Alberta Law Review (ALR)
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Force Majeure in Canadian Law
Get PDFForce majeure clauses are intended to allocate risk for future events that, if they occur, will affect the ability of one party to perform its obligations under the contract. This article undertakes a comprehensive review of the Canadian law of force majeure and its application in the energy sector. The article begins by examining the legal foundations of force majeure found in the common law, Canadian jurisprudence, and other legal regimes. It then describes the operation of a force majeure clause and analyzes how such a clause is likely to be interpreted by the courts. Along with analyzing specific aspects of force majeure, such as triggering events, foreseeability and control, and issues relating to impact and causation, the authors incorporate many practical suggestions that will be useful to drafters of force majeure clauses
Creating a Path by Walking It - A Year in Review of Pohna: Keepers of the Fire
Get PDFYouth involvement in criminal activity and gangs is a complex problem. This article examines Pohna: Keepers of the Fire, a gang intervention and diversion program for at risk youth. The program seeks to guide at risk youth away from criminal activity by creating a place where youth are valued and their strengths are used to build their connections and responsibilities to the community. There is no simple and straightfoward answer to addressing the problem of youth involvement in criminal activity and gangs. However, from our analysis of five case studies, we have learned that in order to develop effective programs and interventions for at risk youth, we need to focus our attention on learning from them and our interactions with them. To effectively support the youth involved in Pohna, we need to understand and address the broader forces at work that both strengthen and undermine their resiliency
Recent Judicial Developments of Interest to Energy Lawyers
Get PDFThis article provides an overview of recent judicial developments of interest to energy lawyers. The authors summarize and provide commentary on recent Canadian case law in the areas of: Aboriginal law, administrative law, conflict of laws, contracts, environmental law, freehold leases, rights of first refusal, surface rights, unjust enrichment, and taxation
Spatial Data Quality: The Duty to Warn Users of Risks Associated with Using Spatial Data
Get PDFThis article discusses whether and when a private provider of spatial data may be liable to pay for damages resulting from physical injury that occurs due to reliance on erroneous spatial data. The existing case law supports the view that some courts will approach harm due to errors in spatial datasets that give rise to physical harm using principles applicable to defective products, while others regard these errors as negligent misrepresentation. This article analyzes the duty to warn and spatial data in two parts. First, it provides an overview of the general problem of spatial data quality and its growing importance in light of internet dissemination to the public. Second, it sketches out the basic rules in the three main subdivisions of Canadian product liability law (manufacturing defects, design defects, and failures to warn of risks associated with products) and applies them to the context of broadly disseminated spatial data
Charting the Wrong Course: The Doctrine of Legitimate Expectations in Investment Treaty Law
Get PDFThe need to redefine the scope of the doctrine of legitimate expectations in investment treaty law is apparent. This article examines the domestic sources of the doctrine of legitimate expectations in order to evaluate whether investment treaty tribunals are justified in interpreting the doctrine of legitimate expectations to include substantive expectations. It concludes that recognizing substantive expectations as a part of the general principles of law is at this point premature and amounts to a misstatement of a general principle of law. There must be due consideration to the notion of deference as found in different domestic jurisdictions, including the doctrines of constraint found in common law
The Road to the Promised Land Runs Past Conway: Administrative Tribunals and Charter Remedies
Get PDFIn the 30 years since the Canadian Charter of Rights and Freedoms was proclaimed, one of the most litigated issues has been the role of administrative tribunals in deciding Charter claims. Early Supreme Court jurisprudence suggested that only the provincial superior courts had the jurisdiction to decide Charter claims and remedy a Charter breach. Over time, and in concert with the expansion of the administrative state in Canada, the Supreme Court recognized that administrative tribunals could in fact decide Charter questions. However, the issue of whether they could remedy a Charter breach became bogged down by the test from Mills v. R.: tribunals and courts had to analyze the tribunal’s jurisdiction on a case-by-case basis by examining the remedy being sought, as opposed to analyzing jurisdiction on an institutional basis, which would examine the tribunal\u27s statutory mandate and function
The Changing Legislation and Regulation of Carbon Capture and Storage: Impacts on Purpose, Policy, and Projects
Get PDFThe Government of Alberta is implementing carbon capture and storage (CCS) technology in order to reduce carbon dioxide emissions. With the enactment of the Carbon Capture and Storage Statutes Amendment Act, 2010 in November 2010, Alberta became the first jurisdiction in Canada to have comprehensive CCS legislation. This article describes CCS technology, considers the impact of the new legislation and potential interjurisdictional conflicts, and briefly compares the CCS legislation of other jurisdictions with Alberta’s legislation
Reflections on the Past, Present, and Future of Restorative Justice in Canada
Get PDFRestorative justice has been integrated into the Canadian justice system for over 30 years and it is now appropriate to acknowledge the achievements of the past, reflect on its current status, and consider where it may go in the future. Restorative justice evolved from experimentation by justice officials and community members looking for better ways to respond to crime, and there is a great deal of variation in how it is defined, understood, and practised. Provisions of the Criminal Code and the Youth Criminal Justice Act support the use of restorative justice in the criminal context. While restorative justice is being used across Canada and there are signs that it is maturing, there are also a number of challenges it faces, such as the need for ongoing funding and national data collection, and the need to define its relationship with Aboriginal justice and continue to engage victim service agencies. However, with continued leadership and support from community-based agencies, Aboriginal groups, faith organizations, governments, universities, and justice agencies, restorative justice will continue to evolve and expand in Canada
The Slings and Arrows of Outrageous Fortune: Can You “Lose” the Lottery but Still Win?
Get PDFThis article discusses potential legal arguments that can be made for a lottery player in a seemingly hopeless situation: buying a winning lottery ticket immediately before the deadline, only to find out that the ticket was mistakenly dated for the next week’s draw. Although the lottery rules and regulations and the courts’ interpretation thereof are strongly slanted against lottery players, the authors nevertheless argue that a consistent and coherent application of traditional contract law principles could favour the claimant. They note that Canadian courts have rarely been consistent in their application of contract law to lottery situations, with courts sometimes characterizing lottery advertisements as both an offer and an invitation to treat. Even so, whether the lottery corporation is construed as the offeror or the offeree, the authors contend that a diligent analysis of the formation of the underlying contract could entitle the claimant to the prize. The article concludes that the regulatory framework governing lotteries does not necessarily preclude the acceptance of contract law arguments in favour of the claimant. Rather, it is the courts’ tendency to analyze the contractual elements of the relationship between the player and the lottery corporation in a haphazard manner that has been the source of frustration for many lottery players across Canada
Violence is Not Conflict: Why it Matters in Restorative Justice Practice
Get PDFThe rapid growth of restorative justice programs calls for greater self-reflection and a higher standard of practice in the restorative justice field. This article addresses the distinction between violence and conflict, and the significant implications of this difference, in the restorative justice process. It offers insight into violence and victimization and sets out a number of approaches beneficial to helping solidify these important distinctions and in linking explanations to practice. Failure to understand violence and conflict as distinct concepts may potentially leave people and communities at risk of further harm