By: Theresa Yurkewich
PDF Version: Uber Lives to Ride Another Day
Case Commented On: Edmonton (City) v Uber Canada Inc., 2015 ABQB 214
As a result of Uber’s activation in Edmonton, the City of Edmonton brought an application for a statutory interlocutory injunction, enjoining Uber Canada Inc. (“Uber Canada”) from conducting business in Edmonton without a valid business license or taxi broker license. The City did not name Uber B.V. or Rasier Operations B.V. (collectively, “Uber Companies”), the larger corporate affiliates associated with Uber Canada, in the action. In short, the City’s application was dismissed as it failed to establish a clear and continuing breach of the relevant Bylaws by Uber Canada, and it neglected to name the right entity to be enjoined (see Edmonton (City) v Uber Canada Inc., 2015 ABQB 214). This was one of the first legal challenges to the crowd favoured App within Canada and it will likely have a wide impact on the development and approach of Uber in other municipalities.
By: Nigel Bankes
PDF Version: Summary Judgment on Contested Amounts Owing under Natural Gas Processing and Related Agreements
Case Commented On: SemCAMS ULC v Blaze Energy Ltd, 2015 ABQB 218
This is an important judgment on the interplay between the rules for the interpretation of contracts and the post Hryniak law on summary judgment: see Hryniak v Mauldin, 2014 SCC 7. The short version of the holding is that a producer cannot avoid summary judgment for outstanding amounts owing under a natural gas processing or related agreement on the basis that the producer has called for an audit of the operator’s accounts or otherwise disputes the amounts owing – at least where the agreements in question clearly oblige producers to settle invoices promptly, notwithstanding the existence of a dispute as to whether the invoices properly reflect the amounts owing.
By: Linda McKay-Panos
PDF Version: Alberta Arbitration Decision Embraces Broadening Trend on Family Status Discrimination
Case Commented On: SMS Equipment Inc v Communications, Energy and Paperworkers Union, 2015 ABQB 162
The definition of discrimination on the basis of family status has recently been extended in federal and provincial human rights law to mean not only one’s relationship to another person, but also to include recognition of childcare responsibilities. The leading case, Canada v Johnstone, 2014 FCA 111, was discussed in previous ABlawg posts (see here). The decision SMS Equipment Inc v Communications, Energy and Paperworkers Union, 2015 ABQB 162, demonstrates that Alberta labour arbitrators have joined the “family”.
SMS Equipment applied for judicial review of the arbitration award of Arbitrator Lyle Kanee. Arbitrator Kanee concluded that the employer, SMS, must accommodate Ms. Cahill-Saunders, a single mother of two children. She first worked as a labourer for SMS, and was required to work rotating seven night and seven day shifts, after moving from Newfoundland to Fort McMurray. Cahill-Saunders had one son when she was hired, and he remained in Newfoundland with his grandmother for the first nine months she worked in Fort McMurray, joining her later. At that time, the baby’s father lived in Fort McMurray and provided some childcare while Cahill-Saunders worked, although they did not cohabit (at para 5).
By: Nigel Bankes
PDF Version: Crown Oil Sands Dispositions and the Duty to Consult
Case Commented On: Buffalo River Dene Nation v Ministry of Energy and Resources and Scott Land and Lease Ltd, 2015 SKCA 31
The Saskatchewan Court of Appeal has confirmed Justice Currie’s decision (discussed here) to the effect that the grant of an oil sands exploration permit in Saskatchewan does not trigger the Crown’s duty to consult principally on the grounds that that there is no potential for conflict between the rights conferred by the permit and the First Nation’s treaty rights. This is because the permit alone gives the permittee no right to use the surface while the First Nation (at para 88) “does not advance here a treaty right or Aboriginal claim to subsurface rights or rights exercisable in relation to the subsurface of Treaty 10 lands.” Furthermore, at the time that the permit is granted there is no project on which to consult about; this will only become apparent when the permittee (if ever) develops a plan for its proposed exploration or development of the underlying minerals which requires surface access – at which time consultation will occur. And (at para 92) “It is at this point that the Crown and Buffalo River DN would have something meaningful, in the sense of quantifiable, to consult about, to reconcile.” Until then there is no project.
By: Nigel Bankes
PDF Version: The Bilcon Award
Award Commented On: The Claytons and Bilcon v Canada, NAFTA, UNCITRAL Rules, 17 March 2015
Once again Canada has lost an important investor/state arbitration under Chapter 11 of NAFTA (for a post on Canada’s last reversal (Mobil and Murphy), also characterized by a strong dissent, see Regulatory Concussion). The Clayton family and Bilcon Inc (US investors, the claimants) were hoping to develop a quarry in Digby Neck, Nova Scotia. The project was sent to a joint federal/provincial environmental review panel (JRP) by both levels of government. The JRP recommended rejection and both governments accepted that recommendation, and thus the project died. The claimants took the view that the JRP process was badly flawed. They were of the opinion that the panel had recommended rejection on the basis that the project would be inconsistent with “community core values” and furthermore that the panel had deliberately failed to identify any mitigation measures that might make the project acceptable. However, instead of seeking judicial review of the JRP in the Federal Court the claimants commenced this NAFTA arbitration. They have been rewarded with a majority decision in their favour. The majority (Judge Bruno Simma and Professor Bryan Schwartz) found that Canada had breached both Article 1105 (minimum standard of treatment (MST) – even as constrained by the Interpretation Note (2001) issued by NAFTA contracting parties here) and Article 1102 (national treatment standard). The matter will now go back to the tribunal for it to assess damages. Professor Donald McRae delivered a strong dissent contending that the majority had turned what was nothing more than a possible breach of domestic law into an international wrong. I have nothing to add to McRae’s excellent critique (and see also Meinhard Doelle’s post on the decision); my purpose here is to review some of the implications of the Award from a number of different perspectives.
