ABLawg - - Page 126

Case Commented On: Quicksilver Resources Canada Inc (Re), 2018 ABQB 653

Quicksilver Resources (QRCI) owned oil and gas assets and associated infrastructure in the Horn River basin. In 2011, QRCI joined the Fortune Creek Partnership (FCP) and agreed, by way of a Contribution Agreement, to contribute certain infrastructure assets to the FCP. Those assets were described as follows:

The “Assets” are set forth on Exhibit 1 (Maxhamish Pipeline), Exhibit 2 (Compression Assets) and shall include the following:

(a) all permits, licenses, authorizations, surface rights (including easements, licenses of occupation and rights-of-way), and buildings, structures, appurtenances and tangible depreciable property situate thereon that are used or useful in connection with the operation of the Maxhamish Pipeline; but

(b) specifically exclude any rights or interests in or relating to petroleum or natural gas or the production thereof, or in wells or wellsite facilities, or in the operation of the foregoing. [The emphasis is supplied by Justice Jones.]

The FCP became insolvent in 2016 and MNP was appointed as Trustee in Bankruptcy. QRCI and its subsidiaries followed FCP into insolvency and obtained protection under the Companies Creditors Arrangement Act, R.S.C. 1985, c C-36 (“CCAA”) and a stay of proceedings. FTI Consulting was appointed as the Monitor of QRCI.

In March 2016 QRCI entered into an Asset Purchase Agreement (APA) with Rockyview Resources Inc (RRI). Under the CCAA, the APA required the approval of the Court and that approval was granted in the ordinary course in April 2016 in the form of an Approval and Vesting Order.

A dispute then arose as to whether certain infrastructure assets were included in the APA. These “disputed assets” are described as follows:

a metering station and building (the “Metering Station”) located at the downstream or outlet end of the Maxhamish Pipeline, the location being legally described as a-59-A/094-O-14 in the Province of British Columbia;
a pig receiving station (the “Pig Receiver”) at the same location; and,
a BC Oil and Gas Commission (“OGC”) Facility License for the Metering Station (the “Metering Station License”).

QRCI sought a declaration to the effect that RRI had no interest in the disputed assets.

There were three issues to resolve: (1) were the disputed assets covered by the partnership Contribution Agreement such that QRCI could not have sold them to RRI; (2) were the disputed assets included in the APA, and (3) did the Approval and Vesting Order give title of the disputed assets to RRI notwithstanding the conclusions to the first two questions.

The Increasing Risk of Conflating Self-Represented and Vexatious Litigants

By Jonnette Watson Hamilton

On September 17, 2018

In Vexatious Litigants

By: Jonnette Watson Hamilton

PDF Version: The Increasing Risk of Conflating Self-Represented and Vexatious Litigants

Case Commented On: Alberta Treasury Branches v Hawrysh, 2018 ABQB 475 (CanLII) (Hawrysh #1) and Alberta Treasury Branches v Hawrysh, 2018 ABQB 618 (CanLII) (Hawrysh #2)

The August 20^th decision of Justice Peter Michalyshyn in Hawrysh #2 was step two of the now usual two-step process adopted by the Alberta Court of Queen’s Bench in Hok v Alberta, 2016 ABQB 651 (CanLII) to deal with vexatious litigants. Step one was taken two months earlier in Hawrysh #1. The two decisions are interesting for at least three reasons. First, they show just how quickly the Court of Queen’s Bench of Alberta now acts to restrict access to the courts by someone whose litigation behaviour is judged to be vexatious. Second, very little of the behaviour found to be abusive in these cases occurred in the courtroom or in documents filed with the court. Third, and most importantly, the litigant’s use of Pintea v Johns, 2017 SCC 23 (CanLII), [2017] 1 SCR 470 and the Canadian Judicial Council “Statement of Principles on Self-represented Litigants and Accused Persons (2006)” was held to be an independent indicia of abusive litigation justifying the imposition of court access restrictions.

These cases also appear to provide further examples of what Dr. Julie Macfarlane of the National Self-Represented Litigants Project (NSRLP) wrote about in her September 6^th blog post, “Inequality and Discrimination in the Justice System” – that, in her words, “SRLs are “the other” in the justice system.” Specifically, Dr. Macfarlane noted that the NSRLP Research Reports show that most self-represented litigants “[a]re penalized for errors that are seen as intentional mischief-making,” and “[p]ushback is regarded as bad behaviour that must be punished.”

