ABLawg - - Page 240

Entitlements Protected by a Property Rule vs Entitlements Protected by a Liability Rule; or FPIC vs Regulated Access

On March 10, 2015

By: Nigel Bankes

PDF Version: Entitlements Protected by a Property Rule vs Entitlements Protected by a Liability Rule; or FPIC vs Regulated Access

Case Commented On: Sproule v Altalink Management Ltd, 2015 ABQB 153

AltaLink is building a transmission line to connect new wind generation in southern Alberta to the grid. The routing and construction of the line was approved by the Alberta Utilities Commission. Part of the line crosses private lands including lands owned by Sproule and the other parties to this appeal, and part crosses Piikani First Nation lands. Altalink reached a negotiated agreement with the Piikani First Nation but was unable to reach an agreement with Sproule et al. Accordingly, Altalink proceeded under the terms of the Surface Rights Act, RSA 2000, c. S-24 (SRA) to obtain right of entry orders and subsequently compensation orders for the different parcels.

Sproule et al appealed the compensation order on two main grounds; only the first is the subject of this post. The first ground of appeal was that the Board had wrongly refused to consider other compensation arrangements in setting the appropriate level of compensation for the Sproule et al lands. In particular, the appellants argued that the Board should have taken into account: (1) the levels of compensation that Sproule received under other agreements for wind turbines and a cell phone tower located on his land, and (2) the amounts received by the Piikani First Nation from Altalink for consenting to the transmission line crossing the Piikani Reserve. There was evidence before the Board that Altalink had been considering two routes for the transmission line, a preferred route that would cross the reserve and a second best route that avoided the reserve. The route across the reserve resulted in savings to Altalink (and ultimately to all consumers in Alberta) of about $30 million. Sproule’s evidence on appeal suggested that the Piikani received about $444,000 per mile under their agreement with Altalink (for a total of $7.45 million) whereas Sproule et al received about $60,000 per mile under the terms of the Board compensation order.

Trinity Western University: Your Tax Dollars at Work

By Saul Templeton

On March 9, 2015

In Ethics and the Legal Profession, Human Rights, Tax

By: Saul Templeton

PDF Version: Trinity Western University: Your Tax Dollars at Work

Case Commented On: Trinity Western University v Nova Scotia Barristers’ Society, 2015 NSSC 25

Trinity Western University (“TWU”) claims it is a private religious institution. This is the explanation offered by the courts for denying students, staff and faculty at TWU protection under the Canadian Charter of Rights and Freedoms. This protection is denied even though it is generally accepted, even by supporters of TWU, that TWU’s Community Covenant, “indeed treat[s] LGBT people in a way that would have profoundly negative effects of [sic] their lives.” See Trinity Western University v Nova Scotia Barristers’ Society, 2015 NSSC 25 [NS Barristers’ Society] at para 251).

What does it mean for a university to be publicly funded? I am a tax scholar, so I offer a definition supported by tax policy. TWU is publicly funded because it receives significant tax benefits as a result of its registered charity status. TWU is tax exempt, and therefore underwritten by public funding. The tax exemption is equivalent to a direct subsidy to TWU, since it represents tax revenue forgone, and governments must make up the shortfall elsewhere. TWU also issues charitable tax receipts that allow (and encourage) donors to give more money to TWU than they otherwise could, since the state gives donors a kickback on their taxes for doing so.

A Remarkable, Plain Language Judgment from the Ontario Court of Justice

By John-Paul Boyd

On March 6, 2015

In Access to Justice, Criminal

By: John-Paul Boyd

PDF Version: A Remarkable, Plain Language Judgment from the Ontario Court of Justice

Case Commented On: R v Armitage, 2015 ONCJ 64 (CanLII)

A few weeks ago, Mr. Justice Nakatsuru of the Ontario Court of Justice released a remarkable judgment in the case of R. v Jesse Armitage. A flood of decisions in criminal matters are released every day, and in that sense Justice Nakatsuru’s sentencing decision in Armitage was not exceptional. What sets the judgment apart are the judge’s decisions to direct his opinion to the offender and to write that opinion entirely in plain language.

A Vexatious Litigant After Only Two Applications

By Jonnette Watson Hamilton

On March 5, 2015

In Access to Justice, Civil Procedure, Vexatious Litigants

By: Jonnette Watson Hamilton

PDF Version: A Vexatious Litigant After Only Two Applications in One Proceeding

Case Commented On: Re FJR (Dependent Adult), 2015 ABQB 112 (CanLII)

Although the Alberta law giving the courts more power to deal with “vexatious litigants” in a simplified process has only been in effect a little more than five years — since October 30, 2009 — the law is quite well settled. Under section 23.1(1) of the Judicature Act, RSA 2000, c J-2, on application or the court’s own motion, and with notice to the Minister of Justice and Solicitor General, if a Court is satisfied that a person is instituting vexatious proceedings or is conducting a proceeding in a vexatious manner, then the court may order that the person not commence or continue proceedings without the court’s permission. Section 23(2) provides a non-exclusive list of examples of vexatious proceedings and conduct. These provisions have been considered in approximately 70 cases over the past five years. Recently and helpfully, in Chutskoff v Bonora, 2014 ABQB 389 (CanLII) at paras 80-93, Justice Michalyshyn undertook a comprehensive review of this case law. As a result of all of this consideration, most vexatious litigant proceedings now simply involve application of the established principles to the particular facts of each case. Nonetheless, the occasional new legal issue arises, as it does in Re FJR. This post considers a case in which the person found to be a vexatious litigant had only made two applications, and both of them were made in only one court proceeding.

A Case for Adopting the Lewko Approach to Refusal Law

By Dylan Finlay

On March 4, 2015

In Criminal

By: Dylan Finlay

PDF Version: A Case for Adopting the Lewko Approach to Refusal Law

Case Commented On: R v Soucy, 2014 ONCJ 497

Obtaining breath samples from those suspected of driving while impaired is a necessary practicality in enforcing impaired driving law. A police officer must have a legal authority to demand that an individual supply a sample of his or her breath, and there must be legal ramifications should that individual decline. Consequently, s. 254(5) of the Criminal Code, RSC 1985, c C-46 makes it an offence to fail or refuse to comply with a breath demand, without a reasonable excuse. As a criminal offence, s. 254(5)’s necessary elements include both an actus reus and a mens rea. Two deeply divided lines of authority arise from interpreting s. 254(5)’s requisite mens rea, or culpable state of mind.