ABLawg

Western Canadian Lithium as a Critical and Strategic Mineral for Clean Tech Battery Storage Technologies

Matters Commented On: The Canadian Minerals and Metals Plan 2019; Review of the Alberta Mineral Development Strategy 2002 by the Alberta Mineral Advisory Council; Québec Plan for the Development of Critical and Strategic Minerals (2020-2025)

Critical and strategic minerals (CSMs), including lithium, are essential for the transition of the global economy to “net-zero.” The COVID-19 pandemic will only serve to accelerate this transition. Calls for rebuilding economies on ambitious and sustainable climate principles have become louder since the pandemic began. At a multilateral level, the April 2020 Petersberg Climate Dialogue established clear directions towards a sustainable and climate-focused post-pandemic recovery. Such recovery plans are also echoed in the European Commission’s Next Generation EU recovery plan, and the September 2020 Government of Canada’s Speech from the Throne, both of which set out clear impulses towards developing clean tech industries as part of post-pandemic economic recovery.

However, CSMs, such as lithium, have been recognized for their importance well before the pandemic. In 2019, the International Renewable Energy Agency reported that global sales of electric vehicles, which rely heavily on lithium-ion batteries, increased significantly from 500,000 units in 2015 to over 2 million units in 2018. The Bank of Canada recently cited the International Energy Agency’s projection that there will be 120 million plug-in hybrid or battery electric vehicles on the world’s roads by 2030. In Canada, the share of all electric vehicles amounted to approximately 2.3%, or 90,100 vehicles, of the total vehicle market in 2018, with 51% consisting of battery electric vehicles. In addition, the rapid scaling-up of wind and solar renewable electricity generation is not only vital for decarbonizing global energy systems, but will crucially depend on electricity storage technologies. Lithium-ion batteries are efficient and have fast charging and discharging rates, making them ideal for the large-scale implementation of renewable energy sources to meet baseload power demands.

The Standard of Review and the Duty to Consult and Accommodate Indigenous Peoples: What is the Impact of Vavilov? Part 2

By Howard Kislowicz

On November 24, 2020

In Aboriginal, Administrative Law

By: Howard Kislowicz and Robert Hamilton

PDF Version: The Standard of Review and the Duty to Consult and Accommodate Indigenous Peoples: What is the Impact of Vavilov? Part 2

Case Commented On: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII)

In our last post, we laid out some background on how the standard of review applies in cases involving the Crown’s constitutional duty to consult and accommodate (DTCA) Indigenous peoples. We argued that the changes brought by Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII) with respect to statutory appeals – where a statute provides that a government decision may be appealed to a court – might allow legislatures to insulate the decisions of the executive by subjecting them to a “palpable and overriding error” standard of review rather than a reasonableness standard. In this post, we look at the other, more common kind of case that arises in administrative law: judicial scrutiny of government decisions through an application for judicial review. Here, the standard of review analysis differs.

In applications for judicial review, Vavilov establishes a general presumption that the standard of review for an administrative decision will be reasonableness (at paras 23–32). However, it also carves out some exceptions to this presumption, in which the standard of review will be correctness. The relevant exception for this post is for questions regarding “the scope of Aboriginal and treaty rights under s. 35 of the Constitution Act, 1982” (at para 55). Important ambiguities persist about what this means for the DTCA. On one hand, DTCA litigation does not determine Aboriginal rights. The DTCA was designed to apply where the Crown considered an action that could impact an Aboriginal right that had not yet been adjudicated. Though it was later extended to established rights, it remains a procedural duty on the Crown rather than an Aboriginal right per se). If this is the case, this would suggest that the correctness exception does not include DTCA issues. On the other hand, the DTCA is a constitutional obligation understood as a limit on the exercise of sovereignty; it shares much in common with the other issues to which Vavilov applies the correctness standard. We argue that the logic supporting the existence of the constitutional exception in Vavilov also supports the application of the correctness standard to a broader range of DTCA issues than is currently the practice. This post considers how Vavilov may have changed considerations of judicial reviews arising in DTCA contexts.

Bill C-12, Canadian Net-Zero Emissions Accountability Act: A Preliminary Review

By David V Wright

On November 23, 2020

In Climate Change, Environmental

By: David V. Wright

PDF Version: Bill C-12, Canadian Net-Zero Emissions Accountability Act: A Preliminary Review

Matter Commented On: Bill C-12, Canadian Net-Zero Emissions Accountability Act, 2nd Sess, 43rd Parl, 2020 (first reading 19 November 2020)

Just a few days ago, the federal government tabled Bill C-12, Canadian Net-Zero Emissions Accountability Act. This post provides a brief overview and preliminary reflections on the proposed law. Overall, the bill represents a significant milestone in Canadian climate policy, a realm that has been plagued by decades of setting-then-missing emission reduction targets. No previous federal government has so explicitly committed to a long-term emissions reduction pathway and milestones, let alone one with numerous accountability and transparency mechanisms. However, for reasons I discuss below, despite being characterized by the government as “binding”, the proposed law features a number of weaknesses and limitations. Further, while tabling this bill is a commendable step (especially if it becomes law), and is the result of many years of hard work and input from environmental organizations, it leaves difficult, long-standing conversations unaddressed.

