bluuebunny/crossref_metadata_2025 huggingface dataset:
The Courts, the Charter, and the Schools: The Impact of the Charter of Rights and Freedoms on Educational Policy and Practice, 1982-2007, Michael Manley-Casimir and Kirsten Manley-Casimir, eds.
Authors: Anderson Sandra M.
Published: January 2019

The Courts, the Charter, and the Schools: The Impact of the Charter of Rights and Freedoms on Educational Policy and Practice, 1982-2007 is a collection of essays by various authors grouped by the sections of the Canadian Charter of Rights and Freedoms that are most applicable to schools. The book starts from the intriguing premise that it is time to take stock to see if the premise of their earlier book, that the advent of the Charter would radically change school law, has come to pass. Ultimately their answer, and that of the contributing essayists, is that the Charter has not fulfilled that premise.
Indigenous Environmental Rights in Canada: The Right to Conservation Implicit in Treaty and Aboriginal Rights to Hunt, Fish, and Trap
Authors: Collins Lynda M. , Murtha Meghan
Published: January 2019

This article is an exploration of Aboriginal and treaty rights strategies for protecting Indigenous environmental rights in Canada. The analysis begins with an outline of the problem, and the shortcomings of the available general law avenues. The authors then argue for the existence of a constitutionalized right to environmental preservation implicit in treaty and Aboriginal rights to hunt, fish, and trap. The article explores the theoretical, historical, and precedential support for this proposition. The central argument is that in securing the right to hunt, fish, and trap, Aboriginal peoples were in fact contracting for the continued existence of their traditional subsistence activities. These practices could not survive without the preservation of the ecosystems on which they depend, and the harvesting rights must therefore be seen to encompass a right to such preservation. Examination of the specific histories of treaty-making in Canada reveals that in many if not most cases, both the Crown and the Aboriginal signatories understood this substantive protection to be a part of the treaty guarantees. The authors then present a brief articulation of the corresponding Aboriginal right to conservation.
Rationalizing Infanticide: A Medico-Legal Assessment of the Criminal Code’s Child Homicide Offence
Authors: Anand Sanjeev
Published: January 2019

This article involves a discussion of the proper scope and interpretation of the Criminal Code provisions relating to the offence of infanticide. A review of the legislative history indicates that the biological rationale for the offence did not appear to have been scientifically established. Thus, despite the wording of the provision, the law of infanticide developed not from medical science, but instead as a way of dealing with unsatisfactory outcomes of homicide litigation directed at new mothers. In recent years, the medical rationale for infanticide has become less accepted and the trend has been to charge more mothers accused of killing their newborns with murder. This may be attributed, in part, because the conditions that created a sympathetic response to young women facing unwanted children in the past no longer exist. Nevertheless, it is asserted that the stress of child rearing should serve to reduce the culpability of some individuals who kill their children. Consequently, the author recommends a repeal of the current infanticide provisions, to be replaced by a more generally applicable defence of diminished responsibility applicable to not just biological mothers, but fathers and adoptive parents as well.
Natural Gas Liquids Extraction Rights in Alberta: An Evolving Landscape
Authors: Guichon Dave , Ho Bernette , Froehlich Robert
Published: January 2019

Alberta’s natural gas liquids (NGLs) industry commenced development in the 1960s and, with the support of the Alberta government, expanded rapidly in the subsequent decades. Over time each of the major natural gas transmission systems in Alberta developed its own protocol in respect of NGL extraction entitlement and procedures. In the case of the NOVA Gas Transmission Ltd. (NGTL) pipeline system, such a protocol was developed by way of convention, and has never been formalized in the NGTL tariff. On several occasions the Alberta Energy and Utilities Board (EUB), and its predecessors, examined the issue of NGL ownership and associated extraction, but significant issues remained. In 2007, the EUB undertook an inquiry regarding matters relating to NGL ownership and extraction from the common stream of natural gas that flows through EUB regulated transmission systems and facilities. The EUB’s decision in this respect was released in February 2009. This article provides background information on the NGL extraction industry, outlines the regulatory history relating to NGL ownership and extraction, reviews the decision released by the EUB following the inquiry, considers related jurisdictional questions raised while the inquiry was ongoing, and considers the future of NGL ownership and extraction rights within the province of Alberta.
The Effect of Exclusion Clauses
Authors: Fridman G. H. L.
Published: January 2019

The extent to which parties to a contract are free to arrange the existence and scope of their respective liabilities by the use of exemption clauses under a contract is a concern touching an unclear area of the law. Professor Fridman, recently appointed to the Faculty of Law of The University of Alberta and commencing tenure in the 1969-70 academic year, surveys the case law and concludes that proper judicial control of the freedom of contract is essential to the protection and future usefulness of that freedom.
Rhodesian Independence - Legal or Illegal?
Authors: Green L. C.
Published: January 2019

