By: Alice Woolley
PDF Version: The Top Ten Canadian Legal Ethics Stories – 2014
For the last two years I have written up the “top ten” Canadian legal ethics stories for the prior year (2013 and 2012). This year I initially wondered whether it would be possible to identify ten important legal ethics stories. It wasn’t. Moreover, it is fair to say that some of these stories now justify the descriptor “saga,” making their third consecutive appearance on the list.
It should be noted that the ordering of the list is neither rigorous nor based on a precise calculation of each story’s importance. Nor is the “Top Ten” descriptor a claim I’d aggressively defend. I’m not sure whether, in an objective sense, these are the top ten stories and nor am I sure which ones are more interesting and significant than the others. But since “Ten Canadian legal ethics stories listed in no particular order but that I, for my own idiosyncratic reasons, think are interesting and significant” is not exactly catchy, I’m sticking with “Top Ten.”
The Canadian Law Blog Awards (Clawbies) for 2014 were announced this morning, and ABlawg is very pleased to have been recognized as a runner up in the category of Best Law School/Law Professor Blog. One of ABlawg’s nominees, Paul Daly’s Administrative Law Matters, took the top spot in the category this year. Our colleague Lisa Silver, who teaches criminal law, was also a runner up in the category for her Ideablawg. And, our colleague John Paul Boyd from the Canadian Research Institute on Law and the Family – also one of our nominees – was recognized in the category of Best New Blogs for his blog Access To Justice in Canada.
We extend our thanks to all of our nominators and the Clawbies selection committee, and our congratulations to all the winners, runners up and nominees.
ABlawg looks forward to continued engagement with our readers in 2015. Happy New Year!
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By: Alice Woolley
PDF Version: Ensuring Competent Representation: Know What You Don’t Know
You’ve got to know when to hold ‘em
Know when to fold ‘em
Know when to walk away
And know when to run
You never count your money
When you’re sittin’ at the table
There’ll be time enough for countin’
When the dealin’s done
The Gambler (Don Schlitz; performed by Kenny Rogers)
Being a competent lawyer means knowing your own limits. Lawyers representing clients in cases for which they do not have the necessary knowledge and skills risk liability in negligence, being found to have provided ineffective assistance of counsel (in a criminal case) and violating the obligations of the codes governing their conduct. Those codes define the competent lawyer as “recognizing limitations in one’s ability to handle a matter of some aspect of it and taking steps accordingly to ensure the client is appropriately served” (FLS Model Code, Rule 3.1-1(h)). They further state that a lawyer ought not to take on a matter for which she is not competent and must recognize “a task for which the lawyer lacks competence” (Rule 3.1-2, Commentaries 5 and 6).
How difficult can this be? Quite, according to some recent media reports. While the facts as reported are not sufficient to support the conclusion that the lawyers involved acted improperly, they do at least raise the question: given the apparent disconnect between their expertise and their clients’ circumstances, why were these lawyers acting? And what lessons might we be able to draw to allow lawyers to appreciate when folding ‘em is wiser than holding ‘em?
By: Martin Olszynski
PDF Version: All I Want for Christmas is the Justification for Shell Jackpine
Case Commented On: Adam v Canada (Environment),  FC 1185
On December 9, 2014, the Federal Court rendered its decision in Adam v. Canada (Environment). Chief Allan Adam, on his own behalf and on behalf of the Athabasca Chipewyan First Nation (ACFN), challenged two federal government decisions pursuant to the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52 (CEAA) in relation to Shell Canada’s proposed Jackpine oil sands mine expansion project. The first was the Governor in Council’s (GiC) determination pursuant to section 52(4) that the project’s anticipated significant adverse environmental effects are “justified in the circumstances.” The second was the Minister’s “Decision Statement” pursuant to section 54, which contains the conditions subject to which the project may proceed. In a decision that reads somewhat tersely but that also covers a lot of ground, primarily Aboriginal consultation and division of powers issues, Justice Tremblay-Lamer dismissed the ACFN’s challenge. This post – the first of what will likely be a series – focuses on the first challenged decision: the GiC’s determination that the project’s significant adverse environmental effects are justified.
