ABLawg - - Page 371

Case considered: F.N. v. McGechie, 2009 ABQB 625

PDF version: The public and private duties of opposing counsel

Alberta courts have consistently held that misconduct by counsel in the course of litigation will not normally be the basis for liability to the opposing party in that litigation. While sometimes duties to opposing parties exist – as, for example, in the tort of malicious prosecution – the Alberta Court of Appeal in German v. Major (1985), 62 A.R. 2 (C.A.) made it clear that the duties of the lawyer to the court and to the public do not automatically translate into duties to opposing parties.

Human Rights, Police and Tenancy: A Troubling Mix?

By Linda McKay-Panos

On November 23, 2009

In Human Rights, Property

Case considered: Beaverbone v. Sacco, 2009 ABQB 529

PDF version: Human Rights, Police and Tenancy: A Troubling Mix?

A recent decision of Justice Joanne Veit of the Court of Queen’s Bench brings to light the potential interrelationship between landlord and tenant legislation, human rights legislation and the powers of the police-both generally and under the new Safer Communities and Neighbourhoods Act S.A., 2007, c. S-0.5 (“SCAN“). Before discussing the disturbing facts of the case, it is useful to discuss the legislation that could apply.

The Supreme Court of Canada Denies Leave in Brookfield

By Nigel Bankes

On November 20, 2009

In Oil & Gas, Supreme Court of Canada

Cases considered: Brookfield Bridge Lending Fund Inc. v. Vanquish Oil and Gas Corporation, 2008 ABQB 444, reversed 2009 ABCA 99, leave to appeal denied November 19, 2009

The Supreme Court of Canada has denied leave to appeal to the joint operators in the Brookfield Bridge case. The case involves the circumstances under which a joint operator might be able to establish a constructive trust over assets of the operator other than those already impressed with an express trust by the language of clause 507 of the CAPL Operating Procedure in a situation where the operator expends monies from the commingled account for its purposes.

Staying Arbitration Proceedings under Section 7(5) of the Arbitration Act

By Jonnette Watson Hamilton

On November 18, 2009

In Arbitration, Supreme Court of Canada

Case considered: Lamb v. AlanRidge Homes Ltd., 2009 ABCA 343

PDF version: Staying Arbitration Proceedings under Section 7(5) of the Arbitration Act

Lamb v. AlanRidge Homes Ltd. is an interesting case, in part because the Alberta Court of Appeal calls upon the Alberta legislature to review and amend section 7 of the Arbitration Act, R.S.A. 2000, c. A-43, a section the court criticizes (at para. 16) as “far from a model of clarity.” Calls for legislative action by the courts are not that common. The case is also interesting because section 7 is perhaps the provision most often used by the courts, as it is the provision that requires a court to stay a court action when asked to do so by a party to an agreement to arbitrate.It is, however, a section rarely considered by the Court of Appeal because subsection 7(6) provides that there is no appeal from an order of the Court of Queens’ Bench staying an action or refusing a stay under section 7. The case is also interesting because Alberta’s Arbitration Act is based upon the Uniform Arbitration Act which was prepared by the Uniform Law Conference of Canada in 1989, as were the arbitration statutes in six other provinces. Section 7 was carefully drafted and debated by the Commissioners. It seems somewhat odd to think that, twenty years later, there are basic problems with interpreting and applying that provision.

The problem of Locus Standi at the Energy Resources Conservation Board: A Diceyan solution

By Shaun Fluker

On November 17, 2009

In Administrative Law, Natural Resources

Case considered: Kelly v. Alberta (Energy Resources Conservation Board, 2009 ABCA 349

PDF Version: The problem of Locus Standi at the Energy Resources Conservation Board: A Diceyan solution

Introduction
A person must have ‘standing’ to oppose an energy project being considered for approval by the Alberta Energy Resources Conservation Board (ERCB). In January 2009 the ERCB denied standing to Susan Kelly, Linda McGinn, and Lillian Duperron in relation to an application by Grizzly Resources to drill two sour gas wells near their residences. All three applicants reside outside the designated 2.11 km area emergency planning zone (EPZ) surrounding the gas wells and designated by Grizzly pursuant to ERCB Directive 071 – Emergency Preparedness and Response Requirements for the Petroleum Industry. Directive 071 defines an EPZ as the area surrounding a sour gas well that due to its proximity requires an emergency response plan from the well licensee. The delineation of an EPZ by and large defines the applicant’s consultation requirements set by the ERCB and, as I note below, it also informs the ERCB’s interpretation of the standing test in section 26(2) of the Energy Resources Conservation Act, R.S.A. 2000, c. E – 10. The distinguishing feature in this case involves the relatively new requirement in Directive 071 for sour gas well licensees to model a protective action zone (PAZ) which anticipates the movement of a sour gas plume upon release from the well. Kelly, McGinn and Duperron reside within the designated PAZ modelled by Grizzly, which covered a larger area than the EPZ. This fact proved significant in the subsequent Alberta Court of Appeal proceedings.