By: Alice Woolley
PDF Version: Still Just the Facts: Applying the Bright Line Rule
Case Commented On: Statesman Master Builders v Bennett Jones LLP, 2015 ABCA 142
In a unanimous judgment the Alberta Court of Appeal has reversed a decision by Justice Macleod removing Bennett Jones LLP as counsel for its longstanding client Matco Investments Ltd. on the basis of a conflict of interest (Justice Macleod’s decision is here). In a blog on that earlier judgment I suggested that the decision indicated the importance of the facts to the outcome in conflicts cases. While the firm had taken significant steps to manage the conflict, the case management judge may have been influenced by the fact it had not been as absolutely candid as it could be:
The unfortunate thing for the firm here is that in many ways it had been candid with Statesman. Its e-mail regarding the advance consent was pretty blunt as to what it was trying to do. But the lesson may be that there is very little judicial tolerance for an absence of candour in situations of conflict; a little bit of candour won’t do (“The more things change…”)
By: Martin Olszynski
PDF Version: Environmental Laws as Decision-Making Processes (or, Why I am Grateful for Environmental Groups this Earth Day)
Event commented on: Earth Day
This past weekend, as part of the Canadian Institute for Resource Law’s “Saturday Morning at the Law School” series, I gave a free public lecture on the basic nature and features of Canadian environmental law. April 22 being Earth Day, I thought I would try to capture some of that discussion in a blog post. My starting point was that while Canadians may assume that their environmental laws consist of standards and limits designed to protect the natural environment, the reality is that many of our most important environmental laws simply set out a process for decision-making, where environmental considerations have varying degrees of importance. As further set out in this post, this reality has important implications for the state of the environment and the mechanics of government accountability, which in turn suggest a fundamental and indispensable, if also imperfect, role for environmental groups in this context.
By: Kathleen Mahoney
PDF Version: Keeping Faith Out of the Public Square: Is Calgary City Hall Offside?
Case Commented On: Mouvement laïque québécois v Saguenay (City), 2015 SCC 16
O God, author of all wisdom, knowledge and understanding. We ask Thy guidance in our consultations to the end that truth and justice may prevail, in all our judgments. Amen. (Prayer recited at Calgary City Council meetings)
What is wrong with this invocation? The Supreme Court of Canada would say nothing, as long as it is not invoked at City Hall to open meetings. In its recent decision in Mouvement laïque québécois v Saguenay (City), 2015 SCC 16 [Saguenay], the Court seems to have closed all the doors to future prospects of religious faith playing a role in the public square. Calgary’s mayor Naheed Nenshi disagrees, saying that there is room in the public square for faith, and that Calgary City Hall will explore ways of getting around the ruling. (Calgary Herald, April 15, 2015). Will this be possible? Constitutionally speaking, it will be very difficult.
By: Lisa Silver
PDF Version: Does the Stinert Decision Signal the End of the Preliminary Inquiry?
Case Commented On: Regina v Stinert, 2015 ABPC 4
For years the efficacy of the preliminary inquiry has been questioned, studied and pronounced upon by lawyers, government officials, and the courts. Despite debate and amendments, the inquiry still exists as the legislative “shield” between the accused and the Crown, protecting, as Justice Estey explains in the 1984 majority decision of Skogman v The Queen,  2 SCR 93 (at page 105), “the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process.” However, the preliminary inquiry is at risk. Both levels of government see no value in the procedure, only costs. The courts, since Skogman, have followed suit finding the preliminary inquiry irrelevant and contrary to the efficient and effective administration of justice. Certainly, the recent Alberta Provincial Court decision in Regina v Stinert, 2015 ABPC 4 reflects this view and, as argued in this post, may signal the end of the preliminary inquiry.
By: James Coleman & Martin Olszynski
PDF Version: May Provinces (or States) Limit Imports on the Basis of Greenhouse Gas Emissions Elsewhere?
Report Commented On: Canada’s Ecofiscal Commission, The Way Forward
Last week, a group of economists known as “Canada’s Ecofiscal Commission” issued a much-discussed report that urged Canada’s individual provinces to drive Canadian climate policy by adopting their own carbon pricing schemes. But the report barely touched on one of the key challenges for provincial or state regulation without the support of the national government: what may places that price carbon do to avoid losing industry to places that don’t?
By: Theresa Yurkewich
PDF Version: Uber Lives to Ride Another Day
Case Commented On: Edmonton (City) v Uber Canada Inc., 2015 ABQB 214
As a result of Uber’s activation in Edmonton, the City of Edmonton brought an application for a statutory interlocutory injunction, enjoining Uber Canada Inc. (“Uber Canada”) from conducting business in Edmonton without a valid business license or taxi broker license. The City did not name Uber B.V. or Rasier Operations B.V. (collectively, “Uber Companies”), the larger corporate affiliates associated with Uber Canada, in the action. In short, the City’s application was dismissed as it failed to establish a clear and continuing breach of the relevant Bylaws by Uber Canada, and it neglected to name the right entity to be enjoined (see Edmonton (City) v Uber Canada Inc., 2015 ABQB 214). This was one of the first legal challenges to the crowd favoured App within Canada and it will likely have a wide impact on the development and approach of Uber in other municipalities.
