Access to Justice: The DIY Index

By: John-Paul Boyd

Editor’s Note: John-Paul Boyd, the Executive Director of the U of C-affiliated Canadian Research Institute for Law and the Family (CRILF), started a new blog in August on Access to Justice in Canada. John-Paul will be cross-posting on ABlawg from time to time and blogging on family law decisions (see also his blog JP Boyd on Family Law). This first post is an index to five separate entries on DIY access to justice approaches originally posted on Access to Justice in Canada.

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DIY #1: Write and share plain-language information on the law

Prepare and distribute handouts with clear information about the law and dispute resolution processes. Handouts could cover topics including the substantive law on different issues, management of common litigation tasks and tips for successful mediation. Leave them in a brochure rack in your reception area; give copies to colleagues and to pro bono and community legal clinics; give them to social service providers such as abused women’s centres and immigrant settlement agencies.

DIY #2: Work with others and other’s work

Connect with a few of the social service agencies in your neighbourhood, find out where the holes are in their library of legal resources, and fill them. Think and write about the law in a way that addresses the unique legal needs and realities of each group’s target population. Work with community media and larger social service groups; these generally have a broader reach and better funding, and the work you do often goes much further.

DIY #3: Talk to your community

Get in touch with the libraries, community centres and social service groups in your area and arrange to provide one or more public lectures; public talks are a rewarding, enriching and engaging way of improving access to justice. The range of topics you can address is unlimited and could include introductions to court processes, alternatives to court, landlord tenant law, wills and estates, the basics of family law, and anything else that could of interest to the people you are talking to. Providing handouts gives the community group and the people at your talk an additional resource.

DIY #4: Unbundle your services, reinvent your billing model

Working on an unbundled basis is a great way to maintain a remunerative practice while offering legal services that are more accessible than services offered on a comprehensive, billable-hour basis, however few lawyers offer such services. Unbundling gives clients the services they select on fixed or predictable prince and within a defined time period; it gives lawyers a less stressful practice with a lower likelihood of mounting accounts receivable.

DIY #5: Do more work on a flat rate basis

Offering services on a flat rate basis is another way to maintain a profitable practice while improving access to justice. Under this model, the client can pick and choose which and how much of a lawyer’s services he or she will buy, at a fixed rate which is determined up front. The client and the lawyer are protected from the client’s frustration if a legal issue is not resolved before his or her resources are exhausted. The lawyer gets a file with a fixed scope of required labour and a minimal potential of becoming a dog file, payment up front and a minimal likelihood of collections issues, and a file free from the tyranny of recording time.

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The Relevance of Sattva for Appeals from Arbitration Awards in Alberta

By: Jonnette Watson Hamilton

PDF version: The Relevance of Sattva for Appeals from Arbitration Awards in Alberta

Case commented on: Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53 (CanLII)

The Supreme Court’s decision in Sattva Capital Corp v Creston Moly Corp has quite rightly received a great deal of attention. It has attracted notice in contract law circles for changing the law by holding that contractual interpretation involves questions of mixed fact and law, and not questions of law (see e.g. “Contract interpretation is no longer a question of law”, “A blockbuster decision in contractual interpretation” and “SCC issues ‘big change’ to contract law – Sattva gives last word to trial judges, arbitrators”). And, because the precedent-setting decision arose from an arbitration hearing in British Columbia, it has also attracted commentary more focused on the arbitral aspects (see e.g. “Finally, the Supreme Court of Canada puts some finality into Arbitrations” and “Supreme Court of Canada Limits the Right to Appeal Commercial Arbitral Decisions on Issues of Contractual Interpretation”). Because the British Columbia arbitration legislation that facilitated and regulated the arbitration in Sattva is unlike that in the rest of common law Canada, I will focus on the arbitration aspects of the decision and then explore the difference the Sattva decision may make in arbitrations in Alberta (and in Ontario, Saskatchewan, New Brunswick, Prince Edward Island, Manitoba and Nova Scotia, all of which also adopted the Uniform Law Conference of Canada’s Uniform Arbitration Act (1990)).

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What happens when A sells B a working interest in the thermal or enhanced production from an oil and gas property and A or its successors in interest continue with primary production?

By: Nigel Bankes

PDF version: What happens when A sells B a working interest in the thermal or enhanced production from an oil and gas property and A or its successors in interest continue with primary production?

