Cases Considered: Kelly v. Alberta (Energy and Utilities Board), 2008 ABCA 410

PDF Version:  An Important Development in the Kelly Appeal

Last March I posted a blog about a Court of Appeal decision which granted a group of landowners (Kelly et al.) leave to appeal a decision of Alberta’s Energy and Utilities Board (now the Energy Resources Conservation Board). See “What does the Canadian Charter of Rights and Freedoms have to do with Oil and Gas Development in Alberta?”. The grounds for leave in the Kelly appeal indicated that the Court of Appeal might have to address novel and difficult questions in relation to the possible application of section 7 of the Charter in the context of oil and gas development in Alberta. A recent development in the case, however, leaves me wondering whether the merits of the appeal will ultimately be heard or not.

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Cases Considered: Signalta Resources Limited v. Dominion Exploration Canada Limited, 2007 ABQB 636; Signalta Resources Limited v. Dominion Exploration Canada Limited, 2008 ABCA 437

PDF Version:  What zones were the subject of a unitization agreement?

I blogged the trial decision of Justice AG Park in this case and now the Court of Appeal has affirmed. Readers wanting a full statement of the facts should review that earlier blog.

There were, as the Court put it, “no grounds for appellate intervention” (at para. 2) and in particular the Court of Appeal agreed with Justice Park that the original inclusion of the Glauconite for the section 8 lands in the schedule to the unitization agreement was a mistake. It was a mistake for two reasons: (1) Dyco (Dominion’s predecessor in title) did not have rights to the Glauconite under its farmout with Husky and therefore could not contribute Glauconite rights, and (2) Husky (which did own the Glauconite rights) never contributed them and executed the relevant agreements as a royalty owner and not as a working interest owner.

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Ask three ABlawggers for their favourite Canadian law blogs, and you end up with more than three different answers. It appears our bloggers cannot confine themselves to a single favourite, and so we have restricted ourselves here to academic / law professor blogs.Jonnette Watson Hamilton, ABlawg’s most prolific blogger, writes: “Osgoode Hall’s The Court — which was 2007’s “most important new Canadian law blog” — continues to provide timely, thoughtful and in-depth analysis of Supreme Court of Canada decisions. One of the reasons for the outstanding nature of the contribution this blog makes to legal scholarship is the number of law students, practicing lawyers and law professors from all across Canada who are among its contributors. Regardless of the area of law, The Court has someone who can comment on new cases with expertise. The Court states that it “aims to become the premier online location for information about Canada’s highest court” and I think it has achieved this aim.”

Jennifer Koshan, Coordinator of ABlawg, agrees with this assessment, and adds that: “The Court provides valuable context for Supreme Court cases and other national legal developments that enriches my teaching of constitutional law.” Koshan’s favourite thread on The Court this year dealt with the role of Chief Justice McLachlin in Henry Morgentaler’s Order of Canada award. These posts (and the resulting commentary) provided rich fodder for the topic of judicial independence in constitutional law.

It is no surprise that Greg Hagen, our faculty’s IP specialist and technical advisor for ABlawg, chooses the following law blogs as his tie for favourite: “I visit Michael Geist’s blog almost every day. Geist’s blog is a current and comprehensive source on internet and copyright news. His brief commentaries usefully put the news into a broader perspective. His site contains links to other tech law blogs and often links to primary materials which are useful for research purposes. Howard Knopf’s Excess Copyright blog contains perceptive, passionate and often humorous commentary on selected Canadian and international copyright news. Although Knopf practices copyright law, he keeps in touch with academic writings and posts his own academic contributions.”

Last but not least, Koshan nominates the University of Alberta Faculty of Law’s blog for the following reasons: “I love U of A bloggers’ irreverence and wide ranging subject matter - where else can you find movie reviews, obituaries, live blogs, and case and political commentary all in the same week? I also admire the number and range of comments posted in response to U of A bloggers’ posts, which show a high level of reader engagement. In fact, I often read the U of A blog to find comments on ABlawg posts. It works like this - one of us will write a post on ABlawg, Russ Brown will comment on it on the U of A’s blog, and then readers respond to his post, indirectly commenting on ours. Russ and Moin Yahya also provided helpful advice when we were setting up ABlawg in 2008. Calgary / Edmonton rivalry may be alive and well in hockey, but not in the blawgosphere.”

Cases considered: Kellogg Brown and Root Canada v. Alberta (Information and Privacy Commissioner), 2008 ABCA 384, affirming Kellogg Brown and Root Canada v. Alberta (Information and Privacy Commissioner), 2007 ABQB 499.

