ABLawg

Comments on the Interim Report of the Alberta Carbon Capture and Storage Development Council, Accelerating Carbon Capture and Storage in Alberta

On November 7, 2008

In Carbon Capture and Storage, Climate Change

By: Nigel Bankes & Jenette Poschwatta

PDF Version: Comments on the Interim Report of the Alberta Carbon Capture and Storage Development Council, Accelerating Carbon Capture and Storage in Alberta

Report Commented On: Accelerating Carbon Capture and Storage in Alberta, dated September 30, 2008, released October 22, 2008; now Final Report released March 2009

In these comments we focus on three aspects of the interim report: (1) the treatment of the ownership of pore space, (2) the design of a provincial tenure system for geological sequestration, and (3) the treatment of liability issues. In each case we provide our understanding of what it is that the Council proposes and then we provide our comments. While we welcome the report and agree with the need to accelerate the adoption of Carbon Capture and Storage (CCS) in Alberta, we think that these sections of the report require further clarification before the Council issues its final report. In particular, we think that the report needs to do a much better job of, identifying the problems and providing reasoned arguments for the solutions that it advances.

Use of a corporate name or registered trade name does not prevent liability for passing off

By Greg Hagen

On November 6, 2008

In Intellectual Property

Cases Considered: Divine Pet Spa Ltd. v Divine Doggies Spa & Boutique Inc., 2008 ABQB 618

PDF Version: Use of a corporate name or registered trade name does not prevent liability for passing off

Charisma Snyder registered a trade name “Divine Doggies Grooming & Boutique” on July 27, 2007 and “Divine Doggies Spa & Boutique” on August 14, 2007. A later name search did not reveal “Divine Pet Spa”, either as part of a corporate name or a trade-mark, so she incorporated Divine Doggies Spa & Boutique Inc. on September 8, 2007. It commenced dog grooming services in June, 2008. As early as 2006, however, Divine Pet Spa Ltd. had engaged in significant marketing of its cat and dog grooming business in order to create goodwill in the Calgary marketplace. In Divine Pet Spa Ltd. v Divine Doggies Spa & Boutique Inc., 2008 ABQB 618, Madam Justice C.L. Kenny of the Alberta Court of Queen’s Bench granted Divine Pet Spa Ltd. an interlocutory injunction against Divine Doggies Spa & Boutique Inc., restraining it from using and advertising the name “Divine Doggies Spa”. This decision is a reminder that, by using its corporate name or registered trade name, a business can be liable in tort law for passing off its products or services as those of another business.

The Constitutionality of Calgary’s Parks and Pathways Bylaw for Homeless Persons

By Jennifer Koshan

On November 5, 2008

In Constitutional

Cases Considered: Victoria (City) v. Adams, 2008 BCSC 1363

PDF Version: The Constitutionality of Calgary’s Parks and Pathways Bylaw for Homeless Persons

The recent decision of the B.C. Supreme Court finding municipal bylaws unconstitutional for prohibiting certain practices associated with homelessness in parks has received a great deal of media attention in Alberta and nationally. In Victoria (City) v. Adams, Justice Carol Ross considered bylaws in the City of Victoria that prohibit persons from “tak[ing] up temporary abode over night” and erecting or constructing “a tent, building, or structure, including a temporary structure” in city parks (Parks Regulation Bylaw No. 07-059, ss. 14(d) and 16(1)). Justice Ross found that these provisions violated the rights of homeless persons to life, liberty and security of the person under section 7 of the Charter, and that the violation was not in accordance with the principles of fundamental justice or a reasonable limit under section 1 of the Charter. This post will consider the implications of the case for Alberta, and in particular Calgary.

Crown Discretion and the Power to Stay Proceedings

By Jennifer Koshan

On November 5, 2008

In Constitutional, Criminal

Cases Considered: R. v. Powder, 2008 ABQB 579; R. v. Powder, 2008 ABCA 568

PDF Version: Crown Discretion and the Power to Stay Proceedings

In what circumstances can Crown prosecutors stay proceedings with impunity? This was the issue in a recent Alberta case, R. v. Powder, where the court seemed to disagree with the Crown’s actions but also seemed to feel powerless to respond. Given that the Crown may recommence proceedings it has stayed within one year of the stay, this case has implications for how the Crown can deal with a prosecution that has gone off the rails. The case is also of interest because it involves the use of tasers, a law enforcement tool that has come under much criticism lately.

The Fraud Exception to Indefeasibility of Title: Applying Section 203 of the Land Titles Act

By Jonnette Watson Hamilton

On November 3, 2008

In Property

Cases Considered: Hall v. Tieken Estate, 2008 ABQB 646

PDF Version: The Fraud Exception to Indefeasibility of Title: Applying Section 203 of the Land Titles Act

The land registration system used in Alberta is established by the Land Titles Act, R.S.A. 2000, c. L-4 and based on the Torrens system. Under this system, the provincial government has custody of all titles, plans and other documents related to interests in land and responsibility for the accuracy of all land titles information registered or filed with it. In a jurisdiction with a Torrens system, the government guarantees that a person named as the owner in the register established and maintained by the government has a title that is subject only to encumbrances and exceptions registered against that title and to enumerated statutory exceptions. Basically, a person’s title is free of adverse claims unless those claims are mentioned on their title. Their title is “indefeasible.” There are, of course, exceptions to indefeasible title in a Torrens system. Fraud is one of those exceptions, and it was the exception in issue in this case. In general, if you participate or collude in fraud, you do not have an indefeasible title.