Case Considered: Tsuu T’ina Nation v. Frasier, 2009 ABCA 140

PDF version: Rule of Law, Deference and Contempt: Another Chapter in the Black Bear Crossing Dispute

The dispute between the three remaining residents of Black Bear Crossing (BBC) and the Tsuu T’ina Nation was back before the courts on April 6, 2009. On that date, the Alberta Court of Appeal (Justices Peter Martin, Frans Slatter and Sal LoVecchio) heard an appeal by the Tsuu T’ina Nation of the finding of contempt made against it on November 7, 2008 by Justice Jo’Ann Strekaf. The contempt order related to the failure of the Tsuu T’ina Nation to comply with earlier orders requiring it to maintain utilities and water service at BBC while the three residents - Fred Frasier, Florence Peshee and Regina Noel - remained there pending the resolution of their claims for band membership (see my earlier post “Litigation by installments”: Further Developments in the Black Bear Crossing Dispute). While the Court of Appeal dismissed the appeal in eight short paragraphs, its judgment is replete with lofty legal concepts such as the rule of law and deference that call out to be unpacked.

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Case Considered: Workeneh v. 922591 Alberta Ltd., 2009 ABQB 191

PDF version: How does a complainant prove that he/she has experienced racial discrimination?

The Workeneh case draws attention to the challenges of proving that a complainant has been discriminated against contrary to the Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14 (”HRCMA“). It can be particularly difficult to prove that racial discrimination has occurred, particularly when there are other reasons given for the treatment such as poor job performance.

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Legislation Considered: Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c.H-14

PDF Version: Gender Reassignment Surgery, Human Rights, and the Minister

When the Alberta government introduced its budget on April 7, 2009, one of its cuts was to de-insure new gender reassignment surgeries. According to the CBC, “[t]he province had funded a maximum of 20 gender reassignment surgeries [GRS] annually; the cut is expected to save the government about $700,000 a year.” The CBC also reported that a number of human rights complaints were filed by transgendered persons on April 15, 2009, alleging that the cut amounts to discrimination on the basis of gender identity contrary to Alberta’s Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c.H-14 (”HRCMA“). In response to a question about whether an Ontario case where a similar cut was found to violate human rights legislation would serve as a precedent in Alberta, Lindsay Blackett (Minister of Culture and Community Spirit) is said to have made the following comment: “We have a slightly different process, and we have slightly different value systems and a way of thinking in Alberta, and since most of the people on our commission are from Alberta, they may look at it a little differently then Ontarians do.” Blackett’s reported comment is disturbing on a number of grounds.

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Cases considered: Bearspaw Petroleum Ltd. v. ConocoPhillips Western Canada Partnership, unreported judgement of Master Hanebury, February 26, 2009
Bearspaw Petroleum Ltd. v. ConocoPhillips Western Canada Partnership, 2009 ABQB 202 (Master in Chambers)

PDF version: Rights of first refusal in a package sale of oil and gas properties: a follow up to Chase Manhattan

The rationale for the right of first refusal (ROFR) in the context of jointly owned oil and gas properties is well understood. ROFRs are typically included in a variety of oil and gas agreements and in particular the operating agreement (see Article 24 of the various iterations of the Canadian Association of Petroleum Landmen (”CAPL”) form). But they are messy, especially in so-called package sales where a party is disposing of a number of assets in a particular deal. Current versions of the CAPL form provide a procedure for dealing with package deals but the provisions are not free of difficulty and older forms offer little if any guidance.

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Case Considered: United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 488 v. Bantrel Constructors Co., 2009 ABCA 84

PDF Version: Employee Alcohol and Drug Testing Once Again At Issue

Alcohol and drug testing of employees is a tricky issue from a legal perspective. For example, in an earlier post, I commented on Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Company, 2007 ABCA 426, where in cases of pre-employment drug testing, there seem to be conflicting court decisions that make it challenging to implement effective policies. (Since the post was written, the Supreme Court of Canada denied the Alberta Human Rights and Citizenship Commission’s application for leave to appeal on May 29, 2008). What about the situation where an employer seeks to implement a new drug testing policy to apply to existing unionized employees as a condition of access to a construction work site?

