ABLawg - - Page 242

By: Nigel Bankes

PDF Version: Bill 1, Respecting Property Rights Act: A Damp Squib and a Good Thing Too

Bill Commented On: Bill 1: Respecting Property Rights Act

The good news about Bill 1 for those with communitarian views is that Bill 1 does not change the law of Alberta one iota. The bad news about Bill 1 for those of a more libertarian persuasion is that Bill 1 does not change the law of Alberta one iota.

Here is the entire text of Bill 1 from its bizarre preambular provisions to its single operative clause:

Preamble

WHEREAS private ownership of land is a fundamental element of Parliamentary democracy in Alberta;

WHEREAS the Alberta Bill of Rights recognizes and declares the right of the individual to the enjoyment of property and the right not to be deprived thereof except by due process of law;

WHEREAS the Government is committed to consulting with Albertans on legislation that impacts private property ownership;

WHEREAS the Land Assembly Project Area Act was enacted by the Legislature in 2009 and was amended in 2011 but has not been proclaimed in force; and

WHEREAS the repeal of the Land Assembly Project Area Act reaffirms the government’s commitment to respect individual property rights;

THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows:

Land Assembly Project Area Act Repeal

The Land Assembly Project Area Act, SA 2009 cL-2.5, is repealed.

This post addresses two questions. First, how is it that despite all the pomp and circumstance surrounding the introduction of this Bill, legally, it changes nothing? And second, why, at least in the opinion of this author, is that a good thing?

Trinity Western… Again

By Alice Woolley

On November 19, 2014

In Ethics and the Legal Profession

By: Alice Woolley

PDF Version: Trinity Western… Again

I can’t stop thinking about the law society decisions on Trinity Western University (TWU). Part of the reason for that is the complexity and difficulty of the substantive issue raised by TWU’s proposed law school: the proper resolution of an irreducible conflict between equality rights and freedom of religion (I discuss that here). But as I spent the last few weeks teaching administrative law procedural fairness, I realized that the other thing bothering me about the law society decisions is the process used to reach them.

As far as I can tell, each law society that has independently considered TWU’s application for accreditation (or is likely to; Alberta delegated its decision to the Federation of Law Societies) has proceeded by way of a quasi-legislative process: TWU and other interested parties make submissions to a meeting of benchers, who then debate the question and vote. In April British Columbia benchers voted 20-6 against a motion barring TWU graduates from admission – a decision the benchers reversed in October following a referendum of its members. In Ontario benchers voted 28-21, with one abstention, to reject TWU’s application for accreditation (its process is discussed here). In Nova Scotia benchers voted 10-9 to make accreditation conditional on TWU withdrawing the community covenant which precludes LGBT students from attending.

Ernst v Alberta Environment: The Gatekeeper Refuses to Strike or Grant Summary Judgment

By Shaun Fluker

On November 17, 2014

In Civil Procedure, Environmental

By: Shaun Fluker

PDF Version: Ernst v Alberta Environment: The Gatekeeper Refuses to Strike or Grant Summary Judgment

Case Commented On: Ernst v Alberta Environment, 2014 ABQB 672

This short comment adds to the recent posts on ABlawg by Professor Martin Olszynski (here and here) and myself (here) on the Ernst litigation against Alberta Environment, the Alberta Energy Regulator (AER) and Encana Corporation concerning allegations of groundwater contamination from hydraulic fracturing. Readers interested in more details on the substance of the litigation will find it here. My focus in this comment is on how Chief Justice Neil Wittmann applies the law on a motion to strike under Rule 3.68 and for summary judgment under Rule 7.3 of the Alberta Rules of Court, Alta Reg 124/2010 (the Rules) to dismiss Alberta’s application. I also ask how we reconcile this decision from the motion to strike initiated by the AER/ERCB and the decision by Alberta courts to grant that application.

Recall that Ernst alleges that Alberta Environment and the AER owe her a duty of care and were negligent by failing to meet that duty. The AER successfully applied to have the Ernst proceedings struck for failing to disclose a reasonable cause of action (Ernst v Alberta (Energy Resources Conservation Board), 2014 ABCA 285 (Ernst II)). Ernst has applied to the Supreme Court of Canada for leave to appeal this Court of Appeal decision (See here).

