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Lawyers Who Write Bogus Demand Letters: The Freemen in Our Midst?

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On October 30, 2013

In Ethics and the Legal Profession, Vexatious Litigants

PDF Version: Lawyers Who Write Bogus Demand Letters: The Freemen in Our Midst?

The phenomenon of organized pseudo-legal commercial arguments (OPCA) being used to advance claims not recognized by law has received a great deal of attention in the past year.  From last year’s judgment of Associate Chief Justice Rooke in Meads v Meads, 2012 ABQB 571 [Meads], to the recent occupation of a Calgary apartment by a Freeman-of-the-land who claimed it as an “embassy”, OPCA litigants have disrupted the functioning of the legal system while attracting public attention and interest. In this column I argue that the defining indicia of OPCA are also present in the activities of some lawyers; specifically, in lawyers sending out demand letters based on spurious claims in the hope of extracting funds because of the fear and ignorance of those who receive them.  I will further argue that our failure to address that conduct undermines our moral authority to challenge OPCA litigants and, worse, may contribute to a cultural climate of skepticism about the law’s legitimacy and authority, which helps OPCA to flourish.

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Constitutional Questions and the Alberta Energy Regulator

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On October 24, 2013

In Aboriginal, Administrative Law, Constitutional

PDF Version: Constitutional Questions and the Alberta Energy Regulator

Decisions commented on: (1) ERCB Letter Decision, April 18, 2013, re Fort McKay First Nation, Notice of Question of Constitutional Law; (2) ERCB Letter decision, May 23, 2013, reasons for decision in relation to Fort McKay First Nation, Notice of Question of Constitutional Law; (3) 2013 ABAER 014, Dover Operating Corporation, Application for a Bitumen Recovery Scheme Athabasca Oil Sands Area, August 6, 2013; and (4) Fort McKay First Nation v Alberta Energy Regulator, 2013 ABCA 355

The Alberta Court of Appeal has granted leave to the Fort McKay First Nation (FMFN) to appeal two questions of law or jurisdiction in relation to decisions made by the Energy Resources Conservation Board (ERCB) (the predecessor to the Alberta Energy Regulator (AER)) and the AER itself in approving, subject to the further approval of the Lieutenant Governor in Council, Dover’s application for a major steam assisted gravity drainage (SAGD) bitumen recovery project. The two questions on which leave was granted are as follows:

(a) Whether the Tribunal erred in law or jurisdiction by finding that the question whether approval of the project would constitute a meaningful diminution of the Treaty rights of the Fort McKay First Nation and therefore be beyond provincial competence was not a question of constitutional law as defined in the Administrative Procedures and Jurisdiction Act;

(b) Whether the Tribunal erred in law or jurisdiction by finding that it had no jurisdiction to consider constitutional issues other than those defined as “questions of constitutional law” in the Administrative Procedures and Jurisdiction Act.

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Disclosure of Foreign Assets in Matrimonial Property Actions

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On October 22, 2013

In Property

PDF Version: Disclosure of Foreign Assets in Matrimonial Property Actions

Case commented on: Chikonyora v Chikonyora, 2013 ABCA 320

Had the decision of the Court of Queen’s Bench been allowed to stand in this case, the division of matrimonial property could have become much more difficult for many divorcing spouses in Alberta. They might have had to sue in every jurisdiction in which they held property, whether that was in a province other than Alberta or a country other than Canada. The lower court decision had held that spouses did not have to disclose information about their assets held outside Alberta because the Alberta superior courts had no jurisdiction over those assets. Fortunately an appeal was taken to the Alberta Court of Appeal, which applied the relevant provisions of the Matrimonial Property Act, RSA 2000 c M-8 (MPA), and required disclosure of assets held outside Alberta. In addition to the “potential crisis averted” aspect of this case, it is also an example of how frustrating access to justice can be for self-represented litigants.

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The Vriend Case 15 Years Later

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On October 18, 2013

In Constitutional, Human Rights

By: Jennifer Koshan

PDF Version: The Vriend Case 15 Years Later

Case and Legislation Commented On: Vriend v Alberta, [1998] 1 SCR 493; Alberta Human Rights Act, RSA 2000, c A-25.5

This year marks the 15th anniversary of the Supreme Court of Canada decision in Vriend v Alberta, [1998] 1 SCR 493 [Vriend] in which the Court unanimously held that the lack of protection for discrimination based on sexual orientation in Alberta’s human rights legislation was an unconstitutional violation of Charter equality rights (for a previous post on the Vriend decision by Linda McKay Panos, see here). To celebrate the anniversary Delwin Vriend visited Alberta this week, and his visit included participation in a public forum organized by the Sheldon Chumir Foundation for Ethics in Leadership, as well as a visit to my human rights class at the law school.

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Beyond the Four Corners of the Contract: The Parol Evidence Rule, Implied Terms and the Duty of Good Faith

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On October 14, 2013

In Contracts

PDF Version: Beyond the Four Corners of the Contract: The Parol Evidence Rule, Implied Terms and the Duty of Good Faith

Case commented on: Bhasin v Hrynew, 2013 ABCA 98, leave to appeal granted, 2013 CanLII 53400 (SCC)

This appeal is ultimately about contractual interpretation. It is about the types of obligations, over and above the express terms, that can be brought into the contract and the difficulties created as a result of the assertion that the contract goes beyond its express terms. Importantly, it considers the duty of good faith in the context of commercial relations and, as stated by the Supreme Court of Canada, which has granted leave to appeal, whether such duty could be excluded by an entire agreement clause.

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