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In the William Howard Lecture delivered at the University of Calgary on February 8th, 2008, Jim Prentice, Minister of Industry of the Government of Canada, spoke about the virtue of integrity in regulating greenhouse gases. He noted that “[i]t takes integrity to strike the right balance and to draw the lines that will eventually become law which our industries will comply with.” Prentice is also the lead Minister responsible for copyright. So, while Prentice used environmental legislation to illustrate his point about striking the right balance, it was not lost on the audience that the integrity of legislators and the legislative process is also relevant to striking the right balance between copyrights and other values.

Not on Their Backs: Cap on Damages for Soft Tissue Injuries Struck Down; Court Denies Stay of Remedy Pending Appeal

By Jennifer Koshan

On March 10, 2008

In Constitutional, Insurance Law

By: Jennifer Koshan

PDF Version: Not on Their Backs: Cap on Damages for Soft Tissue Injuries Struck Down; Court Denies Stay of Remedy Pending Appeal

Cases Commented On: Morrow v Zhang, 2008 ABQB 125, Morrow v Zhang and Pedersen v Thournout, 2008 ABQB 98

On February 8, 2008, Associate Chief Justice Neil Wittmann of the Alberta Court of Queen’s Bench struck down the $4000 cap on non-pecuniary damages for soft tissue injuries incurred in motor vehicle accidents. The cap was imposed in October 2004 via the Minor Injury Regulation, Alta. Reg. 123/2004 (“the MIR”). Justice Wittman’s decision quickly became an election issue, with leaders of Alberta’s major parties each staking out their territory on auto insurance. Premier Stelmach announced that the government would seek a stay of the ruling pending an appeal to the Alberta Court of Appeal. Liberal leader Kevin Taft countered that a Liberal government would not appeal the decision, and NDP leader Brian Mason used the opportunity to advocate for a public auto insurance system. On February 25, 2008, Justice Wittmann denied the stay application. This means that his original ruling, which struck down the cap without providing time for the government to amend the MIR, takes immediate effect.

The Shotgun Approach to Judicial Review

By Jonnette Watson Hamilton

On March 10, 2008

In Administrative Law, Provincial Court

Cases Considered: Weir v. Canada (Registrar of Firearms), 2008 ABPC 18, Woodcock v. Canada (Registrar of Firearms), 2008 ABPC 19

PDF Version: The Shotgun Approach to Judicial Review

These two almost identical judgments of Provincial Court Judge Bruce R. Fraser confirmed refusals by the Registrar to issue registration certificates for prohibited weapons. They were both references made pursuant to section 74 of the Firearms Act, S.C. 1995, c. 39. The standard of the review to be conducted by a provincial court judge in such a reference has been a controversial matter. Various methods for selecting the appropriate standard of review in a section 74 reference have been proposed and implemented by Alberta courts. The jurisprudence thus far suggests this shotgun approach is missing the mark when it comes to standard of review.

The Doctrine of Part Performance: Still Strict After All These Years

By Jonnette Watson Hamilton

On March 4, 2008

In Property

Cases Considered: Varma v. Donaldson, 2008 ABQB 106

PDF Version: The Doctrine of Part Performance: Still Strict After All These Years

This was an application under section 141 of the Land Titles Act, R.S.A. 2000, c. L-4 for the discharge of a caveat registered against a rental property in Calgary. The owners of the property in this case were Mr. and Mrs. Varma. The caveator was their daughter, Ms. Donaldson. She claimed she had an interest in the rental property under an agreement for its purchase and sale made between herself and her parents. Master K.R. Laycock disagreed and ordered that her caveat be discharged.

What does the Canadian Charter of Rights and Freedoms have to do with Oil and Gas Development in Alberta?

By Nickie Nikolaou

On March 4, 2008

In Constitutional, Natural Resources

Cases Considered: Kelly v. Alberta (Energy and Utilities Board), 2008 ABCA 52

PDF Version: What does the Canadian Charter of Rights and Freedoms have to do with Oil and Gas Development in Alberta?

This is not the first time that section 7 of the Canadian Charter of Rights and Freedoms (the Charter) has been raised on an application for leave to appeal a decision of Alberta’s Energy and Utilities Board (EUB). It is, however, the first time that a justice of the Court of Appeal has put the issue squarely before the court. Can the granting of a licence by the EUB (now the ERCB) for a particular oil and gas well violate rights protected by section 7 of the Charter? Is it possible that the environmental risks and hazards of a particular oil and gas operation may be such as to trigger the protection of section 7 of the Charter? Mr. Justice J.A. Berger has said that this is arguable. In doing so, he has placed some difficult issues, with potentially far-reaching consequences, before the Court.

A Note on Integrity in Treaty-Making & Copyright Law

Not on Their Backs: Cap on Damages for Soft Tissue Injuries Struck Down; Court Denies Stay of Remedy Pending Appeal

The Shotgun Approach to Judicial Review

The Doctrine of Part Performance: Still Strict After All These Years

What does the Canadian Charter of Rights and Freedoms have to do with Oil and Gas Development in Alberta?