Mr. Green's analysis of this perplexing question illustrates the conflict between the Rhodesian judges’ respect for their oaths as Her Majesty's Justices and tl1e necessity of preserving the rule of Law as far as possible together with an effective administration. Mr. Green examines the banknotes dispute and concludes that third states may gradually accept the situation as a matter of necessity.
Directors' and Officers' Liability Insurance
Authors: Potter Kenneth B.
Published: January 2019

directors and officers of companies, is examined in its Canadian and parti cularly in its Albertan context. This examination is conducted against the background of possible liabilities of directors at common law and under sta tute, and the ability of companies to indemnify their directors for such lia bilities. The clauses of and coverage provided by typical directors' and officers' liability policy are analyzed and the merits of such policy dis cussed in the context of its possible worth to corporation. This analysis will be of particular worth and interest to corporate lawyers employed in an advisory capacity by corporations.
Judicial Notice
Authors: Flanz Allan R.
Published: January 2019

The author briefly surveys the state of the doctrine of judicial notice in Canada. Its rationale and the numerous facets of its scope are discussed, including: Common Law, statutory law, foreign laws, adjudicative facts, authoritative sources, legislative facts and its application by the appellate courts. He reviews the Law Reform Commission proposals and concludes with recommendations which follow these proposals.
Form Or Substance - Where Are We
Authors: Baillie William J.
Published: January 2019

The author provides an in-depth case analysis of the doctrine of "the substance" in taxation law, and such interrelated concepts as tax avoidance, sham transactions, the "business purpose" test and the intent, as opposed to motive, of taxpayer. The author concludes that the "so-called" doctrine of "the substance" is inconsistent with the fundamental philosophical principles of our legal system and that the doctrine has not been accepted by the Courts as part of our law.
Canadian Women as Legal Persons: How Alberta Combined Judicial, Executive and Legislative Powers to Win Full Legal Personality for All Canadian Women - The Jubilee of Henrietta Muir Edwards and Others v. Attorney-General for Canada decided October 18, 1929
Authors: Stone Olive M.
Published: January 2019

Alberta was greatly influential in the development of the full legal status of women in Canada. The author discusses the state of laws concerning women prevailing before the landmark case Edwards v. Attorney-General for Canada,providing valuable historical perspective. American and British case law and statutes are compared with their Canadian counterparts, concluding with an overview of the legal development of the status of women in Western Canada.
The Construction of Exclusion Clauses Upon Affirmation of a Fundamental Breach
Authors: Dugdale Tony , Lowe N. V.
Published: January 2019

Problems are raised by Lord Reid's judgment in Suisse Atlantique in which he proposes that, upon affirmation of a fundamental breach, the applicability of exclusion clauses is matter of construction. The authors contend that the correct analysis of this proposal re quires two stages of construction: first, to determine whether there was, in fact, fun damental breach, and second, to establish whether the clauses apply to the breach.
Industrial Development Permits
Authors: Jenkins D. J.
Published: January 2019

An historical background to the industrial development permit is provided, with discus sion of theprocedure necessary for obtainingpermits under s.42 of The Oil and Gas Conser vation Act.
Notes for a Lecture on the Law Officers and the Lord Chancellor
Authors: Hailsham Lord
Published: January 2019

Lord Hailsham was visiting speaker at the Faculty of Law, University of Alberta in early 1978. He graciously agreed to write this article on English Law Officers, subject he was most eminently qualified to write as former Lord Chancellor of England.
Matrimonial Property and Trusts: The Situation from Murdock to Rathwell
Authors: Pollock Leonard J.
Published: January 2019

Matrimonial property law in Alberta today is examined, focusing on the Canadian decisions which followed the Murdoch decisions, with particular emphasis on the use of the 'trust' as tool in judicial reasoning. The recent Rathwell decision is considered at some length. In conclusion, the author prays for legislative response in confused area of the law.
Recent Developments in Wrongful Dismissal Laws and Some Pointers for Reform
Authors: England G.
Published: January 2019

This paper examines recent developments in the law of wrongful dismissal. It demonstrates that the current common law fails to regulate satisfactorily terminations of employment and proposes an alternative statutory scheme. Part considers the "minimum contents" required of fair and just system of employment termination. Part II examines the common law response and its inadequacies. Part III suggests proposals for reform, drawing on the ex periences of statutory "just cause"protections in Nova Scotia and England and in Canadian grievance arbitration. Also, the proposed amendments to the Canada Labour Code in bill C-8,1 which introduces "just cause"protections for workers within Federal jurisdiction are considered.
The Last Case
Authors: Morrow W. G.
Published: January 2019

This is the story of the last appeal to go from Canada to the Judicial Committee of the Privy Council. The material contained in the reported decisions is interesting but it is hoped the reader will find that the story back of the reports is even more interesting.
The Justification of Punishment
Authors: Cavanaugh Barry J.
Published: January 2019

