Alberta Law Review (ALR)
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Crookes v. Newton: The Supreme Court of Canada Brings Libel Law into the Internet Age
Get PDFAfter paying little attention to defamation law for decades, in the last few years the Supreme Court of Canada has begun to reshape the field. In what has been described as the “constitutionalization” of defamation law, the Court has recently recognized that the common law was out of step with the right to freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms. This process began in 2008 with the Court’s decision in WIC Radio v. Simpson, which clarified and expanded the scope of the fair comment defence. The Court went further the following year with Grant v. Torstar Corp, which recognized an entirely new defence of responsible communication on matters of public interest
Recent Regulatory and Legislative Developments of Interest to Energy Lawyers
Get PDFThe purpose of this article is to highlight and discuss legislative and regulatory developments relevant to energy lawyers, including electricity matters and related jurisprudence, that have arisen during the period between May 2011 and April 2012. This article focuses primarily on decisions before the relevant courts and tribunals in the areas of facilities approvals, Aboriginal consultation, environment, licences, tolls and tariffs, scoping, standing and participant funding, and administrative law. In addition, this article highlights developments in legislation, policy, and guidelines
The Crown\u27s Duty to Consult Aboriginal Peoples: Towards an Understanding of the Source, Purpose, and Limits of the Duty
No full textWhile the duty to consult fulfils a critically important role in defining, guiding, and developing the interrelationship of the Crown and Aboriginal peoples, the role of the duty to consult, properly understood, is but one of several important elements in the overall scheme of satisfying the Crown’s constitutional duties to Canada’s Aboriginal peoples. The Crown’s duty to consult and, if necessary, accommodate is both important and useful; however, this duty to consult should not be stretched in an attempt to fulfil other roles or serve other purposes. The Crown’s duty to consult coexists with the other elements of the scheme, including the Crown’s fiduciary obligations, treaty obligations, and the obligation to justify infringements of Aboriginal rights and title. This distinction in approach between the duty to consult and substantive Aboriginal rights is more understandable when one clearly distinguishes between the purpose of and the limitations on the Crown’s duty to consult and those of the other elements of the Crown’s obligations to satisfy its constitutional duties to Canada’s Aboriginal peoples
Ambiguity and the Amendments to the Alberta Land Stewardship Act
Get PDFRecent amendments to the Alberta Land Stewardship Act (ALSA) are ambiguous, and the amended Act risks being interpreted in such a way as to undermine the purpose of Alberta’s Land-use Framework (LUF) and result in more land use planning controversy. The LUF is intended to ensure the future economic growth of the province balanced with the achievement of societal and environmental goods. The LUF can be understood as reflecting a modern liberal approach to land use planning such that government regulation is applied to all property, whether publicly or privately owned. This article argues that the resulting amendments are ambiguous and could be interpreted as reflecting a different understanding of property rights rooted in classical liberalism. The result is that the amended ALSA might not be interpreted in such a way that furthers the goals of the LUF. This article suggests that if the legislation is intended to implement the LUF, then any amendments to the ALSA should be unambiguously consistent with the underlying values of the LUF. It also suggests areas where the processes under the Act could be made more open and transparent so as to be more coherent with modern liberalism
The Limits of Derivative Actions: The Application of Limitation Periods to Derivative Actions
Get PDFLimitation periods are an integral and significant aspect of the litigation process in Canada. Although the application of limitation periods may often seem harsh, they are generally considered to be beneficial by bringing stability to society and by providing an incentive to plaintiffs not to “sleep on their rights.” However, in corporate derivative actions (actions brought by a shareholder against directors or officers of the corporation on the corporation’s behalf), the application of a limitation period presents certain issues that could result in such goals not being advanced. Specifically, two main issues arise, namely; who is the claimant for the purposes of limitation periods, and how do limitation periods apply to leave applications? The authors propose that the Canadian judiciary should adopt the adverse domination doctrine, applying the majority test, and explicitly hold that the filing of the leave application is sufficient to bring the derivative action within the limitation period. This approach would be consistent with the separate corporate existence principle and the purposes underlying limitation periods, as well as providing certainty and predictability to the adjudication of derivative action claims