Regulatory Negligence Redux: Alberta Environment’s Motion to Strike in Fracking Litigation Denied

By Martin Olszynski

On November 14, 2014

In Environmental, Torts

By: Martin Olszynski

PDF Version: Regulatory Negligence Redux: Alberta Environment’s Motion to Strike in Fracking Litigation Denied

Case Commented On: Ernst v EnCana Corporation, 2014 ABQB 672

This post follows up on a previous one regarding Ms. Ernst’s lawsuit against EnCana, the Energy Resources Conservation Board (ERCB, now the AER) and Alberta Environment for the alleged contamination of her groundwater as a result of EnCana’s hydraulic fracturing activity (fracking) near Rosebud, Alberta. My first post considered the ERCB’s application to have the action against it struck, with respect to which it was successful (see 2013 ABQB 537 (Ernst I), affirmed 2014 ABCA 285 (Ernst II)). On November 7, 2014, Chief Justice Wittmann released the most recent decision (Ernst III) in what is shaping up to be the legal saga of the decade. Like the ERCB before it, Alberta Environment sought to have the regulatory negligence action against it struck on the basis that it owed Ms. Ernst no private law “duty of care” and that, in any event, it enjoyed statutory immunity. In the alternative, Alberta sought summary judgment in its favor. In contrast to his earlier decision agreeing to strike the action against the ERCB, the Chief Justice dismissed both applications.

In my previous post, I noted some inconsistencies between Ernst I and II with respect to the duty of care analysis and suggested that courts should strive to apply the applicable test (the Anns test) in a predictable and sequential manner, the Supreme Court of Canada’s decision in Cooper v Hobbart, 2001 SCC 79 (still the authority for the content of that test in Canada) being valued first and foremost for bringing some much needed transparency to the exercise. In this respect, the Chief Justice’s most recent decision is exemplary. In this post, I highlight those aspects of the decision that help to explain the different result in this case, as well as those that in my view address some of the concerns I expressed in my previous post.

Judicial Supervision of the National Energy Board (NEB): The Federal Court of Appeal Defers to the NEB on Key Decisions

By Nigel Bankes

On November 11, 2014

In Administrative Law, Energy

By: Nigel Bankes

PDF Version: Judicial Supervision of the National Energy Board (NEB): The Federal Court of Appeal Defers to the NEB on Key Decisions

Cases Commented On: Forest Ethics Advocacy Association and Donna Sinclair v National Energy Board, 2014 FCA 245; City of Vancouver v National Energy Board, and TransMountain Pipeline ULC, Order of the Federal Court of Appeal, Docket 14-A-55, per Justice Marc Nadon, October 16, 2014, denying leave to appeal the NEB’s scoping decision, Hearing Order OH-001-2014, 23 July 2014.

The National Energy Board (NEB) has its plate full; so too does the Federal Court of Appeal which has been hearing both judicial review applications and leave to appeal applications in relation to a number of projects including the Northern Gateway Project (Enbridge), the Line B Reversal and Line 9 Capacity Expansion Project (Enbridge), and the TransMountain expansion Project (Kinder Morgan). Interested readers can obtain details of these projects as well as Board decisions on the NEB’s website. I provided an assessment of the state of play in the Northern Gateway applications in a comment published in the Energy Regulation Quarterly.

The term “judicial supervision” in this post is designed to encompass both the idea of judicial review and appellate review of NEB decisions by way of appeal to the Federal Court of Appeal (FCA) (with leave). The normal route for obtaining judicial supervision of the NEB is by way of appeal (with leave) but one of the most significant recent decisions we have seen in this area, the Forest Ethics and Sinclair case, came before the Court on an application for judicial review. The case is important because it establishes, at least in the circumstances of that case, that the Board did not err in ruling that it did not have to consider the larger environmental effects of a pipeline project including the contribution to climate change made by the Alberta oil sands and facilities and activities upstream and downstream from the pipeline project.

This post aims to do three things. First it explains the different ways in which a party may seek judicial supervision of an NEB decision. Second, it examines the Forest Ethics and Sinclair decision and finally it offers some brief commentary on one important practical and philosophical difference between the way in which the Federal Court of Appeal treats leave applications and the way in which it treats judicial review applications – reasons.