The Standard of Review and the Duty to Consult and Accommodate Indigenous Peoples: What is the Impact of Vavilov? Part 1

By Howard Kislowicz

On November 20, 2020

In Aboriginal, Administrative Law

By: Howard Kislowicz and Robert Hamilton

PDF Version: The Standard of Review and the Duty to Consult and Accommodate Indigenous Peoples: What is the Impact of Vavilov? Part 1

Case Commented On: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII)

This is a two-part post that examines the potential impact of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII) on the Crown’s duty to consult and accommodate (DTCA) Indigenous peoples. Part 1 deals with statutory rights of appeal. Part 2 deals with applications for judicial review. Other ABlawg contributors have touched on related questions; Nigel Bankes’ “Statutory Appeal Rights in Relation to Administrative Decision-Maker Now Attract an Appellate Standard of Review: A Possible Legislative Response” is particularly relevant, as is Shaun Fluker’s post “Vavilov on Standard of Review in Canadian Administrative Law.”

The Supreme Court’s decision in Vavilov (and the Vavilov-trilogy as a whole) was intended by the Court to provide much needed clarity to Canadian administrative law. The impact of the decision is clear: it has been cited by no fewer than 1500 lower court decisions in less than a year. Despite the Court’s attempt at comprehensive refinement of the doctrine, however, Vavilov left considerable uncertainty concerning the applicability of the new rules in the context of the Crown’s DTCA Indigenous peoples. Two things lead to this uncertainty. Vavilov changes the standard of review analysis in two kinds of cases: (1) where a court reviews an administrative decision under a statutory appeal mechanism, and (2) where a court reviews an administrative decision through an application for judicial review. The first uncertainty arises in relation to statutory appeals. Under Vavilov, the standard of review on statutory appeals follows the case law on appeals: questions of law will generally be reviewed on a correctness standard and questions of fact or mixed fact and law will be reviewed on the palpable and overriding error standard (Vavilov at para 37; Housen v Nikolaisen, 2002 SCC 33 (CanLII)). In the context of the DTCA, uncertainty attends the application of this framework, as it appears to secure greater judicial deference to decision-makers on issues of fact and mixed fact and law. Because of this, it appears to be possible for a legislature to ensure greater judicial deference for executive action (such as ministerial decisions) where it anticipates issues with the DTCA through the inclusion of a statutory right of review. This seems contrary to Vavilov’s reasoning that statutory appeals are indications that the legislature prefers less, rather than more, deference. It is not clear that the court contemplated this possibility and, if so, whether it considered it an acceptable consequence of the doctrinal refinement.

Forgery, Fraud and the Dower Act

By Nigel Bankes

On November 19, 2020

In Property

By: Nigel Bankes

PDF Version: Forgery, Fraud and the Dower Act

Case Commented On: Inland Financial Inc v Guapo, 2018 ABQB 162 (Master) (CanLII), aff’d 2019 ABQB 15 (CanLII), aff’d 2020 ABCA 381 (CanLII)

Jose Neeves Guapo and Maria Guapo, a married couple, owned a home registered in the names “Jose Guapo and Maria Guapo” as joint tenants. Their son, Jose Domingos Guapo, lived in the home but had no ownership interest in it. It is important to note that father and son shared the same first name and surname and that the name on the register did not include Jose Guapo Sr’s middle name. The Court of Appeal summarized the key facts as follows (at para 5):

Jose Guapo Jr persuaded his mother to apply through a broker to Inland Financial for a loan to be secured by a mortgage on the home. He had done this on 12 different occasions with different brokers for progressively larger amounts. Inland Financial approved the loan in the amount of $245,000. The mortgage documents to secure the loan were prepared by Inland Financial’s lawyers and signed by Maria Guapo and Jose Guapo Jr, impersonating his father, who had no knowledge of the transaction. Inland Financial thought the son owned the house with his mother particularly since they had both sworn a statutory declaration that they were the owners and the house was their principal residence. The mortgage was registered against the title to the home. Funds were advanced and used to pay out two previous mortgages, also fraudulently obtained by Jose Guapo Jr, and the balance of the funds were paid into a bank account in the names of Maria Guapo and Jose Guapo Jr. It is unclear whether Maria Guapo understood the nature of the transaction as she did not speak English and did only what her son instructed her to do. She had received a Grade 4 education in Portugal, at the lawyer’s office her son spoke to her only in Portugese (sic), and she testified through an interpreter at questioning. There is no evidence that she received any funds from the mortgages.

When Jose Guapo Jr defaulted on the mortgage payments Inland commenced foreclosure proceedings. Inland also sought personal judgment against Jose Guapo Jr but did not seek a personal remedy in fraud against Maria Guapo. Jose and Maria Guapo defended; the son was noted in default.

As the title to this post suggests, these facts potentially engaged both the Dower Act, RSA 2000, c D-15 and the Land Titles Act, RSA 2000, c L-4 (LTA). The Court of Appeal decided the case solely on the basis of the Dower Act while the judgments below addressed the implications of both statutes.