Alberta Law Review (ALR)
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Canadian Hack-Back?: A Consideration of the Canadian Legal Framework for Private-Sector Active Cyber Defence
No full textIn recent years, a debate has emerged over the extent to which victims of cyber security intrusions should be permitted to conduct activities in response — in particular, activities with effects in networks outside the victim’s own. Such controversial efforts are often referred to as active cyber defence (ACD) or, more colloquially, as “hack-back.” While multiple researchers have written about how private-actor ACD fits within the United States legal framework, this topic remains understudied from a Canadian perspective, raising the question of how Canadian legislation may address ACD. Currently, Canadian legislation implicitly prohibits most, if not all, ACD efforts, but international law likely leaves room for countries to legalize certain forms of ACD. Going forward, there may be a significant benefit to Canadian legalization of ACD if these efforts are limited to “intelligence gathering” and constrained by strict government oversight
The Standard of Review and The Duty to Consult and Accommodate Indigenous Peoples: What is the Impact of Vavilov?
No full textFollowing the Supreme Court of Canada’s landmark decision in Vavilov, an especially relevant issue in Canadian jurisprudence is how courts have applied Vavilov’s new standard of review framework. This article seeks to answer how the Vavilov framework affects decision-making regarding the duty to consult and accommodate. While Vavilov establishes a general presumption of reasonableness review for administrative decisions, it also carves out several exceptions to that presumption where the standard of correctness applies. The exception for section 35 Aboriginal and treaty rights under the Constitution Act, 1982 is relevant to the discussion in this paper, including what that exception means for cases involving the duty to consult and accommodate. Most cases involving duty to consult and accommodate questions regarding “trigger’ and “scope” have been reviewed on a correctness standard, while all other issues have been reviewed on a reasonableness standard. The authors argue that the logic in Vavilov suggests that a broader range of issues should be subject to the correctness standard than is currently the practice
Imperfect Duty: Lawyers’ Obligation to Foster Access to Justice
No full textAccess to justice is an integral component of the legal system. However, the question of upon whose shoulders the obligation of ensuring this access should fall has been widely debated. In particular, do lawyers, as part ofthe legalprofession, have a special obligation to foster access to justice? In this article, the author explores the legitimacy of various arguments with respect to whether lawyers should carry this obligation to a greater extent than other members of society. The author begins by critiquing the traditional arguments related to imposing such an obligation on lawyers — for instance, the refined monopoly arguments. She then goes on to critically consider an alternative argument: that imperfections in the marketfor legal services justify the existence of a special obligation for lawyers. An examination of the limitations of this justification follows. Overall, the author concludes that while the arguments arising from imperfections in the legal market offer the best justification for seeing lawyers have a special obligation to ensure access tojustice, the claims from the argument are modest ones, and any policy response in furtherance of such an obligation should be similarly modest
The “Good Corporate Citizen” Beyond BCE
No full textIn its landmark corporate law decision of BCE Inc. v. 1976 Debentureholders, the Supreme Court of Canada expressly referenced the “good corporate citizen” when commenting on the best interests of the corporation. The Supreme Court’s reference to good corporate citizenship is often viewed as salient yet ambiguous. As the Supreme Court did not provide any substantive legal analysis of the term, legal scholars and practitioners can only speculate on its intended meaning. This article provides an empirical study on the historical development and usage of good corporate citizenship when referenced in judicial cases. The empirical findings show that Canadian courts have invoked the notion for decades and in a variety of contexts. The meaning of good corporate citizenship varies from context to context and does not necessarily dovetail with corporate social responsibility as commonly perceived. Good corporate citizenship as a legal concept carries some practical yet controversial consequences in the environmental sentencing context. Importantly, the oft-acclaimed corporate governance paradigm shift since BCE seems more symbolic than substantive in judicial practices. The Canadian experience also provides insights into the global emergence of explicit corporate social responsibility legislation and stakeholder-oriented corporate governance
The Alberta Court of Appeal\u27s Vexatious Litigant Order Trilogy: Respecting Legislative Supremacy, Preserving Access to the Courts, and Hopefully Not to a Fault
No full textMapping Domestic Violence Law and Policy in Alberta: Intersections and Access to Justice