The author deals extensively, in a philosophical vein, with the justification of punishment and the criminal law. Isthere a right for society to protect itself? The argument herein tends to the apparently paradoxical conclusion that retribution may well be the most humane and most just basis for punishment.
Collective "Contracts" or Individual Status? Employment under Management-Union Agreements
Authors: Szakats Alexander
Published: January 2019

In the following article Doctor Szakats discusses the nature of collective agreements in Great Britain, Canada, the United States, Australia and New Zealand. With particular reference to New Zealand, Doctor Szakats examines the character and binding force of collective agreements and discusses whether "statute" or "contract" is the basis of employment for individual workers.
The Bill of Rights and the Indian Act - Either? Or?
Authors: M'Gonigle R. Michael
Published: January 2019

review of cases concerning the relationship between the Bill of Rights and the Indian Act shows judicial confusion. The author analyzes the three major Supreme Court of Canada decisions and shows how "equality before the law" has been defined. He then applies the American "reasonable classification" test to the relationship by identifying the purpose of the above Acts to see if they apply to all persons who are similarly situated with respect to the said purpose. Mr. M'Gonigle concludes that the test is applicable to distinguish between discriminatory exercise of statutory power and one which reflects concern for the Indians, and further suggests the manner in which the three cases and all future cases should be judicially approached.
Partition - A Survey of the Law in Alberta
Authors: Pepler W. R.
Published: January 2019

This survey of the law of partition is directed to the current law of Alberta which is embodied in three English statutes.1 The cases cited are primarily those of the Alberta and English courts although reference is made to decisions in other jurisdictions where statutory provisions are or have been similar.
The Supreme Court of Canada and Administrative Law
Authors: Jones David Phillip
Published: January 2019

The speaker observed that the Supreme Court of Canada has not been innovative Os approach to Administrative Law, although the fact that Canada has written constitution and the U.K. has not should provide fertile area for distinctive Canadian contributions in Administrative Law. Although the Roncarelli decision required the Court to look at policy in protecting individual rights against the state, the Court has generally failed to formulate policy and clear precedent and has not yet evolved coherent body of Administrative Law.
Insured's Duty of Disclosure in Canadian and English Law
Authors: Siddiqui Islam Ahmed
Published: January 2019

In law, insurance contracts are said to be subject to the doctrine of uberrima fides, i.e., they are contracts of utmost good faith obliging both the insurer and the insured to conform to high standard of conduct, especially regarding disclosure of material facts affecting the appreciation of the risk to be covered. In theory, this doctrine applies equally to the insurer and the insured, but in practice it has come to mean that the insured is under a heavy onus of dis closure when he applies for insurance coverage of any type, either personally or through an insurance agent. The modern doctrines of disclosure originated in the law of marine in surance in 16th century England. At that time, it was not unfair to expect very high standard of disclosure from the insured, because as the owner of the vessel or cargo to be insured, he was in better position than the underwriter to know the nature and extent of the risk to be covered. The underwriter was at comparative disadvantage with regard to the accurate assessment of the risk. The situation is vastly different today, since the insurance industry is wealthy, large and supremely organized. Its expertise in matters of risk assess ment and its corps of trained personnel give it an undoubted advantage over the lay consumer of insurance services. Most risks of an ordinary consumer type are highly standardized, such as automobile coverage, package home owner's coverage, and life insurance coverage. Despite these tremendous changes in the insurance marketplace, the insurer continues to enjoy preferred legal position in the area of disclosure of material facts. As will be seen, the classical doctrine was enunciated by Lord Mansfield in the 18th century and has not changed substantially since then. In the face of well entrenched common law doctrines, the insurance con sumer must rely upon legislative intervention for the fulfillment of his reasonable expectations. However, legislative regulation of standards of dis closure is p
Corporate Distributions to Stockholders
Authors: Krishna Vern
Published: January 2019

The intricacy of corporate taxation, since the advent of the new legislation in 1972, is now accepted as a fact of life. In this article, Mr. Krishna explains the legal, accounting and economic policy implications of three related areas designated surplus, pre-1972 surplus, and post-1972 surplus distributions. The article examines and evaluates the numerous interrelated variables to be considered in determining the timing and desirability of special and ordinary dividends. Various planning devices are suggested in the article, together with an outline of the pitfalls which await the unwary.
Women on Juries
Authors: Morrow W. G.
Published: January 2019

In (1970) 8 Alta. L. Rev. at 50, Mr. Justice W. G. Morrow made a study of the behavior patterns in juries in the Northwest Territories covering the years 1955-1968.I n this article, the writer develops this study further, concentrating upon the effect, if any, which women jurors have had upon these behavioral patterns. The article reproduces part of the original study, and is followed by the present study covering the years 1968-1973. For the convenience of the readers, the editors have converted all of the charges into the numbering system presently in effect in the current Criminal Code.
Civil Rights in Juvenile Courts
Authors: Kaliel Brian
Published: January 2019

