Lawyer, Not Intervenor

Case considered: R. v. B.P., 2010 ABQB 204

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In R. v. B.P., 2010 ABQB 204, Madam Justice Strekaf denied intervenor status to the former lawyer for the appellant accused. The accused had entered a plea to a charge of possession of a weapon for a dangerous purpose. He sought to have the plea set aside on the basis of ineffective assistance by his trial lawyer, Mr. McAviney. Mr. McAviney sought intervenor status in the appeal on the basis that the argument for ineffective assistance of counsel gave him a “direct interest in the outcome of the case” (B.P. at para. 8). He suggested that the “real lis” of the appeal was between Mr. McAviney and the accused, rather than between the accused and the Crown.

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Water management planning and the Crown’s duty to consult and accommodate: the Court of Appeal rejects First Nations’ application for judicial review of the South Saskatchewan Water Management Plan

Case considered: Tsuu T’ina Nation v Alberta (Environment), 2010 ABCA 137

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The Court of Appeal, in a reasons for judgement reserved decision written by Justice Clifton O’Brien on behalf of a unanimous three person panel (Justices Ellen Picard and Patricia Rowbotham concurring), has rejected the challenge made by two First Nations, the Tsuu T’ina and the Samson Cree, to the South Saskatchewan Water Management Plan (SS WMP). The First Nations challenged the Plan on the basis that the Crown had not fulfilled its constitutional duty to consult and accommodate when it developed and adopted that Plan. The Court found that: (1) the Crown did have a duty to consult (certainly with respect to the Tsuu T’ina, less clearly so with respect to the Samson Cree, at para.70), (2) the content of the duty to consult was at the very low end of the scale “having regard to the nature of the proposed government action, the seriousness of the appellants’ rights and claims, and the potential adverse impacts upon those rights and claims” (at para. 95), and (3) the duty to consult had been satisfied (at paras 130 and 136).

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Filling the Gap: The Proposed “Disposition of Regulated Property Regulation”

Disposition of Regulated Property Regulation (Draft) AR 4570 Draft DRReg 2010 03 31 (available by Email request)

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On March 31, 2010 the Alberta government issued a draft regulation pursuant to the Alberta Utilities Commission Act, S.A. 2007, c. A-37.2 (“AUCA”), the Disposition of Regulated Property Regulation (Draft) (“Draft Regulation”). The power to enact regulations is contained in s. 75 of the AUCA, which gives the Lieutenant-Governor in Council the power to make regulations “adding to, clarifying, limiting or restricting” any of the powers granted pursuant to the AUCA. In this case the Draft Regulation is stated expressly to operate as “an addition to” powers granted to the AUC under the Gas Utilities Act, R.S.A. 2000, c. G-5 and the Public Utilities Act, R.S.A. 2000, c. P-5. (Draft Regulation, s. 2(1)).

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Legal costs can be an issue in human rights cases

Case considered: Canadian Human Rights Commission v. Attorney General of Canada, et al., 2009 FCA 309, leave to appeal to Supreme Court of Canada granted, SCC Bulletin April 23, 2010, #33507, 2010 CanLII 20527

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In the past few years, the issue of whether and how much legal costs should be awarded in human rights cases has arisen several times in Alberta (see my post on Boissoin v. Lund, for example). The costs issue has also arisen in a federal human rights case and will soon be addressed by the Supreme Court of Canada.

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Doubts about Arbitrator Immunity

Case considered: Flock v. Beattie, 2010 ABQB 193

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Can arbitrators be sued if they perform their duties negligently? Can they be sued if they breach their contract with the disputing parties? These questions were recently asked and answered in Flock v. Beattie, heard by Justice Earl C. Wilson of the Alberta Court of Queen’s Bench. It is usually assumed that the law granting arbitrators’ immunity to actions in tort and contract is well settled; the case cited for that proposition is the old English case of Pappa v. Rose (1872) LR 7 C.P. 525 (Ex Ch.). Despite this complacency, Justice Wilson’s decision appears to be a rarity in Canada with its express grant of immunity to an arbitrator. In this post, I contend that the precedent-based argument in favour of extending the doctrine of judicial immunity to arbitrators is a weak one, the statutory argument against extending such immunity needs to be addressed, and the policy arguments on the no-immunity side have yet to be examined.

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