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Canada Ratifies ICSID and Alberta Introduces the Necessary Implementing Legislation

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On November 13, 2013

In International Investment

PDF Version: Canada Ratifies ICSID and Alberta Introduces the Necessary Implementing Legislation

Matters commented on: Canada’s ratification of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the Washington or ICSID Convention) and Bill 40: Settlement of International Investment Disputes Act

On November 1, 2013 Canada deposited its instrument of ratification of the Washington Convention with the secretariat for the International Centre for the Settlement of Investment Disputes (ICSID). The Convention will enter into force for Canada on December 1, 2013. The ICSID Convention, as its name implies, is designed to provide for dispute settlement (binding arbitration or conciliation) of investment disputes between states and investors from other states. The Centre may take jurisdiction over any such dispute by the written consent of both parties. That consent may be given in a specific case or it may be given generally. General consent is frequently given by the terms of a bilateral investment treaty such as the recent agreement that Canada has concluded with China. Article 22 of that agreement (which has yet to enter into force) provides as follows:

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The State of Estate Administration in Alberta

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On November 12, 2013

In Wills and Estates

PDF Version: The State of Estate Administration in Alberta

Report commented on: Alberta Law Reform Institute, Final Report on Estate Administration

In October 2013, the Alberta Law Reform Institute (ALRI) released its Final Report on Estate Administration. It is anticipated that new estate administration legislation will be introduced in the Legislature this fall.

The current Administration of Estates Act, RSA 2000, c A-2 remains relatively unchanged since it was first introduced in 1969. A person trying to administer an estate, however, would find little guidance in the current Act. This is partly due to the fact that the statute, in essence, is a list of exceptions and accretions to the common law without working them into a coherent whole.

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Cancellation of a Nova Scotia Exploration License for Failure to Tender a Work Deposit

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On November 11, 2013

In Oil & Gas

PDF Version: Cancellation of a Nova Scotia Exploration License for Failure to Tender a Work Deposit

Case commented on: Shin Fan F & P Inc v Canada-Nova Scotia Offshore Petroleum Board, 2013 NSSC 341

In this straightforward decision Justice Gregory Warner of the Nova Scotia Supreme Court declined to grant judicial review of a decision of the Canada-Nova Scotia Offshore Petroleum Board to cancel Shin Han’s exploration license (EL) for failure to tender a work deposit.

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New Prosperity Mine Panel Report: A “Liberal and Generous,” “Complex,” and Rigorous Interpretation of CEAA 2012

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On November 8, 2013

In Environmental

PDF Version: New Prosperity Mine Panel Report: A “Liberal and Generous,” “Complex,” and Rigorous Interpretation of CEAA 2012

Report commented on: Report of the Federal Review Panel – New Prosperity Gold-Copper Mine Project (October 31, 2013)

Last Thursday (October 31, 2013), the Canadian Environmental Assessment Agency (the Agency) released the highly anticipated federal panel report for Taseko’s proposed New Prosperity Mine project (New Prosperity Report). As many readers will know, this marks the second time that this particular proponent has been through the federal environmental assessment (EA) process.  A first attempt with respect to what was then referred to simply as the Prosperity Mine project was approved by British Columbia’s Environmental Assessment Office in 2009 but was thwarted in 2010 by several findings of significant adverse environmental effect (SAEE) by an initial federal panel, including the total destruction of Fish Lake, also known as Teztan Biny by the Tsilhqot’in First Nation. (As an aside, the discrepancy between the federal and provincial outcomes was noted at the time and in the ensuing debate over the fate of the since-repealed Canadian Environmental Assessment Act, SC 1992, c-37). Undeterred (and seemingly prompted by the federal government), Taseko quickly revised its project with a view first and foremost towards avoiding the outright destruction of Fish Lake and in 2011 re-submitted it to the federal EA process.  Alas for the company, two deficiency statements and one 24-day public hearing later, it appears to be no closer to realizing its project than it was three years ago, the second federal panel having now concluded that the New Prosperity Mine project is also likely to result in SAEE on several fronts.

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Fundamental Breach and Repudiatory Breach of Contract

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On November 7, 2013

In Contracts

PDF Version: Fundamental Breach and Repudiatory Breach of Contract

Case commented on: John Barlot Architect Ltd. v 413481 Alberta Ltd., 2013 ABQB 388

The doctrine of fundamental breach has caused much confusion, in part because of its relationship to the doctrine of repudiatory breach. The two are entirely different doctrines, but as I tell my students, it doesn’t help that sometimes, the doctrines are merged and the terms used interchangeably.

In effect, the two doctrines are quite separate and the finding of one type of breach leads to a significantly different outcome than a finding of the other. The problem occurs when, as in this decision, the two doctrines are combined and there is no clear indication of the differences between the two. That does not necessarily render the judgment incorrect but it does make for inaccurate references and confusing terminology.

This post will focus on the doctrines of fundamental and repudiatory breach. A shortened version of the facts will be provided, as not all of them are necessary for the purpose of this post.

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