The Legal Continental Shelf: The Surprising Canadian Practice Regarding Oil and Gas Development in the Atlantic Coast Continental Shelf
Get PDFActions of the Government of Canada and the governments of Nova Scotia and Newfoundland and Labrador, such as interprovincial delimitation of the continental shelf, exclusive exploitation of continental shelf resources, and exclusion of all or part of the revenues generated by these resources from equalization calculations, create the impression of provincial ownership of the continental shelf. This is not the case. In fact, contrary to widely held views, the continental shelf belongs to no one. International law does not grant coastal states sovereignty over the continental shelf. Instead, it grants sovereign rights to explore and exploit the continental shelf. These rights, born of a process of political compromise, belong to the federal government. Consequently, the most common argument for excluding non-renewable resources from equalization calculations (namely, that they belong to the provinces) cannot apply to continental shelf resources. The Canadian practice regarding oil and gas development in the Atlantic coast continental shelf is, from both a legal and political standpoint, all the more surprising given that the Canadian federation is said to be held together by the principle of equalization
How Goes the Battle? An Exploration of Guardianship Reform
Get PDFThis article attempts to evaluate the success of guardianship law reform in Saskatchewan through a study of 446 guardianship applications made since the 2001 enactment of The Adult Guardianship and Co-decision-making Act. It begins by providing a brief history of guardianship law and details the development of the modern legislation. The author examines granted guardianship orders and surveys participants in the guardianship process in order to determine if the principles underlying the modern legislation have been upheld by the courts
Canada (A.G.) v. PHS Community Services Society — The Insite Decision
Get PDFOn 30 September 2011, the Supreme Court of Canada rendered a judgment that granted a new lease on life to Vancouver’s Insite, North America’s first, and still only, supervised safe drug injection facility. The unanimous decision on important issues of constitutional law resolved an unseemly federal-provincial squabble over drug addiction treatment policy and arguably paved the way for a more liberal approach to a problem that has plagued Canada’s inner cities for decades. The Court’s analysis of traditional principles surrounding the division of powers and the application of the Canadian Charter of Rights and Freedoms to governmental action will undoubtedly provide some future guidance to lawyers and judges as they wrestle with other cases where issues of morality and law may intersect
Limitation Periods for the Enforcement of Foreign Judgments: Laasch v. Turenne
Get PDFLaasch v. Turenne raised important questions about the available options for the enforcement of foreign judgments in Alberta and emphasized the need for foreign judgment creditors to act very quickly indeed to secure such enforcement. Nathan Laasch was just 16 years old when, in November 2000, he suffered heart failure which resulted in his serious and permanent disability. He lived in Montana and had attended the office of the defendant, Dr. Turenne, on two occasions complaining of episodes of a rapid heart rate, chest discomfort, and lightheadedess. Dr. Turenne also lived in Montana where she practised medicine. She had apparently concluded that she could not diagnose the cause of Nathan’s problems, but nonetheless prescribed and administered a beta-blocker. It transpired that Nathan was suffering from Wolff-Parkinson-White syndrome and that beta-blockers were contraindicated for that disease
Public Policy and Recognition of Foreign Divorces: Zhang v Lin and Marzara v Marzara
Get PDFTwo recent cases — one from Alberta and the other from British Columbia — deal with the power of a Canadian court to refuse recognition of a foreign divorce on grounds of public policy. As is the case with foreign judgments generally, a foreign divorce that would otherwise be valid and enforceable in Canada will be denied recognition if its enforcement would be contrary to fundamental Canadian public policy. While the existence of this principle is well-established, its scope is quite narrow and it is rarely applied. Hence, it is interesting that in both cases discussed in this case comment, the public policy defence was successfully invoked to defeat recognition of the foreign divorce.This case comment describes the circumstances which gave rise to the application of the public policy defence in these two cases, and then discusses whether its application was appropriate