ABLawg

The Supreme Court of Canada clarifies the role of administrative tribunals in discharging the duty to consult

In the 1950s British Columbia authorized Alcan to develop the Nechako and Kemano Rivers for power purposes to supply Alcan’s aluminum facility at Kitimat. This development occurred in the traditional territory of the Carrier Sekani Tribal Council (CSTC) First Nations. There was no consultation at that time. Since then Alcan has sold excess power from its facilities to BC Hydro (a Crown corporation) and in 2007 the parties negotiated an energy purchase agreement (EPA) to cover the period up until 2034. Sales have been growing in recent years as Alcan has found it more profitable to generate electricity than make aluminum: Kitimat (District) v. British Columbia (Minister of Energy and Mines), 2008 BCCA 81.

Between a Rock and a Hard Place: An Unjust Ending to an Unjust Process for Omar Khadr

By Maureen Duffy

On October 27, 2010

In Criminal, International Law

PDF version: Between a Rock and a Hard Place: An Unjust Ending to an Unjust Process for Omar Khadr

Case Considered: United States v. Khadr (Mil. Com. Oct. 25, 2010) (plea agreement, not yet published)

Confirming speculation that has been circulating for some time, Omar Khadr pled guilty on October 25, 2010, to all charges before a U.S. Military Commission proceeding. Specifically, the charges to which he pled included murder in violation of the laws of war, attempted murder in violation of the laws of war, providing material support to terrorism, conspiracy, and spying. (U.S. Department of Defense, News Release, Detainee Pleads Guilty at Military Commission Hearing (25 Oct. 2010)(“DoD News Release“). Canada’s role in the agreement remains murky amongst conflicting reports as to whether that government has agreed to Khadr serving seven years of an eight-year sentence in Canada. (Bryn Weese and Brian Lilley, After one year, Canada will welcome back Khadr (25 Oct. 2010), Toronto Sun; see also Carol Rosenberg, Canadian pleads guilty to war crimes at Guantánamo court (25 Oct. 2010), Miami Herald). In spite of statements by Dennis Edney, one of Khadr’s Edmonton-based lawyers, that Khadr accepted the plea deal because Canada agreed to allow him to serve the last seven years of his term in Canada, Canadian officials have not publicly confirmed this to be the case, continuing to insist that the matter is between Khadr and the United States. Public Safety Minister Vic Toews stated, after the agreement was announced, that Khadr, like any other Canadian imprisoned in the United States, has a right to apply for repatriation to serve the remainder of his sentence in Canada. (Steven Chase, Khadr has ‘right to apply’ for repatriation: Public Safety Minister (25 Oct. 2010), The Globe and Mail).

The problem of Locus Standi at the Energy Resources Conservation Board: Leave to appeal granted in Kelly #2

By Shaun Fluker

On October 25, 2010

In Environmental, Intervenors and Standing

PDF version: The problem of Locus Standi at the Energy Resources Conservation Board: Leave to appeal granted in Kelly #2

Case Considered: Kelly v. Alberta (Energy Resources Conservation Board), 2010 ABCA 307

On October 15, 2010 the Court of Appeal granted leave to Susan Kelly and Lillian Duperron to appeal the decision of the Energy Resources Conservation Board (ERCB) denying them an opportunity to oppose the drilling of a sour gas well. West Energy proposes to drill the well at a location approximately 6 kilometers from their respective residences. Justice Frans Slatter granted leave to appeal on two questions, one of which concerns the proximity between a residence and the contested well and its application towards whether a person’s rights may be directly and adversely affected by the well. Readers not familiar with the law concerning standing to oppose an energy project being considered by the ERCB may wish to consult previous ABlawg posts for background on this matter (For an overview and links to previous postings see Nickie Vlavianos’ July 2010 ABlawg post, “Still more questions about standing before the ERCB“).

When is Delay “Undue” under Section 7(2)(d) of the Arbitration Act?

By Jonnette Watson Hamilton

On October 23, 2010

In Arbitration, Civil Procedure

PDF version: When is Delay “Undue” under Section 7(2)(d) of the Arbitration Act

Case considered: Eiffel Developments Ltd. v. Paskuski, 2010 ABQB 619

In June of 2007, Eiffel Developments Ltd. sued Geoffrey and Lisa Paskuski for $46,667, alleging non-payment under a contract for the construction of the Paskuskis’ home. Three years later, Eiffel asked Jodi L. Mason, Master in Chambers, to deem service of Eiffel’s Statement of Claim on the Paskuskis to be good and sufficient. The Paskuskis made three arguments opposing this simple application: (1) that there was no evidence of service of the Statement of Claim and an absence of service cannot be cured; (2) that even if an absence of service could be cured, there was no evidence to support the relief sought by Eiffel, and (3) that Eiffels’ claim should be stayed on the basis of an arbitration clause in the home construction agreement. The Paskuskis lost all three arguments. This comment will focus on the third argument seeking enforcement of an arbitration agreement.

Are the Creditors Paying Attention?

By Jonnette Watson Hamilton

On October 15, 2010

In Family, Property

PDF version: Are the Creditors Paying Attention?

Case considered: Seguin v Graham and 1356248 Alberta Ltd., 2010 ABQB 582

I find it odd that someone who has failed to file tax returns for the last 14 or so years and who has been pursued by Ontario’s maintenance enforcement program for failing to pay child support for at least 7 years would commence a court action that brings these facts plus details of his annual income and net worth to light in the public forum that is a courtroom. And yet that is exactly what Donald Seguin did when he sued Sandra Graham for unjust enrichment and claimed a constructive trust over her house or, alternatively, a judgment for half of the increase in value of the house over the course of their cohabitation. The subsequent publication of the decision of Mr. Justice R.A. Graesser on the Alberta Courts website and on the Canadian Legal Information Institute‘s (CanLII) website in late September puts the facts out there for anyone to read. Justice Graesser’s consideration of Mr. Seguin’s efforts to avoid the acquisition of assets and his attempts to shelter his assets from his creditors make this rather ordinary case concerning the division of assets on the breakdown of a common law relationship of interest to more than the parties themselves. One has to wonder, however, if the creditors are paying attention?