Case Considered: IFP Technologies (Canada) v Encana Midstream and Marketing, 2014 ABQB 470

What happens when A sells B a working interest in the thermal or enhanced production from an oil and gas property and A or its successors in interest continue with primary production? This was the issue at the heart of this decision. The answer is that B gets shafted; B should have taken better steps to protect itself rather than simply assuming that all future production from the property would take the form of enhanced or thermal production.

In the course of his lengthy 73 page judgement Chief Justice Neil Wittmann (acting in place of Justice Ron Stevens (deceased)) addressed a number of questions of oil and gas law which will be of interest to the energy bar including the following: (1) What property interest did IFP acquire? (2) What is the test for determining whether a working interest owner has reasonable grounds for refusing consent to an assignment of shared interest lands under the 1990 CAPL Operating Procedure? (3) What is the legal position where a working interest purports to withhold consent and the Court subsequently determines that the withholding of consent was unreasonable? (4) Did the development of the property through primary production techniques substantially nullify the benefit for which IFP (B) had bargained so as to amount to a breach of contract? (5) Assuming that there was a breach of contract how should damages be assessed? (6) Assuming liability should any claim for damages be capped by a contractual agreement between the parties? Continue reading

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Rectification of Conservation Easement Agreements on the Basis of a Mistake in Integration: Underlying Principles

By: Evaristus Oshionebo

PPF Version: Rectification of Conservation Easement Agreements on the Basis of a Mistake in Integration: Underlying Principles

Case Commented on: Nature Conservancy of Canada v Waterton Land Trust Ltd, 2014 ABQB 303

This case raises a myriad of legal issues covering disparate areas of the law. For the purpose of this post, only those facts relevant to the issue of rectification of the conservation easement agreement will be discussed. Other aspects of the facts can be found in Jonnette Watson Hamilton’s earlier post here. Continue reading

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Punitive Damages Now Possible in Alberta in Fatal Accident Actions

By: Iwan Saunders

PDF Version: Punitive Damages Now Possible in Alberta in Fatal Accident Actions

Case commented on: Steinkrauss v Afridi, 2013 ABCA 417, as clarified at 2014 ABCA 14

As a result of Steinkrauss v Afridi in the Court of Appeal, punitive damages are now possible in Alberta in fatal accident actions.  This post looks at three things: the background to Steinkrauss,what the case means for this and future claimants, and why the Alberta Legislature should fall in line with Steinkrauss and change the law regarding survival actions.

Background to Fatal Accident Actions and Claims for Punitive Damages

At common law survivors had no right of action whatsoever for their own losses through another’s wrongful death, a rule originally established in England in Baker v Bolton in 1808, 170 ER 1033 (KB), where a husband failed to recover anything for the death of his wife in a stagecoach accident.  Eventually the rule was reformed, by a statute colloquially known after its sponsor as Lord Campbell’s Act: An Act for Compensating the Families of Persons Killed by Accidents, 1846, 9 & 10 Vict, c 93.  This Act was immediately imported by the then province of Canada, 10 & 11 Vict, c 6 (1847), and now, in one form or another, all Canadian provinces and territories have similar legislation of their own.  [For analysis of this legislation and of fatal accident actions generally, see my chapters in Ken Cooper-Stephenson, Personal Injury Damages in Canada (2d edition, Carswell 1996), chapters 10 and 11 (631-49, and 651-720).]

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Grassy Narrows, Division of Powers and International Law

By: Nigel Bankes

PDF Version: Grassy Narrows, Division of Powers and International Law

Case commented on: Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48

This post discusses two issues arising from the Supreme Court’s decision in Grassy Narrows. The post first considers the implications of the Court’s conclusion that the doctrine of interjurisdictional immunity does not apply in a case where a province infringes the treaty right to hunt leaving the treaty party with no meaningful right to hunt. Second the post argues that the Court’s conclusion that a provincial government may be able to justify an infringement of hunting rights of this nature is inconsistent with Canada’s obligations under international law. Continue reading

Posted in Aboriginal, Constitutional, International Law | 2 Comments

Canada and Nova Scotia Finalize Equivalency Agreement on the Control of Greenhouse Gas Emissions in the Electricity Sector

By: Nigel Bankes

PDF Version: Canada and Nova Scotia Finalize Equivalency Agreement on the Control of Greenhouse Gas Emissions in the Electricity Sector

