PDF version: Intersection Between Different Legal Areas
Case commented on: Basha v Lofca, 2013 ABQB 159.
It is quite common for certain legal areas to intersect with others in cases that come before the courts. In the recent Alberta Court of Queen’s Bench case of Basha v Lofca, this intersection arose within the areas of immigration and family law.
PDF version: Do Covenants to Compensate for Designation as an Historical Resource Run with the Land?
Cases Considered: Equitable Trust Company v Lougheed Block Inc, 2013 ABQB 209.
The foreclosure proceedings taken with respect to the historic Lougheed Building at 604 – 1 Street S.W. in Calgary have generated a number of legal controversies. I have previously blogged on interest issues in the “Perennial Problem of Section 8 of the Interest Act” and on security deposits matters in “Who Bears the Loss for Converted Security Deposits?” This latest judgment — a decision of Mr. Justice Paul R. Jeffrey — concerns compensation paid by the City of Calgary for the decrease in the value of the building when it was designated an “historical resource” under the Historical Resources Act, RSA 2000, c H-9. A Lougheed Building Rehabilitation Incentive Agreement dated September 2006 provided that total compensation would be $3,400,000 and it would be paid in fourteen annual installments of $227,000 each and a final fifteenth payment of $222,000. The question was who was to receive the balance of the annual installments. Would it be The Lougheed Block Inc (LBI), the owner of the building who entered into the Incentives Agreement with the City and did the required rehabilitation work? Or would it be 604 – 1st Street S.W. Inc (604), the purchaser on the judicial sale after LBI defaulted on their mortgage with Equitable Trust Company and Equitable Trust foreclosed. The outcome depended on the answers to one property issue and one (far less interesting) contract issue.
PDF version: The Role of the “Noble Savage” in Environmental Social Activism
Context of discussion: Enbridge Northern Gateway Pipelines Project
This blog is to discuss what I call the “The Role of the Noble Savage” in the pursuit of environmental justice through social activism. I will use the Enbridge Northern Gateway Pipelines Project to provide context.
PDF version: Consequences of being an OPCA Litigant?
Case commented on: ANB v Hancock, 2013 ABQB 97.
ANB v Hancock is Associate Chief Justice John D. Rooke’s second written judgment about an Organized Pseudolegal Commercial Argument (OPCA) litigant. As summarized by Justice Rooke in ANB (at para 15), “OPCA concepts are legally incorrect schemes marketed and promoted by a collection of conmen [“OPCA gurus”] that claim to allow a person to avoid or impose legal obligation outside of recognized legal processes.” These concepts and schemes are all associated with OPCA indicia, which are “unusual motifs that are unique to or strongly associated with OPCA concepts and schemes” (at para 16). ANB builds upon Justice Rooke’s ground-breaking decision in Meads v Meads, 2012 ABQB 571. Like Meads, ANB arose in the family law context, although Meads arose out of a divorce and matrimonial property action commenced by Mrs. Meads, and ANB arose from the seizure of A.N.B.’s two children by Alberta Family Services and a subsequent order granting permanent guardianship of the children to the province. ANB both applies and extends Meads. It applies it by following through on some principles set out in Meads, including the provision of an explanation of court costs, characterized in Meads (at paras 637-638) as “a crucial aspect in the ‘limited duty’ a judge owes to these self?represented litigants.” It extends Meads by allowing Crown counsel to hide their identities in the face of conduct by A.N.B. which is the subject of criminal charges.
PDF version: Summary Judgement to Recover Monies Owing Under a Unit Operating Agreement
Cases Considered: Canada Capital Energy Corporation v Barracuda Energy Ltd, 2013 SKQB 134.
This is a nice, straightforward case in which the court granted summary judgment for amounts owing under a unitization agreement.
PDF version: From Regulatory Chill to Regulatory Concussion: NAFTA’s Prohibition on Domestic Performance Requirements and an Absurdly Narrow Interpretation of Country Specific Reservations
Award commented on: Mobil Investments Canada Inc. and Murphy Oil Corporation v Canada, ICSID Case No ARB(AF)/07/4. Decision on Liability and Principles of Quantum, dispatched to the parties, May 22, 2012, redacted version released in the fall of 2012. Both the majority award (206pp) and a partial dissenting award (Professor Philippe Sands QC) are available here.
