bluuebunny/crossref_metadata_2025 huggingface dataset:
Redeeming the Promise of Our Laws
Authors: Tingle Bryce C.
Published: December 2018

In this article, Tingle challenges the claim that reason is the agency by which judges determine the disposition of cases. He engages readers in a deconstruction of both liberal and communitarian rational arguments of the Charter of Rights and Freedoms to demonstrate that the outcome of his deconstructive reading is to render the Charter adjudication impossible as a rational enterprise. Tingle then makes the argument that ethics will permit the reconstitution of reason and the law and that ethics, which he separates from politics, escapes the deconstructive critique.
Recent Regulatory and Legislative Developments of Interest to Energy Lawyers
Authors: Twyman Rosa , Forrieter Michelle
Published: December 2018

The 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 12-month period from May 2010 to April 2011. This article focuses primarily on decisions before the relevant courts and tribunals in the areas of facilities, tolls and tariffs, the duty to consult, jurisdictional issues, review and variance decisions, surface rights, and standing decisions. In addition, this paper highlights developments in legislation, policy, and guidelines.
First Nations Land Management Act and Third Party Interests
Authors: Isaac Thomas
Published: December 2018

In 1999 the Government of Canada enacted the First Nations Land Management Act, which is designed to provide First Nations with increased control and authority over land management on Indian reserve land and to replace related provisions in the Indian Act. This article addresses concerns regarding third party interests and licences under this new Act, in that such interests may be less secure than under the old land management regime. The author then outlines some potential remedies to the existing ambiguities found in the new land management regime as a way to provide practical suggestions for First Nations to fully develop and utilize their First Nation land.
Constitutional Accommodation and the Rule(s) of Courts
Authors: Sossin Lorne
Published: December 2018

Constitutional authority for the development and implementation of the rules of court lies with both the legislature, by its statutory power, and the judiciary, by the constitutional principles of judicial independence. The court rules in question here are those that govern court accessibility as well as the roles and responsibilities of parties in civil litigation. The three existing models of ride-making are court-led, where a majority of government officials, and collaborative, which lacks an evident majority of either. These rule-making bodies do not control court fees, the executive does, but in a system with any model, the judiciary always has the final say in interpreting and implementing the rules or fees of the court. This creates an unavoidable conflict between the government and the judiciary.

The relevant principles of judicial independence in this conflict are the inherent powers of the courts to control all aspects of judicial function, as well as the necessity of accessibility to the courts. The integrity of the administration of justice requires a constitutional compromise that respects these principles and creates an interdependent balance between the judiciary and Parliament. An independent commission composed of non-judicial, non-governmental mediators where disputes between the courts and the governments may be brought would support this requirement. Such a commission would instill the necessary1 confidence in both parties, and would facilitate an effective
collaborative guardianship over the administration of court rules and fees while preserving the constitutional principles.
Constitutional authority for the development and implementation of the rules of court lies with both the legislature, by its statutory power, and the judiciary, by the constitutional principles of judicial independence. The court rules in question here are those that govern court accessibility as well as the roles and responsibilities of parties in civil litigation.
Empirical Study of Civil Justice Systems: A Look at the Literature
Authors: Lines Michael
Published: December 2018

The exploitation of empirical methodologies has had a late start in law compared with other social sciences. Though there have been consistent calls/or the scientific study of law-related problems since the late 1800s. the main impetus to actually begin conducting sophisticated and useful empirical studies has come from outside the profession, starting mainly in the 1950s. Since then, a growing number of evidence-based studies of legal topics have appeared, some authored by those trained in the law, others by those trained in other disciplines, often as collaborative efforts, and occasionally by scholars trained in both the law and empirical methodology. Prominent subjects have been the behaviour of juries, procedural justice, case loads in specific court systems, judicial decision-making, the legal profession, the impact of law on society and trends in specific types of cases, especially medical malpractice and product liability suits. This fluorescence seems to have tailed off somewhat since the late 1980s. What follows is an informal, non-exhaustive look at empirical studies relating to the reform of civil procedure and the improvement of the administration of civil justice.
Liberte, Egalite, Argent: Third Party Election Spending and the Charter
Authors: Geddis Andrew
Published: December 2018

