The Decision in Smith v St. Albert (City): An example of a Municipality’s Expansive Powers to Regulate Just About…Everything?

By: Ola Malik and Theresa Yurkewich

PDF Version: The Decision in Smith v St. Albert (City): An example of a Municipality’s Expansive Powers to Regulate Just About…Everything?

Case commented on: Smith v St. Albert (City), 2014 ABCA 76

In our system of cooperative federalism, it is well settled that limiting a government’s powers to the boundaries of its jurisdiction is a futile exercise. The dual aspect of a single jurisdictional subject matter is a reality for any federal system. It is more than likely that any one single jurisdictional subject matter can be shared by several different levels of government without leading to outright conflict. The courts’ modern approach to resolving the overlap is to recognize the dual aspect of a single subject matter, so long as the subservient legislation does not adversely affect or impair any vital element of the core competence of, or conflict with, legislation enacted by the higher level of government (Canadian Western Bank v Alberta, [2007] 2 SCR 3).

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Posted in Constitutional, Municipal Law | Leave a comment

Hate Speech and Human Rights in Alberta

By: Jennifer Koshan

PDF Version: Hate Speech and Human Rights in Alberta

Motion commented on: Motion 502 (Alberta Legislative Assembly, March 17, 2014)

It was a tumultuous time in the Alberta Legislature last week, culminating with the resignation of Alison Redford as Premier (for an excellent recap see Susan on The Soapbox).  And of course there were significant events at the national level as well, with the resignation of Jim Flaherty as finance minister and the Supreme Court of Canada’s decision that Marc Nadon was ineligible for appointment to its ranks.  Readers therefore may be forgiven if they missed last week’s debate in the Alberta Legislature on the repeal of section 3(1)(b) of the Alberta Human Rights Act, RSA 2000, c A-25.5 (AHRA).

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Posted in Human Rights | 2 Comments

Decision of the High Court of Australia of Interest to Canada’s Energy Bar

By: Nigel Bankes

PDF Version: Decision of the High Court of Australia of Interest to Canada’s Energy Bar

Decision commented on: Electricity Generation Corporation v Woodside Energy Ltd, [2014] HCA 7

In this majority decision the High Court of Australia (HCA) concluded that the obligations of a seller under a gas purchase agreement (GSA) to use “reasonable endeavours” to provide the purchaser with a supplemental maximum daily quantity of gas (SMDQ) in addition to an agreed maximum daily quantity of gas (MDQ) did not require the seller to provide any gas at the SMDQ price when market opportunities emerged which afforded the seller the opportunity to sell all its available production beyond MDQ at a much higher price. While any case such as this turns on the particular language of the GSA in question, including the surrounding circumstances known to the parties and the commercial purpose or objects to be secured by the agreement, the case serves as a reminder that terms such as “best efforts” or “reasonable endeavours”, at least when viewed in the self-seeking paradigm of contract, may not offer much comfort to the counterparty in this sort of commercial arrangement.

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What does Fearn v Canada Customs add to OPCA jurisprudence?

By: Admin

PDF Version: What does Fearn v Canada Customs add to OPCA jurisprudence?

Case commented on: Fearn v Canada Customs, 2014 ABQB 114 (CanLII)

The leading case on Organized Pseudolegal Commercial Argument (OPCA) litigation is the Alberta Court of Queen’s Bench decision of Justice John Rooke in Meads v Meads, 2013 ABQB 571 (CanLII) (summarized here). In Fearn v Canada Customs, Justice W A Tilleman very deliberately builds on Meads and develops the court’s responses to OPCA litigants in two ways. First, Fearn sets out guidelines for awarding costs against OPCA defendants in criminal proceedings, a context in which costs are very rarely awarded (at paras 113-139). Second, Fearn adds to what Meads had to say about when OPCA concepts and litigation strategies might amount to contempt of court, whether civil or criminal contempt (at paras 140-256). In this regard, Justice Tilleman identifies some OPCA strategies which, in and of themselves, are prima facie civil contempt. He also urges the use of criminal contempt prosecutions against some of the activities of OPCA “gurus”, i.e., those who sell instructional material and training in OPCA schemes.

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Posted in Civil Procedure: New Rules of Court, Criminal | Leave a comment

Drug Paraphernalia Bylaw Upheld as Constitutional

By: Linda McKay-Panos

PDF Version: Drug Paraphernalia Bylaw Upheld as Constitutional

Case commented on: Smith v St. Albert (City), 2014 ABCA 76

University of Calgary Constitutional law students will find this case interesting and perhaps will feel vindicated when they read this decision; it may also bring back memories of the midterm exam. In an earlier blog (see here) I discussed Justice Terry Clackson’s decision that portions of St. Albert’s Bylaw “restricting the sale and display of items associated with illicit drug consumption are unconstitutional, on the ground that they are, in pith and substance, criminal law and therefore outside the jurisdiction of the municipality” (para 1).

