PDF version: Public Interest Standing and a Statutory Right of Appeal

Case Considered: Pembina Institute for Appropriate Development v Alberta (Utilities Commission), 2011 ABCA 302

The Pembina Institute for Appropriate Development (”Pembina”) recently sought leave of the Alberta Court of Appeal to appeal the June 30, 2011 interim decision of the Alberta Utilities Commission (”AUC”) to approve the construction of a coal-fired power generation facility by Maxim Power Corp. (”Maxim”) in Alberta. In Pembina Institute for Appropriate Development v Alberta (Utilities Commission), 2011 ABCA 302, Madam Justice Patricia Rowbotham denies the Pembina application for leave to appeal. However in her reasons for decision, Justice Rowbotham adds to the Alberta jurisprudence on public interest standing. I will first describe the parameters of the leave application before discussing the standing matter.

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PDF version: “Safe and enjoyable and reasonable use”:  Of public space, public fighting and Edmonton’s defence of its Public Places Bylaw

Case considered: R v Keshane, 2011 ABQB 525

A recent Alberta Court of Queen’s Bench decision, R v Keshane, 2011 ABQB 525 (”Keshane“) has further refined the contentious, and important issue of how much control a municipal authority can have over shared public space. The judgment in Keshane decisively rejected a defence that the passage and application of a City of Edmonton bylaw prohibiting public fighting was beyond the power of the municipal government. In its judgment the court concluded that Edmonton’s Public Places Bylaw was a valid exercise of municipal authority because (at para 118) “in pith and substance it relates to the purpose of providing safe and enjoyable public places for the benefit of all residents of and visitors to the City…”. The court determined that as a consequence the bylaw fell within provincial authority “as either or both a matter of property and civil rights in the province under subsection 92(13) of the Constitution Act, 1867 or a matter of merely local nature under section 92(16).” The Queen’s Bench judgment overturned an earlier lower court decision R v Keshane, 2010 ABPC 275 (per Judge D.M. Groves) which reached almost exactly the opposite conclusion. The Queen’s Bench judgment is the latest in a string of recent cases in both Alberta and British Columbia in which Constitutional challenges have been launched against municipal restrictions on activities in public space.

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PDF version: Is this the end of an “endless repetition of failed litigation” – at least in Alberta? 

Case considered: Karaha Bodas Company, L.L.C. v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 2011 ABCA 291

The Court of Appeal waxes eloquent in this short judgment that considers the latest episode in what the Court characterized (at para 8 ) as an “endless repetition of failed litigation.” The Court of Appeal - composed of Mr. Justice Jean Côté, Madam Justice Elizabeth McFadyen and Mr. Justice Clifton O’Brien - heard an appeal from an April 1, 2010 order by Mr. Justice T.D. Clackson (Karaha Bodas Company, L.L.C. v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 2010 ABQB 172), an order that I commented on in “Arbitration for the Quick and Final Resolution of Disputes? Hardly.” The subject matter of that order is a procedural morass, the details of which are rather mind-numbing. What is interesting about the latest decision is the Court of Appeal’s characterization of Pertamina’s continuing world-wide litigation as “vexatious”. Will that characterization finally bring a halt to these proceedings, at least in this province?
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PDF version: Should They Stay or Should They Go? Occupy, The City and the Charter

I’ve been to Zuccotti Park in New York City, the base camp of Occupy Wall Street, a few times this fall. The first time was in early October, the day before Mayor Michael Bloomberg told the protestors they had to de-occupy the park for a day to allow a clean-up. The de-occupation was resisted and never happened; the occupiers are still there, sometimes under tarps and in tents. Bloomberg and the City started out as relatively supportive of the occupation, but that support has waned over time with complaints from some nearby residents and business owners about the noise emanating from the Park, as well as concerns about unsanitary conditions, drug use, and assaults (Cara Buckley and Colin Moynihan, “Occupy Wall Street Protest Reaches a Crossroads“, New York Times, Nov. 4, 2011). Similar waning of support is occurring in Canadian cities. Vancouver has now brought an application for a court order that Occupy Vancouver take down their tents from the space in front of the Art Gallery after a 23 year old woman was found dead in her tent, the second apparent drug overdose in a week (Rod Mickleburgh, “Vancouver’s bid to end Occupy protest encampment stalls in court“, Globe and Mail, Nov. 9, 2011). In Calgary, City Council voted on November 7 to order the removal of Occupy Calgary tents from Olympic Plaza (CBC News, “City to remove Occupy Calgary tents in Olympic Plaza“, Nov. 7, 2011). What does the law say about all of this, and in particular, is the Globe and Mail’s recent editorial correct that “There is no constitutional right to Occupy“?