Both the federal government and the courts have brought about changes in election law. The author reviews these recent changes In the legal landscape that surround election rules, in particular third party election spending. The questions of what rules exist" and "who shall make them" are particularly important to the discussion as this area of law tries to reconcile individual interests in liberty and equality in a democracy. The trio of Supreme Court of Canada decisions. Libman v. Quebec (A.G.), Thomson Newspapers v. Canada (A.G.) and Sauvi v. Canada (Chief Electoral Officer), reveal ambiguity in the Court's rationale for limiting individual liberty at election time. This ambiguity is broached in the recent Supreme Court of Canada case of Harper v. Canada (A.G.) where the Court accepted that Parliament may legitimately seek to create a "level playing field" at election time.
E-Racing Racial Profiling
Authors: Tanovich David M.
Published: December 2018

Despite widespread denials, racial profiling is a serious problem in many Canadian jurisdictions. The time has come to stop the debate and to focus instead on remedial action that directly addresses the problem. The author begins with an analysis of the dynamics of racial profiling and notes the challenges it poses to institutional measures aimed at changing police culture, such as anti-racism training and hiring practices. Since the breeding ground for racial profiling is the day-to-day crime detection policing that occurs through vehicle and pedestrian stops, one significant step that can be taken is to compel the police to record and publish stop data. This remedial approach has been put into practice in England and in much of the U.S. The author further proposes a revamping of the public complaints system. An objective and independent public complaints process is lacking and formal measures must be taken in this area to improve police accountability. The author also suggests that anti-racial profiling legislation is needed. Perhaps most importantly, law reform is required. To this end, the author details several specific recommendations to stimulate law reform in Canada.
Brief Investigatory Detentions: A Critique of R. v. Simpson
Authors: Quigley Tim
Published: December 2018

In this article, the author examines the brief investigative detention power created by the Ontario Court of Appeal in R. v. Simpson and challenges both the Court's reasoning and the way in which the decision has been followed in other Canadian jurisdictions. The common law power to detain an individual, based upon prominent U.S. and British case law, is inconsistent with the previous Supreme Court jurisprudence on police powers. The author demonstrates this by analyzing several cases involving police powers and joins the list of commentators who have urged the country's highest court to re-examine the Simpson doctrine. The author also argues that there has been a tendency for U.S. courts to grant increased discretion to the police even when such powers are unwarranted. There is a real possibility of a similar accretion of police powers in Canada. Moreover, the American experience also indicates that members of minority groups are frequently subjected to the rigours of brief investigative detention, often only because of their ethnic identity. Recent studies show that the same trend exists in Canada, serving to challenge democratic and egalitarian values that the Charter is designed to protect. The solution, according to the author, lies not with the Courts, but with Parliament taking the opportunity to define the extent and limits of brief investigative detentions.
Evaluating Canada's New Immigration and Refugee Protection Act in Its Global Context
Authors: Dauvergne Catherine
Published: December 2018

The author examines the changes to Canadian Immigration Law in the new Immigration and Refugee Protection Act in a global context. She identifies three categories of changes: those that legislate current practice, those that are partial attempts to include legal recommendations, and those that are a direct response to globalization. The author concludes that overall, immigration law in Canada is resistant to substantial change, in spite of major efforts at public consultation. As a result, despite considerable changes in new legislation, the central features of the old legislation have remained intact.
Raising the Bar: Maximizing Civility in Alberta Courtrooms
Authors: Turner Susan N.
Published: December 2018

This article examines the apparent lack of civility among the members of the profession of law. The author presents several examples of incivility among law students, lawyers, and judges, and emphasizes the need for increased civility to protect the integrity of the profession. This article also explores the respective roles oflaw schools, the bar, and the bench to effect positive change. The author concludes that a partnership of efforts is required to achieve maximum civility and highlights various means by which this goal can be reached.
Animals and Political Community: Preliminary Reflections Prompted by Bill C-10
Authors: DeCoste F. C.
Published: December 2018

The author examines the proper place of animals in the political morality of law and politics. He reconstructs the political morality of the law of animals in liberal states, and characterizes the effect, if any, of Bill C-10 on that morality. He suggests that animal welfarist and rights views are mistaken when assessed against the requirements of liberal personal and political morality. He concludes that the changes contemplated in Bill C-10 are destructive in their approach to liberal political morality, and of the proper stature of animals in our moral imaginations.
Diversion, Conferencing, and Extrajudicial Measures for Adolescent Offenders
Authors: Bala Nicholas
Published: December 2018

