Bear Hills Charitable Foundation et al. v. Gaming and Liquor Commission (Alta.), 2008 ABQB 766

• Judge: Ross, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 18, 2008
• Citations: 2008 ABQB 766;(2008), 463 A.R. 276 (QB)

Bear Hills v. Gaming & Liquor (2008), 463 A.R. 276 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JA.035

Bear Hills Charitable Foundation and Louis Bull Tribe No. 439 (applicants) v. Alberta Gaming and Liquor Commission (respondent)

(0703 15540; 2008 ABQB 766)

Indexed As: Bear Hills Charitable Foundation et al. v. Gaming and Liquor Commission (Alta.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Ross, J.

December 12, 2008.

Summary:

The applicants applied for judicial review of a decision of the Alberta Gaming and Liquor Commission that allowed the application of the Samson Cree Nation for a casino facility licence to continue.

The Alberta Court of Queen's Bench allowed the application, quashed the decision and remitted the matter to the Commission for reconsideration.

Administrative Law - Topic 550

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Effect of lack of - [See second Gaming and Betting - Topic 1515 ].

Gaming and Betting - Topic 1515

Casinos - Regulation - Judicial review (incl. standard of review) - The applicants submitted a casino facility application in November 2002 - The Samson Cree Nation had also submitted a casino facility application - The Alberta Gaming and Liquor Commission established an eight step process in a casino facility application - In April 2004, the Commission informed the applicants that Samson's application was proceeding to Step 7 (investigation) and that their application was not proceeding - Samson was directed to complete and return the investigation package by May 28, 2004 - That deadline was extended to July 31, 2004 - There followed a delay of over 2.5 years - A third deadline given on February 1, 2007 called for submission of information by March 30, 2007 - This deadline was again extended on April 12, 2007, to October 31, 2007 - On November 22, 2007, the deadline for submission was extended to January 8, 2008 - The applicants applied for judicial review of the November 22, 2007, decision - The Alberta Court of Queen's Bench stated that "[h]aving reference to the weak privative clause in s. 128.1 of the [Gaming and Liquor Act (GLA)], the purpose of the Board as set out in s. 12 of the GLA (which provides for the Board's responsibility for ensuring that the duties of the Commission are properly carried out, establishing the policies of the Commission, and making decisions respecting licences and registrations), the discretionary nature of the power of the Board to extend timelines and the Board's responsibility for and expertise in overseeing the gaming industry in Alberta; as well as the parties' agreement, I conclude that reasonableness is the appropriate standard of review for the Board's November 22, 2007 decision to extend the timeline for the Step 7 (Investigation) stage of the Samson casino licence application process" - See paragraphs 42 to 47.

Gaming and Betting - Topic 1515

Casinos - Regulation - Judicial review (incl. standard of review) - The applicants submitted a casino facility application in November 2002 - The Samson Cree Nation had also submitted a casino facility application - The Alberta Gaming and Liquor Commission established an eight step process in a casino facility application - In April 2004, the Commission informed the applicants that Samson's application was proceeding to Step 7 (investigation) and that their application was not proceeding - Samson was directed to complete and return the investigation package by May 28, 2004 - That deadline was extended to July 31, 2004 - There followed a delay of over 2.5 years - A third deadline given on February 1, 2007 called for submission of information by March 30, 2007 - This deadline was again extended on April 12, 2007, to October 31, 2007 - On November 22, 2007, the deadline for submission was extended to January 8, 2008 - The applicants applied for judicial review of the November 22, 2007, decision - The Alberta Court of Queen's Bench allowed the application - No reasons were given for the decision to extend the time for the submission - In the circumstances, there was no obviously justifiable or acceptable reason for the November 22, 2007 decision to further extend the time for the submission of required information - The failure by the Commission to provide reasons for its decision, in circumstances where those reasons were not evident, meant that the decision could not stand up to a somewhat probing examination, and failed to ensure justification, transparency and intelligibility in the decision-making process - It had also not been shown that the outcome was in a range of acceptable outcomes which were defensible in respect of the facts and law - See paragraphs 48 to 56.

Gaming and Betting - Topic 1875

Regulation - Licensing and registration - Judicial review and appeal - [See both Gaming and Betting - Topic 1515 ].

Cases Noticed:

Robertson v. Edmonton Chief of Police et al. (2003), 339 A.R. 169; 312 W.A.C. 169; 2003 CarswellAlta 1402; 2003 ABCA 279, refd to. [para. 33].

Workum v. Alberta Securities Commission et al., [2006] A.R. Uned. 875; 2006 CarswellAlta 770; 2006 ABCA 181, refd to. [para. 33].

Syncrude Canada Ltd. v. Human Rights and Citizenship Commission (Alta.) et al. (2008), 432 A.R. 333; 424 W.A.C. 333; 90 Alta. L.R.(4th) 1; 2008 CarswellAlta 733 (C.A.), refd to. [para. 33].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81; 1990 CarswellSask 146, refd to. [para. 34].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 CarswellBC 1860; 2000 SCC 44, refd to. [para. 35].

Paterson et al. v. Hamilton et al. (1996), 181 A.R. 382; 116 W.A.C. 382; 39 Alta. L.R.(3d) 37; 1996 CarswellAlta 339 (C.A.), refd to. [para. 37].

Stirrat Laboratories Ltd. v. Health Sciences Association (Alta.) (1996), 1 Admin. L.R.(3d) 200; 1996 CarswellAlta 1103 (Q.B.), refd to. [para. 38].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 291 D.L.R.(4th) 577; 2008 CarswellNB 124, refd to. [para. 43].

Siksika Nation v. Walji Holdings Ltd. et al. (2004), 350 A.R. 324; 2004 CarswellAlta 343; 2004 ABQB 37, refd to. [para. 44].

Mounsef v. Gaming and Liquor Commission (Alta.), 2003 CarswellAlta 925; 2003 ABQB 525, refd to. [para. 44].

Mo's Sports Parlour (2000) Ltd. v. Gaming and Liquor Commission (Alta.) (2006), 413 A.R. 288; 2006 CarswellAlta 1746 (Q.B.), refd to. [para. 44].

Alberta Liquor Store Association et al. v. Gaming and Liquor Commission (Alta.) et al. (2008), 450 A.R. 1; 2008 CarswellAlta 1318; 2008 ABQB 595, refd to. [para. 44].

International Association of Machinists and Aerospace Workers, Local Lodge No. 99 v. Finning International Inc. et al. (2008), 446 A.R. 20; 442 W.A.C. 20; 2008 ABCA 400, refd to. [para. 49].

Mills v. Workplace Safety and Insurance Appeals Tribunal (Ont.) (2008), 237 O.A.C. 71; 2008 ONCA 436, refd to. [para. 49].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 50 Admin. L.R.(2d) 199, refd to. [para. 50].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 48 Admin. L.R.(3d) 33; 2003 SCC 20, refd to. [para. 51].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 14 Admin. L.R.(3d) 173, refd to. [para. 51].

Psychologist Y v. Board of Examiners in Psychology (N.S.) (2005), 236 N.S.R.(2d) 273; 749 A.P.R. 273; 2005 CarswellNS 383; 2005 NSCA 116, refd to. [para. 58].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (1998) (2008 Looseleaf Update), vol. 1, pp. 1-19 to 1-20 [para. 33].

Counsel:

Robert L. Duke, Q.C., and G. James Thorlakson (Miller Thomson LLP), for the applicants;

Sean McDonough (Alberta Justice), for the respondent.

This application was heard on November 18, 2008, by Ross, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on December 12, 2008.