By: Nigel Bankes
Case Commented On: Precision Drilling Canada Limited Partnership v Yangarra Resources Ltd, 2016 ABQB 365 (CanLII)
This matter, involving the interpretation of a standard form drilling contract, originally came on before Master Prowse as an application for summary judgement by Precision, the drilling contractor. My post on the Master Prowse’ decision, 2015 ABQB 433, is here and my post on Master Prowse’s further judgement, 2015 ABQB 649, on the “interest clause as penalty” issue is here. Both decisions favoured Precision, and Yangarra appealed both. In this decision Justice E.C. Wilson dismissed both appeals and affirmed Master Prowse’s decisions largely by quoting extensively from the learned Master’s reasons.
The only new argument before the Court was based on Bhasin v Hrynew, 2014 SCC 71 (CanLII) and to the effect that there was an implied contractual term of honesty and good faith which Precision had breached. But, just as the Court rejected Yangarra’s argument based on fraudulent misrepresentation on the basis that there was no evidence to support the claim, so too did it reject (at paras 38 – 39) Yangarra’s claims based upon this head:
 Next, Yangarra submits in its more recent claim that Precision breached its contractual duties of honesty and good faith in the execution of this contract which warrants the matter proceeding to trial. I disagree.
 This claim of a lack of honesty and good faith really translates into a claim of dishonesty or bad faith which is simply another way of describing its complaint regarding fraudulent misrepresentation and, respectfully, is dismissed for the same reasons, ie the absence of credible evidence to support the claim.
As a result Justice Wilson did not have to rule on (at para 31) “the theoretical possibility of contracting out of the duty of honest performance” (Bhasin at paras 77, 78, 80 & 81).
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By: Nigel Bankes
Case Commented On: Bank of Montreal v Bumper Development Corporation Ltd, 2016 ABQB 363 (CanLII)
This case involves the 2007 version of the CAPL Operating Agreement as well as a construction, ownership and operation agreement for a battery (COO Agreement). In his judgment Justice Alan Macleod enforced the immediate replacement provisions of the operating agreement in favour of a co-owner (Eagle Energy Inc.) and against the purchaser of the assets (Forent Energy Ltd.) from the receiver\manager appointed under under s 243 of the Bankruptcy and Insolvency Act, RSC 1985, c B-3. The Order of the Court appointing the Receiver provided that
No Exercise of Rights or Remedies
9. All rights and remedies (including, without limitation, set-off rights) against the Debtors, the Receiver, or affecting the Property, are hereby stayed and suspended except with the written consent of the Receiver or leave of this Court…
Eagle relied on the following provisions from CAPL 2007 and the COO Agreement:
2.02 Replacement of Operator
A Immediate Replacement– The Parties acknowledge that the Operator’s ability to fulfill its duties and obligations for the Parties’ benefit is largely dependent on its ongoing financial viability and that the Operator may not seek relief at law, in equity or under the Regulations to prevent its replacement in accordance with this Subclause. The Operator will be replaced immediately after service of notice from Non-Operator to the other Parties to such effect if:
a) the Operator becomes bankrupt or insolvent, commits or suffers any act of bankruptcy or insolvency, is placed in receivership or seeks debtor relief protection under applicable legislation (including theBankruptcy and Insolvency Act (Canada) and the Companies’ Creditors Arrangement Act (Canada)), and it will be deemed to be insolvent for this purpose if it is unable to pay its debts as they fall due in the usual course of business or if it does not have sufficient assets to satisfy its cumulative liabilities in full;
Any such notice from a Non- Operator must be a bona fide notice that specifies the basis for replacement under this Subclause and includes verifiable evidence substantiating that basis in reasonable detail. Subject to the restrictions in Subclause 2.06B on the appointment of a successor Operator, the Party with the largest Working Interest will then act as Interim Operator on the same basis as in Subclause 2.06D, unless the Parties have otherwise appointed a successor Operator under Clause 2.06.
3.03 Operator shall immediately cease to be Operator in the circumstance described in Subclauses (a) and (b) below and in all circumstances described on this Clause a replacement. Operator appointed pursuant to Clause 304 if:
(a) Operator becomes bankrupt or insolvent, commits or suffers any act of bankruptcy or insolvency, is placed in receivership or a receiver/manager or person filling that role is appointed with respect to its property…
3.04 (a) Upon Operator resigning or otherwise ceasing to be Operator and until a replacement Operator being appointed, the Owner with the largest Facility Participation… shall automatically become the Interim Operator
Eagle notified the Receiver (appointed pursuant to an application of February 16, 2016) that the above provisions were triggered and of its intention to assume the operatorship. The Receiver responded by letter of February 29, 2016 indicating that Eagle’s notice was stayed by virtue of paragraph 9 of the Court Order (above). Both Eagle and Forent submitted bids to the Receiver to acquire the relevant properties. Eagle and the Receiver reached an understanding following a meeting and conversation that the Receiver would not purport to convey the operatorship as part of the sale of the properties if the successful bidder were any other than Eagle.
Forent was the successful bidder and the Receiver applied for approval of the sale and a vesting order. Following an intervention by Eagle the Vesting Order was granted subject to Eagle’s right to assert its claim to assume operatorship of the relevant properties. This judgment is the adjudication of that claim. In the course of finding for Eagle Justice Macleod stated as follows (at paras 18 – 23):
 Had Eagle pursued its right to be Operator at the time of the granting of the Receivership Order or soon thereafter, I can think of no reason why this Court would not have acceded to Eagle’s request to lift the stay and grant a declaration with respect to both the wells and the Battery.
 The stay was granted incidental to the appointment of the Receiver to permit for orderly realization and distribution. Eagle’s right to operate, however, arises under a contract which pre-dates the receivership. Also, there is no reason to interfere with the contractual rights of Eagle which are not subject to the security of Bumper’s creditors.
 This is not a situation such as the one facing this Court in Norcen Energy Resources Ltd v Oakwood Petroleums Ltd (1988), 1988 CanLII 3560 (AB QB), 92 AR 81 (ABQB), 63 Alta LR (2d) 361 . In that case s 11 of the Companies Creditor’s Arrangement Act, RSC 1970, c C-25 (CCAA) was at issue. Section 11 gives very broad powers to the Court in situations where arrangements involving compromise can be utilized to rescue insolvent companies. The CCAA has proved to be an extraordinarily flexible Act. The Act has been used effectively to give debtors respite from creditors in order to allow the stakeholders to negotiate a proposal for continuing the business, rather than allowing the business to fall into bankruptcy. Here, the issue is not Bumper’s survival but the realization on its assets.
Justice Macleod went on to conclude that Eagle had not slept on its rights but had acted reasonably in light of the Receiver’s stated position and had “negotiated a deal” with the Receiver that was designed to protect its position. Forent could not have any reasonable expectation that it was purchasing the operatorship. In these circumstances it would, in Justice Macleod’s view “be unfair to deprive Eagle of its clear contractual right to be Operator of both the wells and battery. To do so would be tantamount to appropriating Eagle’s right for the benefit of Bumper’s creditors.” (at para 23) The stay was lifted nunc pro tunc and a declaration issued to the effect that “Eagle is entitled to operate both the wells and Battery in question. It is also directed that the Receiver and others, including Forent, transmit to Eagle all accounts, licences etc. which are reasonably necessary for Eagle to succeed Bumper as Operator under both of the agreements.” (at para 27)
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By: Drew Yewchuk
PDF Version: The Forest of Delays
Case Commented On: R v Vassell 2016 SCC 26 (CanLII)
Section 11(b) of the Canadian Charter of Rights and Freedoms, guarantees that any person charged with an offence has the right to be tried within a reasonable time. In R v Vassell 2016 SCC 26 (CanLII) the Supreme Court of Canada reiterated that the Crown is responsible to deliver on this right. The approach that had been developing in Alberta courts was that the right would only be violated where the actions of the Crown caused excessive delay – institutional delays and delays caused by anything other than Crown actions were considered neutral or less important and did not trigger section 11(b). The Supreme Court in Vassell rejects this approach: the Crown is responsible for bringing the accused to trial within a reasonable time and therefore for all delays, regardless of their cause, trigger section 11(b) unless the accused explicitly or implicitly waives their right to be tried within a reasonable time.
The accused was charged on April 11, 2011, and convicted of one count of possession of cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act, SC 1996 c 19 on April 22, 2014. The Alberta Court of Appeal had found that atno time did the accused waive his rights under section 11(b), and he was not responsible for any of the delay. (R v Vassell 2015 ABCA 409 at paras 1-2) The delay was caused by several factors, including the decision of the Crown to try the accused along with six other individuals (Vassell CA at para 3), strategies undertaken by his co-accused (Vassell CA at para 45), the Crown prosecutor unexpectedly had to attend a funeral (Vassell SCC at para 9), and a very late decision to call expert evidence –evidence that was ultimately not called (Vassell SCC at para 11). The appeal came to the Supreme Court as of right from a dissent by Justice O’Ferrall of the Alberta Court of Appeal.
Justice Moldaver wrote the judgment of the Supreme Court, and expressed general agreement with Justice O’Ferrall on the section 11(b) issues. (Vassell SCC at para 2). Other arguments had been raised in the lower courts, but were not addressed in the Supreme Court decision. The core of Justice O’Ferrall’s dissenting opinion on the section 11(b) issue was that:
…the Crown must bear some responsibility for delay where it results from a failure to apprehend the parameters of the case in a timely fashion.
In the end, the appellant waited three years for a three-day trial. This should not have happened. While the Crown’s conduct of the prosecution certainly did not reach the point of bad faith, had the Crown a better grasp of its case against these various accused, before it decided to proceed against them together on a joint indictment, the time to trial would have been much more reasonable. Furthermore, if the Crown’s failure to properly apprehend its case against these individuals resulted from a lack of prosecutorial resources, this was, nevertheless, a failure for which the Crown must bear responsibility in the context of determining whether the delay in this case was unreasonable.(Vassell CA at paras 53-54)
At the Supreme Court Justice Moldaver stated the issue this way:
…a more proactive stance on the Crown’s part was required. In fulfilling its obligation to bring all accused to trial within a reasonable time, the Crown cannot close its eyes to the circumstances of an accused who has done everything possible to move the matter along, only to be held hostage by his or her co-accused and the inability of the system to provide earlier dates. (Vassell SCC at para 7)
The delay in this case was ultimately the result of the Crown decision to try seven individuals at once, and while the Crown was entitled to proceed in this manner, the Crown was also responsible for ensuring that this decision did not infringe the right of the accused to trial within a reasonable time. The Crown is ultimately responsible for any delays not caused by or waived by the accused (Justice O’Ferrall, Vassell CA at 54).
To explain the importance of this decision, consider as examples two recent Alberta cases that preceded the Supreme Court’s Vassell decision that demonstrate trends in section 11(b) jurisprudence. In R v Chang 2016 ABQB 297 (CanLII) and R v Warring 2016 ABQB 236 (CanLII) the court categorized each period of delay, and separated from consideration those for which the crown was responsible and those which the crown was not responsible for (Chang at paras 70-101, Warring at paras 113-171). Both Chang and Warring cite R v Panousis 2003 ABCA 294 (CanLII) for the principal that the Crown “is in no way compelled to explain its procedural choices” (Chang at para 94, Warring at para 158). Both cases also say that inherent time requirements “are neutral in the s. 11(b) reasonableness assessment and do not count against the Crown or the accused”. These elements of the section 11(b) analysis are likely incorrect after the Supreme Court’s decision here in Vassell. However I note that neither Chang nor Warring turned on these points, and it is not clear that the Supreme Court’s Vassell decision would have altered the outcomes of those cases. The Vassell decision appears to alter the trends in section 11(b) jurisprudence to diminish the duty of the Crown to provide a trial within a reasonable time and to engage in an extensive categorization of delay periods that avoids considering the length of the delays as a whole.
The Supreme Court reiterates a point from R v Godin 2009 SCC 26 (CanLII) that when courts are considering whether there has been a breach of section 11(b) they “must be careful not to miss the forest for the trees.” (at para 3) I expect this decision will lead to two changes in decisions regarding section 11(b). First, courts will keep in mind that the Crown has a duty to provide the accused with a trial within a reasonable time, and second, the decisions regarding section11(b) breaches will hopefully include a less technical accounting of time. These changes are relatively minor course corrections, but by cautioning against the diminishing of Crown responsibility and excessive technicality, the Supreme Court has acted to protect the relevancy and strength of the section 11(b) right to trial within a reasonable time.
As a final point, the clarification that the Crown is responsible for ensuring the accused receives a trial within a reasonable time makes the lack of judicial resources in Alberta a more serious problem. The lack of judges in Alberta lengthens the delays involved in obtaining trial dates. To re-iterate a common theme on this blog: the vacancies on the superior courts are a serious problem for our justice system, and Alberta needs a full complement of judges to properly protect both the public and the rights of the accused.
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By: Martin Olszynski
Case Commented On: Gitxaala Nation v. Canada, 2016 FCA 187
On June 20, 2016, the Federal Court of Appeal released its much anticipated decision in the Northern Gateway legal saga (for a list of previous ABlawg posts, going as far back as 2012, see here). The Court quashed the Governor-in-Council (i.e. Cabinet) Order directing the National Energy Board (the Board) to issue a certificate of public convenience and necessity to Northern Gateway on the basis that the federal government did not fulfill its duty to consult. My colleague Sharon Mascher is preparing a blog post on that part of the decision. In this post, I focus on the Court’s approach to the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52 and its dismissal, in essentially a single paragraph (para 125), of all of the substantive challenges to the Joint Review Panel’s report. As further discussed below, the Court appears to have applied the wrong provisions of the CEAA, 2012, with considerable implications for both the substantive challenges to the JRP report as well as Cabinet’s determination that Northern Gateway’s significant adverse environmental effects are “justified in the circumstances” (CEAA, 2012 subs 52(4)). It is nevertheless important to consider the Court’s approach because the provisions that it did apply are applicable to Kinder Morgan’s TransMountain Pipeline review and TransCanada’s Energy East project.
The Court’s Approach to CEAA, 2012 Sections 29 – 31
The Court set out its analysis and understanding of the CEAA, 2012 regime, and its interplay with the relevant provisions of the National Energy Board Act, RSC 1985, c N-7 at paras 92 – 127. With respect to CEAA, 2012, the Court focused on sections 29 – 31, which are the sections that would normally apply to the Board when it is the “responsible authority” (s 15) for a project listed on the Regulations Designating Physical Activities, SOR/2012-147 (in this case, a pipeline). As noted by the Court, these provisions require the Board, as part of its duties pursuant to the NEB Act, to submit to Cabinet an environmental assessment report. They also contemplate some potential back and forth between the Board and Cabinet in terms of the sufficiency of the former’s environmental assessment report: Cabinet can ask the Board to reconsider any of its recommendations. Of particular importance to the Court here, subsections 29(3) and 30(5) state that except where sent back for reconsideration, the Board’s environmental assessment reports are “final and conclusive”. In light of these provisions, the Court concluded that there can be no direct legal challenge to the Joint Review Panel’s report:
 In the matter before us, several parties brought applications for judicial review against the Report of the Joint Review Panel. Within this legislative scheme, those applications for judicial review did not lie. No decisions about legal or practical interests had been made. Under this legislative scheme, as set out above, any deficiency in the Report of the Joint Review Panel was to be considered only by the Governor in Council, not this Court. It follows that these applications for judicial review should be dismissed. (Emphasis added)
This conclusion is problematic for several reasons, including the difficulty of vesting in Cabinet the authority to determine whether or not an environmental assessment report is adequate and conforms to legislative requirements when it was governments’ poor track record of disclosing and considering environmental effects that was the impetus for such legislation in the first place (see Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 CanLII 110 (SCC) at paras 1 and 2). I also have concerns with the Court’s approach to the “final and conclusive” language in sections 29 and 30, which I discuss further below. The biggest problem, however, is that these sections are not actually applicable to Northern Gateway.
Northern Gateway as a CEAA, 2012 s 38 Panel Review
Those following Northern Gateway through the regulatory process will recall that it was initially subject to JRP review under the original Canadian Environmental Assessment Act SC 1992, c 37. Bills C-38 and 45, the infamous budget bills of 2012, were brought into force after that review was already underway, such that the Minister of the Environment had to amend the original agreement establishing the JRP. Of particular importance is the following:
AND WHEREAS pursuant to section 126 of the Canadian Environmental Assessment Act, 2012, the assessment by the joint review panel is continued under the process established under the Canadian Environmental Assessment Act, 2012 as if it had been referred to a review panel under section 38 of the Canadian Environmental Assessment Act, 2012 and the Agreement is considered to have been entered into by the Federal Minister of the Environment and the Board under section 40 of that Act… (Emphasis added)
Consequently and with respect, sections 29 – 31, which refer to the Board in its capacity as a responsible authority, have no application to the Northern Gateway application or litigation. Rather, Northern Gateway involves the relatively straightforward application of the panel review provisions of CEAA, 2012, provisions that are substantially unchanged from the original CEAA and that have been applied – and judicially reviewed – numerous times. The most important of these is section 43, which sets out a panel’s duties and which, for what it’s worth, does not include the “final and conclusive” language of those other provisions:
43 (1) A review panel must, in accordance with its terms of reference,
(a) conduct an environmental assessment of the designated project;
(b) ensure that the information that it uses when conducting the environmental assessment is made available to the public;
(c) hold hearings in a manner that offers any interested party an opportunity to participate in the environmental assessment;
(d) prepare a report with respect to the environmental assessment that sets out
(i) the review panel’s rationale, conclusions and recommendations, including any mitigation measures and follow-up program, and
(ii) a summary of any comments received from the public, including interested parties;
(e) submit the report with respect to the environmental assessment to the Minister; and
(f) on the Minister’s request, clarify any of the conclusions and recommendations set out in its report with respect to the environmental assessment
Once submitted, the standard decision-making provisions of CEAA, 2012 apply (sections 52 – 54). To reiterate, while I don’t agree with the Court’s wholly unprecedented analysis that under sections 29 – 31 environmental assessment plays “a much attenuated role” relative to other federal decision-making regimes (para 123), those sections simply don’t apply. Instead, the Court should have reviewed the Northern Gateway JRP report as it has reviewed numerous panel reports previously, including Pembina Institute for Appropriate Development v. Canada (Attorney General), 2008 FC 302 and Ontario Power Generation Inc v Greenpeace Canada, 2015 FCA 186.
Reviewing the Governor in Council’s (Cabinet’s) Decision
As noted by the Court (at para 129), several of the parties sought to apply its recent decision in Council of the Innu of Ekuanitshit v. Canada (Attorney General), 2014 FCA 189, which I blogged about here, as setting out the applicable legal framework for challenging Cabinet decision-making following a CEAA panel report (at para 40, citing para 76 of the trial judge’s reasons), as well as the applicable approach to the standard of review, which the Court summarized as follows:
 Therefore, in my view, the judge correctly found that deference was owed to the decisions made pursuant to [the relevant provisions under the old CEAA], but that a reviewing court must ensure that the exercise of power delegated by Parliament remains within the bounds established by the statutory scheme. (Emphasis added)
Because it focused on the wrong provisions of CEAA, 2012 (an error that first appears in para 46 of the decision), the Court in Northern Gateway distinguished Ekuanitshit and chose not to follow it (at paras 132 – 140). In addition to what it erroneously thought were two very different legislative regimes, however, the Court also appears to be of the view that Cabinet approval of a massive hydroelectric dam found likely to result in significant adverse environmental effects (as in Ekuanitshit) is fundamentally different than the approval of a bitumen pipeline:
 The standard of review of the decision of the Governor in Council in Ekuanitshit may make sense where this Court is reviewing a decision by the Governor in Council to approve a decision made by others based on an environmental assessment. The Governor in Council’s decision is based largely on the environmental assessment. A broader range of policy and other diffuse considerations do not bear significantly in the decision…
 In the case at bar, however, the Governor in Council’s decision—the Order in Council—is the product of its consideration of recommendations made to it in the report. The decision is not simply a consideration of an environmental assessment. And the recommendations made to the Governor in Council cover much more than matters disclosed by the environmental assessment—instead, a number of matters of a polycentric and diffuse kind.
