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The Intersection of Discretionary Powers, Fiduciary Duties, the Public Interest and the Standard of Review

On October 3, 2017

By: Nigel Bankes

PDF Version: The Intersection of Discretionary Powers, Fiduciary Duties, the Public Interest and the Standard of Review

Case Commented On: Coldwater Indian Band v Canada (Aboriginal Affairs and Northern Development), 2017 FCA 199 (CanLII)

In this decision, the Federal Court of Appeal, by a majority (per Justice Eleanor Dawson, Justice Donald Rennie concurring; Justice Wyman Webb, dissenting), concluded that the Minister of Indian Affairs and Northern Development breached the fiduciary duty he owed to the Coldwater Indian Band when he approved the assignment of a pipeline right of way easement of 1955 from one affiliate of Kinder Morgan Canada Inc to another affiliate without taking steps to improve the terms of the bargain or at least to ensure that the Crown had been vigilant in its continuing fiduciary obligation to preserve and protect the Band’s interest in the reserve land from an exploitive or improvident bargain. Since the matter came before the Court as an application for judicial review, the Court set aside the Minister’s decision and returned the matter to the Minister for redetermination in accordance with the Court’s reasons. An earlier application by the Band to prevent the Minister from granting approval to the assignment had been dismissed by the Federal Court on the basis that that the application was premature; see the decision in Coldwater Indian Band v Canada (Indian Affairs and Northern Development), 2014 FCA 277 (CanLII). For my earlier post on those proceedings see here.

JH v Alberta Health Services: The Constitutional Implications of Indefinite Psychiatric Detention

By Kaye Booth

On October 2, 2017

In Constitutional, Health Law

By: Kaye Booth and Heather Forester

PDF Version: JH v Alberta Health Services: The Constitutional Implications of Indefinite Psychiatric Detention

Case Commented On: JH v Alberta Health Services, 2017 ABQB 477 (CanLII)

In 2015, JH appealed a decision by a Review Panel, appointed to determine the need for his continued detention under the Mental Health Act, RSA 2000, c M-13 (Alberta MHA), that he should be held indefinitely in the care of the Foothills Hospital (JH v Alberta Health Services, 2015 ABQB 316 (CanLII)). JH had come to the Foothills with a fever and an infected knee injury the year prior, and was then kept there against his will, based on the Review Panel’s determination. The Review Panel’s conclusion that JH should continue to be detained was based on its view that JH lacked insight into his medical needs and exhibited poor judgment, both of which might put him at risk of harm. The outcome of the case and whether JH would continue to be held in detention was contingent on whether JH fit the criteria for detention set out in section 8(1) of the Alberta MHA, namely that he: (a) suffered from a mental disorder; (b) was likely to cause harm to himself or others, or to suffer substantial physical or mental deterioration if not kept in detention; and (c) was unable to continue at the facility other than as a formal patient. JH’s consulting psychiatrist testified that it was his opinion that JH fit these criteria, as he suffered from a neurocognitive disorder which manifested itself as poor judgment and memory, and that without mental health support in the form of psychiatric detention, JH would deteriorate both mentally and physically. However, an assessment completed by another doctor concluded that JH only had mild memory impairment, and that he understood his health problems enough to maintain health treatment on his own. Justice Eidsvik of the Alberta Court of Queen’s Bench considered JH’s steady employment history prior to the car accident that had left him with cognitive issues, his ability to obtain help both financially and medically on his own, and his commitment to continue on his medication. Based on this evidence, the Court concluded that Alberta Health Services (AHS) failed to prove that JH should continue to be detained, and that any risks to him were not severe enough to justify constraints on his liberty and self-determination.

GRTAs, Patch Agreements, Indefeasible Title and Collapse Orders

By Nigel Bankes

On September 29, 2017

In Oil & Gas, Property

By: Nigel Bankes

PDF Version: GRTAs, Patch Agreements, Indefeasible Title and Collapse Orders

Case Commented On: Chesterworld Holdings Ltd v Computershare Trust Company of Canada, 2017 ABQB 43 (CanLII)

This decision involves the interpretation of a will from 1949 as well as the validity of a gross royalty trust agreement (GRTA) and a subsequent patch agreement. Justice Park concluded that the patch agreement was incapable of saving the GRTA because it was executed by the incorrect parties (or by the correct parties but not in their correct capacity). The case may call into question the efficacy of other patch agreements that were intended to revive or extend GRTAs affected by the decision in Guaranty Trust Co. of Canada v Hetherington, 1989 ABCA 113 (CanLII).

Hibernia Payout Account Dispute

By Nigel Bankes

On September 27, 2017

In Arbitration, Oil & Gas

By: Nigel Bankes

PDF Version: Hibernia Payout Account Dispute

Case Commented On: Newfoundland and Labrador v ExxonMobil Canada Properties, 2017 NLDT(G) 147, 2017 CanLII 56724 (NL SCTD)

This case involves an unsuccessful application by the Government of Newfoundland and Labrador to set aside an arbitral award dealing with the calculation of royalties with respect to the Hibernia project.

R v Keror: Police Duties, Accused Duties, and the Right to Counsel of Choice

By Alexandra Heine

On September 25, 2017

In Constitutional, Criminal

By: Alexandra Heine

PDF Version: R v Keror: Police Duties, Accused Duties, and the Right to Counsel of Choice

Case Commented On: R v Keror, 2017 ABCA 273 (CanLII)

Introduction

Mr. Keror was accused of shooting and killing Philip Anny on September 30, 2012. A witness identified the accused as the shooter. He was arrested at 8:15 pm on October 1, 2012 by a member of the Calgary Police tactical team. At trial, the accused made an application to enter into a voir dire. He submitted that his s 10(b) rights under the Canadian Charter of Rights and Freedoms were violated. Justice E. A. Hughes of the Alberta Court of Queen’s Bench found no s 10(b) breach (see R v Keror, 2015 ABQB 382 (CanLII)). A jury convicted Mr. Keror of second-degree murder. The accused then appealed this decision on five grounds. This commentary will focus strictly on grounds one through three. The first ground is as follows: Did the trial judge err by failing to consider whether there was a contextual or temporal link between any delay in facilitating access to counsel and the appellant’s subsequent statement the next day? The second and third grounds of appeal are as follows: did the police violate section 10(b) when they interviewed the appellant before he spoke with his counsel of choice?

At the Alberta Court of Appeal, Justices Marina Paperny, Barbara Lea Veldhuis and Jo’Anne Strekaf held that the Calgary Police did not violate the appellant’s right to consult with counsel of choice. Effectively, the peace officers complied with their duties under section 10(b) of the Charter. The first three grounds of appeal were dismissed on that basis. This decision gives us a glimpse into the struggle that our court system faces when assessing whether or not a person’s section 10(b) rights have been violated.