Category Archives: Federal Court

The Curious Demise of Alberta’s Turn Off the Taps Legislation

By: Nigel Bankes, Andrew Leach and Martin Olszynski

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Matters Commented On: Alberta (Attorney General) v British Columbia (Attorney General), 2021 FCA 84 (CanLII) reversing British Columbia (Attorney General) v Alberta (Attorney General), 2019 FC 1195 (CanLII), and Preserving Canada’s Economic Prosperity Act, SA 2018, c P-21.5

The Turn Off the Taps legislation ((or, more properly, Preserving Canada’s Economic Prosperity Act, SA 2018, c P-21.5) (PCEPA)) was passed under the Notley government in 2018. There have always been serious doubts as to the constitutional validity of the legislation (for discussion of the principal objections to the legislation, see ABlawg here) and it is hardly surprising that the Attorney General of British Columbia (AGBC) commenced actions first in the Alberta Court of Queen’s Bench and later in the Federal Court seeking to test the validity of the Act. As described by a majority of the Federal Court of Appeal in Alberta (Attorney General) v British Columbia (Attorney General), 2021 FCA 84 (CanLII) [Turn off the Taps IV], the AGBC had two main arguments. The first was that PCEPA is inconsistent with s 121 of the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3; the second was that the PCEPA is a law in relation to interprovincial trade that falls outside the protection offered by s 92A(2) of the Constitution Act, 1867, the so-called ‘resource amendment’ to the Constitution. In particular, the AGBC noted that s 92A only protects laws pertaining to “primary production” as defined in the Sixth Schedule, and yet the PCEPA purported to apply to refined fuels which fell outside that definition. The Sixth Schedule provides as follows: Continue reading →

Church of Atheism of Central Canada v MNR: Charitable Status for Atheists and the Triviality of Religious Freedom Infringements

By: Kathryn Chan & Howard Kislowicz

PDF Version: Church of Atheism of Central Canada v MNR: Charitable Status for Atheists and the Triviality of Religious Freedom Infringements

Case Commented On: Church of Atheism of Central Canada v MNR, 2019 FCA 296 (CanLII)

On October 29, the Supreme Court of Canada denied leave to appeal in Church of Atheism of Central Canada v MNR, 2019 FCA 296 (CanLII), a charitable registration appeal that raised questions about the constitutionality of according tax privileges to a class of “religious” charities in Canada. This result is unsurprising. The decision of the Federal Court of Appeal was unanimous and the Church of Atheism was not represented by counsel. The evidentiary record was probably sparse, since the evidentiary record in charitable registration appeals is limited to the documents in the Canada Revenue Agency’s file at the time that registration is denied. Nevertheless, Church of Atheism of Central Canada v MNR raised important legal issues that affect the largest segment of Canada’s charitable sector. This post discusses several issues that are likely to re-emerge in a future case.

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Does a US Entity Have a Cause of Action (Cognizable by the Federal Court) where a Downstream Road/Dyke in Canada Serves to Prevent Dispersion of the Natural Flow of a Transboundary Stream? Answer: No

By: Nigel Bankes

PDF Version: Does a US Entity Have a Cause of Action (Cognizable by the Federal Court) where a Downstream Road/Dyke in Canada Serves to Prevent Dispersion of the Natural Flow of a Transboundary Stream? Answer: No

Case Commented On: Pembina County Water Resource District v Manitoba (Government), 2017 FCA 92 (CanLII)

The Pembina River is transboundary stream. Its geography is as follows (at para 6 of the judgement):

The Pembina River originates in Manitoba and crosses into North Dakota. It then flows eastwards through North Dakota before joining the Red River, which flows northward back into Canada. Within North Dakota, part of the river is “perched” meaning that it is elevated above the level of the surrounding prairie. When the river overflows these elevated banks, as the appellants allege happens “virtually every year,” the water should naturally disperse.

The gravamen of the plaintiffs’ claim was that (at paras 5 and 6):

…. in the relevant areas of southern Manitoba, there is a 99 foot wide road allowance running parallel to the international border. In or around 1940, a raised road was constructed within this allowance. The road [blocks] the flood waters of the Pembina River from crossing into Canada. Continue reading →