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Making Sense of Nonsense? Or Perhaps Not

On November 25, 2016

By: Nigel Bankes and Heather Lilles

PDF Version: Making Sense of Nonsense? Or Perhaps Not

Case Commented On: Eon Energy Ltd v Ferrybank Resources Ltd, 2016 ABQB 585 (CanLII)

What happens when two oil and gas companies enter into a joint operating agreement (JOA) to which is attached the 1981 CAPL Operating Procedure and the PASWC Accounting Procedure and then proceed to operate the properties according to a completely different set of arrangements? As one might expect, things are fine for so long as each perceives some benefit from these de facto arrangements. But when relations deteriorate it’s a mess; and then both counsel, and ultimately the Court, have to try and make sense of what has happened. And in this case that evidently proved difficult for all concerned and likely, very, very expensive. The hearing of this case took 16 days and then Justice Kim Nixon took two years to render this judgement. There were also interlocutory injunctive proceedings (unreported) and there will be a series of accounting issues to be addressed as a result of this judgement. The result is extremely unedifying. The judgement is long (53 pages), meandering, fact laden, and convoluted. Perhaps the best that can be said for it is that it might serve as a salutary warning to be used by lawyers acting for junior oil and gas companies: “this is what happens when you make things up as you go along and act as if the written agreement is a mere inconvenience.” The case is also another illustration of the hard reality that co-ownership is a messy business and fundamentally an institution for those who can get along together. Sometimes the costs of maintaining and fighting about the relationship are not worth the benefits to be obtained.

In one of the more enigmatic paragraphs of her decision Justice Nixon suggests that the parties are asking her to re-write their agreement (at para 260 and again at para 397). But the question all along is which agreement? The written agreement? Or the agreement evidenced by the conduct of the parties?

In what follows we will do our best to distill the essential facts and legal reasoning from Justice Nixon’s judgement.

Publication Bans and Interim Mandatory Injunctions in the Context of Freedom of Expression and the Privacy of Youthful Victims

By Hasna Shireen

On November 24, 2016

In Privacy, Youth and the Law

By: Hasna Shireen

PDF Version: Publication Bans and Interim Mandatory Injunctions in the Context of Freedom of Expression and the Privacy of Youthful Victims

Case Commented On: R v Canadian Broadcasting Corporation, 2016 ABCA 326 (CanLII)

The Court of Queen’s Bench of Alberta in R v Canadian Broadcasting Corporation, 2016 ABQB 204 (CanLII) (CBC QB) denied an interim mandatory injunction and allowed the Canadian Broadcasting Corporation (CBC) to retain past posts with identifying information of a youthful victim on the CBC website. The Crown appealed the denial of the interim mandatory injunction. The Majority at the Court of Appeal held that the Chambers Judge applied the wrong legal test, that the injunction is a civil matter attached to a criminal charge, and that the Chambers Judge had considered a number of irrelevant factors. Thus, the Court of Appeal overturned the prior decision and granted an interim mandatory injunction. In my previous blog post, I criticized the Court of Queen’s Bench decision because that decision gave priority to freedom of expression of the media over a young victim’s privacy rights. One of the major purposes of a publication ban is to protect a child victim’s privacy and thereby ensure future victims will come forward with the assurance of anonymity. In R v Canadian Broadcasting Corporation, 2016 ABCA 326 (CanLII) the Court granted the interim mandatory injunction and maintained the integrity of the administration of justice by protecting the identity of the youthful victim in public interest.

CPAWS Presents to the Expert Panel for Environmental Assessment

By Shaun Fluker

On November 23, 2016

In Environmental

By: Shaun Fluker, Kristina Roberts, and Drew Yewchuk

PDF Version: CPAWS Presents to the Expert Panel for Environmental Assessment

Case Commented On: Expert Panel Review of Environmental Assessment Processes

The Expert Panel charged with reviewing Canada’s environmental assessment regime continues to hear presentations on recommended amendments to the federal environmental assessment process (Professor Martin Olszynski published his presentation to the Panel in an earlier post). The University of Calgary’s Public Interest Law Clinic was retained to advise and assist the Canadian Parks and Wilderness Society (CPAWS) Southern Alberta Chapter and National Office in making recommendations to the Panel. On November 23, 2016, Professor Shaun Fluker together with Anne-Marie Syslak, the Executive Director of CPAWS – Southern Alberta, co-presented to the Panel on behalf of CPAWS. This submission focused exclusively on the current state of the federal environmental assessment process in Canada’s national parks under the Canadian Environmental Assessment Act 2012, SC 2012 c 19 s 52, a process which is perhaps best summarized as non-transparent, unaccountable, and completely discretionary. What follows is an excerpt from the CPAWS presentation to the Panel.

The Application of the Charter to a Protest on the Siksika Nation

By Linda McKay-Panos

On November 22, 2016

In Aboriginal, Constitutional

By: Linda McKay-Panos

PDF Version: The Application of the Charter to a Protest on the Siksika Nation

Case Commented On: Siksika Nation v Crowchief, 2016 ABQB 596 (CanLII)

Recently there have been several cases involving the issue of whether the Charter of Rights and Freedoms (Charter) applies in a context where there is some government or public nexus but the action may be characterized as one involving private parties. See for example, my previous post on the application of the Charter to Universities.

This case presents yet another situation where the court is asked to address whether the Charter applies. Most of the decision involves whether the Court should grant an interlocutory injunction to the Siksika Nation. The Siksika Nation, represented by its Chief and Council (Applicant), filed a Statement of Claim seeking an injunction and damages against Ben Crowchief and “Unknown Defendants” (Respondents). A number of band members, including Crowchief, blockaded the reconstruction of Siksika Nation homes being built to address damages from flooding of the Bow River in 2013. The blockade was intended to protest the lack of accountability and transparency by the council and chief (at para 18).

Avoiding the “Tyranny of Small Decisions”: A Canadian Environmental Assessment Regime for the 21st Century

By Martin Olszynski

On November 21, 2016

In Climate Change, Environmental

By: Martin Olszynski

PDF Version: Avoiding the “Tyranny of Small Decisions”: A Canadian Environmental Assessment Regime for the 21st Century

Matter Commented On: Expert Panel Review of Environmental Assessment Processes

The Expert Panel charged with reviewing Canada’s environmental assessment regime lands in Calgary this week. Professor Emeritus Arlene Kwasniak and I are presenting to the Panel later today, while Professor Shaun Fluker and students from University of Calgary’s Public Interest Law Clinic will be presenting on Wednesday. In this post, I step back a bit from the nuts and bolts of environmental assessment and consider the nature of modern environmental law – and environmental assessment law in particular – as primarily a decision-making process and whether this is sufficient going forward. My full submission – indeed all submissions to the Panel – can be found on its website.