Chronicles of the Canadian High Court of Environmental Justice: Canadian Parks and Wilderness Society v Maligne Tours

By: Shaun Fluker

PDF Version: Chronicles of the Canadian High Court of Environmental Justice: Canadian Parks and Wilderness Society v Maligne Tours

Case Commented On: Canadian Parks and Wilderness Society v Maligne Tours, 2016 FC 148

In a decision issued February 8, 2016, the Honourable Mr Justice James Russell denied an application by the Canadian Parks and Wilderness Society and the Jasper Environmental Association for judicial review of a decision made by the Superintendent of Jasper National Park to approve in concept a new accommodation facility for the shores of Maligne Lake. The Applicants argued that the Superintendent acted unlawfully by making this decision outside of his authority and in contravention of the park management plan, and moreover that the decision is contrary to the overall first priority of maintaining or restoring ecological integrity in Canada’s national parks. The legality of the Superintendent’s decision in this matter rests on two determinations: (1) the legal status of the 2010 Jasper National Park Management Plan; and (2) whether the decision is in accordance with the legislated first priority of ecological integrity for the park.

This comment reviews the decision by Justice Russell in an imagined space. In a stunning political move, the Trudeau government has amended the Federal Courts Act, RSC 1985, c F-7 to establish the High Court of Environmental Justice. The mandate of this new Court is to hear de novo appeals from decisions by the Federal Court of Canada on environmental law issues. The Supreme Court Act, RSC 1985, c S-26 was also amended to remove any appellate jurisdiction by the Supreme Court of Canada over the High Court of Environmental Justice, with the exception of environmental cases where a constitutional issue is raised by a party. In announcing the creation of this new Court, the Minister of Justice and the Minister of Environment and Climate Change stated that ABlawg has been selected as the Court’s official reporter.

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Can We Keep the Horses in the Barn? Investigation Report on Alberta Environment’s Destruction of Records after the 2015 Provincial Election

By: Linda McKay-Panos

PDF Version: Can We Keep the Horses in the Barn? Investigation Report on Alberta Environment’s Destruction of Records after the 2015 Provincial Election

Report Commented On: Information and Privacy Commissioner, Public Interest Commissioner, Investigation Report on Alleged improper destruction of records by Alberta Environment and Sustainable Resource Development

On January 7, 2016, the Office of the Information and Privacy Commissioner of Alberta (OIPC) and the Public Interest Commissioner (PIC) released their Investigation Report on alleged improper destruction of records by Alberta Environment and Sustainable Resource Development after the 2015 Provincial Election (Investigation Report). When reading the highlights of the Investigation Report’s recommendations, one hopes that the current government might implement and retain some rules and practices that deter future events of this nature.

After the Alberta provincial election in May, 2015, there were a number of media reports about destruction of records during the transition to a new government (Investigation Report, at para 2). The OIPC issued a news release on May 7, 2015 to inform and remind Albertans of the provisions of the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 (FOIP Act) dealing with record destruction, while noting that some of the records were not subject to the same rules (Investigation Report, at para 6). On May 12, 2015, a disclosure of wrongdoing was made to the PIC under the Public Interest Disclosure (Whistleblower Protection) Act, SA 2012, C P-39.5, alleging that staff members of the Department of Sustainable Resource Development (ESRD) were instructed to move all briefing material into the Action Request Tracking System (ARTS), and all records would then be deleted (Investigation Report, at para 3). On May 13, 2015, the OIPC and the PIC announced that they would jointly investigate allegations that records within ESRD may have been destroyed in an unauthorized manner (Investigation Report, at para 9).

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Access to Legal Services in Women’s Shelters

By: Alysia Wright

PDF Version: Access to Legal Services in Women’s Shelters

Report Commented On: Canadian Research Institute for Law and the Family, Access to Legal Services in Women’s Shelters

In December 2015, the Canadian Research Institute for Law and the Family (CRILF) published a new report, Access to Legal Services in Women’s Shelters, authored by myself and Dr. Lorne Bertrand, examining access to legal services among clients of women’s domestic violence shelters. The study sampled the views of staff and clients at three domestic violence shelters with the goals of improving understanding of clients’ legal service needs; examining the challenges clients attempting to access legal services encounter; and making recommendations for improvement. Although domestic violence affects both men and women, women are disproportionally victims of domestic violence compared to men and there are no shelters for male victims of domestic violence in Alberta.

We conclude that clients’ service needs are complex and often involve legal problems, yet shelters face specific organizational barriers to coordinating legal services. We recommend that a further Alberta-wide study be undertaken to examine the legal access patterns of women experiencing domestic violence, to assess the prevalence of the barriers identified in the study and to determine whether further barriers are present in other shelters.

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The Regulation of the Construction and Operation of Electric Distribution Systems in Alberta

By: Nigel Bankes

PDF Version: The Regulation of the Construction and Operation of Electric Distribution Systems in Alberta

Decision Commented On: AUC Decision 20799-D01-2016, Finlay Group, Complaint Regarding FortisAlberta Inc, Distribution Line Rebuild Project, February 3, 2016

This decision of the Alberta Utilities Commission (AUC) involves the rebuild of a short 25 kV distribution by FortisAlberta Inc. Other than from the perspective of the landowners who owned property adjacent to the distribution line this could hardly be a matter of great moment, but the decision deserves a post because of what it tells us about what seems to be a gap in the regulatory rules governing the construction and operation of distribution lines in the province. The Commission does its best to fill that gap but it does seem odd that while a homeowner needs to “pull a permit” from the relevant municipal authority before doing electrical work in their home, there is no AUC permitting requirement that a distribution utility must satisfy prior to constructing new distribution lines or changes thereto. The absence of such a permitting requirement may make sense for a sophisticated entity operating a “behind the fence” generation and distribution system for a designated industrial system under s. 4 of the Hydro and Electric Energy Act (HEEA), RSA 2000, c H-16 (see generally, Nigel Bankes, Giorilyn Bruno and Cairns Price, “The Regulation of Cogeneration in Alberta” (2015) 53 Alberta Law Review 383) but it makes less sense when the distribution utility is providing an essential public service. On the other hand, the absence of a history of high profile complaints or adverse publicity for electric distribution utilities for their construction operations suggests that, in general, they have been doing a good job – and “if it ain’t broke don’t fix it.”

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Reflections on Week One of the Ghomeshi Trial

By: Jennifer Koshan

PDF Version: Reflections on Week One of the Ghomeshi Trial

I posted on ABlawg last Monday on the legal consequences of choking in the sexual assault context, which I suggested would be a likely issue in the Jian Ghomeshi trial. The testimony at the first week of the trial indicates that the question of whether one can legally consent to sexual activity involving choking is less likely to be the focus than whether the sexual assaults actually occurred and / or whether there was consent to the sexual activity in fact. Much ink has been spilled on the scope of the cross-examinations of the two complainants (so far) by defence counsel Marie Henein and the consequences of her tactics for the rights of sexual assault victims and their willingness to come forward. I want to add my two cents worth by focusing on the scope of the rape shield provisions, the relevance of the relationship between the complainants and the accused, and the possibility of expert evidence in this trial.

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