Case commented on: Hibernia Management and Development Company Ltd. v Canada-Newfoundland and Labrador Offshore Petroleum Board, 2008 NLCA 46 (CanLII)
In this Award a NAFTA Tribunal (by a Majority) found that Canada was in breach of the prohibition on domestic performance requirements of Article 1106 of NAFTA when the Canada Newfoundland Offshore Petroleum Board (CNOPB or Board) established and imposed a research investment target (the 2004 Guidelines) on operators working on the Newfoundland continental shelf. In doing so the Majority of the Tribunal ruled that Canada could not rely upon its country specific reservation. While Canada’s reservation protected the performance requirements that were in place at the time that NAFTA was entered into it did not protect the 2004 Guidelines. In reaching this conclusion the Majority severely constrains the ability of the host state to adopt new subordinate measures (e.g. regulations, guidelines and policies) to give effect to a reserved power. In effect, the Majority has adopted a one-way ratchet in which any subordinate measure adopted by a state that does not fully exploit the entire space offered by the text of a reservation may make it impossible for the host state to recover the lost ground. This, as the Dissent lucidly demonstrates, is an unreasonably narrow construction of the power of each NAFTA state to take a reservation to its general commitment not to impose domestic performance requirements on investors.
PDF version: The Harm of Hate Speech: Are Media Responses Knee Jerk, Impulsive and Thoughtless?
Case commented on: Saskatchewan Human Rights Commission v Whatcott, 2013 SCC 11 (CanLii)
It is difficult to find balanced or thoughtful responses from the media on the subject of hate speech harms or hate speech laws. Oxford Professor Jeremy Waldron, in his book, The Harm in Hate Speech writes, “The philosophical arguments about hate speech are knee-jerk, impulsive and thoughtless.” This article argues that media responses to hate speech are likewise.
PDF version: Time to proclaim the compulsory unitization provisions of the Oil and Gas Conservation Act
Decision commented on: Butte Energy Inc. Application for Special Oil Well Spacing, Chigwell Field, 2013 ABERCB 006.
Regular readers of this blog will know that this is not the first time that I have used this forum to call for the proclamation of the compulsory unitization provisions of the Oil and Gas Conservation Act (OGCA) RSA 2000, c O-6 (see here) but the facts surrounding this decision of the Energy Resources Conservation Board (ERCB, or Board) present a particularly compelling case for compulsory unitization to deal with holdouts which might convince even the sceptics..
PDF version: Under the Influence: The Alberta Court of Appeal and the Test for Discrimination
Cases commented on: Wright v College and Association of Registered Nurses of Alberta (Appeals Committee), 2012 ABCA 267, leave to appeal denied, 2013 CanLII 15573 (SCC); Lethbridge Regional Police Service v Lethbridge Police Association, 2013 ABCA 47, leave to appeal application filed, April 15, 2013, SCC
On March 28, 2013 the Supreme Court of Canada denied leave to appeal in the case of Wright v College and Association of Registered Nurses of Alberta. Linda McKay-Panos blogged on that case here; it involves a claim of discrimination by two nurses with opioid addictions who were disciplined by their professional association after stealing narcotics from their employers. A majority of the Alberta Court of Appeal (per Slatter, JA, Ritter JA concurring) held that there was no discrimination and thus no duty to accommodate the nurses, using an approach that focused on stereotyping, prejudice and arbitrariness. Writing in dissent, Justice Berger undertook a traditional prima facie discrimination analysis and decided that the nurses had experienced discriminatory treatment. This split reflects a wider uncertainty about the appropriate test for discrimination under human rights law, and in particular the extent to which the approach to discrimination under section 15 of the Charter should have an influence. In the Supreme Court’s most recent human rights judgment, Moore v British Columbia (Education), 2012 SCC 61 (per Abella J), the Court declined to explicitly clarify the proper test, yet implicitly indicated that the traditional prima facie approach to discrimination is correct. Perhaps that is why the Court decided not to hear the appeal in Wright, which was decided before Moore. A more recent Court of Appeal decision, Lethbridge Regional Police Service v Lethbridge Police Association, was decided after Moore, yet Justices Martin, Watson and Slatter maintained a focus on stereotyping as the defining feature of discrimination. Worse, Lethbridge Police seems to impose additional burdens on complainants in human rights cases. This post will critically consider the Alberta Court of Appeal’s approach to discrimination and argue that the Supreme Court should grant leave to appeal in Lethbridge Police to clarify the proper test.