ABLawg

By: Nickie Nikolaou

PDF Version: Community Consultation Is “Not Mere Window Dressing” in Development Permit Applications

Case Commented On: Thomas v Edmonton (City), 2016 ABCA 57 (CanLII)

Disputes between developers of new residential properties and landowners, especially in the context of mature neighborhoods, are common when variances are sought from local land-use bylaw standards. In Thomas v Edmonton (City), the Court of Appeal tipped the scales slightly in favor of landowners where the bylaw mandates community consultation. The Court held that where a development standard variance is required, and the applicable zoning bylaw mandates community consultation, that consultation is a condition precedent to obtaining a valid development permit. Moreover, the Subdivision and Development Appeal Board (SDAB) has no authority to waive the requirement.

Access to Justice, Self-Represented Litigants and Court Resources: A Snapshot from Alberta Superior Courts for the Month of May

By Jennifer Koshan

On June 13, 2016

In Access to Justice

By: Jennifer Koshan and Drew Yewchuk

PDF Version: Access to Justice, Self-Represented Litigants and Court Resources: A Snapshot from Alberta Superior Courts for the Month of May

Cases commented on: Pintea v Johns, 2016 ABCA 99 (CanLII); Erdmann v Complaints Inquiry Committee, 2016 ABCA 145 (CanLII); JE v Alberta (Workers’ Compensation Board), 2016 ABCA 147 (CanLII); HH v DB, 2016 ABQB 164 (CanLII); Pickett v Walsh, 2016 ABQB 222 (CanLII); McCallum v Edmonton Frame and Suspension (2002) Ltd, 2016 ABQB 271 (CanLII); R v Cullen, 2016 ABQB 272 (CanLII); Alberta v Greter, 2016 ABQB 293 (CanLII); ET v Rocky Mountain Play Therapy Institute Inc, 2016 ABQB 299 (CanLII)

As the Coordinator and Student Assistant for ABlawg, we review all Alberta Court of Queen’s Bench and Court of Appeal decisions each week for their blogworthiness. During the month of May, we noted several cases dealing with issues related to access to justice and the courts’ role in and resources for dealing with self-represented litigants. Of course, resource issues do not only arise in cases involving self-reps. On June 1, 2016, Justice Berger of the Court of Appeal chastised counsel for parties to protracted litigation with the following words:

I would be remiss if I failed to express serious concerns for that which I perceive to be a disregard on the part of counsel for the limited resources available to the judiciary, particularly at a time when the courts are functioning with less than a full complement (Weatherford Canada Partnership v Kautschuk, 2016 ABCA 173 at para 7).

This statement refers to the fact that Alberta is short of both Court of Queen’s Bench and Court of Appeal justices. The need for the federal Minister of Justice to make judicial appointments to fill these vacancies and to create new positions given the increase in Alberta’s population has been commented on by Alberta’s Justice Minister Kathleen Ganley, as well as Chief Justice Neil Wittman of the Court of Queen’s Bench (see here and here). Chief Justice Wittman called the shortage a “crisis” as far back as October 2015, when he stated that the courts “are literally at the breaking point right now.”

The AER Provides Useful Guidance in a New Pool Delineation Decision

By Nigel Bankes

On June 10, 2016

In Natural Resources, Oil & Gas

By: Nigel Bankes

PDF Version: The AER Provides Useful Guidance in a New Pool Delineation Decision

Decision commented on: Proceeding 336 Application 1820596 Pool Delineation, Crossfield Basal Quartz C & V Pools, June 2, 2016, 2016 ABER 007

Alberta’s Oil and Gas Conservation Act, RSA 2000, c O-6 (OGCA) defines a pool as “(i) a natural underground reservoir containing or appearing to contain an accumulation of oil or gas, or both, separated or appearing to be separated from any other such accumulation”. Wells are identified as producing from particular pools and many provisions of the OGCA and the Oil and Gas Conservation Rules, Alta Reg 151/1971 (OGCR) turn on the question of whether or not a particular well is producing from a particular pool. For example, s 15(3) of the OGCA provides that “No person shall apply for a licence for a well for the purpose of obtaining production from the same pool as that from which another well is obtaining or capable of obtaining production in the same drilling spacing unit …”.

