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Clyde River and Chippewas of the Thames: Some Clarifications Provided But Some Challenges Remain

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On August 4, 2017

In Aboriginal, Energy

By: Nigel Bankes

PDF Version: Clyde River and Chippewas of the Thames: Some Clarifications Provided But Some Challenges Remain

Cases Commented On: Clyde River (Hamlet) v Petroleum Geo-Services Inc., 2017 SCC 40 (CanLII) and Chippewas of the Thames First Nation v Enbridge Pipelines Inc., 2017 SCC 41 (CanLII)

The Supreme Court of Canada has rendered judgment in two cases involving the National Energy Board (NEB) and the duty to consult Indigenous communities. One decision, Clyde River, involves an authorization granted to Petroleum Geo-Services Inc (PGS) to conduct marine seismic testing in Baffin Bay and Davis Strait under the terms of the Canada Oil and Gas Operations Act, RSC 1985, c O-7 (COGOA). The Supreme Court of Canada concluded that the Crown had failed to discharge its duty to consult and accommodate and that as a result the NEB authorization should be quashed. The second decision, Chippewas of the Thames First Nation (CTFN), involves an order by the NEB under s 58 of the National Energy Board Act, RSC 1985, c N-7  (NEBA) exempting Enbridge Pipelines Inc (Enbridge) from the need to obtain a certificate of public convenience and necessity under s 52 of NEBA and at the same time amending the operation of part of Line 9 (Line 9B), to authorize reversing the flow of the line, increasing its capacity and allowing for the transportation of heavy crude. The Supreme Court of Canada concluded that the Crown was entitled to rely on the procedures adopted by the NEB in engaging with CTFN to discharge the Crown’s duty to consult and accommodate and that those procedures in this case were adequate.

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The Potential Impact of a Quebec Superior Court Challenge on Access to Justice in Alberta

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On August 3, 2017

In Access to Justice, Constitutional

By: Jonnette Watson Hamilton

PDF Version: The Potential Impact of a Quebec Superior Court Challenge on Access to Justice in Alberta

Blog Post Commented On: “Clash of Courts”, Double Aspect Blog by Leonid Sirota, 23 July 2017

In his brief post entitled “Clash of Courts: Senior Superior Court judges are suing Québec over its provincial court’s jurisdiction; other provinces will be affected if they succeed,” Leonid Sirota focused his readers’ attention on a law suit brought by the Chief Justice, Senior Associate Chief Justice, and Associate Chief Justice of Quebec’s Superior Court (on behalf of all of the judges of that court), against the provincial government, noting that it has received little attention outside of Quebec, and certainly much less than it should. The judges of Quebec’s Superior Court are seeking a declaration that much of the jurisdiction of that province’s small claims court, the Court of Quebec, is unconstitutional because it violates section 96 of the Constitution Act, 1867 by granting the Court of Quebec exclusive jurisdiction to hear cases where the amount claimed is more than $10,000 and granting it powers of judicial review over provincial administrative tribunals. I agree that the case — a startling claim by a group of litigants that need to be taken seriously (even if their method for getting the issue before the courts, i.e., before themselves in the first instance, is unorthodox) — deserves to be noticed and that other provinces, including Alberta, will be affected if their claim is successful.

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Douez v Facebook, Inc.: Public Policy and Broad Strokes

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On August 2, 2017

In Contracts, Internet Law, Privacy

By: Jassmine Girgis

PDF Version: Douez v Facebook, Inc.: Public Policy and Broad Strokes

Case Commented On: Douez v Facebook, Inc., 2017 SCC 33 (CanLII)

On its face, Douez v Facebook, Inc. decides the enforceability of a forum selection clause. But the Douez case also addresses public policy issues arising from consumer contracts of adhesion and the Internet era. A majority of the Supreme Court of Canada used public policy principles to find the clause unenforceable.

In British Columbia, a class action was brought against Facebook, Inc. on behalf of 8.1 million people. They alleged Facebook used the names and pictures of certain members for advertising without their consent, contrary to the Privacy Act, RSBC 1996, c 373. Facebook sought to stay the proceedings on the basis of a forum selection clause contained in its terms of use, terms to which all Facebook members must agree before they access the site. The clause requires all disputes be resolved in California, according to California law.

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Filling the Gaps in the Federal Government Discussion Paper to Regain Public Trust in Federal Assessment

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On August 1, 2017

In Environmental

By: Arlene Kwasniak

PDF Version: Filling the Gaps in the Federal Government Discussion Paper to Regain Public Trust in Federal Assessment

Document Commented On: Environmental and Regulatory Reviews, Discussion Paper, Government of Canada, June 29, 2017

As explained in Professor Mascher’s July 13th ABlawg post the Government of Canada’s Discussion Paper outlines a series of “system-wide changes” the Government “is considering to strengthen Canada’s environmental assessment and regulatory processes”. The Discussion Paper remarks that the changes reflect the Government’s commitment to “deliver environmental assessment and regulatory processes that regain public trust, protect the environment, introduce modern safeguards, advance reconciliation with Indigenous peoples, ensure good projects go ahead, and resources get to market” (at 3). The Government seeks comments on the Discussion Paper up to August 28, 2017. Comments may be provided on canada.ca/environmentalreviews. The Government also continues to consult on the law reform initiatives. It promises to table its legislative changes in fall 2017.

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Buterman’s Appeal on the Issue of Settlements Dismissed: Was that Reasonable?

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On July 31, 2017

In Administrative Law, Human Rights

By: Linda McKay-Panos

PDF Version: Buterman’s Appeal on the Issue of Settlements Dismissed: Was that Reasonable?

Cases Commented On: Buterman v St. Albert Roman Catholic Separate School District No. 734, 2017 ABCA 196 (CanLII) (Buterman, ABCA); Buterman v Board of Trustees of the Greater St. Albert Roman Catholic Separate School District No. 734, 2016 ABQB 159 (CanLII) (Buterman, ABQB 2016)

Jan Buterman wants to have a public airing on the merits of his human rights complaint, but he seems to have been stymied again. The current matter involves two appeals of decisions of the Alberta Human Rights Tribunal (AHRT) on preliminary matters. Hearings on procedural aspects of Buterman’s case have been going on for eight years. The last two cases deal with procedural aspects of the case, and also focus on the standard of review of the procedural decisions made by the AHRT.

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