Alberta Law Review (ALR)
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The Conceptual Structure of Commercial Law
No full textThis article argues that commercial law is not merely a collection of rules, but a doctrinally coherent and conceptually sophisticated body of law structured through conceptions of property. The analysis focuses specifically on the aspects of commercial law that govern recovery of debt. The argument advances two related themes; that commercial law is built around conceptions of property and reciprocally defines the conceptions of property around which it is built. The article first addresses the role of property as the structural framework of commercial law. Property creates the basis for assertion of rights and provides the conceptual interface between the legal regimes of secured financing, judgment enforcement, and bankruptcy. Further, property is the basis on which commercial law rights and interests are reconciled with rights and interests that fall outside its boundaries. The article then explores the means by which commercial law resolves practical problems through the creative definition of property. The article concludes with thoughts on the importance of understanding the central role of property in the structure and function of commercial law
Tsilhqot\u27in Nation v. British Columbia and Civil Justice: Analyzing the Procedural Interaction of Evidentiary Principles and Aboriginal Oral History
No full textOppression or Derivative? Greater Clarity Through the Requirement for Direct Harm
No full textIn this article, the author seeks to discern the limits of the broadly scoped oppression action. The author first discusses the oppression and derivative actions and their purposes, and then argues that the oppression provision does not embrace derivative harm. Using the recent Supreme Court of Canada decision in Brunette, the author reinforces the requirement of direct injury distinct from that suffered by the corporation, when bringing a personal action. The author then examines case law in pursuit of clarity about what constitutes direct harm and whether it is difficult to demonstrate. The author concludes by recommending that the Supreme Court clarify the distinction between oppression and derivative actions by integrating the direct harm requirement into the test for oppression
The Supervisory Jurisdiction of the Alberta Utilities Commission Over Municipally Owned Utilities
No full textThe primary approach in Alberta has been that the distribution of utility services delivered by investor-owned utilities are subject to full economic regulation by the Alberta Utilities Commission, whereas if public utility services are delivered by municipalities it has been recognized that the services should be principally regulated by the municipal council rather than the Commission. Affording the municipal council, or its equivalent, regulatory jurisdiction over municipally owned utilities involves a more politically responsive form of regulation. The role of the Commission in this context is limited. The Commission has exercised narrow jurisdiction to ensure that rates established for municipally owned utilities are internally and externally consistent, and to ensure that such rates are not unreasonably discriminatory
UNDRIP as a Framework for Reconciliation in Canada: Challenges and Opportunities for Major Energy and Natural Resources Projects
No full textThe advancement of reconciliation with Indigenous peoples in Canada has had a significant impact on the approval of energy projects since the introduction of section 35 of the Constitution Act, 1982. The legal concepts of consultation, accommodation, and consent have pushed the boundaries of our existing regulatory regimes and challenged the way we think about administrative processes. The move toward the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Canada, including the concept of “free, prior and informed consent,” is certain to further push those boundaries as governments advance reconciliation with Indigenous peoples. In canvassing current legislative, proposed legislative, and policy developments across Canada — in particular, recent legislative changes in British Columbia — there appear to be different models developing for incorporating UNDRIP into Canadian law. These models range from express requirements in relation to Indigenous consent on major project approvals, to more flexible frameworks that will enable governments to address UNDRIP incrementally over time. Ultimately, many important questions remain with respect to how UNDRIP will impact energy development in Canada
Recent Judicial Decisions of Interest to Energy Lawyers
No full textThe past year was a busy one for the energy industry, with many reported decisions of significance. Key decisions regarding constitutional jurisdiction, the duty to consult, and judicial review kept the industry in a pattern of optimism and hesitancy. This article summarizes a number of recent judicial decisions and provides commentary on their significance to Canada’s energy industry. In particular, decisions reviewed in this article cover subjects including constitutional division of powers, the Crown’s duty to consult, oil and gas leases and purchase and sale agreements, environmental remediation and liability, insolvency, intellectual property, tax, remedies and injunctive relief, class actions, conflict of laws, arbitration, and judicial review. In each case, the facts, a summary of the decision, and commentary on the outcomes and future implications for energy lawyers and the industry are canvassed. With the past year of decisions finishing with COVID-19 restrictions, the energy industry saw some of the most drastic change in recent memory. The industry will need to exercise perseverance in these tumultuous times in order to adapt, withstand, and recover from the changes of this past year
The Economics of Canadian Anti-Discrimination Laws
No full textProhibiting discrimination is a noble political statement. What does it mean as economic policy? Applying a neoclassical framework, the article examines how Canada’s human rights laws affect society and marginalized groups from a welfare perspective. The article offers several practical reforms to improve the efficiency of current laws such as uncapping damage awards, removing criminal sanctions, and allowing non-profits to participate in remedies so as to compensate marginalized groups for systemic effects of discrimination. It also discusses bolder market-based options, including the taxing and licencing of discrimination for instances where our great project towards equality might be better served by redistribution than prohibition
Administrative “Determinations of Law” and the Limits of Legal Pluralism after Vavilov
No full textAs the doctrine of judicial review has matured, Canadian courts have become increasingly attuned to the role that administrative agencies play in maintaining the rule of law. The courts have recognized that in order for administrative agencies to function effectively, they must have some freedom to interpret their statutes. Accommodation of nonjudicial interpretations of law, however, has limits. While the courts have often addressed jurisdictional limits in Diceyan terms, they have also addressed the structural limitations that flow from the nature of delegated discretion. These limitations make it impossible for administrative agencies to make determinations of law as courts do. Most agencies do not have the power to create binding policy or otherwise resolve ambiguities in their enabling statute. Rule of law concerns may arise from the resulting uncertainty as much as from questions of vires. Administrative agencies are unable to settle constitutional questions, questions of central importance to the legal system, or jurisdictional disputes between agencies. Settling ambiguity in existing law is a function that only the courts can perform. Nonetheless, the legitimacy of law-making by nonjudicial institutions within their limits has long been recognized in the common law world. This article describes the development of legal pluralism regarding the sources of law in Canadian jurisprudence. The article then examines the extent to which Vavilov’s new framework for reasonableness review articulates how nonjudicial decision-makers might manifest the rule of law within a “culture of justification.
Structural Change or Collective Amnesia? A Review of Breakdown: The Inside Story of the Rise and Fall of Heenan Blaikie, Norman Bacal (Toronto: Barlow Books, 2017)
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Climate Change and the Right to a Healthy Environment in the Canadian Constitution
No full textThis article discusses the first efforts of non-governmental organizations and Indigenous communities in Canada to force governments to move more aggressively to mitigate climate change through constitutional litigation. The claimants argue the failure of the Canadian government to implement adequate climate change policies violates the constitutionally protected rights under the Canadian Charter of Rights and Freedoms, such as the section 7 right to life and security of the person, and the section 15 right to equality. By comparing the developing Canadian actions to recent international jurisprudence in the Netherlands and the United States, the authors analyze the hurdles these claims will need to overcome to be successful at the Supreme Court of Canada — justiciability and whether the Charter even provides protection for environmental rights