Civil rights in juvenile courts is an area of the law that has attracted wide discussion and comment in the United States. Canada's laws, however, while following the same general pattern as those in the United States have not been the subject of close scrutiny. The purpose of the article is to scrutinize Canada's laws and place them in the context of modem views as the role and function of juvenile courts.
Native Rights and Law in An Age of Protest
Authors: Cumming Peter A.
Published: January 2019

Professor Cumming's article analyzes the aboriginal rights problem in Canada. The author lays the groundwork for his article by discussion of the historical origin and legal status of aboriginal rights. After various comments on the Federal Government's Indian policy (both past and present), the author takes an in-depth look at the position and attitudes of the three types of native peoples affected by the question of aboriginal rights—status Indians, Metis, and Eskimo. In concluding, Professor Cumming examines the Alaska Native Claims Settlement Act, and submits that the Act is an example of truly imaginative social policy in attempting to find fair and equitable solution to the abori ginal rights problem in that State. The author states that native problem exists in Canada, and submits that legislative solution recognizing aboriginal rights is, without qualification, preferable to the judicial type of solution which we appear to be headed towards in Canada. This article is based upon a paper prepared for symposium associated with the official opening of the new Law Centre of The University of Alberta, May and 5, 1972. Significant develop ments have taken place in the subject area since this paper was given. However, this does not affect the validity of the discussion and arguments set forth in the paper. The interested reader is also advised to refer to the preceding article, by Lester and Parker, on the British Common Law concepts of aboriginal rights and its particular application in Australia.
The Zoning Game - Alberta Style - Part II: Development Control
Authors: Laux Frederick A.
Published: January 2019

Adding to his study of land use planning in Alberta begun in The Zoning Game—Alberta Style, (1971) Alta. L. Rev. 268, the author now examines the alternative to zoning—that of development control as exemplified by the English Town and Country Planning Act of 1947. The features of Euclidean zoning and development control are compared and contrasted prior to his undertaking an analysis of the hybrid system as adopted in Alberta, system which incorporates elements of both. In the author's opinion, this hybrid combines the best features of zoning and development control while retain ing the maximum flexibility for both the planner and the developer. The author examines the Planning Act provisions which govern the system of de velopment control in use in Alberta today with a view to clarifying in consistencies, possible misinterpretations and existing misinterpretations of these provisions by both the courts and the administrators charged with their implementation. In the course of this examination, the author outlines the characteristics of typical development control by-law; the develop ment control administrative structure, including the use of the land use classi fication guide, the amendment of same, and appeal procedures available there under; and the methods of judicial review available to party adversely af fected by the decision of any segment of this administrative structure. Spe cial reference is made to the development control by-laws of several muni cipalities in Alberta and to relevant authorities on development control and land use.
Frederick A. Laux, Q.C., Memorial Lecture
Authors: Wakeling, J.A. Thomas W.
Published: January 2019

Frederick A. Laux, Q.C., Memorial Lecture
How do Lawyers Assist Their Clients With Advance Care Planning? Findings From a Cross-Sectional Survey of Lawyers in Alberta
Authors: Ries Nola M. , Douglas Maureen , Simon Jessica , Fassbender Konrad
Published: January 2019

Advance care planning (ACP) is the process of thinking about, discussing and documenting one’s preferences for future health care. ACP has important benefits: people who have a written directive are more likely to receive care that accords with their preferences, have fewer hospitalizations, and die in their preferred location. This article focuses on the important role that legal professionals have in advising and assisting clients with ACP. Studies report that people who have a written advance care plan are more likely to have received assistance in preparing the document from a lawyer than from a doctor. Yet virtually no research engages with the legal profession to understand lawyers’ attitudes, beliefs, and practices in this important area. This article starts to fill this gap by reporting the findings of a survey of lawyers in the province of Alberta. The results reveal lawyers’ practices in relation to ACP, their perceptions of their professional role and factors that support or hinder lawyers in working with clients on ACP, and their preferences for resources to assist them in helping their clients. To the authors’ knowledge, this is the first survey of lawyers on their practices in relation to ACP.
Medical Assistance in Dying: Journey to Medical Self-Determination
Authors: Carter, Q.C. Rose M. , Rodgerson Brandyn
Published: January 2019

In 2016, the Supreme Court of Canada struck down the laws criminalizing medical assistance in dying (MAID) in Carter v. Canada (Attorney General). In this article, the authors discuss the historical prohibition on MAID in Canada, the important change in the law represented by Carter, and Bill C-14, the federal government’s legislative response to the Supreme Court’s verdict. The authors explain the new MAID regime created by Bill C-14 and discuss the various issues raised by the new legislation, including the possibly unconstitutional exclusion of patients not suffering from terminal conditions, problems of certainty in determining when death is “reasonably foreseeable,” problems related to patients’ mental capacity, and the need for effective data collection.
Will We Ever Have Paris? Canada's Climate Change Policy and Federalism 3.0
Authors: MacLean Jason
Published: January 2019

