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Interjurisdictional Enforcement of Protection Orders and the Possibility of Conflicts: The Need for Reform in Alberta

On April 11, 2018

By: Jennifer Koshan

PDF Version: Interjurisdictional Enforcement of Protection Orders and the Possibility of Conflicts: The Need for Reform in Alberta

Case Commented On: DH v TH, 2018 ABQB 147 (CanLII)

Most provinces and territories in Canada now have legislation providing for emergency protection orders in cases of family violence. What we do not have in Alberta is a clear mechanism that allows for the recognition and enforcement of a protection order granted in another jurisdiction, nor a mechanism for dealing with conflicting orders.

In a recent Alberta case, DH v TH, 2018 ABQB 147 (CanLII), Justice Lee faced a situation where a woman had obtained an ex parte protection order against her husband in British Columbia under the Family Law Act, SBC 2011, c 25. At the time, the wife was living in BC and her husband was travelling back and forth between Edmonton and BC for work. After the order was granted, the husband moved to Edmonton to live with his sister. He was eventually served with the BC order in Alberta but missed the date for the hearing into the extension of that order, which resulted in a three-year BC protection order being granted against him. In the meantime, the wife received a transfer of employment to Edmonton and moved there to live with her parents. The husband apparently learned about the extension of the BC order when he went to an Edmonton daycare “where he believed the child of the marriage was” (at para 6). Later that day, he was served with an emergency protection order (EPO) obtained ex parte by his wife under Alberta’s Protection Against Family Violence Act, RSA 2000, c P-27 (PAFVA).

Leaving A Paper Trail: A Comment on Bill C-75

By Lisa Silver

On April 5, 2018

In Criminal

By: Lisa Silver

PDF Version: Leaving A Paper Trail: A Comment on Bill C-75

Legislation Commented On: Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts

Receiving the newest Bill tabled in the House on proposed changes to the criminal justice system brings to mind the image of opening gifts at a birthday party. Each gift is scrupulously wrapped in an array of cheerful paper with shiny ribbons. As each bundle is displayed, there is a jostling amongst the party goers – each eager to see the gift unwrapped to reveal the prize inside. The image goes only so far when it comes to the government’s proposed amendments to the Criminal Code tabled last week under the auspices of Bill C-75. Underneath the wrapping, over 300 pages of paper, is no prize but a maze of amendments and changes – a patchwork of pieces – some of which significantly change the criminal justice system. Although some of these amendments are welcome, others signal a significant shift in our criminal justice system. Change can be good and can improve our concept of justice. However, even the smallest change must be calibrated toward a goal we all share: maintaining the fine balance between protection of the public and protection of the individual within that system who is faced with a potential loss of liberty. We must not sacrifice one for the other. Change must be viewed not as a piece of a maze but as a part of a whole through long-term strategic vision. Unfortunately, this omnibus Bill in many respects fails to be visionary. Rather, short-term administrative efficiency seems to be the prize under the mountain of paper.

Suncor’s Random Drug and Alcohol Testing Policy Continues to be the Subject of Litigation

By Linda McKay-Panos

On April 4, 2018

In Constitutional

By: Linda McKay-Panos

PDF Version: Suncor’s Random Drug and Alcohol Testing Policy Continues to be the Subject of Litigation

Case Commented On: Unifor, Local 707A v Suncor Energy Inc., 2018 ABCA 75 (CanLII)

There have been several previous ABlawg posts on this litigation related to drug testing in the workplace. See here, here, here, and here.

Suncor Energy Inc. appealed an interim injunction granted by the ABQB (Unifor, Local 707A v Suncor Energy Inc., 2017 ABQB 752 (CanLII)), which prohibited it from implementing random drug and alcohol testing of members of Unifor Local 707A (Unifor) in the Regional Municipality of Wood Buffalo until a new arbitration is ordered, unless the Supreme Court of Canada determines that a new arbitration is unnecessary (application for leave to appeal Suncor Energy Inc v Unifor Local 707A, 2017 ABCA 313 (CanLII) (the arbitration matter) to the SCC was initiated in November 2017). In the instant case, a majority of the Alberta Court of Appeal (per Justices Ronald Berger and Patricia Rowbotham) upheld the interim injunction.

Ontario Court of Appeal Decision Provides Guidance on the Application of Dynex

By Nigel Bankes

On April 3, 2018

In Oil & Gas

By: Nigel Bankes

PDF Version: Ontario Court of Appeal Decision Provides Guidance on the Application of Dynex

Case Commented On: Third Eye Capital Corporation v Ressources Dianor Inc, 2018 ONCA 253 (CanLII)

In 2002 the Supreme Court of Canada handed down its decision in Bank of Montreal v Dynex Petroleum Ltd, 2002 SCC 7 (CanLII) in which it confirmed that a gross overriding royalty (GOR) carved out of a working interest in oil and gas rights was capable of subsisting as an interest in land as a matter of law. In an earlier post on post-Dynex litigation I observed that:

Whether any particular GORR created an interest in land, or simply a contractual claim, depends upon the intentions of the parties as revealed in the language adopted by the parties to describe the GOR. There is presumably no objection to expressing this intention with words such as “the parties intend that the right and interest created by clause x of this agreement is to be an interest in land” – so long as this intention is not contradicted by other language in the agreement when construed as a whole in accordance with the usual rules on the interpretation of contracts.

Not Your Grandfather’s Cooperative Federalism: Constitutional Themes at the Supreme Court Hearing of Redwater

By Scott Carrière

On April 2, 2018

In Constitutional, Oil & Gas, Supreme Court of Canada

By: Scott Carrière

PDF Version: Not Your Grandfather’s Cooperative Federalism: Constitutional Themes at the Supreme Court Hearing of Redwater

Case Commented On: Orphan Well Association, et al v Grant Thornton Limited, et al, 2017 ABCA 124 (CanLII), leave granted 2017 CanLII 75023 (SCC), webcast available here, factums on appeal available here

Background

The Orphan Well Association and Alberta Energy Regulator’s action against a now-defunct oil and gas company’s bankruptcy trustee and primary creditor— commonly known as Redwater—was heard before the Supreme Court in February, and with the facts of the case disclosing a number of significant issues pertaining to the division of powers, the constitutional themes took centre stage throughout the oral and written submissions to the court. The arguments put forward by the parties and interveners represent significant considerations of Canada’s doctrinal approach to federalism as they pertain to contemporary natural resource governance. This post focuses on these substantial doctrinal issues put to the court by the parties and interveners, as it is likely that the case will be decided on narrower bases than the full suite of considerations put to the Court given its general restraint on constitutional matters that could represent a shift in the established doctrine dealing with the division of federal and provincial powers.