Cases Considered: Pembina Institute for Appropriate Development v. Canada (Attorney General), 2008 FC 302

PDF Version: Just a Bump on the Road to Socio-Ecological Ruin: Federal Court Finds Error in Kearl Oil Sands Project Environmental Assessment

In late 2006, media attention in Alberta was directed to the Regional Municipality of Wood Buffalo, home to the Alberta oil sands and boom town Fort McMurray as the modern rendition of the 1800s frontier gold rush. Apparently, the Municipality was about to cook the goose that had laid the golden egg.

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Cases Considered: Andriet v. County of Strathcona No. 20, 2008 ABCA 27

PDF Version: Andriet v. County of Strathcona No. 20: Court of Appeal Conjures a Creative Accretion Approach

In this important reserved judgment, the Alberta Court of Appeal applied a creative approach to attempt to reconcile uncertainties relating to common law accretion with a Torrens Land Titles system, and in doing so once again found for private ownership of accreted lands over Crown ownership of exposed beds and shores.

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PDF Version: The Federal Government’s Climate Change Policy and the Role of Carbon Capture and Storage

In April 2007 the federal government introduced a new greenhouse gas policy, Regulatory Framework for Air Emissions. On March 10, 2008, it tabled a series of additional documents: (1) Taking Action to Fight Climate Change, (2) Regulatory Framework for Industrial Greenhouse Gas Emissions, (3) Canada’s Offset System for Greenhouse Gases, (4) Canada’s Credit for Early Action Program, and (5) Detailed Emissions and Economic Modelling (all available here). These documents provide further guidance and detail on the implementation of the April 2007 proposals. Further details will be provided when the promised regulations appear in draft form but that will not happen before the fall of 2008.

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Cases Considered: United Nurses of Alberta, Local 33 v. Capital Health Authority (Royal Alexandra), 2008 ABQB 126

PDF Version: Employment and Disability: Some of the Challenges

The recent decision of Justice D.A. Sulyma in United Nurses of Alberta, Local 33 v. Capital Health Authority (Royal Alexandra) provides insight into the challenges faced by both an employer and an employee in accommodating a disability in the workplace. The employer seeks information about the disability and how it should be accommodated, while the employee seeks to protect his or her privacy, in addition to an accommodation of the disability. The court must sort these issues out while also determining whether the employee has a disability.

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Cases Considered: Wheeler v. 1000128 Alberta Ltd., 2008 ABQB 70,

PDF Version: Jurisdiction In Personam and the Rules for Service Ex Juris

Introduction
Wheeler v. 1000128 Alberta Ltd., 2008 ABQB 70, was a complicated case in which the plaintiff alleged that he, and other members of a proposed class, had incurred losses as a result of the breach by the various defendants of the insider trading rules under Alberta’s Securities Act, R.S.A. 2000, c. S-4. More specifically, the plaintiff alleged that, in a series of steps, China National Petroleum Corporation (CNPC), acting through its subsidiaries, and in particular 1000128 Alberta Ltd. (Alberta Co.), purchased the shares of PetroKazakhstan Inc. (PKZ), an international energy company with its head office in Calgary. He further alleged that, in the course of these steps, various of the defendants, with the knowledge of and in conspiracy with the other defendants, became aware of, acted upon, and disclosed to Alberta Co. certain material facts in breach of the Securities Act. According to the plaintiff, Alberta Co. then used this information to purchase shares in PKZ with money supplied by CNPC International Ltd. (CNPCI), a subsidiary of CNPC.

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Cases Considered: R. v. Ferguson, 2008 SCC 6

PDF Version: The Death of Constitutional Exemptions? Alberta RCMP Officer Sentenced to Mandatory Four Years for Manslaughter with a Firearm

The death of 23 year old Darren Varley in the custody of the RCMP in Pincher Creek made headlines in October 1999. Varley was shot by an RCMP officer, Constable Michael Ferguson, who was charged with second-degree murder but eventually convicted by a jury of the lesser offence of manslaughter after a four week trial in 2004 (2 earlier trials having resulted in hung juries). Justice G.C. Hawco of the Alberta Court of Queen’s Bench granted Ferguson a constitutional exemption from s. 236(a) of the Criminal Code, which imposed a mandatory minimum sentence of four years for manslaughter with a firearm, and granted a conditional sentence of two years less one day (2004 ABQB 928). The Crown appealed, and a majority of the Alberta Court of Appeal held that the mandatory minimum sentence could not be avoided (2006 ABCA 261). Constable Ferguson appealed to the Supreme Court of Canada, which dismissed his appeal on February 29, 2008.

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Cases Considered: Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Company, 2007 ABCA 426

PDF Version: Drug Testing: A Wake-up Call to the Courts

Does it take the Hinton train disaster, the sinking of the Exxon Valdez and the sinking of the Queen of the North to send human rights commissions and the courts a wake-up call? In all of these tragedies, the crews responsible were under the influence of drugs and alcohol. Yet, until the Alberta Court of Appeal decision in Kellogg, Brown & Root, the courts had elevated casual drug users to a protected minority group under the guise of human rights legislation.

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PDF Version: A Note on Integrity in Treaty-Making & Copyright Law

In the William Howard Lecture delivered at the University of Calgary on February 8th, 2008, Jim Prentice, Minister of Industry of the Government of Canada, spoke about the virtue of integrity in regulating greenhouse gases. He noted that “[i]t takes integrity to strike the right balance and to draw the lines that will eventually become law which our industries will comply with.” Prentice is also the lead Minister responsible for copyright. So, while Prentice used environmental legislation to illustrate his point about striking the right balance, it was not lost on the audience that the integrity of legislators and the legislative process is also relevant to striking the right balance between copyrights and other values.

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Cases Considered: Morrow v. Zhang, 2008 ABQB 125, Morrow v. Zhang and Pedersen v. Thournout, 2008 ABQB 98

PDF Version: Not on Their Backs: Cap on Damages for Soft Tissue Injuries Struck Down; Court Denies Stay of Remedy Pending Appeal

On February 8, 2008, Associate Chief Justice Neil Wittmann of the Alberta Court of Queen’s Bench struck down the $4000 cap on non-pecuniary damages for soft tissue injuries incurred in motor vehicle accidents. The cap was imposed in October 2004 via the Minor Injury Regulation, Alta. Reg. 123/2004 (“the MIR”). Justice Wittman’s decision quickly became an election issue, with leaders of Alberta’s major parties each staking out their territory on auto insurance. Premier Stelmach announced that the government would seek a stay of the ruling pending an appeal to the Alberta Court of Appeal. Liberal leader Kevin Taft countered that a Liberal government would not appeal the decision, and NDP leader Brian Mason used the opportunity to advocate for a public auto insurance system. On February 25, 2008, Justice Wittmann denied the stay application. This means that his original ruling, which struck down the cap without providing time for the government to amend the MIR, takes immediate effect.

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Cases Considered: Weir v. Canada (Registrar of Firearms), 2008 ABPC 18, Woodcock v. Canada (Registrar of Firearms), 2008 ABPC 19

PDF Version: The Shotgun Approach to Judicial Review

These two almost identical judgments of Provincial Court Judge Bruce R. Fraser confirmed refusals by the Registrar to issue registration certificates for prohibited weapons. They were both references made pursuant to section 74 of the Firearms Act, S.C. 1995, c. 39. The standard of the review to be conducted by a provincial court judge in such a reference has been a controversial matter. Various methods for selecting the appropriate standard of review in a section 74 reference have been proposed and implemented by Alberta courts. The jurisprudence thus far suggests this shotgun approach is missing the mark when it comes to standard of review.

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