Further Thoughts on The Law and Practice of Grandparenting

By: Nigel Bankes

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Decision Commented On: AUC Decision 22942-D02-2019, Alberta Electric System Operator, 2018 Independent System Operator Tariff, September 22, 2019.

The term “grandparenting” refers to the decision of a legislator, regulator or utility service provider to exempt existing operations from new terms of service or from new regulatory requirements. The decision to grandparent or not, and the extent of any grandparenting (i.e. the cutoff point), is frequently very contentious. Although we see grandparenting issues in many different areas of the law, including environmental law, land use planning, tax law, royalties (see my earlier post on royalties and grandparenting here), and the criminal law (restricted weapons), this post focuses on grandparenting issues in energy and utility law. In particular, this post examines decisions of the Alberta Utilities Commission (AUC) on grandparenting (or grandfathering as the term is usually written). The impetus to examine this issue arises from the AUC’s recent decision on the tariff application of the Alberta Electric System Operator (AESO) (the AESO 2018 Tariff Decision). In that decision, the AUC made two rulings in favour of applying grandparenting. In my view, neither ruling is very well or completely reasoned. That led me to look at the AUC’s record to see how it had dealt with this issue in the past. My basic position is that one should always be at least suspicious of grandparenting. It is, on its face, discriminatory and those who favour a grandparenting arrangement in a regulatory context bear the onus of justifying that arrangement. It also may mean that parties do not compete on a level playing field and to that extent is inconsistent with a free, open and competitive market thus requiring further justification. Continue reading →

Bill 26 and the Rights of Farm and Ranch Workers in Alberta

By: Jennifer Koshan

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Bill Commented On: Bill 26, Farm Freedom and Safety Act, 2019 (First Session, 30th Legislature)

As promised in its election platform, the UCP government has taken steps to repeal parts of Bill 6, the Enhanced Protection for Farm and Ranch Workers Act – the NDP’s initiative to extend labour and employment protections to farm and ranch workers. For previous posts on the need for Bill 6 and the changes that it made to labour and employment legislation in Alberta, see here. The latest development in this saga is last week’s introduction of Bill 26, the Farm Freedom and Safety Act, 2019, which had second reading in the legislature on November 26, 2019. This post will describe the changes that Bill 26 seeks to make and discuss the possibilities of a constitutional challenge to the Bill. Continue reading →

Bidders Do Not Owe Duties of Fairness and Honesty to Other Bidders in Tendering Competitions

By: Jassmine Girgis

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Case Commented On: LaPrairie Works Inc v Ledcor Alberta Limited, 2019 ABQB 701(CanLII)

This case raises the interesting question of whether bidders in a tendering competition owe duties of fair play to other bidders. The plaintiffs asserted that a contract had been formed among the bidders, requiring the bidders to treat each other fairly in the bid preparation stage, and that this contract had been breached at their expense. In a judgment summarily dismissing this claim, Justice Michael Lema found that the plaintiffs had not discharged the onus of proving a contract existed (at para 57). Continue reading →

A Lesson in First Year Criminal Law Principles: How The Supreme Court of Canada “Modifies” Objective Mens Rea Offences in R v Javanmardi

By: Lisa Silver

PDF Version: A Lesson in First Year Criminal Law Principles: How The Supreme Court of Canada “Modifies” Objective Mens Rea Offences in R v Javanmardi

Case Commented On: R v Javanmardi, 2019 SCC 54 (CanLII)

As I come to the close of the first half of teaching 1Ls criminal law principles, I review the course syllabus for the second half of the course to revise, delete, and add relevant case readings. Next term, I will discuss those crimes, which require the objective form of liability or objective mens rea. Although this area was once rife with disagreement and fractured alliances at the Supreme Court of Canada level, at the time of formulating last year’s syllabus, objective mens rea offences, such as unlawful act manslaughter and criminal negligence causing death, were well-defined both in terms of actus reus (prohibited act) and mens rea (fault element). However, the law can and does change; either through clarification or modification of accepted legal rules and principles or through the creation of completely new ones. In R v Javanmardi, 2019 SCC 54, the most recent Supreme Court of Canada decision on objective mens rea offences, it appears the Court has done more than clarify and modify what was a settled area of law but has, arguably, radically re-defined the legal tests and principles forobjective mens rea offences in the Criminal Code. This article will attempt to deconstruct the majority decision, authored by Justice Rosalie Abella, in an effort to understand the significance of this decision and the future impact it will have to this area of law. Continue reading →

Public Interest Standing and Wild Horses in Alberta

By: Shaun Fluker

PDF Version: Public Interest Standing and Wild Horses in Alberta

Case commented on: Alberta’s Free Roaming Horses Society v Alberta, 2019 ABQB 714 (CanLII)

This decision grants public interest standing to Alberta’s Free Roaming Horses Society and one individual (the ‘Applicants’) seeking declarations and mandamus in relation to a 2005 ministerial designation of public lands under section 9 of the Stray Animals Act, RSA 2000, c S-20. The Applicants assert that the Minister responsible for the administration of public lands under the Act failed to comply with a statutory requirement to form an opinion in relation to designating lands upon which persons may be licensed to capture and dispose of wild horses. They accordingly sought a judicial declaration that the 2005 land designation is void and an order requiring the Minister to form the opinion and publish it prior to making any future land designations under section 9 of the Act. The Province responded that the Applicants do not have standing to commence these proceedings and that the proceedings should be struck as an abuse of process. The Province also sought summary dismissal on the basis that the Applicants’ claim is barred by a limitation period. In this decision, Mr. Justice B.A. Millar ruled that the Applicants have public interest standing, but he summarily dismissed the application because the proceedings relate to a decision made in 2005 which is far beyond the 6 month time limitation for seeking judicial review under section 3.15(2) of the Alberta Rules of Court, Alta Reg 124/2010. Continue reading →