In responding to youth crime, Canada makes disproportionate use of courts and custodial sentences, while other countries divert more youth from the formal justice system and make greater use of community-based responses. This article surveys diversion from the youth courts under the different youth justice regimes that have existed in Canada, including informal and formal screening, police and Crown cautions, and use of youth justice committees and conferencing. The newly enacted Youth Criminal Justice Act is intended to encourage greater use of these diversionary "extrajudicial measures," and more use of a "restorative justice " approach to cases. A major limitation is that these provisions are permissive, and create no new legal rights for youths and impose no new obligations on governments. It will be up to provincial governments to decide whether to allow police, prosecutors and local program operators to actually implement these provisions. Further, depending on how these provisions are implemented, there are legitimate concerns about the potential for these informal responses to abuse the rights of youths or ignore the needs of victims. There should be both monitoring of the implementation of these provisions and research to determine how effective they are at reducing offending, and meeting the needs of victims, offenders and communities.
Applications for Third-Party Records: The Realtionship of the O'Connor Procedure to Other Application Procedures
Authors: Renke Wayne N.
Published: December 2018

The author presents an in-depth analysis of the application procedure by an accused for the production of records held by third parties developed in R. v. O'Connor. The appropriateness of using the O'Connor procedure respecting the various classes of records is explored, especially in light of the Mills procedure, the McClure procedure and the Stinchcombe disclosure rules. This complex and intricate area of the law is examined and conclusions are drawn regarding when the O'Connor procedure should be employed by an accused seeking the pretrial production of records in the custody of third parties.
Reconciliation and Conflict: A Review of Practice
Authors: Snyder Emily
Published: December 2018

In this article I provide a review of two connected events.  The first is the conference "Prairie Perspectives on Indian Residential Schools, Truth and Reconciliation," which was held in June 2010 in Winnipeg, Manitoba.  This conference was just one of many concurrent events taking place at the Truth and Reconciliation Commission of Canada's first national event.  Specific themes and aspects of the conference are covered here.  Secondly, I parallel my discussion of the conference to my experiences with the national event - experiences can be complex and do not happen in isolation from the broader context around them. Overall, I argue that while the conference and the national event made some meaningful contributions to ongoing dialogue about reconciliation in Canada, it is clear that understanding how to deal with and discuss the conflict that arises from discussions of residential school, "race relations," and reconciliation more broadly is an ongoing learning experience.  I offer some recommendations concerning how conflict could be better dealt with at future conferences and national events.  Reconciliation processes can be more effective if there is not only space for dissent but, most importantly, that mechanisms are in place for encouraging productive discussions about the conflict that arises and that will continue to arise.
Defence Disclosure: Is the Right to Full Answer the Right to Ambush
Authors: Tomljanovic Goran
Published: December 2018

In Canada, a complete set of codified defence disclosure rules does not exist. Rather, these rules exist in piecemeal form, some being statutory, some common law and others in place for the sake of expedience. Like the Crown, the defence is required to disclose at the investigative, pretrial and trial stages. Although defence disclosure appears to run contrary to the accused's right to silence and the right to make full answer and defence, it is emphasized that these rights are not absolute. They must be assessed against other Charter principles. The accused, for example, rarely remains silent until the final stages of the trial to subsequently "ambush " the Crown with his or her defence. The "ambush" defence, perceived as a strategic advantage, denies fundamental principles of fairness and ultimately hinders the search for truth. The author examines the numerous benefits of codifying the procedural rules. A clear statement of disclosure obligations, for example, would avoid lengthy debates over disclosure rules and thus ultimately lead to quicker resolution of the real issue. Further, should they operate unfairly against either party, the court would be in a position to waive them. Due to the many advantages and the corresponding lack of disadvantages such legislation would confer, it is strongly urged that a set of procedural disclosure rules be statutorily enacted.
Violence is Not Conflict: Why it Matters in Restorative Justice Practice
Authors: Edwards Alan , Haslett Jennifer
Published: December 2018

The 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.
Age of the Living Dead: Personality Rights of Deceased Celebrities
Authors: Collins David
Published: December 2018

This article examines the legal issues arising from digital technology that allows filmmakers to create features starring flawlessly rendered images of deceased celebrities, known as "synthespians." Recent developments in the law of personality rights in California have established that deceased stars' personality rights extend beyond death, permitting heirs to seek damages for wrongful uses. In Canada the tort of misappropriation of personality has been extended after death both at common law and in the privacy acts of some provinces. This article examines instances where courts have ruled against uses, often where there has been commercial exploitation, of the dead actor s persona and concludes with recommendations on strategies to regulate this area of the law.
The Northern Territory Emergency Response: The More Things Change, The More They Stay the Same
Authors: Watson Nicole
Published: December 2018

