ABLawg

By: Jassmine Girgis

PDF Version: BIA Preference Payments: Evidence Rebutting the Presumption must be Objectively Reasonable

Case Commented On: Gustafson (Re), 2018 ABQB 77 (CanLII)

Introduction

Legislation that governs fraudulent preferences applies if a debtor elects to pay only one or a few of his creditors and not the others, with the consequence of preferring certain creditors. These transfers are improper if they are made on the eve of the debtor’s bankruptcy. Preferences are governed provincially, by the Fraudulent Preferences Act, RSA 2000, c F-24, and federally, under the Bankruptcy and Insolvency Act, RSC 1985, c B-3 (BIA). This case deals with the preference provisions in the BIA.

SCC Overturns ABCA Ruling on Mandatory Interlocutory Injunction re: Information on Media Outlet’s Website

By Linda McKay-Panos

On March 7, 2018

In Constitutional, Criminal

By: Linda McKay-Panos

PDF Version: SCC Overturns ABCA Ruling on Mandatory Interlocutory Injunction re: Information on Media Outlet’s Website

Case Commented On: R v Canadian Broadcasting Corp., 2018 SCC 5 (CanLII) (“CBC SCC”)

The Supreme Court of Canada (SCC) recently overturned the Alberta Court of Appeal’s ruling on this case and reinstated the Alberta Court of Queen’s Bench decision. This case has been the subject of previous blog postings by my colleague, Hasna Shireen; see here, here and here.

Third-Party Constitutional Remedies to Unjust Law during Stays in Declarations of Invalidity

By Nicholas Konstantinov

On March 6, 2018

In Constitutional, Evidence

By: Nicholas Konstantinov

PDF Version: Third-Party Constitutional Remedies to Unjust Law during Stays in Declarations of Invalidity

Case Commented On: Laverick v Alberta (Transportation Safety Board), 2018 ABQB 57 (CanLII)

In Laverick v Alberta (Transportation Safety Board), 2018 ABQB 57 (CanLII), Justice W. P. Sullivan acknowledged that a third-party applicant may argue for a stay of proceedings pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms against charges under section 88.1 of the Traffic Safety Act, RSA 2000, c T-6 [TSA], the administrative license suspension (“ALS”) regime. Despite the suspended declaration of section 88.1’s invalidity under section 52 of the Constitution Act, 1867, 30 & 31 Vict, c 3, an applicant may utilise the Court’s decision in Sahaluk v Alberta (Transportation Safety Board), 2017 ABCA 153 (CanLII) [Sahaluk I] (see here for a case commentary) as precedent for a constitutional exemption provided that he or she: 1) pled not guilty, 2) exhausted all statutory remedies, 3) demonstrated personal Charter right violations, and 4) passed the balance of convenience test.

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

By Rudiger Tscherning

On March 5, 2018

In Arbitration, Construction

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.