 In conducting its assessment, the Governor in Council has to balance a broad variety of matters, most of which are more properly within the realm of the executive, such as economic, social, cultural, environmental and political matters. It will be recalled that under subsection 52(2), matters such as these must be included in the report that is reviewed by the Governor in Council.
With respect, most decisions to approve major resource projects and especially those found likely to result in significant adverse environmental effects will require a balancing of a “broad variety of matters,” including social, economic, cultural, environmental and political matters (as the Federal Court recognized in Pembina Institute, above, at para 74). Were it otherwise, it is hard to conceive of a basis upon which Shell’s proposed Jackpine oil sands mine expansion, which was also deemed likely to result in significant adverse environmental effects pursuant to CEAA, 2012, could ever have been granted approval (or “justified in the circumstances,” using CEAA, 2012 language). This reality does not lessen Cabinet’s obligation to comply with the statutory requirements set out in CEAA, 2012 (including its subsection 4(2) duty to exercise its powers “in a manner that protects the environment and human health and applies the precautionary principle”) or the courts’ supervisory jurisdiction. On the contrary, the polycentric nature of the exercise underscores the important role of both the Act and the courts in ensuring that environmental concerns are not ignored or marginalized in the face of traditionally predominant considerations (e.g. economic ones).
The foregoing is sufficient, in my view, to cast serious doubt on the cavalier manner in which the Court dismissed the substantive challenges to the Northern Gateway JRP report and Cabinet’s response thereto. The obvious next question is: does it matter? While I would be the first to admit that the Federal Court of Appeal has set a low bar for the substantive review of federal environmental assessments reports, I have to assume that there is some difference between the Court’s direct review of such reports and its review of Cabinet’s assessment of such reports. The Court here accorded Cabinet “the widest margin of appreciation” (at para 155).
Privative Clauses and the Federal Regulatory Review
As noted at the outset, although not applicable in this case, CEAA, 2012 sections 29 – 31 are applicable to the Board’s review of the TransMountain and Energy East pipelines. It seems appropriate, therefore, to spend a bit more time on the Court’s approach to these sections.
In administrative law, the “final and conclusive” wording that seemed to play such an important role in the Court’s analysis is known as a “privative clause,” and a relatively strong one at that. Privative clauses are the legislature’s way of telling the courts to tread lightly (i.e. show deference). As a general rule, Canadian courts acknowledge such clauses and take them into account in establishing the applicable standard of review. Bearing in mind rule of law principles and the separation of powers, however, they have never been interpreted as ousting a reviewing court’s jurisdiction. As the Supreme Court of Canada stated in the (still-current) authority on judicial review, Dunsmuir v. New Brunswick, 2008 SCC 9:
 The legislative branch of government cannot remove the judiciary’s power to review actions and decisions of administrative bodies for compliance with the constitutional capacities of the government. Even a privative clause, which provides a strong indication of legislative intent, cannot be determinative in this respect…
Arguably Northern Gateway is not an example of complete ouster, as a report’s adequacy is still reviewable indirectly through Cabinet’s response to it, but the Court’s analysis (three short paragraphs at 155 – 157) leaves me to wonder whether this is a distinction without a difference.
Finally, if the Court’s approach to sections 29 – 31 is correct (which again, for the various reasons discussed above I doubt), it means that the previous Conservative government’s 2012 omnibus budget bills were even worse than anyone thought. As noted above, leaving Cabinet to determine whether the Board’s environmental assessments are sufficient runs counter to the basic logic behind the legislation and is bound to further undermine public confidence in those assessments. It also means that these provisions should be front and center during the federal government’s upcoming review of environmental and regulatory processes.
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By: Lisa Silver
PDF Version: On the DLW Decision and the Meaning of Modernity
Case Commented On: R v DLW, 2016 SCC 22 (CanLII)
Despite our common law system, statute law remains a key source of law in Canada. Its importance cannot be underestimated as lawmakers rely on legislation to implement policy on various social and economic issues. In many ways, legislation is reflective of who we are as a society and serves to reinforce our collective values. No other piece of legislation in Canada exemplifies this more than our Criminal Code, RSC 1985, c C-46. Contained in this piece of legislation is conduct we deem as a society to be so abhorrent, so contrary to who we are, that we will punish those who commit these prohibited acts, often through a loss of liberty. Although the concept of codification relieves us from speculating on the substance of criminal behaviour, it carries with it the mystique of interpreting or discerning Parliamentary intent in creating those crimes. As a result, statutory interpretation is often the main issue in criminal cases as judges wrestle with words, meanings, and intentions. This process is vital in criminal law, where a turn of phrase can mean the difference between guilt or innocence. The difficulty lies in dealing with crimes that carry centuries of established meaning, such as murder, assault, and theft. Yet, the crimes so interpreted must remain relevant. In this blog post, I will explore certain aspects of the DLW judgment, 2016 SCC 22, the most recent Supreme Court of Canada decision employing statutory interpretation principles, on the crime of bestiality (section 160 of the Criminal Code). Here, the Court enters into an age old process of interpretation yet does so, seemingly, in the name of modernity. This case highlights the inherent problems in discerning or interpreting value-laden legislation as it then was and then, ultimately, as it needs to be.
Before we delve into DLW, we must set our general legislative expectations. As mentioned earlier, legislation is based upon sound public policy. Seen in this light, legislation should provide a narrative displaying the objectives and goals the rules contained within their sections. It should provide clarity of purpose with which we can identify. Legislation should be accessible to all, not just in a physical sense, but also intellectually. Moreover, legislation, as a delivery platform, should be flexible and responsive to the societal values it is meant to emulate. However, these expectations seem to dissolve as soon as the ink dries on the paper. In the context of a written document, legislation seems to lose its dynamic quality. Indeed, as suggested by Lord Esher in Sharpe v Wakefield (1888), 22 Q.B.D. 239, at p. 242, “The words of a statute must be construed as they would have been the day after the statute was passed,” meaning that the words have a frozen quality as they encapsulate a moment in time. The key is in knowing what that moment reveals, which is crucial for the proper implementation and application of the legislation.
Although, the courts have entered into the legislative fray since time immemorial, or at least since 1235 when the first Act of the English Parliament was passed (see for example, Statute of Merton, Attorneys in County Court Act, 1235), it is still far from clear how the courts perform this interpretive function. To be sure rules have been fashioned such as the “Plain Meaning Rule,” also known as the “Literal Rule,” or the “Mischief Rule” or even the “Golden Rule.” Just to clarify, that is the other Golden Rule, not the biblical one. In any event, sprinkled liberally between these over-arching rules are specific rules and maxims, usually proposed in Latin, making the whole exercise very structured, formalistic, and confusing. Thankfully, this conundrum was noted by Elmer Driedger, long-time Solicitor for the Attorney-General of Canada and author of the seminal work in the area. In the Construction of Statutes 2nd ed., Toronto, Butterworths, 1983, at 87, Driedger summed up all of the disparate rules into one sentence:
“Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”
Within the year, in Stubart Investments Ltd v The Queen decision,  1 SCR 536, the Supreme Court of Canada endorsed this “modern rule.” By 1985, the principle was deemed “oft-quoted” in Vachon v Canada Employment and Immigration Commission,  2 SCR 417 (at para 48). Despite the Court’s quick embracement of the “modern rule” or “modern principles,” decades later, it is still unclear what this rule encompasses and how “modern” it truly is. This topic is thoroughly canvassed in the fascinating article on the development and use of the “modern principle” authored by Stéphane Beaulac and Pierre-André Côté, entitled “Driedger’s “Modern Principle” at the Supreme Court of Canada: Interpretation, Justification, Legitimization” ((2006) 40 R.J.T. 131. In the paper, Beaulac and Côté persuasively argue that the principle is far from modern, even at the time of its reception by the Court. They posit the principle, as articulated by Driedger in 1983, was simply a rough summary of the main statutory principles in use at the time. Certainly by 2006, the principle was far from “modern” having been in use for years. As an aside, some of these principles can be traced to the thirteen rules of Talmudic textual interpretation, particularly rule twelve, which suggests a contextual interpretation. In any event, the Supreme Court of Canada still confers the moniker, “modern,” to the approach (see R v Borowiec, 2016 SCC 11 at para 18). Its modernity, therefore, appears to be in question.
However, in the spirit of Driedger let us first do a little interpretation on the term “modern.” In the DLW case, “modern” appears to mean “new” as opposed to “old.” Looking at the “grammatical and ordinary sense” of the word “modern,” the Oxford Dictionary, the go-to text for the Supreme Court of Canada (CanLII search found 147 SCC cases referencing the Oxford Dictionary as opposed to a paltry 11 cases for Merriam-Webster), the definition is “relating to the present or recent times as opposed to the remote past” or “characterized by or using the most up-to-date techniques, ideas, or equipment.” Indeed, in Justice Abella’s dissent in DLW, she frames the issue as the new against the old with her newer more “modern” interpretation of the crime as opposed to the majority, written by Justice Cromwell, an old hand at statutory interpretation cases, as the purveyor of the old fashioned, decidedly out of sync with today’s realities.
Abella J accomplishes this new/old dichotomy through her deft use of metaphor directed at the majority decision. The opening paragraph of her dissent utilizes agricultural metaphors of abundance (at para 125) describing the “fertile field” of statutory interpretation with the “routine harvest” of “words and intentions” as “planted” by the lawmakers. This metaphor brings to mind not only quantity but also the longevity of the interpretative technique as she then extends her position that the crime of bestiality must receive a modern interpretation despite the fact it is a “centuries old” crime (at para 126) whose “roots” are “old, deep, and gnarled” (at para 125). Thus an interpretation of the crime, based on tradition as per the majority under Cromwell J, is not a living tree but an ancient inaccessible relic of the past. Cleverly, Abella J’s opening of the issue is an effective foil to Justice Cromwell’s majority where he characterizes bestiality as a “very old” crime in his opening paragraph (at para 1) but one which cannot be made “new” without clear Parliamentary intention and certainly not through judicial intervention. In paragraph 13, Justice Cromwell hands Justice Abella her thematic metaphor by setting out the “root” of the issue as an interplay between common law and statutory intention. A similar technique was used by Justice Karakatsanis, with Justice Abella concurring, in the dissent in the Fearon case,  3 SCR 621, 2014 SCC 77 (CanLII), wherein Justice Cromwell too authored the majority decision. There, through the deliberate choice of word use, the dissent of Karakatsanis J breathes modernity in stark contrast to Cromwell J’s reliance on traditional legalistic nomenclature (for further discussion on this see, as published on my website, my previous blog entitled A Fresh Look At Fearon: How Language Informs The Law).
In fact, Justice Abella is right: the issue in DLW is very much bound up with the old and the new as the court is faced with the task of defining the meaning of “bestiality” as it relates to a disturbing child sexual abuse case where a family pet was used to molest a child. The “old” or “traditional” view of bestiality, undefined in the Criminal Code but as gleaned through common law, has the requirement for penetration. This definition fails to not only capture the conduct in DLW but also fails, according to Justice Abella’s dissent, on a cultural, social, and public policy level as well. The irony, in the context of interpreting our codified criminal law, is the reliance on the common law conception of the crime. Since its inception in 1892, the Criminal Code has been the only source, with one limited exception, for identifying which conduct should be considered criminal. If conduct is not proscribed in our Code as a crime, then it is not one. In other words, the common law, or those unwritten rules which have developed over time, cannot create a crime. The only exception being the common law offence of contempt of court pursuant to s. 9 of the Criminal Code. Otherwise, only our Parliament under s. 91(27) of the Constitution Act, 1867 has the authority to create criminal law. Nevertheless, the common law is not ignored in the interpretative process. For the majority, the common law remains unchanged by codification and therefore can be equated with Parliamentary intention. To go any further, in the view of the majority, the courts would be creating a “new” crime, which is not within the judicial function. Conversely, for Justice Abella, the common law conception of bestiality reinforces the present need to move beyond it.
In this sense “modern” can also denote more than a chronological time. It can also, according to the Oxford Dictionary, refer to a “current or recent style or trend in art, architecture, or other cultural activity marked by a significant departure from traditional styles and values.” In this definition, looking at legislation as a “cultural activity” in the broadest sense, Justice Abella’s reading of the term proposes a departure from the traditional “modern principles” through the lens of current societal interests as reflected in the present policy decisions behind the creation of crimes. However, in the realm of traditional statutory interpretation, although Parliamentary intention -through the scheme and objectives of the legislation- lends context to the statutory interpretation process, such context does not necessarily include a deep dive into the policy behind the legislation. Certainly, Driedger’s principles do not directly make reference to it. This lack of clarity, according to Beaulac and Côté in their article, has resulted in uneven judicial treatment of policy in statutory interpretation. For instance, in Canadian Broadcasting Corp v SODRAC 2003 Inc,  3 SCR 615, at paragraph 55 the majority decision written by Justice Rothstein (Cromwell J, among others, concurring) effectively cautions against the dissent’s use of policy considerations in textual interpretation. In that case, Justice Abella, yet again, writes the main dissenting position. The DLW decision, therefore, is just another example of this interpretive tension. However, considering traditional statutory interpretation in discerning Parliamentary intention was reluctant to go beyond the four corners of the document, the now ubiquitous use of Hansard to elucidate on such intention shows how far the court has and can move from tradition towards modernity. This will definitely be a continuing dialogue within the court to watch for in future cases.
So what of the modernity of the principle in use in the DLW case? It has already been established that this principle has been in use for years and, according to Beaulac and Cote, may even be a mere reiteration of what had been in use prior to 1983. However, as Beaulac and Cote also recognize, Driedger’s principle is both a “method of interpretation” and a “framework for justification.” It is that dual nature, which provides an inherent flexibility to the principle, permitting it to discern or interpret even the most profound words found in our rules of law. Its application, as seen through the discourse in the DLW case, cannot be confined by the four corners of a piece of legislation but must permit a deeper analysis involving societal values and purpose to remain meaningful. In short, it requires, a touch of modernity.
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By: Stephen Armstrong
Provision Commented On: Section 2(b), Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11
Does section 2(b) of the Canadian Charter of Rights and Freedoms protect the freedom of scientific research? Is conducting an experiment an expressive act? These are important questions as Canadians face a world increasingly dominated by rapid scientific advancement. Recently, the US Senate and the US National Academy of Sciences have each called for greater research into geoengineering (Committee on Geoengineering Climate, National Research Council, Climate Intervention: Carbon Dioxide Removal and Reliable Sequestration (Washington: 2015, The National Academies Press) at 107). Such measures are the harbingers of an age in which humans are acquiring the capability to control the Earth’s climate the way a sculptor shapes his clay. Against this backdrop, the need for governance of geoengineering research at both the international and national levels is clear. However, any state measures to restrict or regulate research in Canada must conform to the supreme law of the land. In this post, I will explore arguments for and against the protection of scientific research under the free expression guarantee contained in the Charter. While strong criticism against inclusion of research as expression exists, I ultimately conclude that the Charter likely protects freedom of scientific research within the freedom of expression guarantee.
As a preliminary issue in any Charter analysis it is always necessary to determine whether the impugned action is subject to Charter scrutiny. Legislation is of course subject to the Charter. However, as scientific research stands at the apex of this discussion, decisions made by universities and other arms-length research or fund-granting bodies are also relevant. The question of whether the Charter applies to universities is itself the subject of significant jurisprudence and commentary (See Pridgen v University of Calgary, 2012 ABCA 139, but also see BC Civil Liberties Association v University of Victoria, 2016 BCCA 162, and for ABlawg commentary see here, here, here, and here). The inquiry into applicability of the Charter is an inherently fact driven one. As I aim to discuss freedom of expression and research in a more abstract sense, I have only raised the issue of Charter applicability to flag it for the reader and will now move on.
The Scope of 2(b)
Does scientific research fall within the scope of section 2(b) of the Charter? Section 2(b) reads: “Everyone has the following fundamental freedoms…freedom of thought, belief, opinion and expression…” When interpreting the content of a Charter right it is important to keep in mind that such rights are to be accorded a generous, purposive, and liberal interpretation (Hunter v Southam Inc,  2 SCR 145 at paras 17-20). The leading case on freedom of expression is Irwin Toy v Quebec (Attorney General),  1 SCR 927. In a joint decision, then Chief Justice Brian Dickson, with Justices Antonio Lamer and Bertha Wilson, set the scope of the free expression guarantee to encompass all non-violent activity which is intended to convey a meaning (Irwin Toy at paras 42-43). The Court also highlighted the core principles underlying the free expression guarantee, which were described as truth seeking, encouraging participation in social and political decision making, as well as self-fulfillment and human flourishing (Irwin Toy at para 54).
Note that the Irwin Toy definition of expression merely requires the intention to convey meaning, which is different from a requirement that someone else actually receives and understands the meaning. This point has been reaffirmed in subsequent cases, and the law is clear that a claimant alleging an infringement of their right to freedom of expression need not show the act of expression actually conveyed a message to anyone. The intention to convey meaning is the key (Canadian Broadcasting Corp v Canada (Attorney General) 2011 SCC 2 at para 34 and R v Sharpe 2001 SCC 2 at para 108). Another point of interest is that expression includes more than the spoken or written word. Expression includes the arts, physical acts or gestures, and may even include such mundane acts as parking a car (Irwin Toy at paras 42-43). In conclusion, expression includes all non-violent activities intended to convey a meaning.
Application of the Law: Is Research Expressive?
Applying the law to the issue of scientific research, the question becomes whether research or experimentation is expressive. In the US and Canada this issue has been the subject of a lively academic debate among legal scholars. Before diving into that debate, it is necessary to provide a rough definition of “scientific research”. One overly wordy definition emphasizes that scientific research is “the systematic collection or generation of empirical data…and the utilization of unbiased and rigorous modes of testing, analysis, and evaluation to draw inferences and conclusions about those data” (Barry P. McDonald, “Government Regulation or Other ‘Abridgements’ of Scientific Research: The Proper Scope of Judicial Review Under the First Amendment” (2005) 54 Emory LJ 979 at 989). A more concise definition conceives of science as “knowledge that is testable and refutable” (Report of the Special Rapporteur in the Field of Cultural Rights, Farida Shaheed: The Right to Enjoy the Benefits of Scientific Progress and its Applications, UNHRC, 20th Sess, Agenda Item 3, UN Doc A/HRC/20/26 (2012) 3 at 7). These definitions indicate that science is to be equated with knowledge and scientific research is a means of producing that knowledge.
Is research, the act of producing knowledge, performed with the intention to convey a meaning? Some scholars see the activity of conducting research as intrinsically expressive, equating it to speech, dance, or art, and argue that it is a form of expression deeply intertwined with its meaning to the point where form and content are inseparable (Barbara Billingsley & Timothy Caulfield, “The Regulation of Science and the Charter of Rights: Would a Ban on Non-Reproductive Human Cloning Unjustifiably Violate Freedom of Expression?” (2004) 29 Queen’s LJ 647 at 663-665). A researcher only conducts an experiment for the purpose of obtaining information. It is not a deed devoid of meaning. The act of experimentation produces a recordable result. This result is the meaning intended to be conveyed to the researcher by her act of experimentation. Thus, the argument goes, research is an expressive activity covered under the test laid out in Irwin Toy. In short, this line of reasoning argues that research is inherently expressive and thus falls within section 2(b) of the Charter.
This view has been criticized as ignoring “the fact that inquiry is not itself communication” because “[i]nquiry is aimed at seeking information, not conveying meaning” (Jocelyn Downie, Jennifer Llewellyn & Francoise Baylis”, A Constitutional Defence of the Federal Ban on Human Cloning for Research Purposes” (2005) 31 Queen’s LJ 353 at 361). What this critique boils down to is that, since it is the researcher alone who conducts the experiment and receives the results, the act of experimentation is not expressive. No meaning is conveyed.
