Alberta Law Review (ALR)
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The New Federal Impact Assessment Act: Implications for Canadian Energy Projects
No full textImplementation of the new Impact Assessment Act regime is now underway, changing the process for federal assessment of energy projects. While the reformed regime resembles its predecessor in many ways, it also includes many changes, including new requirements with respect to climate change, the rights and interests of Indigenous peoples, sustainability, and economic considerations. Despite much criticism of the Impact Assessment Act in public and political realms, implications for energy projects, particularly in Alberta, remain not well understood. It has been unclear, for example, the extent to which the changed federal process will actually affect whether a project is approved or not. This article provides an overview of the new federal regime and examines what it may mean in practical terms for energy projects, with an emphasis on the Alberta context. Particular focus is devoted to changes from the previous federal regime, chiefly with respect to the assessment and final decision-making phases. Overall, the analysis indicates that for the small number of projects that trigger application of the regime, the assessment process is likely to be more onerous but unlikely to result in fewer project approvals. Rather, the new process still provides significant latitude and discretion that will likely see most projects approved, and the more robust assessment process may translate into broader public support
Pathways to Net-Zero: Opportunities for Canada in a Changing Energy Sector
No full textThe climate is changing, and Canada is changing with it. Canada has committed to reducing its greenhouse gas emissions. Initiatives have been taken, but more work is needed. Private enterprise is key to the invention, improvement, and proliferation of sustainable energy sources. The extent to which the Canadian economy can be decarbonized hinges in part on how effectively regulatory schemes facilitate and incentivize commercial endeavours to exploit low-carbon energy sources. This article accordingly evaluates foreseeable regulatory frameworks for three new lower-carbon energy sources: hydrogen, geothermal energy, and biofuels. The thread running throughout this article is that, while there are many challenges ahead, there is also opportunity: regulatory schemes are evolving and adapting to support business ventures that monetize these three renewable energy sources
Mental Illness and Professional Regulation: The Duty to Report a Fellow Lawyer to the Law Society
No full textLawyers have a largely overlooked duty to report other lawyers to the law society in a range of circumstances. This duty contemplates mental illness, explicitly or implicitly, as a reportable condition and thus engages issues of stigma and discrimination. This article analyzes this reporting duty with a focus on its implications for lawyers with disabilities. The article begins by examining the history and text of the rule and considering several legal problems it presents. It then canvasses law societies’ duties to their members with disabilities under human rights law and analyzes how the duty to report interacts with human rights law. It concludes by making recommendations for law societies, including amendments to the rule containing the reporting duty
Lawyers as Quasi-Public Actors
No full textAmerican lawyers are often conceived of as agents of the client (mere hired guns or mouthpieces for their client) who can select specific categories of clients at their discretion. However, the law governing lawyers as a whole is not purely private in nature as it does place some public duties on lawyers. An example of this is the rule in the American Bar Association’s Model Rules of Professional Conduct that imposes a duty on lawyers to provide pro bono legal services to those who need it. Although this duty is not enforceable through the disciplinary process, this responsibility will nevertheless continue to fall on individual lawyers due to the political realities in the United States. The author provides a justification for this unenforceable requirement by conceptualizing lawyers as quasi-public officials, thereby imbuing the lawyer’s role with responsibilities to both the client and to the legal system. Rather than being soley private actors, lawyers have a duty to act in the interests of justice, thereby ensuring “access to justice.
Prompt Payment Movement Sweeps Across Canada: Is the Energy Industry Ready to Comply?
