ABLawg

Conflict in Paradise

On August 3, 2023

By: Nigel Bankes

Decisions Commented On: (1) AUC Decision 27589-D01-2023, Nova Solar G.P. Inc. and AltaLink Management Ltd., Nova Solar Power Plant and Transmission Connection, July 19, 2023; and (2) AUC letter decision on standing, October 31, 2022 (AUC’s Standing Ruling).

PDF Version: Conflict in Paradise

New and different resource uses may give rise to conflict or competition, and many have been discussed on ABlawg’s pages. Examples include:

(1) competition between natural gas storage operations and conventional oil and gas operation, (see for example Bankes, “Kallisto #2. Competing Uses of Geological Space: Resolving Conflicts Between Oil Production and Natural Gas Storage Interests”);

(2) competition for underground disposal capacity, (see, for example Bankes, “Sharing Geological Pore Space Disposal Capacity” as well as a complex and ongoing regulatory matter involving CNRL and Greenfire Resources before the Alberta Energy Regulator); and

(3) competition between proposed carbon capture and storage operations and a variety of conventional and non-conventional resource activities, (see for example, Ettinger et al, “Alberta’s Carbon Capture & Storage Land Grab And The Potential For Conflicts Of Subsurface Rights”).

Mind the Gap: A New Tort of Harassment in Alberta

By Jennifer Koshan

On July 31, 2023

In Torts

By: Jennifer Koshan

Case Commented On: Alberta Health Services v Johnston, 2023 ABKB 209 (CanLII)

PDF Version: Mind the Gap: A New Tort of Harassment in Alberta

The law of torts is as old as the mythical reasonable man, but courts continue to create new torts that respond to changing social circumstances and formally recognize novel legal wrongs. In recent years, courts in Canada have accepted new torts such as intrusion upon seclusion (Jones v Tsige, 2012 ONCA 32 (Can LII)), public disclosure of private facts (ES v Shillington, 2021 ABQB 739 (Can LII)), family violence (Ahluwalia v Ahluwalia, 2022 ONSC 1303 (CanLII)), and harassment (Alberta Health Services v Johnston, 2023 ABKB 209 (CanLII)). In the first three cases, courts focused on gaps in existing legal doctrine and remedies as the basis for creating the new torts. In the fourth case, Johnston, Justice Colin Feasby decided that a tort of harassment was worthy of recognition, in part to explain the use of an existing remedy – common law restraining orders. His analysis is the subject of this post; a subsequent post will discuss Ahluwalia’s creation of the tort of family violence, which was recently overturned by the Ontario Court of Appeal (see 2023 ONCA 476 (CanLII)).

Interpreting Restrictive Covenants in Commercial and Employment Agreements

By Jassmine Girgis

On July 21, 2023

In Contracts

By: Jassmine Girgis

Case Commented On: Ruel v Rebonne, 2023 ABCA 156 (CanLII)

PDF Version: Interpreting Restrictive Covenants in Commercial and Employment Agreements

Restrictive covenants are usually found in two types of agreements: commercial agreements for the purchase of a business and employment agreements. In commercial agreements, these clauses protect the purchaser; after having made a substantial investment, the purchaser can build ties with customers without being concerned about the vendor setting up a competing business for a specified time. In employment agreements, they protect the employer’s interests.

Thumbs Up, Bruh – Informality and the New Art of Contract Formation

By Michael Ilg

On July 17, 2023

In Contracts

By: Michael Ilg

Case Commented on: South West Terminal Ltd v Achter Land, 2023 SKKB 116 (CanLII)

PDF Version: Thumbs Up, Bruh – Informality and the New Art of Contract Formation

Saskatchewan grain contracts rarely attract international media attention, but an exception occurred recently after a judge held a farmer liable for damages under a contract entered into by emoji. It was not even a particularly cute or imaginative emoji, simply a humdrum ‘thumbs up’ . Nevertheless, this solitary little did quite a lot of work in the court’s eyes; not only did it signify acceptance of a contract offer, it also constituted the signed endorsement of a written document, thus satisfying the requirements of The Sale of Goods Act, RSS 1978, c S-1. This short post examines the decision of the King’s Bench for Saskatchewan in South West Terminal Ltd v Achter Land (2023 SKKB 116) and suggests some potential implications, with a particular emphasis on the formality requirements of contract formation.

Counting Straws: Yahey v British Columbia and the Future of Cumulative Effects Management in Canada

By Martin Olszynski

On July 13, 2023

In Aboriginal, Environmental, Indigenous, Land Use

By: Martin Olszynski

Case Commented On: Yahey v British Columbia, 2021 BCSC 1287 (CanLII)

PDF Version: Counting Straws: Yahey v British Columbia and the Future of Cumulative Effects Management in Canada

Much has already been written about the British Columbia Supreme Court’s ground-breaking decision in Yahey v British Columbia, 2021 BCSC 1287 (CanLII) (also referred to as Blueberry River First Nation, BRFN, or simply Blueberry throughout). In Yahey, the Court agreed with the BRFN that, in the context of BFRN’s traditional territory in Northeastern British Columbia, “the cumulative effects of industrial development authorized by [British Columbia] have significantly diminished the ability of Blueberry members to exercise their rights to hunt, fish and trap in their territory as part of their way of life and therefore constitute an infringement of their treaty rights” (at para 3). My colleague Professor Robert Hamilton and former UCalgary Law JD student (now alumnus) Nick Ettinger wrote two outstanding blogs on the decision when it first came out: a first post summarized the decision, while a second focused on Yahey’s standard for treaty infringement, i.e., “meaningful diminishment”. They also published a law review article on the decision: Robert Hamilton and Nicholas P. Ettinger, “The Future of Treaty Interpretation in Yahey v British Columbia: Clarification on Cumulative Effects, Common Intentions, and Treaty Infringement,” 2023 54-1 Ottawa L Rev 109. In this (very) belated post spurred on by a presentation that I gave at an environmental law conference last month, I focus on the Court’s findings with respect to British Columbia’s approach to resource development, and specifically its failure to effectively manage the cumulative effects associated with oil and gas and forestry. In my view, and as further set out below, these findings and analysis are relevant to every level of government in Canada: federal, provincial, territorial, Indigenous, and municipal.