Yearly Archives: 2015

Why We Should Care About Magna Carta

By: Ian Holloway

PDF Version: Why We Should Care About Magna Carta

I write this just as I’m returning to Canada from Runnymede, England. The Queen was there, as were the Duke of Edinburgh, the Princess Royal, and Prince William. The five of us — along with a thousand others from all over the world — were gathered to commemorate, and to celebrate, the 800th anniversary of the sealing of Magna Carta by King John on June 15, 1215.

So what’s the big deal? Why is it that a document that, as a British civil servant once described it, is nothing more than an archaic piece of paper with no intrinsic value, should attract such attention?

After all, while bits of it continue to have the force of law, the majority of Magna Carta’s provisions reflect little more than an incoherent jumble of individual grievances from King John’s nobles. Moreover, John himself showed his disdain by reneging on the deal a mere nine weeks later. And the Pope formally nullified it as soon as he became aware of its terms.

Oliver Cromwell — someone not normally known for his sense of humour — called it “Magna Farta.”

So why were a thousand of us assembled in an English country meadow this morning?

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Court of Appeal Confirms ISO Rule on the Allocation of Intertie Capacity

By: Nigel Bankes

PDF Version: Court of Appeal Confirms ISO Rule on the Allocation of Intertie Capacity

Case Commented On: Saskatchewan Power Corporation v Alberta (Utilities Commission), 2015 ABCA 183

With the commissioning of the Montana/Alberta intertie – a transmission line for electric energy connecting neighbouring transmission systems and allowing the transfer of electricity between jurisdictions – the Independent System Operator (ISO), operating under the name of the Alberta Electric System Operator (AESO), concluded that its existing last-in-first-out rule for the allocation of available transfer capability (ATC) on interties operated unfairly. It therefore engaged in a rule-making exercise as provided for under ss.20 – 20.4 of the Electric Utilities Act, SA 2003, c E-5.1 (EUA) resulting in the adoption of a proposed new ISO Rule on Available Transfer Capability and Transfer Path Management. The new Rule adopts a pro-rata methodology for allocating ATC. Section 20.2(1) of the EUA requires the ISO to file the proposed rule with the Alberta Utilities Commission (AUC) so as to give market participants (MPs) the opportunity to object in s.20.4(1):

20.4(1) A market participant may object to an ISO rule that is filed under section 20.2 on one or more of the following grounds:

(a) that the Independent System Operator, in making the ISO rule, did not comply with Commission rules made under section 20.9;

(b) that the ISO rule is technically deficient;

(c) that the ISO rule does not support the fair, efficient and openly competitive operation of the market;

(d) that the ISO rule is not in the public interest.

Several MPs availed themselves of this opportunity but the AUC ultimately concluded in AUC Decision 2013-025 that (at para 1) it had “not been persuaded that the rule is against the public interest or the fair, efficient and openly competitive operation of the electricity market in Alberta or that the rule is technically deficient.” Several MPs thereupon sought and were granted leave to appeal the AUC’s decision on two grounds: (1) did the AUC err in law in its interpretation of s.29 of the EUA by finding that the Operator was required by statute to provide system access service to intertie operators; and (2) did it err in law in its interpretation of s.16 and/or s.27 of the Transmission Regulation, Alta Reg 86/2007 (TReg)? In this decision the Court of Appeal dismissed those appeals thereby confirming both the AUC Decision and the ISO Rule. Both grounds of appeal seem to have been argued under s.20.4(d) of the EUA and on the basis that an unreasonable interpretation of any of the above provisions would necessarily result in a conclusion that was not in the public interest. There was also a more general public interest argument which is discussed in the final paragraphs of this post.

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Eligibility for Nomination under the Local Authorities Election Act (Alberta)

By: Shaun Fluker

PDF Version: Eligibility for Nomination under the Local Authorities Election Act (Alberta)

Case Commented On: Mueller v Oko, 2015 ABCA 194

This short decision from the Court of Appeal considers the challenge by Mueller to the eligibility of Oko to be nominated as school board trustee in September 2013 for the Evergreen School Division under the Local Authorities Election Act, RSA 2000 c L-21. Mueller alleges that Oko was ineligible to be nominated because he was employed with the Pembina School Division at the time of his nomination and failed to take a leave of absence as required by section 22 of the Act. Justice Hillier dismissed Mueller’s application for judicial review in January 2014 and this post concerns the appeal of Justice Hillier’s decision.

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A Trap for the Unwary: Assuming High Ratio Mortgages

By: Jonnette Watson Hamilton

PDF Version: A Trap for the Unwary: Assuming High Ratio Mortgages

Case Commented On: CIBC Mortgages Inc v Abdallah, 2015 ABQB 363 (CanLII); Bank of Montreal v Hoehn, 2010 ABQB 405 (CanLII)

Five years ago, in Bank of Montreal v Hoehn, Master Jodi L. Mason decided that one small piece of consumer protection legislation was not properly created by Alberta lawmakers in 2003. As a result, a law that should have required a prominent warning to borrowers on high ratio residential mortgages was not available to protect individuals who unknowingly assumed these types of mortgages. The problem Master Mason identified could have been easily remedied by the legislature — but it was not. One of the consequences of the legislature’s failure to act can be seen in CIBC Mortgages Inc v Abdallah. As Madam Justice Barbara Romaine notes in this decision, the absence of mandatory warnings about assuming high ratio mortgages “creates a high-risk scenario for unwary transferees and creates hard cases like this one” (at para 33).

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Agent Regulation: The Case of Emmerson Brando (AKA Arturo Nuosci, AKA Maverick Austin Maveric, AKA Landon Emmerson Brando)

By: Heather White & Sarah Burton

PDF Version: Agent Regulation: The Case of Emmerson Brando (AKA Arturo Nuosci, AKA Maverick Austin Maveric, AKA Landon Emmerson Brando)

Case Commented On: R v Hansen, 2015 ABPC 118

On May 12, 2015, CBC news reported that Emmerson Brando – a well-known Calgary-based court agent – had an extensive criminal history (Meghan Grant, “Emmerson Brando’s criminal past outlined in Calgary court memo” CBC News (12 May 2015) (“CBC News”). This was of great interest to the Calgary Bar owing to his regular appearances in court. Mr. Brando had served 90 days in Canadian jail and 33 months in U.S. prison for offences including fabricating evidence, fraud, identity theft, misuse of a social security number, and making a false statement in a passport application (CBC News). Upon completing his sentence in the United States, Mr. Brando was deported back to Canada, where he set up practice as an agent in Ontario. A few years ago, Mr. Brando moved his practice to Alberta where paralegals are not regulated (CBC News).

Once Mr. Brando’s criminal history was uncovered, Chief Crown counsel Lloyd Robertson, Q.C., brought an objection to Mr. Brando being given leave to represent a client at an upcoming trial. The resulting decision, R v Hansen, 2015 ABPC 118, written by Judge Gaschler, provides a thorough analysis of Brando’s criminal history and the way in which it affects the Court’s willingness to grant him leave to appear as an agent. After a careful review of the circumstances, Judge Gaschler held that Mr. Brando’s appearance would undermine the integrity of the justice system, and denied him leave to appear as an agent (at para 29).

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