Alberta Law Review (ALR)
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The Oil and Gas ROFR: Understanding Current ROFR Issues from the Point of View of the Transactional Lawyer, the Litigator, and In-House Counsel
Get PDFRights of first refusal and other preferential or pre-emptive rights (together, ROFRs, and individually a ROFR) routinely find their way into oil and gas industry agreements. Disputes often arise because of the complex nature and significant economic consequences of ROFRs. In recent years, a number of reported cases, either relating directly to ROFRs or more generally relating to contractual interpretation, have clarified (or at times muddied) the waters surrounding the use, application, and interpretation of ROFRs. However, most ROFR disputes never result in a reported decision because the parties typically negotiate solutions long before trial.The authors consider current trends involving ROFRs in oil and gas agreements, and how they believe the law and legal practice surrounding ROFRs might continue to evolve in the years to come. The authors do not attempt to rehash the fundamentals of the law surrounding ROFRs; instead, they focus on how the courts have dealt with ROFRs in recent cases as well as how corporate lawyers and in-house counsel grapple with ROFRs day-today. The authors utilize the ROFR provisions found in industry standard contracts to analyze outstanding areas of uncertainty as well as what lawyers should contemplate prior to including a ROFR in an agreement. Additionally, the article examines the implications of recent rulings on the duty of good faith that may affect ROFRs. Finally, the article considers selected subjects of topical interest, including ROFRs in the context of busted butterfly transactions, insolvency proceedings, and package deals
First Nations, Metis, and Inuit Women\u27s Health: A Rights-Based Approach
No full textThe health status of Aboriginal women in Canada is disparagingly low as compared to the non-Aboriginal population. The implementation of male centred legislation, policies, and institutions that are the hallmark of Canada’s colonial history have had a long-lasting impact on the health of Aboriginal women. Although Aboriginal women have unique sets of constitutionally protected rights, the government has failed to protect these rights.The purpose of this article is to present a constitutional and human rights-based approach to address constitutionally protected rights within the context of a distinctive Indigenous appreciation of social rights and of women’s substantive equality. This article is separated into three sections. First, using data from federal government and the Native Women’s Association of Canada statistics, the health status of Aboriginal women is examined. Many international instruments and agreements recognize a rights-based approach to health. Canada, as a signatory to a number of these agreements, has acknowledged its international obligations towards the health of Aboriginal people. Two of these agreements, the Universal Declaration of Human Rights and the United Nations Declaration on the Rights of Indigenous People, provide the human rights standards that bind Canada with regard to all Canadians and are examined in the second section. The last section suggests that a constitutional equality rights framework may offer a promising basis for future right to health assertions by Aboriginal women. Through an analysis of both collective and individual rights of Aboriginal women to health, section 35 of the Constitution Act, 1982, and the Canadian Charter of Rights and Freedoms, it becomes apparent that Canada is in breach of its constitutional obligations
A Constitutional Future for Abortion Rights in Canada
Get PDFIn 2015, Abortion Access Now PEI legally challenged the restrictive abortion policy of Prince Edward Island. This article studies their challenge as a unique case in the building of a constitutional future for abortion rights in Canada. The article tracks how AAN PEI drew on classic rule of law arguments of transparency, accountability, and constitutional justice to shape and claim abortion rights as democratic rights, an entitlement to fully and equally participate in and benefit from the health care system as a fundamental social institution of the state
Managing Your Carbon Footprint: Impacts and Opportunities Arising From Alberta’s Climate Change Legislation
Get PDFThis article explores Alberta’s climate change policies and laws in conjunction with parallel federal climate change measures. The authors provide an overview of the existing regulatory structure applicable to industrial carbon emissions, and an evaluation of the recent evolution of the regulatory structure. The comprehensive regulatory structure as a whole is then analyzed for its practical impacts across industries, and the authors identify a number of strategies for oil and gas producers, natural gas-fired electricity generators, renewable power project developers, and public entities to manage their performance within the new Alberta governance model for climate change management
The Impact of the Convention on the Rights of Persons with Disabilities on Canadian Jurisprudence: The Case of Leobrera v. Canada
Get PDFThis article traces the historical and continuing exclusion of people with disabilities found in Canada’s immigration law and policy. It highlights how an immigration policy focused on economic growth and avoiding health care costs can have devastating effects on individuals and the families of children with disabilities. Using the case of Leobrera v. Canada as a case study, the author looks to the Convention on the Rights of Persons with Disabilities as an international instrument which could help change Canada’s exclusionary policies