Global climate change is at the point where politics as usual is not sufficient to combat it. The author argues that a new conceptualization of constitutionalism and federalism will be required to respond to this change. What the author calls federalism 3.0 will be a bottom-up approach to politics, where individuals are empowered by governments and institutions to shape climate policy. This bottom-up approach is encapsulated in the Paris Climate Change Agreement. Canadian Prime Minister Justin Trudeau has publicly declared Canada’s commitment to climate leadership through mobilizing all elements of Canadian society. However, the author argues Trudeau’s policies to date are merely an example of formalistic, check-the-box constitutionalism, rather than substantive, federalism 3.0.
The Presumption Against Interference with Vested Rights: Creating Structure out of the Confusion
Authors: Custer Michael
Published: January 2019

Canadian courts interpret statutes flexibly, as they remain unbridled by strict interpretive rules or principles. Consequently, ambiguity in statutory interpretation has emerged, particularly regarding the temporal application of statutory amendments. In this article, the author suggests that clearer rules should be established to remedy such uncertainty, focusing predominantly on clarifying the presumption against interference with vested rights. The article first proposes a step-by-step approach to the vested rights analysis, explaining how it operates and interacts with other temporal application presumptions. Next, the article traces the history and jurisprudence of the presumption against interference with vested rights, and attempts to resolve outstanding issues relating to the presumption. Finally, it applies this background to the proposed step-by-step approach, ultimately synthesizing the law and theory underpinning the discussed presumptions.
Apples to Oranges? Gendered Damages in Personal Injury Litigation: A Focus on Infant Claims
Authors: Renaud Kathleen
Published: January 2019

For infant plaintiffs, personal injury litigation damage awards for loss of earning capacity are highly speculative. To quantify damages, courts rely on general population statistics and often consider the gender of the plaintiff. This article examines ways in which courts have discounted damages to minor female plaintiffs. The author notes that this discounting broadly occurs in two ways, through the use of gendered statistics and through the application of female specific contingencies. While the courts have justified gender specific damages on the basis that tort law aims to be corrective, the author argues that these practices are no more appropriate than reducing damage awards based on factors such as race or ethnicity. The author concludes that tort law is capable of evolution and it is time that the practice of gender based damages be retired.
A Systematic Review of the Indian Mining Regulations in Comparison to Saskatchewan Mining Law Where the First Nations Holds Mineral Title
Authors: Mills P. Dawn
Published: January 2019

The Indian Mining Regulations were adopted in 1954, revised in 1961, and amended in 1968 and 1978 as a means to promote mineral resource development on First Nation reserves, where First Nations hold title to the mineral resource. In this article, the Indian Mining Regulations, as part of a suite of regulations associated with the Indian Act, are outlined in relationship to Saskatchewan mining law. First is a general survey of First Nations’ mineral titles across Canada where the Indian Mining Regulations apply. This article then discusses the application of these Regulations; compliance with provincial law; the disposition of minerals; permits; leases; and, finally, the assignment of royalties. It is recommended that a critical review of mineral resource potentials, exploration, mine permitting, and standards for environmental monitoring and reclamation be established prior to any assignment of the existing Indian Mining Regulations against any mineral resource development that occurs on First Nation lands or reserves.
Claire L’Heureux-Dubé: A Life, Constance Backhouse (Vancouver: UBC Press for the Osgoode Society for Canadian Legal History, 2017)
Authors: Adjin-Tettey Elizabeth , Calder Gillian , Cochran Patricia , Deckha Maneesha , Kodar Freya , Lessard Hester , Parmar Pooja , Plyley Kate , Zion Mark
Published: January 2019

None.
Continental Energy Trade: What to Expect From NAFTA 2.0
Authors: Lalonde Paul M. , Baisburd Yohai , Contreras Joaquin , Jimenez Jorge , Eidelman Vedia Biton
Published: January 2019

The implementation of the North American Free Trade Agreement (NAFTA) in 1994 significantly impacted the North American energy market via the provisions of Chapter 6. The original agreement with respect to Chapter 6 included three important principles: (1) a full respect for the constitutional restrictions of each party; (2) the need to strengthen and increase trade of energy products and services through gradual and sustained liberalization; and (3) the need to create competitive energy sectors. This article examines whether NAFTA continues to serve the interests of the three signatory states and whether potential changes are necessary or would be beneficial. In addition, the authors take an in-depth look at the energy markets of each North American country on an individualized basis. In particular, the authors examine the respective energy industry backgrounds, legal frameworks for natural resource regulation, and trends in the energy markets for Canada, Mexico, and the United States.
“Lest You Undermine Our Struggle”: Sympathetic Action and the Canadian Charter of Rights and Freedoms
Authors: Vallance Keir J.M.
Published: January 2019

