ABLawg - - Page 355

Case considered: Zhang v. Lin, 2010 ABQB 420

Zhang v. Lin raised the question of whether a divorce granted in Texas should be recognized in Alberta. Interestingly, the court determined that it should refuse recognition of the Texas decree because it violated Canadian public policy. In the past, such a defence has been seen as more of a theoretical than a real possibility. In Zhang, however, the court came to that conclusion very readily. What concerned the Alberta court was not so much the divorce itself but the apparent lack of corollary relief by way of child and spousal support available to the respondent in Texas.

Appealing the Remedy Granted by an Arbitration Award

By Jonnette Watson Hamilton

On August 23, 2010

In Arbitration

PDF version: Appealing the Remedy Granted by an Arbitration Award

Case considered: Fuhr Estate v. Husky Oil Marketing Company, 2010 ABQB 495

This decision by Mr. Justice Don J. Manderscheid answers a novel question: whether section 49(7) of the Arbitration Act, R.S.A. 2000, c. A-43 allows an applicant to appeal the remedy awarded by an arbitrator without raising a question of law or seeking leave to appeal under section 44? Section 49(7) provides, in part, that “[i]f the award gives a remedy that the court . . . would not grant in a proceeding based on similar circumstances, the court may . . . grant a different remedy requested by the applicant. . .”. In Fuhr Estate v. Husky Oil Marketing Company, the applicant, Mrs. Fuhr, did not want the damages awarded her; she wanted specific performance. She argued she could by-pass the appeal provisions of the Arbitration Act and rely on section 49(7) alone for the remedy she wanted. It seems that section 49(7) has not previously been subjected to judicial scrutiny, even though an identical provision appears in the domestic arbitration legislation of Manitoba, New Brunswick, Ontario and Saskatchewan. Neither does the section appear to have been considered in the literature; the standard texts usually merely repeat what section 49(7) states. While the decision is also noteworthy because Justice Manderscheid adopts a rather unorthodox interpretation of section 44, this comment will focus on the section 49(7) issues.

Sentencing for Spousal Sexual Violence: Different but Equal

By Jennifer Koshan

On August 20, 2010

In Criminal, State Responses to Violence

PDF version: Sentencing for Spousal Sexual Violence: Different but Equal

Cases considered: R. v. D.J.D., 2010 ABCA 207; R. v. D.J.D., 2009 ABPC 216

Until 1983, the definition of rape in Canada excluded offences committed by a husband against his wife. In that year, reforms to the Criminal Code did away with the offence of rape altogether, and implemented a new scheme of sexual offences that were gender neutral and could, explicitly, be committed by one spouse against another (see Bill C-127, Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980 81 82 83, c. 125, s. 246.8). The issue of spousal sexual violence has received little specific attention in Canada since the reforms of 1983. However, the African and Canadian Women’s Human Rights Project (ACWHRP) – a project involving lawyers, activists and academics in Canada, Ghana, Kenya and Malawi – is presently studying the lessons learned from the criminalization of marital rape in Canada in the context of efforts to criminalize this form of violence in the 3 African countries. I am completing a review of case law in Canada – some 275 decisions over the past 27 years – which shows that cases of spousal sexual violence still continue to be treated differently from other sexual assault cases when it comes to issues of consent, mistaken belief in consent, evidentiary matters, and sentencing. On the latter issue, a recent case of the Alberta Court of Appeal, R. v. D.J.D., brings to light some of the considerations faced by judges when sentencing offenders for spousal sexual violence.

Another kind of trial delay

By Amanda Winters

On August 17, 2010

In Constitutional, Criminal

PDF version: Another kind of trial delay

Case considered: R. v. Asiala, 2010 ABQB 450

Earlier this year I wrote an ABlawg post discussing s. 11(b) of the Canadian Charter of Rights and Freedoms in relation to three Alberta cases decided in late 2009 (see A policy of delay? The cost of s.11 (b) Charter violations in Alberta). Section 11(b) of the Charter guarantees the right to be tried within a reasonable time. In my post, I noted that trial delays appeared to be a growing trend that should be closely monitored by the citizenry, particularly as they relate to government policy in allocating budgetary resources for judicial services. What I neglected to say is that sometimes delay has nothing to do with government policy, lack of judicial resources or even the tactical advantage gained by one or both sides in a case. On rare occasions delay is caused by the human element of the judicial system.

The Supreme Court of the United Kingdom (fka the House of Lords) Decides an Oil and Gas Case

By Nigel Bankes

On August 12, 2010

In Carbon Capture and Storage, Natural Resources, Oil & Gas, Property

By: Nigel Bankes

PDF Version: The Supreme Court of the United Kingdom (fka the House of Lords) Decides an Oil and Gas Case

Case Commented On: Star Energy Weald Basin Limited v Bocardo SA, [2010] UKSC 35

It is not every day, or even every year, that the highest court in the United Kingdom passes judgement in an oil and gas case. But the Supreme Court of the United Kingdom did so at the end of July and while much of the Court’s reasoning turns on the details of the UK’s petroleum legislation, and in particular on the terms of the Crown vesting legislation in that jurisdiction, the Court also had something to say about the common law ownership rights of the surface owner. These comments merit carefully scrutiny in the context of the ongoing debate in Alberta and elsewhere about ownership rights in relation to pore space, an important issue in the context of carbon capture and storage (CCS).

Recognizing Foreign Divorces: The Public Policy Defence

Appealing the Remedy Granted by an Arbitration Award

Sentencing for Spousal Sexual Violence: Different but Equal

Another kind of trial delay

The Supreme Court of the United Kingdom (fka the House of Lords) Decides an Oil and Gas Case