By: Admin
PDF Version: ABlawg: Year in Review 2018
2018 was a notable year for ABlawg as we celebrated our tenth anniversary in February. ABlawg also received its first cite by the Supreme Court of Canada, with the Supreme Court citing Nigel Bankes’ post, The Duty to Consult and the Legislative Process: But What About Reconciliation?, in Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40 at para 51. This year also saw ABlawg publish its largest series of posts on a single topic, with 13 posts contributing to the debate on Bills C-68 and C-69 which purport to overhaul the National Energy Board, the federal environmental impact assessment regime, and several other pieces of the federal environmental legislative framework.
We also say goodbye to one of our more active posters – the then Professor Alice Woolley, the now Justice Woolley – or at least we assume that she will have to retire from her blogging habits (certainly her titles). In the meantime we look forward to reading her first judgments and advise that readers interested in such matters as lawyer-client sex and law schools’ dirty secrets will need to find another blog to follow!
Here are some other highlights of what transpired during the year on ABlawg.
The Numbers
ABlawg published a total of 154 posts in 2018. The post which generated the most hits (4487) this year was Nigel Bankes’ post, A Bill to Restrict the Interprovincial Movement of Hydrocarbons: a.k.a. Preserving Canada’s Economic Prosperity [Act], which commented on Alberta’s legislative proposal to restrict the interprovincial movement of hydrocarbons. The second highest number of hits (4158) this year was generated by David Laidlaw’s post, Bill C-69, the Impact Assessment Act, and Indigenous Process Considerations, which examined the process rules in the proposed new federal environmental impact assessment legislation and their application to Indigenous peoples. The third highest number of hits (3619) this year was generated by Shaun Fluker’s post, The Great Divide on Standard of Review in Canadian Administrative Law, which explored the current divergence over selecting the standard of review in administrative law. The other 2018 posts which attracted more than 3000 hits during the year were Bills C-68 and C-69 and the Consideration of Sex, Gender and Other Identity Factors (3483 hits) written by Jennifer Koshan, Federal Court of Appeal Quashes Trans Mountain Pipeline Approval: The Good, the Bad, and the Ugly (3268 hits in just four months) written by Martin Olszynski, and Alberta Releases Draft Woodland Caribou Range Plan: Pie in the Sky (3178 hits) written by Shaun Fluker.
A total of 51 authors contributed to ABlawg this year. Our most prolific blogger was, once again, Nigel Bankes with 28 posts – more than double anyone else! Next in line: Shaun Fluker (13 posts); Jennifer Koshan (10 posts); Jonnette Watson-Hamilton (9 posts); Lisa Silver (8 posts), Linda McKay-Panos (8 posts); and Drew Yewchuk (7 posts). ABlawg welcomed a number of first-time contributors in 2018, including Professors David Wright, Robert Hamilton and Kristen van de Biezenbos. A huge thanks to everyone – and in particular those authors from outside the Faculty of Law – who generously gave their time to contribute to ABlawg in 2018.
Area Specific Posts in 2018
Administrative Law
Shaun Fluker continued to follow developments in administrative law at the Supreme Court of Canada. The Court addressed Judicial Review on the Vires of Subordinate Legislation in West Fraser Mills Ltd. v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22. In Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26, the Court confirmed that Judicial Review is about the Legality of State Decision-Making, and is not available to challenge decisions with insufficient ‘public character”. The Great Divide on Standard of Review was on full display in Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2018 SCC 31 and the Court will make yet another attempt to reconcile its differences on standard of review with a trilogy of decisions to be issued in 2019.
Cannabis
Lorian Hardcastle covered the decriminalization of recreational cannabis in the Fall, providing A Primer on Cannabis Regulation on October 17 when the changes in the law came into force. ABlawg subsequently explored more specific topics on The Future of Medical Cannabis and the impact of cannabis legalization on young persons.
Criminal Law
ABlawg continued to strengthen its coverage on developments in criminal law. In Tracing the Likeness of Colten Boushie in the Law Classroom, Lisa Silver wrote about the challenges facing the criminal justice system as we strive towards meaningful reconciliation with Indigenous peoples. Lisa Silver also engaged with criminal law reform in Leaving A Paper Trail: A Comment on Bill C-75 wherein she challenged lawmakers to be more mindful of the consequences of the proposed Criminal Code reforms in Bill C-75. Lisa was subsequently invited to submit a Brief and testify before the House of Commons Standing Committee on Justice and Human Rights, resulting in a “shout out” in the House of Commons debate on the Bill. In The Vice Squad: A Case Commentary on R v Vice Media Canada Inc Lisa described how the Supreme Court of Canada grappled with the tension between privacy and the State’s interest in the investigation and prosecution of crimes. Lisa used R v Stephan, 2018 SCC 21 as an opportunity to comment on criminal law bench decisions rendered by the Supreme Court of Canada in Dispensing Speedy Justice: The Supreme Court of Canada & Decisions from the Bench. Drew Yewchuk commented on three decisions which dealt with the transitional provision in the application of R v Jordan and the right to trial within a reasonable time.