With respect, I would argue that this criticism is born of a narrow view of expression that cuts against the grain of the Supreme Court’s jurisprudence on the matter. In Canadian Broadcasting Corp (at para 34), Justice Marie Deschamps, speaking for a united Court, reaffirmed that a section 2(b) claimant does not need to show that the activity actually conveyed a message with a meaning. What must be shown is that the act was performed to convey a meaning. In Sharpe (at paras 107-115), Chief Justice Beverley McLachlin stated plainly that self-created works intended solely for private use by their creator fall within the ambit of section 2(b). It was the constitutional guarantee of free self-expression that moved the Chief Justice to read in a private-use exception to the Criminal Code prohibition on child pornography in Sharpe, which was recently upheld in R v Barabash, 2015 SCC 29. To conclude, the criticism that the act of conducting research is not expressive because a message is not communicated to others appears to be unsupported by authority.
A secondary argument in favour of interpreting research as expressive activity is that, by the very act of choosing and performing a particular research method or research area, a scientist is implicitly signalling to society that she thinks this area is important, needs attention, or is the best way to solve a problem (Billingsley & Caulfield, “Regulation of Science” at 665-667). In the context of geoengineering, merely choosing to conduct atmospheric aerosol injection testing or ocean iron fertilization testing may send the message to decision makers and to the public that the climate change situation is dire.
An obvious criticism of this argument is that a scientist does not choose an area or method of research for the primary purpose of sending a symbolic message to society. Rather, as stated above, such research is performed primarily to produce knowledge. If such implied meanings fell within the scope of section 2(b), there would be no end to the slippage as seemingly all activity would slide down the slope into the scope of freedom of expression. This is a valid criticism, as allowing secondary symbolic meanings to colour the intention of a person’s actions would create an unworkable standard for defining an expressive act. It may be acceptable to acknowledge that a person may perform an act with more than one purpose in mind, however this line of reasoning takes this principle one step too far. Almost anything a person does could arguably have a symbolic meaning. The scope of the free expression guarantee would be expanded to the point where section 2(b) would become meaningless and the only questions to be decided would be whether the impugned government action was justifiable. To conclude, the very act of performing a particular form of research may be symbolically expressive. However, this line of reasoning is open to the valid criticism that it would have a far too expansive effect on the scope of section 2(b).
Two additional lines of argument for including scientific research in the free expression guarantee originate from American scholars. One view is that experimentation is a critical part of the scientific method, which is highly connected to the “market place of ideas” in a historic, structural, and purposive manner (Roy G Speece, Jr & Jennifer Weinzierl, “First Amendment Protection of Experimentation: A Critical Review and Tentative Synthesis/Reconstruction of the Literature” (1998) 8 S Cal Interdisc LJ 185 at 213). The second view, which is similar to the first, posits that experimentation is uniquely facilitative of highly valued thought, and should therefore be protected (Speece & Weinzierl at 218). At their core, both arguments view experimentation as a pre-condition for scientific speech (i.e. communicating the results of scientific research), rather than viewing research itself an expressive act.
The notion that research is an essential pre-condition for the communication of highly valuable expression is intuitively powerful. Chief Justice McLachlin has remarked in obiter that “publishing scientific research is valuable, and prohibitions on it have an impact on the right to free expression in a serious manner” (Canada (Attorney General) v JTI-Macdonald Corp, 2007 SCC 30 at para 52). It is plain and obvious that section 2(b) protects a person’s right to publish scientific information. Keeping in mind that Charter rights are to be accorded a generous, liberal, and purposive interpretation, the purpose of protecting the right to publish scientific information would be undermined if the means (or pre-conditions) by which such information is obtained was not also protected. Therefore, the argument goes, research ought to be a protected form of expression, alongside publishing the results of research. The Chief Justice adopted a similar line of reasoning when she held that even the mere possession of expressive material engages freedom of expression because “the possession of such material allows us to understand the thought of others or consolidate our own thought” (Sharpe at para 25). In its essence this is a pre-condition argument. A right to freedom of expression would be meaningless without also protecting access to the means of expression.
One criticism of the pre-condition argument is that, if the scope of freedom of expression is so broad as to include every necessary pre-condition required for individuals to express themselves, virtually every conceivable action will be covered by the free expression guarantee (Downie, Llewellyn & Baylis, “Human Cloning for Research Purposes” at 361). Perhaps eating food and drinking water will be necessary pre-conditions to expression, as one cannot express oneself if one dies of starvation or dehydration. This is a slippery slope argument which should not be accepted. Research has a historically and logically close facilitative connection to scientific discovery and scientific communication (Speece & Weinzierl, “Protection of Experimentation” at 217). This sets research apart as a uniquely necessary pre-condition and can surely serve as a basis for differentiating everyday human needs from essential pre-conditions required to vindicate the rights and freedoms enshrined in the Charter. The point is likely moot however, as I have argued above that research itself should be considered an expressive act covered under 2(b).
There is also a line of cases in Canada holding that freedom of expression protects listeners as well as speakers (Edmonton Journal v Alberta (Attorney General), 1989 SCC 133 at para 85-86 and Canadian Broadcasting Corp at paras 29-31). Typically, these cases involve the state restricting the ability of the media to access certain public goings-on, such as court proceedings. The reasoning for upholding the media’s right to access is that it protects the public’s right to receive information about pressing matters of the day, particularly concerning public institutions (Edmonton Journal at para 85). Scientific research casts a wide net and doubtless includes information about matters of pressing importance to the public. Stretching this line of reasoning to a novel situation, the journalist who gathers information at a courthouse about a trial and then relays that information to the public may be analogous to the scientist who collects data from an experiment and then communicates the results in a publication. Thus, including research within the scope of the free expression guarantee would protect the public’s right to receive valuable scientific information of pressing importance.
One may also imagine the researcher herself as the “listener”, taking in the information from the experiment, which takes the place of “speaker”. This analogy gains more plausibility depending on the type of research undertaken. If the experiment involves only the researcher interacting with the natural world and interpreting the results, this is more likely distinguishable from the type of listeners imagined in the Edmonton Journal line of cases. However, if the research is of a social nature, perhaps involving interviews with human subjects, there is clearly a person-to-person communication occurring there. In such a case, the argument for distinguishing scientific research from Edmonton Journal loses strength. In conclusion on this point, I acknowledge that this would be a novel application of the “right to listen” line of reasoning and would thus likely stretch the case law beyond where a judge may be willing to take it.
International covenants and human rights obligations to which Canada is a signatory may act as interpretive aids in scoping out the content of a Charter right or freedom (See Baker v Canada (Minister of Citizenship and Immigration),  2 SCR 817 at paras 69-70 and Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4 at paras 64-65, 68-71). Article 27 of the Universal Declaration of Human Rights, GA Res 217 (III)A(1948), states that “everyone has the right to…share in scientific advancement and its benefits”. Article 19 also ensures the right to freedom of expression, including the freedom to “…seek, receive and impart information…”. The same language protecting the seeking of information as expression is included in Article 17 of the International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171 art 17 (entered into force 23 March 1976, accession by Canada 19 May 1976). Article 15 of the International Covenant on Economic, Social, and Cultural Rights, 16 December 1966, 999 UNTS 3 art 15 (entered into force 3 January 1976, accession by Canada 19 May 1976) recognizes the right of everyone to enjoy the benefits of scientific progress and its applications, while also protecting “the freedom indispensable for scientific research and creative activity.” These agreements are not binding in domestic Canadian law, however they do colour the courts’ interpretation of the Charter. These international covenants and declarations point inevitably towards the protection of research and experimentation under the freedom of expression.
Section 2(b) includes in its scope any non-violent activity that is intended to convey a meaning. Research, as a means of seeking out knowledge, may be understood as an inherently expressive activity. Multiple international covenants and declarations prize scientific advancement and research as a right not to be interfered with by the state. Further, a scientist’s choice of experiment may purposefully act as a symbolic message to society. However, this argument may expand the scope of section 2(b) beyond what is practical or desirable. Additionally, research may be seen as a historically connected and logically linked pre-condition to the creation of scientific speech, which is to be cherished and guarded jealously from state interference. Finally, freedom of expression includes a “right to listen” or to receive information, which may include a freedom to generate information (i.e. research results) to be received, though this would be a novel use of the doctrine. Overall, there is ample ground on which to conclude that the scope of section 2(b) likely includes scientific research.
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By: Alice Woolley
PDF Version: Access to Justice in Criminal Law
Case Commented On: R. v Moodie, 2016 ONSC 3469 (CanLII)
The Charter of Rights and Freedoms guarantees everyone the right to retain and instruct counsel on arrest or detention. What do we mean by that? Specifically, do we mean it? Do we mean it for people other than the relatively affluent few?
Canadian governments claim that we do. The vision of Legal Aid Alberta states that it aims for “An Alberta where everyone can access justice and achieve fair and lasting resolutions to their legal issues.” Legal Aid Ontario’s website says that it “provides legal assistance for low-income people”.
Justice Ian Nordheimer isn’t buying it. In a stinging judgment issued on May 26 in R. v. Moodie 2016 ONSC 3469, he stayed charges against Tyrell Moodie pending the provision of state-funded counsel. The charges faced by Mr. Moodie were serious and raised complex legal issues. Justice Nordheimer described the Ontario legal aid guidelines as having no “reasonable relationship to what constitutes poverty in this country” (para 6). He rejected as unrealistic the Crown’s suggested alternatives for Mr. Moodie to raise the funds – a part-time employee at a Boys and Girls club who lives with his mom and is facing a serious drug charge, is not a viable candidate for a bank loan, can legitimately have problems getting another job, and cannot pay for his legal bills with a credit card. Justice Nordheimer acknowledged the legitimate role of the legislature in setting legal aid levels, and even that it could be appropriate in some circumstances for a person to face a criminal trial unrepresented. But a 5-7 day trial, raising complex Charter, evidentiary and severance issues, and with a potential consequence of imprisonment, is not one in which an accused should be unrepresented.
Justice Nordheimer’s decision solves Tyrell Moodie’s lack of counsel problem – subject to appeal. But it reveals a reality that we do not talk about as much as we should, which is that Canadians can face criminal sanctions – even imprisonment – without having the benefit of counsel. And they do so because they are poor. Just not quite poor enough.
Legal aid financial eligibility guidelines ensure that some criminal accused will be unrepresented. Ontario’s guidelines are especially miserly (truly – Scrooge himself would be impressed at the $12K cut-off for a single person) but even in provinces with considerably higher cut-offs – in Alberta $19,653 for a single person – the reality is that many people without the actual financial means to retain counsel will not be eligible for legal aid.
And courts are not necessarily willing to appoint counsel, even for impecunious accused. For example, in R. v. Martin, 2015 NSCA 82 (Can LII), the Nova Scotia Court of Appeal described how Mr. Martin represented himself in defence of 25-26 charges of tax evasion and successfully had the charges dismissed on Charter grounds. That result was reversed on summary conviction appeal, again with Mr. Martin representing himself. Mr. Martin was denied legal aid for the appeal, but the Crown acknowledged he did not have the financial resources to retain a lawyer. Nonetheless, the Court of Appeal did not appoint counsel for him, because the case was not complex, the Court could make a determination and the Crown had a duty to “assist the Court in ensuring that the appellant receives a fair trial” (para 28).
This reality – that poor Canadians go to court without lawyers even when facing criminal charges – means that we need to ask ourselves hard questions about what kind of legal system we really have. A simple understanding of the rule of law requires that people not be subject to legal consequences except where legally justified. And any more complex understanding of the rule of law views a system of fair adjudication – its procedures and systems of argument – as essential for achieving the rule of law, and views lawyers as a necessary part of that system. It is hard to see a criminal accused without a lawyer as having truly had access to the rule of law.
I understand the political realities of legal aid. Creating an effective ad campaign featuring accused tax evaders and drug dealers would defy even Don Draper at his finest. There are many demands on our public finances. I even have my doubts as to whether Justice Nordheimer’s reasons will stand up on appeal – I’m not sure the appellate courts will want to force the expenditure of public funds on not-quite-desperately-indigent criminal accused. But inadequate legal aid funding undermines the rule of law.
And even if we increase legal aid funding – or if we can’t – the time has come to think about other changes.
What about, for example, eliminating the now de facto requirement for a pre-law undergraduate degree? It adds three or four years of costs to law training – both opportunity costs and direct costs. There may be some benefit from it in terms of writing and analytical ability and in general learning-readiness. But is the benefit worth the cost?
What about moving law school – or at least some law schools – out of the universities altogether? Universities maintain – with good reason – that they have an academic mission that precludes their law schools focusing only on producing practicing lawyers. And – not surprisingly! – I agree with the proposition that law faculties contribute to society in ways that go beyond our teaching mandate. But if we need people to obtain inexpensive legal education that allows them to provide inexpensive legal services to low-income people, then we need to create low cost but effective legal education. Over the last twenty years universities may have been effective, but they’ve been anything but low cost, especially in Ontario.
Another option might be to end lawyers’ exclusive right to practice law. If the state will not provide lawyers, and people of modest means cannot afford them, and if ensuring the rule of law requires legal assistance in trials where someone’s liberty is at stake, then non-lawyer legal service providers should be an available alternative
I don’t see any of these ideas as a silver bullet. As I noted, meaningful increases in legal aid are politically difficult if not impossible. Other changes to the procedures and practices of the administration of justice may be required. There are risks as well as benefits in changing legal education or eliminating lawyers’ exclusive right to deliver legal services (although Trevor Farrow and I have some ideas on how to expand the role of non-lawyer legal service providers).
But at the end of the day, I don’t think we have the rule of law that we claim to have. Not having lawyers in court with accused like Mr. Moodie and Mr. Martin undermines my confidence that they get the legal outcomes their cases warrant, or that they enjoy the procedural protections the law must provide. It sickens me to think that that is the case just because they are poor. And right now I’m open to any idea that may bring us closer to the rule of law our system aspires to but fails to achieve more often than it should.
This post originally appeared on Slaw.
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By: Jennifer Koshan
Case commented on: Condominium Corporation No 072 9313 (Trails of Mill Creek) v Schultz, 2016 ABQB 338 (CanLII)
I have commented a couple of times previously on the application of human rights legislation to condominiums (see here and here). In Condominium Corporation No 052 0580 v Alberta (Human Rights Commission), 2016 ABQB 183 (CanLII), Justice Robert Graesser of the Alberta Court Queen’s Bench held that the Alberta Human Rights Act, RSA 2000, c A-25.5 (AHRA), does apply to the relationship between condominium owners and their condominium corporations. There is, however, a caveat. Section 4 of the AHRA protects against discrimination in the context of goods, services and facilities customarily available to the public, but does not list “age” as a protected ground. This means that age discrimination complaints cannot be brought against condominium boards (nor against other service providers or landlords; see section 5 of the AHRA, which excludes age as a protected ground in tenancy relationships). In the condominium context, an alternative remedy exists – section 67 of the Condominium Property Act, RSA 2000, c C-22 (CPA), allows courts to remedy “improper conduct” on the part of condominium corporations, including that which is “oppressive or unfairly prejudicial to or that unfairly disregards the interests of an interested party or a purchaser or a prospective purchaser of a unit” (CPA section 67(1)(a)(v)). The application of this section was at issue in the recent case of Condominium Corporation No 072 9313 (Trails of Mill Creek) v Schultz, 2016 ABQB 338 (CanLII).
Stacey Schultz purchased a condominium unit in the Trails of Mill Creek in 2012, when she was estranged from her husband. Her offer to purchase the unit was conditional on her minor son Brett being permitted to reside with her in this “adults only” building. She was told by a representative of the Developer that “this would not be a problem” (at para 3). In March 2014, the Condominium Board decided that Brett could not live with his mother in the unit, even temporarily, and gave notice that he had to leave by July 6, 2014. The Condominium Bylaws relied upon by the Board provide as follows in section 63:
(b) A Unit shall not be occupied by a person or persons who have not attained or will not have attained his or her eighteenth (18th) birthday within twelve (12) months of occupancy of the said Unit (hereinafter referred to as “18th birthday”) or by any child/children of the owner who are under the age of eighteen (18).
(c) Notwithstanding the above paragraph 63(b), a Unit may be occupied by a person who has not attained his or her 18th if the Board authorizes a person to occupy a Unit for specified periods of time for compassionate reasons. The permission granted by the Board may be revoked by a special Resolution at the duly convened meeting of the Corporation. (emphasis added)
Following the Board’s decision, Ms. Schultz tried to sell her unit, and was unsuccessful in spite of using two realtors, lowering her listing price, and accepting two separate offers that fell through. At a meeting in November 2014, under the authority of section 43 of the Bylaws, the Board imposed a fine commencing January 1, 2015 of $250.00 “for every 2 weeks the Bylaw breach continues and the underage occupant remains in the unit.” (at para 5) As noted by Master W.S. Schlosser, “Ms. Schultz was caught between the decision of the board and her legal and moral obligation to her son. There was little more that she could do.” (at para 6) In May 2015, the Board commenced an originating application to the Court of Queen’s Bench to evict Brett and obtain its fines and enforcement costs under section 43 of the Bylaws. Ms. Schultz brought a cross-application under section 67 of the CPA for relief from the Board’s improper conduct.
By the time of Master Schlosser’s hearing of the matter, eviction had become moot, as the condominium unit had been sold. He identified four issues for consideration (at para 12):
1. The ability of the Developer to bind the Condominium Corporation.
2. The nature and the sufficiency of the evidence in support of the originating application;
3. The sufficiency of the Board’s reasons in levying these fines;
4. The role of the Court in reviewing the decision of the properly elected condominium board.
On the first issue, Master Schlosser he cited Condominium Plan No. 931 0520 v Smith, 1999 ABQB 119 (CanLII) for the point that “private arrangements between a Developer and an individual cannot bind the subsequent owners of a Condominium Corporation.” (at para 13) In any event, the Condominium Board’s consent to allow Brett to live in the unit was withdrawn, making the central issue “the propriety of the decision to fine Ms. Schultz for breach of the by-law and the Board’s ability to recover their enforcement costs.” (at para 14)
On the second and third issues, Master Schlosser noted that originating applications are intended to be used when there are no facts in dispute, and the evidence tendered on such applications must be first-hand, direct, and personal rather than based on hearsay (at para 15, citing Alberta Rules of Court, Alta Reg 124/2010, Rules 3.2(2) and 13.18(3)). The Condominium Board’s application was supported by the affidavit of John Krysler, the property manager of the Trails of Mill Creek. Master Schlosser noted that his evidence was that of a bystander rather than coming from first-hand knowledge, and that it did not provide any explanation for the Board’s decision to levy the fines against Ms. Schultz. Although Krysler’s affidavit referenced “observations and complaints made about the underage occupant”, there was no evidence providing details about any incidents of concern regarding Brett (para 18). On the other hand, Ms. Schultz’s affidavit deposed that her son was not causing any nuisance, and her evidence was uncontradicted as to the efforts she had made to sell her unit. Master Schlosser found that it was “not self-evident how a fine could correct Ms. Schultz’s behavior, if that was what was intended.” (at para 18)
Turning to the fourth issue and section 67 of the CPA, Justice Schlosser noted several general principles that apply in the context of this “oppression remedy” (at para 23, citing Leeson v Condo Plan No. 9925923, 2014 ABQB 20 (CanLII) and T. Rotenberg, Condominium Law and Administration, Carswell, vol 2, (Looseleaf), ch 23):
(a) It is a broad remedy, broadly applied; attempts to narrow its impact and effectiveness should therefore be resisted.
(b) The purpose of the oppression remedy is to protect the objectively reasonable expectation that caused the relationship to begin or continue.
(c) Either the cumulative results of the conduct complained of or a specific egregious act ultimately determines whether there is an actionable wrong.
(d) The court must balance the competing interests of the minority, who are to be treated fairly, with the rights of majority to govern. Only if the minority’s interest is unfairly treated will the courts intervene.
