Alberta Law Review (ALR)
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The Regulation and Litigation of Cumulative Effects on Indigenous Rights Following the Yahey Decision and Blueberry River First Nation Settlement and the Potential Effects on the Energy Industry
Full text linkThe British Columbia Supreme Court issued a groundbreaking decision in Yahey v. British Columbia: the Crown had failed to uphold its treaty obligations due to the cumulative effects of over 100 years of development. In response to the 2021 decision, British Columbia and Blueberry River First Nation have reached a multi-million dollar investment agreement which includes joint decision-making powers regarding future development.
Yahey’s novel reasoning has significant implications for energy and resource development, treaty relations, and litigation across Canada. Similar claims have now been filed in Alberta, Saskatchewan, and Ontario, including Duncan’s First Nation seeking to apply Yahey’s reasoning in northwest Alberta. If courts across Canada adopt Yahey, land management decision-making could fundamentally change across much of the country
Collaborative Construction Contracts
Full text linkIn recent years, construction projects across Canada have encountered significant challenges, including a global pandemic, disruptions in the supply chain, environmental disasters, geopolitical conflicts, war, protests, volatile financial conditions, and the everincreasing time and costs associated with dispute resolution. These challenges have contributed to a scarcity in competitive and reliable pricing under traditional project risk profiles in some regions and sectors.
Canadian construction industry stakeholders are increasingly interested in collaborative contracting models like early contractor involvement, progressive design build, integrated project delivery, and alliance models. These models aim to achieve on budget and on schedule project completion, while minimizing disputes and incentivizing cooperative behaviours. Major projects in Ontario and British Columbia are proceeding under collaborative contracting models.
Meanwhile, the energy sector in Canada appears to be one of the few industries slow to adopt collaborative contracting models. It is common to see traditional fixed price or costplus design-build or engineering, procurement, and construction contracts on large industrial projects, particularly in Alberta. But the energy sector is not immune to the market factors shifting the tides in various other construction sectors in Canada. If energy projects wish to attract bids from an experienced and varied pool of potential participants and take advantage of some innovative contracting strategies, change may be warranted.
This article assesses the features and suitability of these collaborative contracts for the construction of energy-related projects in contrast to more traditional delivery models. The authors provide commentary on their risks and benefits and identify relevant opportunities for the energy sector in Canada to embrace collaborative construction contracting models
Exploring the Role of Mandatory Mediation in Civil Justice
No full textIn this article, I offer a framing of the debates around mandatory mediation that rest on the premise that a legitimate civil justice process depends on unhindered access to an adjudicative system, which must be recognized as a procedural right. This is a keystone of the rule of law, and a valid legal system that deserves the authority that it asserts is contingent on this. My central thesis is that requiring mediation (which is independent of the rule of law) before allowing full access to adjudication compromises the procedural rights of legal subjects, and the rule of law principle. Such a mandate is, therefore, an improper exercise of legal authority. This does not, however, mean that mediation cannot have significant value in enhancing the civil justice commitment to human dignity. The benefits that abound in mediation should be widely accessible, especially because mediation can (when it functions well) offer autonomous, empowered decision-making. The analyses that I offer here pave the road for determining, pragmatically, how mediation should be incorporated into civil justice systems, such that individuals can have legal claims adjudicated in a system that centralizes the rule of law and may also choose an equitable and well-structured mediation system that is responsive to concerns raised by critical race and feminist scholars about informal dispute resolution
Uncertainty Over the Scope of Borrower Protections in Mortgage Enforcement Proceedings in Alberta: The Problems and Potential Solutions
No full textThis article analyzes the complex legal framework surrounding protections for borrowers in mortgage enforcement proceedings in Alberta. It examines two statutory protections — default redemption periods and protection from deficiency judgments — as well as the applicability of non-recourse protection to non-purchase money loans and how Crown immunity has previously curtailed the protections. Homeowners are often unable to navigate the system due to its complexity and the power imbalance between lenders and borrowers.