No full textJurisdictions throughout Canada are debating, drafting, and enacting legislation for prompt payment and mandatory adjudication in the construction industry. The purpose of such legislation is to avoid the pitfalls of delayed payments and improve the dispute settlement system. Although this legislative push is inspired by reforms undertaken in the UK decades ago, Canadian jurisdictions are now following Ontario’s lead in legislating swift payment deadlines and adjudication requirements. This article surveys these legislative changes as they first occurred in the UK context and as they are now occurring throughout Canada. Special attention is given to implications for the Canadian energy sector. The article concludes by offering some risk allocation strategies for drafting contracts under the new statutory requirements
Recent Judicial Decisions of Interest to Energy Lawyers
No full textLast year’s submission canvassed judicial decisions that were released prior to, and post-implementation of, COVID-19 restrictions. The advent of COVID-19 caused unprecedented economic and social disruption and no industry or social institution was immune to its effect. Alberta was already attempting to manage one of the highest unemployment rates among the provinces when the COVID-19 pandemic exacted its multi-faceted toll. One aspect was a serious decline in the demand for oil, which further impacted oil prices, and the very manner in which energy industry participants would operate in the near and longer terms. The judiciary, and the broader legal system, suffered no less an impact, and extraordinary measures were taken to maintain the rule of law and preserve meaningful access to justice.
Notwithstanding the extraordinary circumstances all have endured since March 2020, many reported decisions of significance to energy industry participants have been released by Canadian courts over the past year. This article summarizes a selection of key decisions covering developments in the Canadian law of contract, energy, environment, insolvency, Aboriginal, employment and labour, minority shareholder’s rights, as well as developments in civil litigation procedure. In each topic area the identified cases are reviewed with respect to their facts, a summary of the decision, and a brief commentary as to the implications or general significance of the case
From Slow Food to Slow Meat: Slowing Line Speeds to Improve Worker Health and Animal Welfare in Canadian Abattoirs
No full textThis article examines the regulation of production line speeds in Canadian meat and poultry processing facilities to better understand their impact on worker safety and animal welfare. The article begins with an overview of the regulatory framework that sets line speed conditions in federally licenced facilities. It notes how recent shifts in food safety governance facilitate increased speeds that endanger workers and animals on the kill floor. First, it highlights tensions between regulatory objectives in the Safe Food for Canadians Regulations that focus on food safety targets and humane handling guidelines respectively. It then turns to the occupational health and safety risks associated with working at meat and poultry processing facilities. Particular emphasis is placed on the way that COVID-19 outbreaks in Canadian slaughterhouses drew attention to this grueling work that had previously been ignored. The article concludes by noting that the pandemic has created a unique policy window to slow down production speeds; a policy window that should be seized
The ABCs of EFCs: Eligible Financial Contracts and Energy Company Insolvency Proceedings
No full textCanadian insolvency laws provide special treatment for complex financial instruments such as swaps, forwards, and other derivatives referred to as “eligible financial contracts” or “EFCs.” However, this special treatment continues to lead to disputes during insolvency proceedings as to whether various forms of energy trading contracts are properly characterized as EFCs. This article establishes that courts look at the essence of any contract and whether it serves an underlying financial purpose to determine if it can be characterized as an EFC. This article also aims to clarify the scope and limitations of the protections and legal remedies that may be available or unavailable to solvent counterparties to an EFC
Supreme Court Restates Directors\u27 Fiduciary Duty - A Comment on Peoples Department Stores v. Wise
Full text linkThis article considers the implications of the recent Supreme Court of Canada decision in Peoples Department Stores v. Wise for the law of directors\u27 fiduciary duties. The Court’s decision is attacked on two grounds.
First, the author criticizes the Court’s interpretation and treatment of the phrase "the best interests of the corporation" as found in the Canada Business Corporations Act. It is argued that the decision in Wise rejects the traditional interpretation of this phrase which was previously accepted to mean "the best interests of the shareholders collectively. " This rejection raises the spectre of the debate between the "shareholder primacy " model of directors\u27 duties and broader "pluralist" alternatives. By undercutting the lynchpin of the "shareholder primacy" model, the author suggests that the Court has left a vacuum in the law because the Court failed to outline what is to replace this traditional interpretation, or even to acknowledge the substantive change being made. At the level of process, it is equally suggested that the revision of important principles in corporate law exclusively through the judiciary is fundamentally undesirable, where the law of directors\u27 duties has such a large element of public policy attached to it. The author also proposes that the decision in Wise has resulted in an unacceptable level of uncertainty in the law, and that this uncertainty was neither necessary nor advisable to resolve the case before the Court.
Second, the author criticizes the Court\u27s comments indicating that a breach of fiduciary duty requires mala fides on the part of directors. It is argued that this is inconsistent with pre-existing case law