Alberta Law Review (ALR)
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The Presumption Against Interference with Vested Rights: Creating Structure out of the Confusion
No full textCanadian courts interpret statutes flexibly, as they remain unbridled by strict interpretive rules or principles. Consequently, ambiguity in statutory interpretation has emerged, particularly regarding the temporal application of statutory amendments. In this article, the author suggests that clearer rules should be established to remedy such uncertainty, focusing predominantly on clarifying the presumption against interference with vested rights. The article first proposes a step-by-step approach to the vested rights analysis, explaining how it operates and interacts with other temporal application presumptions. Next, the article traces the history and jurisprudence of the presumption against interference with vested rights, and attempts to resolve outstanding issues relating to the presumption. Finally, it applies this background to the proposed step-by-step approach, ultimately synthesizing the law and theory underpinning the discussed presumptions
Access to Justice Online: Are Canadian Court Websites Accessible for Users With Visual Impairments?
No full textSteps taken to make legal information available online have resulted in access to justice benefits for many. However, these benefits may not extend to everyone equally. As scholars have cautioned, the adoption of new technologies that purport to improve access to justice may perpetuate the exclusion of vulnerable and marginalized individuals and groups from the justice system. This article applies this insight to legal information made available online by Canadian court websites and CanLII.It does so through a two-part study. First, we used an automated testing tool to determine whether the websites noted above comply with accessibility standards. Second, after having secured research ethics approval, we worked with Access & Diversity at the University of British Columbia to recruit persons with visual impairments; these participants evaluated the same websites and provided feedback. Our results showed that while largely accessible, the tested websites fall short of best practices, presenting challenges to users with visual impairments. We recommend that Canadian courts correct the deficiencies identified by our study, that other online legal resources be tested for accessibility issues, and that future research focus on the extent to which online legal resources are accessible to other vulnerable or marginalized individuals or groups. Implementing these recommendations will ensure that the access to justice benefits of online legal information are extended to everyone
How do Lawyers Assist Their Clients With Advance Care Planning? Findings From a Cross-Sectional Survey of Lawyers in Alberta
No full textAdvance care planning (ACP) is the process of thinking about, discussing and documenting one’s preferences for future health care. ACP has important benefits: people who have a written directive are more likely to receive care that accords with their preferences, have fewer hospitalizations, and die in their preferred location. This article focuses on the important role that legal professionals have in advising and assisting clients with ACP. Studies report that people who have a written advance care plan are more likely to have received assistance in preparing the document from a lawyer than from a doctor. Yet virtually no research engages with the legal profession to understand lawyers’ attitudes, beliefs, and practices in this important area. This article starts to fill this gap by reporting the findings of a survey of lawyers in the province of Alberta. The results reveal lawyers’ practices in relation to ACP, their perceptions of their professional role and factors that support or hinder lawyers in working with clients on ACP, and their preferences for resources to assist them in helping their clients. To the authors’ knowledge, this is the first survey of lawyers on their practices in relation to ACP
May You Litigate in Interesting Times: Specific Performance, Mitigation, and Valuation Issues in a Rising (or Falling) Market
No full textThis article provides practical insight and strategic guidance regarding how to properly structure the prosecution or defence of a claim in a rising and falling market, and what expert and fact evidence is necessary. First, the article discusses the threshold required to be awarded specific performance and how courts have interpreted Semelhago’s “uniqueness” test, especially in the context of property purchased for commercial investment purposes. Next, if specific performance is not awarded, the valuation date must be chosen. The authors propose a new “hybrid approach” for assessing damages whereby the loss based on actual cash follow up to the date of trial is measured (and a risk adjustment applied to reflect that revenues are never earned risk-free). The net present value of remaining cash flow is then calculated on the basis of the most recent data available at the date of trial. The proposed hybrid approach allows the plaintiff to receive the value of land less the cost to acquire it, plus in every claim month the plaintiff receives the cash it would have earned, but also assumes the risk of operating the land as of that time. Finally, in considering Southcott the authors address some strategic and practical considerations regarding mitigation and the needed evidentiary burden to consider
The Unbroken Supremacy of the Canadian Constitution
No full textThis article revives the awareness of the heritage and inheritance of section 52(1) of the Constitution Act, 1982. It exposes the pre-1982 legal basis for constitutional judicial review in Canada and the mechanics of the transition in 1982 to an express supremacy clause. This article also challenges two popular notions in Canadian constitutional law today. The first is that the addition of section 52(1) in 1982 transformed Canada from a state governed by parliamentary supremacy into a state governed by constitutional supremacy. The second is that the Canadian judiciary became the guardian of the Canadian Constitution in 1982. Contrary to conventional wisdom, 1982 was, with respect to the supremacy of the Canadian Constitution, a moment of continuity rather than a break with the past
Fiduciary Duties in Oil and Gas Transactions: Types of Relationships Arising in Oil and Gas Agreements
No full textDo Recent Amendments to Alberta\u27s Municipal Government Act Enable Management of Surface Water Resources and Air Quality?
No full textSince 2015, new provisions have been added to Alberta’s Municipal Government Act (MGA) that arguably authorize municipalities to manage components of the environment, such as surface water resources and air quality at the local and regional geopolitical landscape scales. Since 2013, Part 17.1 enabled voluntary formation of “growth management boards” (GMBs) by two or more participating municipalities, and once appointed by the Minister, GMBs are empowered to create “growth plans” to govern growth-related land use decision-making processes within the boundaries of the participating municipalities. Part 17.1 was amended in 2016 and new regulations followed in 2017. City Charter provisions enacted in 2015 give broad governance powers to cities. MGA provisions that create both these new institutional arrangements do not preclude GMBs or cities from developing municipal environmental management objectives. Recent additional MGA amendments enacted as the Modernized Municipal Government Act (MMGA) in December 2016, and further amendments in the spring of 2017 added a preamble, defined “body of water” for the purposes of the MGA, provided for intermunicipal collaborative governance of land use, and amended the environmental reserve provisions and other regulatory aspects of Part 17: Planning and Development. Two new purposes of municipal government were added: “to work collaboratively with neighbouring municipalities to plan, deliver and fund intermunicipal services,” and “to foster the well-being of the environment.” In this article, amendments to the MGA since 2015 are examined and analyzed in light of Alberta’s regional watershed scale land use policy, legislation, and regulations to determine if Alberta municipalities are now authorized to manage the environment, specifically surface water resources and water quality
Medical Assistance in Dying: Canadian Registry Recommendations
No full textMedical assistance in dying (MAID) is a relatively new phenomenon in Canada, and is therefore a growing area of interest in the legal and medical communities. Research is hampered, however, by the lack of a standardized approach to collecting data on MAID cases. The authors first discuss the importance of having comprehensive data to improving preventative and end-of-life care across Canada. The authors then canvas the existing framework for reporting MAID cases in Canada before noting its deficiencies, most importantly, a lack of comprehensive, nation-wide data collection. The authors then propose a model for national data collection based on the existing Canadian cancer registry system
Sober Second Thoughts: Litigating Purchase and Sale Agreements in the Energy Industry
No full textThis article explores common legal issues that arise in the purchase and sale of energy assets. Legal disputes are frequent because of the complex nature of these transactions. The authors begin by discussing the ambiguities in purchase and sale agreements, and how the courts interpret them. Second, the authors analyze the types of disputes that can arise prior to closing that can compromise or frustrate the finalization of the sale. Third, post-closing disputes relating to the subject-matter of transactions, breaches of representations and warranties, and the mechanics of indemnities are considered. Finally, the authors close by examining other issues which may impact the ability of a party to bring a claim