Author: Shaun Fluker Page 21 of 38

B.Comm. (Alberta), LL.B. (Victoria), LL.M. (Calgary).
Associate Professor.
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Chronicles of the Canadian High Court of Environmental Justice: Canadian Parks and Wilderness Society v Maligne Tours

On February 16, 2016

By: Shaun Fluker

PDF Version: Chronicles of the Canadian High Court of Environmental Justice: Canadian Parks and Wilderness Society v Maligne Tours

Case Commented On: Canadian Parks and Wilderness Society v Maligne Tours, 2016 FC 148

In a decision issued February 8, 2016, the Honourable Mr Justice James Russell denied an application by the Canadian Parks and Wilderness Society and the Jasper Environmental Association for judicial review of a decision made by the Superintendent of Jasper National Park to approve in concept a new accommodation facility for the shores of Maligne Lake. The Applicants argued that the Superintendent acted unlawfully by making this decision outside of his authority and in contravention of the park management plan, and moreover that the decision is contrary to the overall first priority of maintaining or restoring ecological integrity in Canada’s national parks. The legality of the Superintendent’s decision in this matter rests on two determinations: (1) the legal status of the 2010 Jasper National Park Management Plan; and (2) whether the decision is in accordance with the legislated first priority of ecological integrity for the park.

This comment reviews the decision by Justice Russell in an imagined space. In a stunning political move, the Trudeau government has amended the Federal Courts Act, RSC 1985, c F-7 to establish the High Court of Environmental Justice. The mandate of this new Court is to hear de novo appeals from decisions by the Federal Court of Canada on environmental law issues. The Supreme Court Act, RSC 1985, c S-26 was also amended to remove any appellate jurisdiction by the Supreme Court of Canada over the High Court of Environmental Justice, with the exception of environmental cases where a constitutional issue is raised by a party. In announcing the creation of this new Court, the Minister of Justice and the Minister of Environment and Climate Change stated that ABlawg has been selected as the Court’s official reporter.

Habitat Protection for the Westslope Cutthroat Trout in Alberta

By Shaun Fluker

On December 22, 2015

In Protection of Species

By: Shaun Fluker

PDF Version: Habitat Protection for the Westslope Cutthroat Trout in Alberta

Matter Commented On: Critical Habitat of the Westslope Cutthroat Trout (Oncorhynchus clarkii lewisi) Alberta Population Order, SOR/2014-241 (November 20, 2015)

On December 2, 2015, the Minister of Fisheries and Oceans Canada published a critical habitat protection order issued under sections 58(4) and (5) of the Species at Risk Act, SC 2002, c 29 (SARA) covering identified critical habitat for the westslope cutthroat trout located on Alberta public lands. Over the last 12 months the Faculty’s Environmental Law Clinic assisted the Alberta Wilderness Association and the Timberwolf Wilderness Society in their efforts to see this Order issued by the Minister. This comment revisits the process that ultimately led to this Order and describes the Order itself. At the outset it is worth noting this is only the second critical habitat protection order issued to date under sections 58(4) and (5) of SARA, and the first such order to be applied on provincial lands.

Impaired Driving and Approved Screening Devices

By Shaun Fluker

On November 12, 2015

In Constitutional, Criminal, Statutory Interpretation, Supreme Court of Canada

By: Shaun Fluker, Elliot Holzman, and Ian Pillai

PDF Version: Impaired Driving and Approved Screening Devices

Case Commented On: Goodwin v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46; Wilson v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47

In October the Supreme Court of Canada issued two companion judgments concerning the constitutionality and meaning of the Automatic Roadside Prohibition (ARP) provisions set out in the Motor Vehicle Act, RSBC 1996, c 318. In Goodwin v British Columbia (Superintendent of Motor Vehicles) the Supreme Court upheld British Columbia’s ARP scheme as valid provincial law that does not unlawfully invade federal criminal law power or contravene section 11 of the Charter, but the Court also ruled that the seizure of a breath sample using an approved screening device (ASD) under the scheme as previously administered was an unreasonable seizure under section 8 of the Charter. In ruling as such, the Supreme Court upheld the ruling of the Chambers Justice who heard the matters back in 2010. Subsequent to that initial ruling the Province of British Columbia amended the ARP scheme in an attempt to remedy the unreasonable seizure, and the Supreme Court’s companion judgment in Wilson v British Columbia (Superintendent of Motor Vehicles) concerns the interpretation of these new provisions employing principles of statutory interpretation. In this comment we provide an overview of the ARP scheme and the issues raised by the use of ASDs in impaired driving cases, and bring this matter into an Alberta context. We also examine the Supreme Court’s constitutional analysis in Goodwin and its application of the principles of statutory interpretation in Wilson.

