ABLawg

By: Martin Olszynski

PDF Version: What the ELA Tells Us About Alberta’s New Monitoring Agency

Developments commented on: Government of Canada announces that a new operator for the Experimental Lakes Area has been secured; Appointment of Chair and Vice-Chair of Alberta’s Environmental Monitoring, Evaluation and Reporting Agency’s Board

This past Tuesday, the Canadian and Ontario governments, together with the Winnipeg-based International Institute for Sustainable Development (IISD) announced that an agreement had been reached to transfer responsibility for the Experimental Lakes Area (ELA) from the federal Department of Fisheries and Oceans (DFO) to the IISD. Many readers will know that the ELA is the world-renowned research facility located in northern Ontario where since 1968 freshwater ecologists and other scientists have conducted numerous important and unique whole-lake experiments, including one by a then-recent Rhodes Scholar named David Schindler that resulted in the phasing out of phosphorus additives in cleaning products. These same readers will also likely know that DFO’s funding for the ELA, a whopping $2 million per year, was cut as part of the (in)famous 2012 federal budget (which also took an axe to the National Roundtable on the Environment and Economy). What readers might not know, however, is what these events tell us about the potential success of Alberta’s new independent monitoring agency, the Alberta Environmental Monitoring, Evaluation and Reporting Agency (AEMERA).

The Decision in Smith v St. Albert (City): An example of a Municipality’s Expansive Powers to Regulate Just About…Everything?

By Ola Malik

On March 28, 2014

In Constitutional, Municipal Law

By: Ola Malik and Theresa Yurkewich

PDF Version: The Decision in Smith v St. Albert (City): An example of a Municipality’s Expansive Powers to Regulate Just About…Everything?

Case commented on: Smith v St. Albert (City), 2014 ABCA 76

In our system of cooperative federalism, it is well settled that limiting a government’s powers to the boundaries of its jurisdiction is a futile exercise. The dual aspect of a single jurisdictional subject matter is a reality for any federal system. It is more than likely that any one single jurisdictional subject matter can be shared by several different levels of government without leading to outright conflict. The courts’ modern approach to resolving the overlap is to recognize the dual aspect of a single subject matter, so long as the subservient legislation does not adversely affect or impair any vital element of the core competence of, or conflict with, legislation enacted by the higher level of government (Canadian Western Bank v Alberta, [2007] 2 SCR 3).

Hate Speech and Human Rights in Alberta

By Jennifer Koshan

On March 26, 2014

In Human Rights

By: Jennifer Koshan

PDF Version: Hate Speech and Human Rights in Alberta

Motion commented on: Motion 502 (Alberta Legislative Assembly, March 17, 2014)

It was a tumultuous time in the Alberta Legislature last week, culminating with the resignation of Alison Redford as Premier (for an excellent recap see Susan on The Soapbox). And of course there were significant events at the national level as well, with the resignation of Jim Flaherty as finance minister and the Supreme Court of Canada’s decision that Marc Nadon was ineligible for appointment to its ranks. Readers therefore may be forgiven if they missed last week’s debate in the Alberta Legislature on the repeal of section 3(1)(b) of the Alberta Human Rights Act, RSA 2000, c A-25.5 (AHRA).

Decision of the High Court of Australia of Interest to Canada’s Energy Bar

By Nigel Bankes

On March 25, 2014

In Oil & Gas

By: Nigel Bankes

PDF Version: Decision of the High Court of Australia of Interest to Canada’s Energy Bar

Case Commented On: Electricity Generation Corporation v Woodside Energy Ltd, [2014] HCA 7

In this majority decision the High Court of Australia (HCA) concluded that the obligations of a seller under a gas purchase agreement (GSA) to use “reasonable endeavours” to provide the purchaser with a supplemental maximum daily quantity of gas (SMDQ) in addition to an agreed maximum daily quantity of gas (MDQ) did not require the seller to provide any gas at the SMDQ price when market opportunities emerged which afforded the seller the opportunity to sell all its available production beyond MDQ at a much higher price. While any case such as this turns on the particular language of the GSA in question, including the surrounding circumstances known to the parties and the commercial purpose or objects to be secured by the agreement, the case serves as a reminder that terms such as “best efforts” or “reasonable endeavours”, at least when viewed in the self-seeking paradigm of contract, may not offer much comfort to the counterparty in this sort of commercial arrangement.

What does Fearn v Canada Customs add to OPCA jurisprudence?

By Admin

On March 24, 2014

In Civil Procedure: New Rules of Court, Criminal

By: Admin

PDF Version: What does Fearn v Canada Customs add to OPCA jurisprudence?

Case commented on: Fearn v Canada Customs, 2014 ABQB 114 (CanLII)

The leading case on Organized Pseudolegal Commercial Argument (OPCA) litigation is the Alberta Court of Queen’s Bench decision of Justice John Rooke in Meads v Meads, 2013 ABQB 571 (CanLII) (summarized here). In Fearn v Canada Customs, Justice W A Tilleman very deliberately builds on Meads and develops the court’s responses to OPCA litigants in two ways. First, Fearn sets out guidelines for awarding costs against OPCA defendants in criminal proceedings, a context in which costs are very rarely awarded (at paras 113-139). Second, Fearn adds to what Meads had to say about when OPCA concepts and litigation strategies might amount to contempt of court, whether civil or criminal contempt (at paras 140-256). In this regard, Justice Tilleman identifies some OPCA strategies which, in and of themselves, are prima facie civil contempt. He also urges the use of criminal contempt prosecutions against some of the activities of OPCA “gurus”, i.e., those who sell instructional material and training in OPCA schemes.

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