Alberta Law Review (ALR)
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"But I Didn\u27t Mean To": The Role of Intent in American and Canadian Anti-Preference Law
Get PDFIn both the United States and Canada, bankruptcy preferential transfer avoidance provisions are aimed at creating equality of distribution among similarly situated creditors. However, there is a key difference in the way each jurisdiction’s regime treats the notion of intent. An analysis of each regime, using examples, illustrates the way in which Canada’s regime effectually does violence to the distributive equality policy objective, while the US regime adheres to it
Causation in Canadian Insurance Law
Get PDFCausation in insurance law is an area where courts continuously experience difficulties. This is largely because in insurance law causation is used as a payouttrigger, a separate and distinct element from the traditional “but for” causation generally found in tort. This article proposes a framework for understanding the mechanics of causation as a payout trigger. This is done largely through a focus on the resulting loss and how it occurred. This framework also provides an opportunity to parse through the problems associated with concurrent causation (for example, when loss is caused by both smoke and fire after a lightning strike). Concurrent causation must be analyzed using a liberal approach derived from the Derksen case. The framework makes use of a temporal analysis to determine the relevance of a cause, working backward from the loss. In the final stages of the analysis, thelanguage used in the insurance policy must be interpreted using a purposive approach by considering drafting intent, as well as the consequences of coverage and its associated gaps. The article aims to streamline insurance causation analysis in order to promote more consistent and holistic results in insurance coverage disputes
The Supreme Court of Canada and the "Fair Dealing Trilogy": Elaborating a Doctrine of User Rights under Canadian Copyright Law
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The Collision Between Federal and Provincial Occupational Health and Safety Regimes on Energy and Resource Projects
Get PDFBoth federal and provincial occupational health and safety regimes exist in Canada. While these types of laws have similar purposes, there are differences in the standards applied and the consequences imposed. For those projects where both regimes may apply, hidden pitfalls may exist. This article examines the collision of these types of regimes and the constitutional issues that such collisions create, and attempts to clearly delineate under which circumstances each regime will apply
Competing with Ourselves: Supply-side Competition for Corporate Charters in Canada
Get PDFThis article considers the Canadian interjurisdictional corporate law framework and assesses whether, from a supply side, there is a competitive market for corporate charters in Canada. The article considers two opposing views on whether Canadian corporate law jurisdictions compete with each other and discusses political, legal, and institutional barriers to competitive corporate law production in Canada. Corporate law reform in Quebec, specifically the development of the Quebec Business Corporations Act, is examined as an example of how barriers to corporate competition can be overcome
Same-Sex Marriages in Canadian Private International Law
Get PDFIn 2012, the Canadian federal government took a position in court that same-sex couples married in Canada were not legally married if the law of their domicile did not recognize such marriages. As a reaction to the subsequent media reports and political debate, the government introduced Bill C-32 to modify the Civil Marriages Act. This article analyzes the current treatment of same-sex marriages by foreign-domiciled spouses in Canadian private international law, criticizes the changes to the Civil Marriage Act, and replies to a recent academic commentary on the issue
Federal and Alberta Energy Project Regulation Reform — At What Cost Efficiency?
Get PDFChanges to regulatory regimes at the federal and provincial levels have recently transformed the way that energy resource projects will be considered and approved. The federal Canadian Environmental Assessment Act, 2012 and amended National Energy Board Act, along with the Alberta Responsible Energy Development Act, have taken decision-making power away from the regulators to government in an effort to align regulatory decisions with broader government policies. This article examines a number of the effects of the new regimes including the impact that the changes might have on the role of the regulator, the functioning of regulatory processes, and the development of Canada’s natural resources
Gross Negligence in Canadian Energy Contracts
Get PDFThe narrow definition of gross negligence in the 2007 Canadian Association of Petroleum Landmen Operating Procedure highlights the varied definitions across oil and gas contracts of gross negligence. The jurisprudence with respect to gross negligence does not follow particular patterns, and focuses instead on each case’s specific facts; this has, in the author’s view, led contract drafters over time to specify in detail what is and is not gross negligence. The article provides a framework for analyzing situations where gross negligence may have occurred and provides contract drafting suggestions in respect of gross negligence
The Role of Impact and Benefits Agreements in the Resolution of Project Issues with First Nations
Get PDFEnergy sector development in Canada frequently involves the need to address First Nations and other Aboriginal interests when government permits or approvals for facilities are involved. Impact and benefits agreements (IBAs) can play a meaningful role in the reconciliation of the interests and ambitions of both Aboriginal and non-Aboriginal communities. This article explores the potential advantages and challenges of working toward agreement to resolve First Nations concerns on a proposed project and also discusses the importance of a robust regulatory process in reaching such agreements