(e) The selection of a remedy must be sufficient to achieve the desired result. Remedies should not be narrowly limited, and may be granted against individuals in appropriate cases.
Using colourful language in his focus on (b), the reasonable expectations principle, Master Schlosser stated that “a unit owner could reasonably, or legitimately expect that she would not be fined when there would be no useful purpose served by it. Both the by-law about minor persons staying in the complex and the power to levy a fine are discretionary. … The by-laws are not to be treated as a version of legislated inhumanity.” (at para 25) He also noted that although decisions of condominium boards are typically granted considerable deference, “[a]rbitrary decision making cannot immunize the Board from scrutiny by this Court.” (at para 26).
Under the heading “What Were They Thinking”, Master Schlosser reiterated that the Board had provided no reasons for its decision to fine Ms. Schultz, nor any evidence of complaints or issues with respect to her son. The absence of reasons suggested that it was not “a wild assumption” that the Board’s decision was arbitrary; “there is no apparent reason how a fine could correct Ms. Schultz’s behavior or to cause her to do anything other than what she had diligently been doing.” (at para 30) Master Schlosser dismissed the Board’s application for fines and recovery costs and allowed Ms. Schultz’s cross application under section 67 to set aside the fines, with costs payable to her by the Board.
He concluded by setting out a template for how such applications should be decided in the future (at para 35):
1. Apply a reasonable or legitimate expectations analysis to determine the nature of the right or interest affected, and to identify whether there is threshold conduct for the application of section 67(1)(a)(ii)-(v);
2. Consider the nature and the sufficiency of the evidence in support of the application; especially with Rule 13.18(3) in mind;
3. Identify the type of the decision (i.e., whether it involves a question of law like the interpretation of the Condominium Property Act, or a by-law, or an exercise of discretion based on a set of facts). Condominium Boards may be especially in tune with the needs and interest of the unit owners but unless demonstrated, their election gives them no special ability to interpret questions of law. This leads to the fourth question which is to;
4. Consider what level of deference the Court should afford the decision. That is, what standard should be applied: reasonableness, or correctness;
5. If the decision involves an interest that is not trivial, and if the result is not self-evident, the Court should ask whether reasons are necessary and whether the rules of natural justice have been followed.
I began this post by noting that “age” is not a protected ground of discrimination under some sections of Alberta’s human rights legislation. Would inclusion of age in the legislation make much of a difference in the kind of case discussed here? It would allow someone in the position of Ms. Schultz to bring a human rights complaint in circumstances where an “adults only” policy was enforced against her and her child – and indeed it would preclude “adults only” policies in the first place (unless they could be justified as “reasonable and justifiable under section 11 of the AHRA). That being said, family status is a protected ground under section 4 of the AHRA, and could have formed the basis of a discrimination claim against the Board. Moreover, the earlier cases on which I blogged both involved adverse treatment by condominium boards against unit owners with disabilities, another protected ground under section 4 of the AHRA, showing that prohibitions against discrimination will not necessarily shield condominium unit owners from discriminatory behaviour by their boards. And although human rights procedures are intended to be relatively accessible – for example many parties are not represented by counsel in hearings before the Alberta Human Rights Tribunal – there is a backlog in processing complaints that may make a human rights route just as challenging as a court application under section 67 of the CPA. There is also the policy question of whether “adults only” condominiums (along with apartments and other goods, services and facilities) are something we wish to continue shielding from the application of human rights legislation. If the AHRA remains unchanged on this basis, at least section 67 of the CPA can provide some relief from the actions of oppressive condominium boards for persons in the position of Ms. Schultz. Master Schlosser has provided a useful template for future cases of this kind.
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By: Nigel Bankes
Case commented on: Rogers Communications Inc v Châteauguay (City), 2016 SCC 23 (CanLII)
In this decision the Supreme Court of Canada (unanimous in the result) concluded that the actions of the City of Châteauguay in creating a reserve as to certain real property were directed at frustrating Rogers’ efforts to install an antenna system on property located within the City and were therefore unconstitutional as a measure dealing with the siting of telecommunications infrastructure. The majority found that Châteauguay’s notice of reserve was ultra vires (but also went on to offer an analysis that would have rendered the reserve inapplicable on the basis of the doctrine of interjurisdictional immunity (IJI)). The minority (Justice Gascon) preferred to find for Rogers solely on the basis of IJI.
While this is no doubt an important decision for the telecommunications industry it will almost certainly prove to be more important for the more tightly networked elements of the energy sector and in particular oil and gas pipelines given the highly contentious nature of current proposals to construct new pipelines or expand existing pipelines. For earlier posts on this issue see here (Northern Gateway) and here (Kinder Morgan’s expansion project).
Rogers is a federally regulated telecoms provider. It holds a spectrum licence from the federal government which authorizes it to provide services in specified frequency ranges. The licence also obliges Rogers to provide adequate network coverage and to do that it must install and maintain radio stations and antenna systems. Under the federal scheme (Radiocommunication Act, RSC 1985, c R-2) Rogers must enter into an agreement with the relevant property owner for the use of a particular site and secure the federal Minister’s approval for the use of that site. In order to get that approval, a licensee such as Rogers must engage in a consultation process prescribed by Industry Canada which requires the licensee to consult both the public and the relevant land use authority (LUA), in this case Châteauguay. While the goal of the consultation with the LUA is to reach an understanding or agreement, the Minister retains the right to make a final decision in the event of an impasse. A licensee has no right of expropriation. The evidence showed (at para 66) that while telecoms technology did not require the use of any particular site for an antenna “a deviation of 100 or 200 metres from a clearly specified location can prevent the antenna system from effectively meeting the network’s identified needs.”
Rogers secured the right to use what it believed to be a suitable site (the 411 site) but Châteauguay objected on a number of grounds, including a contravention of a by-law and aesthetic and health and safety reasons, and suggested that Rogers consider another site, the 50 site. Further discussions ensued and proposals were exchanged over a two-year period culminating in Châteauguay establishing a reserve over the 410 property and justifying it by reference (at para 22) to concerns related to the interests and well-being of its residents and the development of its territory (at para 22). The reserve served to prohibit all construction for a two-year period and was subsequently renewed for a further two-year period. (at para 2)
Rogers contested the validity of the reserve on both constitutional and municipal/administrative law grounds.
The Majority Decision
The majority (per Wagner and Côté, McLachlin, Abella, Cromwell, Karakatsanis and Brown concurring) concluded (at para 46) that the pith and substance of the impugned measure (the notice of reserve and not the provincial legislation underpinning the reserve) was not the protection of the health and well-being of the residents or the development of the territory but rather the choice of location of radiocommunication infrastructure. The majority felt able to reach this conclusion on the basis of its assessment of the evidence which demonstrated the close connection between the municipality’s actions and Rogers’ proposals. In effect, the majority concluded (but without using the term, see Reference re Upper Churchill Water Rights Reversion Act,  1 SCR 297) that the notice of reserve and the reasons given in support of the notice were colourable. The majority expressly rejected the suggestion that the notice of reserve had a double aspect. There was no double aspect here, only a notice of reserve dealing with the location of telecommunications infrastructure (at para 51) and any “finding that the siting of radiocommunication infrastructure has a double aspect would imply that both the federal and provincial governments can legislate in this regard, which would contradict the precedent established by the Privy Council in In re Regulation and Control of Radio Communication in Canada  AC 304 to the effect that the federal jurisdiction over the siting of such infrastructure is exclusive.” (at para 52)
That was enough to dispose of the case since the notice of reserve was simply (at para 53) ultra vires. But, unusually, the majority still provided its analysis of the application of Rogers’ alternative argument based on interjurisdictional immunity (IJI). The premise of such an argument is of course that the provincial measure in question is valid (intra vires).
The majority acknowledged, following Canadian Western Bank v. Alberta, 2007 SCC 22 (CanLII),  2 SCR 3, that IJI should be applied with restraint and in situations already covered by precedent. The majority was of the view that Toronto Corporation v. Bell Telephone Co. of Canada,  AC 52 was authority for the application of IJI since that case suggests (at para 63) that “the siting of telecommunications infrastructure is at the core of the federal power” and (at para 65) that the Court of Appeal erred in this case “in interpreting Bell as meaning that municipalities have a certain degree of control over the determination of the exact location of telecommunications poles.” The majority continued as follows (at paras 66 and 69):
 Moreover, the evidence in the record favours a finding that the siting of radiocommunication antenna systems is at the core of the federal power over radiocommunication. It is the appropriate and specific siting of radiocommunication antenna systems that ensures the orderly development and efficient operation of radiocommunication in Canada…
 We conclude that the siting of antenna systems is part of the core of the federal power over radiocommunication and that any other conclusion would make it impossible for Parliament to achieve the purpose for which this power was conferred on it. The question therefore becomes whether, in the instant case, the effect of the notice of a reserve served by Châteauguay on the core of this federal power is sufficiently significant for the doctrine of interjurisdictional immunity to apply.
The majority concluded that the notice of reserve “seriously and significantly impaired the core of the federal power over radiocommunication and that this notice served on Rogers was therefore inapplicable by reason of the doctrine of interjurisdictional immunity.” (at para 72) The evidence in support of this was as follows:
 In the case at bar, the service of the notice of a reserve prevented Rogers from constructing its antenna system on the property at 411 Boulevard Saint?Francis for two successive two?year periods, and there was no alternative solution to which it could have turned on short notice. Once the resolution authorizing the service of the notice of a reserve had been adopted, Châteauguay’s offer meant that Rogers would have to wait either until the end of the expropriation proceedings with regard to the property at 50 Boulevard Industriel or for a period of approximately seven months before it would be able to construct its installation on the property at 411 Boulevard Saint?Francis. In these circumstances, Rogers was unable to meet its obligation to serve the geographic area in question as required by its spectrum licence. In this sense, the notice of a reserve compromised the orderly development and efficient operation of radiocommunication and impaired the core of the federal power over radiocommunication in Canada.
The passage is worth quoting in its entirety, since it confirms that the IJI test is not “sterilizing” or “paralyzing” and that the more qualified test of impairment may be met by measures which serve to delay, as well as measures that completely frustrate, the attainment of the goal or objective sanctioned by the federal power.
Justice Gascon (Concurring in the Result)
Justice Gascon considered that the appeal should have been resolved on the basis of the doctrine of interjurisdictional immunity rather than on the basis of the pith and substance doctrine. In effect, it seems that Justice Gascon was prepared to take at face value Châteauguay’s representations that it was enacting the reserve (at para 109) “to ensure the harmonious development of the territory of Châteauguay, to allay its residents’ concerns and to protect their health and well?being …”.
In the name of “a flexible approach tailored to the modern conception of federalism, which allows for some overlapping and favours a spirit of co?operation” (at para 93) and an approach that is consistent with the presumption of validity, Justice Gascon clearly favoured a more deferential and “delicate” approach to the assessment of pith and substance than did the majority. Justice Gascon put the point this way at para 106:
 In my view, this more nuanced understanding of the effects of the notice of a reserve is in line with a more flexible conception of the pith and substance doctrine that is more consistent with the guiding principles discussed above. I think it would be prudent to approach the application of this doctrine in this way. An overly narrow understanding of the consequences of the measure that is limited to an examination of just one of its effects could lead to the premature conclusion that the measure applies only to the matter so affected, that is, to the siting of radiocommunication towers. By contrast, undertaking the analysis by way of an approach that takes into account the various effects of the notice on Châteauguay’s ability to manage its territory in accordance with its citizens’ expectations favours a more accurate understanding of the matter to which this notice actually applies.
Once again the entire text merits quotation, because implicitly, if not explicitly (see the comments of the majority above on double aspect), the majority must be taken to have rejected this approach. For the majority it is clearly not enough that a provincially authorized entity might have relied on a legitimate provincial objective if it was in fact motivated to frustrate a legitimate federal purpose.
Justice Gascon largely agreed with the majority on the formulation and application of the IJI doctrine but his concluding comments with respect to the question of when the impairment occurred are worth noting (at para 121):
The measure’s intrusion on the core of the power is significant and amounts to an impairment. My colleagues base the impairment on the time during which the notice of a reserve was to be in effect, that is, two consecutive two?year periods. In my opinion, the impairment existed as of the time when the effect of the notice is found to have prevented Rogers from installing its radiocommunication tower on the available site that had been formally approved by the Minister of Industry, given that the federal legislation and the Circular both give the Minister the last word as regards the siting of radiocommunication systems in Canada. Such an obstacle has undesirable and extremely harmful consequences on the orderly development and efficient operation of radiocommunication insofar as Rogers’ activities are concerned.
The Principle of Co-operative Federalism
The decision features an interesting discussion of the idea or principle of co-operative federalism. This was a central plank of Justice Gascon’s judgement. He noted (at para 85) that:
… any application of the constitutional doctrines must take into account the principle of co?operative federalism to which the Court has referred in a number of cases (CWB, at para. 24; Husky Oil Operations Ltd. v. Minister of National Revenue, 1995 CanLII 69 (SCC),  3 S.C.R. 453, at para. 162; Reference re Employment Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56 (CanLII),  2 S.C.R. 669, at para. 10). This principle favours, where possible, the operation of statutes enacted by governments at both levels (Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44 (CanLII),  3 S.C.R. 53, at para. 50, citing General Motors of Canada Ltd. v. City National Leasing, 1989 CanLII 133 (SCC),  1 S.C.R. 641; CWB, at para. 37). The Court’s adoption of an approach involving concurrent federal and provincial powers, as opposed to applying the outdated concept of “watertight compartments” to establish exclusive jurisdictions, is consistent with this (CWB; Multiple Access Ltd. v. McCutcheon, 1982 CanLII 55 (SCC),  2 S.C.R. 161; Law Society of British Columbia v. Mangat, 2001 SCC 67 (CanLII),  3 S.C.R. 113; OPSEU v. Ontario (Attorney General), 1987 CanLII 71 (SCC),  2 S.C.R. 2).
The majority acknowledged the importance of the principle, recognizing (at para 38) “that when the courts apply the various constitutional doctrines, they must take into account the principle of co?operative federalism, which favours, where possible, the concurrent operation of statutes enacted by governments at both levels …”. But there are limits to the principle which the majority acknowledged at paras 39 and 47:
 …. although co?operative federalism has become a principle that the courts have invoked to provide flexibility for the interpretation and application of the constitutional doctrines relating to the division of powers, such as federal paramountcy and interjurisdictional immunity, it can neither override nor modify the division of powers itself. It cannot be seen as imposing limits on the valid exercise of legislative authority…. Nor can it support a finding that an otherwise unconstitutional law is valid.
 We agree completely with the flexible and generous approach our colleague advocates … However, flexibility has its limits, and this approach cannot be used to distort a measure’s pith and substance at the risk of restricting significantly an exclusive power granted to Parliament. A finding that a measure such as the one adopted in this case relates in pith and substance to a provincial head of power could encourage municipalities to systematically exercise the federal power to choose where to locate radiocommunication infrastructure while alleging local interests in support of their doing so.
I think that we might anticipate that paragraph 47 will feature prominently in facta filed by counsel acting for federally regulated pipelines. While the Government of Alberta did not intervene in this litigation in support of the federal position, and neither did any pipeline interests, both Edmonton and the likes of TransCanada, Enbridge, and Kinder Morgan should be celebrating this decision. The City of Burnaby may not be so enthusiastic.
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By: Nigel Bankes
Case commented on: Northrock Resources v ExxonMobil Canada Energy, 2016 SKQB 188
What is the legal position if N has a right of first refusal (ROFR) in the event that E agrees to sell its interest, unless E’s sale is to an affiliate; E transfers the interest to its wholly owned affiliate, NSCo and C then buys the shares of NSCo. Does the second transaction or the two transactions taken together (known in tax parlance – for reasons that, as with much of tax law, entirely escape me – as a “busted butterfly” trigger N’s ROFR entitlement (perhaps on the basis that E should not be able to do indirectly what it cannot do directly)? Justice Currie of the Saskatchewan Court of Queen’s Bench answered in the negative and as a result dismissed Northrock’s (N’s) claims which sounded in both contract and in tort (inducing breach of contract and conspiracy).
ExxonMobil (E) was interested in disposing of certain oil and gas producing assets in Saskatchewan. Some of those assets (the assets at issue here) were subject to a unit agreement and a unit operating agreement as well as another relevant agreement which provided Northrock (N) with a ROFR. In offering the properties for sale through an electronic data room, E indicated that it was interested in entertaining tax effective offers for the assets involving either a sale of the assets or a busted butterfly structured as above, under which E would transfer the assets to a Nova Scotia corporation (NSCo) (E’s affiliate) following which the purchaser would buy the shares in NSCo. Most interested purchasers submitted alternative offers using both structures. E disclosed that the relevant properties were subject to ROFRs. E eventually selected the offer of Crescent Point (C) with the deal to be structured as a busted butterfly. E procured N’s consent to the transfer to NSCo but in giving its consent N indicated that it objected to any transfer of the shares of NSCo to a third party without new ROFR notices. Neither E nor NSCo provided additional ROFR notices to N and the transaction closed with C acquiring the shares of NSCo.
N commenced this action suing E, C, and NSCo, alleging breach of contract, breach of a duty of a good faith, and the torts of inducing breach of contract and conspiracy. N sought a series of remedies including a declaration of trust, specific performance, damages, and punitive damages.
Breach of Contract
Justice Currie concluded that there was no ambiguity in the documents before him. The relevant agreements expressly exempted transfers to an affiliate from the ROFR obligations and did not address any subsequent sale of the shares of that affiliate. The parties could have bargained for such a provision but had not done so, and the Court was not prepared to read any such obligation into the agreements. The same reasoning applied even where N was a successor in interest to the original agreement.
 …. an examination of the ROFR provisions reveals that the parties to the agreements did not intend that every circumstance of a party divesting itself of an interest would trigger a ROFR. In negotiating the ROFR provisions they chose which divestitures would be singled out for a restriction on the right of a party to deal with its own property.
 The parties have used clear language in the agreements. They said what they intended to say in the agreements, having chosen and identified what they were prepared to agree to. Since the meaning of the parties’ words is clear, this is not a case of that meaning constituting an interpretation that defeats the intentions of the parties. Rather, those clear words communicate the intentions of the parties.
 The transaction, structured as it was to involve the transfer of interests to the NSULCs [Nova Scotia unlimited liability corporations] and the sale of the shares of the NSULCs, did not trigger the ROFR provisions of either agreement. ExxonMobil did not breach its agreements with Northrock by failing to provide ROFR notices.
Breach of the Duty of Good Faith
Neither was there a breach of the duty of good faith (and the Court considered this as a separate head rather than as part of the contractual analysis). The case law cited by the court (GATX Corp. v Hawker Siddeley Canada Inc. (1996), 27 BLR (2d) 251 (Ont Ct J), Glimmer Resources Inc. v Exall Resources Ltd. (1997), 35 BLR (2d) 297 (Ont Ct J) and Chase Manhattan Bank of Canada v Sunoma Energy Corp, 2002 ABCA 286, 317 AR 308) established that there might be breach of a duty of good faith in a ROFR context if a transaction were structured for the sole purposes of avoiding triggering a ROFR or (at para 66) “where a party is shown to have lied or misled, thereby breaching the duty of honest performance”, but not when it is structured in such a way for other legitimate reasons such as tax reasons or, in the case of a sale by a receiver, to maximize values. The evidence in the case supported the conclusion that E adopted the busted butterfly structure for tax reasons and was not motivated to elect this structure so as to avoid its ROFR obligations. E’s good faith in making this determination was not compromised by the fact that E’s employee handling the matter sought a series of legal opinions on the general question of whether a butterfly transaction might trigger a ROFR, even though those opinions expressed some uncertainty as to the precise legal position. Justice Currie reasoned as follows (at paras 80 81 & 83):
A decision can be a bona fide business decision, even in the face of some risk or uncertainty. Many business decisions involve risk and uncertainty. They involve weighing the risk and uncertainties. That is the nature of business. The element of uncertainty about the legal opinions does not affect my acceptance of Mr. Graham’s testimony that ROFRs were a detail that did not affect the decision, because the decision was driven by the concern for the tax pools.
