ABLawg

By: Alice Woolley

PDF Version: Ensuring Competent Representation: Know What You Don’t Know

You’ve got to know when to hold ’em

Know when to fold ’em

Know when to walk away

And know when to run

You never count your money

When you’re sittin’ at the table

There’ll be time enough for countin’

When the dealin’s done

The Gambler (Don Schlitz; performed by Kenny Rogers)

Being a competent lawyer means knowing your own limits. Lawyers representing clients in cases for which they do not have the necessary knowledge and skills risk liability in negligence, being found to have provided ineffective assistance of counsel (in a criminal case) and violating the obligations of the codes governing their conduct. Those codes define the competent lawyer as “recognizing limitations in one’s ability to handle a matter of some aspect of it and taking steps accordingly to ensure the client is appropriately served” (FLS Model Code, Rule 3.1-1(h)). They further state that a lawyer ought not to take on a matter for which she is not competent and must recognize “a task for which the lawyer lacks competence” (Rule 3.1-2, Commentaries 5 and 6).

How difficult can this be? Quite, according to some recent media reports. While the facts as reported are not sufficient to support the conclusion that the lawyers involved acted improperly, they do at least raise the question: given the apparent disconnect between their expertise and their clients’ circumstances, why were these lawyers acting? And what lessons might we be able to draw to allow lawyers to appreciate when folding ‘em is wiser than holding ‘em?

All I Want for Christmas is the Justification for Shell Jackpine

By Martin Olszynski

On December 23, 2014

In Aboriginal, Environmental

By: Martin Olszynski

PDF Version: All I Want for Christmas is the Justification for Shell Jackpine

Case Commented On: Adam v Canada (Environment), [2014] FC 1185

On December 9, 2014, the Federal Court rendered its decision in Adam v. Canada (Environment). Chief Allan Adam, on his own behalf and on behalf of the Athabasca Chipewyan First Nation (ACFN), challenged two federal government decisions pursuant to the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52 (CEAA) in relation to Shell Canada’s proposed Jackpine oil sands mine expansion project. The first was the Governor in Council’s (GiC) determination pursuant to section 52(4) that the project’s anticipated significant adverse environmental effects are “justified in the circumstances.” The second was the Minister’s “Decision Statement” pursuant to section 54, which contains the conditions subject to which the project may proceed. In a decision that reads somewhat tersely but that also covers a lot of ground, primarily Aboriginal consultation and division of powers issues, Justice Tremblay-Lamer dismissed the ACFN’s challenge. This post – the first of what will likely be a series – focuses on the first challenged decision: the GiC’s determination that the project’s significant adverse environmental effects are justified.

Two Alberta Perpetuities Stories

By Nigel Bankes

On December 19, 2014

In Environmental, Property

By: Nigel Bankes

PDF Version: Two Alberta Perpetuities Stories

Matters Commented On: Bill 8, Justice Statutes Amendment Act and Gottlob Schmidt’s donation to the province of Antelope Provincial Park

This post covers two matters. The first is the amendment to the Perpetuities Act, RSA 2000, c. P – 5 enacted as part of Bill 8, the omnibus Justice Statutes Amendment Act which received third reading on December 9^th and Royal Assent on December 17^th. The second relates to a story carried in the Calgary Herald about Gottlob Schmidt’s generous donation to the province of a block of land for parkland purposes.

Section 9 of Bill 8, the Justice Statutes Amendment Act provides that

(2) The following is added after section 22 [of the Perpetuities Act]:

Rule against perpetuities not applicable to qualifying environmental trusts

22.1(1) In this section, “qualifying environmental trust” means a qualifying environmental trust as defined in section 1(2)(g.011) of the Alberta Corporate Tax Act.

(2) The rule against perpetuities does not apply to a qualifying environmental trust created after December 31, 2013.

The definition of a qualifying environmental trust (QET) is complex since it involves reference not only to the Alberta Corporate Tax Act, RSA 2000, c.A-15 but also to the QET provisions of the federal Income Tax Act, RSC 1985 (5^th supp.), c 1. The basic idea of a QET is that it is a trust that is established to meet reclamation obligations principally in the natural resources sector. This amendment to Alberta’s Perpetuities Act became necessary (or at least desirable) as a result of the National Energy Board’s consideration of the need to make provision for the reclamation obligations of operators of federally regulated pipelines.

