The Alberta Sovereignty Act and the Rule of Law

Posted on June 22, 2022 by Martin Olszynski

By: Martin Olszynski, Jonnette Watson Hamilton, and Shaun Fluker

Matter Commented On: The Alberta Sovereignty Act and the Free Alberta Strategy

PDF Version: The Alberta Sovereignty Act and the Rule of Law

Last week, United Conservative Party (UCP) leadership hopeful Danielle Smith announced that, upon her election as Premier, she would introduce the Alberta Sovereignty Act, legislation described as the “cornerstone” of the Free Alberta Strategy (Strategy), published back in the fall of 2021 (see story here). Briefly, this law would purport to grant the Alberta Legislature the power “to refuse enforcement of any specific Act of Parliament or federal court ruling that Alberta’s elected body deemed to be a federal intrusion into an area of provincial jurisdiction” (Strategy at 22). Legal academics have dismissed the idea as one that would clearly offend Canada’s constitutional order, but to date mainstream media commentary has failed to acknowledge the fundamentally unlawful and undemocratic nature of this proposal. Continue reading →

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Anti-SLAPP Legislation in Ontario Developing into a Procedural Framework Post-Pointes Protection

Posted on June 15, 2022 by Shaun Fluker

By: Shaun Fluker

Case Commented On: Dent-X Canada v Houde, 2022 ONCA 414 (CanLII)

PDF Version: Anti-SLAPP Legislation in Ontario Developing into a Procedural Framework Post-Pointes Protection

This very short post has a simple purpose: to make the point that Alberta is falling behind Ontario (and British Columbia) in the development of anti-SLAPP procedures. Anti-SLAPP legislation provides a procedural mechanism for persons to seek and obtain summary dismissal of litigation solely intended to strategically suppress expression on matters related to the public interest.  Continue reading →

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The Rhetoric of Property and Immunity in the Majority Opinion in the Impact Assessment Reference

Posted on June 8, 2022 by Nigel Bankes

By: Nigel Bankes & Andrew Leach

Opinion Commented On: Reference re Impact Assessment Act, 2022 ABCA 165 (CanLII).

PDF Version: The Rhetoric of Property and Immunity in the Majority Opinion in the Impact Assessment Reference

The Alberta Court of Appeal recently released its opinion in Reference re Impact Assessment Act, 2022 ABCA 165 (CanLII). A majority of the Court found the Impact Assessment Act, SC 2019, c. 28, s 1 [IAA] to be unconstitutional. Our colleague Martin Olszynski has already summarized the majority’s approach and some of the doctrinal difficulties therein.

In this post, we consider in more detail the majority’s lengthy discussion of the historical evolution of the resource rights of the prairie provinces from the creation of Alberta and Saskatchewan as provinces in 1905, through to the Natural Resources Transfer Agreements (NRTAs) of 1930, culminating with the adoption of s 92A (the Resources Amendment) in 1982. Continue reading →

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Fairness and The Corporate Oppression Remedy: What is the Difference Between “Prejudice” and “Unfair Prejudice”?

Posted on May 25, 2022 by Jassmine Girgis

By: Jassmine Girgis

Paper Commented On: “Fairness in The Oppression Remedy: How Does Harm Become Unfair?”, 19th Annual Review of Insolvency Law, 2021 CanLIIDocs 13557

PDF Version: Fairness and The Corporate Oppression Remedy: What is the Difference Between “Prejudice” and “Unfair Prejudice”?

[The National Judicial Institute (NJI) recently held its civil law seminar in Calgary, Alberta, where I participated in a panel on director and officer liability. The following blog captures some of my remarks during that panel, as well as excerpts from a recent paper that formed the basis of those remarks]

People have a strong intuitive sense of fairness – even children sense when an adult has treated them unfairly. Perhaps for this reason, in the context of the corporate oppression remedy, which has fairness as its foundation, spotting oppression in a set of facts can be relatively straightforward. The problem, however, is that while unfairness (and oppression) can be easy to see, why something is unfair or oppressive can be much more difficult to explain. Indeed, oppression remedy jurisprudence often fails on this point – prejudice or harm may be plainly evident on the facts (Kevin P McGuinness, Canadian Business Corporations Law, 3rd ed, vol 3 (Toronto: LexisNexis Canada Inc, 2017) at §21.135), but without guidance the fairness test can seem obscure, and courts sometimes struggle with it. They get the results right, and they give some reasons, but these reasons often do not provide a clear articulation as to what fairness means. Continue reading →

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Carbon Tax Redux: A Majority of the Alberta Court of Appeal Opines that the Impact Assessment Act is Unconstitutional

Posted on May 24, 2022 by Martin Olszynski

By: Martin Olszynski

Opinion Commented on: Reference re Impact Assessment Act, 2022 ABCA 165 (CanLII)

PDF Version: Carbon Tax Redux: A Majority of the Alberta Court of Appeal Opines that the Impact Assessment Act is Unconstitutional

On May 10, 2022, the Alberta Court of Appeal released its lengthy and long-awaited opinion in Reference re Impact Assessment Act, 2022 ABCA 165 (CanLII). A majority of the Court of Appeal (Chief Justice Fraser, Justice Watson, and Justice MacDonald) concluded that the Impact Assessment Act, SC 2019, c 28, s 1 (IAA), Part 1 of Bill C-69, was ultra vires (i.e. beyond) Parliament’s legislative authority pursuant to section 91 of the Constitution Act, 1867. Justice Strekaf concurred in the result. Justice Greckol dissented, concluding that the IAA was indeed constitutional. In my view, Justice Greckol’s dissent is both clearer and more consistent with current Canadian constitutional and environmental law doctrine. The majority’s opinion, on the other hand, is relatively difficult to follow, includes basic doctrinal errors in some parts, and ignores or strays far from precedent in others. In this and other ways, the majority’s approach is strongly reminiscent of its earlier opinion in Reference re Greenhouse Gas Pollution Pricing Act, 2020 ABCA 74 (CanLII) (GGPPA Reference ABCA) (see post here), which was overturned by the Supreme Court of Canada in References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (CanLII) (GGPPA References SCC) (see posts here, here, and here). The federal government has already confirmed that it will appeal the majority’s opinion to the Supreme Court, pending which the IAA regime will remain in force (reference opinions not being strictly binding the same way that judgments are). Continue reading →

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