August 1st, 2008
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 »
Posted in Ethics and the Legal Profession
Permalink | 1 Comment »
June 11th, 2008
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 »
Posted in Administrative Law, Energy
Permalink | 3 Comments »
April 24th, 2008
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 »
Posted in Administrative Law, Supreme Court of Canada
Permalink | 1 Comment »
March 4th, 2008
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 »
Posted in Ethics and the Legal Profession, Family
Permalink | No Comments »
March 3rd, 2008
Cases Considered: Alberta (Market Surveillance Administrator) v. Enmax Energy Corporation 2008 ABQB 54
PDF Version: “www.JustAnswer.com… or How the Alberta Courts Respected the Market Surveillance Administrator’s Just Exercise of Jurisdiction”
Regulation of the functioning of the market for electricity poses difficulties. The price for electricity in Alberta is determined through the mechanism of the Power Pool on an hourly basis. Generators bid the electricity they will have available for dispatch into the Power Pool during a given hour, and the Power Pool selects electricity in merit order (from the lowest price bid to the highest price bid) as required to meet demand in that hour. The price of electricity in each hour is the level of the highest bid of the last unit of electricity required to meet demand in that hour. Every in merit generator in that hour is then paid at that price, regardless of the level of the bid initially made by that generator.
Read the rest of this entry »
Posted in Energy
Permalink | No Comments »
March 3rd, 2008
Cases Considered: Dabrowski v. Robertson, 2007 ABQB 680
PDF Version: Fading to Brown: Limits on Evergreen Discovery in Alberta
This decision by Madam Justice Joanne Veit of the Alberta Court of Queen’s Bench clarifies that counsel and parties to litigation in Alberta do not currently have an obligation to provide “evergreen” oral discovery. Counsel may have an obligation to disclose “after-acquired information” if it is requested by opposing counsel, and may have an obligation to correct misleading evidence provided by a witness. However, neither of those obligations requires them or their clients to disclose that the witness’s evidence at trial will be different from that given at discovery because the witness’s memory of events has now improved. The case also clarifies that while the Law Society remains the “best authority on compliance by its members with its Code of Professional Conduct,” “a lawyer’s ethical responsibility exists at common law, independently of any Code of Conduct” (para. 22 and 26).
Read the rest of this entry »
Posted in Civil Procedure and Evidence, Ethics and the Legal Profession
Permalink | No Comments »
December 12th, 2007
Cases Considered: Lavesta Area Group v. Alberta (Energy and Utilities Board), 2007 ABCA 365
PDF Version: Substance Over Form: The Court of Appeal’s Protection of Intervener Rights at the Alberta Energy and Utilities Board
In Lavesta Area Group v. Alberta (Energy and Utilities Board) 2007 ABCA 365, Madam Justice Carole Conrad granted two appeals of Alberta Energy and Utilities Board (“Board”) decisions. She did so on the basis of “reasonable apprehension of bias” and, in particular, on the basis of the Board’s own concession that such an apprehension had arisen.
Read the rest of this entry »
Posted in Administrative Law, Natural Resources
Permalink | No Comments »