Does a Privative Clause Completely Oust Judicial Review?

By: Shaun Fluker

PDF Version: Does a Privative Clause Completely Oust Judicial Review?

Case Commented On: Green v Alberta Teachers’ Association, 2015 ABQB 379

Green v Alberta Teachers’ Association is a short judgment by Justice T.D. Clackson in a judicial review of disciplinary action taken by the Alberta Teachers’ Association. A hearing committee organized under the bylaws of the Association found that Green had committed professional misconduct. Green appealed that decision to a 4 person appeal committee under the Association bylaws, and the appeal committee split 2 – 2 on whether to grant Green’s appeal. The tie vote resulted in the committee dismissing her appeal because of an Association bylaw that states the decision of a committee shall be by majority. Green sought judicial review on the grounds that it was procedurally unfair to lose her appeal on a tie or, alternatively, that the appeal committee’s decision was unreasonable for failing to follow an earlier Court of Appeal decision on point. Justice Clackson dismisses Green’s application, and in doing so he makes some interesting remarks on the application of privative clauses to judicial review.

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First Nations Education Funding: The Case of Sloan & Marvin

By: Elysa Hogg

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Sloan and Marvin Miller are twin children with Down Syndrome and because of where they live, their government refuses to provide them with the special education support that they need to go to school.

This story does not take place in Apartheid South Africa, or the Jim Crow South – Sloan and Marvin live in Ontario.

It was estimated by the Mississaugas of New Credit First Nation, where Sloan and Marvin reside, that $80,000 a year would be needed for the Miller twins to receive the education that they need. Aboriginal Affairs and Northern Development Canada (AANDC) denied a request for funding, and instead recommended that the Nation take the needed amount from their already insufficient $165,000 a year education budget. In June of 2009 the Mississaugas lodged a formal human rights complaint with the Canadian Human Rights Commission on behalf of Sloan and Marvin. The claim will be heard at the Tribunal sometime this year, but there has already been great speculation about the arguments both sides will raise.

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Supreme Court: EPA Should Have Considered Cost When Deciding Whether Mercury Limits for Power Plants Were Appropriate

By: James Coleman

PDF Version: Supreme Court: EPA Should Have Considered Cost When Deciding Whether Mercury Limits for Power Plants Were Appropriate

Case Commented On: United States Supreme Court, Michigan v. United States Environmental Protection Agency (June 29, 2015)

On Monday the United States Supreme Court held that the Environmental Protection Agency (EPA) improperly refused to consider costs when determining whether it was “appropriate and necessary” to regulate mercury emissions from power plants under the Clean Air Act. Ultimately, the EPA may be able to keep the same rules after going back and explaining why the cost of the regulations is justified in the circumstances. But the decision is an important victory for advocates of cost-benefit analysis and those who think environmental agencies should pay more attention to the costs of regulation.

Section 112 of the Clean Air Act directs the EPA to regulate hazardous air pollutants from power plants if it finds “regulation is appropriate and necessary.” 42 U.S.C. §7412. The EPA said that regulation was “appropriate and necessary” even without considering costs because 1) power plant emissions posed risks to human health and the environment that were not eliminated by other provisions of the Clean Air Act and 2) there were controls available to reduce those dangerous emissions. So there was no need for the EPA to consider costs to make its initial decision to regulate, but it promised to consider costs when adopting the actual final regulations for power plants.

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Law Students, Legal Services, and Access to Justice

By: Eleanor A. Carlson

PDF Version: Law Students, Legal Services, and Access to Justice

Legislation and Rules Commented On: Legal Profession Act, RSA 2000, c L-8; Rules of the Law Society of Alberta; Law Society of Alberta Code of Conduct

In June, an ABlawg post reviewed the decision of R v Hanson, 2015 ABPC 118, written by Judge Gaschler. The judgment included an analysis of Calgary based court agent Emmerson Brando’s personal history, his ability to appear as agent on behalf of his client, and the factors that should be considered in making this decision. Judge Gaschler denied Mr. Brando’s leave to appear, finding that to do so would undermine the integrity of the justice system due in part to Mr. Brando’s criminal past as well as the deceptive information found on Mr. Brando’s website where he advertised his agent services (at paras 21 & 22). In their blog post (read the post here), Heather White and Sarah Burton discuss Judge Gaschler’s decision in relation to the unregulated nature of agents and paralegals in Alberta, access to justice, and the disparity in the quality of justice for the those who can afford lawyers and those with lower incomes who cannot. They conclude with the hope that Judge Gaschler’s decision will facilitate a conversation surrounding the regulation of agents in Alberta. In this post, I highlight an additional important player in the conversation surrounding the provision of legal services by non-lawyers and access to justice, the Alberta law student. Continue reading

Posted in Access to Justice | 1 Comment

Announcing Oil and Gas Contracts: An ABlawg ebook

Editor’s Note

ABlawg is pleased to announce the launch of the first in a series of ebooks which we will put together from time to time when we have a critical mass of posts in a particular area. Our first ebook, compiled by Nigel Bankes, concerns oil and gas contracts. Other ebooks that are currently planned will cover oil and gas leases, the Alberta Energy Regulator, Charter equality rights, standing, and carbon law and policy.

