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A National Securities Regulator? – No way! says the Alberta Court of Appeal

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On March 24, 2011

In Constitutional, Securities

PDF version: A National Securities Regulator? – No way! says the Alberta Court of Appeal 

Case considered: Reference Re Securities Act (Canada), 2011 ABCA 77

Can the federal government pass legislation to establish and empower a national securities regulator? Essentially, this is the question referred by the Alberta Cabinet to the Alberta Court of Appeal. Specifically, the question relates to the draft National Securities Act, Sessional Paper No. 8 525-403-10. The National Securities Act would mean federal regulation of participants in the Canadian securities industry, federal disclosure rules and limits for raising money from the public, federal regulation of the trading of securities, and federal monitoring and enforcement of these rules to protect the public.

This question, the Alberta Court of Appeal answered with a resounding “No”.

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New Rules of Court Interpreted: Rule 2.10 and Intervenor Status

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On March 23, 2011

In Aboriginal, Civil Procedure: New Rules of Court

Case commented on: R. v. Hirsekorn, 2011 ABQB 156

R. v. Hirsekorn is a summary conviction appeal of convictions for shooting wildlife not in regular season and being in possession of wildlife without a valid permit, contrary to ss. 25(1) and 55(1) of the Wildlife Act, RSA 2000, c. W-10. At trial, Provincial Court Judge F. C. Fisher rejected Hirsekorn’s argument that the charges should be dismissed because he had an unextinguished Métis right to hunt for food under s.35 of the Constitution Act, 1982 (see 2010 ABPC 385). The Blood Tribe and Siksika Nation applied to the Alberta Court of Queen’s Bench for intervenor status in the appeal.

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Access to Justice and Human Rights Cases

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On March 17, 2011

In Access to Justice, Administrative Law, Human Rights

PDF version: Access to Justice and Human Rights Cases 

Case Considered: McClary v Geophysical Services Inc., 2011 ABQB 112

Not being able to afford legal representation occurs quite frequently in civil and criminal legal cases. Some individuals choose to self-represent-either because they cannot afford legal counsel, or because they want to present their own cases. Inability to afford legal counsel has become a critical problem that leads to an acute lack of access to justice in Canada. In Alberta, recent cuts to the Legal Aid program will likely have serious effects on people with both civil and criminal issues. Even in tribunal matters, or matters where one is not required to be legally represented, such as the human rights process in Alberta, not having legal representation can have important consequences, both for the courts and for the litigants. While in some matters at the Commission (and later on appeal to the courts), the Act permits counsel to be assigned to represent and advise complainants, McClary was not such a matter. Also, it is important to note that in all matters before the Commission, respondents must hire their own legal representation should they desire it. The limited availability of legal counsel for parties in human rights cases exists partly because the human rights process is supposed to be user-friendly and low-cost to complainants and respondents.

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Street Preaching and the Charter: The City of Calgary’s Appeal in Pawlowski

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On March 15, 2011

In Constitutional, Municipal Law

PDF version: Street Preaching and the Charter: The City of Calgary’s Appeal in Pawlowski 

Case commented on: R. v. Pawlowski, 2011 ABQB 93

Artur Pawlowski, Calgary’s self-professed street preacher, was acquitted of a number of provincial and by-law charges related to his preaching and other activities in December 2009. Judge Allan Fradsham of the Alberta Provincial Court found that the charges violated several of Pawlowski’s Charter rights, and could not be justified under s. 1 of the Charter (2009 ABPC 362). I argued that Justice Fradsham’s ruling may have been overly expansive in its approach to the Charter (see here). The City appealed the ruling in relation to the bylaw charges, and had some success at the Alberta Court of Queen’s Bench. However, the decision of Justice R.J. Hall on appeal raises some analytical questions that I will discuss towards the end of this post.

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New Rules of Court Interpreted: Rule 5.33, Disclosure of Information

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On March 14, 2011

In Civil Procedure: New Rules of Court

Case considered: Italian Centre Shop South Ltd. v. Moreira, 2011 ABQB 41

The Plaintiff, Italian Centre Shop South Ltd., sued the Defendant, Marcia Moreina, for allegedly stealing $173, 597.39 over the course of her employment with the Plaintiff. The Defendant was also charged criminally for defrauding the Italian Centre Shop South Ltd. of more than $5000. The Plaintiff applied for summary judgment and the Defendant applied for a stay of civil proceedings pending the resolution of criminal proceedings arising from the same facts.

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