Constitutionalizing Environmental Protections Under the Charter: PART I

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.

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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 »

[filed: Charter Constitutionalizing Environmental Protections Under the Charter Environmental Law]

Quashing Specific Performance and Piercing the Veil in Southcott Estates Inc v Toronto Catholic District School Board

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 »

[filed: Contracts Corporate law Property Law]

BULLETIN: SCC Rejects Appointment of Nadon J. to Its Bench

Today, the Supreme Court of Canada released its decision in Reference re Supreme Court Act, ss. 5 and 62014 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.

[filed: Constitutional Law]

Secretly Poking Holes in Condoms Vitiates Consent to Sexual Activity: SCC in R v Hutchinson

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 »

[filed: Criminal Code Criminal Law Health and Welfare]

Manitoba Telecom Services – Silence Through Predictability

Pensions are often the lifeline for the millions of pension holders once they retire. Pension plans also fluctuate in value if parts of the funds are invested in securities. In such cases, actuarial surpluses occur when a fund’s assets are greater than the actuarial estimate of the pension plan’s liabilities, and sometimes it is not clear what to do with such surpluses. But, the Supreme Court of Canada (SCC) does not often examine the law of actuarial surpluses because each actuarial surplus depends on the governing legislation and a plan’s unique circumstances (Nolan v Kerry). So, it would seem that the SCCs recent decision in Telecommunications Employees Association of Manitoba Inc v Manitoba Telecom Services Inc is relevant for only a small segment of the Canadian public. However, the decision is significant for Canada as a whole because it offers valuable insight into the SCC’s thought process, something that is especially valuable given the telecommunication competition situation. The problem, though, is that this predictability may in fact be harmful to Canada.

Read the rest of this entry »

[filed: Uncategorized]

Appeal Watch: Bhasin v Hrynew Submissions Before the SCC

On February 12, 2014, the Supreme Court of Canada heard an appeal from the Alberta Court of Appeal’s decision in Bhasin v Hrynew, 2013 ABCA 98. My previous analysis of the ruling can be found here on The Court.

Lawyers for the plaintiff and the defendants made their oral submissions before Chief Justice McLachlin, along with Justices LeBel, Abella, Rothstein, Cromwell, Karakatsanis, and Wagner. A video webcast of the Supreme Court’s back-and-forth session with counsel can be found here.

Read the rest of this entry »

[filed: Administrative Law Appeal Watch Civil Procedure Contracts Labour and Employment Oral Arguments]

Access to Justice Avenue Towards Class Action Certification Widened in Cavanaugh v Grenville Christian College

On 24 February 2014, the Ontario Divisional Court allowed the certification of a class action on the basis that the need to ensure that the plaintiffs received access to justice outweighed the difficulties that their many individual issues could produce for a trial: Cavanaugh v Grenville Christian College, 2014 ONSC 290 [Cavanaugh].

This case is the latest in a body of jurisprudence that is bringing clarity to the proper balancing of considerations that courts should make under the preferability analysis for class action certification—the analysis for whether a case should proceed as a class action or as a series of individual actions.

[filed: Uncategorized]

A Costly Class Action: the Failed Nuisance Claim in Smith v Inco Ltd

The final act in an eleven year long class proceeding has concluded with Smith v Inco Ltd, 2013 ONCA 724.  The defendant Inco had successfully defended itself against the claim for damages in the class action.  Here, it sought to recover legal costs of over $5 million. Inco was awarded a still substantial, though smaller award of $1.76 million.

On this appeal, the main respondent was the Law Foundation of Ontario, an agency jointly sponsored by the Ontario Government and the Law Society.  One of its functions is to support deserving class actions by paying for disbursements, and the cost award in the event that the class loses.   Under Ontario law, the individual named plaintiff would be liable for millions of dollars in costs unless somebody else steps forward to pick up the bill.   The Court of Appeal affirmed the costs award of the trial judge, and one of the factors considered was the precarious financial condition of the Law Foundation.  Read the rest of this entry »

[filed: Civil Procedure Class proceedings Torts]

The USSC Revisits the Fraud-on-the-Market Principle in Halliburton Co v. Erica P John Fund

Last Wednesday, the United States Supreme Court heard oral arguments for Halliburton Co. v. Erica P. John Fund, thereby revisiting the contentious “fraud-on-the-market” principle adopted in the 1988 case of Basic Inc. v. Levinson, 485 US 224 (1988). The principle works as follows: open and developed securities markets are efficient and all relevant information about a particular security is reflected in its price; investors buy these securities relying on the integrity of this price; material misstatements made by the issuer distort this price; and therefore, investors can be deemed to have relied on the misstatement because they relied on the price. Undoubtedly, this is something of a legal fiction, as markets do not always incorporate relevant information in real time and investors buy securities for any number of reasons—often precisely because they believe the market is not accurately valuing a security. However, fraud-on-the-market is an indispensable construct in certifying securities fraud classes in the United States and there are significant consequences to overruling it. Read the rest of this entry »

[filed: Civil Procedure Class proceedings Securities Law U.S. Supreme Court Uncategorized]

Canada (Commissioner of Competition) v Chatr Wireless Inc.: True Claims, but Inadequate Testing

On February 21, 2014, the Ontario Superior Court of Justice released its decision regarding remedies in Canada (Commissioner of Competition) v Chatr Wireless Inc., 2014 ONSC 1146 [Chatr]. This case stemmed from allegations by the Commissioner of Competition against Chatr Wireless Inc. (“Chatr Wireless”) in relation to claims made by the telecommunications company about it having fewer dropped calls than its competitors.

Read the rest of this entry »

[filed: Competition Law Consumer Protection]