In this case, the essence of the decision was that the busted butterfly structure could result in a benefit to ExxonMobil of $29 million, with a negligible related cost.
Further, I am not persuaded of the validity of the proposition that a client may bona fide follow legal advice only if that advice ultimately proves correct. Such a proposition is entirely impractical, given the complexities of the law and of the wide range of circumstances to which it applies. Similarly, it strikes me that following legal advice is an indication of, if anything, bona fide conduct rather than the opposite.
Neither was this conclusion affected by evidence in which E’s tax expert acknowledged that the tax advantages that might accrue to E were also not certain.
Finally, the evidence showed that C itself was neutral as to how to structure the deal (although one employee, not the relevant decision-maker, did advert to structuring so as to “circumvent the ROFR” (at para 71)) given that it was organized as a trust but that it was happy to accommodate E’s preference in terms of structure. C was focused on the value of the assets and winning the bidding competition rather than avoiding the ROFR.
Given that there was no breach of the duty of good faith it was unnecessary for the Court to decide (at para 105) whether all the defendants had such a duty or whether such a duty might only be owed by those (E in this case) in a privity relationship.
Finally, since there was no breach of contract there could be no tort of inducing breach of contract; neither could N establish a conspiracy to deny Northrock its ROFR since, as already held, that was not the predominant purpose of the conduct of the relevant parties and neither was the defendants’ conduct unlawful (since it was not in breach of contract).
The relationship between ROFRs and busted butterflies (or more prosaically inter-affiliate transactions) has long been a source of considerable uncertainty for transactional lawyers in the oil and gas industry. This decision offers some guidance to parties but we need further endorsement from an appellate court in order to deliver any real certainty. Furthermore, the decision does not answer all of the potential questions surrounding the relative weighting of the structuring drivers i.e. the relative importance of ROFR avoidance as a motivating driver versus the importance of other factors which might drive the structuring of the transaction.
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By: Sharon Mascher
Case Commented on: Syncrude Canada Ltd. v. Canada (Attorney General), 2016 FCA 160 (CanLII)
On May 30th Justice Rennie delivered the Federal Court of Appeal’s unanimous judgment in Syncrude Canada Ltd v Canada (Attorney General). At issue in this case was the validity of s 5(2) of the federal Renewable Fuels Regulations, SOR/2010-189 (RFRs) which requires that all diesel fuel produced, imported, or sold in Canada contains at least 2% renewable fuel. While the FCA held that the RFRs are valid, from a climate change perspective this conclusion is not the reason this decision is important. As my colleague Nigel Bankes has noted here, the RFRs represent only “a tiny, tiny step” towards reducing Canada’s greenhouse gas (GHG) emissions. Rather, coming as it does on the heels of Canada signing the Paris Agreement and in the midst of talks aimed at developing a pan-Canadian climate change framework, the Syncrude decision is important because the FCA confirms that the federal government can use the criminal law power to regulate GHG emissions. More specifically, given that the RFRs at issue in this case create a flexible scheme that allows for the buying and selling of compliance units to achieve the 2% renewable fuel requirement, the Syncrude decision endorses the use of the criminal law power to support market-based emissions trading schemes or other pricing mechanisms. In short, provided federal regulations are directed at the purpose of reducing GHG emissions, this FCA decision tells the federal government that it has the constitutional power to take action on climate change.
Background to the Case
Since 2005, six of the most significant GHGs – including carbon dioxide – have been listed as toxic substances in Schedule I of the Canadian Environmental Protection Act 1999, SC 1999, c 33 (CEPA). For the purposes of CEPA, a substance is toxic if it has (or may have) an immediate or long-term harmful effect on the environment or its biological diversity or constitutes (or may constitute) a danger in Canada to human life or health (s 64). Section 139 of CEPA prohibits the production, importation and sale in Canada of fuel that does not meet prescribed standards. To carry out this provision, the Governor in Council has the authority to make regulations prescribing the properties and characteristics of fuel provided the Governor in Council is of the opinion that the regulation could make a significant contribution to the prevention of, or reduction in, air pollution resulting from, directly or indirectly, the combustion of fuel (s 140). It is pursuant to this provision that the RFRs were promulgated.
Section 5(2) of the RFRs requires all diesel fuel produced, imported or sold in Canada to contain at least 2% renewable fuel. To achieve this renewable fuel requirement, every litre of renewable fuel mixed into other fuel – including mixing that occurs outside Canada before the fuel is imported – creates one compliance unit (ss 13(2)). Each compliance unit, therefore, represents one litre of renewable fuel in the total Canadian fuel supply. To meet the 2% renewable fuel requirement, regulated entities are required to expend two compliance units for every 100 litres of fuel they produce, import or sell. Regulated entities can do this by mixing fuel themselves to create compliance units or by purchasing compliance units from others (RFRs, s 20(1). As Justice Rennie notes (at para 79), the RFRs are “agnostic” as to where or how the 2% renewable fuel requirement is met, as long as it is met. Failure to comply with the RFRs is an offence under the CEPA with penalties payable on conviction (CEPA s 272(1)).
As Syncrude Canada Ltd. produces diesel fuel to operate vehicles and equipment at its Alberta oil sands operations, it is captured by the RFRs. Syncrude commenced an application in the Federal Court challenging the validity of the RFRs on constitutional and administrative grounds. The Federal Court dismissed its application (see Syncrude Canada Ltd. v Canada (Attorney General), 2014 FC 776 (CanLII) and ABlawg posts on the administrative and constitutional law issues at play here, here, and here). Syncrude appealed.
The Criminal Law Power and the Constitutional Validity of the RFRs
In the FCA, Syncrude argued that s 5(2) of the RFRs did not have a valid criminal law purpose because it was not aimed at the reduction of air pollution. Rather, in Syncrude’s submission, the RFRs are in fact an economic measure aimed at the creation of a local market (a matter within s 92(13) of the Constitution Act, 1867) or directed to non-renewable natural resources (a matter of provincial legislative competence under s 92A of the Constitution Act, 1867). Syncrude’s argument is predicated on the assertion that the renewable fuel requirement that s 5(2) establishes is ineffective (at para 40). Given the direction this analysis provides to understanding the scope of the criminal law power in the context of GHG regulation going forward, it is relevant to consider Justice Rennie’s reasoning in some detail.
Characterization of Section 5(2)
After affirming the methodological approach adopted by the Federal Court in its constitutional analysis, Justice Rennie turns to the two step division of powers analysis: characterization of the law; and classification of the essential character by reference to the relevant heads of power (at para 38, citing Reference re Firearms Act (Can) 2000 SCC 31 (CanLII) at para 15).
The characterization analysis is informed by both the law’s purpose and its effect. Given that Syncrude’s argument is founded on the assertion that the renewable fuel requirement is ineffective, Justice Rennie highlights the language of the Supreme Court in the Firearms Reference. Responding in that case to the AG of Alberta’s argument that the law at issue would not actually achieve its purpose, the Court stated that within the constitutional sphere it is for Parliament to “judge whether the measure is likely to achieve its intended purposes; efficaciousness is not relevant to the Court’s division of power analysis … [r]ather the inquiry is directed to how the law sets out to achieve its intended purposes in order to better understand its ‘total meaning’ ” (Firearms Reference at para 18).
Analyzing the purpose and effect of s 5(2) of the RFRs, Justice Rennie concludes that it is directed to maintaining the health and safety of Canadians, as well as the natural environment upon which life depends (at para 41). Within the statutory scheme established by the CEPA, the 2% renewable fuel requirement is directed at the reduction of toxic substances in the atmosphere (at para 41). By displacing the combustion of fossil fuels, s 5(2) reduces the amount of GHG-related air pollution that would otherwise enter the atmosphere. Taken together, the purpose and effect of s 5(2) is “unambiguous on the face of the legislative and regulatory scheme in which it is situated. It is directed to the protection of the health of Canadians and the protection of the natural environment.” (at para 42) Justice Rennie notes that “[r]esort to the relevant Regulatory Impact Analysis Statement (RIAS) confirms this position” (at para 43).
Valid Criminal Law Purpose
The valid exercise of the criminal law power requires (1) a prohibition, (2) backed by a penalty, (3) for a valid criminal purpose (at para 47, citing Reference re Assisted Human Reproduction Act, 2010 SCC 61 (CanLII)). There is no question that the RFRs contain a prohibition backed by a penalty. At issue here is whether these regulations have a criminal law purpose. The Supreme Court has confirmed that a law aimed at supressing or reducing an “evil” (Reference re Validity of Section 5(a) Dairy Industry Act,  SCR 1) or addressing a public concern relating to peace, order, security, morality, health or some similar purpose has a criminal law purpose, although it “must stop short of pure economic regulation” (at para 48). Following the Supreme Court in R v Hydro-Quebec,  3 SCR 213, Justice Rennie easily concludes that “[p]rotection of the environment is, unequivocally, a legitimate use of the criminal law power.” (at para 49) Further, “it is uncontroverted that GHGs are harmful to both health and the environment and as such, constitute an evil that justifies the exercise of the criminal law power.” (at para 62) This conclusion, however, does not end the matter for Syncrude, whose “principal argument” it will be recalled is that the RFRs are ineffective in achieving their purpose.
(In)Effectiveness of the RFRs
Syncrude conceded that questions of whether the RFRs are worthwhile or useful are not germane to the characterization analysis. However, Syncrude sought to use evidence it argued supported the conclusion that the RFRs would not in fact reduce GHG emissions to characterize the dominant purpose of the legislation. The evidence as to the practical effects of the RFRs, it argued, “overwhelmingly contradict the suggestion that the dominant purpose of the RFRs is to reduce GHG emissions.” (at para 52) However, Justice Rennie was unmoved by Syncrude’s argument on either an evidentiary or legal basis. He was satisfied that the Governor in Council had considered the issue and that the RIAS had considered a body of scientific research to support the relationship between the renewable fuel requirement and the reduction of GHGs. The evidence offered by Syncrude that the RFRs would not in fact reduce GHG emissions was “not compelling” (at para 59). From a legal perspective, Justice Rennie was also not willing to entertain the argument that because the RFRs were ineffective their dominant purpose must have been to establish local markets. This argument, he reasoned, sought to circumvent the proposition as stated in Ward, that “the purpose of legislation cannot be challenged by proposing an alternative, allegedly better, method for achieving that purpose (at para 60).
Regulation as an Economic Measure
Syncrude’s argument that the dominant purpose of s 5(2) was to create a market in renewable fuels and was therefore ultra vires similarly failed. While it was not contested that an increased demand for renewable fuel would have favourable economic consequences and market responses in agriculture, Justice Rennie held that these consequential effects should not be considered in isolation. The reason the government hoped to develop a Canadian renewable fuels market was to support the long-term reduction of GHGs. Recognizing that it is at times practically impossible to disassociate the environment and economy (citing Friends of the Oldman River Society v Canada (Ministry of Transport),  1 SCR 3), Justice Rennie concluded that “[t]he existence of the economic incentives and government investments, while relevant to the characterization exercise, do not detract from the dominant purpose of what the RFRs do and why they do it.” (at para 67) So, while part of the objective of the RFRs was indeed to encourage next-generation renewable fuel production and to create opportunities for farmers in renewable fuels, it was sufficient that the evidence also demonstrated that this market demand and supply was being created “to achieve the overall goal of greater GHG emission reductions.” (at para 68) All criminal laws seek to deter and modify behaviour. It follows therefore that simply because Parliament “foresees behavioural responses either in persons or in the economy” does not mean that the regulation is an economic measure and does not invalidate the exercise of the criminal law power (at para 69).
Absence of an Absolute Prohibition
Syncrude’s argument that the RFRs cannot be a valid exercise of the criminal law power because they contain exemptions and do not ban outright the presence of GHGs in fuel was also unsuccessful. Affirming the findings of the Federal Court and guided by the Supreme Court’s direction in both the Firearms Reference and RJR-MacDonald Inc. v Canada (Attorney General)  3 SCR 199 (CanLII), Justice Rennie states that “[a] prohibition need not be total, and it can admit exceptions.” (at para 73). He goes on to state “there is no constitutional threshold of harm that must be surpassed before the criminal power is met, provided there is a reasonable apprehension of harm” (at para 75). Noting that Syncrude had no answer to the question of when the RFRs become constitutional – at 10%, 25%, 50% or 100% renewable fuel requirement – Justice Rennie confirms “[t]here is no magic number.” (at para 75) This conclusion is consistent with Syncrude’s concession that other regulations limiting the concentrations of lead and sulphur in fuel are valid (Sulphur in Diesel Fuel Regulations, SOR/2202-254). Nothing distinguishes these prohibitions from that found in the RFRs and all are valid.
Intrusion Into Provincial Jurisdiction Over Natural Resources
Justice Rennie answers the question of whether the RFRs intrude into provincial jurisdiction over natural resources by examining the structure and operation of the RFRs themselves. In so doing, Justice Rennie concludes that the regulations are “agnostic as to who is required to meet the target, and importantly, agnostic as to how they do it, whether by blending fuels or purchasing compliance units” (at para 79). What matters is that the target of consuming 2% less fossil fuels – which is the same on a yearly, Canada wide basis – is met. Also important to Justice Rennie is that s 5(2) applies to Syncrude “as a consumer of diesel in its operations, not its production of synthetic crude oil” (at para 80). He goes on to note that the “RFRs do nothing to affect the rate or timing of resource extraction…” (at para 80) – Syncrude stands in no different position than any other consumer of diesel fuel in Canada. The RFRs are, therefore, laws of general application and not directed at the management of natural resources.
Indirect Means Argument
Syncrude also argued that the criminal law power does not support the use of indirect economic effects to achieve the dominant purpose of protecting the environment. The RFRs, it argued, indirectly address the emission of GHGs by creating a demand for renewable fuels in order to displace fossil fuels and thereby reduce GHG emissions. The finding that creating demand for renewable fuels is not the dominant purpose of the RFRs provides Justice Rennie with a short answer to this argument. However, in the alternative Justice Rennie finds that Syncrude’s argument “that Parliament cannot use the criminal law power to indirectly reduce an evil has no support in the jurisprudence.” (at para 83) In the Firearms Reference the Supreme Court confirmed that “indirect means” may be used to achieve Parliament’s ends. (at para 84, citing Firearms Reference at paras 39-40) Similarly, in RJR-MacDonald the Court affirmed that when considering whether a valid criminal law purpose exists, the court’s emphasis must not be on Parliament’s method of achieving that otherwise valid purpose, no matter how “circuitous” the path taken to achieve Parliament’s goal. (at para 85, citing RJR-MacDonald at paras 50-51)
The Colourability Argument
Building on its assertion that the RFRs are ineffective in combating climate change, Syncrude also argued that they must therefore, by logical inference, “…be a colourable attempt to create a market for renewable fuels or to regulate provincially controlled natural resources” (at para 87). Syncrude constructed this argument as follows: the evidence suggests that the government knew that the use of renewable fuels do not in fact have a lower GHG emissions over their life cycle; the government understood that the RFRs would spur collateral economic incentives to agriculture and industry associated with planting and refining biofuels; and, therefore the primary purpose of the RFRs must have been to intrude into provincial responsibilities to create a market for Canadian renewable fuels. (at para 89)
Justice Rennie held, however, that the evidence supports the opposite conclusion. (at para 90) When considered in context, the references in the evidence associated with the creation of a domestic market for renewable fuels were directed at preventing or reducing air pollution through the reduction of GHGs. Justice Rennie also recognizes that in using the criminal law power to protect the environment, and in this case reduce GHG emissions, Parliament must necessarily navigate the economic consequences associated with doing so. While sometimes “crafting the regime so as to mitigate the economic side effects may be the majority of the work” and “managing economic effects plays a role, even a large role” this does not mean that the law is a colourable attempt to pursue an unconstitutional objective.” (at para 91). This is so even if capital incentives and subsidies exist – provided the clear objective of these economic measures is to meet the ultimate purpose of reducing air pollution by reducing GHG emissions. And this is precisely what the Federal Court of Appeal finds that the RFRs are designed to do.
In light of the preceding reasons, the FCA concludes that s 5(2) of the RFRs is a valid exercise of the criminal law power and is intra vires the Constitution Act 1867. Without examining the issue in any detail, Justice Rennie also concludes that had the law been ultra vires, it would have been saved by the ancillary powers doctrine for substantially the same reasons as those of the Federal Court.
So what does the decision mean for Canada going forward?
Absent an appeal to the Supreme Court of Canada, this FCA decision removes the lingering question as to whether the federal government can rely on the criminal law power to regulate GHG emissions, an evil that justifies the exercise of the criminal law power. This is so even if the legislation or regulation creates favourable economic and market responses in other sectors or supports the use of indirect economic effects to achieve its dominant purpose. It is not necessary that the legislation or regulation contain an absolute ban on GHG emissions – the prohibition need not be total or, as exemplified by the RFRs, even substantial, and exemptions are tolerated. And any such legislation or regulations will not be open to challenge on the basis that it is ineffective at achieving its purpose or on the basis that it intrudes into provincial jurisdiction over natural resources, provided that it is a law of general application.
In Canada’s National Statement at COP21, Prime Minister Justin Trudeau promised that “Canada can and will do more to address the global challenge of climate change.” At present, “[i]n the spirit of cooperation and collaboration” the federal and provincial governments are in the midst of a sixth month process to devise a pan-Canadian framework to address climate change. The first of these meetings held in Vancouver in March 2016 culminated in the Vancouver Declaration on Clean Growth and Climate Change. The Vancouver Declaration reflects, for the first time, a political consensus that Canada must live up to its international climate obligations. Specifically, Prime Minister Trudeau and the premiers committed to “[i]mplement GHG mitigation policies in support of meeting or exceeding Canada’s 2030 target…” and to “[i]ncrease the level of ambition of environmental policies over time… consistent with the Paris Agreement.” However, also reflected in the Declaration is the federal government’s commitment to giving provinces and territories the flexibility to design their own policies to meet emission reduction targets. This is in keeping with the province led, bottom-up approach to GHG regulation that has developed in Canada. So even as discussions on a pan-Canadian framework move forward, proactive provinces continue to set provincial targets, announce climate change plans and pass related legislation (see for example, Alberta’s new Climate Leadership Implementation Act here). For its part, the federal government has largely seemed content to assume the role of cheerleader while continuing to insist that at the end of this six month process there will be a “package of measures” that will include a price on carbon (see here). What that package will look like remains to be seen, but following the Syncrude decision the FCA has made it clear that if necessary the federal government has the power – the criminal law power – to put in place regulations directed at reducing Canada’s GHG emissions in order to meet the commitments the Trudeau government has made under the Paris Agreement.
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By: Erin Sheley
PDF Version: Rights, Camera, Action
Case Commented on: R v McCoy, 2016 ABQB 240 (CanLII)
The series of police encounters that triggered the Black Lives Matter movement have raised many bitter and potentially unanswerable social questions about the relationship between law enforcement and the citizen. From the perspective of criminal procedure, however, they have also demonstrated the importance of video evidence in establishing the “true” story behind the inherently fraught, often violent, almost-always subjective situation of an arrest. In a context where a few words or gestures can make the difference between a colourable case of resisting arrest and an unwarranted exercise of police force, we have seen how eyewitness accounts can be flatly contradictory. As Justice Iaccobucci pointed out in R v Oickle, 2000 SCC 38, referring to video-recorded confessions, police notes may accurately record the content of what is said, but cannot capture tone or body language in a way that recording can (at para 46, citing J.J. Furedy and J. Liss, “Countering Confessions Induced by the Polygraph: Of Confessionals and Psychological Rubber Hoses” (1986), 29 Crim LQ 91, at 104). In light of this potentially important evidentiary function, the in-car digital video system (ICDVS, or “dash cam”) has become an increasingly widely-used piece of police technology. RCMP officers are required to make use of dash cams in all cars equipped with them (see K Division Operational Manual at s 1.1).