The Northern Territory Emergency Response (NTER) was a raft of measures introduced by the Commonwealth of Australia in response to allegations of child sexual abuse in Northern Territory Aboriginal communities.  The measures included the compulsory acquisition of Aboriginal lands, the quarantining of welfare payments, prohibitions on alcohol, and the vesting of expansive powers in the Commonwealth Minister to intervene in the affairs of Aboriginal organizations.  This article aims to provide a brief historical background of Aboriginal people's experiences with the law in Australia, discuss certain provisoins of the NTER, and, finally, examine the consequences three years after the implementation of the NTER.  Through this analysis, the author suggests that history remains a powerful influence, resulting in the NTER being based on assumptions of Aboriginal people that are grounded in a racist past.  Further, independent studies have shown that the NTER has been largely ineffective at accomplishing its stated objectives.
Creating a Path by Walking It - A Year in Review of Pohna: Keepers of the Fire
Authors: Erickson Karen , LaBoucane-Benson Patti , Hossack Fiona
Published: December 2018

Youth 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.
The Tip of the Iceberg: A Survey of the Philosophy and Practice of Canadian Provincial and Territorial Judges Concerning Judicial Disqualification
Authors: Bryden Philip , Hughes Jula
Published: December 2018

The "reasonable apprehension of bias" test for judicial disqualification has been a fixture in the common law world for centuries; despite this settled state of the law, judges and commentators have been concerned that the application of the test might be contentious in a significant number of cases. In this article, the authors report on an empirical study surveying Canadian provincial and territorial judges on common scenarios which raise the possibility of recusal. Situated in the applicable case law, the findings demonstrate a wide divergence of opinion on substance and procedure among respondents in their attitudes toward recusal in situations that are analytically marginal, but not rare. The article concludes with some possible explanations for the divergence.
Fullowka v. Pinkerton’s of Canada Ltd. and the Material Contribution Test for Factual Causation in Negligence
Authors: Hansen Robin
Published: December 2018

On 18 February 2010 the Supreme Court of Canada released its judgment in Fullowka v. Pinkerton’s of Canada Ltd. In a unanimous decision, the Court canvassed issues including duty and standard of care, factual causation, and the vicarious liability of unions, focusing especially upon duty and standard of care. This case comment examines, in particular, the decision’s treatment of factual causation in negligence.
Drafting Canadian Oilfield Master Service Agreements: An Overview of Key Clauses and Market Trends
Authors: Mercier Trent , Kane Josh , Nammour Sharbil
Published: December 2018

A cohesive master service agreement is a fundamental component of the operator–service provider relationship for the provision of oilfield services for upstream oil and gas operations. This article: explores the sometimes unique contract relationships found in the Canadian marketplace; provides an overview of key contentious issues and potential solutions, which are examined and contrasted with those seen in American and international contracts; and identifies recent relevant market trends, including special considerations for large-scale hydraulic fracturing operations and the perspectives of new international operators entering the Canadian marketplace.
Does the UN Security Council Compound the Global Democratic Deficit?
Authors: Farrall Jeremy
Published: December 2018

Since the end of the Cold War, the UN Security Council has frequently endorsed the notion that democracy and democratic governance are desirable preconditions for domestic stability and international peace and security. However, the Security Council’s response to the 2008 Zimbabwean presidential elections called into question, perhaps for the first time since the end of the Cold War, its commitment to democracy as the preferred from of domestic governance. In this article, the author discusses the concept of the democratic deficit and explores its application to the UN Security Council. In addition, the author examines the relationship between democracy and international law, retracing the argument that there is an international norm promoting democratic governance. Finally, the author examines the relationship between the Security Council and democracy, suggesting a growing formal commitment to democracy, particularly in post-conflict environments.
Through the Looking Glass: Implications of Canada-United States Transgovernmental Networks for Democratic Theory, International Law, and the Future of North American Governance
Authors: Friedman Kathryn Bryk
Published: December 2018

Viewing international law through the lens of transgovernmental networks offers a unique perspective to investigating the connection between democracy and international law. By applying the concept of the “disaggregated state,” the author evaluates the character and nature of transgovernmental networks within North America and offers suggestions for policymakers and scholars envisioning future models of North American governance.
Assessing Canada’s Regulatory Response to the Sarbanes-Oxley Act of 2002: Lessons for Canadian Policy Makers
Authors: Sibold, Q.C. Stephen P.
Published: December 2018

