Author: Shaun Fluker Page 13 of 36

B.Comm. (Alberta), LL.B. (Victoria), LL.M. (Calgary).
Associate Professor.
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Sentencing Lake Louise Ski Resort Under the Species at Risk Act and A Comment on the Federal Environmental Damages Fund

On January 15, 2019

PDF Version: Sentencing Lake Louise Ski Resort Under the Species at Risk Act and A Comment on the Federal Environmental Damages Fund

Case Commented On: R v The Lake Louise Ski Area Ltd, 2018 ABPC 280 (CanLII)

In December 2017, the Lake Louise Ski Resort pled guilty to unlawfully cutting down and damaging 148 trees without a permit during the summer of 2013 in the Ptarmigan Chutes area of the resort. Some of the trees cut were whitebark pines, a species listed as endangered under the federal Species at Risk Act, SC 2002, c 29 (SARA). Section 32 of SARA prohibits any conduct that harms the endangered whitebark pines and section 97 makes it an offence to contravene this prohibition. Most of the trees cut at the resort were not from an endangered species, but were nonetheless cut down without authorization from Parks Canada, and thus Lake Louise also contravened section 10 of the National Parks General Regulations, SOR/78-213, which is an offence under section 24(2) of the Canada National Parks Act, SC 2000, c 32 (Parks Act). On November 30, 2018 Judge Heather Lamoureux of the Provincial Court of Alberta sentenced Lake Louise to a $1.6 million penalty under SARA for cutting the whitebark pines, and a $500,000 penalty under the Parks Act for unlawful cutting of the other trees, for a total penalty of $2.1 million which will be directed into the federal Environmental Damages Fund. Lake Louise has since filed an appeal with the Court of Queen’s Bench seeking to have this total penalty reduced to $200,000.

Recommendations for Endangered Species Legislation

By Shaun Fluker

On October 30, 2018

In Environmental

By: Shaun Fluker

PDF Version: Recommendations for Endangered Species Legislation

Matter Commented On: Protecting Biodiversity in British Columbia: Recommendations for an Endangered Species Law in BC by a Species at Risk Expert Panel

This past summer I had the privilege of being invited to join a panel of conservation and biodiversity experts in British Columbia to develop a set of recommendations for endangered species legislation. The work is timely in that province, as the British Columbia government has announced plans to enact dedicated species at risk legislation. Members of the expert panel drew from their experience working within the science and policy of endangered species recovery and protection to put together a set of recommendations for the British Columbia government to consider as it works towards new legislation. The Report was published today, and it can be found here. Some of the recommendations in the Report are similar to those set out in A Proposal for Effective Legal Protection for Endangered Species Legislation in Alberta, including the need for provisions that ensure recovery measures are guided by science rather than politics. British Columbia currently has much the same legal framework as Alberta for endangered species legislation, which I described many years ago in Endangered species under Alberta’s Wildlife Act: Effective legal protection? as woefully inadequate and ineffective. British Columbia appears poised to change matters for the better within its borders. Will Alberta do the same?

How does a coffee shop conversation become a binding contract?

By Shaun Fluker

On September 20, 2018

In Contracts

By: Shaun Fluker

PDF Version: How does a coffee shop conversation become a binding contract?

Case Commented On: Schluessel v Margiotta, 2018 ABQB 615 (CanLII)

How many times have you walked into a Starbucks looking forward to a coffee break only to find all seats occupied by people working on a laptop? Their cup is empty, and has been for hours. Starbucks revolutionized the industry in many ways, certainly one of which was that the coffee shop became a social destination and later a business office. Free wifi and highly caffeinated beverages will do that. The contractual dispute which is the focus of this ABlawg post arose out of a conversation at one of these tables at a Starbucks. Schluessel v Margiotta is a cautionary tale to take care in what you say to others in coffee shops – it may cost you a lot of money! The case is also an illustration of the difficulties in legal reasoning which face a trial judge presented with a dispute over whether an oral contract has formed.

More Justice for the Western Chorus Frog

By Shaun Fluker

On September 12, 2018

In Environmental

By: Shaun Fluker

PDF Version: More Justice for the Western Chorus Frog

Case Commented On: Groupe Maison Candiac Inc. v Canada (Attorney General), 2018 FC 643

Groupe Candiac is another case of legal success for endangered species at the Federal Court, and the second victory for the endangered western chorus frog in Québec. Over the past decade or so, the Federal Court has consistently ruled in favour of applicants seeking to enforce provisions in the federal Species At Risk Act, SC 2002 c 29 (SARA) and ABlawg has followed these judgments on matters such as the designation of critical habitat, the protection of critical habitat, and recovery strategies. In Groupe Candiac, Justice LeBlanc rules the federal power to issue an emergency protection order in section 80 of SARA covering provincial lands does not offend the division of powers under the Constitution Act 1867 and is otherwise lawful. Groupe Candiac is particularly relevant to Alberta, since the only other emergency protection order issued by the federal government under SARA since its enactment in 2002 protects the greater sage grouse located in southern Alberta. Groupe Candiac affirms the legality of this important power in SARA for the federal government to act swiftly to protect endangered species in the face of provincial inaction. Unfortunately for endangered species it is a hollow victory because federal officials are anything but swift when it comes to implementing the protective measures in SARA, and instead they regularly employ administrative discretion to undermine the effectiveness of the legislation.

Peaks of Grassi Development in Canmore: Procedural Fairness and Municipal Bylaws?

By Shaun Fluker

On August 15, 2018

In Administrative Law, Municipal Law

By: Shaun Fluker

PDF Version: Peaks of Grassi Development in Canmore: Procedural Fairness and Municipal Bylaws?

Case Commented On: Gruman v Canmore (Town), 2018 ABQB 507 (CanLII)

Municipal governance in the Town of Canmore is undoubtedly a challenging proposition. Canmore is a four-season tourism and recreation destination, which attracts a large range of visitors and inhabitants with diverse interests. The town is also situated at the mouth of the Bow Valley; it must be a constant struggle to achieve development goals while not spoiling the environmental riches which make Canmore the attractive destination that it is. This diverse range of interests and concerns results in relatively frequent municipal disputes in the town. The dispute in question here concerns a proposed new residential development in the Peaks of Grassi – a subdivision located on the west side of Canmore along the lower slopes of Ha Ling Peak. In 2015 Canmore council amended a bylaw to allow for residential development in what is currently an urban environmental reserve located in the Peaks of Grassi subdivision. The bylaw amendment was challenged in a judicial review application heard in March 2017, and in July 2018 Justice Gates allowed the application and quashed the bylaw amendment on procedural fairness grounds (see here for media coverage on this decision).