In this new era of recognized constitutional labour rights, one aspect of labour relations — sympathetic action — remains, for the most part, judicially unexamined. This article examines the case law to demonstrate that there is a constitutional argument that both the statutory prohibition on sympathetic action, and the hostility to sympathetic action in the common law of contract and tort, infringe on the freedoms in section 2 of the Charter. However, there is no necessary connection between a right to undertake sympathetic action and a right to strike, nor is freedom of association the only Charter right that can protect sympathetic action. Ultimately, an absolute ban on sympathetic action under Canadian labour law violates the Charter and must be removed; and the hostility of the law of tort and the law of contract to sympathetic action also contravenes Charter values.
Taking Measure of the Charter’s Equality Guarantee: A Comment on the Court of Appeal’s Ruling in Morrow v. Zhang
Authors: Billingsley Barbara
Published: January 2019

On 12 June 2009, the Alberta Court of Appeal released its decision in Morrow.
The
central issue in the case was whether Alberta’s minor injury cap
unjustifiably violates the
right to equality guaranteed by s. 15(1) of the Canadian Charter of Rights and Freedoms.
Overturning the trial judgment of Neil Wittman A.C.J.,
the Court of Appeal concluded that
the minor injury cap does not violate the Charter’s equality guarantee. The appeal Court held
that, when looked at in the context of the province’s overall regulatory scheme of automobile
accident insurance, the minor injury cap does not perpetuate a negative stereotype of
individuals who suffer minor soft tissue injuries in motor vehicle accidents.
Introduction
Authors: Peacock Jim
Published: January 2019

The theme of the Law Society of Alberta's 100th Anniversary Conference was “Canadian Lawyers in the 21st Century.” The conference focused on four areas: Diversity and Demographics; Access to Legal Services; Professional Competence; and Regulation and the Legal Profession. It was a great success. From the opening night remarks of...
Re-Envisioning Regulation: “Canadian Lawyers in the 21st Century”
Authors: Woolley Alice
Published: January 2019

The articles in this issue represent the legacy of the Law Society of Alberta’s 100th Anniversary Conference, held in Edmonton, 26-27 October 2007. The conference was conceived by the Law Society of Alberta (LSA) in the belief that its centenary presented the occasion not only for celebration of the profession’s 100-year history in Alberta, but also for reflection on its future. The conference would be the vehicle for the generation and dissemination of serious thinking about what it means to be a member of the Canadian legal profession today and in the years to come. Hence the conference title which, after much casting about for a clever phrase, was chosen for its descriptive precision: Canadian Lawyers in the 21st Century.
Will the Law Society of Alberta Celebrate its Bicentenary?
Authors: Arthurs Harry W.
Published: January 2019

External changes — in demography and economy, in the domestic and global organization of power — are transforming the knowledge base of Canada’s legal profession, the relations amongst lawyers and between lawyers and their “relevant others,” and indeed the very notion of legal professionalism. This article explores the implication of these changes for the future of the profession’s governing bodies.
Are Lawyers Regulatable?
Authors: Webb Duncan
Published: January 2019

There is a long-standing debate surrounding whether the legal profession can be regulated, and if it can, to what degree self-regulation or co-regulation would be appropriate. This article focuses on the obstacles facing the regulation of the legal profession, such as: the nature of lawyers themselves and the types of services they provide; drafting challenges and the influence of lawyers on rule-making; self-governance; self-discipline; and reporting or enforcement challenges. The author suggests that these barriers may lead to ineffective regulation regardless of which model of regulation is used.
Navigating the Quagmire of Oil and Gas Transactions with Income Trusts
Authors: Curran Trudy , Mcguire Pat
Published: January 2019

This article examines the current trend towards incometrust conversion in the oil and gas industry and the various business and legal implications which arise as a result. Documented is the history ofthe development of the income trust, various methods in which income trusts are managed structures in which they exist, methods ofconversion, and lax treatment. The various implications of income trusts to the oil and gas lawyer are then discussed, with a focus on asset transactions and multi-party deals, as well as the concerns arising for counter parties to a transaction with a trust entity.  Finally, evolving issues affecting income trusts are addressed.
Recent Judicial Developments of Interest to Oil and Gas Lawyers
Authors: Houston Mark , Donovan, QC Thomas P. , Carmichael Robert W. , Barnes Brandon
Published: January 2019

This article is intended to provide a brief review of recent Canadian judicial decisions of interest to oil and gas lawyers. The authors have surveyed Canadian case law in the areas of government regulation, conflicts, creditor's rights, surface rights, contract, tax. and other areas. Portions of many of thesesummaries have previously been published in the Cox Hanson O 'Reilly Matheson Oil and Gas Netletter on the Quicklaw service operated by LexisNexis Canada Inc.
The Use of Foreign Forms to Circumvent Local Liability Rules
Authors: Flannigan Robert
Published: January 2019

