ABLawg

By: Shaun Fluker

PDF Version: Court of Appeal Affords Deference to Alberta Securities Commission in Platinum Equities Case

Case Commented On: Alberta (Securities Commission) v Chandran, 2015 ABCA 323

In February 2014 the Alberta Securities Commission found that Shariff Chandran was the governing mind of an elaborate scheme of capital market misconduct under the general umbrella of Platinum Equities and ruled that Chandran and others were guilty of contravening various provisions of the Securities Act, RSA 2000, c S-4 concerning the illegal distribution of approximately $58 million in securities to the public, misrepresentations, fraud, and conduct contrary to the public interest (See Re Platinum Equities Inc, 2014 ABASC 71). In addition to these administrative proceedings before the Commission, there are civil and criminal proceedings underway concerning Platinum Equities. In September 2014 the Commission issued its sanctions order 2014 ABASC 376 against Chandran and others for their misconduct under the Securities Act. Chandran asked the Court of Appeal to set aside a portion of these sanctions ordered by the Commission, and in Alberta (Securities Commission) v Chandran the panel of Justices Martin, O’Ferrall, and Shutz dismisses his appeal. The Court’s decision is a good example of how deference should work in substantive judicial review.

Section 38 of the Securities Act provides for a right of appeal to the Court by a person who is directly affected by a Commission decision. Notably section 38 does not limit this right of appeal to questions of law and neither does it require leave of the Court. Moreover, section 38 expressly states the Court may confirm, vary or reject the Commission decision, direct the Commission to re-hear the matter, or even decide the matter itself and substitute its decision for that of the Commission. In short, section 38 is a very generous and potentially intrusive statutory appeal provision.

When Judicial Decisions Go from Wrong to Wrongful – How Should the Legal System Respond?

By Alice Woolley

On November 3, 2015

In Criminal, State Responses to Violence

By: Alice Woolley

PDF Version: When Judicial Decisions Go from Wrong to Wrongful – How Should the Legal System Respond?

Case Commented On: R v Wagar, 2015 ABCA 327 (CanLII)

Introduction

Judges make wrong decisions. As I discussed in a recent ABlawg post, errors in judicial decisions are to be expected given the human frailty of participants in the judicial system – the judges, the lawyers and the parties. But at some point can the quality of an error in a legal judgment change – can it go from wrong to wrongful? That is, at some point does the error go from being a product of the judge’s humanity to being a product of a moral or ethical failure? And if a judicial decision crosses that line, how ought the legal system to respond? In particular, how can it respond so as to respect judicial independence while also ensuring public confidence in the administration of justice?

In this blog I explore these questions through Judge Robin Camp’s decision and conduct in R v Wagar, a decision overturned by the Court of Appeal (R v Wagar 2015 ABCA 327 (Canlii) and summarized and commented on by my colleague Jennifer Koshan here. I argue that legal decisions go from being wrong to wrongful when they demonstrate both disrespect for the law and a failure of empathy in regards to the persons who appeared before the court. In my opinion, Judge Camp’s decision falls within this category; it demonstrates both disrespect for the law governing sexual assault and a pervasive inability to understand or even account for the perspective of the complainant.

Judging Sexual Assault Cases Free of Myths and Stereotypes

By Jennifer Koshan

On November 2, 2015

In Criminal, State Responses to Violence

By: Jennifer Koshan

PDF Version: Judging Sexual Assault Cases Free of Myths and Stereotypes

Case Commented On: R v Wagar, 2015 ABCA 327 (CanLII)

I am spending the fall term at the University of Kent’s Centre for Law, Gender and Sexuality, where I am working on a couple of projects related to the legal regulation of sexual assault. One of these projects has me immersed in the sexual assault laws of England and Wales, and in the course of doing some research in this area, I have learned that judges here routinely warn juries in sexual assault trials of the need to dispel any myths and stereotypes that they may bring in to the adjudication process. A recent judgment from the Alberta Court of Appeal in R v Wagar, 2015 ABCA 327 (CanLII), suggests that trial judges in Canada would do well to actively caution themselves in the same way. The trial decision of Judge Robin Camp in Wagar, overturned on appeal, is replete with sexual assault myths and stereotypes that influenced his decision to acquit the accused.

What Happens When an Insolvent Energy Company Fails to Pay its Surface Rent to a Landowner? Part 2

By Shaun Fluker

On October 27, 2015

In Oil & Gas

By: Shaun Fluker

PDF Version: What Happens When an Insolvent Energy Company Fails to Pay its Surface Rent to a Landowner? Part 2

Cases Commented On: PetroGlobe Inc v Lemke, 2015 ABSRB 740; Portas v PetroGlobe Inc, 2015 ABSRB 708; Rodin v PetroGlobe Inc, 2015 ABSRB 737

This comment is an update to my July 2014 post What happens when an insolvent energy company fails to pay its surface rent to a landowner?. Readers are directed to this earlier comment for more background to this case and for this comment. In short, the matter involves the failure by PetroGlobe to pay its 2013 rent under a surface lease to the lessors Doug and Marg Lemke. The Lemkes filed an application with the Alberta Surface Rights Board (“Board”) under section 36 of the Surface Rights Act, RSA 2000 c S-24 to recover the unpaid rent. PetroGlobe was assigned into bankruptcy in 2013 under the federal Bankruptcy and Insolvency Act, RSC 1985, c B-3, and in its 2014 Lemke decision 2014 ABSRB 401 the Board ruled this federal legislation precludes the Board from proceeding with the Lemkes’ section 36 application under the Surface Rights Act. In April 2015, then Premier Jim Prentice announced he was asking the Board to reconsider its 2014 Lemke decision. The Board subsequently struck a new panel to hear additional submissions, and earlier this month the Board rescinded 2014 ABSRB 401 and replaced it with 2015 ABSRB 740. This new ruling from the Board upholds its earlier decision not to proceed with the Lemkes’ section 36 application, but does so with more reasons. This comment examines this new reasoning.

The Synthetic Transportation of Natural Gas

By Nigel Bankes

On October 26, 2015

In Contracts, Oil & Gas

By: Nigel Bankes

PDF Version: The Synthetic Transportation of Natural Gas

Case Commented On: Apache Canada Ltd v TransAlta Cogeneration LP, 2015 ABQB 650

In this decision Master Robertson concluded that the synthetic transportation of natural gas through a series of swap arrangements does not trigger the seller’s right of first refusal in a natural gas sales contract so as to allow the seller to re-acquire the gas, or that volume of gas, at the contract price and re-sell for its own account at the market price.

Apache agreed to sell natural gas to TAU for the specific purpose of fueling a cogeneration facility in Windsor, Ontario (the Windsor facility). The point of sale (i.e. where TAU took delivery of the gas) was Empress, Alberta. The contract had a 15-year term commencing in 1996. At that time, natural gas prices were depressed and Apache agreed to accept a fixed price with an escalation clause rather than a price determined by reference to an evolving spot market. Both parties clearly contemplated that TAU, having taken delivery of the gas at Empress, would transport that gas to its Windsor facility using TransCanada’s mainline and Union Gas’s facilities in Ontario. Indeed, the contract required TAU to arrange take-away pipeline capacity through agreements with “Buyer’s Transporters” (s.9.03) that were (at para 39):