ABLawg

By: Jennifer Koshan

PDF Version: This Fall’s Supreme Court Hearings – A Missing Voice for Human Rights

Case Commented On: Brent Bish on behalf of Ian Stewart v. Elk Valley Coal Corporation, Cardinal River Operations, et al, SCC Case No 36636, leave to appeal granted from Stewart v Elk Valley Coal Corporation, 2015 ABCA 225 (CanLII)

On Monday, the Prime Minister’s Office announced that Justice Malcolm Rowe of the Court of Appeal of Newfoundland and Labrador has been nominated to the Supreme Court of Canada. A question and answer session with Justice Rowe will take place on Tuesday October 25, 2016 at the University of Ottawa, and the PMO has invited two law students from every Canadian law school to attend. We will be blogging about the Q & A event on ABlawg, so stay tuned for that.

Provided Justice’s Rowe’s nomination is accepted, there will soon be a full slate of justices on the Supreme Court to hear this fall’s appeals. The Globe and Mail ran an interesting article a couple of weeks ago noting some of this session’s more interesting hearings. One case that was not mentioned is one that we have been watching on ABlawg – Stewart v Elk Valley Coal (see here, here and here – the case also goes by the name of Bish, the union member who filed a complaint on behalf of Stewart). Intervener facta were filed in Stewart on October 7, and there is an important set of voices missing from those arguments. On August 12, 2016, Justice Russell Brown denied intervener status to the Canadian Human Rights Commission and the Ontario Human Rights Commission, the Manitoba Human Rights Commission, the Saskatchewan Human Rights Commission and the Yukon Human Rights Commission, who had applied to intervene jointly.

Dogs Getting Their Day: Alberta Court of Appeal Rejects End-runs Around Animal Cruelty Laws

By Erin Sheley

On October 14, 2016

In Criminal, Evidence

By: Erin Sheley

PDF Version: Dogs Getting Their Day: Alberta Court of Appeal Rejects End-runs Around Animal Cruelty Laws

Case Commented On: Regina v Sanaee, 2016 ABCA 289 (CanLII)

The year 2016 has been bleak for animals in Canada. In September, Montreal passed a new city bylaw banning the adoption of new pitbulls and pitbull mixes, and imposing stringent licensing and muzzling requirements on currently-owned dogs under threat of euthanasia. (See City of Montreal Regulation 16-060). And Parliament just voted down proposed amendments in Bill C-246, the Modernizing Animal Protections Act, which would have made modest changes to federal legislation such as banning the importation of shark fins removed from living sharks and products made from dog or cat fur. But on September 28, 2016 the Alberta Court of Appeal provided some good news for animal welfare supporters.

In R v Sanaee, 2016 ABCA 289 (CanLII), the Court of Appeal considered the appeal of a dog trainer convicted of two counts of causing unnecessary pain, suffering or injury to an animal, contrary to section 445.1(1)(a) of the Criminal Code, RSC 1985, c C-46.

Pre-Dynex Royalty Agreements Continue to Spawn Interest in Land Litigation

By Nigel Bankes

On October 13, 2016

In Contracts, Oil & Gas, Property

By: Nigel Bankes

PDF Version: Pre-Dynex Royalty Agreements Continue to Spawn Interest in Land Litigation

Decision Commented On: Re Walter Energy Canada Holdings, Inc., 2016 BCSC 1746 (CanLII)

In 2002 the Supreme Court of Canada handed down its decision in Bank of Montreal v Dynex Petroleum Ltd, 2002 SCC 7 (CanLII) in which it confirmed that a gross overriding royalty (GORR) carved out of a working interest in land was capable of subsisting as an interest in land as a matter of law. Whether any particular GORR created an interest in land, or simply a contractual claim, depends upon the intentions of the parties as revealed in the language adopted by the parties to describe the GORR. There is presumably no objection to expressing this intention with words such as “the parties intend that the right and interest created by clause x of this agreement is to be an interest in land” – so long as this intention is not contradicted by other language in the agreement when construed as a whole in accordance with the usual rules on the interpretation of contracts. See, Nigel Bankes, Private Royalty Agreements: A Canadian Viewpoint, Rocky Mountain Mineral Law Institute (2003). While Dynex definitively settled the issue of principle (can a GORR as a matter of law ever be an interest in land) it still requires an analysis of the intentions of the parties in any particular case, although this should be easier to demonstrate for post-2002 agreements than for pre-2002 agreements. That said, the matter had been widely litigated during the previous 40 years, and counsel should at least have been aware, well before then, of the need to use language appropriate to creating an interest in land rather than a contractual interest – if that was indeed the intention of the parties.

The Effect of a ‘Whole Agreement Clause’ on Pre-Contractual Misrepresentations

By Evaristus Oshionebo

On October 12, 2016

In Contracts

By: Evaristus Oshionebo

PDF Version: The Effect of a ‘Whole Agreement Clause’ on Pre-Contractual Misrepresentations

Case Commented On: Houle v Knelsen Sand and Gravel Ltd., 2016 ABCA 247 (CanLII)

This case raises a significant legal question regarding the effect of a ‘whole agreement clause’ (also referred to as ‘entire agreement clause’) on pre-contractual misrepresentations. Put differently, does a whole agreement clause in a written contract preclude liability for misrepresentations occurring in the course of negotiating the contract?

The ‘Colourless Green Ideas Sleep Furiously’ Problem with Organized Pseudo-Legal Commercial Arguments

By Jonnette Watson Hamilton

On October 11, 2016

In Access to Justice

By: Jonnette Watson Hamilton

PDF Version: The ‘Colourless Green Ideas Sleep Furiously’ Problem with Organized Pseudo-Legal Commercial Arguments

Case Commented On: Dove v Canada, 2016 FCA 231 (CanLII)

The Federal Court of Appeal decision in Dove v The Queen is an unusual decision dealing with Organized Pseudo-Legal Commercial Arguments (OPCA). It’s short, for one thing— only six paragraphs in total compared to the 736 paragraph decision in Meads v Meads, 2012 ABQB 571 (CanLII), the judgment in which Associate Chief Justice John D. Rooke coined the OPCA label. He defined OPCA litigants as “persons [who] employ a collection of techniques and arguments promoted and sold by ‘gurus’ … to disrupt court operations and to attempt to frustrate the legal rights of governments, corporations, and individuals.” (at para 1). Second, it uses Noam Chomsky’s most famous sentence to help explain what is wrong with the appellants’ claims, rather than the usual words of legal censure. And third, it asserts that OPCA litigation is not a problem for the Federal Court of Appeal, in contrast to the more common judicial hand-wringing.