The Annex VII Tribunal in The “Enrica Lexie” Incident Makes New Provisional Measures Order

By: Nigel Bankes

PDF Version:The Annex VII Tribunal in The “Enrica Lexie” Incident Makes New Provisional Measures Order

Decision commented on: Annex VII Arbitral Tribunal, Order on Prescription of Provisional Measures in the “Enrica Lexie” Incident, Registry of the Permanent Court of Arbitration, 29 April 2016

The “Enrica Lexie” incident has already been the subject of an earlier post here in relation to the provisional measures order made by the International Tribunal for the Law of the Sea (ITLOS) pending the establishment of the Annex VII Tribunal in the matter. The facts of the matter and the unusual nature of ITLOS’s jurisdiction in cases of this sort are canvassed in that earlier post. The characterization of the dispute as summarized by the Annex Tribunal VII is as follows (at para 5):

According to Italy, the Parties’ dispute arises from an incident approximately 20.5 nautical miles off the coast of India involving the “MV Enrica Lexie”, an oil tanker flying the Italian flag, and India’s subsequent exercise of criminal jurisdiction over the vessel and two Italian marines from the Italian Navy, Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone, in respect of that incident. According to India, the “incident” in question concerns the killing of two Indian fishermen, on board an Indian vessel named the “St. Antony”, and the subsequent exercise of jurisdiction by India. It is alleged that the fishermen were killed by the two Italian marines stationed on the “Enrica Lexie”. Continue reading

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Posted in Arbitration, International Law, Law of the Sea | Leave a comment

A National Code of Conduct?

By: Alice Woolley

PDF Version: A National Code of Conduct?

Document Commented On: The Federation of Law Societies of Canada’s Model Code of Professional Conduct

I like the Federation of Law Societies’ Model Code of Conduct. It’s not perfect.   But it represents the culmination of considerable effort and reflection by intelligent and thoughtful lawyers. It provides meaningful guidance on a number of issues that lawyers face, particularly in relation to conflicts of interest. It provides a vehicle for national discussion and for work on emerging issues and on areas requiring reform.   The Federation has done some truly great things with the Code, such as having a Standing Committee to update and revise the Code on an ongoing basis, and creating an interactive website where the provisions of the Federation’s Code can be cross-referenced with similar provisions applicable in every Canadian province.

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Court of Queen’s Bench Strikes Prohibition on Pharmacy Inducements in Alberta

By: Shaun Fluker

PDF Version: Court of Queen’s Bench Strikes Prohibition on Pharmacy Inducements in Alberta

Case Commented On: Sobeys West Inc v Alberta College of Pharmacists, 2016 ABQB 232

In late March I wrote a post commenting on the difficult application of a standard of review analysis to a vires determination of subordinate legislation – see Does the Standard of Review Analysis Apply to a Vires Determination of Subordinate Legislation? The decision before me then was Sobeys West Inc v Alberta College of Pharmacists, 2016 ABQB 138, wherein Mr. Justice V.O. Ouellette selected the standard of correctness to assess the vires of a prohibition enacted as subordinate legislation by the Alberta College of Pharmacists (“College”). This comment now looks at the substantive decision issued April 22 by Justice Ouellette ruling that the prohibition is ultra vires the College. I think there are some doctrinal problems with the reasoning in this judgment which I explain below, and I conclude this comment by shining some light on the fact that the successful party – Sobeys – is a large and powerful national grocery retailer in Canada who appears to convince the Court that this matter is more about consumers than patients.  Continue reading

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Excluding Mere Intimate Relationships: The Alberta Court of Appeal Interprets the Protection Against Family Violence Act

By: Jennifer Koshan

PDF Version: Excluding Mere Intimate Relationships: The Alberta Court of Appeal Interprets the Protection Against Family Violence Act

Case Commented On: Lenz v Sculptoreanu, 2016 ABCA 111 (CanLII)

The Protection Against Family Violence Act, RSA 2000, c P-27 (PAFVA) allows “family members” to obtain emergency protection orders (EPOs) on an ex parte basis, in circumstances where “family violence” has occurred, the claimant “has reason to believe that the respondent will continue or resume carrying out family violence”, and “by reason of seriousness or urgency, the order should be granted to provide for the immediate protection of the claimant and other family members who reside with the claimant” (section 2). In the context of intimate relationships, “family member” is defined to mean “persons who are or have been married to one another, who are or have been adult interdependent partners of one another or who are residing or have resided together in an intimate relationship.” Family member also includes those who are “parents of one or more children, regardless of their marital status or whether they have lived together at any time” (section 1(1)(d)).

In Lenz v Sculptoreanu, 2016 ABCA 111 (CanLII), the Alberta Court of Appeal (Justices Rowbotham, Wakeling and Schutz) made a “comprehensive consideration of the language used in the legislation, the scheme of the legislation, and its objects”, and concluded that this definition does not include persons who have been involved in an intimate relationship without residing together and do not fall within the definition of “adult interdependent partner” in the Adult Interdependent Relationships Act, SA 2002, c A-4.5(at para 4).

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Expiration of Confidentiality also gives Boards the Liberty to Copy and Distribute

By: Nigel Bankes

PDF Version: Expiration of Confidentiality also gives Boards the Liberty to Copy and Distribute

Case Commented On: Geophysical Services Incorporated v Encana Corporation, 2016 ABQB 230

This decision involves rights to seismic data. Under Canadian law (and here specifically the rules established for federal lands in the north and the east coast offshore) seismic data filed with government is treated as privileged or confidential for a period of years. The principal issue in this case was the question of what rules apply once that protection comes to an end. Is it open season or do the creators of the seismic data retain some rights and in particular their copyright entitlements? In her decision Justice Kristine Eidsvik has decided that it is open season.

The decision is part of complex case-managed litigation commenced by Geophysical Services Inc (GSI) in 25 actions against the National Energy Board (NEB), the Canada-Newfoundland Offshore Petroleum Board (CNOPB) (the Boards) and numerous oil and gas companies, seismic companies and companies providing copying services. GSI claims that copyright subsists in seismic data and that its copyright protection survives the confidentiality period. Furthermore, it claims that access to the seismic information after the loss of confidentiality is governed by the Access to Information Act, RSC 1985, c A-1 (AIA) and that there is no open season on access or copying.

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Posted in Intellectual Property, Oil & Gas, Property, Statutory Interpretation | Leave a comment