Documents commented on:  Agreement on the Equivalency of Federal and Nova Scotia Regulations for the Control of Greenhouse Gas Emissions from Electricity Producers in Nova Scotia;Proposed Order in Council Declaring that the Reduction of Carbon Dioxide Emissions from Coal-fired Generation of Electricity Regulations do not apply in Nova Scotia, Canada Gazette vol 148 (2014), June 28, 2014 and the accompanying Regulatory Impact Analysis Statement

This Agreement is the first greenhouse gas (GHG) equivalency agreement to be finalized between Canada and a province. The Agreement and the accompanying draft Order in Council will serve to suspend the application of Canada’s Reduction of Carbon Dioxide Emissions from Coal-Fired Generation of Electricity Regulations, SOR/2012-167 (the federal Coal Regulations or the CFGRs) made under s.93 of the Canadian Environmental Protection Act, 1999, SC 1999, c 33 (CEPA, 1999) in the province of Nova Scotia. For comment on the CFGRs see the post by Astrid Kalkbrenner here. The Agreement will be of considerable interest to other jurisdictions (including Alberta) which are negotiating equivalency agreements with Canada to avoid the application of federal GHG regulations. While a draft of the Agreement has been available for a couple of years (see here, and for a very short summary of the two supportive comments received see here), and there are very few changes between the draft and the final version, what is new is the release of the Regulatory Impact Analysis Statement (RIAS) which casts some light on the methodology that the federal government will apply in assessing equivalency.

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Posted in Climate Change, Energy, Environmental | 1 Comment

Competition for Underground Disposal Space

By: Nigel Bankes

PDF Version: Competition for Underground Disposal Space

Decision commented on: Alberta Energy Regulator, Canadian Natural Resources Limited, Application for Disposal, Lloydminster Field, 2014 ABAER 008

Previous posts on ABlawg have commented on sub-surface resource conflicts especially as between gas storage operations and oil and gas production: see Kallisto # 1 here and Kallisto # 2 here. This decision involving Canadian Natural Resources Limited (CNRL) illustrates that there may also be competition for good disposal sites and that the disposal operations of one party may affect the disposal operations of another party. While this decision involves the use of pore space for water disposal operations we can also anticipate competition for the use of pore space for carbon dioxide disposal purposes (i.e. carbon capture and storage, CCS) if that technology rolls out as anticipated to mitigate Alberta’s greenhouse gas emissions.

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What Does Radical Title Add to the Concept of Sovereignty?

By: Nigel Bankes and Jonnette Watson Hamilton

PDF Version: What Does Radical Title Add to the Concept of Sovereignty?

Case commented on: Tsilhqot’in Nation v British Columbia, 2014 SCC 44

The Crown’s radical title plays a larger role in the Supreme Court of Canada decision in Tsilhqot’in than it has in the Court’s previous Aboriginal rights decisions. However, it is unclear what the Court means by radical title in Tsilhqot’in or what work the concept is performing. One way to try to figure this out is to reflect on our understanding of the relationship between Aboriginal title and the Crown’s radical title before the Tsilhqot’in decision, describe Tsilhqot’in’s discussion of radical title, and then consider whether it adds anything to the concept of sovereignty. Continue reading

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The Importance of Location and Context to the Future Application of the Grassy Narrows Decision of the Supreme Court of Canada

By: Kirk Lambrecht Q.C.

PDF Version: The Importance of Location and Context to the Future Application of the Grassy Narrows Decision of the Supreme Court of Canada

Case commented on: Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48

This post discusses the future application of the decision of the Supreme Court in Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48, to the Prairie Provinces of Canada.  The proposition advanced here is that Treaty rights in Manitoba, Saskatchewan and Alberta are constitutionally protected under the Natural Resource Transfer Agreements of 1930, all of which are schedules to the Constitution Act, 1930, as well as being constitutionally protected by s. 35 of the Constitution Act, 1982 and the doctrine of the Honour of the Crown.  The scope and extent of Treaty harvesting rights in the Prairie Provinces, and how the constitutional protection afforded by the Natural Resource Transfer Agreements within the Constitution Act, 1930, may affect the exercise of provincial proprietary and legislative powers, is anticipated by, but not specifically addressed in, the Grassy Narrows decision.  This will require future judicial analysis when Grassy Narrows is applied in the region west of the Ontario/Manitoba border.

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