U.S. Supreme Court Narrows Greenhouse Gas Rules: What It Means for the U.S. Climate Agenda

By: James Coleman

PDF Version:U.S. Supreme Court Narrows Greenhouse Gas Rules: What It Means for the U.S. Climate Agenda

Case commented on:Utility Air Regulatory Group v. Environmental Protection Agency (EPA), USSC No. 12–1146 (June 23, 2014)

On Monday, the U.S. Supreme Court struck down a portion of the United States’ first regulations for greenhouse gas emissions from industrial sources. The Court held that the Environmental Protection Agency (EPA) may not apply its “Prevention of Significant Deterioration” (PSD) program to new industrial sources on the basis of their greenhouse gas emissions. Instead, EPA can only regulate greenhouse gas emissions from new sources that are already subject to the PSD program because they emit other pollutants.

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Conservation Easements and Fraud under the Land Titles Act

By: Jonnette Watson Hamilton

PDF Version: Conservation Easements and Fraud under the Land Titles Act

Case commented on: Nature Conservancy of Canada v Waterton Land Trust Ltd, 2014 ABQB 303

This 130 page, 605 paragraph judgment penned by Justice Paul R. Jeffrey deals with a number of note-worthy legal issues in a fascinating factual context. The case started when the Nature Conservancy of Canada (NCC) tried to enforce a conservation easement that it had registered against its title to the Penny Ranch, a large cattle ranch near Waterton Lakes National Park in the south-west corner of the province. One of the main purposes of the conservation easement was to ensure that, when the NCC sold the Penny Ranch, development by the purchasers or their successors in title would not impede wildlife migration through the area, an area which the NCC described as the “North American Serengeti.” The case ended (barring appeals) with Justice Jeffrey finding that defendant’s new bison fence was not a breach of the conservation easement and ordering the NCC to pay over $700,000 to Thomas Olson for the NCC’s failure to issue him a timely tax receipt. In between, numerous legal issues arose, including: (1) the nature of conservation easements under the Alberta Land Stewardship Act; (2) contract rectification; (3) fraud as an exception to indefeasibility; (4) rectification of a caveat with a missing page in the underlying document; and (5) damages for the late issuance of a tax receipt. In this post, I will deal with only one of those issues and that is the fraud issue. Colleagues will address some of the other issues. Continue reading

Posted in Property | 1 Comment

Defining Prosecutorial Discretion (With an Invitation to the Court to Re-define Abuse of Process)

By: Alice Woolley

PDF Version: Defining Prosecutorial Discretion (With an Invitation to the Court to Re-define Abuse of Process)

Case Commented On: R. v. Anderson, 2014 SCC 41

With its unanimous judgment in R. v. Anderson, 2014 SCC 41, the Supreme Court has clarified the scope of “prosecutorial discretion”, distinguishing it from matters that go only to “tactics and conduct before the court” (para 35) while confirming its application to a “wide range of prosecutorial decision making” (para 45).  The Court also confirmed the non-reviewable nature of prosecutorial discretion absent demonstration of an abuse of process, and reviewed the law governing assessment of an abuse of process. Finally, the Court held that Crown counsel have no constitutional obligation to consider an accused’s aboriginal status when they tender Notice to the accused that the Crown intends to seek the mandatory minimum punishment that may be applicable given that accused’s prior convictions.

