ABLawg

By: Nigel Bankes

PDF Version: Providing an Effective Remedy for the ISO’s Unlawful Line Loss Rule

Decision Commented On: AUC Decision 790-D02-2015, Milner Power Inc. and ATCO Power Ltd, Complaints re the ISO Transmission Loss Factor Rule and Loss Factor Methodology, Phase 2 Module A, January 20, 2015

In this decision the Alberta Utilities Commission (AUC) has decided that it has the jurisdiction to grant tariff-based relief in a case where a rule of the Independent System Operator (ISO) is found to be unlawful on the basis that it was unjust, unreasonable, unduly preferential, arbitrarily and unjustly discriminatory and inconsistent with various provisions of the Electric Utilities Act (EUA) (now SA 2003, c. E-5.1) and the Transmission Regulation (now Alta Reg 86/2007). Such relief may involve retrospective or retroactive adjustments to the ISO tariff going back to the date when the Rule first entered into force (January 1, 2006, Milner Power having originally filed its objection to the ISO Line Loss Rule in August 2005 before the rule came into force).

First Nations Community Election Codes and the Charter

By Jennifer Koshan

On January 19, 2015

In Aboriginal, Constitutional

By: Jennifer Koshan

PDF Version: First Nations Community Election Codes and the Charter

Case Commented On: Orr v Peerless Trout First Nation, 2015 ABQB 5

In December Jonnette Watson Hamilton and I wrote a post commenting on Taypotat v Taypotat, 2012 FC 1036; rev’d 2013 FCA 192; leave to appeal granted 2013 CanLII 83791 (SCC), a case currently before the Supreme Court which involves the constitutionality of a First Nations election code. A similar case arose in Alberta recently. In Orr v Peerless Trout First Nation, 2015 ABQB 5, Master L.A. Smart dismissed a claim by a member of the Peerless Trout First Nation alleging that that Nation’s Customary Election Regulations were unconstitutional.

Deconstructing Investigative Detention

By Dylan Finlay

On January 14, 2015

In Constitutional, Criminal

By: Dylan Finlay

PDF Version: Deconstructing Investigative Detention

Case Commented On: R v Rowson, 2014 ABQB 79

Crime scenes are often intense and dynamic environments. This presents a challenge to investigators who – prior to making an arrest – must collect enough evidence to satisfy the standard of ‘reasonable and probable grounds.’ The recent case of R v Rowson, 2014 ABQB 79 displays this hurdle. The scene of the alleged crime – a motor vehicle collision – was attended by paramedics, firefighters, the police, and an air ambulance helicopter. Collecting enough evidence to make an arrest was not the police’s immediate priority. To mitigate the challenge that inevitably arises in situations such as this, police are armed with the common-law power of investigative detention. This post will deconstruct this power.

The common law power of investigative detention was developed incrementally and recognized by the Supreme Court of Canada in R v Mann, 2004 SCC 52. This case involved two police officers who, while responding to a break and enter, encountered an individual who matched the description of the offender. The individual, Mr. Mann, was stopped and made subject to a pat-down search during which one of the officers felt a soft object in his pocket. Upon reaching inside the pocket, the officer found 27.55 grams of marijuana and a number of small plastic baggies. Mann was subsequently arrested; prior to this he had only been under a state of detention. At trial, Connor Prov. Ct. J. held that while the police were justified in searching Mann for security reasons, reaching into the appellant’s front pocket after feeling a soft item therein was not justified in the circumstances. The conduct thus contravened s. 8 of the Charter, the right to be secure against unreasonable search or seizure. On appeal, the Manitoba Court of Appeal held that it was not unreasonable for the police to continue the search inside of the pocket. This was further appealed to the Supreme Court of Canada.

We Versus Me: Normative Legislation, Individual Exceptionalism and Access to Family Justice

By John-Paul Boyd

On January 13, 2015

In Family

By: John-Paul Boyd

PDF Version: We Versus Me: Normative Legislation, Individual Exceptionalism and Access to Family Justice

In many of Canada’s family law courts, especially our provincial courts, the majority of litigants now appear without counsel. This state of affairs should have been a foreseeable consequence of the diminution of legal aid representation in family law cases coupled with the relative absence of market forces impelling private family law lawyers to reduce their rates or embrace new service models, but it is nonetheless where we find ourselves today.

It is easy enough to point to the observable consequences of this superabundance of litigants without counsel – chief among them the increased number of ill-conceived chambers applications, the ever-expanding length of trials and the congestion presently plaguing court registries – and shudder in horror. However, it must be borne in mind that the justice system is not our system, a system for judges and lawyers, but their system, a system that belongs to the users of the system, the litigants themselves. As a result, despite the inconveniences enuring to the mutual discomfort of bench and bar, I am hard pressed to conclude that there is anything fundamentally wrong with the growing presence of unrepresented litigants; the situation is infelicitous, to be sure, but not iniquitous.

Some Thoughts on the Presumption of Deference under the Dunsmuir Framework in Substantive Judicial Review

By Shaun Fluker

On January 12, 2015

In Administrative Law, Statutory Interpretation

By: Shaun Fluker

PDF Version: Some Thoughts on the Presumption of Deference under the Dunsmuir Framework in Substantive Judicial Review

Case Commented On: Alberta Treasury Branches v Alberta Union of Provincial Employees, 2014 ABQB 737

This is a run-of-the-mill judicial review decision by Justice Don Manderscheid in early December. The decision reviews statutory interpretation conducted by the FOIP Commissioner acting under the Freedom of Information and Protection of Privacy Act, RSA 2000 c F-25 (FOIP Act) to settle a dispute between Alberta Treasury Branches (ATB) and the Alberta Union of Provincial Employees (AUPE) over the obligation of ATB to disclose certain bargaining unit information to AUPE. While there is nothing particularly unusual about this case, it does provide a good platform from which to revisit some of the fundamentals in judicial review as we enter 2015. This post first describes the legal issues in this case, and then summarizes how Manderscheid J. resolves them. I conclude with some thoughts on the developing presumption of deference in substantive judicial review post-Dunsmuir.