By: Nigel Bankes
PDF Version: Two Alberta Perpetuities Stories
Matters Commented On: Bill 8, Justice Statutes Amendment Act and Gottlob Schmidt’s donation to the province of Antelope Provincial Park
This post covers two matters. The first is the amendment to the Perpetuities Act, RSA 2000, c. P – 5 enacted as part of Bill 8, the omnibus Justice Statutes Amendment Act which received third reading on December 9th and Royal Assent on December 17th. The second relates to a story carried in the Calgary Herald about Gottlob Schmidt’s generous donation to the province of a block of land for parkland purposes.
Section 9 of Bill 8, the Justice Statutes Amendment Act provides that
(2) The following is added after section 22 [of the Perpetuities Act]:
Rule against perpetuities not applicable to qualifying environmental trusts
22.1(1) In this section, “qualifying environmental trust” means a qualifying environmental trust as defined in section 1(2)(g.011) of the Alberta Corporate Tax Act.
(2) The rule against perpetuities does not apply to a qualifying environmental trust created after December 31, 2013.
The definition of a qualifying environmental trust (QET) is complex since it involves reference not only to the Alberta Corporate Tax Act, RSA 2000, c.A-15 but also to the QET provisions of the federal Income Tax Act, RSC 1985 (5th supp.), c 1. The basic idea of a QET is that it is a trust that is established to meet reclamation obligations principally in the natural resources sector. This amendment to Alberta’s Perpetuities Act became necessary (or at least desirable) as a result of the National Energy Board’s consideration of the need to make provision for the reclamation obligations of operators of federally regulated pipelines.
By: Jennifer Koshan and Jonnette Watson Hamilton
PDF Version: The Supreme Court’s Other Opportunity to Revisit Adverse Effects Discrimination under the Charter: Taypotat v Taypotat
Case Commented On: Taypotat v Taypotat, 2012 FC 1036; rev’d 2013 FCA 192; leave to appeal to SCC granted 2013 CanLII 83791 (SCC)
A few weeks ago we wrote a post on Carter v Canada (Attorney General), 2012 BCSC 886, rev’d 2013 BCCA 435, leave to appeal to SCC granted 2014 CanLII 1206 (SCC), predicting what the Supreme Court might decide on the issue of whether the prohibition against assisted suicide amounts to adverse effects discrimination against people with disabilities, contrary to section 15(1) of the Charter. We mentioned that Carter is one of two adverse effects cases currently before the Supreme Court. This post will consider the second case, Taypotat v Taypotat.
Taypotat concerns a community election code adopted by the Kahkewistahaw First Nation in Saskatchewan to govern elections for the positions of Chief and Band Councillor. The adoption of the code was controversial and took a number of ratification votes, stemming in part from the fact that it restricted eligibility for these elected positions to persons who had at least a Grade 12 education or the equivalent. Although he had previously served as Chief for a total of 27 years, the Kahkewistahaw election code excluded 74 year old Louis Taypotat from standing for election because he did not have a Grade 12 education. He had attended residential school until the age of 14 and had been assessed at a Grade 10 level. His nephew, Sheldon Taypotat, was the only eligible candidate for Chief, and he won the election by acclamation. In an application for judicial review, Louis Taypotat challenged the eligibility provision and the election results under section 15(1) of the Charter.
By: Ola Malik and Sarah E. Hamill
PDF Version: Imposing Limits on the Public’s Right to Access Transit Services: Is the Alberta Court of Appeal’s Train of Thought in the Case of R. v. S.A. on the Right Track?
Case Commented On: R. v. S.A., 2014 ABCA 191, leave denied December 11, 2014 (SCC)
The trilogy of decisions in R. v. S.A. discusses the limits that may be placed on the public’s right to access transit services. Initially, S.A.’s Charter arguments succeeded at trial (2011 ABPC 269 (SA (ABPC)), but she lost the subsequent appeal at the Court of Queen’s Bench (2012 ABQB 311 (SA (ABQB)) and, after having been granted leave from that decision to the Court of Appeal (2012 ABCA 323 (SA (leave application)), she ultimately lost at the Court of Appeal (2014 ABCA 191 (SA (ABCA)). On December 11, 2014, the Supreme Court of Canada denied leave to appeal. This decision has been the subject of previous posts on ABlawg here, here, and here.