The article advances several possible solutions to this issue, including education initiatives aimed at borrowers, enhanced disclosure obligations for lenders, and reforms to the scope of the borrower protections. These changes aim to assist homeowners in claiming the protections they are legally entitled to and to ensure that Albertans are not needlessly unhoused
Twenty Years After Krieger v Law Society of Alberta: Law Society Discipline of Crown Prosecutors and Government Lawyers
No full textKrieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly extraprofessional misconduct. Further research remains necessary on the patterns and incentives underlying law society discipline of Crown prosecutors and government lawyers. Nonetheless, the relative rarity of disciplinary proceedings involving Crown prosecutors and government lawyers does not necessarily mean that law societies are neglecting their statutory mandate as it applies to those lawyers. At the same time, law societies may indeed be overly reliant not only on internal discipline of these lawyers by governments as their employers, but also on criminal proceedings as prompts for investigation and discipline
The Invention of Advantage: Annapolis Group v. Halifax Regional Municipality and Canadian De Facto Expropriation Law
Full text linkThis essay, through exploring the evolution of de facto expropriation in Canada, argues that the Supreme Court of Canada has recently “reformulated” the test for de facto expropriation by inaccurately representing what its own prior cases stated. The Supreme Court asserted that no more than an “advantage” has to be acquired by the state, not an interest in property. After analyzing the Supreme Court’s prior precedents, the article contrasts them with what the Supreme Court said they stood for in its most recent case, Annapolis Group v. Halifax Regional Municipality
Who Pays for the Energy Transition?
Full text linkThe global shift towards decarbonization-driven energy technologies is reshaping existing energy systems and driving demand for clean energy. Governments, utilities, and private capital are embracing various technologies like wind, solar, nuclear, and hydrogen. However, the challenge lies in determining who bears the costs, risks, and rewards of this transition — governments, ratepayers, or investors — with lasting consequences. Taxpayers, utility ratepayers, and private investors each have unique interests that can create tensions. Despite diverse approaches across Canada, the ultimate aim is reducing emissions to net zero. This article explores the multifaceted funding scenarios and offers insights into efficient and equitable decision-making for a successful energy transition. It examines the roles of stakeholders, analyzes approaches, and recommends ways to navigate trade-offs
Welcome the Newest Unworthy Donor
Full text linkThis article explores the cy-près doctrine, the administrative scheme-making power of superior courts, and the application of these concepts to discrimination in the private law. The author considers whether these doctrines can be applied to rename a charitable purpose trust named after Kenneth Hilborn — a professor who expressed views offensive to the University of Western Ontario’s goals of equity, diversity, and inclusion — even though the trust itself includes no discriminatory conditions or terms. After examining the University of Western Ontario’s pleadings, the author concludes that the law as it stands does not support a Superior Court exercising its inherent jurisdiction to sanction the removal of Professor Hilborn’s name from the Hilborn Scholarships. However, given that the action is unopposed, it is possible that Western’s application may, nevertheless, be granted. Short of this, the author discusses other non-legal options available to Western to deal with the problem of an “unworthy donor.
Climate-Related Disclosure for Canadian Energy Companies - Getting Ready for the Mandatory Regime: Voluntary Guidelines, Rule Proposals, Governance Implications, and Best Practices to Avoid Greenwashing Allegations
Full text linkCanadian energy companies are increasingly releasing corporate statistics, metrics, and strategy on climate-related matters to the public. These disclosures, offered both independently and in response to investor and stakeholder demand, detail strategic management of risks and opportunities related to a company’s present and future environmental impact. The Task Force on Climate Related Financial Disclosures (TFCD) and the International Sustainability Standards Board (ISSB) have helped to standardize voluntary disclosure frameworks and standards, influencing recent proposals for mandatory disclosure rules issued by securities regulators in Canada and the United States. This article presents a comprehensive review of this fast-shifting landscape, outlining governance implications and best practices to help organizations navigate these complex regulatory developments. In this context, it also presents noted trends and international perspectives to help Canadian companies manage legal exposure to civil and regulatory “greenwashing” allegations stemming from voluntary and mandatory public disclosures
Defining "Effective Control" for Northern Métis Communities
No full textThe “effective control” doctrine arose within the Powley decision two decades ago as an adaptation of the Aboriginal rights test from Van der Peet. Though the doctrine is a required component to asserting Métis rights, there is limited understanding of how and when “effective control” occurs. The Courts have yet to clearly define the doctrine, leading to varying applications within jurisprudence. In the absence of clear definitions, this article proposes three components to the doctrine: surveillance; regulation of Aboriginal uses of land and resources; and regulation of other aspects of Aboriginal lives. These components are applied to northern Alberta to understand what events and government actions are relevant in precipitating “effective control.” The conclusion drawn is that “effective control” potentially occurred much later than previously contemplated by legal decisionsand government pronouncements