Case considered: Berger v. Alberta (Energy Resources Conservation Board), 2009 ABCA 158 

PDF version: Narrowing the prospect of obtaining leave to appeal an ERCB decision: The troublesome aspect of judicial deference

The Court of Appeal routinely decides applications for leave to appeal an Energy Resources Conservation Board (ERCB) decision on questions of law or jurisdiction pursuant to section 41 of the Energy Resources Conservation Act, R.S.A. 2000, c. E-10 (ERCA). In Berger v. Alberta (Energy Resources Conservation Board), Mr. Justice Frans Slatter denies a request from several applicants for leave to appeal a December 2008 ERCB approval issued to Highpine Oil and Gas to drill 3 sour gas wells in Parkland County west of Edmonton (ERCB decision 2008-135).

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Case considered: Genesis Land Development Corp. v. Alberta, 2009 ABQB 221

PDF version: A rare species of tort in the Spray Valley: Abuse of public office

My work in environmental law began in the late 1990s as part of the opposition to a mountain resort proposed by a land company based in Calgary - Genesis Land Developers - to be located along the eastern boundary of Banff National Park in the Spray Valley. In the planning stages since the 1960s, this resort proposal had only partial regulatory approval by 1998 when its legal ownership was acquired by Genesis. The subsequent Genesis development proposal consisted of a four-season mountain resort in the Spray Valley, including a tour boat operation on Spray Lakes, helicopter and cat-assisted skiing on Tent Ridge, and a 400 bed accommodation facility. Of these three components, the boating operation was essentially approved when Genesis acquired ownership of the proposal. The regulatory approval process was in full swing until May 31, 2000, when the Government of Alberta announced the project would not be approved and the Spray Valley would be designated as a provincial park. This turn of events led to the current proceedings.

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PDF Version: R. v. Syncrude Canada: The Case of The 500 Dead Ducks

Alberta Environment and Environment Canada have laid charges against Syncrude Canada in relation to the toxic substances in its Aurora Mines tailing pond that resulted in the death of 500 migratory birds in 2008.

Environment Canada has charged Syncrude for violating section 5.1 of the Migratory Birds Convention Act, S.C. 1994, c. 22 by depositing substances harmful to migratory birds in its tailing pond. This is the same information as sworn by John Custer in his private prosecution that commenced in January (See my earlier post Environmental Private Prosecution Update: John Custer v. Syncrude Canada).

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Cases Considered: Bearspaw Petroleum Ltd. v. Alberta Energy and Utilities Board, 2008 ABCA 405;
Bearspaw Petroleum Ltd. v. Alberta Energy and Utilities Board, 2009 ABCA 3.

PDF Version: Obtaining leave to appeal an ERCB decision: Where is the justice?

Section 41 of the Energy Resources Conservation Act, R.S.A. 2000 c. E-10 provides for an appeal from a decision of the Energy Resources Conservation Board (ERCB) on questions of law or jurisdiction with leave of the Court of Appeal. The test for leave includes a consideration of four factors: (1) whether the point on appeal is of significance to the practice; (2) whether the point raised is of significance to the action itself; (3) whether the appeal is prima facie meritorious; and (4) whether the appeal will unduly hinder the progress of the action. Bearspaw Petroleum Ltd. v. Alberta Energy and Utilities Board is one of many recent leave to appeal decisions from the Court (See for example “Landowners, Procedural Fairness and Alberta’s Energy Resources Conservation Board” ). What strikes me about this decision is how it compares to the Court’s decision to deny leave to appeal in Sawyer v. Alberta Energy and Utilities Board, 2007 ABCA 297 (see “Standing against public participation at the Alberta Energy and Utilities Board”).

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PDF Version:  The Counterview to a National Securities Regulator in Canada

I am coming to the aid of an old friend. Having worked as legal counsel at the Alberta Securities Commission, I can tell you the current securities regulatory system works and is far less fragmented than most suggest. Indeed provincial (and territorial) securities regulation serves Canadians very well notwithstanding the challenges of operating within such a large and diverse a nation as Canada. Of all the legitimate reasons to implement a national securities regulator, let’s be clear that “fixing the system” is not one of them.In the early part of the 20th century, various provinces enacted securities legislation to regulate the sale of securities in their jurisdiction. In 1932, the U.K. Privy Council upheld Alberta’s securities legislation as within the provincial constitutional purview with its Lymburn v. Mayland decision, [1932] A.C. 318. Until the 1960s, most provincial governments administered their securities legislation within the executive branch. Presumably growth in the size and complexity of the capital market within certain provinces led governments to create provincial administrative agencies known as securities commissions and delegate regulatory authority to them. Shortly thereafter a federal proposal for securities regulation was published in 1979. Similar national proposals have surfaced more recently with the Crawford Report in 2005 and now the Hockin Report. The point of this history lesson is simply to observe that provincial jurisdiction over securities regulation has been challenged time and time again almost from the day it started.

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Cases Considered:  John Custer v. Syncrude Canada

PDF Version: Environmental Private Prosecution Update: John Custer v. Syncrude Canada

On January 7, John Custer swore an information in front of a Justice of the Peace in Edmonton alleging violation by Syncrude Canada of section 5.1 of the Migratory Birds Convention Act, S.C. 1994, c. 22 for depositing substances harmful to migratory birds in its Aurora Mines tailing pond. The prohibition in section 5.1 reads as follows:

5.1 (1) No person or vessel shall deposit a substance that is harmful to migratory birds, or permit such a substance to be deposited, in waters or an area frequented by migratory birds or in a place from which the substance may enter such waters or such an area.