In R v McCoy, 2016 ABQB 240, the Alberta Court of Queen’s Bench ruled on the constitutional significance of the RCMP’s policy on dash cams. The arresting officers had pulled the accused over at a check point and, upon smelling alcohol, attempted to administer a breathalyzer test. After the accused—intermittently claiming that medical problems made it difficult for him to breathe properly into the device—ultimately refused to do so, he was arrested for failing to provide a breath sample, a charge for which he was ultimately convicted (at paras 11-14). The arresting officer’s car was equipped with a dash cam, but he did not turn it on until leaving the checkpoint for the RCMP station (at para 16).
On appeal of his conviction, McCoy argued that:
The Alberta case law on the Charter significance of whether police follow the policy requiring use of dash cams in the first place has been muddled. The cases suggest a range of potential standards, most of them turning on the subjective intentionality of the officers responsible for operating the dash cam (at paras 34-44). Where Alberta courts have found a section 7 violation for the lack of dash cam use, there generally has been unusually objectionable conduct on the part of the officers (most amusingly, perhaps, in R v Nabrotzky (25 November 2014), Sherwood Park 141033977P1 (ABPC), where one officer failed to turn on the device because he did not like the sound of his voice recorded, and the conduct of all other involved officers collectively suggested a “pattern of indifference” as to following the rule (at para 41)).
By contrast, there is a clear rule governing the loss of already existing evidence which the Supreme Court of Canada has applied to misplaced or destroyed dash cam footage. In R v La  2 SCR 680 the Court held that a section 7 violation occurs where the police conduct resulting in the destruction of existing footage rises to the level of “unacceptable negligence” (at para 30). In McCoy, however, the ABQB held that—contrary to the arguments of the accused—the case law creates a distinction between situations where existing evidence is destroyed and situations where the police failed to obtain evidence in the first place (at para 47). According to the Court, “As there is no obligation on the Crown to create evidence, the failure to record is not an issue of full disclosure. A failure to create evidence cannot be equated with a failure to preserve or disclose evidence for the purpose of founding a Charter violation” (at para 47). The Court also noted that even in Oickle, with its obiter praising the use of video recording in the confession room, the Supreme Court declined to find that the absence of recording in and of itself constituted a Charter violation (at para 56).
On the policy front, the Court noted that the accused is entitled to a fair trial, not a perfect trial, and found that “[n]on-compliance with the RCMP policy must be considered in light of the possibility of human or technological error and the consequence to the public of such rigid requirements” (at para 67). The Court added that without the benefit of video recordings, courts will simply “perform the same function that they do in all other trials; they weigh the evidence and make credibility assessments on the evidence available” (at para 68). The bottom line on the constitutional question in McCoy appears to be that, because the Crown has no duty to create evidence (in contrast to its duty to disclose evidence, as implicated in cases involving lost footage), an officer’s simple failure to record an interaction, even in violation of an RCMP policy, does not in and of itself constitute a Charter violation (at para 70).
The Court briefly considered whether the officers’ conduct in this particular case evinced the sort of “outrageously cavalier” or “indifferent” behavior as to the dash cam policy that had been found to constitute a section 7 violation in other cases. No evidence supported such a contention in this case, due, among other reasons, to the officer’s reasonable explanation that had he turned the dash cam on it would have failed to record any of the stop due to the location of the accused’s vehicle ten feet away and out of range (at para 76).
As to section 8, McCoy tried to argue that the officers’ administration of the breathalyzer test without following the RCMP’s recording policy constituted an unreasonable search (at para 87). He attempted to reason by analogy to the constitutional standards for the reasonableness of bodily strip searches, which have been informed, in the case law, by reference to authorities such as police training manuals (at para 89). The ABQB made short work of this argument, noting that the cases on bodily searches deal with “deliberate unexplained conduct on the part of the police” and, perhaps more to the point, deal with the manner of a search rather than the evidentiary record of it (at para 92). Thus, they do not govern the dash cam question and section 8 was not implicated by the facts of this case.
While the majority of the Court’s reasons focus on the appellant’s Charter arguments, it also considered McCoy’s contention that the trial court had inappropriately discounted inconsistencies in the arresting officer’s testimony in making its credibility determination (at para 99). Specifically, McCoy pointed to the officer’s admitted exaggeration of a seizure McCoy sustained at the police station, and his inaccurate claim that he had recorded the seizure in his notes (at para 101). The ABQB noted the relative inconsequence of these inconsistences (particularly the fact that the officer had reported the seizure in his General Report, though not specifically in his notes), and found them insufficient to override the deference due to the trial court in findings of fact (at paras 103-104). The Court likewise rejected McCoy’s contentions that the trial court inappropriately discounted his own testimony due to his faulty recollection of various events in the evening, which he claimed related to his ongoing medical problems (at para 105). In reality the trial court had in fact accepted that McCoy had medical problems, but merely rejected his account of the actual interaction with the officer, which he in fact claimed to remember (at para 107). Furthermore, the Court noted that McCoy’s arguments were of particularly little avail due to the substance of the charged offence, which places a burden on the accused to provide a reasonable excuse for refusing to provide a breath sample (at para 115). As the mens rea and actus reus did not appear to be in dispute, the defence turned on the existence of reasonable excuse which the accused failed to meet.
Finally, the Court addressed the trial court’s application of the famously confusing test in R v. WD for evaluating the credibility of competing witness accounts. The WD test provides the following direction to a factfinder:
First, if you believe the evidence of the accused you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused (at para 118).
This test is widely criticized in the scholarly literature for creating a number of logical paradoxes (particularly the ostensible proposition at the second prong, that disbelieved testimony by the accused can itself create reasonable doubt), but remains the law on the issue. The Court summarized the trial court’s findings of fact as to the first and second prongs of WD, much of which turned on the gaps in the accused’s recollection affecting his credibility. The Court stated that the trial court did NOT conclude “I prefer the testimony of the officer over the testimony of the Appellant,” which would not have been enough to overcome the reasonable doubt standard under WD, but that “instead, he is explaining why the evidence of the Appellant does not leave him with a reasonable doubt, including due to credibility issues” (at para 122). At that point, the trial court turned, as was appropriate, to the third prong of WD, and concluded that the rest of the Crown’s evidence did support a finding of guilt beyond a reasonable doubt.
In holding that the trial court had appropriately weighed the credibility of the conflicting accounts, the ABQB noted, as has been accepted since the unfavorable reception of WD, that it was not necessary for it to have explicitly articulated the three steps of the test. WD is not, the Court emphasized, a “magic incantation” (at para 125). This decision is consistent with the weight of the authority since WD was decided, which emphasizes that it was primarily intended to prevent fact finders from distorting the Crown’s burden of proof in cases of conflicting testimony by simply picking the account of the Crown’s witness over that of the accused in cases where the former is more convincing yet reasonable doubt remains.
Another point is worth noting about McCoy in conclusion. While the Court did not mention it explicitly, had McCoy’s Charter argument prevailed it might have had a perverse effect on police practices. Dash cams are valuable sources of evidence, useful both to successfully prosecuting the guilty and holding police officers accountable for their behavior while conducting stops. It is therefore a good thing for substantive justice for the RCMP to mandate dash cam use wherever feasible. Yet should courts come to treat internal police policies as creating fixed Charter standards, the logical reaction on the part of law enforcement would be to loosen their standards for self-regulation so as to avoid widespread exclusion of evidence. Any attempt by courts to constitutionalize all aspects of police procedure—particularly in the absence of judicial expertise as to the physical and financial constraints on police departments—risks creating such a double bind. Should all failures to follow the dash cam policy constitute automatic section 7 violations, it seems unlikely the policy itself would last for long. As dash cam technology becomes more commonplace and cost-efficient, however, it is not unreasonable to suspect that courts might revisit its constitutional role in the future.
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By: Nigel Bankes
Case commented on: Redwater Energy Corporation (Re), 2016 ABQB 278
In a much anticipated decision Chief Justice Neil Wittmann has concluded that there is an operational conflict between the abandonment and reclamation provisions of the province’s Oil and Gas Conservation Act, RSA 2000, c O-6 (OGCA) and Pipeline Act, RSA 2000, c P-15 and the federal Bankruptcy and Insolvency Act, RSC 1985, c B-3 (BIA). Thus, a trustee in bankruptcy is free to pick and choose from amongst the assets in the estate of the bankrupt by disclaiming unproductive oil and gas assets even where (and especially so) those assets are subject to abandonment orders from Alberta’s oil and gas energy regulator, the Alberta Energy Regulator (AER). As a result, the value of the bankrupt’s productive assets is preserved for the benefit of secured creditors. AER abandonment orders do not bind a trustee with respect to the disclaimed properties and do not constitute costs of administration of the bankrupt’s estate. Since the trustee has no responsibility for disclaimed assets, the trustee should be in a position to transfer non-disclaimed producing assets to a third party purchaser without objection from the AER on the basis of any deterioration in the liability rating associated with the unsold non-producing assets. If either the AER or the Orphan Well Association (OWA) carries out the abandonment of the disclaimed assets such costs may constitute a provable claim in bankruptcy but, as a general creditor, the AER/OWA would likely only recover cents on the dollar.
The practical effect of this decision is that the AER’s authority to enforce abandonment orders at the cost of the licensee is unenforceable at precisely the time when the AER most needs to be able to exercise that power i.e. when the licensee is insolvent. Furthermore, one of the AER’s principal mechanisms to ensure that a licensee has assets on hand to cover its liabilities (its authority to withhold consent to the transfer of assets which result in the deterioration of a licensee’s ability to discharge its obligations) is no longer available. Thus, the entire provincial scheme for protecting Albertans from the abandonment costs in relation to non-productive wells is seriously compromised, and, as a result, in the case of a bankrupt licensee the costs of abandonment will necessarily be assumed by the Orphan Well Fund or the province. If the costs are assumed by the Fund this means that the industry as a whole bears the burden; if the costs are assumed by the province (perhaps by a cash infusion into the Fund) this means that all Alberta taxpayers bear the burden of discharging these abandonment and reclamation obligations. While this result flies in the face of any conception of the polluter pays principle it is, according to Chief Justice Wittmann, the necessary result of the interpretation of the relevant statutes and the application of the constitutional doctrine of paramountcy.
Any effort to restore the pre-eminence of the polluter pays principle will require statutory amendments or changes in regulatory practice. The most obvious candidate for amendment is the BIA itself but this may well prove to be an immovable object given the desire to protect the interests of secured creditors and to avoid a “third party pays” scenario. Any changes to provincial laws will have to be carefully crafted to remain onside the federal scheme. Much however might be achieved through changes in AER practice so as to prevent “producers” from carrying so many unproductive properties and inventories of suspended wells. Although this is akin to closing the stable door once the horse has already escaped given the number of companies likely facing financial difficulties as a result of low oil prices, it is still a task that needs to be undertaken on a go-forward basis. It will also be necessary to consider significant increases to the annual levy if the AER and the province are serious about making sure that the industry covers its costs.
The balance of this post proceeds as follows. The next section presents the AER’s liability management regime and the following sections discuss the inconsistencies between the provincial regime and the BIA as identified by Chief Justice Wittmann.
The AER’s Liability Management Regime
The AER maintains a liability management regime which is designed (at para 26) “to prevent costs associated with suspension, abandonment, remediation and reclamation of AER licensed properties (well, facility or pipeline) … from being borne by the public of Alberta should a licensee become defunct … [and] to minimize the risk to the Orphan Fund administered by the OWA [Orphan Well Association].” The regime is based on a number of AER Directives and the Oil and Gas Conservation Rules, Alta Reg 151/1971, Part 1.1 (OGCR); while the details are complex the underlying concepts are fairly straightforward. The basic proposition is that a licensee must maintain a positive liability management ratio (LMR) in relation to its assets. The LMR is the ratio of a licensee’s deemed assets (e.g. producing wells) and its deemed liabilities (e.g. suspended wells). If a licensee’s LMR falls below 1.0 the AER will require the licensee to post increased security to cover the difference. Similarly, if a licensee is proposing to transfer assets and the result of the transfer will reduce the LMR of either the transferor or the transferee below 1.0, the AER may require the relevant licensee to provide additional security before it will approve the transfer.
The AER may direct a licensee to abandon a well or facility in a number of circumstances and in particular may do so, as here, where “in the opinion of the Regulator the well or facility may constitute an environmental or a safety hazard” (OGCR s. 3.012). Where a licensee (or other working interest participants (WIPs) in the well) fail to do so the AER may carry out the abandonment itself or may declare the well or facility to be an orphan, at which point the OWA assumes responsibility for the abandonment and reclamation of the property. The financial resources available to the OWA include the Orphan Fund Levy funds (an annual levy on all licensees) and any security deposit made by that licensee.
There are a number of premises that underlie the efficacy of this scheme. The first is that the deeming rules that underlie the calculation of the ratio are realistic. To the extent that the deeming rules overestimate assets or underestimate actual liabilities then the assets on hand to cover liabilities will be inadequate. The AER’s concerns in relation to this scheme led it to tighten the rules of the program significantly in 2013 with a roll out of the new rules over a three year period. The new rules inter alia increased the deemed costs and also reduced deemed revenues by shortening the period for averaging industry netbacks. These changes led to LMRs below 1.0 for some companies, which required them to make additional security payments. While these requirements undoubtedly increased the financial pressure on junior oil and gas companies and may contribute to their insolvency, these tightened rules do provide some assurance with respect to the first premise, and as well shall see, also the second major premise.
The second premise is that the licensee’s assets will actually be available to fund the licensee’s abandonment and reclamation activities at the relevant time. The result of the decision in Redwater is that in the case of a bankruptcy, the assets will not be available or certainly not on a preferential basis. The assets will first be used to satisfy the rights of secured creditors. Thus the second major premise underlying the AER’s liability management scheme is fundamentally flawed. The only assets that we can be assured will be available in an insolvency are those security deposits held by the AER.
The second major premise is flawed because the provincial rules that assume the availability of the assets are unconstitutional. They are unconstitutional because of an operational conflict with the BIA.
There is of course no doubt about the validity of the provincial laws that make up the AER’s liability management scheme (see para 93). The question for present purposes is whether elements of those rules are inoperable by virtue of the doctrine of paramountcy. There are two branches of the paramountcy test. The Supreme Court of Canada put the test this way in Alberta (Attorney General) v Maloney, 2015 3 SCR 327, 2015 SCC 51, at para. 18:
A conflict is said to arise in one of two situations, which form the two branches of the paramountcy test: (1) there is an operational conflict because it is impossible to comply with both laws, or (2) although it is possible to comply with both laws, the operation of the provincial law frustrates the purpose of the federal enactment.
In his judgement, Chief Justice Wittmann canvassed three possible conflicts. (1) Is there a conflict between the trustee’s power to renounce and continuing liability under provincial legislation? (2) Is there a conflict between the distributional scheme mandated by the BIA and the allocation of resources required by provincial legislation? (3) Is there a conflict between the scheme of the BIA and the AER’s rules and practices with respect to the approval of licence transfers?
Is there a conflict between the trustee’s power to renounce and continuing liability under provincial legislation?
Section 14.06 of the BIA allows a trustee to renounce or disclaim any interest in real property that is affected by an environmental clean-up order. There is no similar opportunity to disclaim under the provincial legislation. A licensee has a continuing liability under the provincial rules and a licensee is defined to include “a trustee or receiver?manager of property of a licensee” (OGCA, s 1). Accordingly, there is an operational conflict between the BIA and the provincial statutes insofar as the trustee would remain liable notwithstanding its renouncement. Chief Justice Wittman summarized his conclusion as follows (at para 156):
In the result, the Trustee is not a licensee of the renounced assets, ought not to be required to assume any liabilities, and is not bound by the Abandonment Orders relating to the renounced assets in seeking approval of the sales process to market and sell the assets remaining under its possession and control of. In other words, so long as the Trustee renounces the affected property in accordance with section 14.06(4), the AER cannot attempt to impose on the Trustee the obligation to remediate the renounced property by performance or posting security. In addition, the effect of section 1 of the OGCA and the Pipeline Act is to remove the benefits otherwise available in a renunciation and thus frustrates the purpose of section 14.06 of the BIA. Despite renouncing, a receiver would have to assume control of the remediation activities and incur the very risks that section 14.06 of the BIA is designed to avoid, which may lead to trustees refusing mandates where there are potential liabilities if they have to comply with abandonment orders.
Is there a conflict between the distributional scheme mandated by the BIA and the allocation of resources required by provincial legislation?
If given full effect, the provincial laws would require the trustee to carry out the abandonment operations in priority to satisfying the claims of secured creditors. In order to determine whether that gives rise to a conflict it is first necessary, as the majority of the Supreme Court of Canada put it in Newfoundland and Labrador v AbitibiBowater Inc, 2012 SCC 67 (CanLII) (at para 17), “to determine whether an environmental order [the abandonment order in this case] that is not framed in monetary terms is in fact a monetary claim.” It is only if the order is a monetary claim that there is a conflict.
Justice Deschamps on AbitibiBowater suggested that the provisions of the BIA offered a three part test for determining whether an environmental order should be so treated (at para 26, emphasis in the original): “First, there must be a debt, a liability or an obligation to a creditor. Second, the debt, liability or obligation must be incurred before the debtor becomes bankrupt. Third, it must be possible to attach a monetary value to the debt, liability or obligation.” Chief Justice Wittmann applied that test here, noting that both the AER and the OWA conceded (at para 164) that the first two elements of the test were satisfied.
As for the third element, the record was somewhat mixed. Indeed Chief Justice Wittmann suggested that “The answer is no in a narrow and technical sense, since it is unclear whether the AER will perform the work itself or if it will deem the properties subject to the orders, orphans. If so, the OWA will probably perform the work, although not necessarily within a definite timeframe.” However he went on to conclude that the orders should be treated as monetary claims since:
 … the situation does meet, in my opinion, what was intended by the majority of the Court in AbitibiBowater. Compliance with the orders would require the Trustee and Receiver to expend funds by way of security that would be used to perform the abandonment work. The effect is that if the obligations to remediate property are fully complied with by the Trustee within this bankruptcy context, the claim of the Province for remediation costs will be given a super priority not provided for under section 14.06. The creditors deprived of the usual order of priority in bankruptcy will be subject to a “third-party-pay” principle in place of the “polluter-pay” principle. The history of amendments to the BIA in this case shows that Parliament intended that the priority of creditors as provided under section 14.06, and thus the distribution of funds, ought not to be disturbed by provincial legislation. In the result, I find that although not expressed in monetary terms, the AER orders are in this case intrinsically financial.
 In this case, the obligation to comply with the orders directly affects Redwater’s estate. Indeed, the obligation to comply with the orders requires payment of or the posting of security for, the abandonment costs to the AER in priority to all other creditors. Those actions frustrate the primary purposes of the BIA. These costs are not a sanction of regulatory nature, but would have a direct effect on the scheme of distribution provided under the BIA.
It is worth observing that Chief Justice Wittmann has effectively concluded here that an abandonment order ought to be treated a monetary claim so as not to undermine the scheme of the BIA. It is very much an example of result-oriented or consequentialist reasoning.
Once it is determined that an order is a monetary claim, then it follows that the AER’s efforts to enforce that claim in priority to the claims of secured creditors frustrates the scheme of s 14.06 of the BIA, both generally, as well as several of its specific provisions. At the general level Chief Justice Wittmann observed that Parliament had addressed its mind to the priority to be accorded to environmental orders. The specific provisions designed to give effect to that ordering of priority were inconsistent with the provincial rules. For example, s 14.06(6) provides that once a trustee has disclaimed property, any costs associated with remedying the condition of the disclaimed property cannot rank as costs of administration. Instead, Parliament had decided (s 14.06(7) & (8)) that the monetary claim of a provincial regulator such as AER/OWA would be entitled to security, but only as against the particular property and not more generally against the assets of the bankrupt.