R v EJB: Reasonable Hypotheticals and Permitted Sentencing Factors

By Daphne Wang

On September 14, 2018

In Constitutional, Human Rights

By: Daphne Wang

PDF Version: R v EJB:Reasonable Hypotheticals and Permitted Sentencing Factors

Case Commented On: R v EJB, 2018 ABCA 239 (CanLII)

R v EJB, 2018 ABCA 239 is an important case regarding the sentencing of sexual exploitation offences pursuant to section 153(1.1)(a) of the Criminal Code, RSC 1985, c C-46. The decision overturns the trial decision. In doing so, the Court addresses mitigating and aggravating factors judges should and should not consider during sentencing for sexual offences against a minor. The Court also more clearly defines how to assess constitutional challenges to mandatory minimums pursuant to section 12 of the Charter. In making these clarifications, the Court of Appeal highlights important considerations that cannot be overlooked when sentencing offenders under section 153(1.1)(a).

The Shrinking Space for Hateful Speech in the Public Square – The Alberta Court of Appeal’s Decision in Canadian Centre for Bio-Ethical Reform v The City of Grande Prairie (City), 2018 ABCA 154

By Ola Malik

On September 13, 2018

In Human Rights

By: Ola Malik, Sasha Best and Jeff Watson

PDF Version: The Shrinking Space for Hateful Speech in the Public Square – The Alberta Court of Appeal’s Decision in Canadian Centre for Bio-Ethical Reform v The City of Grande Prairie (City), 2018 ABCA 154

Case Commented On: Canadian Centre for Bio-Ethical Reform v The City of Grande Prairie (City), 2018 ABCA 154 (CanLII)

Introduction

Determining what limits apply to an advertiser’s freedom of expression as it pertains to the advertising of offensive messaging on the sides of municipal buses has been the subject of considerable judicial commentary both at the Supreme Court of Canada level and recently by the Alberta Court of Queen’s Bench and the Alberta Court of Appeal – see for example: the Supreme Court of Canada, in Greater Vancouver Transportation Authority v. Canadian Federation of Students, [2009] 2 SCR 295, 2009 SCC 31 (CanLII) (GVTA); the Alberta Court of Queen’s Bench decisions in American Freedom Defence Initiative v Edmonton (City), 2016 ABQB 555 (CanLII ) (AFDI), blogged about here and Canadian Centre for Bio-Ethical Reform v The City of Grande Prairie (City), 2016 ABQB 734 (CanLII) (CCBR QB) (which is the subject of this appeal) which we have previously commented upon here. (See also a decision of the B.C. Supreme Court in The Canadian Centre for Bio-Ethical Reform v. South Coast British Columbia Transportation Authority, 2017 BCSC 1388 (CanLII)).

In CCBR and AFDI, the courts examined the hateful nature of the advertising messages, their harmful impact, and the challenges which this type of messaging poses for municipalities. In many ways, both these decisions addressed novel questions of law that hadn’t been extensively canvassed elsewhere. The Alberta Court of Appeal’s decision in Canadian Centre for Bio-Ethical Reform v The City of Grande Prairie (City), 2018 ABCA 154 (CanLII) (CCBR CA) helpfully settles some of these questions and provides municipalities with useful guidance regarding the limits of freedom to advertise in municipal spaces.

More Justice for the Western Chorus Frog

By Shaun Fluker

On September 12, 2018

In Environmental

By: Shaun Fluker

PDF Version: More Justice for the Western Chorus Frog

Case Commented On: Groupe Maison Candiac Inc. v Canada (Attorney General), 2018 FC 643

Groupe Candiac is another case of legal success for endangered species at the Federal Court, and the second victory for the endangered western chorus frog in Québec. Over the past decade or so, the Federal Court has consistently ruled in favour of applicants seeking to enforce provisions in the federal Species At Risk Act, SC 2002 c 29 (SARA) and ABlawg has followed these judgments on matters such as the designation of critical habitat, the protection of critical habitat, and recovery strategies. In Groupe Candiac, Justice LeBlanc rules the federal power to issue an emergency protection order in section 80 of SARA covering provincial lands does not offend the division of powers under the Constitution Act 1867 and is otherwise lawful. Groupe Candiac is particularly relevant to Alberta, since the only other emergency protection order issued by the federal government under SARA since its enactment in 2002 protects the greater sage grouse located in southern Alberta. Groupe Candiac affirms the legality of this important power in SARA for the federal government to act swiftly to protect endangered species in the face of provincial inaction. Unfortunately for endangered species it is a hollow victory because federal officials are anything but swift when it comes to implementing the protective measures in SARA, and instead they regularly employ administrative discretion to undermine the effectiveness of the legislation.

A Vesting Order Cannot Create Title

The Increasing Risk of Conflating Self-Represented and Vexatious Litigants

R v EJB: Reasonable Hypotheticals and Permitted Sentencing Factors

The Shrinking Space for Hateful Speech in the Public Square – The Alberta Court of Appeal’s Decision in Canadian Centre for Bio-Ethical Reform v The City of Grande Prairie (City), 2018 ABCA 154

More Justice for the Western Chorus Frog