Alberta Law Review (ALR)
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Recent Legislative and Regulatory Developments of Interest to Energy Lawyers
Full text linkThis article provides a high-level overview of regulatory and legislative developments between April 2023 and early May 2024 which may be of interest to Canadian energy lawyers. It includes discussions of recent regulatory decisions and changes to regulatory and legislative regimes impacting energy law, and highlights several ongoing regulatory and legislative developments to watch in the coming year. Topics of note include anticipated legislation and policy changes relating to federal climate change initiatives and sector-specific developments related to carbon capture, utilization and storage, electricity generation and transmission, mineral resource development, oil and gas, and pipelines. This article also comments on developments relevant to Indigenous Law and environmental law
Legal Ethics for Crown Attorneys on Appeal
Full text linkWhile there is extensive legal literature and case law addressing the role and ethical responsibilities of Crown attorneys, questions about that role and those responsibilities at the appellate stage are largely absent from the literature and somewhat scattered across the case law. In this article, the authors seek to address this gap by answering four key questions. The first is whether the ethical obligations of the Crown, as expressed in R. v. Boucher, apply at the appellate stage. Against the backdrop of this first question, the authors discuss when an appellate Crown may bring an appeal from an acquittal or from a sentence, when an appellate Crown may make concessions or abandon an appeal, and when an appellate Crown may take a different position than the Crown attorney at trial or upon sentence. The answers to these questions are important, though not especially surprising. The authors argue that both Boucher and prosecutorial discretion require appellate Crowns to resolutely — but fairly — seek justice on appeal, as at trial, even when this means taking a different position than the trial Crown or conceding an error by the trial Crown or the trial judge
Recovery of Lost Premiums in Failed Mergers
Full text linkThis article discusses lost premium provisions, often referred to as Con Ed provisions. The article examines the main variants of these provisions and considers how they may conflict with established doctrines in contract and corporate law, potentially rendering them unenforceable. In response, the article evaluates a range of proposed solutions, including incorporating lost premiums into contractual damages, designing reverse termination fees, appointing the company or stockholders as agents to recover lost premiums, and pursuing legislative reform. The article argues that although courts’ reluctance to enforce lost premium provisions has surprised transactional lawyers and scholars, this hesitation is principled, grounded in both doctrinal and normative concerns. To help courts navigate the challenges surrounding lost premium recovery more coherently, the article proposes a two-stage framework for evaluating these provisions. Finally, the article contends that the difficulties arise not only from the provisions themselves but also from the remedies pursued. Each proposed solution addresses specific challenges, yet each also encounters limitations or introduces new complications
Simplification or Semantics? Evaluating Vavilov\u27s Impact on Standard of Review
Full text linkThe Supreme Court of Canada’s pivotal decision in Canada (Minister of Citizenship and Immigration) v. Vavilov introduced a categorical approach to standard of review analysis, aiming to simplify the existing framework. This article traces the evolution of standard of review analysis and outlines previous empirical studies that examine Vavilov’s effect on this analysis. The article describes a new empirical study that employs a current large language model to measure various variables pertaining to Federal Court and Federal Court of Appeal decisions, such as length of standard of review analysis and party agreement on standard of review. The findings confirm that Vavilov has simplified the standard of review analysis, but perhaps that this simplification may have resulted from an evolving approach that began in the years preceding Vavilov
The Scope and Meaning of Reasonableness Review After Vavilov
Full text linkThis article examines the scope and meaning of reasonableness review in Canadian administrative law, revisiting themes first discussed in the author’s 2015 article. It highlights the narrow scope of correctness review, the rejection of contextual analysis, and the adoption of “thin” conceptions of the rule of law and institutional design. The article examines the structure of reasonableness review, focusing on coherent reasoning and the central role of “constraint” in managing tensions within the framework. The framework from Canada (Minister of Citizenship and Immigration) v Vavilov has achieved sociological and normative legitimacy by balancing competing values in Canadian administrative law. Five years on, Vavilov has proven to be a pragmatic, consensus-building framework — valued more for its practical success than theoretical perfection
Remedial Discretion in the Vavilov Era and the Theoretical Foundations of Judicial Review
Full text linkIn Canada (Minister of Citizenship and Immigration) v Vavilov, the Supreme Court offered two guiding principles for selecting the appropriate remedy on judicial review. First, Vavilov contends the appropriate remedy should reflect the legislature’s choice to delegate matters to administrative decision-makers. Second, the Supreme Court states that the choice of remedy is multi-faceted and must pay regard to substantive reasons for deference, such as expertise and administrative efficiency. Regrettably, the Supreme Court in Vavilov did not directly state that the question of the appropriate remedy is to be guided by the culture of justification. However, in my view, the culture of justification is a strong theoretical foundation to explain the remedies that have emerged in the Vavilov era, including remitting the decision, direct substitution, indirect substitution and prospective remedies. This would have provided a more solid justification for the chosen intervention in recent cases, such as Mason v. Canada (Citizenship and Immigration), and Pepa v. Canada (Citizenship and Immigration)
Recent Legislative and Regulatory Developments of Interest to Energy Lawyers
Full text linkThis article provides a high-level overview of regulatory and legislative developments between June 2024 and April 2025, which may be of interest to Canadian energy lawyers. It includes discussions of recent regulatory decisions and changes to regulatory and legislative regimes impacting energy law while also highlighting several ongoing regulatory and legislative developments to watch for in the coming year. Topics of note include legislative and policy changes relating to the Impact Assessment Act, provincial legislation regarding federal incursions, the Canada Energy Regulator, and the Alberta Restructured Energy Market, among others
Menaces to Society: A Posthhumanist Rethinking of Canine Capital Punishment in Ontario
Full text linkThis article presents a critical analysis of Ontario’s Dog Owners’ Liability Act (DOLA), focusing on its ethical and legal shortcomings. First, it highlights that DOLA permits courts to order the destruction of dogs deemed dangerous, a practice compared to capital punishment — which is something that has been abolished for humans in Canada. Second, it contends that dogs are often punished for actions that stem from human negligence, lack of training, or provocation, yet receive no legal representation or procedural fairness. Third, the critique underscores the speciesism inherent in the law, which treats dogs as property rather than as sentient beings. Finally, it proposes reform through alternatives such as provincially funded rehabilitation sanctuaries, aiming to promote a more compassionate and just legal framework
"That Must be a Nice Document to Have": Non Est Factum and Section 5 of the Guarantees Acknowledgment Act
Full text linkThe Guarantees Acknowledgment Act (GAA) requires that a lawyer be satisfied that a prospective guarantor understands the guarantee they are giving. Section 5 of the GAA provides that a GAA certificate is “conclusive proof” that the GAA has been complied with. This article examines the lack of clarity in Alberta case law on section 5, the GAA certificate, and the common-law defence of non est factum. Some decisions have permitted guarantors to plead non est factum even though a GAA certificate has been issued. Others have treated a GAA certificate as a total bar to a defence of non est factum — an interpretation which, from a lender’s point of view, would make a GAA certificate a “nice document to have” indeed. Despite the growing dominance of this latter interpretation, this article contends that it is not supported by the actual text of the GAA