ABLawg

By: Drew Yewchuk

Decision Commented on: Freedom of Information Request to the Alberta Energy Regulator 2021-G-0025

PDF Version: Investigating the Orphan Fund Levy Using Freedom of Information Requests

This is a follow-up on an earlier ABlawg post from March 2022: “How is the Orphan Fund Levy Set? Alberta’s Oil and Gas Clean-up Costs in 2022”. That post was the result of work by the Public Interest Law Clinic on how Alberta’s oil and gas clean-up liabilities were being managed. That post tried to answer the question of how the Alberta Energy Regulator (AER) was setting the amount of the Orphan Fund Levy.

Canada’s Collaborative Modern Treaty Implementation Policy: A New Roadmap in a Long Journey

By David V Wright

On May 31, 2023

In Aboriginal, Indigenous

By: David V. Wright

Matter Commented On: Canada’s Collaborative Modern Treaty Implementation Policy

PDF Version: Canada’s Collaborative Modern Treaty Implementation Policy: A New Roadmap in a Long Journey

After years of requests and proposals from Indigenous Modern Treaty parties, the federal government has released Canada’s Collaborative Modern Treaty Implementation Policy. This is the latest development in a series of law and policy reforms introduced by the federal government in this area in recent years. The main purpose of the new policy is to “support the full, effective, and timely implementation of all current and future Modern Treaties in Canada, with the specific goal of advancing a systemic shift in institutional culture” (Crown-Indigenous Relations and Northern Affairs Canada, News Release, “Modern Treaty Partners and Canada Launch Co-Developed Policy to Transform Intergovernmental Relationships” (28 February 2023)). This short post explains the context into which the new Policy enters and provides a succinct overview of its contents.

Duty to Consult, Honour of the Crown, Project Assessment, and Land-Use Planning in a Modern Treaty Context: More Clarity from the Supreme Court of the Yukon

By David V Wright

On May 25, 2023

In Aboriginal, Energy, Indigenous, Natural Resources

By: David Wright

Matter Commented On: First Nation of Na-Cho Nyäk Dun v Yukon (Government of), 2023 YKSC 5 (CanLII) (Metallic Minerals)

PDF Version: Duty to Consult, Honour of the Crown, Project Assessment, and Land-Use Planning in a Modern Treaty Context: More Clarity from the Supreme Court of the Yukon

The duty to consult and accommodate is now a mature area of jurisprudence, including case law that is “replete with indicia” (Coldwater First Nation v Canada (Attorney General), 2020 FCA 34 (CanLII) at para 41) of what constitutes meaningful consultation. One area that continues to evolve, however, is Crown consultation obligations and the honour of the Crown in modern treaty contexts. The landmark Supreme Court of Canada cases of Beckman v Little Salmon/Carmacks First Nation (2010 SCC 53 (CanLII)) and First Nation of Na-Cho Nyäk Dun v Yukon (2017 SCC 58 (CanLII)), both originating from lower courts in the Yukon, set out the contours of this legal landscape, but some uncertainty remains. In First Nation of Na-Cho Nyäk Dun v Yukon (Government of), 2023 YKSC 5 (CanLII) (Metallic Minerals), the Supreme Court of Yukon (YKSC) provides helpful judicial interpretation and observations in this area. In particular, Chief Justice Suzanne M. Duncan clarifies the law with respect to the Honour of the Crown and the duty to consult and accommodate in context of project-level assessment and land-use planning in the Yukon. This short post provides an overview of the case, as well as brief commentary regarding key points.

Ethics Commissioner Confirms that Premier Danielle Smith Breached the Conflicts of Interest Act – and a Fundamental Principle of Our Democracy

By Nigel Bankes

On May 24, 2023

In Constitutional, Ethics and the Legal Profession, Legal Education

By: Nigel Bankes, Jennifer Koshan, and Martin Olszynski

Matter commented on: Office of the Ethics Commissioner, Report of Findings and Recommendations into allegations involving Hon. Danielle Smith, Member for Brooks-Medicine Hat, Premier of Alberta, May 17, 2023

PDF Version: Ethics Commissioner Confirms that Premier Danielle Smith Breached the Conflicts of Interest Act – and a Fundamental Principle of Our Democracy

In early January of this year, Premier Danielle Smith participated in a lengthy telephone conversation with Pastor Artur Pawlowski, who was at that time facing criminal charges and charges under the provincial Critical Infrastructure Defence Act, SA 2020, c C-32.7 in relation to the Coutts blockade. Artur Pawlowski recorded a video of that call that subsequently became available to the public. That recording triggered complaints to the Ethics Commissioner under the Conflicts of Interest Act, RSA 2000, c C-23 (COIA) by a private citizen and by Irfan Sabir, MLA for Calgary-Bhullar-McCall and NDP Justice Critic.

Lifting the Corporate Veil v Personal Liability Under the Oppression Remedy: When Directors Behave Badly, When is Each Remedy Appropriate?

By Jassmine Girgis

On May 16, 2023

In Corporate / Commercial, Remedies

By: Jassmine Girgis

Case commented on: FNF Enterprises Inc v Wag and Train Inc, 2023 ONCA 92 (CanLII)

PDF Version: Lifting the Corporate Veil v Personal Liability Under the Oppression Remedy: When Directors Behave Badly, When is Each Remedy Appropriate?

In FNF Enterprises Inc v Wag and Train Inc, 2023 ONCA 92 (CanLII), the sole shareholder and director of Wag and Train Inc (Wag and Train) had stripped assets from the corporation, causing the company to defeat its creditors. In an action brought by a commercial landlord, the Ontario Court of Appeal declined to lift the corporate veil because the director’s improper conduct was not the source of the corporation’s liability, but it did allow the appellants to pursue the oppression remedy against the director personally.