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PDF version: Bill 16, 2011: Alberta Paves the Way for Cleaner Coal with In Situ Coal Gasification

Legislation commented on: Bill 16 - Energy Statutes Amendment Act, 2011

On 13 May 2011, the Legislative Assembly of Alberta passed the Energy Statutes Amendment Act (”Bill 16, 2011″). Bill 16, 2011 amends the following acts: the Alberta Utilities Commission Act, RSA 2007, c A-37.2, the Coal Conservation Act (CCA), RSA 2000, c C-17, the Electric Utilities Act, RSA 2003, c E-5.1, the Gas Utilities Act, RSA 2000, c G-5, the Oil and Gas Conservation Act (OGCA), RSA 2000, c O-6, the Oil Sands Conservation Act (OSCA), RSA 2000, c O-7, and the Pipeline Act (PA), RSA, c P-15. The amendments entered into force on 13 May 2011.

Bill 16, 2011 implements two central amendments to the regulatory regime of the above mentioned energy laws. The first amendment removes the Industrial Development Permit (IDP) legislation (see ERCB Bulletin 2010-42). In short, section 51 of the CCA, section 111 of the OGCA and section 27 of the OSCA cancel existing IDPs. The general repeal of these provisions makes it unnecessary to apply for an IDP in the future. See previous post by Nigel Bankes here. The second amendment clarifies the ERCB’s authority to regulate in situ coal development and sets out the requirements for in situ coal projects (see ERCB Bulletin 2009-36).

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PDF version: Lawyers regulating lawyers? 

Decision considered: Law Society of British Columbia v Laarakker Law Society of British Columbia Disciplinary Hearing Reports, September 21, 2011

Introduction

A disciplinary decision by the Law Society of British Columbia does not fall within the usual mandate of ABlawg. It is not an Alberta decision, nor even a judicial one, and has no direct precedential significance for Alberta lawyers or courts. The decision warrants comment, however, because the threat it creates to the legitimacy of lawyer self-regulation applies to all Canadian law societies. Specifically, the misdirection in regulatory energy reflected by the decision of the Law Society of British Columbia in this case is something to which all Canadian law societies have shown themselves to be susceptible.

This comment is a plea to the law societies to think more carefully about the cases they pursue; to take more seriously conduct by lawyers that undermines the rule of law; and, to allow lawyers to hold each other to account in circumstances where there is a reasonable basis to allege misconduct, even if lawyers sometimes do so with “incivility”. Law societies suggest that the public will lose faith in the legal profession if we do not treat each other with courtesy and civility, perhaps thinking that our own criticisms will make the public critical, and less able to access legal services even if they need them. I want to offer an alternative suggestion: the public will lose faith in us if we silence legitimate criticism and debate, and if we do nothing about lawyers who engage in conduct that could be reasonably characterized as extortion with letterhead.

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PDF version: Section 19 of the Perpetuities Act and the oil and gas lease as a fee simple determinable estate of a profit à prendre 

Statute commented on: Perpetuities Act, RSA 2000, c P-5.

In a couple of years we will “celebrate” the fortieth anniversary of the Perpetuities Act of 1972, SA 1972, c 121. They may not know it yet, but the wildest celebrations will be heard from those who hold oil and gas leases granted after July 1, 1973 which are still in force. Here’s why. After that date, as each and every oil and gas lease reaches its fortieth birthday, the lessor’s possibility of reverter for terminating the lease for want of production comes to an end; thenceforward the lease can only be terminated for cause (as described in the default clause of the leases) such as the non-payment of royalties, which causes can typically be cured without losing the lease. Lessees will become the effective owners of the oil and gas estate.

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 PDF version: SCC Wrongly Accused of “Judicial Activism” in Recent Insite Case

Decision considered: Canada (A.G.) v PHS Community Services Society (”Insite“)

The recent SCC judgment in the Insite case has been said to “threaten peace between judges and legislators” (see Kirk Makin, “Landmark Insite decision threatens peace between judges and legislators” October 10, 2011 Globe and Mail Online (Makin). I am not sure that I agree with this sentiment.

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PDF version: Cleaning up Coal

Regulations commented on: Federal Draft Regulations “Reduction of Carbon Dioxide Emissions from Coal-Fired Generation of Electricity Regulations” as of 27 August 2011

On 27 August 2011 the federal government published proposed regulations on the “Reduction of Carbon Dioxide Emissions from Coal-Fired Generation of Electricity” (the “Regulations”). The Regulations are open for comments for a 60-day public consultation period. The final Regulations will be published next year.

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As noted in previous posts, in its newsletter titled JSS Barristers Rules JSS Barristers provides summaries of cases considering the new Alberta Rules of Court, Alta Reg 124/2010.

Issue 3 of the Newsletter and updated Cumulative Summary are now available here.

The JSS Barristers website, www.jssbarristers.ca, features a Cumulative Summary of Court Decisions which considers the Alberta Rules of Court. The Cumulative Summary of the Rules is organized by the Rule considered, and includes an expanded summary of the Decisions including key quotations from the Decisions. It is updated regularly to ensure that it provides an ongoing and current resource for those interested in the consideration of the Rules of Court on a cumulative basis.

Those who are interested in receiving future editions of JSS Barristers Rules can subscribe here.