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Posted in Constitutional, Criminal, Municipal Law | Leave a comment

Unilateral Mistake in Integration: When is Rectification an Appropriate Remedy?

By: Evaristus Oshionebo

PDF Version: Unilateral Mistake in Integration: When is Rectification an Appropriate Remedy?

Case commented on: Johnson v Moody, 2014 ABQB 80

A written contract may be executed by the parties on the basis of a unilateral mistake as to a term or terms of the contract. For example, the parties may reach an oral agreement but the terms of the oral agreement may not be accurately recorded in the written contract signed by the parties. This type of mistake, usually referred to as ‘mistake in integration’, may be remedied by an order of rectification particularly where the non-mistaken party’s attempt to take advantage of the written contract would amount to fraud or the equivalent of fraud. As discussed subsequently, a mistake in integration occurred in Johnson v. Moody, a recent decision of the Court of Queen’s Bench of Alberta.

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Worth the Wait – New Estate Administration Act Introduced

By: Maria Lavelle

PDF Version: Worth the Wait – New Estate Administration Act Introduced

Legislation commented on: Bill 4, Estate Administration Act, Second Session, 28th Legislature, 63 Elizabeth II (2014)

In an earlier post, I indicated that the Government of Alberta was likely to introduce new estate administration legislation in the Fall term. Although the original timing estimate was off, new estate administration legislation has now been introduced and, as of the date of this blog, is adjourned in Third Reading.

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Posted in Wills and Estates | Leave a comment

Orders for Genetic Testing: Is the Genie Out of the Bottle?

By: Geoff Costeloe

PDF Version: Orders for Genetic Testing: Is the Genie Out of the Bottle?

Case commented on: Adacsi v Amin, 2013 ABCA 315

A recent decision at the Alberta Court of Appeal raises a major issue in personal injury jurisprudence. Adacsi v Amin, 2013 ABCA 315, is a precedent setting ruling that allows for the forced collection of a blood test for the purpose of determining the existence of a possible predisposition to disease.

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Posted in Health Law, Privacy | 1 Comment

Professional Bodies, Internationally Educated Graduates and the Alberta Human Rights Act

By: Jason Wai and Linda McKay-Panos

PDF Version: Professional Bodies, Internationally Educated Graduates and the Alberta Human Rights Act

Case commented on: Mihaly v The Association of Professional Engineers, Geologists and Geophysicists of Alberta, 2014 AHRC 1

A recent Human Rights Tribunal decision about the actions of the Association of Professional Engineers, Geologists and Geophysicists of Alberta (APEGGA, now called the Association of Professional Engineers and Geoscientists of Alberta or APEGA) has sparked a fair bit of critical commentary (see here and here). Mr. Mihaly filed a complaint with the Alberta Human Rights Commission on August 5, 2008, alleging that he was discriminated against when he was denied registration as a Professional Engineer (PEng). He argued that the requirements imposed upon him by APEGGA for registration are contrary to the Alberta Human Rights Act, RSA 2000, c A-25.5 (AHRA).

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To Be (Justified) or Not To Be: That is (Still) the Question

By: Martin Olszynski

PDF Version: To Be (Justified) or Not To Be: That is (Still) the Question

Document commented on: Decision Statement Issued under Section 54 of the Canadian Environmental Assessment Act, 2012, SC 2012, c19, for Taseko’s proposed New Prosperity Mine Project

A couple of weeks ago, the federal Minister of the Environment, Leona Aglukkaq, released another highly anticipated “decision statement” pursuant to section 54 of the Canadian Environmental Assessment Act, 2012 (CEAA 2012), this time regarding Taseko’s New Prosperity Mine project. Most readers will know that this was Taseko’s second attempt to secure federal approval for its proposed mine and that the federal review panel that conducted the second environmental assessment (EA) concluded that, like the original Prosperity project, it too was likely to result in significant adverse environmental effects (SAEEs) (for more on the panel’s report, see my previous post here). As with Shell’s Jackpine Oil Sands Mine expansion project and Enbridge’s Northern Gateway Pipeline project, this meant that New Prosperity could only proceed if the Governor in Council (GiC) (which is to say, Cabinet) concluded that these SAEEs were “justified in the circumstances” (section 53). Unlike Jackpine (and probably Northern Gateway), however, the GiC has apparently concluded that New Prosperity’s SAEEs are not justified.  I use the term “apparently” here because, as in Jackpine, there is no explanation or rationale contained in the decision statement as to how or why the GiC reached this result.

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