By: James Coleman
PDF Version: “Do Corporations Cry Wolf? — Comparing What Companies Tell Regulators With What They Tell Investors”
Corporations regularly complain that new regulations will harm their business and the broader economy. How seriously should we take those warnings? I’ve just posted a paper that presents a way of answering this perennial question.
It’s often said that corporations, “Cry Wolf,” falsely predicting that rules will be very costly. A prime example comes from 1970 when Ford’s President, Lee Iacocca warned that the U.S. Clean Air Act “could prevent continued production of automobiles” and was “a threat to the entire American economy and to every person in America.” So when industry says that new regulations such as the U.S. Environmental Protection Agency (EPA) Clean Power Plan or Alberta’s rules for cleaning up tailings ponds will be unworkable, some suggest that regulators should just ignore those warnings.
But the problem with crying wolf is that there are wolves. That is, false alarms are dangerous because they mean we won’t respond to true threats. And from time to time, regulations really are unworkable, and industry might be the first to recognize this, which is why regulators don’t just ignore industry warnings.
By: Joshua-Sealy Harrington
PDF Version: Can the Homeless Find Shelter in the Courts?
Case Commented On: Tanudjaja v Canada (Attorney General), 2014 ONCA 852
Late in 2014, the Ontario Court of Appeal considered a Charter challenge to provincial and federal (in)activity allegedly contributing to homelessness and inadequate housing (Tanudjaja v Canada (Attorney General), 2014 ONCA 852 (“Tanudjaja CA”)). The appellants sought to overturn a motion judge’s decision striking their application at the pleadings stage (Tanudjaja v Canada (Attorney General), 2013 ONSC 5410 (“Tanudjaja SC”)). A majority of the Court of Appeal (the “Majority”) upheld the motion judge, while the dissenting judgment (the “Dissent”) would have overturned the motion judge and allowed the Charter challenge to proceed to trial. This comment analyzes both judgments and concludes that the Dissent provides a more compelling analysis of the governing legal principles and their application in this case.
By: Martin Olszynski
PDF Version: Environmental Damages under Bill C-46 (Pipeline Safety Act)
Legislation commented on: Bill C-46: An Act to Amend the National Energy Board Act and the Canada Oil and Gas Operations Act
Yesterday, I had the opportunity to appear before the House of Commons Standing Committee on Natural Resources in the context of its study of Bill C-46, referred to as the Pipeline Safety Act, which amends the National Energy Board Act, RSC 1985 c N-7 and the Canada Oil and Gas Operations Act, RSC 1985 c 0-7. Below are my speaking notes in slightly modified form. Interested readers are also referred to the Library of Parliament’s Legislative Summary of Bill C-46; you will also find commentary on the Bill here and here. Continue reading
By: Nigel Bankes
PDF Version: An Update on the Northern Gateway Litigation
Cases Commented On: Forest Ethics Advocacy Association v Northern Gateway Pipelines Inc, 2015 FCA 26; Gitxaala Nation v Northern Gateway Pipelines Inc, 2015 FCA 27; Gitxaala Nation v Northern Gateway Pipelines Inc, 2015 FCA 73
This post provides an update on the various challenges that have been mounted to Enbridge’s Northern Gateway Project (NGP). ABlawg has been following this project for some time. Earlier posts include a post on the relationship between the National Energy Board (NEB) and the Governor in Council, a post on BC’s conditions for oil pipelines as well as a series of posts by Shaun Fluker here, here and here particularly on Species at Risk Act (SC 2000, c.29) issues with respect to the report of the Joint Review Panel (JRP) and the Governor in Council’s decision, and Martin Olszynski’s post on the JRP Report. In addition, I offered an earlier account of the Federal Court proceedings in August 2014 which was published in Energy Regulation Quarterly.
By: Glen Luther, Q.C. and Dr. Mansfield Mela
PDF Version: Mental Illness and Sentencing: Blaming the Mentally Ill for their Lack of Cooperation with Inadequate Treatment in R v Maier
Case Commented On: R v Maier, 2015 ABCA 59
Mental illness presents a difficult issue for the sentencing judge. The Criminal Code, RSC 1985, c C-46 requires that in sentencing an accused a court must apply the fundamental principle of sentencing, contained in s. 718.1, which requires that:
A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
In sentencing a mentally ill offender who has been convicted of an offence a judge must decide on the degree of responsibility of the offender and balance that against the gravity of the offence. It is clear of course that many mentally ill individuals are in fact guilty of the offence they committed as the provisions of s.16 of the Code relating to criminal responsibility are very narrow and exempt only the rare individual from being seen as having committed their crime. How then do we sentence the guilty but mentally ill offender and how do we decide how responsible they are for the offending behaviour?