The article sets out to show that by adopting the Sarbanes-Oxley Act of 2002 together with other rules of the United States corporate governance regime, Canadian securities regulators moved away from a Canadian, principles-based approach, and not necessarily for the better. It does so by first discussing the unique characteristics of the Canadian capital markets and providing a thorough background into Canada’s corporate governance regime. It then highlights the main provisions of the Act, describes the ensuing debate in Canada, and critically examines Canada’s corresponding regulatory action — the introduction of four rules and a policy. The article asserts that the Sarbanes-Oxley Act of 2002 was an inappropriate model to take for the regulators and recommends a re-evaluation of the perceived need to harmonize with the United States in the area of corporate governance.
The Rule of Capture: Its Current Status and Some Issues to Consider
Authors: Low Cecilia A.
Published: December 2018

This article discusses the current status of the rule of capture in Canada. Briefly stated, if Party A digs for resources on their own land and captures oil or natural gas that have migrated from Party B’s lands, the rule of capture allows Party A to reap the benefits of their efforts as the inconvenience to the neighbour cannot support a cause of action. The author begins by examining the historical origins of the rule throughout the English common law, then examines the current status of the rule by analyzing various legislation and regulations dealing with capture in several Canadian jurisdictions. Due to the large amount of economic and physical waste created by the race to drill numerous wells in order to capture resources as quickly as possible current Canadian legislation has somewhat modified the rule of capture and has created correlative rights, varying from jurisdiction to jurisdiction. Correlative rights create a more equitable solution to allow each owner the opportunity to share in oil or gas from a single pool extending under their properties.
Maternal Substance Abuse and the Limits of Law: A Relational Challenge
Authors: Ordolis Emilia
Published: December 2018

In an effort to respond to the issue of maternal substance abuse, the following article aims to explore potential alternatives to a paradigm which posits maternal autonomy and fetal interests as inherently conflictual. More specifically, it investigates whether, in the context of maternal civil liability for alcohol and drug use, a relational perspective that promotes healthy maternal and fetal outcomes can be reconciled with an approach that respects women’s reproductive autonomy. In responding to this question, the following discussion will examine the concerns that surround legal intervention, assess current approaches of common law courts to the maternal-fetal relationship, and finally, suggest the need for facilitative strategies that extend beyond the limits of tort.
The Law of Evidence by David Paciocco and Lee Stuesser
Authors: Thompson Robert W.
Published: December 2018

No abstract available.
Municipalities and Canadian Law - Defining the Authority of Local Governments by Felix Hoehn
Authors: Curial Brian J.
Published: December 2018

No abstract available.
Regulatory and Legal Issues Respecting Coalbed Methane Development in British Columbia
Authors: Bois Charles , Hansen Sarah
Published: December 2018

This article examines the regulatory and legal issues surrrounding coalbed methane development in British Columbia. It discusses how regulators are responding to the challenges posed by the proliferation of coalbed methane development in the last decade, highlighting the applicable codes, guidelines, and government agencies involved in regulating coalbed methane. The authors conclude with a discussion ofsome of the key issues relating to coalbed methane development, including challenges around First Nations, surface rights, and the environment.
Federal Pipeline Rate Making: Alternative Approaches of the United States Federal Energy Regulatory Commission
Authors: Ross Alex
Published: December 2018

This article provides an overview of the alternative rate making methodologies adopted by the United States Federal Energy Regulatory Commission (FERC) in itsregulation of transportation rates for oil and natural gas pipelines. In 1997, authority over rate making for interstate oil and natural gas pipelines was transferred to the newly created FERC. This article describes the history of interstate pipeline rate making and the transfer of rate making authority to the FERC.The author looks at the innovative pipeline rate making methodologies implemented by the FERC in its regulation of transportation rates for both oil andnatural gas pipelines. The article describes the adoption by FERC of market based rates and a generally applicable indexed rate cap methodology for oil pipelinerate setting. In respect of natural gas pipelines, the legislative requirements and practical realities associated with cost-of-service rate making by FERC aredescribed and FERC’s policies permitting selective discounting, shipper-specific negotiated rates, and market based rates for natural gas pipelines arereviewed.The Commission’s adoption of the alternative rate making methodologies has taken the emphasis off of general rate case litigation as a means of establishingjust and reasonable rates for interstate oil and natural gas pipelines and related facilities. The alternative rate making methodologies also represent a significantdeparture from cost-of-service rate making, with increasing focus on rate flexibility and competition as a means of generating efficiencies for customers of interstate oil and natural gas pipelines.
How Goes the Battle? An Exploration of Guardianship Reform
Authors: Surtees Doug
Published: December 2018