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Crossed Wires: The AESO-Milner Transmission Loss Saga

By: Sean Bullen

PDF Version: Crossed Wires: The AESO-Milner Transmission Loss Saga

Decision commented on: AUC Decision 2014-110, Application for Review of AUC Decision 2012-104: Complaint by Milner Power Inc. regarding the ISO Transmission Loss Factor Rule and Loss Factor Methodology

On April 16, 2014, an Alberta Utilities Commission panel released Review and Variance Decision 2014-110 (the “R & V Decision”) relating to a complaint made by Milner Power Inc. (“Milner”) in 2005. Milner is a subsidiary of Maxim Power Corp. and is the general partner of the limited partnership owner of the HR Milner power plant, a 150 megawatt coal-fired generation facility located near Grande Cache, Alberta. Milner’s 2005 complaint came on the heels of a change made by the Alberta Electric System Operator (the “AESO”) to the rule and methodology employed to determine the allocation among Alberta’s electricity generation owners of “transmission losses” resulting from the transmission of electricity from the sources of generation to the locations of consumer load. A lengthy regulatory entanglement has ensued involving each of the province’s leading electricity generators, including TransAlta, Capital Power, ATCO, ENMAX and TransCanada, together with Milner and the AESO. Coming nearly a decade after Milner’s original complaint, the R & V Decision represents a partial step toward resolution of the transmission losses issue. However, much remains unsettled. This comment will provide some background to the decision, summarize its procedural history, review the R & V Decision itself and consider the path forward. Continue reading

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“Arbitrary Disadvantage”: A Slip of the Pen or Something More?

By: Jennifer Koshan

PDF Version: “Arbitrary Disadvantage”: A Slip of the Pen or Something More?

Case commented on:McCormick v Fasken Martineau DuMoulin LLP, 2014 SCC 39

I have written several ABlawg posts on the test for discrimination under human rights legislation (see e.g. here, here and here). The ongoing issue in this series of cases is the extent to which the test for violations of equality rights under section 15 of the Charter should influence the approach in the human rights sphere. In the Supreme Court’s most recent human rights decision, McCormick v Fasken Martineau DuMoulin LLP, 2014 SCC 39 (CanLII), the Court continues to muddy the waters on the appropriate test. Linda McKay Panos has already written about the McCormick case and its implications for employment related complaints of discrimination here. As she noted in that post I have a few things to say about the case as well.

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#Yesallwomen/#Notallmen: Sexual Harassment in the Legal Profession

By: Alice Woolley

PDF Version:#Yesallwomen/#Notallmen: Sexual Harassment in the Legal Profession

How do we understand bad things done to women by men?  Through the few men who do them (#Notallmen)?  Through misogyny in our culture as a whole?  Through the experience of all women living with the risk that such bad things can happen (#Yesallwomen)? The ferocity of recent internet debate on this topic clouds the possibility that harm done by men to women should be understood as about all these things: the men who inflict it, the society in which it occurs and the lives of the women who live with the possibility of that threat.

In this post I explore the thought that sexual harassment and sexual discrimination in the legal profession must be understood with this sort of breadth of perspective: it is conduct reflecting the pathologies of the specific men who do it; it in no way reflects the conduct of all – or even that many – men in the profession; yet it is conduct that reflects aspects of our professional culture, aspects that we need to address to achieve gender equity and fairness.

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Posted in Ethics and the Legal Profession | 2 Comments

Sealing: It’s a Moral Not a Technical Issue and Animals Outweigh Indigenous Communities

By: Elizabeth Whitsitt and Nigel Bankes

PDF Version: Sealing: It’s a Moral Not a Technical Issue and Animals Outweigh Indigenous Communities

Decision commented on: World Trade Organization, Appellate Body Report – European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (22 May 2014)

Just a few short weeks ago the World Trade Organization (WTO) issued its final word on the legality of a regime that bans seal products from the European Union (EU) market. In a decision that has Canadian and EU officials claiming victory, the WTO Appellate Body (AB) determined that the EU’s ban on seal products is justified under the right to protect public morals, specifically on the grounds of protecting animal welfare. The AB also found, however, that the ban is discriminatory in the way it is applied, and should be modified in order to fully comply with international trade obligations.

