ABLawg

Case Commented On: Fort Hills Energy Corporation v Alberta (Minister of Energy), 2018 ABQB 905

A year ago, ABlawg posted a case comment on a dispute related to the determination of payout with respect to the Hibernia project on the East Coast. That case, Newfoundland and Labrador v ExxonMobil Canada Properties, 2017 NLDT(G) 147, 2017 CanLII 56724 (NL SCTD), involved an arbitration followed by an unsuccessful application by the Province of Newfoundland and Labrador to have the court overturn the arbitral award. Fort Hills, perhaps more conventionally, involves the definition of payout under the terms of Alberta’s Oil Sands Royalty Regulation, 2009, Alta Reg 223/2008, (OSRR). In this case the matter arises as an application for judicial review with respect to the Minister’s decision on one element of the payout account for the Fort Hills Oil Sand Project (FHOS Project), namely a category of expenses referred to as ‘prior net cumulative balance’ (PNCB). The differences between the parties were massive. Suncor had originally claimed a PNCB of $1,898,205,145; the minister allowed a PNCB of a little more than $33 million, and a further review and audit reduced this to $NIL. Definitely worth fighting about!

Resisting Assimilation: the Politique en matière de francophonie in Alberta, Bessette v British Columbia, and the Impact of Language Rights on Access to Justice

By Alexandra Heine

On November 19, 2018

In Access to Justice

By: Alexandra Heine

PDF Version: Resisting Assimilation: the Politique en matière de francophonie in Alberta, Bessette v British Columbia, and the Impact of Language Rights on Access to Justice

Cases Commented On: R v Bessette, 2015 BCPC 230; Bessette v British Columbia (Attorney General), 2016 BCSC 2416; Bessette v British Columbia (Attorney General), 2017 BCCA 264; Bessette v British Columbia (Attorney General), 2018 BCCA 59; Joseph Roy Éric Bessette v Attorney General of British Columbia, Supreme Court of Canada, Docket: 37790

In June 2017, the Government of Alberta unveiled the Politique en matière de francophonie (Politique en matière de francophonie, Alberta Government) in an attempt to recognize the importance of protecting French minority communities. The goal of this policy is to substantiate the re-emergence of Francophone communities in Alberta by improving the accessibility and quality of services in French. Amongst other things, the government stated that they would communicate more often in French and add the Franco-Albertan flag to the list of provincial emblems. The government has also indicated that they will consider making the policy into a law.

Domestic Violence and Alternative Dispute Resolution in Family Law Disputes

By Wanda Wiegers

On November 15, 2018

In Family, State Responses to Violence

By: Wanda Wiegers, Jennifer Koshan and Janet Mosher

PDF Version: Domestic Violence and Alternative Dispute Resolution in Family Law Disputes

Legislation Commented On: Bill 98, The Miscellaneous Statutes (Family Dispute Resolution) Amendment Act; Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act

Access to justice in the family law sphere has received a lot of attention in recent years. One recurring theme is the large number of self-represented litigants and the need to explore mandatory out-of-court dispute resolution. Alberta does not currently mandate any type of alternative dispute resolution (ADR) for family law or child welfare matters (see here), but some other jurisdictions do. One issue that arises in this context is whether ADR is appropriate in cases involving domestic violence. In Saskatchewan, Bill 98, The Miscellaneous Statutes (Family Dispute Resolution) Amendment Act, will amend the Queen’s Bench Act, 1998, SS 1998, c Q-1.01, to require parties to participate in family dispute resolution (s 44.01(3)), but the parties may be exempted from that requirement if there is a history of interpersonal violence between them (s 44.01(6)(c)). We submitted a brief to the Saskatchewan Ministry of Justice in August 2017, prior to the enactment of Bill 98, which discussed the importance of considering domestic violence in this context (see here). The issue is once again alive as Parliament debates Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act. In its current iteration, Bill C-78 would amend the Divorce Act, RSC 1985, c 3 (2nd Supp), to create duties (1) on parties to “try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process” (proposed s 7.3) and, (2) on legal advisers to encourage their clients to use family dispute resolution processes (proposed s 7.7(2)(a); Bill C-78 defines “legal adviser” as “a person who is qualified, in accordance with the law of a province, to represent or provide legal advice to another person” in any proceeding under the Divorce Act). Although the amendments recognize that the duties may not apply where “the circumstances of the case are of such a nature that it would clearly not be appropriate to do so,” they do not explicitly exempt cases involving domestic violence at present.

