Month: April 2008 Page 1 of 2

An Equity Rationale for the Enforcement of the Corporate Veil?: The Alberta Court of Appeal Considers a Joint Venture Agreement in the Shadow of Corporate Reorganization

On April 28, 2008

Cases Considered: Apex Corporation v Ceco Developments Ltd., 2008 ABCA 125

PDF Version: An Equity Rationale for the Enforcement of the Corporate Veil?: The Alberta Court of Appeal Considers a Joint Venture Agreement in the Shadow of Corporate Reorganization

Common law courts have demonstrated a willingness to ‘pierce the corporate veil’ in circumstances when upholding the assumption of separate corporate legal identity would, for example: endorse an instrument that appears simply a sham; would permit for behaviour “akin to fraud”(Gilford Motor Company Ltd. v. Horne, [1933] Ch. 935 (C.A.)); or lead to a result “too flagrantly opposed to justice”(Kosmopolous v. Constitution Insurance Co. of Canada [1987] 1 S.C.R. 2). This latter language of justice, authored by Madame Justice Bertha Wilson, in particular signals a potential equitable limit to the invocation of separate corporate legal identity. And so while there are rare, if established, instances for piercing the corporate veil based upon justice concerns, the instances of an equitable enforcement of corporate personality are rarer still, and indeed may be difficult to conceive of. Involved would be a court enforcement of separate legal entity despite the claims of a corporation’s ownership. Yet, just such a curious result occurred in the Alberta Court of Appeal’s recent decision in Apex Corporation v. Ceco Developments Ltd. (per Justice Jean Côté, Justices Ellen Picard and Peter Martin concurring).

Dunsmuir v. New Brunswick: Standards of Review and Employment Contracts

By David Corry

On April 28, 2008

In Administrative Law, Supreme Court of Canada

Cases Considered: Dunsmuir v. New Brunswick, 2008 SCC 9

PDF Version: Dunsmuir v. New Brunswick: Standards of Review and Employment Contracts

Dunsmuir was employed by the Province of New Brunswick as an office holder “at pleasure”. His probationary period was extended twice and the employer reprimanded him three times during the course of employment. Finally, a formal letter of reprimand was sent to Dunsmuir warning him that failure to improve his performance would result in further disciplinary action up to and including dismissal. The employer concluded that Dunsmuir was not right for the job, and a formal letter of termination was delivered to Dunsmuir’s lawyer the next day. A grievance was denied and then referred to adjudication under New Brunswick’s Public Service Labour Relations Act (“PSLRA”), R.S.N.B. 1973, c. P 25. A preliminary issue of statutory interpretation arose as to whether, where dismissal was with notice or pay in lieu thereof, the adjudicator was authorized to determine the reasons underlying the province’s decision to terminate. Ultimately, the adjudicator made no finding as to whether the discharge was or was not for cause. As Dunsmuir’s employment was hybrid in character, the adjudicator held that he was entitled to and did not receive procedural fairness in the employer’s decision to terminate his employment. He declared that the termination was void ab initio and ordered Dunsmuir reinstated as of the date of dismissal, adding that in the event that his reinstatement order was quashed on judicial review, he would find the appropriate notice period to be eight months.

The Metaphysical Court: Dunsmuir v. New Brunswick and the Standard of Review

By Alice Woolley

On April 24, 2008

In Administrative Law, Supreme Court of Canada

Cases Considered: Dunsmuir v. New Brunswick, 2008 SCC 9

PDF Version: The Metaphysical Court: Dunsmuir v. New Brunswick and the Standard of Review

Introduction
The standard used by courts to review administrative decision-making is of central importance to energy and resource development law. Key decisions about regulation of utilities, supervision of energy markets, development of energy projects and facilities, and environmental obligations imposed on resource development, are authorized by legislation, and made and implemented by regulatory authorities. While for the most part, most of the time, the focus of everyone involved is simply on the making and implementing of those regulatory decisions, the courts retain the constitutional power to review and ultimately control this exercise of regulatory authority. Thus, the question of how the courts will exercise that power – the level of deference they will employ and how willing they will be to override regulatory decision-makers – is the fundamental backdrop against which these decisions are made.

Eviction Notice Effectively Stayed for Residents of Black Bear Crossing

By Jennifer Koshan

On April 24, 2008

In Aboriginal, Constitutional, Remedies

Cases Considered: Tsuu T’ina Nation v. Bearchief, 2008 ABCA 74

PDF Version: Eviction Notice Effectively Stayed for Residents of Black Bear Crossing

Black Bear Crossing (“BBC”) consists of 161 units on the former barracks of the Canadian Armed Forces, situated on 940 acres on the northeast corner of the Tsuu T’ina reserve. The residences have been occupied by Tsuu T’ina Band members, as well as those claiming Band membership, since Canadian Forces personnel moved out when the base was decommissioned in 1996. In 1998, four Tsuu T’ina families who had been unable to find affordable housing moved into the unoccupied residences and within a month, most of the BBC units were occupied.

Ombudsman May Review and Make Recommendations Regarding Decisions of Chief Commissioner of the Human Rights and Citizenship Commission

By Linda McKay-Panos

On April 21, 2008

In Human Rights

Cases Considered: Alberta (Ombudsman) v. Alberta (Human Rights and Citizenship Commission), 2008 ABQB 168

PDF Version: Ombudsman May Review and Make Recommendations Regarding Decisions of Chief Commissioner of the Human Rights and Citizenship Commission

This case, although somewhat technical, is interesting from the perspective of a person who would like the Chief Commissioner of the Alberta Human Rights and Citizenship Commission (“Commission”) to reconsider a decision. Though such cases may be brought to the Court of Queen’s Bench, people often choose not to take that route because the court is limited judicial review – i.e. it will only look at whether the Chief Commissioner (or administrative official in other cases) exercised his or her power in an arbitrary, discriminatory or otherwise unreasonable way when making the decision. Courts do not usually review the evidence in the case, or the decision itself, but instead focus on the process that was followed in arriving at a decision.