ABLawg

Construction Disputes in Major Infrastructure Projects: Guidance from the United Kingdom as Canada moves to Statutory Dispute Adjudication

On March 5, 2018

By: Rudiger Tscherning

PDF Version: Construction Disputes in Major Infrastructure Projects: Guidance from the United Kingdom as Canada moves to Statutory Dispute Adjudication

Statutes Commented On: Construction Lien Amendment Act, 2017 (Ontario); Housing Grants, Construction and Regeneration Act 1996 (England)

Introduction

In the delivery of infrastructure projects, construction disputes give rise to delays and potential cost overruns. This is especially true for major projects in the energy and natural resources sector where the number of parties, cross-jurisdictional components, challenging locations and the scale of the construction works are all contributing factors to a fertile dispute environment. As a result, a specialist dispute resolution mechanism is needed that facilitates the expedited resolution of disputes in parallel to the continuation of the construction works. Statutory dispute adjudication provides parties with that specialist mechanism. It allows for a fast, project-accompanying alternative dispute resolution mechanism that results in an interim binding decision by an independent adjudicator. The intention of dispute adjudication is to de-escalate a dispute. The parties enter into mandatory negotiation of their dispute with the benefit of the adjudicator’s decision. Following the lead of the United Kingdom and elsewhere, Canada has recently taken steps towards introducing statutory dispute adjudication for the construction industry in this country. This post sheds light on those developments, outlines the key features of statutory dispute adjudication, and reflects upon what Canada can anticipate based upon the experience of the United Kingdom.

Self-Incrimination Immunity and Professional Misconduct

By Nicholas Konstantinov

On March 2, 2018

In Administrative Law, Constitutional, Evidence

By: Nicholas Konstantinov

PDF Version: Self-Incrimination Immunity and Professional Misconduct

Case Commented On: Toy v Edmonton (Police Service), 2018 ABCA 37 (CanLII)

In Toy v Edmonton (Police Service), the Alberta Court of Appeal dismissed former Constable Elvin Toy’s appeal of a 2015 ruling that led to his discharge from the force. That year, the Law Enforcement Review Board upheld a Presiding Officer’s decision convicting Toy of deceit and misconduct in the course of fabricating evidence at an earlier proceeding. Toy argued that the Board failed to apply the appropriate standard of review to correct the Presiding Officer’s error in law, which resulted in admitting involuntary testimony that offended his privilege against self-incrimination.

A Missed Opportunity to Strengthen Compliance and Enforcement under the Federal Fisheries, Environmental Assessment and Canadian Energy Regulator Acts

By Alastair Lucas, Q.C.

On March 1, 2018

In Environmental, Fisheries Regulation

By: Alastair Lucas

PDF Version: A Missed Opportunity to Strengthen Compliance and Enforcement under the Federal Fisheries, Environmental Assessment and Canadian Energy Regulator Acts

Bills Commented On: Bill C-68, An Act to Amend the Fisheries Act, and Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and make consequential amendments to other Acts

Many expected changes and even new approaches to compliance and enforcement under Bills C-68 and C-69. Unfortunately, this is not the case.

Your Concerns Have Been Noted: Citizen Participation in Pipeline Regulatory Processes Under the Proposed Impact Assessment Act

By Kristen van de Biezenbos

On February 28, 2018

In Environmental

By: Kristen van de Biezenbos

PDF Version: Your Concerns Have Been Noted: Citizen Participation in Pipeline Regulatory Processes Under the Proposed Impact Assessment Act

Bill Commented On: Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts

This post continues the Natural Resources, Energy, and Environmental Law group’s series on the proposed legislative changes in Bill C-69 by examining the provisions pertaining to citizen participation in the pipeline review processes outlined in the Impact Assessment Act (IAA) and comparing them to the existing provisions in the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52, (CEAA, 2012). This post also considers whether the proposed provisions put forth in the IAA effectively address some of the concerns raised about the lack of meaningful citizen participation in pipeline review processes under the existing regime.

Indigenous Engagement and Consideration in the Newly Proposed Impact Assessment Act: The Fog Persists

By David V Wright

On February 27, 2018

In Aboriginal, Environmental

By: David V. Wright

PDF Version: Indigenous Engagement and Consideration in the Newly Proposed Impact Assessment Act: The Fog Persists

Bill Commented On: Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts

On February 8, the Trudeau government tabled Bill C-69. This is a complex Bill that aims to overhaul several of Canada’s foundational environmental laws, with a particular focus on the regime for review and approval (or rejection) of major projects such as mines, dams and pipelines. My colleagues have also generated ABlawg posts on this Bill; you can read them here, here, and here (with more to come).

In this post, I focus on Indigenous engagement dimensions of the proposed Impact Assessment Act. First, I offer some introductory comments on the path to this point, then I move on to a high-level inventory of notable Indigenous engagement features in the proposed Act, noting differences from the current assessment regime in places. I then offer some preliminary reflections and comments with respect to the proposed Act in relation to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the duty to consult. While the latter sub-topics could be major research projects in and of themselves, this post simply puts forward starting points for further examination, and, hopefully, further discussion toward improving the proposed legislation before it is finalized. In a nutshell, the proposed Act builds in more authority and avenues for Indigenous engagement, but fails to seize the opportunity to generate much needed clarity around UNDRIP and the duty to consult in the impact assessment realm. This, unfortunately, may serve to thicken a fog that has persisted in this area for some time.