Author Archives: Shaun Fluker

About Shaun Fluker

B.Comm. (Alberta), LL.B. (Victoria), LL.M. (Calgary). Associate Professor. Please click here for more information.

The Counterview to a National Securities Regulator in Canada

PDF Version:  The Counterview to a National Securities Regulator in Canada

I am coming to the aid of an old friend. Having worked as legal counsel at the Alberta Securities Commission, I can tell you the current securities regulatory system works and is far less fragmented than most suggest. Indeed provincial (and territorial) securities regulation serves Canadians very well notwithstanding the challenges of operating within such a large and diverse a nation as Canada. Of all the legitimate reasons to implement a national securities regulator, let’s be clear that “fixing the system” is not one of them.In the early part of the 20th century, various provinces enacted securities legislation to regulate the sale of securities in their jurisdiction. In 1932, the U.K. Privy Council upheld Alberta’s securities legislation as within the provincial constitutional purview with its Lymburn v. Mayland decision, [1932] A.C. 318. Until the 1960s, most provincial governments administered their securities legislation within the executive branch. Presumably growth in the size and complexity of the capital market within certain provinces led governments to create provincial administrative agencies known as securities commissions and delegate regulatory authority to them. Shortly thereafter a federal proposal for securities regulation was published in 1979. Similar national proposals have surfaced more recently with the Crawford Report in 2005 and now the Hockin Report. The point of this history lesson is simply to observe that provincial jurisdiction over securities regulation has been challenged time and time again almost from the day it started.

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Environmental Private Prosecution Update: John Custer v. Syncrude Canada

Cases Considered:  John Custer v. Syncrude Canada

PDF Version: Environmental Private Prosecution Update: John Custer v. Syncrude Canada

On January 7, John Custer swore an information in front of a Justice of the Peace in Edmonton alleging violation by Syncrude Canada of section 5.1 of the Migratory Birds Convention Act, S.C. 1994, c. 22 for depositing substances harmful to migratory birds in its Aurora Mines tailing pond. The prohibition in section 5.1 reads as follows:

5.1 (1) No person or vessel shall deposit a substance that is harmful to migratory birds, or permit such a substance to be deposited, in waters or an area frequented by migratory birds or in a place from which the substance may enter such waters or such an area.

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A case of Disablement and Deference under the Workers’ Compensation Act

Cases Considered: Schneider v. Alberta (Appeals Commission for Alberta Workers’ Compensation), 2008 ABQB 662.

PDF Version: A case of Disablement and Deference under the Workers’ Compensation Act

Maurice Schneider was exposed to asbestos at work in the late 1960s and subsequently developed asbestosis, a drastic reduction in lung capacity whose primary symptom is severe shortness of breath. The disease has a long incubation period before symptoms become apparent (see http://en.wikipedia.org/wiki/Asbestosis). On March 10, 2003 Schneider underwent studies that confirmed he suffers from a mild pulmonary impairment (asbestosis), and in September 2004 the Alberta Workers’ Compensation Board accepted that Schneider’s asbestosis was the result of workplace exposure. Schneider was accordingly entitled to benefits under the Workers Compensation Act, R.S.A. 2000, c. W-15.

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Remembering Martha Kostuch: The Private Prosecution and the Oldman River Dam

Cases considered: Kostuch (Informant) v. WA Stephenson Construction (Western) (1990), 75 Alta. L.R.. (2d) 110 (Alta. Prov. Ct.); Kostuch (Informant) v. W.A. Stephenson (Western) (1991), 78 Alta. L.R. (2d) 131 (Alta. Prov. Ct.); Kostuch (Informant) v. W.A. Stephenson Construction (Western) Ltd., [1991] AJ No. 659 (Alta. Q.B.) (QL); R. v. W.A. Stephenson Construction (Western) Ltd., [1992] AJ No. 316 (Alta. C.A.) (QL); R. v. W.A. Stephenson Construction (Western) Ltd., [1992] AJ No. 233 (Alta. Prov. Ct.) (QL); W.A. Stephenson Construction (Western) Ltd. v. Kostuch, [1992] AJ No. 1262 (Alta. Q.B.) (QL); Kostuch v. W.A. Stephenson Construction (Western) Ltd., [1993] A.J. No. 52 (Alta. C.A.) (QL); Kostuch v. Alberta (Attorney General), [1995] A.J. No. 866 (Alta. C.A.), aff’g [1993] A.J. No. 635 (Alta. Q.B.) (QL)

PDF Version: Remembering Martha Kostuch: The Private Prosecution and the Oldman River Dam

I knew of Martha Kostuch primarily by her reputation as a leader in Alberta environmental advocacy. My personal dealings with Martha were limited to brief discussions at the annual roundtable meeting that she organized between the (then) Alberta Energy and Utilities Board and several environmental non-governmental organizations. My sense of loss for Alberta environmentalism with Martha’s passing in April 2008 inspired me to investigate her contribution to Alberta environmental law. This post reflects on a portion of my findings.

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Back on track to socio-ecological ruin: Kearl oil sands project re-authorized

Cases Considered: Imperial Oil Resources Ventures Limited v. Pembina Institute for Appropriate Development et al, 2008 FC 598, Pembina Institute for Appropriate Development v. Canada (Attorney General), 2008 FC 302,

PDF VersionBack on track to socio-ecological ruin: Kearl oil sands project re-authorized

My initial post on the Kearl project (see Just a Bump on the Road to Socio-Ecological Ruin) was accurate after all. Madame Justice Tremblay-Lamer’s decision in Pembina Institute for Appropriate Development v. Canada (Attorney General), 2008 FC 302, that held the Kearl joint panel breached section 34 of the Canadian Environmental Assessment Act, S.C. 1992, c. 37, was simply a brief foray into environmental bliss. On June 6, 2008, the Department of Fisheries and Oceans re-issued the requisite authorization under the Fisheries Act, R.S.C. 1985, c. F-14, to Imperial Oil, reportedly on identical terms and conditions as set out in the original authorization (see my previous post Federal Court upholds nullification of Kearl oil sands authorization for more discussion on the nullification of the initial authorization). Continue reading