PCJ does have jurisdiction to order mediation in the context of civil claims.

Section 65 of the Provincial Court Act states:“At any time after a dispute note is filed, the Court, or a person authorized by the Court to do so, may refer the action for mediation.”However, the PCJ is not now hearing a civil claim. Those proceed under Part ​​​4 of the Provincial Court Act, to which that

section applies.She was to hear the Access Application, which proceeds pursuant to the EPEA. Even if the Access Application was somehow construedas a civil claim that was proceeding under

Part 4 of the Provincial Court Act, the prerequisite to the PCJ being able to order mediationdoes not exist here as there has not been any dispute note filed. [49] The PCJ does not have such jurisdiction by reason of the law’s modern trend reflecting a “culture shift”. In her comments tocounsel the PCJ alluded to the Supreme Court of Canada decision in Hryniak v Mauldin, 2014 SCC 7, to explain her authority to grantthe Mediation Order.

No doubt she was referring to the exhortations therein that the Alberta Court of Appeal, in Windsor v CanadianPacific Railway Ltd, 2014 ABCA 108 at para 13, summarized this way: ... a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This

shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportionalprocedures tailored to the needs of the particular case. [50] Such purposive comments commending pragmatism and proportionality of course do not justify a statutory court, or any courtfor that matter, imposing an alternate process on parties that is beyond its jurisdiction.

No matter how preferable the PCJ might think itwould be for the parties to negotiate their differences about remediation, rather than leave her with the task of deciding the AccessApplication, the ends do not justify the means. That is, the possible merit to the parties having to negotiate formally does not source thePCJ with the jurisdiction to make it happen. The culture shift does not invite judges to act outside the law or to disregard it.

Inherentjurisdiction does not mean absolute unfettered jurisdiction. [51] Third, even if the inherent jurisdiction of a court of superior jurisdiction is found in the ARC and could be accessed by the PCJvia s 8 of the Provincial Court Act, as a matter of statutory

interpretation s 8 of the Provincial Court Act could not be relied on by thePCJ in this case. The preconditions to it are not present. First, s 8 makes the ARC available “Where [the Provincial Court Act] or theregulations do not provide for a specific practice or procedure of the Court” (emphasis added). In such a vacuum, the ARC can beaccessed to provide the necessary court practice or procedure. However, the mediation ordered by the PCJ is not a court practice orprocedure. It is a private mediation.

Section 8 is to remedy gaps in the provincial court process, not to replace the provincial courtprocess. Second, the specific practice or procedure of the Court found in the ARC must be “necessary to ensure an expeditious andinexpensive resolution of a matter before the Court” (emphasis added). The matter before the Provincial Court was the AccessApplication. The Mediation Order addresses the “remediation protocol”, not access to the subject private lands to effect any remediation.Further, resort to mediation does not expedite the Access Application; it delays any hearing of it.

Third, if it was truly “mediation” thatthe PCJ ordered (that is, a non-binding negotiation as opposed to some form of binding process), a “resolution of [the] matter” was notensured by resort to this replacement practice or procedure. [52] The Land Owners also argued that the PCJ acquired her jurisdiction to order mediation from the parties’ agreement to applythe ARC for their procedures leading up to the hearing of the Access Application. [53] The parties’ agreement did not on its face or by any reasonable implication extend to the extreme of agreeing that the PCJcould thereby order them into mediation.

In any event, parties cannot by agreement repose jurisdiction on a court that it does not have atlaw: Township of Cornwall v Ottawa and New York Rwy Co. (1916), (SCC), 52 SCR 466, 30 DLR 664. ii. No jurisdiction to encroach on the exclusive jurisdiction of the Director [54] The mediation is designed to result in a “joint remediation protocol” (para 6 of the Mediation Order). It is to be developed bya panel of three experts.

The EPEA, however, delegates to the Director the exclusive jurisdiction to determine the remediation protocol:see ss 112 and 128.[8] If there is objection to the Director’s remediation requirements, an appeal lies to the Minister of Environment andParks following a hearing in front of, and ensuing recommendation from, the AEAB.

