ABLawg - - Page 231

By: Jonnette Watson Hamilton

PDF Version: A Trap for the Unwary: Assuming High Ratio Mortgages

Case Commented On: CIBC Mortgages Inc v Abdallah, 2015 ABQB 363 (CanLII); Bank of Montreal v Hoehn, 2010 ABQB 405 (CanLII)

Five years ago, in Bank of Montreal v Hoehn, Master Jodi L. Mason decided that one small piece of consumer protection legislation was not properly created by Alberta lawmakers in 2003. As a result, a law that should have required a prominent warning to borrowers on high ratio residential mortgages was not available to protect individuals who unknowingly assumed these types of mortgages. The problem Master Mason identified could have been easily remedied by the legislature — but it was not. One of the consequences of the legislature’s failure to act can be seen in CIBC Mortgages Inc v Abdallah. As Madam Justice Barbara Romaine notes in this decision, the absence of mandatory warnings about assuming high ratio mortgages “creates a high-risk scenario for unwary transferees and creates hard cases like this one” (at para 33).

Agent Regulation: The Case of Emmerson Brando (AKA Arturo Nuosci, AKA Maverick Austin Maveric, AKA Landon Emmerson Brando)

By Sarah Burton

On June 15, 2015

In Access to Justice, Criminal

By: Heather White & Sarah Burton

PDF Version: Agent Regulation: The Case of Emmerson Brando (AKA Arturo Nuosci, AKA Maverick Austin Maveric, AKA Landon Emmerson Brando)

Case Commented On: R v Hansen, 2015 ABPC 118

On May 12, 2015, CBC news reported that Emmerson Brando – a well-known Calgary-based court agent – had an extensive criminal history (Meghan Grant, “Emmerson Brando’s criminal past outlined in Calgary court memo” CBC News (12 May 2015) (“CBC News”). This was of great interest to the Calgary Bar owing to his regular appearances in court. Mr. Brando had served 90 days in Canadian jail and 33 months in U.S. prison for offences including fabricating evidence, fraud, identity theft, misuse of a social security number, and making a false statement in a passport application (CBC News). Upon completing his sentence in the United States, Mr. Brando was deported back to Canada, where he set up practice as an agent in Ontario. A few years ago, Mr. Brando moved his practice to Alberta where paralegals are not regulated (CBC News).

Once Mr. Brando’s criminal history was uncovered, Chief Crown counsel Lloyd Robertson, Q.C., brought an objection to Mr. Brando being given leave to represent a client at an upcoming trial. The resulting decision, R v Hansen, 2015 ABPC 118, written by Judge Gaschler, provides a thorough analysis of Brando’s criminal history and the way in which it affects the Court’s willingness to grant him leave to appear as an agent. After a careful review of the circumstances, Judge Gaschler held that Mr. Brando’s appearance would undermine the integrity of the justice system, and denied him leave to appear as an agent (at para 29).

Landowners Can’t Use the Surface Rights Board to Mount a Collateral Attack on the Approval of a Transmission Line

By Nigel Bankes

On June 12, 2015

In Constitutional, Energy

By: Nigel Bankes

PDF Version: Landowners Can’t Use the Surface Rights Board to Mount a Collateral Attack on the Approval of a Transmission Line

Case Commented On: Togstad v Alberta (Surface Rights Board), 2015 ABCA 192

In a completely predictable decision the Court of Appeal has applied the doctrine of collateral attack to dismiss the efforts of landowners to have a second kick at the can by seeking to question the constitutional basis for provincial regulation of a proposed transmission line before the Surface Rights Board.

