Alberta Law Review (ALR)
Not a member yet
2493 research outputs found
Sort by
Compliance with Canada\u27s Trade and Investment Treaty Obligations: Addressing the Gap Between Provincial Action and Federal Responsibility
No full textProvincial compliance with trade and investment treaty commitments is increasingly important. However, Canada’s federal system makes negotiating treaty obligations in the areas of provincial jurisdiction particularly difficult. This article analyzes the challenges related to treaty commitments in areas of provincial jurisdiction, revisits the Canadian constitutional allocation of responsibility for treaty negotiation, ratification, implementation, and compliance, and explores the prospects for using intergovernmental agreement to address concerns about provincial compliance
Honour Among Businesspeople: The Duty of Good Faith and Contracts in the Energy Sector
Get PDFThe recognition of a “duty of good faith” was a contentious issue for Canadian courts for many years, despite its recognition in other jurisdictions. In 2014, the Supreme Court of Canada recognized that parties to a contract have a duty to perform all contractual obligations in good faith. This article explores the history behind the “duty of good faith,” the consequences of the Supreme Court’s decision, and the impacts of the decision. This article also examines the effects of the decision as they relate to contracts fashioned in the energy sector, specifically in relation to rights of first refusal (ROFRs), authorizations for expenditure, and accounting and remittance of production sales proceeds
Apportionment of Damages for Contributory Negligence: The Causal Potency Criterion
Get PDFThe courts in several common law jurisdictions have adopted a causal potency criterion forthe purposes of apportioning damages for contributory negligence. It has recently beensuggested that Canadian courts should follow suit. This article explores the causal potencycriterion. It is argued that the criterion has been left unexplained with the result that it is anempty concept. Moreover, no compelling justification has been offered in support of takingcausal potency into account. Accordingly, adopting the causal potency criterion would bea retrograde step for Canadian tort law
Misusing the "No Duty" Doctrine in Tort Decisions: Following the Restatement (Third) of Torts Would Yield Better Decisions
Get PDFFocusing on a recent California Supreme Court decision, Verdugo v. Target Corp., theauthor analyzes the “no duty” doctrine and its improper use in recent tort decisions. Heargues that too many US appellate courts are misapplying the “no duty” doctrine by usingit in situations in which they are actually deciding whether there has been a breach of theduty of care. The author places recent applications of the “no duty” doctrine in the contextof recommendations made by the American Law Institute, and suggests that the case lawwould benefit if the courts reflected upon the relative roles of judges and juries and followedthe guidance of the Restatement (Third) of Torts
Contribution Between Negligent Tortfeasors and Unjust Enrichment: An Outline of a Solution to the "No Benefit to B" Issue
Get PDFTraditional understandings of contribution claims hold that a payment by one tortfeasor that benefits a second is a necessary element of a successful claim. However, circumstances may arise where that second tortfeasor gains immunity from liability after the common liability has already crystallized. These circumstances create an issue of “No Benefit to B.” This article examines claims for contribution between tortfeasors where a “No Benefit to B” issue arises. It argues that, in such circumstances, an award for contribution is not always contrary to principle. The article also provides a judicial analysis that can be used to decide whether to allow a contribution claim to succeed in the context of the “No Benefit to B” issue
Privacy in the Age of the Internet: Lawful Access Provisions and Access to ISP and OSP Subscriber Information
Get PDFBill C-30 (the Protecting Children from Internet Predators Act) and the Protecting Canadians from Online Crime Act are two recent attempts by the Canadian government to create incentives for Internet Service Providers (ISPs) and Online Service Providers (OSPs) to disclose the subscriber information of Internet users to government agencies. In this article, the author argues that while such provisions may not violate section 8 of the Charter based on current judicial interpretation, they ought to be found unconstitutional. To date, the Supreme Court of Canada’s search and seizure jurisprudence uses a normative framework that does not distinguish between defining the right to privacy and justifying limitations to it. This approach is not consistent with that taken for other Charter rights. The recent decisions of the Supreme Court in R v. Spencer and R v. Fearon may signal a slight shift, but they do not go far enough. If courts defined privacy interests more broadly than under current law and required the government to justify restrictions on these interests under section 1, this would create a legal regime that achieves a better balance between competing privacy and security interests
Recent Regulatory and Legislative Developments of Interest to Energy Lawyers
Get PDFThis article provides a high level overview of regulatory and legislative developments relevant to energy lawyers. The authors reviewed regulatory initiatives, decisions, related case law, and legislation from provincial, territorial, and federal authorities. Topics of note include pipeline regulation with a focus on recently proposed projects, Aboriginal law, liquefied natural gas, oil and gas development, renewable energy, and power and environmental protection. The period covered is May 2014 to April 2015, inclusive
The Case for Broadening the Ambit of Restraint of Trade and for Focusing on Reasonableness
Get PDFThe jurisprudence in the area of restraint of trade reveals inconsistencies concerning what falls within the ambit of a restraint of trade. In addition, the modern employment relationship is of a radically different nature than the employment relationships of the past. This article reviews the historical approach and discusses some recent Canadian jurisprudence on restraint of trade. In light of changes to the employment landscape, this article proposes modifications to the court’s characterization of “restraining” provisions and directs more emphasis towards reasonableness and the interest-balancing process. It concludes with an application of the proposed test for an unreasonable restraint of trade and a defence of the proposed alterations
All Aboard!! — Legal and Commercial Issues in Transporting Crude by Rail
Get PDFThe transportation of crude oil by rail has undergone significant growth in recent years, driven by a wide variety of actors and internal and external factors. This article surveys the dynamic legal and commercial context in which crude by rail operations occur, as well as the economic and regulatory forces working to keep the area in flux. In particular, these issues are considered in light of the tragedy that befell Lac-Mégantic in July 2013