The AEAB also has the statutory power to direct amatter into mediation in certain situations: Environmental Appeal Board Regulation AR 114/93, s 11.[9] [55] Despite the exclusive authority of the Director to dictate the remediation protocol, the PCJ’s Mediation Order states atparagraph 5: “The mediator has authority to choose the independent expert for the parties failing agreement...” and at paragraph 7: “Themediator has authority to table a list of issues to be addressed in mediation, failing agreement between the parties.” These steps lead tothe determination of a new remediation protocol, different than has been determined by the Director.

Those words just quoted from theMediation Order are words of binding arbitration, not mediation. This is not a process in which the Director could participate in goodfaith, all the while retaining his statutory veto power over the remediation protocol. This particular mediation process would take that outof his exclusive discretion. [56] The Legislative Assembly did not delegate these powers to the Provincial Court of Alberta, but to the Director. The PCJ hasno jurisdiction to encroach on that jurisdiction.

Even the Alberta Court of Queen’s Bench, with its inherent jurisdiction, does not havethat power in these circumstances. It only has supervisory jurisdiction and only after recourse under the statutory regime is exhausted.Disagreements over the Director’s remediation protocol may be appealed to the AEAB and Minister, who are subject to the supervisoryjurisdiction of this Court. But in that capacity this Court at most could only remit an unreasonable remediation protocol back to theDirector or Minister, not rewrite it or direct a panel of three experts to rewrite it. [57] In the

section of these reasons above where I addressed the applicable standard of review, I referred to the JurisdictionalQuestion involving the line of demarcation between two competing specialized tribunals, the Director and the Provincial Court ofAlberta. Both are creations of the Legislative Assembly of Alberta. It delegated the authority to determine the remediation protocol, asthe PCJ called it, exclusively to the Director. The PCJ acted ultra vires when ordering the Director to follow her mediation process fordetermining a new remediation protocol. iii.

No jurisdiction to collaterally attack the Remediation Orders [58] The existing remediation protocol has already been determined by the Director, then challenged by legal process withfinality.[10] The result is the Remediation Orders. The Mediation Order is of sufficient breadth that it could lead to changes to thecontent or requirements of the Remediation Orders. To that extent it constitutes an impermissible collateral attack on the RemediationOrders.

See in this regard: R v Consolidated Maybrun Mines Ltd, (SCC), [1998] 1 SCR 706. [59] Hearing the Access Application under s 250(5) of the EPEA does not give the Provincial Court jurisdiction to re-visit themerits of the Remediation Orders, or otherwise undermine their continued effect. iv. No jurisdiction here to order the Provincial Crown to incur cost

[60] By paragraphs 3 and 4 of the Mediation Order, the PCJ requires the Director, and therefore the Provincial Crown, to spendpublic money. By paragraph 3 the Provincial Crown is required to retain and pay for at least one expert and pay the costs of counsel toparticipate in the mediation. That the counsel the Crown is ordered to involve is in-house (employed full-time by the Crown) is of noconsequence on this point; the compensation terms of his retainer differ from those that would apply to an external counsel butnonetheless represent added cost to the public purse.

By paragraph 4 the Provincial Crown may be required to pay for a portion of themediator’s costs, by way of offset to remediation costs she would incur if granted access and then invoice the Land Owners forreimbursement. [61] As observed by the Alberta Court of Appeal in R v RJH, supra at para 25, there is a “long-standing presumption that, in theabsence of express language, a provincial court cannot order the government to pay.” At para 24 of that decision, the Court stated: In fact, R.J.H.’s proposed

interpretation of s. 3 [of the Young Offender’s Act] represents a substantial departure from the long-standingpresumption that courts are not free to pry open a government’s purse. The government, not the courts, controls the expenditure of publicfunds: Auckland Harbour Board v. The King, [1924] A.C. 318 (P.C.) at 326-27. Any authorization for a provincial court to expend publicfunds must be explicitly conferred: R. v.

Savard (1996), (YK CA), 47 C.R. (4th) 281 at 312 (Y.T.C.A.). [62] No such explicit authority exists in this case that permits the PCJ to craft a mediation process that, as this one does,necessarily obliges the province to spend public funds against its will. Conclusion [63] For these reasons I conclude the PCJ erred, and in any event was unreasonable, in issuing the Mediation Order withoutjurisdiction to do so.

