ABLawg

“The proof of the pudding is in the eating” that litigation is not the best way to quantify interim costs.

On January 11, 2012

In Access to Justice, Civil Procedure, Constitutional

PDF version: “The proof of the pudding is in the eating” that litigation is not the best way to quantify interim costs.

Case considered: R v Caron, 2011 ABCA 385

Gilles Caron has been a very present figure before the Alberta courts since ABlawg began posting comments in late 2007 (see here). Caron is challenging the constitutionality of Alberta’s legislation on the basis that the province’s laws are not enacted in both English and French. That issue is now before the Court of Appeal (see 2010 ABCA 343 and here). Caron’s litigation has also involved an access to justice component in that he has pursued interim costs awards to fund his litigation. That issue went to the Supreme Court of Canada, which ruled that the Alberta government was required to fund Caron’s language rights challenge (see 2011 SCC 5, [2011] 1 SCR 78 and here). The lingering question was, to what extent was such funding required? That issue was recently considered by the Alberta Court of Appeal. In a decision written by Justice Jean Côté, Caron was awarded far less funding than he sought for the Court of Appeal litigation, and in the form of a loan rather than a grant (see 2011 ABCA 385).

Giving deference to the adequacy of reasons

By Shaun Fluker

On December 28, 2011

In Administrative Law

PDF version: Giving deference to the adequacy of reasons

Case considered: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62

Earlier this month the Supreme Court of Canada issued its decision in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, upholding the ruling of an arbitrator concerning vacation entitlements in a labour dispute. This unanimous Supreme Court of Canada decision written by Madam Justice Abella has changed the law in Alberta governing judicial review for adequacy of reasons provided by an administrative decision-maker. For earlier commentary and background for this post, readers should review my December 2010 ABlawg entitled “What is the applicable standard of review in assessing the adequacy of reasons?” The issue concerns the measure of judicial deference owed to an administrative decision-maker in reviewing the adequacy of reasons given for decision.

Blow over? Think twice before blaming it on the flu.

By Arlene Kwasniak

On December 21, 2011

In Criminal

PDF version: Blow over? Think twice before blaming it on the flu.

Decision considered: R v Kasim, 2011 ABCA 236.

The Respondent claimed to have drunk no more than 3 or 4 beers between 7 and 8:30 p.m. on September 18, 2008. He was behind the wheel soon after. At about 9 p.m. he complied with a lawful demand for an Intoxilyzer breath sample and the two samples he provided measured 100 mg percent, or 20 mg percent over the legal maximum of 80 mg of alcohol in 100 millilitres of blood. At trial the Respondent testified that his body temperature was elevated as he was suffering from the flu or a fever that day. This testimony was corroborated, and the trial judge accepted it. The Respondent’s expert witness, Dr. Malicky, testified that given the Respondent’s elimination rate, and an elevated body temperature, “his blood alcohol level at the time should have been approximately 36 mg percent if he had three containers of beer, and 60 mg percent if he had four containers of beer” (R v Kasim, [2010] AJ No 969, para 64). The Respondent argued that the test results were therefore askew and that raised a reasonable doubt as to whether he the violated the Criminal Code (RSC, 1985, c C-46). Both the Provincial Court judge and Queen’s Bench summary conviction appeal judge found for the Respondent. By consent order the Crown appealed to the Court of Appeal on a single issue: “The summary conviction appeal judge erred in law in her interpretation of s. 258(1) (c) of the Criminal Code” (CA decision at para 7). These Criminal Code provisions set out presumptions that subject to certain time and other limitations Intoxilyzer readings of blood alcohol are accurate. The provisions also limit permissible challenges to the presumed accuracy.

Waiver of Dispute Resolution under the New Rules

By Jonnette Watson Hamilton

On December 19, 2011

In Civil Procedure: New Rules of Court

PDF version: Waiver of Dispute Resolution under the New Rules

Case considered: IBM Canada Limited v Kossovan, 2011 ABQB 621.

In IBM Canada Limited v Kossovan, Mr. Justice Bryan E. Mahoney provided the first judicial interpretation of an important new provision in the Alberta Rules of Court, Alta Reg 124/2010 (New Rules). The provision in question – Rule 4.16(2) — governs applications to waive the dispute resolution processes mandated by Rule 4.02(e) of the New Rules. As Justice Mahoney notes (at para 4), “[w]hile the New Rules contemplate circumstances wherein the requirement might be waived, as yet, there is little guidance from our Court as to how this Rule is to be interpreted.” Using case law from other jurisdictions that have adopted similar mandatory dispute resolution procedures, this decision begins to provide that guidance. However, as much of that guidance is based on anecdotal evidence and intuitions about the effectiveness of dispute resolution, it is to be hoped that the mandatory dispute resolution provisions of the New Rules will be empirically evaluated for both costs and benefits in the near future.

Carbon Capture and Storage in Alberta: Draft Offset Protocol

By Nigel Bankes

On December 15, 2011

In Carbon Capture and Storage, Climate Change, Environmental

By: Nigel Bankes

PDF Version: Carbon Capture and Storage in Alberta: Draft Offset Protocol

Document and Regulations Commented On: Government of Alberta, Draft Quantification Protocol for the Capture of CO2 and Storage in Deep Saline Aquifers, December 2011; Specified Gas Emitters Amendment Regulation, Alta Reg 139/2007, Alta Reg 127/2011 at pp. 448-451

While there has been some suggestion that the post-Stelmach provincial government is less enthusiastic than its predecessor about carbon capture and storage (CCS) as a silver bullet to deliver on provincial plans to reduce greenhouse gas emissions, the province will go ahead with at least three of the four short-listed CCS projects that are to receive provincial government financial support: the Alberta Carbon Trunkline Project, Shell’s Quest Project and the Swan Hills Synfuels project. The one outstanding project is TransAlta’s (TAU) Project Pioneer. The province has yet to finalize a deal with TAU (and may never do so) but I gather that this has more to do with problems with the technology that TAU\Alstom has been proposing to use than any provincial cold feet.