ABLawg

Case Commented On: Brown v Canada (Attorney General), 2017 ONSC 251 (CanLII)

PDF Version: The Sixties Scoop & the Duty to Consult: A New Frontier in Aboriginal Litigation?

*Note on terminology: “Indian” is used to describe a person defined as such under the Indian Act, and is not intended to carry any derogatory connotations.

Introduction

From 1965- 1984 governments across Canada removed tens of thousands of Indian children from their families on reserve and placed them with non-Indian adoptive families or in foster homes and group homes. As a result, many of these children lost touch with both their families and their First Nations identities, with devastating consequences including emotional scarring, substance abuse, and heightened rates of suicide and incarceration. This dark period in Canada’s history is commonly known as the “Sixties Scoop”.

Brown v Attorney General (Canada) 2017 ONSC 251 (CanLII) (Brown) is a decision regarding a class action lawsuit by nearly 16,000 individuals in Ontario who were negatively affected by the Ontario Government’s child welfare policies during the Sixties Scoop. Specifically, the claimants focus on the period between 1965 when Ontario extended its child welfare services to reserves and 1984, when Ontario amended its child welfare legislation to recognize that “aboriginality” should be a factor considered in child protection and placement (at para 14).

The Court held that Canada breached its common-law duty of care by failing to take reasonable steps to prevent removed children from losing their indigenous heritage (at para 85), but declined to find that the Crown breached any fiduciary duty.

This post will aim to provide the following:

Background information on the period commonly referred to as the “Sixties Scoop”;
A brief look at the procedural history of Brown, as well as an analysis of the decision; and
Thoughts on how this ruling, and its implications on tort law and Aboriginal rights, may fit into the federal government’s promises to Canada’s indigenous peoples, and how it may affect Sixties Scoop claimants across the country, including Alberta.

Independent Operations, Holdings and Common Ownership: A Letter Decision of the Alberta Energy Regulator

By Nigel Bankes

On February 21, 2017

In Energy, Oil & Gas

By: Nigel Bankes and Heather Lilles

PDF Version: Independent Operations, Holdings and Common Ownership: A Letter Decision of the Alberta Energy Regulator

Decision Commented On: AER, Request for Regulatory Appeal by Westbrick Energy Ltd., Regulatory Appeal No. 1852713, 25 May 2016

Last week, ABlawg announced a new three-step project which will present the Alberta Energy Regulator’s (AER’s) published procedural and participatory letter decisions in a more usable and accessible form. As noted in that post, step one of the project, which collates the summaries of these decisions in a searchable PDF document, is now complete.

The objective of this post is to provide an example of the potentially valuable nuggets of information discoverable in this large group of decisions. The post concerns a letter decision which, while ostensibly dealing with procedural matters, also contains discussions of holdings, common ownership and independent operations within the meaning of the 1990 CAPL Operating Procedure. As such, the decision confirms the importance of publishing these decisions insofar as joint operating agreements (JOAs) are common in the industry as is the practice “going penalty”. But the decision also illustrates some confusion between the threshold question of standing and the decision on the merits. In this case it appears to us that the AER panel actually decided the merits of Westbrick’s application and then somewhat perversely denied it standing.

Mennillo v Intramodal inc.: The Supreme Court of Canada Revisits the Oppression Remedy

By Jassmine Girgis

On February 17, 2017

In Corporate / Commercial, Supreme Court of Canada

By: Jassmine Girgis

PDF Version: Mennillo v Intramodal inc.: The Supreme Court of Canada Revisits the Oppression Remedy

Case Commented On: Mennillo v Intramodal inc., 2016 SCC 51 (CanLII)

Mennillo v Intramodal inc. is the first oppression remedy case since BCE Inc. v 1976 Debentureholders 2008 SCC 69 (CanLII) (BCE) to reach the Supreme Court of Canada. The SCC had to determine whether the failure of a company to observe formalities required under the Canada Business Corporations Act, RSC 1985, c C-44 (CBCA) constituted oppression as against a former shareholder. The appeal of the former shareholder was dismissed on a finding that neither “sloppy paperwork on its own” nor “the corporation and its controlling shareholder treating [the former shareholder] exactly as he wanted to be treated” (at para 5) constituted oppression. There was a majority opinion (written by Cromwell J), a concurring opinion (McLachlin CJ and Moldaver J), and a strong dissent by Justice Côté.

This post deals with the comments made by the Court, including the dissent, on the oppression remedy. The oppression remedy is available when the court is satisfied that the corporation or its directors acted in a way that is oppressive or unfairly prejudicial to, or that unfairly disregards the interests of, any security holder, creditor, director, or officer (CBCA, s 241(2)).

Residential Tenancy Agreements, Options to Purchase, In Terrorem Clauses, and Relief from Forfeiture

By Jonnette Watson Hamilton

On February 16, 2017

In Contracts, Property, Provincial Court

By: Jonnette Watson Hamilton

PDF Version: Residential Tenancy Agreements, Options to Purchase, In Terrorem Clauses, and Relief from Forfeiture

Case Commented On: Dreamworks Ventures Ltd v Dye, 2017 ABPC 20 (CanLII)

This residential tenancy case, arising in the context of a rent-to-own arrangement, is light on the law. The dispute was primarily about the tenants’ responsibility for cleaning and painting after they left the house and this decision assesses the damages. Nevertheless, the case raised one interesting legal point. Judge Allan H. Lefever mentioned an in terrorem clause in connection with the Option to Purchase that had been granted to the tenants in return for a non-refundable $5,000 deposit that was part of the rent-to-own arrangements. While he mentions the clause, he did not discuss it because it was not relevant to the dispute. The in terrorem clause tried to scare the tenants to stop them from filing a caveat to protect their interest under the Option to Purchase. Can this in terrorem clause possibly be valid? This, it seems, is a difficult question to answer.

The Relationship Between Declarations Under the Optional Clause of the Statute of the International Court of Justice and Part XV of the Law of the Sea Convention

By Nigel Bankes

On February 13, 2017

In International Law, Law of the Sea

By: Nigel Bankes

PDF Version: The Relationship Between Declarations Under the Optional Clause of the Statute of the International Court of Justice and Part XV of the Law of the Sea Convention

Case Commented On: Maritime Delimitation in the Indian Ocean (Somalia v Kenya), Preliminary Objections, Judgment, 2 February 2017

Somalia instituted proceedings against Kenya in the International Court of Justice (ICJ or the Court) in August 2014 concerning a dispute in relation to “the establishment of the single maritime boundary between Somalia and Kenya in the Indian Ocean delimiting the territorial sea, exclusive economic zone . . . and continental shelf, including the continental shelf beyond 200 nautical miles” (Somalia’s Application). In so doing Somalia relied upon Optional Declarations made by both states pursuant to Article 36(2) of the Statute of the Court. Kenya raised a preliminary objection as to the jurisdiction of the Court and also argued that the Court should treat Somalia’s application as inadmissible. On 2 February 2017, the Court released its judgment in respect of these preliminary objections.

This post explains the basis of Kenya’s arguments in respect of the jurisdiction of the Court and the admissibility of Somalia’s claim. It reviews the Court’s Judgment and dissenting opinions and declarations and offers some concluding remarks focussing on the relationship between declarations under the optional clause of the Statute of the International Court of Justice and Part XV of the Law of the Sea Convention (LOSC).