Liability assignments for wrongs committed within ajurisdiction are generally intended to apply equally to all local and foreign persons. Local liability policy, however, can be circumvented through the use of foreign legal forms. Both local and foreign persons may reduce their liability exposure by conducting their activities in the local jurisdiction through a foreign form that has been endowed by its jurisdiction of origin with a wider limitation of liability. The differences in liability exposure are often significant. They appear to be tolerated or embraced because they serve local commercial, professional, and governmental interests. Ultimately, the costs of the resultant elevated risk of loss are borne by local residents.
Covenant Marriage and the Conflict of Laws
Authors: Ng Lily
Published: January 2019

Recently, three American stales introduced covenant marriage as a new form of marriage in response to the rising divorce rate. The author examines the threedistinguishing characteristics of covenant marriage that distinguish it from the current form of marriage offered in the United States and Canada. For the United States, the author canvasses the possibility of separating jurisdiction from choice of law. separating subject matter jurisdiction from personal jurisdiction, and recognition of the parties' intent, as three possible alternatives that non-covenant marriage states can utilize in order to respect the parties' intentions and the covenant marriage state's legislative intent. For Canada, the author canvasses the possibility that while Canada could take jurisdiction on the "ordinarily resident" basis, they may refuse jurisdiction on the basis of forum non conveniens or, alternatively, that they may apply the substantive law of the covenant marriage state on the basis that the Declaration of Intent signed by the parties represents an express choice of law clause.
The Unprincipled Use of Originalism and Section 24(2) of the Charter
Authors: Santoro Daniel C
Published: January 2019

Twenty years ago, the Supreme Court of Canada laid the foundation to the modern approach of the exclusion of evidence under s. 24(2) of the Charter in R. v. Collins. The author examines the treatment of this test by the Supreme Court in the subsequent cases of R. v. Burlingham and R. v. Stillman, with particular attention paid to the majority's rationale in Stillman for creating an "exclusionary rule" for conscriptive non-discoverable evidence. The author examines the critical debate surrounding Stillman, focusing on the argument that it was contrary to the "original intentions" of the drafters of the section. The author challenges this argument with four major assertions and then proceeds to examine recent attempts to reformulate the Stillman test. The author concludes that the rationale underlying the Stillman test was clearly and powerfully articulated. Any move to change the law must confront this rationale.
Case Comment: Retroactivity, Social Obligation and Child Support
Authors: Ferguson Lucinda
Published: January 2019

No Abstract
The History of the Organized Pseudolegal Commercial Argument Phenomenon in Canada
Authors: Netolitzky Donald J.
Published: January 2019

This article discusses the history of the poorly understood Organized Pseudolegal Commercial Arguments (OPCA) phenomena. Drawing from various reported and unreported sources, the author begins his review in the 1950s with two distinct pseudolegal traditions that evolved separately in both the United States and Canada. Focusing on the prominent members of each era of the OPCA movement, the author explains in depth the concepts behind the movement and what it means for the legal system in Canada today. The article culminates with an analysis of the current OPCA groups and how Canadian courts should respond to future OPCA litigants, while also giving reasons as to why it is important for Canadians to take notice of this movement due to potential security risks.
The Alberta Liquor Control Board and the Question of Administrative Independence, 1924-1939
Authors: Hamill Sarah E.
Published: January 2019

This article discusses administrative independence by using Alberta’s first attempt at creating a Liquor Control Board as a case study. The article examines the relationships between the Board, the government, and the public in order to contribute to a more rigorous understanding of administrative independence that goes beyond the usual comparisons to judicial independence.
Reflections on the Career of Professor Lewis Klar
Authors: Picard Ellen
Published: January 2019

None
Misusing the "No Duty" Doctrine in Tort Decisions: Following the Restatement (Third) of Torts Would Yield Better Decisions
Authors: Sugarman Stephen D.
Published: January 2019

Focusing on a recent California Supreme Court decision, Verdugo v. Target Corp., theauthor analyzes the “no duty” doctrine and its improper use in recent tort decisions. Heargues that too many US appellate courts are misapplying the “no duty” doctrine by usingit in situations in which they are actually deciding whether there has been a breach of theduty of care. The author places recent applications of the “no duty” doctrine in the contextof recommendations made by the American Law Institute, and suggests that the case lawwould benefit if the courts reflected upon the relative roles of judges and juries and followedthe guidance of the Restatement (Third) of Torts.
Prenatal Harm and the Duty of Care
Authors: Nelson Erin L.
Published: January 2019

