Cases Considered: D.W.H. v. D.J.R., 2009 ABQB 438

PDF Version: Gay fathers not seen as a parental unit under the Family Law Act

The law is still unclear when dealing with gay and lesbian parental units. These families slip through the gaps in legislation and under the Family Law Act, S.A. 2003, c. F-4.5. This case demonstrates some of the legal gaps that affect children and their gay, lesbian and bisexual parents.

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Legislation Considered: First Nations Oil and Gas and Moneys Management Act, S.C. 2005, c.48

PDF Version: Preliminary thoughts on the First Nations Oil and Gas and Moneys Management Act

The First Nations Oil and Gas and Moneys Management Act, S.C. 2005, c.48 (”FNOGMMA“) came into force on April 1, 2006. However, to date no First Nations have elected to “opt into” the Act.

The Act has been promoted as a method whereby a First Nation can take control of its on-reserve oil and gas resources and thus enhance the economic rent from these resources. It is elective in that a First Nation must choose to bring itself under the FNOGMMA legislative regime before the statutory regime applies. The existing Indian Oil and Gas Act, R.S.C. 1985, c. I-7 will continue to apply to those First Nations that do not “opt into” the FNOGMMA. Left unstated is why Canada under the existing Indian Oil and Gas Act cannot similarly take advantage of “value-added” opportunities and similarly enhance the economic rent accruing to the beneficiary First Nation. (A new Indian Oil and Gas Act was passed on May 14, 2009, but will not be in force until the amendments to the Indian Oil and Gas Regulations, 1995 are complete.)

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Case considered: Boissoin and the Concerned Christian Coalition Inc. v. Lund, currently before the Alberta Court of Queen’s Bench

PDF version: Alberta’s Hate Speech Law Under Challenge

There has been much talk recently of whether hate speech laws are properly included in human rights legislation. When Alberta moved to amend its human rights legislation in 2009, some argued that section 3 of Alberta’s Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14 (HRCMA), our hate speech law, should be amended or repealed altogether. A 2008 report by Richard Moon recommended that the analogous provision in the Canadian Human Rights Act, R.S.C. 1985, c.H-6 (CHRA), section 13, should be repealed and that the hate speech provisions of the Criminal Code, R.S.C. 1985, c. C-46, should be used instead. Most recently, in Warman v. Lemire, 2009 CHRT 26, the Canadian Human Rights Tribunal held that section 13 of the CHRA violated freedom of expression as guaranteed by section 2(b) of the Charter, and could not be justified as a reasonable limit under section 1 of the Charter. The tribunal thus refused to apply section 13 and declined to grant a remedy against the respondent, Lemire, even though his actions met the definition of hate speech. These developments will all be significant in the case of Boissoin and the Concerned Christian Coalition Inc. v. Lund, where the appellant, along with interveners the Canadian Civil Liberties Association and the Canadian Constitution Foundation, are challenging the constitutionality of section 3 of the HRCMA before the Alberta Court of Queen’s Bench.

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PDF Version:  R. v. Syncrude Canada: The Case of The 500 (or was that 1600) Dead Ducks

In a Provincial Court appearance on September 14, 2009, Syncrude Canada pled not guilty to charges laid by Alberta Environment and Environment Canada in relation to the toxic substances in its Aurora Mines tailing pond that resulted in the death of 1600 migratory birds in 2008 (the number of birds was initially thought to be 500, but was revised upwards to 1600 after further investigation). ABlawg has followed this regulatory saga from its inception in January 2009 (see previous posts by myself (R. v. Syncrude Canada: The Case of The 500 Dead Ducks and Environmental Private Prosecution Update: John Custer v. Syncrude Canada) and Jocelyn Stacey (Lame duck constitutional arguments: a new twist on Syncrude’s Tailings Pond Debacle).

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Cases Considered: Bjelland v. The Queen, 2009 SCC 38

PDF Version: Supreme Court of Canada undermines Trial Judges’ discretion under Charter s. 24(1)

In Bjelland v. The Queen, 2009 SCC 38, the Supreme Court of Canada considered the question of whether faulty disclosure by the Crown could lead to the exclusion of the evidence concerned under s. 24(1) of the Charter. The majority, in a 4-3 decision, developed a test for the exclusion of evidence under s. 24(1) and applied it in a very restrictive way. This raises concerns about their respect for the discretion of trial judges as granted by s. 24(1) of the Charter.

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Case considered: Montreal Trust Co v. Williston Wildcatters Corp., 2009 SKCA 85

PDF version: Williston Wildcatters: bluster no substitute for reasons and yet another judicially created leave and licence

Over the last decade we have seen litigation in both Saskatchewan and Alberta on the question of how to calculate damages where an operator continues to produce hydrocarbons on a dead lease. The Alberta case is Lady Freyberg v. Fletcher Challenge Oil and Gas, 2007 ABQB 353 (on the damages issue - following 2005 ABCA 46 on the lease validity issue). This matter has been settled on a confidential basis and unfortunately we cannot expect to see an appeal judgement on the damages question. I say “unfortunately” because the trial judgement seems to have proceeded on the basis that the continued production was tortious; but there is at least some ground for thinking that the operator’s activities were continued with the permission of a co-owner. If that is correct, then the co-owner/lessor’s claims should have been dealt with on the basis of a co-owner’s claim for an accounting of more than a just share received, rather than on the basis of tort (trespass or conversion). The Freyberg decision is the subject of lengthy comment by Chris Simard et al, “Lady Freyberg: Examples of How Contemporary Courts in Alberta Approach the Modern Business Realities of the Freehold Petroleum and Natural Gas Lease” (2009), 46 Alberta Law Review 299.

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Case considered: Conway v. Zinkhofer, 2009 ABQB 417

PDF version: Not Your Usual Self-Represented Litigant?

The perception within the justice system is that self-represented litigants have below average literacy and comprehension levels: see the Alberta Self-Represented Litigants Mapping Project, Final Report, January 12, 2007 at 10. However, according to recent research, members of any social group may become self-represented litigants and between 60 and 65% had at least some post secondary education. One group of self-represented litigants is the group who could access representation but prefer to self-represent (Final Report at 15). Although a small percentage of the self-represented litigants (5% or less), the group includes those often referred to as “vexatious litigants” and judges report that this group of self-represented litigants are particularly time consuming and difficult to deal with (Final Report at 16). This appears to be an apt summary of the male respondent in this case, Fred Zinkhofer.

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Case Considered: Van Der Smit v. Alberta (Human Rights and Citizenship Commission), 2009 ABQB 121

PDF Version: Post-Kapp Decision May Indicate the Way Discrimination will be Determined in Human Rights Cases

In the past few years, the application to human rights legislation of precedents established under Canadian Charter of Rights and Freedoms s. 15(1), which set out how a court is to determine whether a claimant has experienced discrimination, was an issue in many Canadian jurisdictions, including Alberta. The issue became more important, when in R. v. Kapp, 2008 SCC 41, the Supreme Court of Canada appeared to re-state (and perhaps even re-formulate) the test from Law v. Canada, [1999] 1 S.C.R. 497, which had been the precedent courts relied on for several years. There are several posts written by ABlawg contributors about the Kapp decision and those which have followed. See, for example: Jonnette Watson Hamilton and Jennifer Koshan, The End of Law: A New Framework for Analyzing Section 15(1) Charter Challenges.

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