Alphabow’s Regulatory Appeal: The AER Hearing Panel Misunderstood Their Job

By: Drew Yewchuk

Decision Commented on: Alphabow Energy Ltd: Regulatory Appeals of AER Orders (Regulatory Appeals 1943516 and 1943521), 2024 ABAER 001 (Alphabow)

PDF Version: Alphabow’s Regulatory Appeal: The AER Hearing Panel Misunderstood Their Job

This is a comment on an Alberta Energy Regulator (AER) hearing panel decision following a regulatory appeal of enforcement action against a company that was failing to meet the AER’s expectations for regulatory compliance.

Because of an administrative law mistake by the AER hearing panel, the decision is not what it should be. The AER’s handling of financially troubled corporations with large closure liabilities, significant unpaid debts, compliance troubles, and financial problems is a multi-billion dollar policy problem for Alberta. The decision should have assessed the AER’s policy approach to one of these companies, but the hearing panel misunderstood their role and assessed only procedural fairness and ‘reasonableness’ in the restricted sense that word applies on judicial review. As a result, the decision is less interesting than it should be, since it only finds that what the AER did was legal and says nothing about whether it was good policy or in the public interest. Continue reading →

The Online Harms Bill – Part 1 – Why We Need Legislation

By: Emily Laidlaw

Matter Commented On: Bill C-63, An Act to enact the Online Harms Act, to amend the Criminal Code, the Canadian Human Rights Act and An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service and to make consequential and related amendments to other Acts, 1st Sess, 44th Parl, 2024 (Online Harms Bill)

PDF Version: The Online Harms Bill – Part 1 – Why We Need Legislation

This is the first in a series of posts that will unpack the Online Harms Bill C-63. In this first post, I will explain how and why we got here, as there is a significant amount of misunderstanding about what this Bill is about and why we might need it before the merits of this Bill are examined. It also important to contextualize the Bill within the law of intermediary liability, the law that applies to technology companies that facilitate transactions between third parties. Unlike many other jurisdictions, Canada operates in a relative legal vacuum in this space. Continue reading →

Preliminary Thoughts on the Implications of the Children, Youth and Families Reference for the Lands Reserved Head of Section 91(24)

By: Nigel Bankes

Case Commented on: Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (CanLII).

PDF Version: Preliminary Thoughts on the Implications of the Children, Youth and Families Reference for the Lands Reserved Head of Section 91(24)

The Children, Youth and Families Reference is a decision on the “Indians” head of section 91(24), a head that the Supreme Court of Canada has reframed as “Indigeneity, that is, Indigenous peoples as Indigenous peoples” (Reference at para 94). The Court takes a broad view of the scope of this head of federal power. It also reminds us that the double aspect doctrine means that so long as federal legislation is firmly connected to a federal head of power it can compete with and trump provincial legislation grounded on provincial heads of power addressing the same subject area (e.g. child and family welfare), so long as the federal legislation is addressed to the federal aspect of that subject matter. Furthermore, the Reference makes it clear that Parliament may accord the laws of Indigenous Nations the authority of federal law while the Nations await judicial confirmation that section 35 of the Constitution Act, 1982 protects a broad inherent power of Indigenous self-government. This implies that, provided that the federal government has the necessary legal or political motivation, it has the means to back-out provincial laws and create space for Indigenous self-government on a broad range of matters that can be connected to Indigenous peoples as Indigenous peoples. Continue reading →

Premier Smith Converts a Legal Pause on Renewable Energy Projects Into a De Facto Moratorium of Uncertain Duration

By: Nigel Bankes and Martin Olszynski

Matter Commented On: Policy Guidance to the Alberta Utilities Commission, February 28, 2024

PDF Version: Premier Smith Converts a Legal Pause on Renewable Energy Projects Into a De Facto Moratorium of Uncertain Duration

In August 2023, the Government of Alberta (GoA) stunned most commentators and the renewable energy sector in Alberta by announcing that it would be instructing the Alberta Utilities Commission (AUC) to withhold approval of all new renewable energy projects in the province for seven months. We commented on that announcement here: “An Incredibly Ill-Advised and Unnecessary Decision”. Continue reading →

What Did the Court Mean When It Said that UNDRIP “has been incorporated into the country’s positive law”? Appellate Guidance or Rhetorical Flourish?

By: Nigel Bankes and Robert Hamilton

Case commented on: Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (CanLII).

PDF Version: What Did the Court Mean When It Said that UNDRIP “has been incorporated into the country’s positive law”? Appellate Guidance or Rhetorical Flourish?

In its recent reference opinion on the validity of an Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24 (the FNIM Act), the Supreme Court went out of its way to comment on the legal significance of the United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 (the federal UNDRIP Act). The Court did so notwithstanding that legal questions relating to the federal UNDRIP Act were not directly before it, and notwithstanding its own observations in the Reference to the effect that “[t]he task that falls to the Court in the context of a reference invites caution …” (at para 111). That it chose to comment at such length is even more remarkable when one reflects on how reticent the Court seems to have been to comment on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP or Declaration), or international human rights law more generally, in other cases over the last two decades dealing with Indigenous rights. Continue reading →