ABLawg

Williston Wildcatters: bluster no substitute for reasons and yet another judicially created leave and licence

Over the last decade we have seen litigation in both Saskatchewan and Alberta on the question of how to calculate damages where an operator continues to produce hydrocarbons on a dead lease. The Alberta case is Lady Freyberg v. Fletcher Challenge Oil and Gas, 2007 ABQB 353 (on the damages issue – following 2005 ABCA 46 on the lease validity issue). This matter has been settled on a confidential basis and unfortunately we cannot expect to see an appeal judgement on the damages question. I say “unfortunately” because the trial judgement seems to have proceeded on the basis that the continued production was tortious; but there is at least some ground for thinking that the operator’s activities were continued with the permission of a co-owner. If that is correct, then the co-owner/lessor’s claims should have been dealt with on the basis of a co-owner’s claim for an accounting of more than a just share received, rather than on the basis of tort (trespass or conversion). The Freyberg decision is the subject of lengthy comment by Chris Simard et al, “Lady Freyberg: Examples of How Contemporary Courts in Alberta Approach the Modern Business Realities of the Freehold Petroleum and Natural Gas Lease” (2009), 46 Alberta Law Review 299.

Not Your Usual Self-Represented Litigant?

By Jonnette Watson Hamilton

On September 7, 2009

In Civil Procedure

Case considered: Conway v. Zinkhofer, 2009 ABQB 417

PDF version: Not Your Usual Self-Represented Litigant?

The perception within the justice system is that self-represented litigants have below average literacy and comprehension levels: see the Alberta Self-Represented Litigants Mapping Project, Final Report, January 12, 2007 at 10. However, according to recent research, members of any social group may become self-represented litigants and between 60 and 65% had at least some post secondary education. One group of self-represented litigants is the group who could access representation but prefer to self-represent (Final Report at 15). Although a small percentage of the self-represented litigants (5% or less), the group includes those often referred to as “vexatious litigants” and judges report that this group of self-represented litigants are particularly time consuming and difficult to deal with (Final Report at 16). This appears to be an apt summary of the male respondent in this case, Fred Zinkhofer.

Post-Kapp Decision May Indicate the Way Discrimination will be Determined in Human Rights Cases

By Linda McKay-Panos

On September 2, 2009

In Constitutional, Human Rights

Case Considered: Van Der Smit v. Alberta (Human Rights and Citizenship Commission), 2009 ABQB 121

PDF Version: Post-Kapp Decision May Indicate the Way Discrimination will be Determined in Human Rights Cases

In the past few years, the application to human rights legislation of precedents established under Canadian Charter of Rights and Freedoms s. 15(1), which set out how a court is to determine whether a claimant has experienced discrimination, was an issue in many Canadian jurisdictions, including Alberta. The issue became more important, when in R. v. Kapp, 2008 SCC 41, the Supreme Court of Canada appeared to re-state (and perhaps even re-formulate) the test from Law v. Canada, [1999] 1 S.C.R. 497, which had been the precedent courts relied on for several years. There are several posts written by ABlawg contributors about the Kapp decision and those which have followed. See, for example: Jonnette Watson Hamilton and Jennifer Koshan, The End of Law: A New Framework for Analyzing Section 15(1) Charter Challenges.

Who is a Farm Worker? And Why Does It Matter?

By Jennifer Koshan

On August 31, 2009

In Constitutional, Labour/Employment

By: Jennifer Koshan

PDF Version: Who is a Farm Worker? And Why Does it Matter?

Case Commented On: R v Northern Forage Inc., 2009 ABQB 439

Alberta marked its 5th annual Farm Workers Day on August 20, 2009. As in previous years, the event provided an opportunity to advocate for equal protection for farm workers under Alberta’s labour and employment laws. Farm workers are currently excluded from the following laws: (1) protections regarding wages, overtime, holidays, and hours of work (see Employment Standards Code, R.S.A. 2000, c.E-9, section 2(4)); (2) mandatory coverage for workers compensation (see Workers’ Compensation Regulation, Alta. Reg. 325/2002, Schedule A); (3) work-related health and safety protections (see Occupational Health and Safety Act, R.S.A. 2000, c. O-2, section 1(s)); and (4) protections related to the unionization of workers (see Labour Relations Code, R.S.A. 2000, c. L-1, section 4(2)(e)). This makes Alberta one of the most lax provinces in Canada in terms of farm worker protection. Groups such as the Alberta Federation of Labour have called for an end to such exclusions, and a recent inquest into the fatality of agricultural worker Kevan Chandler led Judge Peter Barley to recommend that “paid employees on farms should be covered by the Occupational Health and Safety Act…” (at 7). Until the Alberta government amends the relevant legislation, however, questions may arise as to which workers are covered by the exclusions.

Supreme Court grants leave to appeal in Caron

By Jennifer Koshan

On August 27, 2009

In Access to Justice, Constitutional, Supreme Court of Canada

Case considered: R. v. Caron, 2009 ABCA 34, leave granted by SCC August 27, 2009

The Supreme Court of Canada has released its decision on the Alberta government’s leave to appeal application in R. v. Caron. Chief Justice McLachlin and Justices Abella and Rothstein granted the government’s leave application (without costs). As is typical in such matters, no reasons for decision were given. The case concerns an interim costs award that was granted to Caron to help fund his language rights challenge against Alberta legislation. As noted in a previous post, Caron was granted an interim costs award by Justice V.O. Ouellette of the Alberta Court of Queen’s Bench in October 2007. This award was upheld by the Alberta Court of Appeal in January 2009. In the meantime, Caron’s language rights challenge was successful after his Provincial Court trial, and this matter is now under appeal. Regardless of the outcome of the language rights challenge, the interim costs matter is a critical issue for access to justice. The Alberta Court of Appeal held that interim costs awards are available in quasi-criminal matters before provincial courts, and it is expected that this will be one of the government’s grounds for appeal. ABlawg will report on future developments in the case.