Category Archives: Torts

A rare species of tort in the Spray Valley: Abuse of public office

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.

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Torts, Tasers and Causation

Cases Considered: Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333; Athey v. Leonati, [1996] 3 S.C.R. 458  Snell v. Farrell, [1990] 2 S.C.R. 311.

PDF Version:  Torts, Tasers and Causation

The recent deaths that occurred in Calgary and Edmonton following the use of a conducted energy weapon (generically referred to here as a “taser”) have once again raised the issue of the appropriate use of tasers in policing. In fact, there have been at least 20 deaths in Canada following the use of tasers. The British Columbia Civil Liberties Association and Amnesty International Canada have called for a moratorium on their use. The RCMP Public Complaints Commissioner called for a moratorium on their use if the RCMP cannot properly instruct its members to appropriately deploy the taser in an operational setting. It is in this context that the Alberta Solicitor General, Fred Lindsay, and the Premier of Alberta, Ed Stelmach, downplayed the possibility that the use of a taser can cause death. This post argues that, notwithstanding the opinions of these elected officials regarding causation, it is possible for police officers to be found liable in negligence as a result of using a taser.

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Proof of Future Economic Losses in Tort Law

Cases Considered:  Chernetz v. Eagle Copters Maintenance Ltd., 2008 ABCA 265

PDF Version:   Proof of Future Economic Losses in Tort Law

In 1999, Harry Chernetz was killed in a helicopter crash. In an action against the helicopter operator and its maintenance company, his estate, his wife and their three teenaged children were awarded damages exceeding $3 million under the Fatal Accidents Act, R.S.A. 2000, c. F-8. The plaintiffs appealed, submitting, amongst other things, that in assessing the loss of future income, the trial judge wrongly required the plaintiff to prove what Harry Chernetz would have earned had the tort not occurred on a balance of the probabilities. Instead, the appellants contended, the trial judge should have attached probabilities to what Harry Chernetz might have earned, as a real and substantial possibility, had the tort not occurred, and calculated the expected earnings. The Alberta Court of Appeal (per Justices Constance Hunt, Clifton O’Brien and Alan Macleod) found that the trial judge applied the wrong standard of proof to isolated issues only and, for reasons of economy of judicial time and resources as well as fairness, ordered the action to be remitted to the trial judge to remedy the isolated errors identified by the Court of Appeal. Unfortunately, given the nature of the principles involved in assessing future economic loss, where there is a lack of clarity in the application of such principles by the trial judge, it may not be possible in principle for the Court of Appeal to accurately identify the errors.

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