This 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.
R. v. Imperial Tobacco Ltd.: More Restrictions on Public Authority Tort Liability
Authors: Klar, Q.C. Lewis N.
Published: December 2018

Since 2001, it has become very difficult for claimants to successfully sue public authorities for their negligent conduct, particularly in relation to their regulatory functions. This primarily has been due to the refined duty of care formula established by the Supreme Court of Canada in Cooper v. Hobart and Edwards v. Law Society of Upper Canada. As a result of their 2011 R. v. Imperial Tobacco Ltd. decision, the Supreme Court of Canada has restricted even further the ability of private claimants to successfully sue governments for their regulatory failures.
Limitation Periods for the Enforcement of Foreign Judgments: Laasch v. Turenne
Authors: Rafferty Nicholas
Published: December 2018

Laasch 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.
Canada (A.G.) v. PHS Community Services Society — The Insite Decision
Authors: Ward Cameron
Published: December 2018

On 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.
Re-defining Privity of Contract: Brown v. Belleville (City)
Authors: Ogilvie M.H.
Published: December 2018

Case comment on Brown v. Belleville (City), 2013 ONCA 148, 114 OR (3d) 561.
Cuthbertson v. Rasouli: Continued Confusion Over Consent-Based Entitlements to Life Support
Authors: Young Hilary
Published: December 2018

Case comment on Cuthbertson v. Rasouli, 2013 SCC 53, [2013] 3 SCR 341.
An Introduction to Various Issues Surrounding the Ownership of Storage/Pipeline Gas
Authors: Simard Chris , Lamb Andrew
Published: December 2018

The issues surrounding ownership of pipeline and stored gas have been largely ignored in Canada, with the result that many in the industry may be surprised to learn that their interests in such resources are not necessarily secured. By applying the most recent legal decisions in Canada and the U.S. to the practical possibility of an operator's insolvency, the authors discuss the likelihood, explore the advantages, and address the dangers of casting this relationship as a tenancy in common, bailment, or trust. While the importance of protecting a client's rights through extensive contractual principles is paramount in every relationship, the extent to which the judiciary will endorse contractual intentions in these unique circumstances is far from certain. This article explores the practical questions respecting issues of ownership and security as regards the natural gas arena to propose finally a new class of ownership that would treat natural gas rights as a sui generis category unique to storage/pipeline gas.
Taking the Instruction of Law Outside the Lecture Hall: How the Flipped Classroom Can Make Learning More Productive and Enjoyable (for Professors and Students)
Authors: Sankoff Peter
Published: December 2018

This article addresses the viability and utility of the “flipped classroom” concept in law school classrooms. The author argues that video capsules, as a means to lecture outside of the classroom, are an effective way to teach the so-called Generation Y and reclaim the classroom. By using class time to concentrate almost entirely on problem-solving, students are more focused and engaged in the material. Although technologies create certain challenges for the future of legal education, the potential to reinvent the way course material is delivered will help law faculties reach a generation of students that are proving difficult to inspire using traditional means.
Qualitative Research on Legal Education: Studying Outstanding Law Teachers
Authors: Hess Gerald F.
Published: December 2018

This article advocates that law schools and law teachers should use high quality, rigorous, qualitative research to help them make thoughtful changes in response to current challenges facing legal education. Regardless of the type of study, qualitative research involves a five stage process: (1) study design and ethics; (2) sampling; (3) data collection; (4) data analysis; and (5) the research report.This article illustrates each stage of the qualitative research process through a study of outstanding law teachers that was reported in the recent book, What the Best Law Teachers Do. This book is based on a study that was designed to identify the characteristics and practices of extraordinary law teachers who have significant, positive, long-term effects on their students.
Privacy Protection and Genetic Research: Where Does the Public Interest Lie?
Authors: Ogbogu Ubaka , Burningham Sarah
Published: December 2018