Briefly summarized, the measure at issue in this case bans the sale of seal products in all EU member states, subject to certain implicit and explicit exceptions. Explicitly, the measure permits the sale of seal products in the EU market if those products are: (i) derived from hunts carried out by indigenous peoples (IC), (ii) derived from hunts that were conducted for the sustainable management of marine resources (MRM), (iii) or personally imported into the EU by travellers. Implicitly, the measure also permits the import of seal products into the EU for process and re-export, a convenient loophole that protects commercial interests within the EU.

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Supreme Court Limits Employment Relationship in Human Rights Cases

By: Linda McKay-Panos

 PDF Version: Supreme Court Limits Employment Relationship in Human Rights Cases

Case commented on: McCormick v Fasken Martineau DuMoulin LLP, 2014 SCC 39

In an earlier post, I expressed hope that in McCormick, the Supreme Court of Canada would clear up the issue of “employment” in human rights cases. They have certainly spoken, but perhaps have not cleared up the issue in the way I was hoping they would.

Until recent times, employment (i.e. the legislative terms “employ”, “employee”, “employer”) was given a large and liberal interpretation, in keeping with the notion that human rights law is quasi-constitutional.  For example, an employment relationship would be found to exist for human rights law, where it might not be found for tax law. The trend of narrowing the interpretation of employment may contradict the educational and remedial purposes of human rights law. Concerns about this trend in law may explain why several human rights commissions —including Alberta’s—intervened in this Supreme Court of Canada case.

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Bishop Tutu: His Challenge to the Legal Profession on the Morals and Ethics of Climate Change

By: Kathleen Mahoney

PDF Version: Bishop Tutu: His Challenge to the Legal Profession on the Morals and Ethics of Climate Change

Conference commented on: As Long as the Rivers Flow: Coming Back to the Treaty Relationship in our Time, Fort McMurray, AB, May 31-June 1, 2014

 I was privileged this past weekend to hear Desmond Tutu speak at a conference on climate change and treaty rights in Fort McMurray Alberta. (See the program here). His remarks were directed at climate change in general and the Alberta oil sands development in particular. He clearly made the link between carbon emissions from the oil sands and climate change. He then situated the issue of climate change squarely in a moral and ethical dimension. He argued that consideration of this dimension must play a central role in legal and policy decisions about responses here in Canada and around the world.

It is clear that Tutu’s ethical and moral concerns touch on fundamental rights and the very nature of justice and equity. Distributive justice, compensatory justice, procedural justice and human rights are all implicated. We heard from many speakers at the conference that in the Canadian context, First Nations bear the brunt of resource development when their treaty rights, food sources, water and cultures are compromised by climate change and environmental damage.

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Posted in Climate Change | 1 Comment

Greenpeace v Canada: Symbolic Blow to the Nuclear Industry, Game-changer for Everyone Else?

By: Martin Olszynski

 PDF Version: Greenpeace v Canada: Symbolic Blow to the Nuclear Industry, Game-changer for Everyone Else?

Case commented on: Greenpeace Canada v Canada (Attorney General), 2014 FC 463 (CanLII)

In this lengthy (431 paragraphs) decision, the Federal Court allowed in part Greenpeace et al’s application for judicial review regarding the Joint Review Panel report(the Report) for the Darlington New Nuclear project proposed by Ontario Power Generation (OPG). Justice Russell held that the environmental assessment (EA) conducted by the Joint Review Panel (JRP) failed to comply with the Canadian Environmental Assessment Act, SC 1992 c 37 (as it then was).  Specifically, there were gaps in the treatment of hazardous substances emissions and spent nuclear fuel, and a failure to consider the effects of a severe “common cause” accident.  As noted by the media, while the decision is of limited effect on a project already indefinitely postponed by the province, “it is a symbolic blow to an industry coping with the public and political fallout from Japan’s 2011 Fukushima meltdown.”  As further discussed below, the decision is also likely to have implications for EA in Canada generally and several other projects currently making their way through either the regulatory process or the courts, including Taseko’s New Prosperity mine, Enbridge’s Northern Gateway pipeline and Kinder Morgan’s Trans Mountain pipeline.

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