ABLawg - - Page 74

Case Commented On: R v Theriault, 2020 ONSC 3317 (CanLII)

On the morning of Friday, June 26, 2020 – among more than 20,000 other people – I tuned into the YouTube live stream on which Ontario Superior Court Justice Joseph DiLuca gave his judgment in the criminal trials of Michael and Christian Theriault (R v Theriault, 2020 ONSC 3317 (CanLII)). The brothers, one of whom is a Toronto police officer, stood accused of assault and aggravated assault on Dafonte Miller, a young Black man, who lost his eye in their clash.

Const. Michael Theriault was acquitted of aggravated assault and attempting to obstruct justice in the case, and was convicted only of the lesser charge of simple assault. His brother Christian Theriault was acquitted of all charges. On August 6, 2020, it was announced that the Crown has appealed the acquittals.

The Theriault acquittals unsettled me – persistently, in the weeks to follow. The accused were acquitted of aggravated assault, despite strong Crown evidence, and fact findings of the court, that the two grown white men had gratuitously and violently beaten Miller, a Black teenager. Nearly as unsettling was the fact that the trial judge had insisted, capably, and with sophistication, that he understood what he called the “racialized context” of the encounter (at para 11). The objective of this post is to explore the apparent contradiction in Theriault between the verdicts, on one hand, and Justice DiLuca’s claim that he considered the racialized context, on the other. This post does not purport to be an appellate brief for the Crown, although some argument relates to potential legal and factual errors in Theriault.

Another Manitoba Oil and Gas Lease Termination Decision

By Nigel Bankes

On October 16, 2020

In Energy, Oil & Gas

By: Nigel Bankes

PDF Version: Another Manitoba Oil and Gas Lease Termination Decision

Case Commented On: Fire Sky Energy Inc. v EverGro Energy Corporation, 2020 MBQB 133 (CanLII)

I am not sure what’s going on downstream of us these days, but we now have a third oil and gas lease termination case this year from “Friendly Manitoba.” I posted on the two earlier decisions here in April.

This one is fairly straightforward. EverGro held under a CAPL 88 MAN lease form with a three-year primary term commencing January 22, 2013 and filed a caveat to protect its interest. Fire Sky top leased the property on February 9, 2017 having formed the view that EverGro’s lease had expired.

Ranchman’s Receivership: Exploring Different Proprietary Rights in the Memorabilia

By Jassmine Girgis

On October 13, 2020

In Property, Securities

By: Jassmine Girgis*

PDF Version: Ranchman’s Receivership: Exploring Different Proprietary Rights in the Memorabilia

Article Commented On: Natalie Valleau, “Prized saddles, trophies and more picked up by rodeo families after Ranchman’s closure”, CBC News (2 October 2020)

Last month, one of Calgary’s iconic country bars closed its doors. Ranchman’s had been a part of Calgary’s western culture for close to 50 years, having first opened its doors April 27, 1972.

As is typical in receivership proceedings, the lender, the Bank of Montreal (BMO), seized Ranchman’s assets, including historic saddles and other memorabilia that hung from the building’s rafters. These memorabilia had been loaned to the bar by rodeo stars (referred to in this post as the “owners”); in exchange for food and drink, these owners allowed the bar to display the items, but on the understanding that they could take their property back whenever they wanted. Jim Gladstone, a champion calf-roper, commenced this practice after his 1977 world championship, wherein he took his champion saddle to Ranchman’s and, in exchange for not having to stand in line, pay cover, etc., he allowed Ranchman’s to display his saddle for free. Over the years, the bar acquired more memorabilia and trophies under the same conditions.

Upon reading about BMO’s decision to release the memorabilia to the owners (which came as a big relief to them and their families), I wondered whether BMO had concluded that it had no legal rights to retain the memorabilia, or had simply wanted to avoid a potential public relations nightmare (regardless of rights). Although BMO’s decision has rendered this point moot, I wanted to explore whether Ranchman’s could have had an interest in the memorabilia (referred to below as “collateral” or “property”), which would then have determined BMO’s legal rights in it. I write this post based solely on the facts garnered from a few newspaper articles (see here; here; and here).

Right to Know Day: You Have the Right to Know That Access to Information in Alberta is Terrible

By Drew Yewchuk

On October 6, 2020

In Access to Justice, Privacy

By: Drew Yewchuk

PDF Version: Right to Know Day: You Have the Right to Know That Access to Information in Alberta is Terrible

Statement Commented On: Right to Know Day: Minister Glubish, September 28, 2020

Last Monday was apparently the beginning of ‘Right to Know Week’, “which aims to advance and celebrate the public’s right to access information from governments.” This is also the 25^th anniversary of the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 (FOIP). I have complained about the serious problems with FOIP before (here, here, here, and here). The timelines for record delivery are routinely ignored, absurdly high fees are charged for spurious reasons, the administrative review body is about a year behind, and the redactions are so vague and broadly worded that government bodies can hide almost whatever they want. In short, if the government wants to lie or cover something up, FOIP is an ineffective tool to stop them.

This post takes a lighter tone and discusses some of the hilarious abuses of FOIP I’ve seen from my work with the FOIP requests.

The AUC Rejects an Application for an Industrial System Designation

By Nigel Bankes

On September 30, 2020

In Energy

By: Nigel Bankes

PDF Version: The AUC Rejects an Application for an Industrial System Designation

Decision Commented On: AUC Decision 25117-D01-2020, TA Kaybob 3 Generation Facility Inc. Generation Facilities Applications; SemCAMS Midstream ULC Industrial System Designation Application, Kaybob 3 Generation Facilities Project, September 25, 2020;

Discussion Paper Commented On: AUC, Self-supply and export – Alberta Utilities Commission discussion paper, June 5, 2020 (published July 29, 2020, AUC Bulletin 2020-28)

Under the terms of the Hydro and Electric Energy Act, RSA 2000, c H-16 (HEEA) and the Electric Utilities Act, SA 2003, c E-5.1 (EUA), the holder of an Industrial System Designation (ISD or IS designation) is entitled to meet its own electricity needs and export any surplus electricity to the grid. In other words, the holder of an ISD is exempt from the ‘must offer, must exchange’ rules of the EUA for any generation that it self-consumes (EUA, s117, and conditions included in ISD approvals). A principal advantage of the ISD for the holder is that the holder does not incur distribution and transmission tariffs for electricity that it consumes on site. As previously canvassed on ABlawg (see here), other exemptions from the power pool rules do exist, but these are smaller scale exemptions and recent decisions of the Alberta Utilities Commission (AUC or Commission) (see AUC Decision 23418-D01-2019, EPCOR Water Services Inc., E.L. Smith Solar Power Plant, February 20, 2019 (EL Smith decision) and related decisions) have reduced the availability of one of these exemptions, thereby increasing interest in the ISD (see for example AUC Decision 24979-D01-2020, International Paper Canada Pulp Holdings ULC, Industrial System Designation and Permanent Connection Order for the Grande Prairie Pulp Mill Complex, January 10, 2020; and for a more general discussion see AUC, Self-supply and export – discussion paper).

R v Theriault: A Case of Epistemic Injustice

Another Manitoba Oil and Gas Lease Termination Decision

Ranchman’s Receivership: Exploring Different Proprietary Rights in the Memorabilia

Right to Know Day: You Have the Right to Know That Access to Information in Alberta is Terrible

The AUC Rejects an Application for an Industrial System Designation