Is there a conflict between the scheme of the BIA and the AER’s rules and practices with respect to the approval of licence transfers?
It followed from the above that any scheme adopted by the AER which allowed it to continue to take into account disclaimed properties in deciding whether to consent to the transfer of licences is also inconsistent with and frustrates the purposes of the BIA. Such a scheme (at para 178):
… has a direct financial impact on all creditors. Under the guise of simply exercising its regulatory powers, the AER is ensuring that the polluter or its licensee will pay for the environmental damages, which is certainly a very important concern. In other words, if the property is found to include that which was renounced by the receiver, Directive 006 still frustrates the purpose of section 14.06 of the BIA by including renounced assets in its calculation for determining the approval of a sale. The effect of section 14.06 is that renunciation is possible, with the purpose of protecting the trustee and receiver with the ultimate goal of equitable distribution, and as such, provincial legislation that interferes with this purpose amounts to frustration of intent.
The decision is under appeal. I understand that the parties have been able to secure a September date for a hearing in the Court of Appeal and it is reasonable therefore to think that we might have a decision by the end of the year. The AER and the OWA will face an uphill battle since they will need to succeed on all three of the adverse rulings outlined above. While Chief Justice Wittmann may have equivocated on the question of whether an abandonment order in Alberta is a regulatory requirement or a monetary claim, and while his reasoning on that point may be open to question, success on this issue alone will not be enough to save the integrity of the AER’s liability management scheme, which has clearly been badly compromised and needs an overhaul. And this time the overhaul should not be some behind-the-doors deal between the AER and representatives of the oil and gas industry but should be subject to rigorous public scrutiny.
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By: Jonnette Watson Hamilton
Case commented on: Alberta v Greter, 2016 ABQB 293 (CanLII)
The September 2012 decision of Meads v Meads, 2012 ABQB 571, established a continuum of litigants, ranging from very commonly encountered self-represented litigants, to infrequently encountered vexatious litigants, through to the highly unusual sub-set of vexatious litigants that Associate Chief Justice J.D. Rooke labelled “organized pseudo-legal commercial argument” or OPCA litigants. For a number of reasons, it can sometimes be easy to conflate these categories. Vexatious and OPCA litigants are almost always also self-represented. And a few of the OPCA concepts and strategies that Justice Rooke described in Meads might the part of the ordinary self-represented litigant’s way of coping with unfamiliar legal processes, documents and jargon. In addition, the rising tide of self-represented litigants can be overwhelming for judges, trying their tolerance and patience. All of this has been documented in the research reports of the National Self-Represented Litigants Project (NSRLP). But whatever the reasons, conflating these categories is almost always detrimental to the ordinary individual who represents him- or herself in court simply because they have no choice. Although there are not enough facts set out in the judgment of the Master in Chambers, Sandra Schulz, to be sure, I wonder if Angela Greter, the defendant in Alberta v Greter, is simply an ordinary self-represented litigant and not the OPCA litigant questioning the authority and legitimacy of the courts that Master portrayed her to be.
Alberta v Greter is a straight-forward case, involving a simple claim by the Province of Alberta for repayment by Ms. Greter of almost $70,000 in student loans that she had received between 2004 and 2012. Ms. Greter had completed her PhD, with a focus on animals significant to food production, from the Department of Animal Biosciences at the respected University of Guelph (ranked fourth in the world for veterinary science) in December 2012. Her student loans therefore became repayable, after a standard six-month grace period, in July 2013.
When the Province of Alberta sued Ms. Greter in June 2015, she had not made any payments on her student loans. This is not that unusual; according to the most recent Canada Student Loans Program review, default rates on Alberta student loans were between eleven and fourteen percent annually before drop in oil prices in late 2014. Ms. Greter filed a Statement of Defence in August 2015.
The Province applied for summary judgment in March 2016, arguing that Ms. Greter had breached her agreement to repay her student loans and had no defence to the Province’s claim. The goal of a summary judgment application is to persuade the court that the other party has no chance of success and judgment should be given against them without a trial. According to the NSLRP and their recent report on “The Use of Summary Judgment Procedures Against Self?Represented Litigants: Efficient Case Management or Denial of Access to Justice”, the number of summary judgment applications being brought against self-represented litigants increased by 1160% between 2004 and 2014, and, if the summary judgment application was brought by a party represented by a lawyer, as was the Province of Alberta in this case, the success rate in 2014 was 96%.
The Province’s summary judgment application was first set to be heard May 2, 2016. Ms. Greter’s husband appeared and asked for an adjournment, and a two-week adjournment to May 16, was granted. When the Province’s summary judgment application was heard on May 16, it was uncontested; Ms. Greter did not appear or make any representations. Instead, she had advised the Province that she would not be appearing. Not surprisingly, the Province was granted its summary judgment for the student loans, interest and costs of $3,000, all based on the affidavit evidence it filed.
That sounds simple and speedy enough. The province waited two years to sue after the loans became repayable. Once the Province sued and a Statement of Defence was filed in a timely manner, the Province waited a further nine months to bring their summary judgment application. Their summary judgment application was heard, uncontested, on a date only two weeks after it was first scheduled by the Province to be heard. It seems to have been the only application made by either party in the action. The hearing itself probably would have been relatively brief because it was uncontested. The Master’s written decision followed the application just over one week later, giving the Province everything it asked for.
So why did the Province say that Ms. Greter had used “freeman on the land” tactics before and during the litigation? (para 3) And why did Master Schulz accuse Ms. Greter of using strategies that Meads v Meads categorized as Organized Pseudolegal Commercial Arguments “which appear with troubling frequency in Canadian courts” and which are “a simply worthless scam that only causes harm and waste to all involved” (para 10)?
Apparently Ms Greter sent the Province two documents and a copy of a letter and she filed one document in the Province’s court action. All were included in the Province’s affidavit evidence and all were either quoted at length or attached as appendices to Master Schulz’s judgment: a “Notice of Default” dated December 8, 2013 (Appendix A); a “User Agreement Fee Schedule Notice” dated February 22, 2014 (Appendix B); a copy of a letter dated February 28, 2014 to a collection agency (para 26); and a “Rebuttal to Service Alberta, Crown Debt Collections” (Appendix C).
There is no question that these four documents adopt the form and content of some of the typical OPCA documents described in Meads v Meads. Master Schulz described the “Notice of Default” as a “foisted unilateral agreement debt elimination scheme” (paras 11-22), described in Meads v Meads (paras 447-72, 487-504) and Bank of Montreal v Rogozinsky, 2014 ABQB 771 (CanLII). The “User Agreement Fee Schedule Notice” is an example of another type of foisted unilateral agreement which purports to set penalties and costs for interactions between litigating parties in advance (paras 23-25), also described in Meads v Meads (paras 505-23). The copy of the letter to the collection agency was an example of the “double/split person” OPCA strategy (paras 26-28), also detailed in Meads v Meads (paras 417-46). Lastly, the one court document filed by Ms. Greter, the “Rebuttal to Service Alberta, Crown Debt Collections”, followed up on her earlier Notice of Default (para 29).
Based on the OPCA strategies evident in these four documents, the Master concluded that Ms. Greter had no viable defence and that “[s]he has simply attempted to deny and evade her obligations to repay the government loans that financed her education and present career” (para 30).
But was there nothing at all of substance in the three documents that Ms. Greter sent the Province and the one document that she filed with the court?
Ms. Greter appears to have had two issues with the Province’s claim. The first related to her understanding that she would receive $20,000 in loan relief. Apparently a change in the student loan relief program restricted the amount of her loan that was forgiven to $6,000 (para 9). Ms. Greter and Student Aid Alberta exchanged emails and correspondence about this issue in 2013. There is no indication in the judgment that there was anything unusual or amiss with the exchanges in 2013 on this issue. And this issue is not explicitly mentioned in the four documents appended to or quoted in the judgment. This issue appears to be irrelevant to the charge of using OPCA strategies.
The second issue is at the heart of the OPCA accusation and more difficult to discern in the midst of all of the incomprehensible language and concepts included in Ms. Greter’s four documents. The copy of the letter to an unnamed collection agency provides a hint. And the Student Aid Alberta website, under “Default Consequences”, warns that there are “serious consequences” if a recipient of student loans misses payments. One of the listed serious consequences is that “Your loans will be sent to a collection agency.” Now “sent to a collection agency” might mean sold to a collection agency at a discounted price, making the collection agency the owner of the debt. Or it might mean that the Province remains the owner of the debt and simply pays the collection agency a fee or percentage of any amounts recovered. Ms. Greter’s documents indicate that she was concerned that the Province had sold her debt to the collection agency.
For example, her “Notice of Default” includes, in paragraph 2, a request for “Proof of claim that the Student Aid Alberta Service Centre is the current holder of the above mentioned original debt instrument and that it has not been on-sold to another party” (Appendix A). The other demands in this document, such as the request for an accounting for the Province’s loss and for production of the original promissory note, are understandable if the concern is that the Province sold her debt to a collection agency. The “Rebuttal to Service Alberta, Crown Debt Collections” (Appendix C) essentially looks for the same things. The letter to the collection agency is much more bizarre but it does include a claim that Ms. Greter did not agree to pay the collection agency (para 26).
It is true there is nothing at all relevant to this issue in the “User Agreement Fee Schedule Notice” (Appendix B). The “User Agreement Fee Schedule Notice” is inexplicable except as a part of a package of materials, the rest of which seemed to be relevant to a concern that the Province had sold the debt. Although totally over-the-top in many ways (such as the demand for a billion dollars in silver “if injected or any private organic matter such as blood/tissue or DNA samples are forcibly removed from me under duress”), part of the “User Agreement Fee Schedule Notice” does resemble “Schedule C: Tariff of Recoverable Fees” in the Alberta Rules of Court, AR 124/2010.
But what about the substance of Ms. Greter’s concern that the Province had sold her debt to a collection agency? Master Schulz does deal with this issue. She states that “[s]ale of a debt, or “securitization” is irrelevant to whether the original creditor may enforce that debt” (para 18) and she cites five cases as authority for that statement of the law. However, none of those five cases appears to be good authority for the proposition that the sale of a debt by the original creditor is irrelevant to whether that original creditor may enforce the debt.
Three of the cases that Master Schulz cites are from the province of Quebec and appear to be decided under the provisions of the Civil Code of Québec rather than the common law that governs debt collections in Alberta: Banque Royale du Canada c Tremblay, 2013 QCCQ 12827 (CanLII) at para 15, affirmed 2013 QCCA 2035 (CanLII) at para 7; Banque de Nouvelle-Écosse c Paquin, 2014 QCCQ 10119 (CanLII); and Xceed Mortgage Corporation/Corporation hypothécaire Xceed c Pépin?Bourgouin, 2011 QCCS 2116 (CanLII) at paras 15-25. In addition, Banque Royale du Canada c Tremblay deals with bank securitization of credit card debt and Pépin?Bourgouin merely states that if the debt in that case had been sold, different evidence was needed, but Xceed denied selling the debt (paras 21-22). The point for which the fourth case, Bank of Nova Scotia v Lee, 2013 ONSC 6698 (CanLII) at paras 9, 12, was cited was also irrelevant to the issue. Lee alleged that a mortgage included a promissory note which had been assigned, but the evidence showed there was neither a note nor an assignment. The court held that even if the Bank’s mortgage portfolio had been securitized, the mortgage itself would still be valid. It said nothing about who should be paid, and deals with a different factual scenario, mortgages. The fifth case, Bank of Montreal v Rogozinsky, 2014 ABQB 771 (CanLII) , again involves an argument about credit card debts being monetized and sold on the bond market for multiples of their original value. The main point (at para 46 in Rogozinsky) was that the source of the loan was irrelevant to whether the debtor had to repay it. Like the other four cases, it says nothing about who the debtor had to pay. None of these cases discuss whether the debts at issue were assigned and notice of the assignment given to the debtor.
Of course, the Province probably does not sell its unpaid student loans to collection agencies. It more likely pays collection agencies on an hourly or other basis to collect the debt. But it is surely understandable that if a person is being chased by both a collection agency and Student Aid Alberta, the question of who to pay to satisfy the debt might easily arise. In any event, it appears that Ms. Greter talked to a lawyer for the Province a few weeks ago and is satisfied that the province is still the debt holder: see Douglas Quan, “Graduate slammed for invoking ‘pseudolegal’ tactics to avoid repaying $64,000 student loan”, National Post, May 31, 2016.
According to that newspaper article, Ms. Greter believes that the court “grossly misrepresented” what she was seeking. All she wanted was assurance from the Province it was still the debt holder and that it hadn’t sold the debt to another party. And because, like most self-represented litigants, she could not afford a lawyer right after graduating, she turned to the Internet. In this she was not unusual. About one-third of Canadians confronted with everyday legal problems, such as debt problems, do search online for help: Trevor C.W. Farrow et al., Everyday Legal Problems and the Cost of Justice in Canada: Overview Report (Toronto: Canadian Forum on Civil Justice, 2016) at 7-9. But as the Final Report of The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants noted (at 10), there are significant limitations and deficiencies to this on-line material. Like the Court Guides Assessment project it references, this NSRLP report found that there are a multiplicity of websites offering legal information, most using jargon and unexplained legal terms, often with no means of differentiating which is the most legitimate. One might think that Ms. Greter should be better equipped than many self-represented litigants to distinguish bad information from good, given her PhD, but those of us inured to the legal profession’s jargon and concepts tend to forget (unless we teach Property Law to first year law students) just how incomprehensible and mystifying the language and procedures of the law can be.
The newspaper article states that Ms. Greter feels that “this ruling really misrepresents my side. … I’m concerned by how this could be misinterpreted in the public arena.” Apparently she is considering an appeal, even though the same article also states that she has set up a repayment plan. There seems to be no doubt that the Province is owed what Master Schulz ordered they be paid. An appeal would be hopeless ? and perhaps seen as vexatious. And Master Schulz did not misrepresent the four documents that Ms. Greter sent the Province or filed with the court. They used OPCA strategies and concepts, they have been debunked by dozens of recent cases and, as Meads v Meads and every case since Meads v Meads has made more than clear, their use does attract strong sanctions and penalties. And frankly, the newspaper article, which repeats Master Schulz’s critiques as well as Ms. Greter’s concerns, gives far more publicity to her experience in this case than did the Master’s judgment itself.
Nonetheless, there are aspects of Master Schulz’s judgment ? in addition to the lack of authority for the substantive point about who to pay ? which are cause for concern.
One is the identification of Ms. Greter with the Freemen-on-the-Land. Apparently in its arguments before Master Schulz, the Province alleged that “Ms. Greter had also used ‘freeman on the land’” tactics before and during the collection litigation” (para 3). Freemen-on-the-Land is one of six categories of OPCA litigants identified in Meads v Meads. Justice Rooke describes them as a Canadian movement whose membership’s focus is strongly anti-government, with libertarian and right wing overtones (Meads v Meads at para 172). That anti-government focus is lacking in the documents appended to or quoted by Master Schulz in this case. Just why Ms. Greter’s documents or actions attracted that label from the Province, or why it was repeated by Master Schulz, is unclear.
Another is Master Schulz’s description of Ms. Greter’s documents as disclosing OPCA strategies and concepts that are worthless scams “that only causes harm and waste to all involved” (para 10). While the “harm and waste” point may be true in almost all litigation involving OPCA litigants, there is little evidence of either in this case. I have already detailed the steps in this case and how they seemed simple and speedy enough, with the Province getting everything it asked for, without a contest, within two weeks of the initial date set for hearing its application, and they did so on the basis of the evidence in one affidavit. If there was any waste or harm, it is not disclosed in the judgment (and the Province did not seem shy about putting forward other OPCA evidence). There is little in the judgment to suggest that Ms. Greter pursued the OPCA strategies beyond delivering three documents to the Province before the court action was started and filing one with the Court. It seems she did publish her “User Agreement Fee Schedule Notice” on a website, but Master Schulz indicates she did not attempt to actually use that document (para 25). Compared to the dozens of cases summarized in Meads v Meads, the use of OPCA strategies in this case seems minimal.
Finally, and building on the Master’s threat of “punitive steps” and sanctions “such as being declared a vexatious litigant” had Ms. Greter attempted to use the “User Agreement Fee Schedule Notice” (para 25), there is the concluding paragraph of the judgment, where Master Schulz talks directly to Ms. Greter:
As a final note to Ms. Greter, I caution her against further attempts to use OPCA concepts. Alberta originally sought double costs in its Statement of Claim, but did not pursue elevated and punitive court costs in its oral submissions at the summary judgment application. If Alberta had maintained that claim I would have granted the double costs award sought, or ordered solicitor and own client indemnity costs against Ms. Greter. This reflects this Court’s categorical rejection of pseudolaw as a means to advance false claims or to frustrate the administration of justice, the operation of the courts, and the enforcement of legal obligations. (para 33)
Ms. Greter filed only one OPCA document with the court. Her husband asked for one adjournment on her behalf and she did not make any other interlocutory applications. She did not appear at the summary judgment application, even advising the Province that she would not be attending. Her concern with who owned her debt and who she should pay is explicable and not obviously a “false claim”. To state that these actions “frustrate the administration of justice, the operation of the courts, and the enforcement of legal obligations” seems to dramatically overstate the impact of those actions.
Whether Ms. Greter was an OPCA litigant deserving of the punitive court sanctions that Master Schulz would have granted, or an ordinary self-represented litigant who initially made some mistakes, is a question that cannot be easily answered based on the facts in the judgment.
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By: Alena Storton
Case Commented on: Pintea v Johns, 2016 ABCA 99 (CanLII)
In Pintea v Johns, 2016 ABCA 99 (CanLII), the majority, Justices McDonald and Veldhuis, and dissent, Justice Martin, strongly disagreed on whether to uphold a case management judge’s decision to dismiss a self-represented litigant’s cause of action. Valentin Pintea brought this case against Dale and Dylan Johns for damages related to a car accident that had left Pintea in a wheelchair. In May 2014, after considerable time in case management, the case management judge directed Pintea to provide a witness list as a means of preparing the case for trial. Pintea did not comply (at para 24).
In July 2014, the appellant moved residences, but did not file a change of address with the court as required by the Alberta Rules of Court (at para 25). Following this move, all documents were served on the appellant at his former address and were not forwarded to his new address. Consequently, the appellant failed to respond to or appear at all subsequent applications and case management meetings (at para 25). When the appellant failed to appear for a case management meeting on January 21, 2015, the respondent’s counsel requested that the Statement of Claim be struck. The case management judge agreed to strike the claim if the appellant failed to appear for a meeting on January 30, 2015. The case management judge directed the respondent to serve notice of these conditions on the appellant, but dispensed with the requirement for personal service. The respondent left the notice in the mailbox at Pintea’s former address, which, again, resulted in it not being brought to his attention (at para 26).
On January 30, 2015, the case management judge found Pintea in contempt of court for having failed to obey earlier court orders and attend as directed. For those reasons, the trial management judge dismissed the case and awarded over $82,000 in costs to the respondent (at paras 27-28). This dismissal and costs award was served at Pintea’s former address, but on this occasion, it was also sent to his email. The appellant received the email and began this appeal, which asserted that the application documents regarding the January 30, 2015 case management hearing were improperly served at his former address and, by implication, expressed his wish for the action to be restored (at paras 5-6). In response to the appeal, the respondent applied to adduce fresh evidence to support an assertion that the appellant had engaged in “mischief” after his claim was struck by presenting documents that were falsified to suggest that he had filed a timely change of address with the court.
The Alberta Court of Appeal addressed two issues: whether Pintea had filed the requisite change of address and whether the case management judge’s decision to dismiss his claim was reasonable. Applying the Palmer test (at para 10, citing R v Palmer  1 SCR 759), the majority allowed the Dales to enter evidence from the Court of Queen’s Bench support staff members that, despite Pintea’s assertion, they had not received an address change from him (at para 17). It further found that it was reasonable for the case management judge to deem service at Pintea’s claim address to be sufficient and strike the claim for a failure to obey orders and appear. Finally, it noted that notwithstanding the fact that Pintea had no counsel, he was required to follow the Rules of Court, including filing the change of address notification (at para 20).
