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Lucy the Elephant v. Edmonton (City)

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On September 1, 2010

In Administrative Law, Environmental, Intervenors and Standing

PDF version: Lucy the Elephant v. Edmonton (City) 

Case considered: Reece v. Edmonton (City), 2010 ABQB 538

Lucy is a 34 year old elephant who lives in the Edmonton Valley Zoo. In recent years Lucy has attracted significant media and celebrity attention, as animal welfare activists have campaigned for her transfer to a warmer climate (details on the campaign and Lucy herself are documented here). Activists insist that Lucy is in distress because of her living conditions in the Edmonton zoo. Media celebrities including William Shatner and Bob Barker have called upon the City of Edmonton to allow Lucy to move south. Lucy’s plight has attracted the attention of the local media as well (see “Free Lucy the elephant: protesters“, CBC News). The Valley Zoo insists Lucy is fine and cannot be safely moved.

In the Fall of 2009, ZooCheck Canada and the People for the Ethical Treatment of Animals (PETA) retained Ontario lawyer Clayton Ruby to advise them on possible legal remedies for Lucy. In February 2010 ZooCheck, PETA, and a local Alberta resident (Tove Reece) filed an Originating Notice in the Alberta Court of Queen’s Bench seeking a judicial declaration that the City of Edmonton (as operator of the Valley Zoo) was contravening section 2 of the Animal Protection Act, R.S.A. 2000, c. A-41, in its treatment of Lucy at the Valley Zoo. Associate Chief Justice John Rooke heard the ZooCheck application along with the City’s motion to strike the proceeding under Rule 129 of the Alberta Rules of Court, Alta. Reg. 390/1968. In Reece v. Edmonton (City), 2010 ABQB 538 Justice Rooke grants the City’s motion to strike on the basis that the ZooCheck/PETA application is an abuse of process for two reasons: (1) the application does not conform with the legislative path for bringing this issue to the Court; (2) no individual can bring a civil action to enforce criminal law. Justice Rooke also makes some obiter statements on standing which I comment on below.

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The Issues and Challenges with Public Participation in Energy and Natural Resources Development in Alberta

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On August 30, 2010

In Energy, Intervenors and Standing, Natural Resources

PDF version: The Issues and Challenges with Public Participation in Energy and Natural Resources Development in Alberta 

Introduction

Public participation is a key feature of energy and natural resources development in Alberta. The provincial government often expresses its desire for participation by Albertans in its policy making and planning processes. At the project approval stage, project proponents regularly conduct public consultation programs and regulatory boards hold public hearings and award costs to interveners.

Yet there are signs that public participation is not all that it seems in the Alberta energy and resources development context. Albertans seem frustrated and dissatisfied with the current level or type of public participation available: see, for example, Dan Woynillowicz & Steve Kennett, “Passage of Bill 46 Perpetuates EUB Shortcomings” (2007). Applications for leave to appeal decisions of energy tribunals on issues of public participation and procedural fairness seem to be on the rise: see, for example, Prince v. Alberta (Energy Resources Conservation Board), 2010 ABCA 214, Cheyne v. Alberta (Utilities Commission), 2009 ABCA 94, and Kelly v. Alberta (Energy and Utilities Board), 2008 ABCA 52.

The Canadian Institute of Resources Law (CIRL) at the University of Calgary is currently engaged in a research project, funded by the Alberta Law Foundation, which is focusing on legal and policy questions in relation to public participation in the Alberta energy and natural resources development context. To obtain input on the issues and challenges facing public participation in this context, CIRL held a Round Table discussion at the University of Calgary on April 16, 2010. There were 20 participants in attendance, all of whom have experience with public participation issues in the energy and natural resources development context. There was representation from landowners, regulators, industry, the regulatory bar, environmental and natural resources organizations, multi-stakeholder consultation groups, policy and energy consultants, and academia.

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How Should Society Deal with the Question of Long Term Liability for Carbon Capture and Storage?

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On August 27, 2010

In Carbon Capture and Storage

By: Nigel Bankes

PDF Version: How Should Society Deal with the Question of Long Term Liability for Carbon Capture and Storage?

Report Commented On: Report of the Interagency Task Force on Carbon Capture and Storage, August 2010

I don’t often sing the praises of government reports. Often written in turgid prose, they seem more concerned to find the lowest common denominator that all can live with rather than to identify and evaluate the policy problem and policy options to address that problem. This is even more likely to be the case where you have an “inter-agency” report; a report cobbled together by multiple cooks and authors, where the LCD really is the way to go. But I like this report of the United States federal Interagency Task Force on Carbon Capture and Storage, which came out earlier this month. It should be compulsory reading, not just for CCS wonks, but also for anybody engaged in formulating public regulatory policy in response to any new technology.

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Recognizing Foreign Divorces: The Public Policy Defence

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On August 26, 2010

In Conflict of Laws, Family

PDF version: Recognizing Foreign Divorces: The Public Policy Defence

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.

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Appealing the Remedy Granted by an Arbitration Award

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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.

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