This case, in fact, two cases, Togstad on appeal from 2014 ABQB 485 and an appeal from Kure v Alberta (Surface Rights Board) 2014 ABQB 572, involves the longstanding efforts of the provincial government to strengthen the transmission grid in the province through the construction of two new major transmission lines known as WATL and EATL – Western Alberta Transmission Line and the Eastern Alberta Transmission Line. These projects have been, to say the least, controversial. Along the way the Energy and Utilities Board bumped into its spy scandal and was subsequently dissolved; the province introduced the so-called critical infrastructure legislation to definitively and authoritatively resolve the question of “need” (SA 2009, c.44); and there was litigation, lots of it, on everything from allegations of bias (Lavesta Area Group v Alberta (Energy and Utilities Board), 2011 ABCA 108) to valiant efforts to argue that the Alberta Utilities Commission (AUC) still had to establish need as part of its assessment of public interest and notwithstanding the critical infrastructure legislation: Shaw v Alberta (Utilities Commission), 2012 ABCA 378, albeit involving the Heartland project rather than WATL or EATL. And then, in the hearings on the merits in WATL, the AUC carefully examined (and dismissed, AUC Decision 2012-327) landowner arguments to the effect that the lines were interprovincial undertakings that should be subject to federal regulation.

Sense and Sensibility at the AER?

By David Laidlaw

On June 11, 2015

In Aboriginal, Responsible Energy Development Act

By: David Laidlaw

PDF Version: Sense and Sensibility at the AER?

Decision Commented On: Pembina Pipeline Prehearing Meeting 2015 ABAER 002

The Alberta Energy Regulator (AER) held a prehearing meeting on May 14, 2014 with all of the objecting parties and the project’s proponent Pembina Pipeline Corporation (Pembina). The AER felt it was appropriate to issue a decision report for the guidance of industry, landowners and objecting parties.

The Decision noted that the Responsible Energy Development Act, SA 2012, c R-17.3 (REDA) requires the AER to provide for the “efficient, safe, orderly and environmentally responsible development of energy resources in Alberta,” under subsection 2(1)(a). Further the AER must consider the interests of landowners when reviewing applications under section 15 of REDA and section 3 of the Responsible Energy Development Act General Regulation, Alta Reg 90/2013. Thus when a matter is referred to a hearing, a Panel is appointed to establish a hearing process for the application, and:

[i]n determining procedural matters, the panel takes guidance from REDA, its regulations, and its rules. One of the panel’s most important responsibilities is to ensure that the hearing process is fair. This includes ensuring that parties are provided with adequate notice of the hearing and application and that they have an opportunity to reply or to be heard (at para 5).

Further, the process is “intended to be fair, efficient, and effective for all concerned: for participants as well as the applicant” (at para 6, emphasis added).

The Decision is a short, well written 10 page ruling that warrants careful consideration by industry, lawyers and the public, but in this post I will focus on 3 novel aspects.

Aboriginal Title Claim Against a Private Party Allowed to Continue

By Nigel Bankes

On June 10, 2015

In Aboriginal, Oil & Gas

By: Nigel Bankes

PDF Version: Aboriginal Title Claim Against a Private Party Allowed to Continue

Case Commented On: Ominayak v Penn West Petroleum Ltd, 2015 ABQB 342

Some forty or so years ago the Lubicon Lake Band and Chief Bernard Ominayak commenced an action for aboriginal title, and, in the alternative, a treaty reserve entitlement claim. Chief Ominayak also brought a petition before the United Nations Human Rights Committee (HRC) under the Optional Protocol of the International Covenant on Civil and Political Rights alleging a breach by Canada of Article 27 of that Covenant dealing with the cultural rights of minorities.

In the end, at least so far as I know, the title and treaty entitlement claim died after the Band failed in its attempts to obtain an interlocutory injunction: see Lubicon Indian Band v Norcen Energy Resources Ltd, [1985] 3 WWR 196 (Alta CA) – a matter I commented on very early in my academic career here. Chief Ominayak did however succeed, if that is the right word, in his petition before the HRC on the grounds that the degree and intensity of resource extraction occurring in the traditional territory of the Lubicon Cree was so extensive as to deprive the Lubicon of access to the material aspects of their culture. In another sense however, the petition was a failure since Ominayak’s concerns have never been adequately dealt with. It is true that Alberta has settled a treaty entitlement claim with at least some of the Lubicon Cree, but there remains an outstanding question (to which this litigation attests at para 5) as to whether or not the Lubicon Cree with whom Alberta negotiated were properly mandated to agree to the settlement.