Consent Provisions in Long-Term Relational Contracts

By: Nigel Bankes

PDF Version: Consent Provisions in Long-Term Relational Contracts

Case Commented On: Apache North Sea Ltd v Ineos FPS Ltd, [2020] EWHC 2081 (Comm)

The drafters of long-term relational contracts often have to deal with the uncertainties of future developments. One technique for doing so is to accord one party to the contract (A) a power to propose some development or other while affording to the other party (B) a power to withhold its consent to the development, but disciplining the consent power by stipulating that B cannot unreasonably withhold its consent. Such provisions have long been common in the landlord and tenant context but they are also common in other commercial contracts, including oil and gas contracts. For a recent Canadian example see IFP Technologies (Canada) Inc v EnCana Midstream and Marketing, 2017 ABCA 157 (CanLII) and my post on that decision here.

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COVID-19 and Masking in Alberta K-12 Schools

By: Shaun Fluker

PDF Version: COVID-19 and Masking in Alberta K-12 Schools

Order Commented On: Record of Decision CMOH Order 33-2020

Many parents and their children are excited about the return to K-12 school, but they are also anxious about the potential for a COVID-19 outbreak at their schools. The barrage of information delivered to parents in the past week by schools regarding protocols for COVID-19 probably isn’t helping to ease any feelings of discomfort. Nor are reports that some schools have already delayed the start of classes because of an infection. Now is the time for a voice of authority to give assurance that the Government of Alberta has taken all possible measures to assess and mitigate the risk of contracting COVID-19 in schools. These measures would include the enactment of rules governing a return to school which are clear, organized, justified, and developed in a transparent process. Instead, the Chief Medical Officer of Health (CMOH) and the Premier have been responding to criticism and confusion about the return to school plan, and in particular the rules pertaining to masking and social distancing in Alberta’s K-12 schools. This is a very unfortunate outcome and is raising questions of trust in the CMOH, but it does not come as a surprise to me. I have been following Alberta’s COVID-19 law and policy since the declaration of the public health emergency in March, and I have consistently remarked that CMOH decisions have been plagued with non-transparency and disorganization (see here). This messy approach to lawmaking breeds confusion, and that is exactly what has transpired here. With these thoughts in mind, this post takes a critical look at the back to school rules set out in CMOH Order 33-2020.

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Climate Change in Federal Impact Assessment: An Early Look at Two Energy Projects

By: Niall Fink and David V. Wright

PDF Version: Climate Change in Federal Impact Assessment: An Early Look at Two Energy Projects

Documents Commented On: Impact Assessment Act, SC 2019, c 28 s 1; Environment and Climate Change Canada, Final Strategic Assessment on Climate Change (Gatineau: ECCC, 2020)

One year ago, the new Impact Assessment Act, SC 2019, c 28 s 1 (IAA) came into force. With project reviews now proceeding under the IAA, this is an opportune time to reflect on implementation of the new regime so far. This post focuses on one specific dimension: climate change. For the first time since the inception of federal environmental assessment, Canada’s federal project-level assessment statute explicitly requires decision-makers to consider a project’s effects on Canada’s ability to meet its climate change commitments (ss 22(1)(i) and 63(e)). The year has seen this requirement fleshed out through guidance published in the form of the Strategic Assessment of Climate Change (SACC) (see commentary by Professor Wright). This post examines how the new regime’s climate change requirements and guidance have been implemented in two major project-level assessments currently underway: the Suncor Base Mine Extension Project (Suncor Project) and the Gazoduq Project.

We examine the proponents’ submissions and the Impact Assessment Agency of Canada’s (the Agency) process, and identify areas of uncertainty and concern. Overall, we find that the Agency has given proponents significant latitude to sidestep information requirements in preliminary stages of the assessment process. We also find early signals that the impact statement phase will not fully address concerns regarding downstream emissions nor ambiguity in determining a project’s impact on Canada’s ability to reduce emissions. While much remains to be seen in subsequent assessment stages, these weaknesses risk that implementation of the IAA becomes yet another instance of the “implementation gap” that has plagued environmental law for decades (see this article by law professor Dan Farber).

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The Cost of Justice for the Western Chorus Frog

By: Shaun Fluker

PDF Version: The Cost of Justice for the Western Chorus Frog

Case Commented On: 9255-2504 Québec Inc. v Canada, 2020 FC 161 (CanLII)

This decision is a bit dated as it was issued back in January, but an English translation was only recently published and it caught my attention because I have been following the saga of the western chorus frog under the Species at Risk Act, SC 2002, c 29 (SARA) for several years (see Justice for the Western Chorus Frog? and More Justice for the Western Chorus Frog). In many ways, the case of the western chorus frog encapsulates the SARA story since it was enacted back in 2003: politics over science; missed statutory deadlines; and inadequate funding. SARA has certainly systematized efforts to develop recovery frameworks for threatened species and provided some additional transparency. However, the legislation has done very little to actually protect critical habitat beyond what would already be available under protected area or wildlife legislation. 9255-2504 Québec Inc. v Canada offers a glimpse into the question of who pays the cost of protecting critical habitat for a threatened species. The judgment also includes an unusual amount of detailed testimony from federal officials on how SARA has been applied in this case. Accordingly, this is an important decision not just for the western chorus frog but for all SARA-listed species and those interested in following the application of SARA generally.

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Like A House of Cards: Sentencing McKnight

By: Lisa Silver

PDF Version: Like A House of Cards: Sentencing McKnight

Case Commented On: R v McKnight, 2020 ABQB 443 (CanLII)

Law abhors a vacuum; to be meaningful, legal rules and principles must be tethered to reality. This means the law is animated by the factual circumstances of each particular case. Law garners gravitas or weight in the application of the law to the facts. In short, the law needs context. This basic proposition is particularly important in sentencing an offender after conviction by a jury. Once the jury trial ends, the trial judge is no longer the “judge of the law” (R v Pan; R v Sawyer, 2001 SCC 42 (CanLII) at para 43) but transforms into the sentencing judge, who must work with both fact and law. The recent Alberta Queen’s Bench sentencing decision by Justice Sulyma in R v McKnight, 2020 ABQB 443 (CanLII), highlights the difficulties inherent in this judicial transition and the need for clarification in this area. Not unlike the metaphorical “house of cards”, the decision also demonstrates the importance of the foundational facts to the integrity of the entire sentencing process.

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