ABLawg

An Alberta company, Rexx Management Corporation, was ordered to pay an almost $1 million US arbitration award in favour of a Russian company, Yugraneft Corporation. Yugraneft waited more than three years before applying to the Alberta Court of Queen’s Bench for recognition and enforcement of that arbitration award. When Yugraneft failed to gain recognition from the Court of Queen’s Bench, it appealed to the Alberta Court of Appeal and, when unsuccessful again, was granted leave to appeal and did appeal to the Supreme Court of Canada. Thirteen judges have now heard the case and all thirteen judges have agreed: the two-year limitation period in section 3 of Alberta’s Limitations Act applied to Yugraneft’s application for recognition and enforcement and thus Yugraneft acted too late. With that degree of unanimity, one has to wonder what all the fuss in the international commercial arbitration community has been about. The case was monitored closely as it wound its way through the courts and several arbitration institutions intervened at the Supreme Court of Canada.

In this post, after briefly setting out the facts and procedural history, I will focus on one of the issues dealt with by the Supreme Court, the threshold issue. The key decision by all the levels of court that considered the matter was the decision that domestic legislation imposing any kind of limitation period was applicable. I will then deal with the question of which limitation period: ten years, six years or two years? After this discussion of the case itself, I will comment on two matters. The first is the question of whether this case really is a case of public importance. The second is speculation about what action proponents of international commercial arbitration might take now, following their loss in the Supreme Court.

Fraud and Concealment of Contaminated Land: Do Your Due Diligence, Purchaser

By Rob Omura

On June 2, 2010

In Environmental, Property

PDF version: Fraud and Concealment of Contaminated Land: Do Your Due Diligence, Purchaser

Cases considered: Motkoski Holdings Ltd. v. Yellowhead (County), 2008 ABQB 454 (Q.B.), Motkoski Holdings Ltd. v. Yellowhead (County), 2010 ABCA 72 (C.A.)

As both environmental standards and the demand for strategically located land increase, there is a greater likelihood that contaminated land will come on the market. What is clear from the case of Motkoski Holdings Ltd. v. Yellowhead (County) is that the burden of thoroughly investigating a site remains firmly on the purchaser’s shoulders, despite the sometimes inequitable difference in bargaining power between a vendor and a purchaser. Standard real estate contractual terms will often transfer land “as is” and exclude representations and warranties outside the four corners of the contract as well as exclude any collateral agreements. A contractual term that excludes any warranty as to the soil conditions, particularly in light of an engineering report that recommends further investigation, should put the purchaser on notice that further investigation may be necessary. If there are any concerns raised from preliminary investigation of the site, the purchaser neglects to follow up or investigate at its own peril.

Maintaining space for autonomy? Environmental assessments in the context of aboriginal land claims agreements

By Nigel Bankes

On May 28, 2010

In Aboriginal, Environmental, Supreme Court of Canada

PDF version: Maintaining space for autonomy? Environmental assessments in the context of aboriginal land claims agreements

Case considered: Quebec (Attorney General) v. Moses, 2010 SCC 17

This is the first decision of the Supreme Court of Canada to examine a modern land claims agreement; in this case the James Bay and Northern Quebec Land Claim Agreement (JBNQA or the Agreement) between Canada, Quebec and the James Bay Cree and the Northern Quebec Inuit. The argument in the case happens to relate to the nature of the environmental assessment process that should be applied to a particular project but there is a much broader issue at stake which is the capacity of federal and provincial governments to continue to make and apply laws within the territory covered by the Agreement to matters “covered” by the terms of the Agreement. By adopting an artificial distinction between that which is covered by the Agreement and that which falls outside it, the majority recognize that governments have retained significant authority to “supplement” the terms of the Agreement. But the government’s authority to do so is not completely unlimited since the majority also recognizes that such authority must be exercised consistently with the Crown’s duty to consult. By contrast, the dissent takes a more robust view of the coverage of the land claims agreement and as a result limits the capacity of governments to create a parallel normative world that sidelines negotiated arrangements for autonomy.

No Dower Act Consent? Is the Transaction Void or Voidable?

By Jonnette Watson Hamilton

On May 27, 2010

In Property

PDF version: No Dower Act Consent? Is the Transaction Void or Voidable?

Case considered: Charanek v. Khosla, 2010 ABQB 202

The question of whether failure to comply with the Dower Act’s requirements results in the transaction being void or voidable occurs with some frequency in Alberta (and not simply on our December Property Law examinations). This is odd because the relevant provisions of the Act have not changed since 1948 and the courts have addressed the consequences of the failure to comply with its requirements for consent quite often. Nevertheless, when Master in Chambers Jody L. Mason conducted a thorough review of the relevant legislation and case law in Charanek v. Khosla and concluded (at para. 61) that “the consequence of noncompliance with the consent requirements of the Dower Act remains an open question,” she was correct. She was also echoing a conclusion reached 50 years ago by Wilber Fee Bowker (former U of A Faculty of Law Dean and first Director of the Alberta Law Reform Institute), in “Reform of the Law of Dower in Alberta” (1960) 1 Alta. Law Rev. 501 at 502 where he observed:

From 1917 until today the courts and legislature and the legal profession too have wrestled with the question – what is the effect of the disposition of the homestead made without consent, properly given and executed?

Thirty-four years later, that very question continues to be with us. . . .

The crux of the problem is that the Supreme Court of Canada said in Meduk and Meduk v. Soja and Soja, [1958] S.C.R. 167 that the transaction was void and the Alberta Court of Appeal, in Schwormstede v. Green Drop Ltd. (1994), 22 Alta. L.R. (3d) 89, 116 D.L.R. (4th) 622, held that the transaction was voidable, but without mentioning the Supreme Court of Canada case.

Differential Treatment of Equality Law post-Kapp

By Jennifer Koshan

On May 25, 2010

In Aboriginal, Constitutional

By: Jennifer Koshan

PDF Version: Differential Treatment of Equality Law post-Kapp

Case Commented On: Woodward v Council of the Fort McMurray No. 468 First Nation, 2010 FC 337

There have been several posts on ABlawg concerning the Supreme Court’s most significant equality rights decision of late, R v Kapp, 2008 SCC 41. Jonnette Watson Hamilton nominated Kapp as the leading equality rights case of the 2000s. She and I have also written on the application of Kapp (or lack thereof) in cases such as Ermineskin Indian Band and Nation v Canada, 2009 SCC 9; Morrow v Zhang, 2009 ABCA 215 (see also here); and Cunningham v Alberta (Aboriginal Affairs and Northern Development), 2009 ABCA 239. We are hosting a continuing legal education session on Litigating Equality Claims Post-Kapp on June 15, 2010, and hope to have a good turnout of equality rights litigators, judges and NGOs to discuss the implications of Kapp (note: the last date to register is June 1, 2010). The need for this session is real because, even two years post-Kapp, some lower courts continue to ignore the ruling in that case. The latest example is a decision of Justice James O’Reilly of the Federal Court in a case involving voting rights of non-resident members of the Fort McMurray First Nation in Woodward v Council of the Fort McMurray No.468 First Nation.

Much Ado about Little: The Supreme Court’s Decision in Yugraneft Corp. v. Rexx Management Corp.

Fraud and Concealment of Contaminated Land: Do Your Due Diligence, Purchaser

Maintaining space for autonomy? Environmental assessments in the context of aboriginal land claims agreements

No Dower Act Consent? Is the Transaction Void or Voidable?

Differential Treatment of Equality Law post-Kapp