Year: 2009 Page 13 of 24

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.

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A Rock and a Hard Place? A False Dilemma

By Martin Kay Q.C.

On June 8, 2009

In Energy

Case considered: ATCO Gas and Pipelines Ltd. v. Alberta (EUB), 2009 ABCA 171

PDF version: A Rock and a Hard Place? A False Dilemma

In response to the hand-wringing of my colleague Prof. Alice Woolley in her post on this case, the recent decision of the Alberta Court of Appeal on the role of surplus lands (referred to as the “Harvest Hills” case) should not present any obstacle for the orderly setting of fair utility rates.

The essential facts alone should alleviate most concerns. The uncontradicted evidence was that in 1993 the utility acquired a single parcel of land for $43,000.00 for the purpose of building a regulating station. The station was then built on part of the parcel. There was no thought given to subdivision and sale of the surplus portion until an unsolicited offer was made in 2006. The potential need for the surplus land was then considered. None was identified. While a new, additional regulating station was expected to be needed within a 5 km radius within 5 years, the surplus portion was not an appropriate site, based on good engineering design considerations.

2009 Commonwealth Moot – Reflections from the Canadian Team

By Jocelyn Stacey

On June 7, 2009

In Appellate Practice

This year the University of Calgary Gale Cup Team had the honour of representing Canada at the 2009 Commonwealth Moot Competition in Hong Kong. The Commonwealth Moot Competition is held biennially in conjunction with the Commonwealth Law Conference. Each Commonwealth region is permitted to send one representative team to compete in the moot. This year, 11 countries (of the 13 designated regions) were represented at the competition: the United Kingdom, Australia, New Zealand, India, Hong Kong, Ghana, South Africa, Singapore, Mozambique, Canada, and Sri Lanka.

Within Canada, teams qualify for the Commonwealth Moot by winning the Gale Cup Moot held annually in Toronto. Two years ago, Osgoode Hall represented Canada in Kenya at the competition. This year, for the first time ever, the University of Calgary won the Gale Cup and had the fortuitous timing of winning in a year in which the Commonwealth Moot took place. Overall, we fared quite well in the competition as we placed 5th based on overall team scores. The South African team, from the University of Pretoria, won the competition.

The GM Saga So Far

By Jassmine Girgis

On June 5, 2009

In Bankruptcy and Insolvency, Corporate / Commercial

PDF version: The GM Saga So Far

The current financial crisis is arguably the largest corporate debacle and multi-market crash since the Great Depression. Its costs for corporations are substantial and many high profile companies have filed for bankruptcy protection under Chapter 11 (U.S. Code, Title 11, Chapter 11) or the Companies’ Creditors Arrangement Act (R.S., 1985, c. C-36) (“CCAA“). In the United States and elsewhere, this has even affected financial institutions, institutions previously viewed as “too big to fail”, namely AIG, Citigroup, Bear Stearns, IndyMac Bank, F.S.B. (the second largest bank failure in U.S. history), Federal National Mortgage Association (Fannie Mae), Federal Home Loan Mortgage Corporation (Freddie Mac), Lehman Brothers, and Wells Fargo. To date, many Canadian corporations have filed for CCAA protection.

Canada’s Temporary Immigration System

By Kristyn Stevens

On June 4, 2009

In Constitutional, Immigration and Refugee Law, Labour/Employment

Report considered: Standing Committee on Citizenship and Immigration, Temporary Foreign Workers and Non-Status Workers (May 2009)

PDF version: Canada’s Temporary Immigration System

“If a person is good enough to work here, a person is good enough to stay here.” This was the sentiment expressed in the recently released Report of the Standing Committee on Citizenship and Immigration, entitled Temporary Foreign Workers and Non-Status Workers (40th Parl., 2nd Sess. (May 2009)). Canada’s Temporary Foreign Worker’s Program was established to meet short-term labour shortages in the Canadian economy. Despite this initial goal, it has actually become more of a long-term solution to labour shortages and for immigrants wishing to make Canada their home. Temporary Foreign Workers (TFWs) remain in Canada for longer than the intended period, but maintain their “temporary status” and the limited rights that go along with that.