Case considered: Bishop v. Alberta College of Optometrists, 2009 ABCA 175

PDF version: Does the Punishment Fit the “Crime”?

A hearing tribunal of the Alberta College of Optometrists found Dr. Donald Bishop guilty of professional misconduct due to billing infractions. Dr. Bishop appealed the decision to a panel of the Council of the Alberta College of Optometrists (the “Council”) and to the Court of Appeal, both of which upheld the decision, largely on factual grounds. Read the rest of this entry »

Case considered: ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2009 ABCA 171

PDF version: A Rock and a Hard Place

In its 2006 decision in ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, the Supreme Court of Canada held that the Alberta Energy and Utilities Board (EUB, now the Alberta Utilities Commission) had no jurisdiction to allocate proceeds on the sale of a utility asset to ratepayers where the sale of that asset resulted in no harm to ratepayers in terms of either rates or service. For a bare majority of the Court, Justice Bastarache held that the rights to assets rest without qualification with the utility. Read the rest of this entry »

Case Considered: Acupuncture Committee v. Wanglin, 2009 ABCA 166

PDF version: Encouraging Complaint Procedures in Professional Regulation

Oversight of health professionals in Alberta occurs through a modified form of self-regulation under the authority of the Health Disciplines Act, R.S.A. 2000, c. H-2. Section 9(1) of the Act provides for the establishment of committees to govern each health discipline, and subsections (3) and (4) provide that a majority of the members of each committee shall either be engaged or registered in that discipline (whichever applies). Regulatory oversight of those committees is then provided by the Health Disciplines Board.

Read the rest of this entry »

PDF version: Dressing Down CPLED (Canadian Centre for Professional Legal Education)

As the warmth of spring has replaced the cold of winter, so too have our occasionally idiosyncratically attired law students been replaced by suit wearing post-graduates attending the Canadian Centre for Professional Legal Education (CPLED) course. Attendance at CPLED, and successful completion of its various assignments, is a pre-requisite for any person wishing to become a member of the Law Society of Alberta.

So too, it turns out, is donning a suit. The 2008-2009 Handbook for students attending CPLED in Alberta states:

Please wear business attire to class. You may not be allowed into class, and a note may be placed on your Law society [sic] file, if you are not dressed appropriately.

Students attending CPLED are, apparently, further advised that “business attire” means attire appropriate for students working at a large law firm, i.e., suits.

Read the rest of this entry »

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.
Read the rest of this entry »

Considered: Maclean’s Second Annual ranking of Canadian Law Schools

PDF Version:  Macleans ranking Canadian law schools

Is this a blessing or a curse? Law school rankings have come to Canada. Brian Leiter was hired by Macleans magazine to design measurement criteria, compile data and rank the schools. This year’s ranking - the second that Leiter has done - has just been published at Macleans (here). In many ways Leiter’s rankings are a useful contribution. As he has suggested of rankings in the US, they may “unleash academic talent and ambition,” (Brian Leiter, “How to Rank Law Schools” (2006) 81 Ind. L.J. 47 at 52) and, as Macleans argues, they might provide prospective students with information about which law school they “will get the most out of.” The measures that he uses also appear generally legitimate. They have the virtue of being not (at least as far as I can imagine) susceptible to the law school gaming that Leiter and William Henderson have been critical of with respect to the US News and World Report analysis (Andrew P. Morriss and William Henderson, “Measuring Outcomes: Post-Graduation Measures of Success in the US News and World Report Law School Rankings”. Having said that, I think there are some points that Leiter might not have fully taken into account in assessing Canadian (as opposed to US) law schools. There are also some weaknesses in the data points.

Read the rest of this entry »

Cases Considered: Hughes Estate v. Hughes [2008] A.J. No. 739 (Q.B.) (Q.L)
Note: We will add a link when this judgment is posted on the Alberta Courts website.

PDF Version: Conflicting Interests, Conflicting Judgments and the Ethical Obligations of Lawyers and Judges

Introduction
At what point do a lawyer’s personal beliefs create a disqualifying conflict of interest? What are the obligations of a judge when a party is unrepresented by counsel? In addition to other issues (not discussed here), the Alberta Court of Queen’s Bench judgment in Hughes Estate v. Hughes [2008] A.J. No. 739 (hereinafter “Hughes Estate“) raises these problems, the first directly and the second indirectly.

Read the rest of this entry »

Cases Considered: ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board) 2008 ABCA 200

PDF Version: The Incredible Shrinking Jurisdiction of the Alberta Utilities Commission

Introduction

In 2006 the Supreme Court of Canada held that the then Alberta Energy and Utilities Board (“Board”) (now the Alberta Utilities Commission (“Commission”)) had no jurisdiction to allocate proceeds of disposition on the sale of a utility asset, even to ameliorate harm to customers that might arise from that sale. The Court held that while the Board has some jurisdiction to impose conditions on the sale of an asset – to, for example, give “due consideration to any new economic data anticipated as a result of the sale” (ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board) 2006 SCC 4 at para. 81 (“AGPL”)) – that power did not allow the Board to “confiscate” any net gains enjoyed by a utility upon disposition.

Read the rest of this entry »

Cases Considered: Dunsmuir v. New Brunswick, 2008 SCC 9

PDF Version: The Metaphysical Court: Dunsmuir v. New Brunswick and the Standard of Review

Introduction
The standard used by courts to review administrative decision-making is of central importance to energy and resource development law. Key decisions about regulation of utilities, supervision of energy markets, development of energy projects and facilities, and environmental obligations imposed on resource development, are authorized by legislation, and made and implemented by regulatory authorities. While for the most part, most of the time, the focus of everyone involved is simply on the making and implementing of those regulatory decisions, the courts retain the constitutional power to review and ultimately control this exercise of regulatory authority. Thus, the question of how the courts will exercise that power – the level of deference they will employ and how willing they will be to override regulatory decision-makers – is the fundamental backdrop against which these decisions are made.

Read the rest of this entry »

Cases Considered: Toliver v. Koepke, 2008 ABQB 37

PDF Version: Counsel Shall Not Bear Witness: Clarifying the Obligation of Counsel to Withdraw When Required to be a Witness

During divorce litigation the Plaintiff and Defendant disputed the existence of a settlement respecting distribution of matrimonial property. The dispute was directed for trial by Justice Moreau of the Alberta Court of Queen’s Bench, at which point counsel for the Defendant (who was newly appointed and therefore had not been involved in discussions related to the settlement) brought an application to remove counsel for the Plaintiff. The application was brought on the grounds that Plaintiff’s counsel was a potential witness at the trial of the settlement issue. Justice Eric Macklin of the Court of Queen’s Bench granted the application.

Read the rest of this entry »