This is the final post in a multi-part series that explores constitutionalizing environmental protections through s. 7 of the Charter in the context of heavy oil processing in Peace River, Alberta. The author is solely responsible for the opinions expressed, and any errors or omissions made.

For a PDF version of this post with full citations, please click here.

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The Implications of Constitutionalizing Environmental Protections

On December 6, 2013, federal Environment Minister Leona Aglukkaq approved Shell’s Jackpine Mine expansion project in northern Alberta. The project was approved despite having “significant adverse environmental effects.” According to the minister, these adverse environmental impacts were “justified in the circumstances.” However, no further explanation was provided as to what circumstances or factors informed the minister’s decision to approve the expansion. The minister simply found it “justified in the circumstances” and only those words convey her rationale.

The lack of justification for approving a project that is known to have significant adverse environmental effects is notable for how the decision reflects the nature of environmental law in Canada. As Martin Olszynski writes, “modern environmental law does not consist of hard rules or substantive limits but rather is focused primarily on the process of decision-making.” Environmental law is more concerned with whether a decision was made correctly, rather than whether a decision is correct. This procedural focus makes it unnecessary to provide any meaningful rationale or insight into a decision. Read the rest of this entry »

This post is the third of a multi-part series that explores constitutionalizing environmental protections through s. 7 of the Charter in the context of heavy oil processing in Peace River, Alberta. The author is solely responsible for the opinions expressed, and any errors or omissions made.

For a PDF version of this post with full citations, please click here.

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How Odours from Heavy Oil Processing in the Peace River Region Can Constitute a s. 7 Infringement

The evidentiary record before the Alberta Energy Regulator inquiry into odours and emissions from heavy oil operations in the Peace River region makes clear that a s. 7 Charter claim asserting environmental protections can be made. The requirements of such a claim, as set out in the previous post, include: (1) government action has led to environmental impacts that (2) have resulted or will result in harm that (3) deprives the individual of their life, liberty or security of the person interests, and (4) that this deprivation is not in accordance with the principles of fundamental justice. Each element will be discussed in light of the factual conclusions that can be drawn from the inquiry’s documentary record and expert testimony. Read the rest of this entry »

On March 20, 2014, the Supreme Court of Canada granted leave to consider the Ontario Court of Appeal’s judgment in Sabourin & Sun Group v Laiken, 2013 ONCA 530. In addition to determining the law in Canada on civil contempt, the SCC’s decision will have significant ramifications on how lawyers across the country handle trust funds and Mareva injunctions in the future.

Canada’s highest court has considered the issue of civil contempt twice before, both times in relation to criminal contempt: United Nurses of Alberta v Alberta (Attorney General), [1992] 1 SCR 901, and Pro Swing v ELTA Golf, 2006 SCC 52. The upcoming Sabourin appeal will provide a welcome opportunity for the Supreme Court to clarify whether a third party with knowledge of a court order – such as a lawyer whose client is subject to a Mareva injunction – must be found to have been deliberately contumacious of the order before he or she can be held in civil contempt.

Read the rest of this entry »

On 28 February 2014, a German court dismissed a patent-infringement claim for US$2.2 billion in damages against Apple (LG Mannheim, 2 O 53/12 and 2 O 95/13). IPCom, a German patent-holding firm, claimed that Apple owed it damages for iPhones sold in Germany because Apple had allegedly violated its patent for granting mobile devices access to cellular networks.

Read the rest of this entry »

This post is the second of a multi-part series that explores constitutionalizing environmental protections through s. 7 of the Charter in the context of heavy oil processing in Peace River, Alberta. The author is solely responsible for the opinions expressed, and any errors or omissions made.

For a PDF version of this post with full citations, please click here.

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The Anatomy of a s. 7 Charter Claim Asserting Environmental Protections

The Charter of Rights and Freedoms, unlike the constitutional bills of rights found in Ecuador and South Africa, does not specifically include protections for the environment. However, the Charter’s broad scope allows environmental protections to be read into the document’s individual rights provisions. Although this has not yet occurred, academics have written extensively on how the Charter can be expanded to include environmental rights. The court itself has noted the possibility of constitutionalizing environmental rights protections under the Charter. In this regard, s. 7 is often cited as the Charter provision most likely to include environmental protections. Read the rest of this entry »

In R v Schmidt, 2014 ONCA 188 [Schmidt], a decision released on March 11, 2014, the Ontario Court of Appeal considered the legality of a milk farmer’s scheme to sell unpasteurized milk and milk products – which can pose a serious health risk – as part of a “cow-share agreement.”

Read the rest of this entry »

This post is the first of a multi-part series that explores constitutionalizing environmental protections through s. 7 of the Charter in the context of heavy oil processing in Peace River, Alberta. The author is solely responsible for the opinions expressed, and any errors or omissions made.

For a PDF version of this post with full citations, please click here. 

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Constitutionalizing Environmental Protections Under the Charter: Health Complaints and Heavy Oil Processing in the Peace River Region

Reno and Three Creeks are communities located in Alberta’s Peace River region. For years, community residents have complained of adverse health impacts resulting from emissions released by heavy oil processing facilities in the area. In early 2014, the Alberta Energy Regulator (AER) conducted a public inquiry into the concerns residents have regarding odours and emissions associated with heavy oil operations in the region. The results of the inquiry are expected to be released March 31, 2014.

From an environmental law perspective, there are a variety of ways to approach the concerns of Peace River residents. For instance, the odour and emissions management regulations for heavy oil production facilities in Alberta can be assessed for their efficacy. This appears to be the approach employed by the AER inquiry, which heard from experts and community residents to develop better regulations for heavy oil operations in the province. A “toxic-tort” perspective may be another approach by which the harms experienced by community residents are examined in relation to the industrial activity alleged responsible. Provided there is sufficient causation to determine culpability, residents may be entitled to a private law remedy.

However, the Charter of Rights and Freedoms provides another lens through which the concerns of Peace River residents can be analyzed. Read the rest of this entry »

Southcott Estates Inc v Toronto Catholic District School Board, 2012 SCC 51, is about an agreement to buy surplus school land for use as a housing development.  The school board did not complete the transaction, and it was undeniably in breach of contract.  Interestingly, at the end of a long legal process, the plaintiff Southcott received neither specific performance nor in the alternative, monetary damages.   This is contrary to what one would expect, and it is worth looking at because transactions of this type are fairly common.

There are two significant statements of principle coming from the Supreme Court (“SCC”) in this case.   The first one relates to specific performance, and the second one amounts to a new ground for piercing the corporate veil for single purpose subsidiaries.  Justice Karakatsanis delivered the opinion of a 6 to 1 majority. Read the rest of this entry »

Today, the Supreme Court of Canada released its decision in Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, which dealt with the appointment of Justice Marc Nadon of the Federal Court of Appeal to the Supreme Court of Canada.

The Court’s previous discussions of the case can be found here and here.

An analysis of the SCC decision released today, will be forthcoming here on The Court.

After two trials and cycles through the appellate court system, the Supreme Court of Canada (SCC) has dismissed the appeal in R v Hutchinson, 2014 SCC 19 [Hutchinson]. Building on the decision in R v Mabior, 2012 SCC 47 [Mabior], the Court in Hutchinson further clarified the law surrounding consent to sexual activity, holding that the sabotage of condoms constitutes fraud, which vitiates consent to sexual activity. On the facts, that the complainant subsequently become pregnant was sufficient for a finding that the appellant was guilty of aggravated sexual assault. Read the rest of this entry »