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Cases Considered: Schneider v. Alberta (Appeals Commission for Alberta Workers’ Compensation), 2008 ABQB 662.

PDF Version: A case of Disablement and Deference under the Workers’ Compensation Act

Maurice Schneider was exposed to asbestos at work in the late 1960s and subsequently developed asbestosis, a drastic reduction in lung capacity whose primary symptom is severe shortness of breath. The disease has a long incubation period before symptoms become apparent (see http://en.wikipedia.org/wiki/Asbestosis). On March 10, 2003 Schneider underwent studies that confirmed he suffers from a mild pulmonary impairment (asbestosis), and in September 2004 the Alberta Workers’ Compensation Board accepted that Schneider’s asbestosis was the result of workplace exposure. Schneider was accordingly entitled to benefits under the Workers Compensation Act, R.S.A. 2000, c. W-15.

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Cases considered: Kostuch (Informant) v. WA Stephenson Construction (Western) (1990), 75 Alta. L.R.. (2d) 110 (Alta. Prov. Ct.); Kostuch (Informant) v. W.A. Stephenson (Western) (1991), 78 Alta. L.R. (2d) 131 (Alta. Prov. Ct.); Kostuch (Informant) v. W.A. Stephenson Construction (Western) Ltd., [1991] AJ No. 659 (Alta. Q.B.) (QL); R. v. W.A. Stephenson Construction (Western) Ltd., [1992] AJ No. 316 (Alta. C.A.) (QL); R. v. W.A. Stephenson Construction (Western) Ltd., [1992] AJ No. 233 (Alta. Prov. Ct.) (QL); W.A. Stephenson Construction (Western) Ltd. v. Kostuch, [1992] AJ No. 1262 (Alta. Q.B.) (QL); Kostuch v. W.A. Stephenson Construction (Western) Ltd., [1993] A.J. No. 52 (Alta. C.A.) (QL); Kostuch v. Alberta (Attorney General), [1995] A.J. No. 866 (Alta. C.A.), aff’g [1993] A.J. No. 635 (Alta. Q.B.) (QL)

PDF Version: Remembering Martha Kostuch: The Private Prosecution and the Oldman River Dam

I knew of Martha Kostuch primarily by her reputation as a leader in Alberta environmental advocacy. My personal dealings with Martha were limited to brief discussions at the annual roundtable meeting that she organized between the (then) Alberta Energy and Utilities Board and several environmental non-governmental organizations. My sense of loss for Alberta environmentalism with Martha’s passing in April 2008 inspired me to investigate her contribution to Alberta environmental law. This post reflects on a portion of my findings.

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Cases Considered: Imperial Oil Resources Ventures Limited v. Pembina Institute for Appropriate Development et al, 2008 FC 598, Pembina Institute for Appropriate Development v. Canada (Attorney General), 2008 FC 302,

PDF Version:  Back on track to socio-ecological ruin: Kearl oil sands project re-authorized

My initial post on the Kearl project (see Just a Bump on the Road to Socio-Ecological Ruin) was accurate after all. Madame Justice Tremblay-Lamer’s decision in Pembina Institute for Appropriate Development v. Canada (Attorney General), 2008 FC 302, that held the Kearl joint panel breached section 34 of the Canadian Environmental Assessment Act, S.C. 1992, c. 37, was simply a brief foray into environmental bliss. On June 6, 2008, the Department of Fisheries and Oceans re-issued the requisite authorization under the Fisheries Act, R.S.C. 1985, c. F-14, to Imperial Oil, reportedly on identical terms and conditions as set out in the original authorization (see my previous post Federal Court upholds nullification of Kearl oil sands authorization for more discussion on the nullification of the initial authorization). Read the rest of this entry »

Cases Considered: Searles v. Alberta (Health and Wellness), 2008 ABQB 307

PDF Version:   Money attracts procedural fairness: The case of the overbilling doctor

Government compensation payable to physicians in Alberta is differentiated under the Alberta Health Care Insurance Plan based upon the type of service provided: in short, some service categories pay better than others for physicians. In 2002 Dr. Gordon Searles received notice from Alberta Health and Wellness that his billings to the Alberta Health Care Insurance Plan were being reviewed. This review led to a reassessment under section 18 of the Alberta Health Care Insurance Act, R.S.A. 2000, c. A-20, which provides the Minister of Health and Wellness with authority to reassess physicians’ billings on select grounds including where the Minister is of the opinion that “the total amount of benefits paid for service was, in the circumstances, greater compensation to the practitioner for that service than it should have been.” In this case, the Minister’s reassessment (via her delegate) required Dr. Searles to repay $985,777.09 having concluded upon review of his billings that he was overcompensated. The reassessment was based upon the Minister’s conclusion that between April 2000 and February 2004 Dr. Searles’ billing submissions were calculated on the provision of a service category with a higher billing rate than the actual service Dr. Searles had administered to his clients. Dr. Searles subsequently applied to the Court of Queen’s Bench to have the Minister’s reassessment quashed on judicial review for procedural unfairness.

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