Domestic Violence
Jennifer Koshan contributed five posts on domestic violence legislation, case law, and policy, using ABlawg as a forum to disseminate the research from her project Domestic Violence and Access to Justice Within and Across Multiple Legal Systems, funded by SSHRC and the Law Foundation of Ontario: Interjurisdictional Enforcement of Protection Orders and the Possibility of Conflicts: The Need for Reform in Alberta; Alberta’s Family Violence Death Review Committee: Recent Reports, Recommendations and Reflections; “Marriage is not a rugby match”: Choking, Consent and Domestic Violence; Alberta’s Family Violence Laws: Intersections, Inconsistencies and Access to Justice (with co-authors Irene Oh and Kristin McDonald); and Domestic Violence and Alternative Dispute Resolution in Family Law Disputes (with co-authors Wanda Wiegers and Janet Mosher).
Electricity
ABlawg continued to monitor a number of developments in Alberta’s electricity sector. For example, this included posts by Nigel Bankes on the line-loss marathon, on the complaint jurisdiction of the Alberta Utilities Commission (AUC) with respect to Alberta’s Electric System Operator (the AESO), and on the end of Alberta’s power purchase arrangements litigation (here), as well as posts on Alberta’s move to adopt a capacity market in addition to its existing energy market. The latter included posts by Nigel Bankes on Bill 13 the implementing legislation for the capacity market, an interesting decision out of the European Court of Justice on capacity markets and some recent work by Alberta’s Market Surveillance Administrator (MSA) on potential competition issues associated with the transition. In addition, Nigel Bankes commented on a legislative proposal to reverse the conclusion of the Supreme Court of Canada in Stores Block: ATCO Gas & Pipelines Ltd. v Alberta (Energy & Utilities Board), 2006 SCC 4 (CanLII) In the end, however, it seems that lobbying by the regulated utilities led to the amendment being shelved.
Energy
ABlawg also covered some regulatory decisions by the National Energy Board including a post by Nigel Bankes dealing with regulated tolls in the competitive environment of Northeast British Columbia as well as a Board letter decision at the end of the year dealing with the duty of a regulated pipeline to provide facilities. Allan Ingelson also commented on the current state of wind energy development in Alberta. As in past years ABlawg continued to provide commentary on decisions in the oil and gas area. This included posts by Nigel Bankes on confidentiality agreements and brokerage opportunities in the context of the sale of oil and gas properties, a case dealing with specific performance of a right of first refusal in the context of a facilities agreement, a case on lifting the stay to allow the CAPL operator replacement provisions to run their course, and a case dealing with the concept of ‘payout’ in the context of Alberta’s Oil Sands Royalty Regulation. A particularly important development was a decision of the Ontario Court of Appeal in Third Eye Capital v Dianor, a case involving an overriding royalty. The case provided useful guidance on the application of the Supreme Court of Canada’s decision in Dynex. The Alberta Court of Queen’s Bench followed Dianor in a later decision.
Environmental Law
Arlene Kwasniak explored the dispute over wetlands and the construction of the Southwest Calgary Ring Road with her commentary in Minister Sharpens the Wetland Policy’s Teeth, and Beaver Pond is Spared. The Ministerial Order in this case was noteworthy in that it came with reasons (a welcome surprise) and required amendments to the project approval to avoid the destruction of a wetland and asserted the mandatory nature of the provisions in the 2013 Alberta Wetland Policy. On a less promising note, Alberta released a Pie in the Sky caribou range recovery and protection plan in late 2017 and then in March 2018 the Minister suspended Habitat Protection Plans for the threatened caribou populations in Alberta. Meanwhile in this policy vacuum, the energy industry and the Alberta Energy Regulator continue to tinker with the promise of offsets as the regulatory measure which will finally deliver the utopia of sustainable development. While the caribou await the exercise of federal emergency powers to save what’s left of their habitat in Alberta, they may want to observe how the federal government fares in this regard on front of the escalating carbon war. In January, David Wright provided some commentary on the then-proposed federal carbon pricing regime and this topic is sure to capture the headlines in 2019.
