ABLawg

“Putting” Browne v Dunn into Perspective

On July 24, 2014

By: Dylan Finlay

PDF Version: “Putting” Browne v Dunn into Perspective

Case commented on: R v KWG, 2014 ABCA 124

The century old rule in Browne v Dunn (hereinafter “the rule”) holds that if counsel intends to present evidence contradictory to a witness’s testimony as part of his or her argument, he or she must put this version of events to the witness during cross-examination. But just how far must counsel go to satisfy this requirement? The Alberta Court of Appeal has recently shed some light on this question.

The rule is summarized in R v Pasqua, [2009] AJ No 702, 2009 ABCA 247: “there is a general duty on counsel to put a matter directly to a witness if counsel is going to later adduce evidence to impeach the witness’ credibility or present contradictory evidence.” The purpose of the rule is well-grounded; witnesses should be given an opportunity to respond to competing versions of events. Applying a rigid interpretation to R v Pasqua, it would appear as if during cross-examination, counsel would have to say the words “I put to you …” before presenting the witness with contradictory evidence. This formal and rigid interpretation of the rule has now been clarified, and a more flexible approach adopted.

Curious Interactions between the Charter, Contempt Orders, and the Evolution of Section 1

By Sarah Burton

On July 23, 2014

In Constitutional

By: Sarah Burton

PDF Version: Curious Interactions between the Charter, Contempt Orders, and the Evolution of Section 1

Case commented on: Alberta v AUPE, 2014 ABCA 197

In Alberta v AUPE the Alberta Court of Appeal reviewed the validity of a civil contempt order issued against the Alberta Union of Public Employees (“AUPE”). While ultimately upholding the order for civil contempt, the unanimous Court of Appeal sizably narrowed its provisions to protect AUPE’s freedom of expression. The decision turned on two issues: the admissibility of televised news reports as evidence, and the constitutionality of court orders that restrict free speech. Of these two issues, the Charter discussion is particularly interesting. The Court of Appeal presented and applied an alternative to the Oakes test, holding that Oakes is ill-suited to challenges that do not involve laws of general application. In addition, the Court curiously failed to consider a critical threshold issue – namely, whether the Charter applied to court orders at all. Thus, Alberta v AUPE not only widens a narrow exception to the Oakes test, it imposes Charter restrictions on contempt orders without discussing its authority to do so.

Private Health Insurance and Charter Section 7

By Linda McKay-Panos

On July 18, 2014

In Constitutional, Human Rights

By: Linda McKay-Panos

PDF Version: Private Health Insurance and Charter Section 7

Case discussed: Allen v Alberta, 2014 ABQB 184

Over the past few years, various courts across Canada have addressed the ambit of the Charter right to life, liberty and security of the person in the context of access to private health insurance. Allen v Alberta, 2014 ABQB 184 (“Allen”) is Alberta’s recent case on this issue.

What Happens When an Insolvent Energy Company Fails to Pay its Rent to a Landowner?

By Shaun Fluker

On July 17, 2014

In Oil & Gas

By: Shaun Fluker

PDF Version: What Happens When an Insolvent Energy Company Fails to Pay its Rent to a Landowner?

Decision commented on: Petroglobe v Lemke, 2014 ABSRB 401

The law in Alberta provides an energy company with the right of surface access on private lands to drill for oil and gas. This access allows the company, among other things, to construct an access road and clear lands for the well site. In most cases, the company and the landowner enter into a surface lease whereby the company agrees to pay rent in exchange for this access. In other cases, surface access is governed by a Right of Entry Order issued by the Alberta Surface Rights Board (website) whereby the company obtains access in exchange for the payment of rent. This case is about what happens when an insolvent company fails to pay its rent.

Leave to Intervene Denied in an Appeal of an Important Freehold Oil and Gas Lease Case

By Nigel Bankes

On July 11, 2014

In Intervenors and Standing, Oil & Gas

By: Nigel Bankes

PDF Version: Leave to Intervene Denied in an Appeal of an Important Freehold Oil and Gas Lease Case

Case commented on: Stewart Estate (Re), 2014 ABCA 222

The Freehold Petroleum and Natural Gas Owners Association (FHOA) applied for leave to intervene in the appeal of the Calder or Stewart Estate litigation (for my post on the trial decision see here). Justice Patricia Rowbotham dismissed the application commenting at the end of her reasons that if FHOA had jurisprudence that it wished to bring to the attention of the Court it could always do so by passing relevant authorities on to the appellants’ counsel.