Even if she has inherent jurisdiction to do so, she could not order this particular mediation because it encroaches onthe Director’s exclusive statutory authority, it constitutes a collateral attack on the Remediation Orders and it requires the expenditure ofpublic funds without authority to do so. [64] I therefore quash the Mediation Order. Heard on the 22nd day of November, 2016. Dated at the City of Calgary, Alberta this 3rd day of January, 2017. P.R. Jeffrey J.C.Q.B.A.

Appearances: James Mallet for the Applicant Tom Stepper for the Respondents _______________________________________________________ Corrigendum of the Reasons for Decision of

The Honourable Mr. Justice P.R. Jeffrey _______________________________________________________ 1. The second parenthesis in the name of the Applicant was moved from after ‘Division’ to after ‘Parks’. 2. The name ‘The Provincial Court of Alberta’ was added as a Respondent. 3. The citation line was therefore changed to read ‘Director (EAP) v Alberta (Provincial Court), 2017 ABQB 3.

(5) Where a judge of the Provincial Court is satisfied on evidence under oath that a person has been prevented from entering a place or has been denied access to a place that person is authorized to enter under this section, the judge may issue an order authorizing that person to enter the place for the purpose of carrying out any work or doing any thing that the person is authorized to carry out or do. 245(1) If the person to whom an environmental protection order is directed fails to comply with the environmental protection order, the Director may take whatever action the Director considers necessary to carry out the terms of the order. 1.2

(1) The purpose of these rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost - effective way.

(2) In particular, these rules are intended to be used (

a) to identify the real issues in dispute, (

b) to facilitate the quickest means of resolving a claim at the least expense, (

c) to encourage the parties to resolve the claim themselves, by agreement, with or without assistance, as early in the process as practicable, (

d) to oblige the parties to communicate honestly, openly and in a timely way, and (

e) to provide an effective, efficient and credible system of remedies and sanctions to enforce these rules and orders and judgments.

(3) To achieve the purpose and intention of these rules the parties must, jointly and individually during an action, (

a) identify or make an application to identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense, (

b) periodically evaluate dispute resolution process alternatives to a full trial, with or without assistance from the Court, (

c) refrain from filing applications or taking proceedings that do not further the purpose and intention of these rules, and (

d) when using publicly funded Court resources, use them effectively.

(4) The intention of these rules is that the Court, when exercising a discretion to grant a remedy or impose a sanction, will grant or impose a remedy or sanction proportional to the reason for granting or imposing it. 1.3

(1) The Court may do either or both of the following: (

a) give any relief or remedy described or referred to in the Judicature Act ; (

b) give any relief or remedy described or referred to in or under these rules or any enactment.

(2) A remedy may be granted by the Court whether or not it is claimed or sought in an action.

Section 8 of the Provincial Court Act RSA 2000 c P-31 states: 8(1) The practice and procedure of the Court shall be as provided in this Act and the regulations.

(2) Where this Act or the regulations do not provide for a specific practice or procedure of the Court that is necessary to ensure an expeditious and inexpensive resolution of a matter before the Court, the Court may (

a) apply the Alberta Rules of Court , and [...] (

b) has all the power and authority vested by or under any Act of the Legislature in a magistrate or 2 justices of the peace sitting together, […] (

b) restore the environment to a condition satisfactory to the Director .

128(1) A person responsible for the contaminated site may (

a) prepare for the approval of the Director a remedial action plan in respect of the contaminated site, and (

b) enter into an agreement with the Director, with other persons responsible for the contaminated site, or with both the Director and other persons responsible, providing for the remedial action to be taken in respect of the contaminated site and providing for the apportionment of the costs of taking that action.

(2) An agreement under subsection (1)(

b) to which the Director is not a party is not valid unless it is approved by the Director . […] (emphases added) (

a) mediating a resolution of the subject matter of the notice of appeal, or (

b) determining any of the matters referred to in

section 13.