ABLawg - - Page 372

Case considered: Stout & Company LLP. v. Chez Outdoors Ltd., 2009 ABQB 444

PDF Version: A Web from a Bundle: A Reconstitution of Stout & Company LLP. v. Chez Outdoors Ltd.

“When we try to pick out anything by itself, we find it hitched to everything else in the universe”: John Muir, My First Summer in the Sierra (1911)

John Muir’s famous quote has encapsulated North American conservation thought for nearly 100 years. As environmental science, industry and protected areas movements advanced through the previous century, it became increasingly apparent that one could not separate the constituents of the environment in an attempt to understand or protect them. A holistic view was necessary to counter the destructive effects of increasing human populations and industrialization in Muir’s day. Today we have even more compelling evidence of the profound interconnectedness of the natural world and human systems and the need to view them inclusively.

Prosecutorial Accountability?

By Alice Woolley

On November 12, 2009

In Criminal, Ethics and the Legal Profession, Supreme Court of Canada

Case considered: Miazga v. Kvello Estate, 2009 SCC 51

PDF Version: Prosecutorial Accountability?

In its 2002 decision in Law Society of Alberta v. Krieger, 2002 SCC 65, the Supreme Court of Canada affirmed the ability of the Law Society of Alberta to regulate misconduct by Crown prosecutors. It held, however, that where the misconduct relates to the exercise of prosecutorial discretion, the Law Society’s jurisdiction is limited to circumstances where the prosecutor has acted in bad faith. The Court reiterated that, in general, the exercise of prosecutorial discretion is entitled to deference, and may only be reviewed by the Court in circumstances of “flagrant impropriety” (Krieger, para. 49).

In its recent judgment in Miazga v. Kvello Estate, the Supreme Court has affirmed this highly deferential approach to prosecutorial discretion. The Court held that to establish liability for malicious prosecution the plaintiff must demonstrate a) that the defendant was responsible for the prosecution; b) that the legal proceedings ultimately resolved in favour of the plaintiff; c) that the defendant did not have reasonable and probable grounds for a prosecution, objectively speaking (that is, that the defendant’s professional judgment should have indicated that it was not possible that “proof beyond a reasonable doubt could be made out in a court of law” (para. 63); at this stage the prosecutor’s subjective belief in guilt is irrelevant); and, d) that the defendant acted for some improper purpose in bringing forward the prosecution – that the defendant “deliberately intended to subvert or abuse the office of the Attorney General or the process of Criminal Justice” (para 89).

When, if at all, does a Pooling Agreement Trigger an Area of Mutual Interest Obligation?

By Nigel Bankes

On November 10, 2009

In Oil & Gas

Case considered: Hunt Oil Company of Canada Inc v. Shell Canada Limited, 2009 ABQB 627

PDF Version: When, if at all, does a pooling agreement trigger an area of mutual interest obligation?

In a 1994 decision, Luscar v Pembina Resources Ltd (1994), 162 AR 34, the Alberta Court of Appeal cast doubt on the proposition that Y, a lessee of a tract within a drilling spacing unit (DSU), who enters into a cross conveyance pooling agreement with Z, a lessee of a different tract within the same DSU, will invariably trigger an area of mutual interest (AMI) obligation that Y owes to X with respect to the undivided interest that Y acquired within Z’s tract by virtue of the pooling agreement.

In this decision, Justice Alan Macleod has extended that line of reasoning and has decided (subject to the language used in any particular case) that Y will not trigger an AMI obligation, not only in the narrow situation described above but also in the situation where Y and Z, holding adjacent lands, enter into a pooling agreement to improve project economics and not for the purpose of forming a drilling spacing unit.

Reasonable or resolute? Musings on the obligation of lawyers to grant reasonable requests for extensions

By Alice Woolley

On November 9, 2009

In Ethics and the Legal Profession

Case considered: Moose Mountain Buffalo Ranch v. Greene Farms Drilling Ltd., 2009 ABQB 489

PDF version: Reasonable or resolute? Musings on the obligation of lawyers to grant reasonable requests for extensions

Moose Mountain Buffalo Ranch and Greene Farms Drilling Ltd. entered into a contractual agreement pursuant to which Greene Farms undertook to service a deep water well and drill for water on lands owned by Moose Mountain. The lands are in Saskatchewan, and Greene Farms operates in Saskatchewan, but Greene Farms is extra-provincially registered in Alberta.

What Counts as “Sexual Abuse” under the Protection Against Family Violence Act?

By Jennifer Koshan

On November 5, 2009

In Family, State Responses to Violence

Cases considered: L.L.S. v. W.M.C., 2009 ABQB 527

PDF version: What Counts as “Sexual Abuse” under the Protection Against Family Violence Act?

Justice Donald Lee has written another decision dealing with a definitional issue under the Protection Against Family Violence Act, R.S.A. 2000, c.P-27 (PAFVA). In L.L.S. v. W.M.C., 2009 ABQB 527, Justice Lee had to consider whether to confirm an Emergency Protection Order (EPO) constraining a father’s access to his children because the father was watching pornography and openly engaging in sexual behaviours in the presence of his children. Unfortunately, Justice Lee concluded that this behaviour did not amount to “sexual abuse” without endeavouring to define the term. Further, the case highlights concerns about the interplay between child welfare legislation, custody and access laws and the PAFVA.