In this article, the author explores the jurisprudence surrounding a contentious area of tortlaw: wrongful life claims. These claims focus on the situation in which the physician’snegligence lies in the failure to provide the child’s parents with the opportunity to preventthe birth of the child. Historically, courts have been unreceptive to wrongful life claims, andcurrent Canadian jurisprudence on this issue lacks clarity owing to inconsistent treatmentof these cases by the courts. The author exposes errors in reasoning in two cases decided bythe Ontario Court of Appeal, noting that these cases add to the incoherence of the legallandscape. She concludes with an appeal for Supreme Court authority or legislation toclarify the law.
Unique Public Duties of Care: Judicial Activism in the Supreme Court of Canada
Authors: Feldthusen Bruce
Published: January 2019

Typically, government liability in tort depends on whether the government in question,

through legislation, has consented to be held liable for its otherwise tortious acts. However,

the Supreme Court of Canada has behaved in an activist manner by ignoring or eviscerating

this legislation, altering and expanding what governments can be held liable for. This article

explains how this process has occurred, providing five specific examples where unique

public duties of care were created. An open discussion is needed about whether the Supreme

Court ought to continue doing this and, if so, on what basis. This article starts that

discussion.
To Serve and Protect Whom? Proximity in Cases of Police Failure to Protect
Authors: Chamberlain Erika
Published: January 2019

This article examines the duty of care owed by police to potential victims of crime, focusingspecifically on the issue of proximity. The author surveys both Canadian and UK cases inorder to examine the factors that potentially give rise to a special relationship in thesecircumstances, and compares the Canadian courts’ more plaintiff-friendly approach to theEnglish courts’ persistent refusal to recognize proximity in the relationship between thepolice and victims of crime. The case law is then analyzed in order to shed light on the utilityand content of the proximity requirement for the duty of care, taking into consideration thefactual context, statutory framework, and policy considerations.
Renewables In Alberta: New Policies, New Opportunities
Authors: Ross Alan , Desbarats Leanne , Williams Rick , Shouldice Robert , Chamberlain Adam , Milne Carolyn
Published: January 2019

This article explores Alberta’s new climate change strategy. The authors provide an overview of the evolution of Alberta’s regulatory model, point out criticisms of the pre-Notley regime, and evaluate the impact and effects of the new strategy. The new strategy is placed in context with federal climate change measures and analyzed in conjunction with lessons that can be learned from other jurisdictions.
Area of Mutual Interest Agreements and Canadian Competition Law Considerations
Authors: Alexander Frank , Arnold Erik
Published: January 2019

Area of Mutual Interest Agreements (AMIAs) are a common feature within the Canadian oil and gas industry. These agreements are usually entered into for the purposes of sharing technical information between two or more parties. This article explores the implications of the various types of AMIAs in relation to the Competition Act. While there is essentially no applicable Canadian case law on the subject, this article examines the potential civil and criminal penalties that the Competition Act may impose. In addition to detailing the statutory landscape in Canada, this article looks at how this issue has unfolded in the United States.
Restructuring Challenges in the Oil and Gas Sector: The Treatment of Regulatory Orders Post-Redwater
Authors: Bourassa Kelly , Zahara Ryan , Nyberg Chris
Published: January 2019

Companies within the Alberta energy sector are currently unable to satisfy amounts outstanding to their creditors and at the same time fulfill their environmental responsibilities, culminating in a fight over whether provincial or federal statutes have priority when it comes to the environmental obligations of insolvent oil and gas companies. This article identifies recent legal developments relevant to corporate restructurings in the Alberta energy sector, examining the Alberta Energy Regulator’s treatment of exploration and production companies, the licensee liability rating program, and the practical challenges that Alberta Energy Regulator’s licensees and creditors face in the current economic and regulatory climate. Finally, this article analyzes options for facilitating the sale of licenced assets.
The Legal Framework for Doing Business in Russia: A Summary
Authors: Drager Paul
Published: January 2019

The Canadian oil and gas industry has been particularly successful in establishing operations in Russia. The author argues that the Canadian penetration of Russia's byzantine legislation, regulation and bureaucracy is due to Canada's long history of governmental and commercial dealings with the former Soviet Union; to Canada's relatively low profile on the international political scene; and to the fact that those involved in the petroleum industries in Canada and Russia share similar experiences in terms of the problems posed by climate, geology and jurisdictional overlap in both countries, experiences which have led to mutual understanding and enhanced co-operation. The author provides an overview of the issues and options which confront a Canadian company in the process of establishing a viable operation in Russia. He suggests that patience, flexibility and long-term planning are the management tools required to succeed in Russia's fluid and complex legal and legislative environment.
Recent Legislative and Regulatory Developments of Interest to Oil and Gas Lawyers
Authors: MacDiarmid Donald , Maguire Patrick , Denstedt Shawn
Published: January 2019

In the following discussion the authors summarize recent developments in statutes, regulations and regulatory decisions which may be of particular interest to oil and gas lawyers in Canada. The scope of the summary is limited to federal law and the laws of Alberta, British Columbia and Saskatchewan. Notwithstanding this limitation, the developments in this area of law are numerous and this paper seeks only to draw attention to them without attempting to provide detailed descriptions or analysis.