Month: March 2011 Page 1 of 3

New Rules of Court Interpreted: Rule 1.2, The Purpose and Intent of the Rules and Rule 15.12, Transitional

On March 29, 2011

Case commented on: Lameman v Alberta, 2011 ABQB 40

Alberta and Canada brought applications under the old Rules to strike the plaintiffs’ statement of claim in the summer of 2009. The matter has been in case management for over two years. The applications to strike were originally set to be heard March 15 – 19, 2010. This was subsequently adjourned until December 6 – 10, 2010 with deadlines fixed for filing briefs. The plaintiffs did not raise a concern about these deadlines at a case management meeting in September 2010 but subsequently brought an adjournment application on October 19, 2010, principally on the basis that they lacked adequate financial resources to proceed.

Leave to Appeal an Arbitration Award: Is There a Public Interest Requirement?

By Jonnette Watson Hamilton

On March 28, 2011

In Arbitration

PDF version: Leave to Appeal an Arbitration Award: Is There a Public Interest Requirement?

Case considered: Milner Power Inc. v. Coal Valley Resources Inc., 2011 ABQB 118

This brief judgment raises an interesting question. Is it possible to interpret section 44(2) of Alberta’s Arbitration Act, R.S.A. 2000, c. A-43 to require that leave to appeal be in the public interest, as so many Alberta decisions have done? At the end of his judgment, Mr. Justice M.A. (Mel) Binder suggested to counsel that they raise this question with the appropriate government department or legislative counsel. This is not a new issue but it has been surprisingly seldom raised during the twenty years that the provision has been in effect considering that the test for leave to appeal in section 44(2) speaks only of the “the importance to the parties” and “the rights of the parties.”

A National Securities Regulator? – No way! says the Alberta Court of Appeal

By Alastair Lucas, Q.C.

On March 24, 2011

In Constitutional, Securities

PDF version: A National Securities Regulator? – No way! says the Alberta Court of Appeal

Case considered: Reference Re Securities Act (Canada), 2011 ABCA 77

Can the federal government pass legislation to establish and empower a national securities regulator? Essentially, this is the question referred by the Alberta Cabinet to the Alberta Court of Appeal. Specifically, the question relates to the draft National Securities Act, Sessional Paper No. 8 525-403-10. The National Securities Act would mean federal regulation of participants in the Canadian securities industry, federal disclosure rules and limits for raising money from the public, federal regulation of the trading of securities, and federal monitoring and enforcement of these rules to protect the public.

This question, the Alberta Court of Appeal answered with a resounding “No”.

New Rules of Court Interpreted: Rule 2.10 and Intervenor Status

By Admin

On March 23, 2011

In Aboriginal, Civil Procedure: New Rules of Court

Case commented on: R. v. Hirsekorn, 2011 ABQB 156

R. v. Hirsekorn is a summary conviction appeal of convictions for shooting wildlife not in regular season and being in possession of wildlife without a valid permit, contrary to ss. 25(1) and 55(1) of the Wildlife Act, RSA 2000, c. W-10. At trial, Provincial Court Judge F. C. Fisher rejected Hirsekorn’s argument that the charges should be dismissed because he had an unextinguished Métis right to hunt for food under s.35 of the Constitution Act, 1982 (see 2010 ABPC 385). The Blood Tribe and Siksika Nation applied to the Alberta Court of Queen’s Bench for intervenor status in the appeal.

Access to Justice and Human Rights Cases

By Linda McKay-Panos

On March 17, 2011

In Access to Justice, Administrative Law, Human Rights

PDF version: Access to Justice and Human Rights Cases

Case Considered: McClary v Geophysical Services Inc., 2011 ABQB 112

Not being able to afford legal representation occurs quite frequently in civil and criminal legal cases. Some individuals choose to self-represent-either because they cannot afford legal counsel, or because they want to present their own cases. Inability to afford legal counsel has become a critical problem that leads to an acute lack of access to justice in Canada. In Alberta, recent cuts to the Legal Aid program will likely have serious effects on people with both civil and criminal issues. Even in tribunal matters, or matters where one is not required to be legally represented, such as the human rights process in Alberta, not having legal representation can have important consequences, both for the courts and for the litigants. While in some matters at the Commission (and later on appeal to the courts), the Act permits counsel to be assigned to represent and advise complainants, McClary was not such a matter. Also, it is important to note that in all matters before the Commission, respondents must hire their own legal representation should they desire it. The limited availability of legal counsel for parties in human rights cases exists partly because the human rights process is supposed to be user-friendly and low-cost to complainants and respondents.