February 26, 2010 is the second anniversary of ABlawg. To mark this occasion, we are interested in hearing from our readers about the impact and usefulness of ABlawg.Here are some of the questions on which we would appreciate receiving feedback:

• Are you a subscriber to ABlawg?
• How often do you read ABLawg?
• Have you used ABlawg posts in your work? How?
• Are you aware of ABlawg posts that have been cited by a court, in a legal argument, in an academic article or in another blog post? Please provide details.
• Has ABlawg assisted you in understanding the law in a particular area?
• Have you posted a comment to an ABlawg post? Why or why not?
• How does ABlawg compare with other blogs that you may subscribe to?
• What can we do to improve ABlawg?

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Case considered: Alberta Teachers’ Association v. Alberta (Information and Privacy Commissioner), 2010 ABCA 26

PDF version:  Court of Appeal Decision on Privacy Process Likely to Have Significant Impact on Office of Information and Privacy Commissioner

In a rare move, the Alberta Information and Privacy Commissioner, Frank Work, issued a strongly worded news release in response to the Alberta Court of Appeal’s decision in Alberta Teachers’ Association v. Alberta (Information and Privacy Commissioner) (”ATA“). See January 29, 2010, “Commissioner Work expresses Grave Concern over Recent Court of Appeal Ruling.” Mr. Work said, “This decision may have dire implications for every tribunal in this province which has stipulated timelines. There should be a lot of concern on that front.” What prompted this comment?

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Case considered: MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2

PDF version: MiningWatch Canada v. Canada (Fisheries and Oceans): Hoisted on one’s own petard?

Ecojustice, on behalf of its client MiningWatch Canada, declared victory on January 21, 2010 with the release of the Supreme Court of Canada’s decision in MiningWatch Canada v. Canada (Fisheries and Oceans). In brief, Justice Rothstein for a unanimous Supreme Court ruled that the track of environmental assessment conducted by a federal responsible authority pursuant to the Canadian Environmental Assessment Act, S.C. 1992, c. 37 flows directly from the scope of the project as proposed by a project proponent. The decision confirms that tracking an environmental assessment sequentially precedes project scoping under Canadian Environmental Assessment Act, and is of obvious significance in the conduct of federal environmental assessment on projects in Alberta on a go forward basis.

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Case considered: Community Credit Union Ltd. v. Transamerica Life Canada, 2009 ABQB 704

PDF version:   The Availability of Relief from Forfeiture for Non-Payment of a Life Insurance Premium

This is a well-researched and clearly written decision by Justice Keith Yamauchi on an unresolved issue in insurance law. The question is whether relief from forfeiture is available when a life insurance policy lapses for non-payment of premiums. Since 1994, the usual approach of the courts confronted by this question has been to merely assume relief from forfeiture was available and decide on the easier basis that, even if it was available, it was not appropriate to grant it on the facts of the case before them. In this decision, however, Justice Yamauchi decided the legal point and determined that relief from forfeiture was not available. This decision has several points of interest from a property law perspective, which is the perspective I am adopting for these comments. The aspects of this decision that interest me the most are two. The first is the perceived tension between statutorily regulated life insurance contracts and the body of law known as equity, also known as the classic tension between certainty and justice in the individual case. The second is the sharp line drawn, obliterated, and then re-drawn between property and contract.

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Matter considered: Alternatives North, Notice of Motion, Mackenzie Gas Project, asking the National Energy Board to order the proponent to provide the Board with an update on the North American gas market

PDF version:   The Mackenzie Gas Project and Shale Gas

The Joint Review Panel issued its assessment of the Mackenzie Gas Project (MGP) at the end of 2009 and attention now turns to the National Energy Board (NEB) which must decide whether (subject to the approval of the Governor in Council) to issue a certificate of public convenience and necessity for the pipeline.

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Case considered: Canpar Holdings Ltd v Petrobank Energy and Resources Ltd and Gentry Resources Ltd, unreported transcript of reasons for judgement October 9, 2009 and December 11, 2009, available here.

PDF version:  Damages for production on a dead oil and gas lease

In this case Justice Miller decided that: (1) a an oil and gas lease that contains a no-deduction form of royalty clause (royalty calculated by reference to sales price and not by reference to value at the wellhead) means just that - no deductions (whatever the industry custom or practice to the contrary), (2) a lessor can terminate a lease by following the default clause of the lease where the lessee has not being paying royalty in accordance with the terms of the lease, and (3) at least in the circumstances of this case, a lessee that produces on a lease that has been terminated by the lessor triggering the default clause may be exposed to an accounting on the basis of sales value of production minus operating costs. Given the importance of each of these issues it is unfortunate that Justice Miller decided to dispose of the matter by way of oral reasons from the bench.

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Cases considered: R. v. Rajasansi, 2009 ABQB 674; R. v. Klein, 2009 ABPC 381; R. v. Nguyen, 2009 ABPC 384.

PDF version: A policy of delay? The cost of s.11(b) Charter violations in Alberta

Back in December, CBC News reported on the stay of proceedings in the trial against Kulwinder Singh Rajasansi and Wesley Keane Sinclair. The two men were charged with sexually assaulting a young woman in October, 2004. The reason for the stay? It took the case 35 months to get to trial - that’s one month shy of 3 years.

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PDF version:   Climate Change Legislation – Waiting for Obama; or Just Waiting

Shaun Fluker’s environmental law non-event of the past decade  focused on case law (or lack thereof). My review of climate change legislation continues Shaun’s theme. We waited for federal legislation. Then we waited for the Obama climate change legislation. Now with the President’s Senate majority gone, how long can Canada continue to wait?

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Cases considered: R. v. Neil, 2002 SCC 70; [2002] 3 S.C.R. 631; Strother v. 3464920 Canada Inc. 2007 SCC 24;[2007] 2 S.C.R. 177.

PDF version: The Italics that Rocked the Decade (for Canadian Lawyers)

Those who follow sports know that some of the most fun you can have with your clothes on is debating the criteria for selecting the league MVP. Is it the best player, considered apart from the success (or ineptitude) of his team? Is it the player who contributed the most to the accomplishments of a successful team effort? Is it a particular type of contribution that matters - e.g., exceptional individual skill or above average skills combined with exceptional leadership? Or is it some more holistic determination, considering a variety of factors in a balance which is incapable of articulation beyond “I know it when I see it?”

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