Author: Martin Olszynski Page 5 of 18

B.Sc. in Biology (Saskatchewan), LL.B. (Saskatchewan), LL.M. Specialization in Environmental Law (University of California at Berkeley).
Assistant Professor.
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By: Martin Olszynski, Jonnette Watson Hamilton, and Shaun Fluker

Matter Commented On: The Alberta Sovereignty Act and the Free Alberta Strategy

PDF Version: The Alberta Sovereignty Act and the Rule of Law

Last week, United Conservative Party (UCP) leadership hopeful Danielle Smith announced that, upon her election as Premier, she would introduce the Alberta Sovereignty Act, legislation described as the “cornerstone” of the Free Alberta Strategy (Strategy), published back in the fall of 2021 (see story here). Briefly, this law would purport to grant the Alberta Legislature the power “to refuse enforcement of any specific Act of Parliament or federal court ruling that Alberta’s elected body deemed to be a federal intrusion into an area of provincial jurisdiction” (Strategy at 22). Legal academics have dismissed the idea as one that would clearly offend Canada’s constitutional order, but to date mainstream media commentary has failed to acknowledge the fundamentally unlawful and undemocratic nature of this proposal.

Carbon Tax Redux: A Majority of the Alberta Court of Appeal Opines that the Impact Assessment Act is Unconstitutional

By Martin Olszynski

On May 24, 2022

In Constitutional, Energy, Environmental

By: Martin Olszynski

Opinion Commented on: Reference re Impact Assessment Act, 2022 ABCA 165 (CanLII)

PDF Version: Carbon Tax Redux: A Majority of the Alberta Court of Appeal Opines that the Impact Assessment Act is Unconstitutional

On May 10, 2022, the Alberta Court of Appeal released its lengthy and long-awaited opinion in Reference re Impact Assessment Act, 2022 ABCA 165 (CanLII). A majority of the Court of Appeal (Chief Justice Fraser, Justice Watson, and Justice MacDonald) concluded that the Impact Assessment Act, SC 2019, c 28, s 1 (IAA), Part 1 of Bill C-69, was ultra vires (i.e. beyond) Parliament’s legislative authority pursuant to section 91 of the Constitution Act, 1867. Justice Strekaf concurred in the result. Justice Greckol dissented, concluding that the IAA was indeed constitutional. In my view, Justice Greckol’s dissent is both clearer and more consistent with current Canadian constitutional and environmental law doctrine. The majority’s opinion, on the other hand, is relatively difficult to follow, includes basic doctrinal errors in some parts, and ignores or strays far from precedent in others. In this and other ways, the majority’s approach is strongly reminiscent of its earlier opinion in Reference re Greenhouse Gas Pollution Pricing Act, 2020 ABCA 74 (CanLII) (GGPPA Reference ABCA) (see post here), which was overturned by the Supreme Court of Canada in References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (CanLII) (GGPPA References SCC) (see posts here, here, and here). The federal government has already confirmed that it will appeal the majority’s opinion to the Supreme Court, pending which the IAA regime will remain in force (reference opinions not being strictly binding the same way that judgments are).

The Sad State of Regional Land Use Planning in Alberta

By Martin Olszynski

On March 10, 2022

In Land Use

By: Nigel Bankes, Sharon Mascher & Martin Olszynski

PDF Version: The Sad State of Regional Land Use Planning in Alberta

Matters Commented On: (1) Coal Policy Committee, Final Report: Recommendations for the Management of Coal Resources in Alberta, December 2021, released to the public March 4, 2022, (2) Minister Sonya Savage, Press Release, Getting it Right on Coal in Alberta, March 4, 2022, (3) Lower Athabasca Regional Plan, and (4) South Saskatchewan Regional Plan

The release of the Coal Policy Committee Recommendations on March 4, 2022, offers three reminders as to the sad state of regional land use planning in Alberta. The first reminder is that 14 years after the adoption of the much-heralded Land Use Framework in 2008, and 13 years after the adoption of the Alberta Land Stewardship Act, SA 2009, c A-26.8 (ALSA), we still have only two approved plans in Alberta, the Lower Athabasca Regional Plan (LARP) (approved August 22, 2012, and brought into force September 1, 2012) and the South Saskatchewan Regional Plan (SSRP) (adopted in 2014). This was significant to the Coal Policy Committee because it meant that while plans adopted under ALSA might ultimately supersede the “nascent form of land-use planning” (at 22) embodied in the “coal categories” of the 1976 Coal Policy, we are still awaiting plans for the balance of the eastern slopes of the Rockies north of the SSRP, namely for the North Saskatchewan, the Upper Athabasca and the Upper Peace regions (see Figure 1, below).

Former Minister of Justice Attempted to Interfere with the Administration of Justice: Kent Report

By Martin Olszynski

On February 28, 2022

In Rule of Law

By: Shaun Fluker, Nigel Bankes & Martin Olszynski

PDF Version: Former Minister of Justice Attempted to Interfere with the Administration of Justice: Kent Report

Matter Commented On: The Kent Report (February 15, 2022)

On February 25, the Premier issued a brief statement announcing that former Minister of Justice, Kaycee Madu, was being shifted to Minister of Labour and Immigration, and that the former Minister of Labour and Immigration, Tyler Shandro, is now the Minister of Justice. This Friday afternoon swap was in response to the findings of retired Justice Adèle Kent in her investigation into a phone call made by Minister Madu to the Edmonton Chief of Police on the morning of March 10, 2021, concerning a traffic ticket issued to him that very same morning. As we discuss at the end of this post, this investigation seemingly only occurred because CBC news reporter Elise Von Sheel revealed the making of the call in a news story published on January 17, 2022. Several hours after the CBC broke the news, Premier Kenney announced on Twitter that Minister Madu was temporarily stepping aside from his ministerial duties while an independent investigation reviewed whether the call amounted to an interference with the administration of justice. The Kent Report concludes that the call (1) was an attempt to interfere with the administration of justice and (2) created a reasonable perception of an interference with the administration of justice. In this post, we summarize and comment on the findings of the Kent Report.

Rigs in a Parlour: The Freedom Convoy and the Law of Private Nuisance

By Martin Olszynski

On February 9, 2022

In Torts

By: David V Wright and Martin Olszynski

PDF Version: Rig in a Parlour: The Freedom Convoy and the Law of Private Nuisance

Matter Commented On: Li v Barber et al, Court File No CV-22-00088514-00CP

After more than a week of disruptive, and at times highly offensive, protesting in the nation’s capital, private law has been engaged. Specifically, residents of the inner downtown area applied to the Ontario Superior Court for injunctive relief (essentially, a temporary ban on certain conduct) and for damages under the tort of private nuisance. This post discusses the basic elements and principles of private nuisance as they relate to the present context (we do not comment on procedural aspects – e.g., certification of the proceeding as a class action). Our preliminary assessment is that the prospects for success on the question of private nuisance are very good. Early indications from the Court are consistent with this assessment, as Justice Hugh McLean of the Ontario Superior Court granted an interim injunction on Monday (copy of the Court order here). In doing so, Justice McLean indicated that the right of citizens to peace and quiet was the overriding right (see this detailed thread on Twitter summarizing the Court proceedings).