There is significant public interest in the outcomes of genetic research. However, there is also a great deal of concern that genetic research and associated realms will foster the use and disclosure of personal health and genetic information in ways that undermine protected privacy interests. This article proposes that a balance must be struck between legitimate public interests implicated in the collection, use, and disclosure of genetic information for research purposes. The article also explores the tension between the public interest in genetic research and the protection of individual privacy in relation to different policy regimes and reviews existing statutory rules, case law, and administrative decisions on the public interest exception in Canadian privacy law.
How Far Does the CAPL Travel - A Comparative Overview of the CAPL Model Form Operating Procedure and the AIPN Model Form International Operating Agreement
Authors: Josephson Michael D.
Published: December 2018

The author examines the differences between the Canadian Association of Petroleum Landmen model form Operating Procedure and the Association of International Petroleum Negotiators model form International Operation Agreement and identifies the rationale behind the differing approaches to key aspects of joint operations. He concludes that, while each model form has its place in the specific industry for which it was developed, a workable international joint operating agreement must reflect the types of issues addressed by the latter model form.
Privilege and the In-House Counsel
Authors: Mills Ken B.
Published: December 2018

Corporations and their employees incorrectly assume that all communications with in-house counsel will be privileged, but there are steps in-house counsel can take to minimize the disclosure of vulnerable communications.
Seismic Access Issues
Authors: Neilsen Allan D. , Manderville Christopher B.
Published: December 2018

This article examines the legal relationship between an owner of petroleum and natural gas rights and other interested parties when it comes to seismic operations. While rules on access to Crown lands and freehold surface have been rather clearly delineated, the rules pertaining to seismic operations on freehold land are not as clear. Case law from the United States is helpful, though limited in scope, mostly old, and sometimes based on different ownership theories.
The Companies' Creditors Arrangement Act and the Petroleum Industry: The Blue Range Resource Corporation Proceedings
Authors: Nishimura Douglas S.
Published: December 2018

This article provides an analysis of s. II of the Companies' Creditors Arrangement Act and the decisions arising out of the Blue Range litigation. While comparing the CCAA legislation with the Bankruptcy and Insolvency Act and the United States Bankruptcy Code the author analyzes the impact of the Blue Range Decisions on insolvency law and the petroleum industry.
Locking up those Dangerous Indians for Good: An Examination of Canadian Dangerous Offender Legislation as Applied to Aboriginal Persons
Authors: Milward David
Published: December 2018

This article examines the systemic reasons behind Aboriginal over-representation as Dangerous Offenders (DO) subject to indefinite detention. Colonialism has left behind various social traumas that continue to devastate Aboriginal communities. It is not surprising that significant numbers of Aboriginal persons accumulate lengthy violent criminal histories such that they come under the radar of the DO regime. One approach this article will stress is a call for greater emphasis on preventative social programming, and less emphasis on incarceration after the fact. This may lead to less Aboriginal over-incarceration generally, but also less Aboriginal over-representation as DOs, and less demand on resources over the long run. Secondly, the article also includes a review of case law where Aboriginal accused have been subjected to DO determinations. The conclusion is that courts are placing greater priority on the avoidance of harm to the public, to the point of marginalizing meaningful consideration of the background circumstances of Aboriginal accused, and of different approaches to long-term supervision that are grounded in Aboriginal cultures and may be more cost-effective. The article calls for greater judicial awareness and sensitivity towards the alternatives, as well as the development of an Aboriginal-specific risk assessment instrument that stresses dynamic instead of static factors.
Recent Regulatory and Legislative Developments of Interest to Oil and Gas Lawyers
Authors: Yates C. Kemm , Buchinksi Marie H.
Published: December 2018

This article offers a review of significant regulatory and legislative developments in the petroleum industry. In addition to highlighting key decisions of the National Energy Board and the Alberta Energy decisions and Utilities Board, the authors review several Alberta Energy and Utilities Board, decisions pertaining to the energy sector that were made in other provincial jurisdictions. The article also summarizes important legislative changes from across the country and discusses the policy statements that have been made by key actors in the examine industry.
Whatcott: The Redaction of the Taylor Dissent
Authors: From Derek James
Published: December 2018

No abstract available.
Recent Judicial Developments of Interest to Oil and Gas Lawyers
Authors: Bankes Nigel , Quesnel Alicia
Published: December 2018

