Category Archives: Conflict of Laws

Judicial Review on the Vires of Subordinate Legislation: Full Vavilov, Partial Vavilov or No Vavilov?

By: Shaun Fluker

Cases Commented On: Auer v Auer, 2022 ABCA 375 (CanLII) and TransAlta Generation Partnership v Alberta (Minister of Municipal Affairs), 2022 ABCA 381 (CanLII)

PDF Version: Judicial Review on the Vires of Subordinate Legislation: Full Vavilov, Partial Vavilov or No Vavilov?

This comment examines two decisions issued concurrently by the Alberta Court of Appeal in late November 2022 that reject the application of a standard of review analysis when reviewing the vires (aka legality) of a ‘true’ regulation, (the need for the modifier is explained below). This is a topic that I have casually followed for some time. In 2016 I wrote Does the Standard of Review Analysis Apply to a Vires Determination of Subordinate Legislation? and in 2018 I wrote Judicial Review on the Vires of Subordinate Legislation. Together these earlier posts describe an uncertainty that has reigned for years over whether a standard of review analysis applies to the vires determination of subordinate legislation. In its overhaul on standard of review in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII) (Vavilov), the Supreme Court of Canada did not explicitly address this question (for my overview on standard of review under Vavilov see Vavilov on Standard of Review in Canadian Administrative Law). The uncertainty has evolved into a jurisprudential conflict. In Portnov v Canada (Attorney General), 2021 FCA 171 (CanLII) (Portnov), the Federal Court of Appeal ruled that a Vavilov standard of review analysis applies to the vires determination of regulations (Portnov at paras 23 – 28; see more recently Innovative Medicines Canada v Canada (Attorney General), 2022 FCA 210 (CanLII)). In Auer v Auer, 2022 ABCA 375 (CanLII) (Auer) and TransAlta Generation Partnership v Alberta (Minister of Municipal Affairs), 2022 ABCA 381 (CanLII) (TransAlta Generation) the Court of Appeal rules that Vavilov may partially apply to some regulations but not ‘true’ regulations (Justice Feehan departs from the majority in Auer on this point: Auer at para 117)). Continue reading →

Extraditing the Individual in the Meng Wanzhou Decision

By: Lisa Silver

PDF Version: Extraditing the Individual in the Meng Wanzhou Decision

Case Commented On: United States v Meng, 2020 BCSC 785 (CanLII)

The arrest and extradition of Meng Wanzhou is extraordinary. The case has attracted global interest and has highlighted the fragility of our diplomatic networks. It has the workings of a suspense novel with its political intrigue, double-entendres and power struggles. It brings into question our global alliances and lays bare our international aspirations. But this is not a le Carré novel nor is it a strategic game of Risk. The case, at its heart, is not dissimilar to most extradition hearings in Canada. In all such cases, the stakes are high, international relations are engaged, and the rule of law is tested in both the surrendering state and the requesting one. Moreover, in all extradition cases there is an individual, a person who must either stay or go. To keep extradition at the level of the individual is hard, but it is critical to do so for both legal reasons and human ones.

This post keeps that individual, Meng Wanzhou, in mind. For it is Meng Wanzhou who faces serious criminal charges and for whom this extradition decision will have direct and serious consequences. That is why I am looking for the individual in this recent extradition decision rendered by Associate Chief Justice Heather Holmes on the “double criminality” requirement, in which a person is extradited only when the conduct amounting to the criminal offence in the requesting state is also conduct amounting to a criminal offence in Canada. I am doing so because people matter, and because the law requires it.

Continue reading →

Canadian Mining Operators Abroad – Corruption as a ‘Real Risk’ Factor in Forum Non Conveniens Applications

By: Rudiger Tscherning

PDF Version: Canadian Mining Operators Abroad – Corruption as a ‘Real Risk’ Factor in Forum Non Conveniens Applications

Case Comment On: Garcia v Tahoe Resources Inc., 2017 BCCA 39 (CanLII)

In Garcia v Tahoe Resources Inc., 2017 BCCA 39 (CanLII) the Court of Appeal of British Columbia reversed an order which had granted Tahoe Resources Inc. (Tahoe) a stay of proceedings on grounds of forum non conveniens. The claim brought against Tahoe concerned the shooting of local protesters by security guards at Tahoe’s Guatemalan mining operation. The Court of Appeal held that the possibility of corruption in the Guatemalan legal system raised a real risk that the claimants would not obtain a fair trial, and therefore concluded that British Columbia was the “more appropriate forum”.

The decision raises a number of important issues, particularly for the Canadian energy and natural resources sector. The decision has the potential to undermine the attractiveness of Canadian jurisdictions as preferred venues for the registration of mining companies that engage in international activities. Tahoe’s registered office is in Vancouver which gave rise to jurisdiction simpliciter. The decision is also noteworthy from a private international law perspective. Firstly, the effect of the judgment is that serious doubt has been cast over the reliability of the legal system of an entire country, thereby raising issues of comity upon which the functioning of private international law depends. Secondly, the case marks the acceptance of the English test of ‘real risk’ of judicial unfairness as a factor in Canadian forum non conveniens analysis. Lastly, the BCCA focused on the close alignment between international resources companies and their host state governments and considered that the context of extensive local opposition to a mining project was a factor that pointed to British Columbia as the more appropriate forum. Continue reading →

International Child Abduction: Safeguarding against Grave Risks of Harm in ‘Prompt Return’ Applications

By: Rudiger Tscherning

PDF Version: International Child Abduction: Safeguarding against Grave Risks of Harm in ‘Prompt Return’ Applications

Case Comment On: JP v TNP, 2016 ABQB 613 (CanLII)

Introduction

In an earlier post, I discuss in detail the objective and mechanism of the Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, 19 ILM 1501, to discourage the wrongful removal of a child from his or her habitual residence and the mechanism of ‘prompt return’ of the child to his or her habitual residence. In this post, I revisit the topic of international child abduction to discuss the decision of JP v TNP, 2016 ABQB 613 (CanLII) and the “grave risk” exception in Article 13(b) of the Convention. This exception can be invoked in ‘prompt return’ applications where a parent alleges that the child would be exposed to an “unreasonable and grave risk of physical and psychological harm” if the court ordered the child’s return to his or her habitual residence. In JP v TNP, the Court of Queen’s Bench of Alberta struck a fair balance between the competing interest of the child and the overall objective of discouraging international child abductions. Continue reading →

International Child Abduction: A ‘Time-Limited Consent’ Does not Change the Habitual Residence of a Child

By: Rudiger Tscherning

PDF Version: International Child Abduction: A ‘Time-Limited Consent’ Does not Change the Habitual Residence of a Child

Case Commented On: Balev v Baggott, 2016 ONCA 680 (CanLII)

Introduction

The issues arising from international family disputes involving the non-consensual relocation of children abroad is perhaps one of the more difficult areas of private international law, in that the mechanical aspects of the conflict of laws (as set out in the Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, 19 ILM 1501) interact with the more personal aspects of international family life.

This post will examine the issue of international child abduction under the Hague Convention regime from the perspective of ‘time-limited consent’, namely whether the ‘habitual residence’ of a child can unilaterally be changed during a time-limited consent period when one parent wrongfully removes or retains a child in another contracting state. Continue reading →