The Supreme Court’s Other Opportunity to Revisit Adverse Effects Discrimination under the Charter: Taypotat v Taypotat

By Jennifer Koshan

On December 18, 2014

In Aboriginal, Constitutional

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: The Supreme Court’s Other Opportunity to Revisit Adverse Effects Discrimination under the Charter: Taypotat v Taypotat

Case Commented On: Taypotat v Taypotat, 2012 FC 1036; rev’d 2013 FCA 192; leave to appeal to SCC granted 2013 CanLII 83791 (SCC)

A few weeks ago we wrote a post on Carter v Canada (Attorney General), 2012 BCSC 886, rev’d 2013 BCCA 435, leave to appeal to SCC granted 2014 CanLII 1206 (SCC), predicting what the Supreme Court might decide on the issue of whether the prohibition against assisted suicide amounts to adverse effects discrimination against people with disabilities, contrary to section 15(1) of the Charter. We mentioned that Carter is one of two adverse effects cases currently before the Supreme Court. This post will consider the second case, Taypotat v Taypotat.

Taypotat concerns a community election code adopted by the Kahkewistahaw First Nation in Saskatchewan to govern elections for the positions of Chief and Band Councillor. The adoption of the code was controversial and took a number of ratification votes, stemming in part from the fact that it restricted eligibility for these elected positions to persons who had at least a Grade 12 education or the equivalent. Although he had previously served as Chief for a total of 27 years, the Kahkewistahaw election code excluded 74 year old Louis Taypotat from standing for election because he did not have a Grade 12 education. He had attended residential school until the age of 14 and had been assessed at a Grade 10 level. His nephew, Sheldon Taypotat, was the only eligible candidate for Chief, and he won the election by acclamation. In an application for judicial review, Louis Taypotat challenged the eligibility provision and the election results under section 15(1) of the Charter.

Imposing Limits on the Public’s Right to Access Transit Services: Is the Alberta Court of Appeal’s Train of Thought in the Case of R v. S.A. on the Right Track?

By Sarah Hamill

On December 16, 2014

In Constitutional, Municipal Law

By: Ola Malik and Sarah E. Hamill

PDF Version: Imposing Limits on the Public’s Right to Access Transit Services: Is the Alberta Court of Appeal’s Train of Thought in the Case of R. v. S.A. on the Right Track?

Case Commented On: R. v. S.A., 2014 ABCA 191, leave denied December 11, 2014 (SCC)

The trilogy of decisions in R. v. S.A. discusses the limits that may be placed on the public’s right to access transit services. Initially, S.A.’s Charter arguments succeeded at trial (2011 ABPC 269 (SA (ABPC)), but she lost the subsequent appeal at the Court of Queen’s Bench (2012 ABQB 311 (SA (ABQB)) and, after having been granted leave from that decision to the Court of Appeal (2012 ABCA 323 (SA (leave application)), she ultimately lost at the Court of Appeal (2014 ABCA 191 (SA (ABCA)). On December 11, 2014, the Supreme Court of Canada denied leave to appeal. This decision has been the subject of previous posts on ABlawg here, here, and here.

In R. v. S.A., a thirteen year old girl was issued a Notice Not to Trespass under Alberta’s Trespass to Premises Act, RSA 2000, c T-7 (TPA) after she assaulted another youth at a train station. She was subsequently convicted of that offence. Edmonton Transit Service (ETS) issued the Notice, and banned S.A. from being on any ETS property for a period of 6 months. Although not obvious from the text of the Notice, it could be modified on application by the affected party to allow access to public transit for specified purposes and times, such as to attend school. With the help of a youth worker, S.A. sought, and was granted those modifications for certain hours during the week. S.A. was not ticketed on occasions where she used transit to travel to school, appointments, or for other “legitimate” purposes. She admitted to using ETS property on occasions which were subject to the ban. Several months following the issuance of the Notice, S.A. was found on ETS property and was charged with trespass under the TPA.