Donor Anonymity in Canada: Assessing the Obstacles to Openness and Considering a Way Forward
Get PDFThis article discusses donor anonymity in Canada and the need for law reform in this area. Currently, assisted reproduction is regulated by both the provincial and federal governments, meaning this area is regulated in a piecemeal fashion. Disclosure of donor identifying and non-identifying factors is restricted to limited information, utilized only to keep statistical records. Due to the law limiting identifying information, donor-conceived persons struggle in their attempt to discover their genetic origins. Further, provincial family law does not recognize third party reproduction, which leaves modern family units unprotected. A definition of openness in gamete donation is given in Part II. Part III addresses the law-making and assisted reproduction difficulties arising from the division of powers. Part IV analyzes the potential impact of federal prohibitions on the purchase of sperm and eggs and whether disclosing a donor’s identity will negatively impact gamete supply in Canada. The final two sections discuss the failure of provinces to enact family laws which protect the parental status of intended parents and how past cases under the Canadian Charter of Rights and Freedoms have been challenging for donor-conceived persons. The authors propose that reform should be dealt with by the legislature in four areas: provincial family law reform where necessary; robust and meaningful public consultation; interprovincial cooperation if possible; and, consideration of law reform in other jurisdiction
Freezing as Freedom? A Regulatory Approach to Elective Egg Freezing and Women\u27s Reproductive Autonomy
No full textThis article reviews concerns relating to the safety and efficacy surrounding the medical practice and social impacts of the increasingly popular practice of elective egg freezing. It argues that current regulation is inadequate to ensure this technology promotes women’s autonomy and to ensure women are receiving safe and high quality reproductive health care. It concludes by identifying three priority areas where specific regulation is required: information collection and disclosure, informed consent and fertility education, and assessment and counselling
The Case for a New Compassionate Release Statutory Provision
Get PDFIn the last decade there has been a steady growth in the number of federally incarcerated people aging in prisons. These individuals have a long list of medical needs while they present a low risk to communities. However, this category of people tends to spend more time in prison than their younger counterparts and face difficulties in being released. Using original empirical data, as well as the existing literature, I argue that a high number of these individuals need to be released through a compassionate release mechanism. This article has two purposes. One is to show that compassionate release does not really exist in Canada. Section 121 of the Corrections and Conditional Release Act — parole by exception — is the closest Canada has to release on humanitarian grounds, but it fails to fulfill this role. The second purpose is to argue that the lack of a functional compassionate release provision is unacceptable, particularly in the context of the increase among the prison population of medical conditions associated with aging. I maintain that a system which is not flexible enough to consider extreme post-incarceration circumstances of an offender, and does not allow for a modification of the place where individuals serve their sentence based on these circumstances, is disconnected from any medical, penological, humanitarian, or constitutional requirements. Finally, I provide a set of recommendations for the redrafting of section 121
Recent Judicial Decisions of Interest to Energy Lawyers
Get PDFThis 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 Aboriginal law, contractual interpretation, corporate governance and shareholder rights, employment and labour law, environmental law, utility regulation, constitutional law, and selected developments in civil procedure. Specific topics addressed include the duty to consult, plans of arrangement, the duty of good faith in contractual relations, environmental claims upon insolvency, and the constitutionality of federal climate change legislation. For each case, some background information is given, followed by a brief explanation of the facts, a summary of the decision, and some commentary on the outcome
Efficiency and the Pursuit of Patient Safety
Get PDFEfficiency and patient safety are two important intersecting health policy goals. Efficiency should not be exploited for political expediency, but instead balanced against concerns with patient safety. Too often, the concept of efficiency has been used to justify cost saving or cost containment measures that create further adverse effects. There is clear evidence that nurseto- patient ratios have a direct impact on patient safety, but the government has resisted staffing more nurses on the basis of cost. This causes a greater cost in terms of human suffering and avoidable medical errors. Therefore, efficiency-based claims made by the government should be viewed with caution. Governments should establish a solid evidentiary foundation before advancing any efficiency claims in the health sector