ABLawg

Has a recent Queen’s Bench decision put the damper on future complaints of privacy breaches in Alberta, especially in the health care setting?

On June 12, 2009

In Administrative Law, Health Law, Privacy

Case considered: Lycka v. Alberta (Information and Privacy Commissioner) and Jane Doe, 2009 ABQB 245

PDF version: Has a recent Queen’s Bench decision put the damper on future complaints of privacy breaches in Alberta, especially in the health care setting?

A Court of Queen’s Bench decision on April 20th to quash orders of the province’s Information and Privacy Commissioner (the Commissioner) should prove to be of little, if any, persuasive value outside of Alberta. However, in this province, it may be accorded weight – even precedential value since the decision has not been appealed – that it does not deserve. As a result of Lycka v. Alberta (Information and Privacy Commissioner) and Jane Doe, the name of a person who complains to the Commissioner of a breach of privacy must be disclosed to the party alleged to have committed the breach. Consequently, Alberta residents may be reluctant to bring forward complaints about privacy breaches, especially when physicians are on the other side.

After Dunsmuir: The Alberta Court of Appeal’s Identification and Application of Standard of Review May 2008-May 2009

By Alice Woolley

On June 11, 2009

In Administrative Law

Case considered: Dunsmuir v. New Brunswick, 2008 SCC 9

PDF version: After Dunsmuir: The Alberta Court of Appeal’s Identification and Application of Standard of Review May 2008-May 2009

For a recent session of the Canadian Bar Association’s administrative law sub-section we reviewed Alberta Court of Appeal decisions with respect to the use of Dunsmuir v. New Brunswick, 2008 SCC 9 from May 2008 to May 2009. Here we share some preliminary analysis from our findings.

Narrowing the prospect of obtaining leave to appeal an ERCB decision: The troublesome aspect of judicial deference

By Shaun Fluker

On June 10, 2009

In Administrative Law, Natural Resources

Case considered: Berger v. Alberta (Energy Resources Conservation Board), 2009 ABCA 158

PDF version: Narrowing the prospect of obtaining leave to appeal an ERCB decision: The troublesome aspect of judicial deference

The Court of Appeal routinely decides applications for leave to appeal an Energy Resources Conservation Board (ERCB) decision on questions of law or jurisdiction pursuant to section 41 of the Energy Resources Conservation Act, R.S.A. 2000, c. E-10 (ERCA). In Berger v. Alberta (Energy Resources Conservation Board), Mr. Justice Frans Slatter denies a request from several applicants for leave to appeal a December 2008 ERCB approval issued to Highpine Oil and Gas to drill 3 sour gas wells in Parkland County west of Edmonton (ERCB decision 2008-135).

The perils of selling the same property twice (with an aside on styles of appellate decision-making)

By Jonnette Watson Hamilton

On June 9, 2009

In Appellate Practice, Contracts, Property

Case considered: Castledowns Law Office Management Ltd. v. FastTrack Technologies Inc., 2009 ABCA 148

PDF version: The perils of selling the same property twice (with an aside on styles of appellate decision-making)

This was a dispute between two purchasers of the same piece of commercial real estate in Edmonton, the Vienna Building at 7708-104 Street. The vendor, 1131102 Alberta Ltd, sold the property first to FastTrack Technologies Inc. (FastTrack). That agreement was conditional upon the vendor’s lawyer’s approval. The vendor also entered into a second or back-up agreement with Castledowns Law Office Management Ltd. (Castledowns). The back-up agreement with Castledowns was conditional on “satisfactory confirmation of termination” of the FastTrack agreement. The resolution of the dispute turned on the interpretation to be given those words. This was the issue on which the dissent of Mr. Justice Frans Slatter parted ways with the majority judgment of Madam Justice Carole Conrad, concurred in by Mr. Justice Clifton O’Brien. Was it enough if the vendor could legally terminate the agreement with FastTrack and did so? Or did FastTrack have to ratify any purported termination by the vendor? This contract interpretation issue is perhaps less interesting than the fact that neither the majority nor the dissenting judgment engage with the other on that or any other issue. This style of appellate decision-making has been called “uncooperative” in the empirical literature that examines why justices decide as they do. (See, e.g., Benjamin Alarie and Andrew Green, “Charter Decisions in the McLachlin Era: Consensus and Ideology at the Supreme Court of Canada.”) The label “uncooperative” is not necessarily intended to be pejorative, depending on the reason for the lack of cooperation. Some judges value independence as the best method for achieving internally consistent reasoned decisions. Some Chief Justices encourage certain styles of interaction in the preparation of judgments. Sometimes, however, the lack of cooperation is due to ideological or personal differences. It usually takes a very large number of judgments before the reason becomes clear, with ideological or personal constraints on cooperation tending to lead to more plurality and dissenting judgments.

Read More

A Rock and a Hard Place? A False Dilemma

By Martin Kay Q.C.

On June 8, 2009

In Energy

Case considered: ATCO Gas and Pipelines Ltd. v. Alberta (EUB), 2009 ABCA 171

PDF version: A Rock and a Hard Place? A False Dilemma

In response to the hand-wringing of my colleague Prof. Alice Woolley in her post on this case, the recent decision of the Alberta Court of Appeal on the role of surplus lands (referred to as the “Harvest Hills” case) should not present any obstacle for the orderly setting of fair utility rates.

The essential facts alone should alleviate most concerns. The uncontradicted evidence was that in 1993 the utility acquired a single parcel of land for $43,000.00 for the purpose of building a regulating station. The station was then built on part of the parcel. There was no thought given to subdivision and sale of the surplus portion until an unsolicited offer was made in 2006. The potential need for the surplus land was then considered. None was identified. While a new, additional regulating station was expected to be needed within a 5 km radius within 5 years, the surplus portion was not an appropriate site, based on good engineering design considerations.