In this particular case, the applicant, Bearspaw Petroleum Ltd wanted its well classified as producing from the Crossfield Basal Quartz C Pool (BQ C Pool) rather than the single well BQ V pool in order to be able to gain access to the gas processing plant operated by the C Pool working interest owners – if necessary by means of a common processor order under s 53 of the OGCA. Since it is usually necessary to establish drainage as a pre-condition to obtaining a common processor order (i.e. that H’s well or wells are draining production from underneath B’s leased lands) (see Directive 065, Resources Applications for Oil and Gas Reservoirs, Unit 1, Equity) B first had to establish that its well was in the same pool as H’s wells.

Should the Dispute Remain Between the Accused and the Crown? Third-Party Intervention in Criminal Proceedings

By Jessica Magonet

On June 8, 2016

In Criminal, Intervenors and Standing

By: Jessica Magonet

PDF Version: Should the Dispute Remain Between the Accused and the Crown? Third-Party Intervention in Criminal Proceedings

Cases Commented On: R v Vallentgoed, 2016 ABCA 19 (CanLII) and R v Barton, 2016 ABCA 68 (CanLII)

Should courts shun third party intervention in criminal proceedings? Two recent Alberta Court of Appeal cases address this issue: R v Vallentgoed, 2016 ABCA 19 (CanLII) (January 2016) and R v Barton, 2016 ABCA 68 (CanLII) (March 2016).

In Vallentgoed, the Edmonton and Calgary Police Services (EPS / CPS) were denied leave to intervene in a criminal appeal by Justice Veldhuis. The appeal concerned the scope of the Crown’s obligation to disclose approved instrument (AI) maintenance logs. Approved instruments are instruments used to measure blood alcohol levels. The accused, Vallentgoed and Gubbins, were charged with impaired driving offenses and had requested additional disclosure of AI maintenance records.

In Barton, Justice Berger granted leave to intervene to the Women’s Legal Education and Action Fund (LEAF) and the Institute for the Advancement of Aboriginal Women (IAAW) in the Crown’s appeal of Barton’s acquittal for the murder of Cindy Gladue. Ms. Gladue, a Cree woman engaged in sex work, died as a result of an injury caused by Mr. Barton. According to LEAF’s press release, “At the trial, the jury accepted the defence argument that Ms. Gladue, an Indigenous woman, had consented to ‘rough sex’ and acquitted the man accused of her murder, Bradley Barton.” (Women’s Legal Education and Action Fund (LEAF) and the Institute for the Advancement of Aboriginal Women (IAAW) Seek Leave to Intervene in R. v Barton).

Vexatious Proceedings Distinguished from Vexatious Litigants

By Jonnette Watson Hamilton

On June 6, 2016

In Access to Justice, Civil Procedure, Vexatious Litigants

By: Jonnette Watson Hamilton

PDF Version: Vexatious Proceedings Distinguished from Vexatious Litigants

Case commented on: R.O. v D.F., 2016 ABCA 170 (CanLII)

This Court of Appeal decision is useful in drawing a distinction between litigation that is vexatious and a litigant who is vexatious. A vexatious court proceeding may be challenged under various provisions in the Alberta Rules of Court, Alta Reg 124/2010. Typically, the vexatious proceeding is brought to an end and costs are awarded against the person responsible. The scope of the relief is confined to the one particular case. A vexatious litigant order, on the other hand, is made under section 23.1 of the Judicature Act, RSA 2000, c J-2, and typically forbids the person against whom it is made from commencing or continuing any proceedings in any court in Alberta against any person. Declaring someone to be a vexatious litigant is a much broader and more serious matter. The issue in this appeal was whether R.O. was a vexatious litigant, as the Court of Queen’s Bench judge had declared her to be, when all of her allegedly vexatious behaviour was confined to this one case.