Category Archives: Intervenors and Standing

Some Much Needed R&R: Revisiting and Relaxing the Test for Public Interest Standing in Canada

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Case Considered: Canada (Attorney General) v Downtown Eastside Sex Workers Against Violence Society, 2012 SCC 45

On September 21, 2012, the Supreme Court of Canada revisited the doctrine of public interest standing in Canada (Attorney General) v Downtown Eastside Sex Workers Against Violence Society, affirming the decision of the British Columbia Court of Appeal to grant the Downtown Eastside Sex Workers Against Violence Society (the Society) public interest standing to challenge the prostitution provisions of the Criminal Code (ss 210 to 213). We comment on this Supreme Court decision for its potential to revise how the doctrine of public interest standing is applied by Alberta courts going forward.

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Access to Justice: University of Calgary Environmental Law Clinic in 2011/2012 – “What’s legal is not always what is just” – Rick Collier

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Case and Decision considered: Kelly v Alberta (Energy Resources Conservation Board), 2012 ABCA 19,

Hohloch v Director, Southern Region, Environmental Management, Alberta Environment and Water, re: Eastern Irrigation District (29 March 2012), (AEAB), Appeal No 10-043-ID2

As the Fall 2012 term approaches we here at the law school have started to prepare for the return of students and the resumption of lectures. In my case, this includes getting ready for another year of supervising our environmental law clinic. Before the new term arrives for the clinic, however, I want to look back on some highlights from 2011/2012. The clinic allows one to step out of the law school and into the field of environmental disputes in Alberta. If there was a common theme to all of our files last year, it was access to justice. I’ve chosen to end this recap with a tribute to Rick Collier who stood up for wilderness in an act of civil disobedience to protest the lack of public input into resource and environmental decision-making in Alberta.

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The Elephant in the Courtroom

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Case Considered: Reece v Edmonton (City), 2011 ABCA 238

In March 2011 the Court of Appeal heard an appeal by Zoocheck Canada, People for the Ethical Treatment of Animals, and Tove Reece (collectively referred to as Zoocheck here) from Justice John Rooke’s August 2010 decision to strike Zoocheck’s application for a declaration that the City of Edmonton is violating the Animal Protection Act, RSA 2000 c. A-41 by keeping Lucy the Elephant in its Valley Zoo. See my previous ABlawg comment Lucy the Elephant v Edmonton (City) for some analysis of Justice Rooke’s decision (Reece v Edmonton (City), 2010 ABQB 538), the background concerning Lucy’s health problems and living conditions in the zoo, the applicable legislative framework, and the City’s motion to strike the Zoocheck application. In its August 2011 Reece v Edmonton (City) decision the Court of Appeal dismisses the Zoocheck appeal, with the majority written by Justice Frans Slatter upholding the finding at the Court of Queen’s Bench that the application for a declaration constitutes an abuse of process. In her lengthy dissenting opinion, Madame Justice Catherine Fraser rules the Zoocheck application is not an abuse of process and should go to trial. This Court of Appeal decision is noteworthy to me for three reasons: (1) the sharp contrast of legal theory underlying the majority and the dissent; (2) the environmental ethic informing Justice Fraser’s dissent; and (3) the comments made by Justice Fraser concerning the availability of public interest standing.

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The continuing mystery of standing at the Energy Resources Conservation Board

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Case considered: West Energy/Daylight Energy – Section 39 review hearing re: Linda McGinn, 2011 ABERCB 002

A couple weeks ago on ABlawg I suggested that the law governing standing to contest an energy project in front of the Energy Resources Conservation Board (ERCB) is becoming unglued (see The problem of costs at the Energy Resources Conservation Board: Leave to appeal granted in Kelly #4).The first change came out of the Court of Appeal’s October 2009 decision in Kelly v. Alberta (Energy Resources Conservation Board, 2009 ABCA 349, (and see The Problem of Locus Standi at the Energy Resources Conservation Board: A Diceyan Solution). The Court of Appeal has subsequently granted two leave applications made by Susan Kelly that concern the interpretation of sections 26 and 28 of the Energy Resources Conservation Act (ERCA), R.S.A. 2000, c. E-10. These additional appeals have yet to be heard, but I am certain the Court’s ruling in both matters will result in further changes to the law concerning who must be heard at the ERCB. The ERCB’s recent standing ruling in West Energy/Daylight Energy Section 39 Review Decision, 2011 ABERCB 002 suggests to me that the Board has lost its way on how to apply section 26(2) of the ERCA.

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The problem of costs at the Energy Resources Conservation Board: Leave to appeal granted in Kelly #4

PDF version: The problem of costs at the Energy Resources Conservation Board: Leave to appeal granted in Kelly #4

Case considered: Kelly v. Alberta (Energy Resources Conservation Board), 2011 ABCA 19

The Court of Appeal has granted leave on a matter that I believe has the potential to produce one of the most significant decisions from the Court in some time concerning energy and environmental law in Alberta. This outcome is largely due to the persistence of Susan Kelly and many other residents, along with their counsel Jennifer Klimek, who have appeared in front of the Court numerous times in recent years seeking leave to appeal decisions by the Energy Resources Conservation Board (ERCB) that issue sour gas well licences near their homes in the Drayton Valley region southwest of Edmonton. Kelly et al have been very successful in obtaining the Court’s permission to appeal several ERCB decisions, and one result of their efforts is that the law governing the ERCB is changing. (See my previous ABlawg posts The Problem of Locus Standi at the Energy Resources Conservation Board: A Diceyan Solution and The Problem of Locus Standi at the Energy Resources Conservation Board: Leave to appeal granted in Kelly #2.

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