By: Nigel Bankes
PDF Version: Summary Judgment on Contested Amounts Owing under Natural Gas Processing and Related Agreements
Case Commented On: SemCAMS ULC v Blaze Energy Ltd, 2015 ABQB 218
This is an important judgment on the interplay between the rules for the interpretation of contracts and the post Hryniak law on summary judgment: see Hryniak v Mauldin, 2014 SCC 7. The short version of the holding is that a producer cannot avoid summary judgment for outstanding amounts owing under a natural gas processing or related agreement on the basis that the producer has called for an audit of the operator’s accounts or otherwise disputes the amounts owing – at least where the agreements in question clearly oblige producers to settle invoices promptly, notwithstanding the existence of a dispute as to whether the invoices properly reflect the amounts owing.
By: Linda McKay-Panos
PDF Version: Alberta Arbitration Decision Embraces Broadening Trend on Family Status Discrimination
Case Commented On: SMS Equipment Inc v Communications, Energy and Paperworkers Union, 2015 ABQB 162
The definition of discrimination on the basis of family status has recently been extended in federal and provincial human rights law to mean not only one’s relationship to another person, but also to include recognition of childcare responsibilities. The leading case, Canada v Johnstone, 2014 FCA 111, was discussed in previous ABlawg posts (see here). The decision SMS Equipment Inc v Communications, Energy and Paperworkers Union, 2015 ABQB 162, demonstrates that Alberta labour arbitrators have joined the “family”.
SMS Equipment applied for judicial review of the arbitration award of Arbitrator Lyle Kanee. Arbitrator Kanee concluded that the employer, SMS, must accommodate Ms. Cahill-Saunders, a single mother of two children. She first worked as a labourer for SMS, and was required to work rotating seven night and seven day shifts, after moving from Newfoundland to Fort McMurray. Cahill-Saunders had one son when she was hired, and he remained in Newfoundland with his grandmother for the first nine months she worked in Fort McMurray, joining her later. At that time, the baby’s father lived in Fort McMurray and provided some childcare while Cahill-Saunders worked, although they did not cohabit (at para 5).
By: Nigel Bankes
PDF Version: Crown Oil Sands Dispositions and the Duty to Consult
Case Commented On: Buffalo River Dene Nation v Ministry of Energy and Resources and Scott Land and Lease Ltd, 2015 SKCA 31
The Saskatchewan Court of Appeal has confirmed Justice Currie’s decision (discussed here) to the effect that the grant of an oil sands exploration permit in Saskatchewan does not trigger the Crown’s duty to consult principally on the grounds that that there is no potential for conflict between the rights conferred by the permit and the First Nation’s treaty rights. This is because the permit alone gives the permittee no right to use the surface while the First Nation (at para 88) “does not advance here a treaty right or Aboriginal claim to subsurface rights or rights exercisable in relation to the subsurface of Treaty 10 lands.” Furthermore, at the time that the permit is granted there is no project on which to consult about; this will only become apparent when the permittee (if ever) develops a plan for its proposed exploration or development of the underlying minerals which requires surface access – at which time consultation will occur. And (at para 92) “It is at this point that the Crown and Buffalo River DN would have something meaningful, in the sense of quantifiable, to consult about, to reconcile.” Until then there is no project.
By: Nigel Bankes
PDF Version: The Bilcon Award
Award Commented On: The Claytons and Bilcon v Canada, NAFTA, UNCITRAL Rules, 17 March 2015
Once again Canada has lost an important investor/state arbitration under Chapter 11 of NAFTA (for a post on Canada’s last reversal (Mobil and Murphy), also characterized by a strong dissent, see Regulatory Concussion). The Clayton family and Bilcon Inc (US investors, the claimants) were hoping to develop a quarry in Digby Neck, Nova Scotia. The project was sent to a joint federal/provincial environmental review panel (JRP) by both levels of government. The JRP recommended rejection and both governments accepted that recommendation, and thus the project died. The claimants took the view that the JRP process was badly flawed. They were of the opinion that the panel had recommended rejection on the basis that the project would be inconsistent with “community core values” and furthermore that the panel had deliberately failed to identify any mitigation measures that might make the project acceptable. However, instead of seeking judicial review of the JRP in the Federal Court the claimants commenced this NAFTA arbitration. They have been rewarded with a majority decision in their favour. The majority (Judge Bruno Simma and Professor Bryan Schwartz) found that Canada had breached both Article 1105 (minimum standard of treatment (MST) – even as constrained by the Interpretation Note (2001) issued by NAFTA contracting parties here) and Article 1102 (national treatment standard). The matter will now go back to the tribunal for it to assess damages. Professor Donald McRae delivered a strong dissent contending that the majority had turned what was nothing more than a possible breach of domestic law into an international wrong. I have nothing to add to McRae’s excellent critique (and see also Meinhard Doelle’s post on the decision); my purpose here is to review some of the implications of the Award from a number of different perspectives.