Alberta Law Review (ALR)
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Claire L’Heureux-Dubé: A Life, Constance Backhouse (Vancouver: UBC Press for the Osgoode Society for Canadian Legal History, 2017)
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Continental Energy Trade: What to Expect From NAFTA 2.0
No full textThe implementation of the North American Free Trade Agreement (NAFTA) in 1994 significantly impacted the North American energy market via the provisions of Chapter 6. The original agreement with respect to Chapter 6 included three important principles: (1) a full respect for the constitutional restrictions of each party; (2) the need to strengthen and increase trade of energy products and services through gradual and sustained liberalization; and (3) the need to create competitive energy sectors. This article examines whether NAFTA continues to serve the interests of the three signatory states and whether potential changes are necessary or would be beneficial. In addition, the authors take an in-depth look at the energy markets of each North American country on an individualized basis. In particular, the authors examine the respective energy industry backgrounds, legal frameworks for natural resource regulation, and trends in the energy markets for Canada, Mexico, and the United States
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 contractual interpretation, employment and labour law, Aboriginal law, constitutional law, intellectual property, bankruptcy and insolvency, and selected developments relating to summary judgments. Specific topics addressed include the appropriate standard of review, workplace drug and alcohol testing policies, appellate intervention in commercial arbitration, the appropriateness of granting summary judgments, valuation of dissenting shareholders’ shares, a duty to consult, the applicability of municipal bylaws when they conflict with federal legislation, and the rights and obligations of oil and gas companies placed into receivership. For each case, some background information is given, followed by a brief explanation of the facts, a summary of the decision, and commentary on the outcome
Risk Regulation for the Legal Profession
No full textThis article explores the current state of Canadian legal services regulation and changes that are impacting it. The authors argue that the only legitimate purpose for legal services regulation is the protection of the public interest, and this goal is best achieved through risk regulation. The article discusses four roles risk plays in regulation: as an object of, and justification for, regulation, as an organizing principle, and as a measure of accountability. It includes practical examples and comparisons to other jurisdictions and professions. Finally, the authors recognize that substantial changes will be required to shift to a risk regulation regime for legal services, but that such a change is necessary
Local Governments and the Crown\u27s Duty to Consult
No full textDo municipal governments embody the Crown to the extent that they owe a duty to consult with Indigenous groups when a local government decision might detrimentally impact Aboriginal rights? The authors point to two legal trends: jurisprudential recognition of administrative bodies’ ability to satisfy the duty in certain circumstances, and the expansion of the scope and role of municipal governments. The authors argue that when a province creates local governments with broad powers, the exercise of the powers conferred on the municipal governments are still subject to constitutional limits, such as the duty to consult. The article also highlights policy and practical considerations in support of this argument
The Shopkeeper’s Privilege and Canadian Tort Law
No full textShoplifting is a major issue in Canada, with 87 percent of small and medium sized stores victimized each year. As a result, shopkeepers face a difficult decision between allowing this loss of product, or detaining the individual and facing tortious liability for an unlawful arrest. The legal debate regarding allowing a shopkeeper’s privilege to detain an individual, when they have reasonable suspicion of theft, attempts to balance competing values of personal liberty and the protection of property. Due to the changing context surrounding this issue, the Ontario Superior Court of Justice recently endorsed the shopkeeper’s privilege in Mann v. Canadian Tire Corporation Ltd. In Mann, Justice Akhtar drew on existing Canadian, American, and United Kingdom jurisprudence to articulate a new test for shopkeeper’s privilege in Canada
Apples to Oranges? Gendered Damages in Personal Injury Litigation: A Focus on Infant Claims
No full textFor infant plaintiffs, personal injury litigation damage awards for loss of earning capacity are highly speculative. To quantify damages, courts rely on general population statistics and often consider the gender of the plaintiff. This article examines ways in which courts have discounted damages to minor female plaintiffs. The author notes that this discounting broadly occurs in two ways, through the use of gendered statistics and through the application of female specific contingencies. While the courts have justified gender specific damages on the basis that tort law aims to be corrective, the author argues that these practices are no more appropriate than reducing damage awards based on factors such as race or ethnicity. The author concludes that tort law is capable of evolution and it is time that the practice of gender based damages be retired
Prudence, Stranded Assets, and the Regulation of Utilities: A Review of Alberta Utility Regulatory Principles in a Post-Stores Block Era
No full textStores Block, a 2006 Supreme Court of Canada case, established that utilities are the sole owners of utility assets, thereby granting them the right to gain on the disposition of such assets. The case was game-changing, spawning a string of Alberta Court of Appeal, Supreme Court of Canada, and regulatory body decisions. This article traces the progression of these decisions and examines their implications for property ownership principles, including utility asset dispositions, utility rate bases, the prudent investment test, and stranded assets. The authors ultimately argue that these interpretations of Stores Block have led to “deleterious effects” for regulated utilities in Alberta, and discuss resulting attempts at legislative intervention by the Government of Alberta
Recent Legislative and Regulatory Developments of Interest to Energy Practitioners
No full textThis article provides an overview of recent regulatory and legislative developments from May 2017 to April 2018 of interest to energy lawyers. This includes the legal, political, and economic background to, and consequences of, new legislation and regulatory regimes. Also included are discussions of recent and ongoing judicial and regulatory decisions involving energy law. Topics discussed include market access and pipeline matters, climate change regulation, impact assessment changes, Aboriginal consultation, and abandonment liability
An Analysis of Costs Awarded by the Alberta Energy Regulator
No full textThis article assesses the costs regime of the Alberta Energy Regulator (AER) (and its predecessor, the Alberta Energy Resources Conservation Board) since its inception in 1978. An analysis of the policy and legal framework governing the issuance of costs awards by the AER shows that the Board now has a wide scope of discretion in deciding whether to grant costs to a hearing participant, and the process appears less transparent than before. A statistical analysis of the AER\u27s recent costs decisions leads to two conclusions. First, costs awards have overwhelmingly been applied to cover participants’ legal fees, and second, in exercising its discretion to make cost awards, the AER seems more discriminate in its evaluation of certain types of experts