Alberta’s Family Violence Laws: Intersections, Inconsistencies and Access to Justice

By Jennifer Koshan

On November 12, 2018

In State Responses to Violence

By: Jennifer Koshan, Irene Oh and Kristin McDonald

PDF Version: Alberta’s Family Violence Laws: Intersections, Inconsistencies and Access to Justice

Attached Summary Chart

November is Family Violence Prevention Month in Alberta. Law has an important role to play in prevention efforts through the ways it defines family violence, which may have educative and normative influences on the public. Law can also contribute to prevention in more material ways by providing remedies to enable victims to protect themselves and their children and by requiring perpetrators to seek counselling and other programming. But laws are only useful where they are accessible. This post describes and analyzes all of the Alberta laws and government policies pertaining to family violence, paying particular attention to the intersections and inconsistencies between them and how these might impact victims, perpetrators, children and their access to justice. While the map of laws in a single province is complex in itself, there are also federal laws relevant to domestic violence that add to this complexity – for example, for families seeking remedies under the Divorce Act, RSC 1985 c 3 (2nd Supp), and for First Nations victims of violence living on reserve, who may not have access to provincial protection order remedies (see here). The research set out in this post is part of a larger project on domestic violence and access to justice, funded by SSHRC and the Law Foundation of Ontario’s Access to Justice Fund, which is mapping legislation and government policies relevant to domestic violence across Canada. We will eventually make our research available on a website that is aimed at trusted intermediaries, those who provide services to victims and perpetrators in domestic violence cases. We also hope that this research is useful to litigants, lawyers, judges, policy-makers and other professionals who work in this area. The Alberta research is also available in a chart format that is attached above.

Let’s Talk About Access to Information in Alberta: Part One

By Drew Yewchuk

On November 5, 2018

In Access to Justice, Privacy

By: Shaun Fluker and Drew Yewchuk

PDF Version: Let’s Talk About Access to Information in Alberta: Part One

Legislation Commented On: Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25

The Faculty’s Public Interest Law Clinic handles a lot of inquiries from the community that engage with Alberta’s access to information legislation: the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 (FOIP Act). Simply put, there is a high demand for the disclosure of information collected, produced and otherwise held by state officials. The Information and Privacy Commissioner, who serves as an officer of the Legislature (FOIP Act, s 45), is responsible for overseeing the administration of the FOIP Act with the assistance of the Office of the Information and Privacy Commissioner (OIPC). In its 2015-2016 and 2016-2017 reports to the Legislative Assembly the OIPC indicated the access to information process in Alberta is approaching a crisis. Since commencing operations in 2015, the Public Interest Law Clinic has developed some expertise on working within the FOIP Act, and we would agree the system needs some critical attention. This post summarizes our current observations in this regard and, as the title to this post suggests, we see this as the beginning of a longer conversation. In order to illustrate the process and some of the problems within it, we refer to a request for information filed by the Clinic in July 2017, which is still ongoing, with respect to a creative environmental sentence imposed on CN Rail (see here for details on the offence and the creative sentence).

Payout under Alberta’s Oil Sands Royalty Regulation

Resisting Assimilation: the Politique en matière de francophonie in Alberta, Bessette v British Columbia, and the Impact of Language Rights on Access to Justice

Domestic Violence and Alternative Dispute Resolution in Family Law Disputes

Alberta’s Family Violence Laws: Intersections, Inconsistencies and Access to Justice

Let’s Talk About Access to Information in Alberta: Part One