B.Comm. (Alberta), LL.B. (Victoria), LL.M. (Calgary).
Associate Professor.
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Case considered: Dunsmuir v. New Brunswick, 2008 SCC 9
PDF version: After Dunsmuir: The Alberta Court of Appeal’s Identification and Application of Standard of Review May 2008-May 2009
For a recent session of the Canadian Bar Association’s administrative law sub-section we reviewed Alberta Court of Appeal decisions with respect to the use of Dunsmuir v. New Brunswick, 2008 SCC 9 from May 2008 to May 2009. Here we share some preliminary analysis from our findings.
Case considered: Berger v. Alberta (Energy Resources Conservation Board), 2009 ABCA 158
PDF version: Narrowing the prospect of obtaining leave to appeal an ERCB decision: The troublesome aspect of judicial deference
The Court of Appeal routinely decides applications for leave to appeal an Energy Resources Conservation Board (ERCB) decision on questions of law or jurisdiction pursuant to section 41 of the Energy Resources Conservation Act, R.S.A. 2000, c. E-10 (ERCA). In Berger v. Alberta (Energy Resources Conservation Board), Mr. Justice Frans Slatter denies a request from several applicants for leave to appeal a December 2008 ERCB approval issued to Highpine Oil and Gas to drill 3 sour gas wells in Parkland County west of Edmonton (ERCB decision 2008-135).
Case considered: Genesis Land Development Corp. v. Alberta, 2009 ABQB 221
PDF version: A rare species of tort in the Spray Valley: Abuse of public office
My work in environmental law began in the late 1990s as part of the opposition to a mountain resort proposed by a land company based in Calgary – Genesis Land Developers – to be located along the eastern boundary of Banff National Park in the Spray Valley. In the planning stages since the 1960s, this resort proposal had only partial regulatory approval by 1998 when its legal ownership was acquired by Genesis. The subsequent Genesis development proposal consisted of a four-season mountain resort in the Spray Valley, including a tour boat operation on Spray Lakes, helicopter and cat-assisted skiing on Tent Ridge, and a 400 bed accommodation facility. Of these three components, the boating operation was essentially approved when Genesis acquired ownership of the proposal. The regulatory approval process was in full swing until May 31, 2000, when the Government of Alberta announced the project would not be approved and the Spray Valley would be designated as a provincial park. This turn of events led to the current proceedings.
PDF Version: R. v. Syncrude Canada: The Case of The 500 Dead Ducks
Alberta Environment and Environment Canada have laid charges against Syncrude Canada in relation to the toxic substances in its Aurora Mines tailing pond that resulted in the death of 500 migratory birds in 2008.
Environment Canada has charged Syncrude for violating section 5.1 of the Migratory Birds Convention Act, S.C. 1994, c. 22 by depositing substances harmful to migratory birds in its tailing pond. This is the same information as sworn by John Custer in his private prosecution that commenced in January (See my earlier post Environmental Private Prosecution Update: John Custer v. Syncrude Canada).
Cases Considered: Bearspaw Petroleum Ltd. v. Alberta Energy and Utilities Board, 2008 ABCA 405;
Bearspaw Petroleum Ltd. v. Alberta Energy and Utilities Board, 2009 ABCA 3.
PDF Version: Obtaining leave to appeal an ERCB decision: Where is the justice?
Section 41 of the Energy Resources Conservation Act, R.S.A. 2000 c. E-10 provides for an appeal from a decision of the Energy Resources Conservation Board (ERCB) on questions of law or jurisdiction with leave of the Court of Appeal. The test for leave includes a consideration of four factors: (1) whether the point on appeal is of significance to the practice; (2) whether the point raised is of significance to the action itself; (3) whether the appeal is prima facie meritorious; and (4) whether the appeal will unduly hinder the progress of the action. Bearspaw Petroleum Ltd. v. Alberta Energy and Utilities Board is one of many recent leave to appeal decisions from the Court (See for example “Landowners, Procedural Fairness and Alberta’s Energy Resources Conservation Board” ). What strikes me about this decision is how it compares to the Court’s decision to deny leave to appeal in Sawyer v. Alberta Energy and Utilities Board, 2007 ABCA 297 (see “Standing against public participation at the Alberta Energy and Utilities Board”).
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