Court of Appeal Affords Deference to Alberta Securities Commission in Platinum Equities Case

By Shaun Fluker

On November 9, 2015

In Administrative Law, Securities

By: Shaun Fluker

PDF Version: Court of Appeal Affords Deference to Alberta Securities Commission in Platinum Equities Case

Case Commented On: Alberta (Securities Commission) v Chandran, 2015 ABCA 323

In February 2014 the Alberta Securities Commission found that Shariff Chandran was the governing mind of an elaborate scheme of capital market misconduct under the general umbrella of Platinum Equities and ruled that Chandran and others were guilty of contravening various provisions of the Securities Act, RSA 2000, c S-4 concerning the illegal distribution of approximately $58 million in securities to the public, misrepresentations, fraud, and conduct contrary to the public interest (See Re Platinum Equities Inc, 2014 ABASC 71). In addition to these administrative proceedings before the Commission, there are civil and criminal proceedings underway concerning Platinum Equities. In September 2014 the Commission issued its sanctions order 2014 ABASC 376 against Chandran and others for their misconduct under the Securities Act. Chandran asked the Court of Appeal to set aside a portion of these sanctions ordered by the Commission, and in Alberta (Securities Commission) v Chandran the panel of Justices Martin, O’Ferrall, and Shutz dismisses his appeal. The Court’s decision is a good example of how deference should work in substantive judicial review.

Section 38 of the Securities Act provides for a right of appeal to the Court by a person who is directly affected by a Commission decision. Notably section 38 does not limit this right of appeal to questions of law and neither does it require leave of the Court. Moreover, section 38 expressly states the Court may confirm, vary or reject the Commission decision, direct the Commission to re-hear the matter, or even decide the matter itself and substitute its decision for that of the Commission. In short, section 38 is a very generous and potentially intrusive statutory appeal provision.

What Happens When an Insolvent Energy Company Fails to Pay its Surface Rent to a Landowner? Part 2

By Shaun Fluker

On October 27, 2015

In Oil & Gas

By: Shaun Fluker

PDF Version: What Happens When an Insolvent Energy Company Fails to Pay its Surface Rent to a Landowner? Part 2

Cases Commented On: PetroGlobe Inc v Lemke, 2015 ABSRB 740; Portas v PetroGlobe Inc, 2015 ABSRB 708; Rodin v PetroGlobe Inc, 2015 ABSRB 737

This comment is an update to my July 2014 post What happens when an insolvent energy company fails to pay its surface rent to a landowner?. Readers are directed to this earlier comment for more background to this case and for this comment. In short, the matter involves the failure by PetroGlobe to pay its 2013 rent under a surface lease to the lessors Doug and Marg Lemke. The Lemkes filed an application with the Alberta Surface Rights Board (“Board”) under section 36 of the Surface Rights Act, RSA 2000 c S-24 to recover the unpaid rent. PetroGlobe was assigned into bankruptcy in 2013 under the federal Bankruptcy and Insolvency Act, RSC 1985, c B-3, and in its 2014 Lemke decision 2014 ABSRB 401 the Board ruled this federal legislation precludes the Board from proceeding with the Lemkes’ section 36 application under the Surface Rights Act. In April 2015, then Premier Jim Prentice announced he was asking the Board to reconsider its 2014 Lemke decision. The Board subsequently struck a new panel to hear additional submissions, and earlier this month the Board rescinded 2014 ABSRB 401 and replaced it with 2015 ABSRB 740. This new ruling from the Board upholds its earlier decision not to proceed with the Lemkes’ section 36 application, but does so with more reasons. This comment examines this new reasoning.