No full textDomestic violence is a social problem governed by numerous laws, policies, and justice system components at the federal, provincial, and territorial levels. These laws and policies can overlap and intersect in ways that create challenging access to justice issues for litigants in domestic violence matters, particularly marginalized women who are survivors of violence. This article analyzes the laws, government policies, and justice system components that apply to domestic violence in Alberta as one step towards enhancing access to justice in this context. It also recommends specific law reform measures, government oversight, and action by the courts and other legal actors to deal with problematic intersections and gaps that compromise access to justice. The focus is on law and policy prior to the COVID-19 pandemic, although significant legal and policy developments related to the pandemic are noted
Moving Forward by Looking Back: Toward a Renewable Conservation Scheme in Alberta
No full textThis article addresses unique features of renewable energy sources, including wind, hydro, solar, and geothermal, and the obstacles to developing them in Alberta. The authors analyze whether a provincial regulatory regime governing all energy sources is possible. After reviewing the key features of Alberta\u27s oil and gas conservation system regime, the authors conclude that based on Alberta\u27s oil and gas experience, regulatory intervention for renewables can succeed in building an efficient energy industry. The authors suggest that Alberta implement a renewable conservation regime with features including renewable title, rights of entry, unitization of resources, and renewable resources
Energy Storage: The Regulatory Landscape in Alberta
No full textEnergy storage technologies are increasingly being deployed in Alberta. In the recent past, costs were the largest hurdle to widespread energy storage deployment. But this is changing given falling battery prices. Indeed, the Alberta Electric System Operator (AESO) and the Alberta Utilities Commission (AUC) processes are increasingly considering energy storage development and potential but within the scope of existing legislation and its policy framework. Alberta’s traditional model of electricity regulation is based on generators supplying electricity to load customers for consumption and does not directly contemplate the unique attributes of energy storage. These attributes include the flexibility of customers to switch between supply and load, such as where a customer discharges a battery into the grid during peak hours and charges the battery during off-peak hours.
Energy market participants and policy-makers need to consider the use of flexible resources in an evolving electricity industry where distributed and intermittent power sources are increasingly prominent. Energy storage is playing a key role in this ongoing evolution. To that end, this article seeks to provide practitioners and industry stakeholders guidance on the current state of the Alberta regulatory landscape applicable to energy storage and anticipated changes.
Specifically, this article sets out the regulatory framework applicable to, and policy issues raised by, energy storage, including tariffs and competitive market issues, the concept of “hybrid sites” and self-supply and export issues, and AUC decisions approving the deployment of energy storage. As to how the landscape may change, this article looks at recent policy statements by the AUC and the AESO describing potential changes on the horizon
Regulating Reimbursements for Surrogate Mothers
No full textIn Canada, the Assisted Human Reproduction Act (AHRA) criminalizes commercial surrogacy while allowing surrogates to be reimbursed for their out-of-pocket expenses and lost work-related income during pregnancy. These reimbursements must take place in accordance with the Reimbursement Related to Assisted Human Reproduction Regulations (Regulations), which were enacted in June 2020. This article explores the history and development of the AHRA and draws on interviews with 26 Canadian fertility lawyers to examine and critique the Regulations. I argue that while the final version of these regulations is more inclusive and flexible than prior drafts, the AHRA may still leave some surrogates in a precarious financial position. In turn, while the Regulations help clarify what is a legal reimbursement, they are unlikely to deter paid surrogacy and may generate new confusion about what is permitted under the AHRA
Indigenous Ownership of Natural Resource Projects: A Framework for Partnership and Economic Development
No full textCommon ownership with Indigenous communities provides a way for energy industry project proponents to align their interests with those of Indigenous communities, allowing both to benefit in a meaningful way from such projects. Equity participation of Indigenous communities in such projects is becoming a more common strategy and involves unique challenges and considerations that other co-ownership situations do not. While Indigenous communities are diverse and their views cannot be condensed to a homogenous set of bullet points, this article discusses common priorities that such projects typically must consider, particularly relating to economic, environmental, and cultural interests of Indigenous communities. Similarly, unique challenges relating to financing, transactional issues, and the general structure of co-ownership agreements are explored