Equality Rights
Jonnette Watson Hamilton and Jennifer Koshan continued to co-author posts on equality rights decisions in 2018, publishing No Discrimination Against Long-Term Care Residents in Elder Advocates of Alberta Case, The Supreme Court of Canada’s Pay Equity Decisions: A Call to Action for Alberta?, The Supreme Court of Canada’s Approach to the Charter’s Equality Guarantee in its Pay Equity Decisions, and a post on R v Boudreault, 2018 SCC 58 (CanLII), is forthcoming. The two pay equity posts led to an article that is being published by the Journal of Law and Equality and is available on SSRN here. This is Jennifer and Jonnette’s thirteenth co-authored article, with their writing relationship having started on ABlawg (for their first coauthored post see here). Many of their articles began as ABlawg posts, illustrating the foundational role of blogging in peer reviewed publications and scholarly collaborations.
Federal Environmental Law Reform
Throughout 2018, ABlawg engaged with significant reforms to several of Canada’s key environmental statutes. Soon after Bill C-69 was tabled in Parliament in February, posts honed in on the proposed new “Impact Assessment Act”, including overall impressions and the specific dimensions of oversight and enforcement, Indigenous peoples, public participation, triggering, multi-jurisdictional assessment and gender analysis. This series also included posts on the proposed new(ish) Canadian Energy Regulator in Bill C-69, as well as changes to the Fisheries Act in Bill C-68, including the protection of fish habitat, compliance and enforcement, and the new habitat banking provisions. ABlawg contributors have also attempted to add some dispassionate perspectives into the debate surrounding Bill C-69 as it worked its way through Parliament.
Indigenous Law
There was perhaps less coverage of indigenous law issues on ABlawg this year by comparison with previous years but David Wright offered an analysis of how Indigenous issues were dealt with in Bill C-69 and he also wrote about a duty to consult prequel to the TMX decision (see below) with Duty to Consult in the Bigstone Pipeline Case: A Northern Gateway Sequel and TMX Prequel? Nigel Bankes commented on Bill C-262 which aims to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). And David Laidlaw examined the process rules in the proposed new federal environmental impact assessment legislation and their application to Indigenous peoples in Bill C-69, the Impact Assessment Act, and Indigenous Process Considerations.
Pipelines
The Trans Mountain Pipeline Expansion Project (TMX) took centre stage on August 30 when the Federal Court of Appeal released its decision on the consolidated legal challenges in Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 153, and quashed the federal approval of TMX. ABlawg provided commentary on the decision with posts written by Martin Olszynski, Robert Hamilton, and David Wright. The TMX project has also spawned the ‘pipeline battles’ between Alberta and British Columbia, which led to some constitutional commentary on ABlawg. For example, Nigel Bankes and Martin Olszynski wrote a post entitled “TMX v Burnaby: When Do Delays by a Municipal (or Provincial) Permitting Authority Trigger Paramountcy and Interjurisdictional Immunity?” and Nigel Bankes provided commentary on Bill 12 which purports to enable Alberta to restrict the interprovincial movement of hydrocarbons.
Property Law
There were also some interesting developments in the law of real property and land titles law during the year. Nigel Bankes posted a blog early in the new year on the Supreme Court of Canada’s important decision in Cowper-Smith v Morgan, 2017 SCC 61 (CanLII) on the law of proprietary estoppel and later posts dealt with some traditional topics such as the severance of a joint tenancy in Alberta and the effect of a registrar’s caveat.
Vexatious Litigants
ABlawg continues to monitor how the Court of Queen’s Bench administers its process for dealing with vexatious litigants. Jonnette Watson Hamilton commented on the increasing speed at which the Court issues access restriction orders and The Increasing Risk of Conflating Self-Represented and Vexatious Litigants. Not only does the Court appear to be widening the scope of activities which may be characterized as vexatious, but a recent order has required a vexatious litigant to seek the Court’s permission in order to access any non-judicial body. Jonnette Watson Hamilton also noted that the Court of Appeal, perhaps unsurprisingly, has agreed to hear a challenge to the Queen’s Bench Vexatious Litigant Procedure.
Concluding Thoughts
Thanks to all our readers who take the time to let us know by private message how ABlawg contributes to their practice or otherwise serves as an informative legal resource. We really appreciate the feedback. ABlawg believes in dialogue, and we also welcome civil and constructive public comments from readers. We are also interested in feedback on how the ABlawg platform could be improved as a source of legal commentary. Faculty members who contribute to ABlawg may be contacted via our email addresses here, but please remember to be civil!
See you in 2019.
This post may be cited as: Admin, “ABlawg: Year in Review 2018” (December 28, 2018), online: ABlawg, http://ablawg.ca/wp-content/uploads/2018/12/Blog_Admin_Ablawg_Year_End_December2018.pdf
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