Our ebooks will be accessible from a new tab at the top of the ABlawg website, and each ebook will be introduced with a post that will go out by email, RSS feed and Twitter to our subscribers. Each ebook will have a table of contents with hyperlinks to the collected posts and will be fully searchable.

If readers have ideas for ebooks in particular areas or other feedback on this initiative we would be pleased to hear from you.

The introduction to our first ebook happens to be Nigel Bankes’ 200th post for ABlawg, and we congratulate him for being the first ABlawgger to reach this milestone. We also thank Evelyn Tang (JD 2016) for her hard work in producing the ebook.

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Prosecutors as Ministers of Justice?

By: Alice Woolley

PDF Version: Prosecutors as Ministers of Justice?

Three recent cases have brought to light bad behaviour by criminal prosecutors.

In R v Suarez-Noa, 2015 ONSC 3823 Justice Reid ordered a mistrial after the prosecutor suggested “to the jury that the accused had behaved like an animal rather than a human being,” calling the characterization “highly improper” and incapable of being “erased from the minds of the jurors” (at paras 10-11).

According to the CBC, in the Nuttall/Korody bombing trial British Columbia Supreme Court Justice Catherine Bruce said the prosecutors “took my breath away” with the “impropriety” of their decision to show a video to the jury that contained “footage of an actual pressure-cooker explosion.” She further described the prosecutor’s decision to ignore her express instruction not to refer to defences of duress and entrapment as “unspeakable” and as something she had “never experienced… before. Ever.” The CBC reported that Justice Bruce “said she would have called a mistrial had the proceedings not been so protracted and difficult”.

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Posted in Criminal, Ethics and the Legal Profession | 1 Comment

Province of Alberta Announces a Two-step Process for Developing a New Climate Change Policy

By: Nigel Bankes

PDF Version: Province of Alberta Announces a Two-step Process for Developing a New Climate Change Policy

Matter Commented On: Minister Shannon Phillips’ Press Conference on Alberta’s climate change strategy, June 25, 2015

A central element of Alberta’s climate change strategy is the Specified Gas Emitter Regulation (SGER), Alta Reg 139/2007. The SGER imposes greenhouse gas emissions intensity reduction obligations (ultimately 12%) on regulated emitters (facilities that emit in excess of 100,000 tonnes of CO2e per year). A facility may achieve compliance in one of four ways: (1) meeting its target by producing its product with lower carbon inputs, (2) Alberta based offset credits (emission reductions over a business as usual scenario achieved by a non-regulated entity in accordance with an approved protocol), (3) emission performance credits (credits achieved by a regulated facility which beats its compliance target), or, (4) contribution of $15 per tonne (for excess emissions over the compliance target) to the Climate Change and Emission Management Fund (the so-called compliance price).

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Posted in Carbon Capture and Storage, Climate Change, Energy, Environmental | Leave a comment

Worldwide Delisting from Google Search Results: The Significance of Equustek Solutions Inc. v Google Inc.

By: Emily Laidlaw

PDF Version: Worldwide Delisting from Google Search Results: The Significance of Equustek Solutions Inc. v Google Inc.

Case Commented On: Equustek Solutions Inc. v Google Inc., 2015 BCCA 265

Last week the British Columbia Court of Appeal issued its much anticipated decision in Equustek Solutions Inc v Google Inc, 2015 BCCA 265, concerning an interlocutory injunction against Google requiring it to delist certain websites from its search results. There is much to analyze concerning this case. For the purposes of this post I will focus my discussion on why this case is of such significance, not only to Canada, but internationally, contextualizing the case within the wider international legal debates concerning the legal and social responsibilities of intermediaries such as Google.

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Posted in Internet Law | 1 Comment

The Social Licence to Operate: Mind the Gap

By: Nigel Bankes

PDF Version: The Social Licence to Operate: Mind the Gap

This post is based on an invited presentation that I gave at the Canadian Energy Law Forum on May 14, 2015 in Lake Louise. I began my remarks by looking at the three elements of the social licence to operate and then offered a summary of a lecture given by Rowland Harrison at the University of Alberta on March 10, 2015 from his position as the TransCanada Chair in Administrative and Regulatory Law, entitled “Social Licence to Operate: The Good, the Bad and the Ominous.” Mr. Harrison is a former member of the National Energy Board. I concluded my remarks by reflecting on four issues: (1) the normative context for thinking about the social licence to operate, (2) why it is that industry itself uses the term “social licence to operate”, (3) the need to narrow the gap between the legal licence and the idea of the social licence, and (4) the implications of allowing the social licence to operate as a veto.

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Posted in Energy, Environmental, Rule of Law | 1 Comment

Keep It To Yourself: The Private Use Exception for Child Pornography Offences

By: Joshua Sealy-Harrington and Ashton Menuz

PDF Version: Keep It To Yourself: The Private Use Exception for Child Pornography Offences

Case Commented On: R v Barabash, 2015 SCC 29

Last month, the Supreme Court of Canada revisited the Private Use Exception – a defence to the possession and creation of child pornography – in R v Barabash, 2015 SCC 29. The unanimous judgment, authored by Karakatsanis J, clarified the analytical framework relating to the Private Use Exception and elaborated on how courts should assess exploitative relationships in which child pornography may be made. This post explains the Private Use Exception, describes its evolution in the jurisprudence, and explores questions left unanswered by the Court’s decision in Barabash.

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