ABLawg

By: Drew Yewchuk

Regulatory Documents Commented on: AER Bulletin 2023-36: Invitation for Feedback on Proposed New Requirements for Rock-Hosted Mineral Resource Development; Draft Directive 0XX: Rock-Hosted Mineral Resource Development

PDF Version: Comments on the AER’s Draft Regulations for Rock-Hosted Mineral Mining

Despite the Alberta Energy Regulator (AER)’s poor reputation and history of scandals, the Alberta government expanded the role of the AER to include a broader role in regulating mining operations. In March 2023 changes to the Responsible Energy Development Act, SA 2012, c R-17.3 gave the AER new powers to regulate almost all types of mining under the Mineral Resource Development Act, SA 2021, c M-16.8. In my view, expanding the mandate and role of the AER is a mistake given their institutional failures and the public’s justified low confidence in the AER.

The Myth of False Allegations of Intimate Partner Violence

By Jennifer Koshan

On November 8, 2023

In Criminal, Equality, Family

By: Jennifer Koshan

Case Commented On: R v RMD, 2022 ABKB 851 (CanLII)

PDF Version: The Myth of False Allegations of Intimate Partner Violence

A colleague recently brought to my attention a decision concerning intimate partner sexual violence that was released earlier this year. In R v RMD, Justice Robert Graesser dealt with an application by the accused to cross-examine the complainant – his previous partner – on her past sexual activity in a criminal trial for alleged sexual assault. The court’s reasons for decision on this application arguably perpetuate one of the most common myths about intimate partner violence (IPV): that litigants make false or exaggerated claims of violence to gain an advantage in family law disputes. Indeed, the court went so far as to take judicial notice of this “fact” (at para 45). This post unpacks the decision, placing it in the larger context of gendered myths and stereotypes about IPV and the relevant research and case law.

There is No Presumption of Loss Flowing from a Breach of the Contractual Duty of Honest Performance

By Jassmine Girgis

On November 7, 2023

In Contracts

By: Jassmine Girgis

Case commented on: Bhatnagar v Cresco Labs Inc, 2023 ONCA 401 (CanLII)

PDF Version: There is No Presumption of Loss Flowing from a Breach of the Contractual Duty of Honest Performance

In Bhatnagar v Cresco Labs Inc, 2023 ONCA 401 (“Cresco Labs”), the Ontario Court of Appeal addressed whether the Supreme Court’s decision in CM Callow Inc v Zollinger, 2020 SCC 45 (CanLII) (“Callow”) created a legal presumption of loss once a court finds a breach of the contractual duty of good faith. The ONCA found that there is no presumption of loss and that a plaintiff claiming a loss of opportunity has the burden of providing evidence.

Submission to Justice Canada on the Criminalization of Coercive Control

By Janet Mosher

On November 2, 2023

In Criminal, Law Reform

By: Janet Mosher, Shushanna Harris, Jennifer Koshan, and Wanda Wiegers

Bill Commented On: Bill C-332, An Act to amend the Criminal Code (controlling or coercive conduct), First Session, Forty-fourth Parliament (2023)

PDF Version: Submission to Justice Canada on the Criminalization of Coercive Control

Justice Canada has been holding an engagement process on the issue of whether an offence of coercive control should be added to the Criminal Code, RSC 1985, c C-46. This offence has been proposed in a series of private members bills, most recently, Bill C-332. Our submission (link below) argues that it is imperative that actors in all legal domains acquire a nuanced and contextual understanding of coercive control derived from an intersectional analysis that attends to how multiple systems of oppression interact to shape the tactics of coercion and control. However, we do not support the criminalization of coercive control, either as a standalone offence or within a broader offence of domestic abuse/violence. We argue that it is the former approach – the acquisition of deep and contextualized knowledge by legal system actors – and not criminalization, that holds promise in enhancing safety for women and children.

The Word “Exclusive” Does Not Confer a Constitutional Monopoly, Nor a Right to Develop Provincial Resource Projects

By Nigel Bankes

On November 1, 2023

In Constitutional, Environmental, Supreme Court of Canada

By: Nigel Bankes and Andrew Leach

Decision Commented On: Reference re Impact Assessment Act, 2023 SCC 23 (CanLII)

PDF Version: The Word “Exclusive” Does Not Confer a Constitutional Monopoly, Nor a Right to Develop Provincial Resource Projects

The majority opinion of the Supreme Court of Canada in the Reference re Impact Assessment Act, 2023 SCC 23 (CanLII) (IAA Reference) concludes that the federal government has arrogated to itself decision-making powers that properly belong to provincial governments; powers, that is, with respect to resource projects and other works and undertakings located entirely within a province (for short, “provincial resource projects”). (For an overview of the IAA Reference see Olszynski et al, “Wait, What!? What the Supreme Court Actually Said in the IAA Reference”.) Given that conclusion, it is not surprising that Premier Danielle Smith, as well as former premier Jason Kenney, who initiated the Reference, have celebrated the decision. But in doing so they have both significantly overstated the majority’s conclusions by suggesting that the majority endorsed a strong theory of exclusive provincial jurisdiction over provincial resource projects. Premier Smith, echoing language in the Alberta Court of Appeal majority opinion in the IAA Reference (which we commented on here), would extend this interpretation further to a right of development and to a form of interjurisdictional immunity for projects falling outside the exceptions in section 92(10) of the Constitution Act, 1867. We provide concrete examples of Premier Smith’s use of the word “exclusive” (or its synonyms) and references to a “right to develop” from the Premier’s press conference on the IAA Reference decision and an interview prior to the decision in Appendix A to this post, and a link to the views of the Hon. Jason Kenney in Appendix B.