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Document considered: Meeting of the parties to the 1973 Agreement on the Conservation of Polar Bears, Tromsø, Norway, 17 - 19 March 2009 Outcome of Meeting

PDF Version: The Tromsø meeting of the parties to the 1973 Agreement on the Conservation of Polar Bears: a comment on three aspects of the meeting report

A few weeks ago (March 17 - 19, 2009) the parties to the 1973 Polar Bear Agreement met in Tromsø to consider the further implementation of the Agreement. This is a significant breakthrough. Apart from a meeting of the parties back in 1981 when the Parties decided to continue the Agreement in force as contemplated by Article X(6) of the Agreement and in informal meeting of the range states in 2007, the parties have never considered the further implementation of this Agreement.

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Legislation Considered: Film and Video Classification Act, S.A. 2008 c. F-11.5

PDF Version: New Legislation on Film and Video Classification Garners Little Attention

Without much attention or fanfare, the Film and Video Classification Act (”FVCA“), S.A. 2008 c. F-11.5 received royal assent on December 2, 2008. It is awaiting proclamation. It is perhaps ironic that the media did not pay much attention to legislation that will certainly affect some of them. It is clear that the legislation that the FVCA will replace is sorely out of date and needs to be brought into the 21st century (e.g., the Amusements Act, R.S.A. 2000, c.A-40, referred to “moving picture machines” and “travelling picture shows”). However, some of the amendments seem to create potential difficulties in implementation. Three aspects of the new legislation merit discussion.

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Cases Considered: BG International Limited v. Canadian Superior Energy Inc., 2009 ABCA 127 

BG International Limited v. Canadian Superior Energy Inc., 2009 ABCA 73 (Justice Carole Conrad, chambers) 

PDF Version: Extraordinary times justify extraordinary remedies: interim measures under the AIPN standard form operating agreement

This is the first Alberta and indeed Canadian decision to consider the standard form operating agreement of the Association of International Petroleum Negotiators (AIPN) (2002). The Court of Appeal has upheld the order of Justice Barbara Romaine [unreported, February 11, 2009] sitting in chambers to issue an interim receivership order with respect to Canadian Superior Energy Inc’s (CSEI) interest in an exploration property in the offshore area of Trinidad and Tobago. In the course of doing so the order effected a change of operatorship and provided significant interim relief to BG International (BGI) in order to preserve the jointly owned property and to ensure continued drilling and testing operations.

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PDF version: Freedom of Expression, Universities and Anti-Choice Protests

Anti-abortion protestors were back in force at the University of Calgary the last week of March following news that on March 16, they pleaded not guilty to trespassing charges laid against them in relation to a similar incident in November, 2008. One might reasonably think that the freedom to express anti-choice views deserves protection on a university campus, a center of academic debate on a range of controversial subjects. Or one might reasonably think that the University of Calgary was justified in advising the Campus Pro-Life group that they could mount their protest, provided they turned their signs - depicting graphic images of the Rwandan genocide, the Holocaust, the Ku Klux Klan and aborted fetuses - inward. But the University is making a different argument, namely that the Canadian Charter of Rights and Freedoms does not apply to universities. I think that view is itself subject to debate.

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Case Considered: ERCB Decision 2009-029, CCS Corporation, Section 40 Review and Variance of Application No. 1515213, Class 1b Waste Disposal Scheme, Well 00/09-01-048-14W5M, Brazeau River, March 24, 2009

PDF version: The protection of potable ground water through a purposive or objective approach to regulation

There are at least five reasons to read and blog on this decision. First, it is very rare for the ERCB (”the Board”) to issue a reasoned decision on an application relating to a disposal well. Others include ERCB D 90-17 and D2002-055. The Board deals with most such decisions administratively. Typically there will be no reasoned decision and the general public will not have a clue that the Board has just approved a proposal to inject oilfield waste or acid gas into a geological formation unless they happen to live within a fairly circumscribed radius of the well. Other well operators are far more likely to receive notification than the general public. Second, the decision deals with a topic of crucial societal importance, the protection of potable groundwater and how to ensure that. Third, the decision contains a very interesting discussion of two different approaches to regulation. One approach (which we will term the prescriptive approach) seeks to set certain prescriptive standards that any project must meet in order to be approved. This approach works on the basis that if the proponent complies with that standard, the desired regulatory objective (e.g. protection of groundwater) will be achieved. The other approach (which we will term the purposive or objective approach) requires the applicant to meet the desired regulatory objective but affords the applicant greater discretion as to how it achieves that objective. Fourth, the decision offers some interesting comments on the interrelationship and respective responsibilities of the ERCB and Alberta Environment. And fifth it is important to look at this decision for what it might tell us about the Board’s approach to the regulation of disposal operations associated with carbon capture and storage.

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