Alberta Law Review (ALR)
Not a member yet
2493 research outputs found
Sort by
The Evolution of Canada\u27s Carbon Markets and Their Role in Energy Transition
No full textThe tapestry of compliance and voluntary market mechanisms for carbon and other environmental attributes in Canada’s infrastructure capital markets reflects the almost 30-year history of carbon policy development in Canada and around the globe. This history of provincial and federal policy and regulatory changes has left some scars and stranded investments. As a result, energy market professionals and emission offset project developers have had to be resilient in their efforts to scale, integrate, and maximize opportunities for carbon credit products. Recently, we have witnessed increased efforts toward climate-focused investment criteria and technology-bolstered acceleration toward net-zero targets. Carbon credits are one of the key tools that will allow conventional businesses to continue operating as the economy decarbonizes, and they can also facilitate investment in new technologies and practices that will be critical to achieving material economy-wide emissions reductions. Both domestically and internationally, however, there are key barriers that are limiting carbon markets and that highlight the need for more carbon finance investment and policy certainty, as well as standardization and credibility in both compliance and voluntary environmental product markets.
Following the Supreme Court of Canada’s ruling in March 2021 to uphold the constitutionality of the federal government’s Greenhouse Gas Pollution Pricing Act , market expectations were high (and perhaps still are) that the regulatory landscape supporting carbon finance in Canada would finally come into better focus. This article will explore the current snapshot of compliance and voluntary carbon finance tools available in Canada, and will highlight some of the challenges and opportunities in navigating the interplay between these products
The Dawn of Vavilov, The Twilight of Doré: Remedial Paths in Judicial Review of Rights-Affecting Administrative Decisions and The Unification of Canadian Public Law
No full textThis article examines Canada’s position on the debate among comparative administrative law theorists about whether a court should apply the principle of proportionality to adjudicate allegations that an administrative agency has unjustifiably infringed human rights. On first impression, it would appear that decades ago, the Supreme Court of Canada affirmed the use of proportionality on judicial review of administrative decisions that allegedly limit rights that are explicitly protected under the Canadian Charter of Rights and Freedoms. It would then appear to be an open question whether or not the Supreme Court should “unify” Canadian public law by extending proportionality to cases where it is alleged that a decision has negatively impacted individual interests that do not enjoy constitutional protection. I argue that this framing of the debate from a Canadian perspective wrongly assumes that, by applying proportionality to adjudicate alleged infringements of Charter rights, the Supreme Court has applied it to all cases where an administrative decision has allegedly infringed human rights. In reality, the Supreme Court has applied proportionality only to cases where a person seeks a constitutional remedy for a violation of her Charter rights, not to cases where a person seeks an administrative law remedy traditionally available at common law for a negative impact on her human rights that are protected at common law. I argue that only more recent Supreme Court decisions can be interpreted as “unifying” Canadian public law by applying proportionality where a person seeks a common law remedy. Moreover, these conclusions suggest that the older legal doctrines the Supreme Court has developed applying proportionality where a person seeks a constitutional remedy should be substantially reformed
Limiting Freedom of Religion in a Pandemic: The Constitutionality of Restrictions on Religious Gatherings in a Response to COVID-19
No full textRestrictions on religious gathering as a response to the COVID-19 pandemic are a contentious issue. This article surveys the measures restricting religious gatherings and the legal challenges to those measures. There are three principal arguments that restrictions on religious gatherings are unconstitutional: (1) they lack instrumental rationality; (2) they are discriminatory; and (3) their deleterious effects outweigh their salutary effects. While the restriction measures likely limit section 2(a) and potentially section 15(1) rights under the Charter, these limits are justified because less restrictive alternatives to the measures are not equally effective, the measures are non-discriminatory, and their contribution to protecting Canadians from illness and death outweigh their deleterious effects. The article concludes with recommendations for future government measures directed at religious gatherings
The Justice Crisis: The Cost and Value of Accessing Law, Trevor C.W. Farrow & Lesley A. Jacobs, eds. (Vancouver: UBC Press, 2020)
No full text
 
Constitutional Change Without Constitutional Amendment - A Review of Constitutional Pariah: Reference Re Senate Reform and The Future of Parliament, Emmett Macfarlane (Vancouver: UBC Press, 2021)
No full textIf there is a better book on the challenges of constitutional change in Canada, I have yet to see it. Emmett Macfarlane’s masterwork on the constitutional politics of Senate renewal — Constitutional Pariah: Reference re Senate Reform and the Future of Parliament — exposes the great paradox of constitutional reform in Canada: the Canadian Constitution is today virtually unamendable, but it evolves constantly in both its form and content.1 Here is the puzzle: how can our constitution be simultaneously frozen and ever-changing? This outstanding book illustrates the complex and fascinating dynamics behind an essential feature of Canadian constitutionalism: the political reality of constitutional change without constitutional amendment.
