Alberta Law Review (ALR)
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Recent Judicial Decisions of Interest to Energy Lawyers
No full textThis article summarizes a number of recent judicial decisions of interest to energy lawyers. The authors review and comment on the past year’s case law in several areas including alternative dispute resolution, bankruptcy and insolvency, contractual interpretation (including operator agreements), competition law, corporate separateness, damages and limitations of liability, Indigenous law, torts, and selected developments relating to summary dismissal. Specific topics addressed include the interpretation of exclusion clauses; the reaffirmation of the principle of corporate separateness; confirmation that environmental cleanup costs take priority over creditors in bankruptcy proceedings; confirmation that the development, passage, or enactment of legislation does not trigger the duty to consult; and apportionment of liability and Pierringer agreements.
For each case, some background information is provided, followed by a brief explanation of the facts, a summary of the decision, and commentary on the outcome
Reconstitutions of Harm: Novel Applications of the Labaye Test Since 2005
No full textIn R. v. Labaye, the Supreme Court revised the test for Criminal Code offences involving indecency and obscenity, replacing the previous community standards of tolerance test. Despite the Supreme Court’s demand for positive knowledge of (risk of) harm, the Labaye test still largely protects a normative vision of society rather than promoting human sexuality and freedom of expression. The judiciary post-Labaye continue to fill evidentiary vacuums with circumstantial evidence and intangible harms, informed by judicial tastes rather than empirical harm. Labaye has also become a discursive construct that is explicative of harm in other public law arenas. This article reveals the inconsistencies in applications of the Labaye test and considers whether a more principled definition of harm is needed in indecency and obscenity cases and beyond
#HowToPPA: An Examination of the Regulatory and Commercial Challenges and Opportunities Arising in the Context of Private Power Purchase Agreements for Renewable Energy
No full textIn recent years, private companies in the United States have increasingly entered into power purchase agreements (PPAs) to procure renewable power from project developers. However, despite favourable market and regulatory regimes for the use of PPAs in Alberta, renewable energy procurement has largely remained the purview of government.
To facilitate the increased use of private PPAs in Canada, this article seeks to provide potential renewable energy project developers and customers with a better understanding of how these agreements operate. The authors “demystify” PPAs by reviewing the regulatory structures for PPAs in Alberta, analyzing the factors that might motivate parties to enter into a PPA, and discussing the key contractual terms common to most PPAs
Envisioning Indigenous Community Courts to Realize Justice in Canada for First Nations
No full textRecognition continues to grow both within Canada, as well as the wider worldwide community, of the unique issues facing Indigenous people within Canada’s justice system. We see this in the recent wholesale adoption by the Canadian Government of the United Nations Declaration on the Rights of Indigenous Peoples, as well as the Truth and Reconciliation Commission Calls to Action.
This article examines the potential development of a system of Indigenous community courts as a way to end colonial suppression of Indigenous self-governance. The article suggests as a model for these courts the tribal courts in the United States, as a means by which Indigenous peoples can re-instate Indigenous law and legal principles
Reconciliation Through Relationality in Indigenous Legal Orders
No full textCanada’s reconciliation with Indigenous peoples and groups in Canada is an ambitious goal with little in the way of clear direction. Canadian courts have provided limited direction in their decisions, yet the result of litigation has imposed a concept of reconciliation based on First Nations remaining subordinate to state authority and interests. Reconciliation will be confounded without gaining a shared understanding with Indigenous peoples. Different Indigenous groups will have their own interpretation of what reconciliation may require to be successful. One approach to seeking common understandings is for Canadians to learnhow relationality operates as a function of disparate Indigenous legal orders. While substantive research into Indigenous legal orders is relatively new in Canadian scholarship, there is much knowledge to be gleaned from interdisciplinary research, particularly in anthropology, from the early twentieth century. At the risk of presenting an abrupt shift in disciplinary paradigms in this article, the author follows a thread of relationality from Canadian courts through the lens of doctrinal jurisprudence into relationality within various Indigenous legal orders through anthropological study. Combined, the article offers a potential path to reconciliation through relationality within Indigenous legal orders
Introduction
No full textThe articles in this special issue all take up some of the many challenges and opportunities that the Truth and Reconciliation Commission of Canada (TRC) identified as crucial for reconciliation in its 2015 Final Report. Some engage with the current Canadian political and legal system’s impact on Indigenous peoples, while others acknowledge these but focus more on the enduring principles and possibilities of Indigenous legal traditions and the potential for operationalizing jurisdictional spaces for implementation. All speak to the importance of developing a narrative and understanding of intergenerational responsibility and relationality at the core of any enduring reconciliation
The Right to Be Heard: Representative Authority as a Requirement in Enforcing Métis Consultation
No full textThe challenges that non-settlement Métis communities continue to face when attempting to enforce the duty to consult are reflected in the 2016 Alberta Court of Queen’s Bench Fort Chipewyan decision. In Fort Chipewyan, the Court appeared to require representative authority in order to trigger the duty to consult, effectively adding a new step to the Haida test for Aboriginal consultation. This creates a unique burden for non-settlement Métis communities in Alberta, in part because their governance systems are not statutorily recognized in Canadian statute. Nevertheless, a representative authority requirement, if interpreted purposively and in accordance with Indigenous principles of good governance, is justified by the Honour of the Crown. The Métis Nation of Ontario’s approach to consultation governance provides suggestions for governance reforms that could be undertaken by Alberta Métis to more effectively enforce the duty to consult
Justice Jean E. L. Côté, The Court of Appeal, and the Changing Nature of Contract Law
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Defining Wrongful Dismissal: The Alberta Schism
No full textThe law in Alberta regarding wrongful dismissal is at odds. The source of this schism is the moment of breach when an employee is dismissed with insufficient notice. The “Mandatory Notice” doctrine holds it is at the moment of termination, while the “Contractual Option” doctrine holds that the breach occurs on failure to provide reasonable notice or pay in lieu of notice. While the Mandatory Notice doctrine is considered trite law in other jurisdictions, Alberta has continued to develop case law supporting the Contractual Option. However, the Contractual Option doctrine suffers from several fatal flaws which highlight illogical theoretical and practical results flowing from its application. Therefore, this trend must reverse and Alberta must return to the Mandatory Notice doctrine