PDF Version: What happens to our “day in court” when someone else drops the ball?

This is a privacy case involving Kellogg Brown and Root’s (”KBR”) drug testing policy. (For earlier posts involving a human rights complaint against this company’s drug testing policy, in which the S.C.C. denied leave to appeal; see: http://ablawg.ca/wp-content/uploads/2008/02/lmp_chiasson_jan2008.pdf and http://ablawg.ca/wp-content/uploads/2008/03/dc_chiasson_march10.pdf). The case is relatively straightforward, but it does raise an interesting access to justice issue: What happens when the privacy commissioner fails to complete an inquiry on a complaint within the legislated time limit?

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Cases considered: Kolias v. Owners: Condomimium Plan 309 CDC, 2008 ABCA 379.

PFD Version:  An exemplar of reasoning from precedent in a real property law context

This reserved judgment written by Mr. Justice Jean Côté of the Alberta Court of Appeal is strong on justifications for the decision reached and an excellent example of stare decisis and the doctrine of precedent at work. It reverses a decision of the Court of Queen’s Bench and discharges a restrictive covenant on the basis that the dominant tenement was not easily ascertainable in the deed creating the restrictive covenant, as required by the Supreme Court of Canada in Galbraith v. Madawaska Club, [1961] S.C.R. 639, 29 D.L.R. (2d) 153. The decision is also a good example of the priority given to certainty and predictability in property law.

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Cases considered: Stack v. Hildebrand, 2008 ABQB 668.

PDF Version: Investors should be cautious about investing in viatical settlements

As a result of the credit crunch, investors have become wary of risky investments. In its 2006 study, the BC Law Institute noted that, like many asset-backed instruments, viatical investments (or viaticals) are very risky investments. A typical viatical settlement occurs when an insured person sells his or her entitlement to receive a life insurance policy’s death benefit to a financial company who later sells a fractionalized portion of the entitlement to an investor. The financial company typically pays the premiums of the insurance policy. The primary risk is that the insured person will exceed his or her life expectancy. Another risk is that the financial company does not pay the premiums. Stack v. Hildebrand, 2008 ABQB 668 is a reminder that investors need to be cautious when considering investments in viaticals.

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Cases considered: McKay-Panos v. Air Canada, Decision No. 519-AT-A-2008 (Canadian Transportation Agency)

PDF Version: The End (Beginning?) of a Long Journey: Disability and Air Travel

Sometimes it takes a very long time (eleven years) to receive a legal remedy, but my case illustrates tenacity can be beneficial. The situation in which I found myself, although very personal, resulted in setting a legal precedent and hopefully in helping to protect the dignity and humanity of many disabled air travelers.

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Cases considered: R. v. Jefferson, 2008 ABCA 365; R. v. C.H.L., 2008 ABCA 366.

PDF Version: Sentencing in Sexual Assault Cases – Whither Appellate Guidance?

In two decisions released on back to back days in early November, the Alberta Court of Appeal grappled with the issue of sentencing in serious sexual assault cases. Both judgments were released as Memoranda of Decision, and neither is very helpful in providing guidance to lower court judges for sentencing in this area. The cases call into question the legitimacy of a Practice Note issued by the Court of Appeal to the effect that Memoranda of Decision have less weight than Reasons for Judgment Reserved in sentencing cases. Indeed, in one of the cases the judges themselves question this practice, yet effectively perpetuate it at the same time.

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Cases considered:  Polanski v. Roth, 2008 ABCA 378

PDF Version: Partition or sale of co-owned property?

This brief Memorandum of Judgment delivered from the bench by the Alberta Court of Appeal is notable for a number of reasons. First, the Court of Queen’s Bench judge did not give any reasons for his order but, aside from noting this fact, the Court of Appeal does not appear to be concerned by the lack of reasons and even applies “reasonableness” as the standard of review. How can a judgment given without reasons be assessed as reasonable? Second, the content of a proposal made by the appellant during settlement negotiations is used against him. Ordinarily, communications made for the purpose and in the course of negotiating a settlement are made on a “without prejudice” basis and cannot be used in court as evidence, whether “without prejudice” is expressly claimed for the communication or not. There might have been a reason why the appellant’s settlement proposal was used against him in this case, but none is offered. Third, the appellant would probably have succeeded had his application been brought between 460 and 30 years ago, when the relevant law was three old Imperial statutes dating from 1539, 1540 and 1868. The law was, however, changed to a made-in-Alberta law in 1979, and the 110 year old provision which would have assured the appellant’s win was dropped, seemingly without discussion.

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