Monthly Archives: June 2009

Queen’s Bench Follows Business Watch rather than Kellogg, Brown and Root Regarding Jurisdiction of Privacy Commissioner

Case considered: Edmonton Police Service v. Alberta (Information and Privacy Commissioner), 2009 ABQB 268

PDF version: Queen’s Bench Follows Business Watch rather than Kellogg, Brown and Root Regarding Jurisdiction of Privacy Commissioner

In an earlier post on Kellogg, Brown and Root (“KBR“), 2007 ABQB 499, I noted the unfortunate impact on a complainant when, as provided in the Personal Information Protection Act, R.S.A., 2000, c. 6.5 (“PIPA“), the Privacy Commissioner failed to launch an Inquiry within 90 days, and the Alberta Court of Queen’s Bench held that PIPA s. 50(5) was mandatory. Thus, the Privacy Commissioner lost jurisdiction. The matter was appealed, and Alberta Court of Appeal did not deal with the issue, as the complainant had died, and the appeal was declared moot (see 2008 ABCA 384).

The Edmonton Police Service (“EPS”) case seems to indicate that the KBR decision may be distinguished and confined to its specific facts.

Continue reading →

Has a recent Queen’s Bench decision put the damper on future complaints of privacy breaches in Alberta, especially in the health care setting?

Case considered: Lycka v. Alberta (Information and Privacy Commissioner) and Jane Doe, 2009 ABQB 245

PDF version: Has a recent Queen’s Bench decision put the damper on future complaints of privacy breaches in Alberta, especially in the health care setting?

A Court of Queen’s Bench decision on April 20th to quash orders of the province’s Information and Privacy Commissioner (the Commissioner) should prove to be of little, if any, persuasive value outside of Alberta. However, in this province, it may be accorded weight – even precedential value since the decision has not been appealed – that it does not deserve. As a result of Lycka v. Alberta (Information and Privacy Commissioner) and Jane Doe, the name of a person who complains to the Commissioner of a breach of privacy must be disclosed to the party alleged to have committed the breach. Consequently, Alberta residents may be reluctant to bring forward complaints about privacy breaches, especially when physicians are on the other side.

Continue reading →

After Dunsmuir: The Alberta Court of Appeal’s Identification and Application of Standard of Review May 2008-May 2009

Case considered: Dunsmuir v. New Brunswick, 2008 SCC 9

PDF version: After Dunsmuir: The Alberta Court of Appeal’s Identification and Application of Standard of Review May 2008-May 2009

For a recent session of the Canadian Bar Association’s administrative law sub-section we reviewed Alberta Court of Appeal decisions with respect to the use of Dunsmuir v. New Brunswick, 2008 SCC 9 from May 2008 to May 2009. Here we share some preliminary analysis from our findings.

Continue reading →

Narrowing the prospect of obtaining leave to appeal an ERCB decision: The troublesome aspect of judicial deference

Case considered: Berger v. Alberta (Energy Resources Conservation Board), 2009 ABCA 158 

PDF version: Narrowing the prospect of obtaining leave to appeal an ERCB decision: The troublesome aspect of judicial deference

The Court of Appeal routinely decides applications for leave to appeal an Energy Resources Conservation Board (ERCB) decision on questions of law or jurisdiction pursuant to section 41 of the Energy Resources Conservation Act, R.S.A. 2000, c. E-10 (ERCA). In Berger v. Alberta (Energy Resources Conservation Board), Mr. Justice Frans Slatter denies a request from several applicants for leave to appeal a December 2008 ERCB approval issued to Highpine Oil and Gas to drill 3 sour gas wells in Parkland County west of Edmonton (ERCB decision 2008-135).

Continue reading →

The perils of selling the same property twice (with an aside on styles of appellate decision-making)

Case considered: Castledowns Law Office Management Ltd. v. FastTrack Technologies Inc., 2009 ABCA 148

PDF version: The perils of selling the same property twice (with an aside on styles of appellate decision-making)

This was a dispute between two purchasers of the same piece of commercial real estate in Edmonton, the Vienna Building at 7708-104 Street. The vendor, 1131102 Alberta Ltd, sold the property first to FastTrack Technologies Inc. (FastTrack). That agreement was conditional upon the vendor’s lawyer’s approval. The vendor also entered into a second or back-up agreement with Castledowns Law Office Management Ltd. (Castledowns). The back-up agreement with Castledowns was conditional on “satisfactory confirmation of termination” of the FastTrack agreement. The resolution of the dispute turned on the interpretation to be given those words. This was the issue on which the dissent of Mr. Justice Frans Slatter parted ways with the majority judgment of Madam Justice Carole Conrad, concurred in by Mr. Justice Clifton O’Brien. Was it enough if the vendor could legally terminate the agreement with FastTrack and did so? Or did FastTrack have to ratify any purported termination by the vendor? This contract interpretation issue is perhaps less interesting than the fact that neither the majority nor the dissenting judgment engage with the other on that or any other issue. This style of appellate decision-making has been called “uncooperative” in the empirical literature that examines why justices decide as they do. (See, e.g., Benjamin Alarie and Andrew Green, “Charter Decisions in the McLachlin Era: Consensus and Ideology at the Supreme Court of Canada.”) The label “uncooperative” is not necessarily intended to be pejorative, depending on the reason for the lack of cooperation. Some judges value independence as the best method for achieving internally consistent reasoned decisions. Some Chief Justices encourage certain styles of interaction in the preparation of judgments. Sometimes, however, the lack of cooperation is due to ideological or personal differences. It usually takes a very large number of judgments before the reason becomes clear, with ideological or personal constraints on cooperation tending to lead to more plurality and dissenting judgments.

Continue reading →