In this article, the authors identify and discuss recent cases that impact on the oil and gas industry. These cases cover different areas of law including constitutional law, lands, leases, and titles, industry agreement, and fiduciary obligations.
Recent Judicial Developments of Interest to Oil and Gas Lawyers
Authors: Baker Geoffrey D. , Crang Catherine A.
Published: December 2018

This article is a compilation of recent Canadian decisions of interest to oil and gas lawyers. The authors discuss a variety of cases in areas such as lands, leases and titles, administrative law, contracts, torts, the environment, tax and royalties.
Reflection on National Energy Board Regulation 1959-98: From Persuasion to Prescription and on to Partnership
Authors: Priddle Roland
Published: December 2018

In this transcription of his keynote address given at the thirty-seventh annual Research Seminar of the Canadian Petroleum Law Foundation in Jasper, Alberta, Roland Priddle, former Chairman of the National Energy Board provides an historical summary of the regulatory role of the NEB. Starting with Canada s first Royal Commission on Energy, continuing with the energy crisis of the 1970s, through to the deregulation of the 1980s, Mr. Priddle describes numerous events and circumstances which have shaped the NEB's regulatory policies. The origins of the environment in which today's pipelines operate are traced, and the development of NEB's policies to address changing economic and political circumstances is described.
Split Sales of Gas
Authors: Muir Robert C.
Published: December 2018

The Natural Gas Industry is highly competitive and once a gas reservoir is discovered the various producers are anxious to enter into Gas Purchase Contracts. The contracts are with different purchasers and on different terms giving rise to split stream deliveries - there would never be any split stream problems if all producers made simultaneous deliveries to one or more purchasers in exactly the same volumes at exactly the same price. This article examines the position of the producers in the gas reservoir in the absence of an agreement and then discusses different contractual methods which the producers may use to resolve the conflict between the Doctrine of Correlative Rights and the Rule of Capture, such as gas market sharing contracts, cash adjustments, gas balancing schemes and deferred production agreements. To further complicate the problems of 'the producer in dealing with split sales of gas, the lessee-producer must keep in mind the interests of the lessor-royalty owner. The article concludes with a consideration of the interest of the royalty owner in the prepayment received by the producer and in the price for which the producer is selling the gas.
Independent Operations, Obligatory Operations and Challenge of Operator Provisions in Joint Venture Agreements
Authors: Brown W. G.
Published: December 2018

Although the concept of a joint venture is one of joint action, joint venture agreements in use in the oil and gas industry contain provisions for independent operations. This article discusses the need for independent operations clauses, the types of independent operations clauses, including obligatory operations clauses, the types of penalties and general problems which should be considered in the drafting of independent operations clauses. The article concludes with an analysis of the challenge of operator provisions in joint operating agreements.
Fiduciary Relationships in Oil and Gas Joint Ventures
Authors: MacWilliam D. A.
Published: December 2018

A party to a joint venture agreement in the oil and gas industry is often faced with the problem of determining whether or not he owes a fiduciary duty to his joint venturer. This article examines the many factual situations in oil and gas joint ventures which, could give rise to a fiduciary duty and concludes that the extent to which the fiduciary principle is applicable to various relationships involving interests in oil and gas has not yet been determined by the courts. As such, the author suggests that in addition to attempting to provide in the agreement for those circumstances which could give rise to a fiduciary duty, a party to a joint venture who desires to avoid a breach of a fiduciary duty should make full disclosure to and attempt to get the consent of the other contracting party.
The Administration of the Oil and Gas Conservation Act in Alberta
Authors: Govier G. W.
Published: December 2018

This paper is the text of a speech delivered to the Canadian Petroleum Law Foundation, Seventh Annual Research Seminar in Oil and Gas Law, Jasper, Alberta, May 29 to June 1, 1968. The author outlines the objectives, functions and typical procedures of The Oil and Gas Conservation Board.
Declaratory Relief under Oil and Gas Legislation - Update
Authors: Perrin Robert M.
Published: December 2018

Decisions of the Alberta Energy Resources Conservation Board arising over the past year are reviewed, along with new legislation in British Co lumbia and related decisions of the B.C. Energy Commission.
Natural Resources and the Constitution: Some Recent Developments and their Implications for the Future Regulation of the Resource Industries
Authors: Harrison Rowland J.
Published: December 2018

This paper reviews recent developments with respect to constitutional jurisdiction over natural resources. Particular reference is made to discussions between the federal and pro vincial governments directed towards reallocation of authority. It also examines poten tial implications of the constitutional reform movement for the future regulation of the petroleum industry.