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Ontario Court of Appeal Confirms that the Courts Have Some Residual Jurisdiction Over Natural Gas Storage Matters

On September 27, 2013

PDF Version: Ontario Court of Appeal Confirms that the Courts Have Some Residual Jurisdiction Over Natural Gas Storage Matters

Case Commented On: 2195002 Ont. Inc. v Tribute Resources Inc, 2013 ONCA 576

In this decision the Ontario Court of Appeal confirmed the conclusion reached in two separate applications before the Superior Court of Justice in Ontario related to a gas storage matter. For my post on these two decisions see here.

One decision, Tribute Resources v 2195002 Ontario Inc, 2012 ONSC 25 dealt with the jurisdiction of the Superior Court to consider the matter, the argument being that all gas storage issues should be litigated before the Ontario Energy Board (OEB) because of the preclusive clauses in the Ontario Energy Board Act, SO 1998, c.15 and the decision of the Ontario Court of Appeal in Snopko v Union Gas Ltd, 2010 ONCA 248, the subject of an earlier post here. A second decision, that of Justice Helen Rady in 21955002 Ontario Inc v Tribute Resources Inc 2012 ONSC 5412, dealt with the substantive question of whether Tribute could claim storage rights on the basis of an oil and gas lease and a unitization agreement or whether its rights were confined to such rights as it held under a gas storage lease which lease the Ontario Court of Appeal in an earlier action held to have expired: Tribute Resources v McKinley Farms, 2010 ONCA 392, also the subject of a previous ABlawg post here.

Alberta’s New Wetland Policy as a Conservation Offset System

By Dave Poulton

On September 25, 2013

In Water Law

PDF Version: Alberta’s New Wetland Policy as a Conservation Offset System

Policy commented on: Alberta Wetland Policy

The new Alberta Wetland Policy, released on September 10, has already been much commented upon and critiqued. Understandably, such commentary has generally come from the perspective of trends in Alberta’s protection of wetlands. For example, in a recent ABlawg posting Arlene Kwasniak has provided a thorough review of the context, history and some specific features of the new policy. My orientation here is somewhat different. I wish to look at the new approach to wetlands as part of the emerging trend toward market-based conservation, and in particular the use of offset mechanisms to preserve ecosystems and biodiversity.

Update on the Sage-grouse, the Separation of Powers and the Rule of (Ineffective Environmental) Law(s)

By Martin Olszynski

On September 24, 2013

In Administrative Law, Constitutional, Environmental, Protection of Species

PDF Version: Update on the Sage-grouse, the Separation of Powers and the Rule of (Ineffective Environmental) Law(s)

Cases Considered: Alberta Wilderness Association v Canada (Attorney General), 2013 FCA 190, Wildlands League and Federation of Ontario Naturalists v Ministry of Natural Resources (Ontario) et al., Court file no. 400/13, Sandy Pond Alliance to Protect Canadian Waters Inc. v Canada, Court file no. T-888-10

As most readers are probably already aware, last week the federal government announced that it will be issuing an emergency protection order (EPO) under the federal Species at Risk Act SC 2002, c 2 for the Greater Sage-grouse (for the background to this announcement, see my previous post here). Ostensibly, this is a ‘good news’ story about the separation of powers at work: The federal government delayed in taking the measures ecologically necessary and (ultimately) required by law to protect the Sage-grouse; the matter was brought before the courts, which concluded that the government’s actions were illegal; the government is now taking steps to bring itself into compliance.

A Provincial Proposal That Affects All Canadians

By Maureen Duffy

On September 19, 2013

In Constitutional

PDF Version: A Provincial Proposal That Affects All Canadians

Policy commented on: Proposed Quebec Charter of Values

As evidenced by the entries on our Faculty ABlawg, the recent announcement of the proposed “charter” of “values” in Quebec has led to a strong response across Canada. While the proposal itself may be limited to Quebec, it is clear that the impact is wider than that.

Professor Jennifer Koshan described the experience of teaching the famous, Reference re Secession of Quebec, [1998] 2 SCR 217, the day after the charter proposal was announced. I also teach Constitutional Law at the Faculty, and I found that her blog, in turn, provided an excellent teaching resource for discussion in the following class session. As this all occurred during the second week of law school for our first-year students, it was a powerful introduction, both to the ever-changing nature of Constitutional Law, and to the inconsistencies that can emerge under our constitutional system.

Professor Alice Woolley has added her commentary on the ethical implications of the proposal, which adds an innovative dimension to the discourse around this subject. As she points out, this proposal has repercussions well beyond the normative legal issues that have been discussed in much of the public discourse, and she adds an important layer to an interesting debate.

As I read all of the commentary about the proposal, I am reminded of my own personal experiences in Quebec.

Enforcing and Extending Vexatious Litigant Orders

By Jonnette Watson Hamilton

On September 18, 2013

In Civil Procedure: New Rules of Court, Vexatious Litigants

PDF Version: Enforcing and Extending Vexatious Litigant Orders

Case commented on: 1158997 Alberta Inc v Maple Trust Company, 2013 ABQB 483

This decision is interesting for two reasons. First, it illustrates a problem with the vexatious litigant provisions in Part 2.1 of the Judicature Act, RSA 2000, c J-2 or their administration namely, the absence of a list of those declared to be vexatious litigants that is easily and widely available both to those within and those outside the legal profession. As it stands now, it appears that even the clerks of the court do not have a list of who these orders have been made against, even though those orders state that the persons named vexatious litigants cannot commence or continue actions in the specified court without leave of that court. In this case, a company with two such orders made against it (in 2010 and 2011) was able to begin proceedings in 2012 and 2013 without the required leave of the court. Second, it illustrates the application of the seldom used subsection 23.1(4) of the Judicature Act. That subsection allows the court to make an order declaring someone who is not a party to an action to be a vexatious litigant as long as they are someone who, in the opinion of the court, is associated with the person against whom a vexatious litigant order is made. In this decision, five corporate plaintiffs in three different actions were declared to be vexatious litigants, and six individuals, who were not parties to any of the three actions but who were found to be associated with the corporate parties, were also declared to be vexatious litigants. One such individual was twice removed from the parties declared to be vexatious litigants. (The decision might also be noteworthy for a third reason: the number of persons — eleven — declared to be vexatious litigants by one order.)

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