A Questionable Equity: Rectification and Tax Avoidance

By: Drew Yewchuk

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Case Commented On: Harvest Operations Corp. v Attorney General of Canada, 2017 ABCA 393 (CanLII)

Harvest Operations Corp. v Attorney General of Canada (Harvest Operations Corp. CA) is a case about an elaborate but unsuccessful tax avoidance maneuver and an attempt to get contract rectification. The details of the attempted tax avoidance are unreasonably complicated, and so I will focus on the facts necessary for the rectification issue (if you want to learn how to correctly perform the “bump transaction” method of avoiding capital gains tax, this post will not help you). Continue reading →

Court Confirms that Good Faith Fulfilment of Modern Treaties is Essential to the Project of Reconciliation

By: Nigel Bankes

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Case Commented On: First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58 (CanLII)

In this unanimous decision authored by Justice Karakatsanis, the Supreme Court of Canada confirmed what seems like an obvious proposition, namely that good faith fulfilment of modern treaties is a necessary condition for the project of reconciliation. The Court concluded that the land use planning process established by the Yukon Final Agreements permitted Yukon to modify a Recommended Final Plan (in this case the Peel Watershed Regional Land Use Plan), but that the power to modify did not include the power to change a Plan “so significantly as to effectively reject it” (at para 39). More specifically, Yukon’s power to modify was confined by the scope of the issues that it had raised during the planning process; it could not raise significant new issues although it could respond to changing circumstances. As a result, Yukon’s purported approval of the Plan was invalid (at para 35). Continue reading →

Dunsmuir is Dead – Long Live Dunsmuir! An Argument for a Presumption of Correctness

By: Martin Olszynski

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Case Commented On: Garneau Community League v Edmonton (City), 2017 ABCA 374 (CanLII)

Garneau is the latest judicial plea to the Supreme Court of Canada to do something about the standard of review – three judges, three judgments, all concurring in the result but each getting there somewhat differently. The case involves Alberta’s Municipal Governments Act, RSA 2000 c M-26, including statutory rights of appeal that are similar to those recently considered by the Supreme Court (and only slightly less recently considered by the Alberta Court of Appeal) in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47 (CanLII). In this post, I highlight Justice Watson’s and Slatter’s concerns about the standard of review framework as set out in Dunsmuir v New Brunswick, 2008 SCC 9 (CanLII) and its progeny. Before doing so, however, I first provide a primer on the Dunsmuir framework wherein I flag some of my own concerns. Drawing on these two parts, I then propose two concrete changes to the Dunsmuir framework that in my view would render it more coherent and stable, both doctrinally and practically.  Continue reading →

“Not One Cookie Cutter Citizen”: A Review of ABlawg Posts on Some of Justice Sheilah Martin’s Decisions

By: Jennifer Koshan, Jonnette Watson Hamilton, Fenner Stewart, and Lisa Silver

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Matter Commented On: Justice Sheilah Martin’s Nomination to the Supreme Court of Canada

The Faculty of Law at the University of Calgary is thrilled that one of our own – Justice Sheilah Martin – has been nominated to the Supreme Court of Canada. Many of us watched her question and answer session with Parliamentarians on 5 December 2017, and were pleased to see her fierce intelligence, compassion and humour shine through. In one of the most quoted lines from her remarks, she said that she hoped her legacy would be that she was a deep thinker, a good listener, and had really great hair. The title of this post, “Not One Cookie Cutter Citizen”, is also taken from Justice Martin’s remarks during the hearing, when she was making a point about the importance of thinking about the differential impact of the law on people with different identities and needs. A review of ABlawg posts on decisions written by Justice Martin during her tenure as a judge in Alberta reveals her concern for the impact of the law on individuals and the public. This post will highlight four of Justice Martin’s decisions that we have blogged on over the years, in areas ranging from constitutional and health law, to civil litigation and vexatious litigants, to bankruptcy law and oil and gas assets, to homicide and sexual assault law. We also provide a list of other posts on her judgments for those who are interested in further reading on Justice Martin’s legacy as a judge in Alberta.  Continue reading →

The False Security of Commingled Trust Accounts

By: Nigel Bankes

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Case Commented On: Alberta Treasury Branches v Exall Energy Corporation, 2017 ABQB 602 (CanLII)

Working interest owners in the western sedimentary basin have long sought to have the best of both worlds: the convenience of allowing an operator to commingle joint account monies from multiple properties in a single general account, while offering (through the provisions of the Canadian Association of Petroleum Landmen (CAPL) operating procedures) the contractual assurance to non-operators that their funds were impressed with a trust while in that commingled account. The weakness of such an assurance is that its underlying premise is that the operator will always have a balance in that commingled general account equal to or greater than the amounts represented by the “monies of the joint operator”, whether those monies are monies contributed by a joint operator to fund joint operations or whether they represent monies received by the operator on account of the sale of a joint operator’s share of production. If that premise turns out not to be the case then a joint operator’s proprietary claim evaporates. The premise of course is most likely to be false when the operator is in financial difficulty – the precise point in time when a joint operator would like to have access to a proprietary remedy. Continue reading →