Cases Considered: ATCO Midstream Ltd. v. Alberta (Energy Resources Conservation Board), 2009 ABCA 41.

PDF Version: What is sauce for the goose is sauce for the gander (and other, more mixed, metaphors): and a prediction as to the role of power and influence on law-making in the province.

The cases are legion in which the Energy Resources Conservation Board, supported by the Court of Appeal, has denied standing to public interest interveners, First Nations (e.g. Dene Tha’ First Nation v. Alberta (Energy and Utilities Board), 2005 ABCA 68) and fellow-travellers on the grounds that they lack an adequate legal interest in the subject matter of the application. What is interesting about this case is that, this time, the ox that is gored is a sacred cow. Two sacred cows in fact; a leading provincial utility and gas processor (ATCO), and a petrochemical interest (NOVA) that the province spawned. At a formal level the result might be celebrated in terms of respect for the neutrality of the law and equality before the law. Respect may be tempered if we think the rule to be a bad rule.

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Cases Considered: Bear Hills Charitable Foundation v. Alberta Gaming and Liquor Commission 2008 ABQB 766; East Prairie Métis Settlement v. Alberta (Métis Settlements Ombudsman) 2009 ABQB 31.

PDF Version: Don’t you forget about me: Remembering the rest of administrative law after Dunsmuir

In March 2008 the Supreme Court of Canada released its decision in Dunsmuir v. New Brunswick, 2008 SCC 9, in which it rearticulated the appropriate approach to identifying and applying the standard for judicial review of administrative decisions. The significance (or not) of this re-articulation has been discussed elsewhere on ABlawg (see here and here). What perhaps needs to be better understood, however, is that in rearticulating the standard of review, the Supreme Court did not change other principles of administrative law. Two recent decisions of the Alberta Court of Queen’s Bench indicate that there may be some confusion on this point. In one case, the Dunsmuir analysis was used by the Court to consider a question of administrative procedure, even though procedural questions are not properly subject to standard of review analysis. In another case, the Dunsmuir analysis was used by the Court to review a decision properly characterized either as procedural or non-dispositive which, again, makes the use of a Dunsmuir analysis inapt.
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PDF Version: R. v. Syncrude Canada: The Case of The 500 Dead Ducks

Alberta Environment and Environment Canada have laid charges against Syncrude Canada in relation to the toxic substances in its Aurora Mines tailing pond that resulted in the death of 500 migratory birds in 2008.

Environment Canada has charged Syncrude for violating section 5.1 of the Migratory Birds Convention Act, S.C. 1994, c. 22 by depositing substances harmful to migratory birds in its tailing pond. This is the same information as sworn by John Custer in his private prosecution that commenced in January (See my earlier post Environmental Private Prosecution Update: John Custer v. Syncrude Canada).

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Cases Considered: Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9

PDF Version: The End of Law: A New Framework for Analyzing Section 15(1) Charter Challenges

After the Supreme Court of Canada handed down its decision in R. v. Kapp, 2008 SCC 41 in June of 2008 there were questions about whether the Court had changed the legal framework for analyzing challenges brought under section 15(1) of the Charter. Kapp had clearly changed the approach to section 15(2), granting it independent status to protect ameliorative laws, programs and activities. However, on the topic of section 15(1), the Court had sent mixed signals about its intended approach. The message sent by the Court’s February 13, 2009 decision in Ermineskin Indian Band and Nation v. Canada is much clearer; the legal framework for analyzing section 15(1) claims will be very different than it has been for the past decade.
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Cases Considered: Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9.

PDF Version: The Crown has neither the power nor the duty to invest Indian monies: The use of legislation to limit trust duties

The “money management” part of the long-running Samson\Ermineskin Case has now come to a close. A unanimous seven person panel of the Supreme Court of Canada in a judgement authored by Justice Marshall Rothstein has ruled that the Government of Canada is not liable when it fails to invest First Nation royalty monies and instead deposits those monies to the credit of the Consolidated Revenue Fund (CRF) and pays the First Nations interest on those monies. In fact, the Court has ruled that the Indian Act makes it illegal for the Crown to invest Indian capital monies. The Court also ruled that the provisions of the Act which require this conclusion do not constitute discrimination within the meaning of s.15 of the Charter.

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Cases Considered: San Juan Resources Inc (Re) 2009 ABQB 55 (Registrar in Bankruptcy).

PDF Version: Co-ownership is a messy business (even with an operating agreement)

Co-ownership is a legal relationship for parties who are able to get along together. For those who cannot the court will order partition or sale under the Law of Property Act, R.S.A. 2000, c. L-7. But co-ownership is also the typical foundation for oil and gas operations in this province and elsewhere since oil and gas companies will typically be tenants in common (working interest owners) of their title documents (the freehold and Crown leases) on which their operations rely.

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Considered: Protection of Children Abusing Drugs Act, S.A. 2005, c. P-27.5;
Protection of Sexually Exploited Children Act, R.S.A. 2000, c. P-30.3PDF Version: Using the Coercive Power of the State to Deal with Child Prostitution and Drug Abuse

Canada’s laws dealing with problems experienced by children and youth seem to reflect a tension in philosophy between protecting children, and recognizing them as rights-holders who will soon be fully participating members of our society. This post seeks to set out the general procedures provided in these laws and to examine whether these laws actually are successful in using a protectionist coercive model to deal with two serious problems: prostitution and drug abuse by children and youth.

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Cases considered: R. v. Caron, 2009 ABCA 34.

PDF Version:  Interim Costs Order Upheld in Language Rights Case

Gilles Caron was awarded interim costs in relation to expert and legal fees for a language rights claim that was eventually allowed by the Alberta Provincial Court (see my previous posts La Belle Province? Developments in Alberta Language Rights Cases, Special Enough? Interim Costs and Access to Justice). Caron’s language rights claim is now before the Alberta Court of Appeal, but in the meantime the Court upheld the interim costs order to Caron and clarified the jurisdiction of superior courts to grant such orders in quasi-criminal proceedings in provincial court.

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Cases Considered: R. v. Warren, 2008 ABCA 436;
R. v. Schultz, 2008 ABQB 679;
R. v. Owusu, 2008 ABQB 715.

PDF Version: Challenging the Constitutionality and Applicability of the Sexual Offender Information Registry Act

The Sex Offender Information Registration Act, S.C. 2004, c. 10 (”SOIRA“) came into force on December 15, 2004. The SOIRA and related amendments to the Criminal Code (R.S.C. 1985, c. C-46) require courts, on application of a prosecutor, to make an order requiring a person convicted of a designated sexual offence to report to a registration centre within a certain period of time after conviction, and again after moving, to provide information including their address, place of work, and other personal information. SOIRA orders last for a certain length of time (up to life), and must be made unless the impact of the order on the sex offender, “including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature” (Criminal Code, s. 490.012(4)). Two recent Alberta cases have come to different conclusions on the application of the exemption to the circumstances of the offender, and in a third case, leave to appeal the constitutionality of the SOIRA’s retroactive application was granted.

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PDF Version:  The sky is falling, let’s blame the royalty review

I have lived in Alberta and this city for nearly thirty years. During the fall of 2007 I thought that we had the best public policy debate that I have ever seen in this province. The subject of that debate was the province’s royalty review.

I think that it was a good debate because it was a well informed debate on a crucial public policy issue. It was a well informed debate because the province, for the first time in its history, struck a public review which articulated a set of principles that should govern royalty design. Prior to that, royalty reviews were essentially private affairs between government and industry.

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