ABLawg

Disposition of Regulated Property Regulation (Draft) AR 4570 Draft DRReg 2010 03 31 (available by Email request)

PDF version: Filling the Gap: The Proposed “Disposition of Regulated Property Regulation”

On March 31, 2010 the Alberta government issued a draft regulation pursuant to the Alberta Utilities Commission Act, S.A. 2007, c. A-37.2 (“AUCA”), the Disposition of Regulated Property Regulation (Draft) (“Draft Regulation”). The power to enact regulations is contained in s. 75 of the AUCA, which gives the Lieutenant-Governor in Council the power to make regulations “adding to, clarifying, limiting or restricting” any of the powers granted pursuant to the AUCA. In this case the Draft Regulation is stated expressly to operate as “an addition to” powers granted to the AUC under the Gas Utilities Act, R.S.A. 2000, c. G-5 and the Public Utilities Act, R.S.A. 2000, c. P-5. (Draft Regulation, s. 2(1)).

Legal costs can be an issue in human rights cases

By Linda McKay-Panos

On May 3, 2010

In Costs, Human Rights

Case considered: Canadian Human Rights Commission v. Attorney General of Canada, et al., 2009 FCA 309, leave to appeal to Supreme Court of Canada granted, SCC Bulletin April 23, 2010, #33507, 2010 CanLII 20527

PDF version: Legal costs can be an issue in human rights cases

In the past few years, the issue of whether and how much legal costs should be awarded in human rights cases has arisen several times in Alberta (see my post on Boissoin v. Lund, for example). The costs issue has also arisen in a federal human rights case and will soon be addressed by the Supreme Court of Canada.

Doubts about Arbitrator Immunity

By Jonnette Watson Hamilton

On April 28, 2010

In Arbitration

Case considered: Flock v. Beattie, 2010 ABQB 193

PDF version: Doubts about Arbitrator Immunity

Can arbitrators be sued if they perform their duties negligently? Can they be sued if they breach their contract with the disputing parties? These questions were recently asked and answered in Flock v. Beattie, heard by Justice Earl C. Wilson of the Alberta Court of Queen’s Bench. It is usually assumed that the law granting arbitrators’ immunity to actions in tort and contract is well settled; the case cited for that proposition is the old English case of Pappa v. Rose (1872) LR 7 C.P. 525 (Ex Ch.). Despite this complacency, Justice Wilson’s decision appears to be a rarity in Canada with its express grant of immunity to an arbitrator. In this post, I contend that the precedent-based argument in favour of extending the doctrine of judicial immunity to arbitrators is a weak one, the statutory argument against extending such immunity needs to be addressed, and the policy arguments on the no-immunity side have yet to be examined.

Standing at the ERCB without an interest in land, but “no costs for you!”

By Shaun Fluker

On April 26, 2010

In Costs, Intervenors and Standing, Oil & Gas

Case considered: Freehold Petroleum and Natural Gas Owners Association v. Alberta (Energy Resources Conservation Board), 2010 ABCA 125

In Freehold Petroleum and Natural Gas Owners Association, Madam Justice Elizabeth McFayden dismisses an application for leave to appeal an Energy Resources Conservation Board (ERCB) hearing costs decision that relates to an earlier ERCB decision concerning a mineral lease dispute. This Court of Appeal decision and the underlying ERCB decisions are noteworthy to me for two reasons: (1) the ERCB granted full hearing participation rights to the Freehold Petroleum and Natural Gas Owners Association (the Freehold Owners Association) despite the fact it does not have an interest in land; and (2) the Court of Appeal defers to the ERCB on what I consider to be an unreasonable exercise of its discretion on the costs matter. I will comment on each of these points in turn after briefly summarizing the facts.

Arbitration for the Quick and Final Resolution of Disputes? Hardly.

By Jonnette Watson Hamilton

On April 22, 2010

In Arbitration

Cases considered: Karaha Bodas Company, L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 2010 ABQB 172 and Flock v. Beattie, 2010 ABQB 193

PDF version: Arbitration for the Quick and Final Resolution of Disputes? Hardly.

At first glance, these two cases have almost nothing in common. One concerns a multimillion dollar Indonesian geothermal energy project dispute. The other involves a matrimonial property dispute following a marriage breakdown in Alberta. What they have in common is that both of them are cautionary tales for arbitration – tales of slow, expensive processes that include numerous court applications. The dispute in the former case arose in 1998 and notice of arbitration was given that same year. The dispute in the latter case arose in 1999, and the parties agreed to arbitrate in 2002. Yet we have two 2010 court decisions arising out of those arbitrations. What went wrong?