In this review essay prepared at the invitation of the Alberta Law Review, I identify several of Macfarlane’s major contributions in this book and then situate the importance of his study to our understanding of the Canadian Constitution and the theory of constitutional amendment. What results, I hope, is not only a strong endorsement of this excellent book but moreover an invitation to law and political science scholars in Canada to join the theoretically rich discussion of real-time practical relevance that Macfarlane has initiated to the enormous benefit of the field of public law
The Doctrine of Contractual Absolution
No full textThe absence of a knowledge requirement is a novel and astonishing feature of unconscionability in Canada, and one that calls for scholarly reflection. In other jurisdictions and formerly in Canada, unconscionability required that the benefiting party knew or at least should have known that its counterpart was impaired in the making of the contract. Such knowledge established a minimum level of wrongdoing, so that even without more active exploitation, it was unconscionable as an “unconscientious abuse of power.” But following the Supreme Court decision in Uber Technologies Inc. v. Heller (2020), Canadian contract law rejects this conventional approach. It does not require exploitation to relieve improvidence by the vulnerable. It is argued here that this does not reflect the notion of unconscionability, and is better understood rather as a novel doctrine of contractual absolution. This article analyzes the important implications of this maverick doctrine for the law, the market, and fundamental assumptions about the nature of contractual obligation
To Share, Not Surrender: Indigenous and Settler Visions of Treaty Making in the Colonies of Vancouver Island and British Columbia, Peter Cook, Neil Vallance, John Sutton Lutz, Graham Brazier & Hamar Foster, eds. (Vancouver: UBC Press, 2021)
No full text
 
The Evolving Approach to Charter Interpretation
No full textThe Supreme Court of Canada’s living tree metaphor and purposive method of interpretation shaped Charter jurisprudence over the last four decades. This article explains that the Supreme Court is revising its approach to Charter interpretation in reaction to criticism by observers who advocate textualism and originalism. The article explores the contours of the Supreme Court’s emerging purposive textual method of interpretation and considers the implications of the interpretive approach for existing Charter jurisprudence. Potentially significant implications of the changes in the Supreme Court’s interpretive method are identified
Restructuring and Insolvency Deals in the Oil Patch: Recent Trends and Developments
No full textMarket forces, the pandemic, and regulatory changes in recent years have created bothopportunities and challenges for the energy industry. Insolvencies are being used to shed liabilities, for strategic restructurings, and to minimize the environmental liabilities that would otherwise end up with industry-funded orphan programs. Recent jurisprudence continues to shift this landscape and has left insolvency, particularly in the oil patch, in astate of flux.
This article explores the basics of insolvency in the oil patch, recent developments in the sector, and things practitioners should know moving forward
Alberta’s Mental Health Review Panels: Accountable, Transparent Adjudication?
No full textThis article examines issues of accountability and transparency in Alberta’s Mental Health Review Panel process. A person who is involuntarily admitted to a mental health facility, or who is subject to a community treatment order (CTO), can appeal to the Review Panel to have their admission certificates or CTO cancelled. This process is intended to provide access to a decision-maker to review decisions that affect the liberty of those living with mental illness. Unfortunately, Alberta’s Mental Health Review Panels are not transparent or accountable decision-makers.
The article begins with a brief outline explaining the delivery of mental health care in Canada, followed by a description of Canadian law on CTOs. The article then examines Alberta’s Mental Health Review Panels — first in terms of their role in relation to CTOs, followed by concerns about accountability and transparency in the Review Panel process. Finally, the article looks at legal and system reforms that will enhance the accountability of the process