In R. v. S.A., a thirteen year old girl was issued a Notice Not to Trespass under Alberta’s Trespass to Premises Act, RSA 2000, c T-7 (TPA) after she assaulted another youth at a train station. She was subsequently convicted of that offence. Edmonton Transit Service (ETS) issued the Notice, and banned S.A. from being on any ETS property for a period of 6 months. Although not obvious from the text of the Notice, it could be modified on application by the affected party to allow access to public transit for specified purposes and times, such as to attend school. With the help of a youth worker, S.A. sought, and was granted those modifications for certain hours during the week. S.A. was not ticketed on occasions where she used transit to travel to school, appointments, or for other “legitimate” purposes. She admitted to using ETS property on occasions which were subject to the ban. Several months following the issuance of the Notice, S.A. was found on ETS property and was charged with trespass under the TPA.
PDF Version: ABlawg: The Year in Review
It is the time of year for making lists, and at ABlawg we have decided to put together a compilation of our highlights from 2014. It is also the season for the Canadian Law Blog Awards (Clawbies), and we have included a list of some of our favourite blogs as well.
A Series of Series
In 2014 ABlawg ran several series of posts on important judicial decisions and legislative developments in Alberta and Canada more broadly. These series provided an opportunity for the authors to discuss the nuances and impacts of these developments and to share that dialogue with ABlawg readers. Our series covered the following:
- July / August 2014: Posts by Nigel Bankes, Jennifer Hocking, Jennifer Koshan, Kirk Lambrecht, Q.C., Sharon Mascher, Martin Olszynski, and Jonnette Watson Hamilton on Tsilhqot’in Nation v British Columbia, 2014 SCC 44 and Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48 covered issues including the scope of Aboriginal title, treaty rights, and the duty to consult, and the demise of the interjurisdictional immunity doctrine and the “lands reserved” head of section 91(24) of the Constitution Act 1867. Faculty, students, research associates and guests discussed this commentary and the underlying decisions in a roundtable discussion in July.
By: Ronaliz Veron
PDF Version: Alberta Introduces Amendments to PIPA
Bill Commented On: Bill 3, Personal Information Amendment Act, 3rd Sess, 28th Leg, Alberta, 2014
On November 15, 2013, the Supreme Court of Canada held in Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401, 2013 SCC 62 (AIPC v UFCW) that Personal Information Protection Act, SA 2003, c. P-6.5 (PIPA) and Personal Information Protection Act Regulation, Alta Reg 366/2003 (PIPAR) violated section 2(b) of the Charter of Rights and Freedoms, as they limited a union’s ability to collect, use, or disclose personal information in a lawful strike (See Linda McKay-Panos’ post on the decision). In oral argument, the Attorney-General of Alberta and the Information and Privacy Commissioner indicated that, if they were unsuccessful, they would prefer to have the entire legislation struck down to allow the legislature to re-consider PIPA as a whole. Acknowledging the comprehensive and integrated structure of PIPA, the Supreme Court declared it invalid but suspended the declaration of invalidity for a year to give the Alberta legislature ample time to make the necessary amendments (AIPC v UFCW at paras 40-41).
By: Jonnette Watson Hamilton
PDF Version: Judicial Economy, Judicial Extravagance and Pension Splitting under a Matrimonial Property Order
Case Commented On: McMorran v Alberta Pension Services Corporation, 2014 ABCA 387
The Court of Appeal decision in McMorran v Alberta Pension Services Corporation determines an instrumentally important question in the pension and matrimonial property law areas. In addition, it is procedurally unusual for two reasons. First, although it is a matrimonial property action, the dispute is really between Justice Robert Graesser, the Court of Queen’s Bench judge who rendered the decision appealed from (McMorran v McMorran, 2013 ABQB 610) and the administrator of the Alberta public service pensions plans, the “appellant” by court order in the Court of Appeal — i.e., not between the former husband and wife who are both “respondents”. Second, the concurring judgment of Justice Thomas Wakeling disagrees with the majority judgment of Justices Ronald Berger and Frans Slatter on one statutory interpretation point, but no consequences appear to flow from that disagreement and the two judgments do not engage with each other on the point. The reasons for two separate judgments are not made explicit, but they appear to be a result of different perspectives on the value of judicial economy. And in these days of legal and public focus on access to justice issues and the need for a “culture shift” in the current legal system, I think it is important to consider whether we can afford judicial extravagance.