In his dissent, Justice Martin focussed on Pintea’s personal circumstances and his self-representation. He did not find Pintea’s alleged document falsification relevant and would have referred the matter back to the case management judge to determine whether the mischief had occurred (at para 31). Justice Martin also found that the Statement of Claim was struck solely due to a failure to comply with a procedural matter (at para 32).
Further, Justice Martin concluded that the consequences of dismissing the appeal would be excessively punitive, particularly because the appeal made it clear that the appellant’s failure to appear was due to him being unaware of the meetings rather than an act of contempt. According to Justice Martin, a dismissal would result in the Court not reinstating a viable claim that could have resulted in significant damages for the appellant. In Justice Martin’s words, “now instead, this disabled, unemployed man is saddled with a cost award of almost $83,000” (at para 34). Due to this disproportionate result for a failure to comply with a procedural order, the dissent would have reinstated the Statement of Claim and set aside the order of costs.
This case likely does not provide strong precedential value, given the evidence that indicated that the appellant attempted to provide evidence that fraudulently gave the impression that he had properly notified the Court of a change of address. This case, however, does present a prime example of the courts grappling with the issue of how to approach decisions that primarily turn on the competency of self-represented litigants to participate in a trial process.
In this case, the majority was not willing to give any leniency to Pintea for being a self-represented litigant. Instead, the majority expected every party to follow the Rules of Court, regardless of whether the person was self-represented. With all due respect to these justices, I believe that it is unreasonable to expect self-represented litigants to know, understand, and comply with every procedural requirement, particularly as lawyers go through years of training to be able to find and understand all of the legal requirements applicable to a given case.
In the face of longer and more expensive legal proceedings, self-representation has increasingly become the most viable option for people who cannot afford to retain legal counsel for the amount of time required to conclude a case (An Overview of Self-Represented Litigation Innovation, Its Impact, and an Approach for the Future: An Invitation to Dialogue, at p 521). This results in an increasing number of people who are untrained and largely inexperienced with the legal system trying to navigate court processes. Disregarding the special circumstances of these individuals attempting to participate in a trial process that is inherently complicated and includes many diverse procedural requirements would likely result in a trial that is skewed in favour of a party that is able to retain counsel.
Although I disagree with the majority’s conclusion that all litigants should be equally expected to comply with the Rules of Court, I also cannot agree with Justice Martin’s reasoning for reinstating the case. I find that Justice Martin overstepped the boundaries of impartial decision-making by exercising broad discretion when interpreting the case management judge’s written decision and applying retroactive reasoning, all seemingly to avoid saddling this disabled, unemployed man with a cost award of almost $83,000 (at para 34).
Justice Martin interpreted the case management judge’s decision as primarily being based on the appellant’s failure to appear, saying “I cannot think his failure to file a witness list or take such other procedural steps as required would have made a significant contribution to the decision to strike the statement of claim” (at para 32). The case management judge’s written decision, however, contains no suggestions that the judge elevated the failure to appear over the failure to comply with previous orders as a basis for striking the claim. The judge simply states, “I do find him to be in contempt of court for having failed to obey my earlier court orders and failing to attend as directed” (at para 27).
Beyond interpreting where the emphasis lay in the previous decision, Justice Martin also found the knowledge that the Court gained through the appeal to be quite persuasive. Although he noted that it was understandable that the case management judge would conclude that Pintea’s failure to appear indicated his abandonment of the case, Justice Martin determined that Pintea would have continued to attend case management meetings if he had received notice (at paras 32-33). This conclusion seemed to be based solely on the information that the Court gained through this appeal – that Pintea had not received notice and was not acting in contempt of court. Justice Martin’s conclusion ignored the fact that the case management judge was not aware of those circumstances and did not address whether the decision was reasonable in light of information that was available to the case management judge at the time of the dismissal.
Overall, I believe that this liberal interpretation of the case management judge’s reason for striking the claim and attention to details that only became clear through the appeal process demonstrates that Justice Martin exercised outcome-oriented decision-making. It seems that Justice Martin focussed on these aspects of the case in order to avoid dismissing this self-represented litigant’s appeal due to a failure to comply with a procedural requirement.
After careful consideration of the judgements in this case, I find that I am at the mid-point along a spectrum that is bounded by the decisions of the majority and dissent. Along the lines of Justice Martin, it seems prudent to create a mechanism for accommodating the special circumstances and often pressing cases of self-represented litigants in order to face the reality that self-representation is becoming increasingly prevalent. However, the appropriate time for accommodating these special circumstances must be carefully evaluated.
The Alberta Court of Appeal addressed the need for balance between supporting self-represented litigants and maintaining a fair trial in Malton v Attia, 2016 ABCA 130 (CanLII), while deciding an appeal regarding procedural fairness and reasonable apprehension of bias by a trial judge. The Court noted that judges have a responsibility to ensure that self-represented individuals are given fair access to and equal treatment by the court, which may include judges providing information regarding the law and evidentiary requirements. It is clear that this responsibility does not relieve self-represented litigants from the obligation to prepare their own case and familiarize themselves with court procedures (at para 31). Ultimately, the Court made the following statement about the balance between supporting self-represented litigants and maintaining a fair trial:
While a trial judge may, therefore, allow some leeway to the self-represented litigant and provide some assistance, particularly in procedural matters, he or she must not become an advocate for the litigant. Nor can a trial judge allow assistance to a self-represented litigant to override the right of a represented litigant to a fair trial (at para 34).
The Court went on to reaffirm the importance of judicial impartiality. It determined that a judge must be free from actual bias, as well as seen as being free from bias in order to avoid a reasonable apprehension of bias (at para 81).
Similar to the majority in Pintea, I am of the opinion that the decision-making process undertaken by judges during a hearing is not the appropriate time to accommodate the special considerations of self-represented litigants. A judge providing the assistance that generally would be required for a self-represented person to effectively participate in a trial would likely fall short of the dual mandate in Malton, which is providing self-represented litigants with enough support to meaningfully access the court system and ensuring that represented litigants receive a fair, impartial trial.
Self-represented litigants often need extensive pre-trial support, as was seen in Pintea. In an already heavily loaded court system, judges are not well positioned to provide this type of extensive pre-trial support. On the other hand, during a trial, a judge would need to be cognizant of the personal characteristics and needs of a self-represented litigant in order to provide appropriate assistance and information on legal and evidentiary requirements. This sort of focus on the self-represented litigant’s situation may lead to outcome-oriented decision-making as a means of compensating for the self-represented person’s circumstances, a method which Justice Martin seemed to follow in Pintea. This focus would likely go beyond giving self-represented individuals meaningful access to the courts. Instead, it would infringe on a represented party’s right to a fair trial that is based on the merits of the case. As a result, a judge providing assistance and information to a self-represented litigant during a trial would likely be seen as favouring that party and lead to a finding of reasonable apprehension of bias.
Given the need to assist self-represented litigants and to avoid potential judicial bias, I am of the opinion that the appropriate time to accommodate the special considerations of self-represented litigants is during pre-trial case management. In particular, an expansion of the Case Management Counsel program to help facilitate civil cases that involve at least one self-represented individual would likely go a long way toward supporting their participation in the legal system, while ensuring that courts do not become unnecessarily encumbered with litigants who cannot effectively navigate procedural requirements.
Case Management Counsel (CMC) began as a two-year pilot project at the Alberta Court of Queen’s Bench in Edmonton and Calgary in 2011 (The Advisory, p 14). The purpose of CMC was to “assist in the orderly, proportionate, focused and expeditious handling of civil files (including family) streamed into case management” (Court of Queen’s Bench of Alberta Notice to the Profession, p 1). The responsibilities of CMC included “assisting to narrow [and/or] resolve issues, assisting with scheduling and the development of litigation plans, providing guidance to parties… vetting applications to ensure parties are in a position to proceed, [and] monitoring and assisting in the management of litigation” (Court of Queen’s Bench of Alberta Notice to the Profession, p 1).
Following the pilot project, CMC was established as a permanent program at the Court of Queen’s Bench in Edmonton and Calgary. Currently, CMC may only oversee cases that have been formally assigned into case management (Case Management Counsel in the Court of Queen’s Bench). In addition, only family law cases that are high conflict and involve at least one self-represented person are eligible for CMC in Calgary. In Edmonton, however, any civil law case, regardless of whether there is a self-represented litigant, may be managed by CMC (Case Management Counsel in the Court of Queen’s Bench). These cases may be referred to CMC either by the Calgary Chief Justice or the Edmonton Associate Chief Justice after the case has been sent to case management and prior to the case being heard by a case management judge, or by a case management judge during case management (Case Management Counsel in the Court of Queen’s Bench).
Case Management Counsel could be used to provide self-represented litigants with the support and knowledge needed to comply with complex procedural requirements and appropriately complete all applications and orders in a timely manner. In this way, CMC could take much of the guesswork out of court processes for self-represented individuals, while ensuring that cases efficiently move forward. Utilized in this manner, CMC appears to be an ideal mechanism for accommodating the inexperience and lack of training of self-represented litigants without jeopardizing the position of either party at trial. Accordingly, the CMC program should be expanded to more court centres and civil cases with at least one self-represented individual should generally be referred to CMC as a means of enabling self-represented litigants to more easily and effectively participate in the legal system.
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By: Nickie Nikolaou
Case Commented On: Thomas v Edmonton (City), 2016 ABCA 57 (CanLII)
Disputes between developers of new residential properties and landowners, especially in the context of mature neighborhoods, are common when variances are sought from local land-use bylaw standards. In Thomas v Edmonton (City), the Court of Appeal tipped the scales slightly in favor of landowners where the bylaw mandates community consultation. The Court held that where a development standard variance is required, and the applicable zoning bylaw mandates community consultation, that consultation is a condition precedent to obtaining a valid development permit. Moreover, the Subdivision and Development Appeal Board (SDAB) has no authority to waive the requirement.
This was an appeal from the issuance of a development permit to the developer of a condominium complex known as “Sylvancroft” in Groat Estates, Edmonton. The respondent on the appeal was the developer The House Company Ltd. (House Co.), and the appellants were five residents of the Groat Estates neighborhood whose properties back on to Sylvancroft.
After Sylvancroft was subdivided, House Co. sought and obtained a series of development permits from the City for single family dwellings within Sylvancroft, which is zoned as RF3 (Small Scale Infill Development) under the City of Edmonton’s Zoning Bylaw 12800. However, Groat Estates falls within the geographical area to which the Mature Neighborhood Overlay (“Overlay”) in the Zoning Bylaw applies. Generally, the Overlay imposes specific requirements for new low density residential housing in mature neighborhoods. House Co. had already applied for variances for three developments in Sylvancroft, and in each case, the variance and development permit was granted.
This appeal relates to House Co.’s fourth proposed variance in Sylvancroft. The proposed development, a single detached house, did not comply with the Overlay regulations in the Zoning Bylaw in regard to setback requirements, and House Co. applied for a variance. The express purposes of the Overlay are to ensure that new low density development in Edmonton’s mature residential neighborhoods is sensitive in scale to existing development, and ensures privacy and sunlight penetration for adjacent properties.
Section 814.3(24) of the Zoning Bylaw required House Co. to conduct a community consultation. As summarized by the Court:
In short, where a proposed development does not comply with the Overlay regulations, the applicant must consult with all assessed owners of land within 60 metres of the development, discuss requested variances, document any concerns of affected parties and what modifications were made to address these concerns and submit this documentation to the Development Officer. (at para 7)
House Co. decided not to conduct a community consultation for its fourth variance application. It had spoken to the appellants in regard to the three prior applications, and decided that to do so again would be “a waste of time” (at para 8). The Development Officer denied House Co.’s application on the basis that the development failed to comply with the specified setback requirements in the Overlay, but did not order community consultation to be undertaken. House Co. appealed the decision to the SDAB. The SDAB allowed the appeal and granted the development permit by exercising its discretion to grant variances to setback requirements under section 687(3)(d) of the Municipal Government Act, RSA 2000, c M-26 (MGA). It did not, however, require community consultation prior to doing so. The question on appeal was whether the SDAB had the authority to waive the requirement for community consultation in the Zoning Bylaw.
The answer turned on the proper interpretation of section 687(3)(d) of the MGA. This section empowers the SDAB to grant development permits even when a proposed development does not meet the requirements of a land use bylaw. It reads as follows:
(3) In determining an appeal, the subdivision and development appeal board (…)
(d) may make an order or decision or issue or confirm the issue of a development permit even though the proposed development does not comply with the land use bylaw if, in its opinion,
(i) the proposed development would not
(A) unduly interfere with the amenities of the neighborhood, or
(B) materially interfere with or affect the use, enjoyment or value of neighboring parcels of land
(ii) the proposed development conforms with the use prescribed for that land or building in the land use bylaw.
Does the phrase “even though the proposed development does not comply with the land use bylaw” in this section encompass both substantive (i.e., physical development standards like setbacks) and procedural requirements (e.g., community consultation), or just substantive physical standards? The SDAB took the view that it included both. In other words, it had the authority to waive both procedural and substantive requirements under the Zoning Bylaw. In its view, House Co.’s failure to comply with the mandated community consultation (a procedural requirement) “did not, in of itself, materially interfere with the amenities of the neighborhood or materially interfere with or affect the use, enjoyment and value of neighboring parcels of land” (at para 11). It thus waived the requirement, allowed the setback variance, and issued the development permit.
A majority of the Court of Appeal disagreed. Writing for the majority, Fraser C.J. concluded that section 687(3)(d) does not empower the SDAB to waive the requirement for community consultation in the Zoning Bylaw. Rather, such consultation is a critical procedural requirement that must be fulfilled prior to the issuance of any development permit to which the Overlay applies.
The Court agreed that the applicable standard of review in this case was correctness. In its view, whether the SDAB has the authority under section 687(3)(d) to waive the required community consultation is a question of “pure statutory interpretation” (at para 17) that does not engage the expertise of the SDAB. The Board’s decision was therefore not owed any deference by the Court.
Fraser C.J., for the majority, conducted a careful and thorough review of the purposes of both the SDAB’s variance powers under the MGA and the requirement for community consultation in the Zoning Bylaw. She concluded that in the absence of apparent inconsistency, the MGA and the Zoning Bylaw should be interpreted in a manner that ensures harmony, coherence and consistency between them.
As every first-year law student knows, the starting point for statutory interpretation is the contextual or purposive approach. Ultimately, the goal is to uncover the intention of the legislator. Fraser C.J. noted that this search requires a consideration of the specific words in question, the scheme, purpose and structure of the part of the MGA in which the words are found, along with other legislation (including delegated legislation like the Zoning Bylaw) touching a similar or related matter. In that way, the overall objective of the specific enactment can be identified and fulfilled. (at paras 19-22)
Applying the contextual approach here, Fraser C.J. concluded that section 687(3)(d) does not grant the SDAB authority to waive compliance with the community consultation requirement for three key reasons. First, she held that a purposive and contextual interpretation of the relevant provisions in the MGA reveal that it is the “proposed development” itself that must not be in compliance with the land use bylaw for purposes of section 687(3)(d) (at para 31). She reviewed the relevant parts of the definition of “development” in the Act (i.e., “a building or an addition to or replacement or repair of a building and the construction or placing of any of them on, in, or under land”) and concluded that “…to engage the SDAB’s variance authority, it is the physical structure that must not comply with the relevant land use bylaw, not the failure to fulfill the procedural requirements for community consultation.” (at para 33; emphasis added) This interpretation was supported, in her view, by a review of the whole of section 687(3)(d), as well as other relevant sections in the MGA (in particular, section 640(6) which grants a nearly identical variance power to development officers) (at para 34).
Further, as she noted, “[a]llowing the SDAB (and by extension, a Development Officer) to waive the community consultation requirement would effectively render s. 814.3(24) of the Zoning Bylaw meaningless.” (at para 36) Under this approach, non-compliance with a community consultation could never, in itself “unduly interfere with the amenities of the neighborhood or materially interfere with or affect the use, enjoyment and value of neighboring parcels of land” (at para 36). Thus, there would never be a valid reason under section 687(3)(d) to not waive the community consultation requirement. This would effectively abolish the consultation requirement in the Zoning Bylaw, and such an interpretation must be rejected (at para 37).
Second, Fraser C.J. stated that her interpretation of section 687(3)(d) is supported by “compelling public policy justifications” for community consultation. She noted that community consultation exists for a reason and that a fair process is the “basis for public confidence in the legitimacy of all democratic processes, including those relating to planning and development of land” (at para 41). In her view, it would make little sense to waive a step in the development process that is intended to help determine whether a proposed development’s non-compliance with development standards should be waived in the first place. Having an applicant consult with the community provides necessary information to determine whether non-compliance with a bylaw development standard would in fact interfere with the “neighboring parcels of land” or the “amenities of the neighborhood”. This is especially so, she said, “where, as here, the requirement for community consultation is held out to members of mature neighborhoods as being a valid method of ensuring a proper balance between existing and new development.” (at para 42)
Fraser C.J. stated that the requirement is “not mere window dressing or a false promise to taxpayers in mature neighborhoods” (at para 42). Rather, all landowners to whom the requirement applies should have confidence that the rules will be applied fairly and equally. If the SDAB could waive the community consultation requirement, some landowners would receive the benefits of it, while others would not. This could not have been the intention of the City in passing the consultation requirement in the Zoning Bylaw.
Lastly, the majority of the Court held that the failure to conduct the required consultation constituted a breach of procedural fairness. An administrative decision that affects “the rights, privileges or interests of an individual” (see Baker v Canada (Minister of Citizenship and Immigration),  2 SCR 817) triggers a duty of procedural fairness on the decision-maker. While the content of the duty is highly contextual and varies depending on a number of factors, Fraser C.J. concluded that the existence of legitimate expectations was a critical factor in this case. She noted that where a claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness. (at para 50)
Here, the affected neighbors expected to be consulted and should have been. Since the Zoning Bylaw mandates community consultation in every instance where the Development Officer determines that the proposed development does not comply with the Overlay regulations, such landowners had a legitimate expectation that they would be consulted. The language in the Zoning Bylaw with respect to the community consultation requirement is “clear, unambiguous and unqualified” (at para 50). Evoking the seminal work of legal theorist Hohfeld, Fraser C.J. concluded that “[t]he corollary of a mandatory obligation on an applicant to consult affected landowners is a right, on the part of the affected landowners, to be consulted” (at para 50).
Fraser C.J. also rejected the argument that the breach of procedural fairness was “cured” by the appellants having participated in the hearing before the SDAB. (at para 54) Were this the case, developers would be encouraged, indeed entitled, to treat the community consultation as an unnecessary and time-consuming step. And affected persons may consciously choose to not attend the hearing at all. Neither result, to her mind, accords with the spirit, intent, and the language of the Zoning Bylaw. (at para 55)
Nonetheless, Fraser C.J. conceded that procedural or informational defects of an “insubstantial” or “minor” kind should not be allowed to thwart the development process. She noted that an efficient land development process is in the collective self-interest of a community, and that mechanisms exist under both the Zoning Bylaw and the MGA to ensure that “insubstantial procedural errors” and “technical irregularities” do not vitiate decisions made by a Development Officer and the SDAB. She noted also that the SDAB has “implicit authority regarding procedural defects” (at para 63) in the exercise of its discretion under the MGA. But none of these, in her view, empowered the SDAB to “waive” or “cure” the procedural unfairness inherent in the developer’s failure to comply with the mandatory community consultation in this case.
In his dissent, Slatter J.A. focused on the majority’s remarks about the SDAB’s procedural jurisdiction. In his view, once it is conceded that the SDAB is authorized to overlook procedural errors and irregularities, its jurisdiction to waive even a mandatory consultation requirement must be accepted. Either the SDAB has procedural jurisdiction under section 687(3)(d) or it does not. To his mind, there is no legal distinction between a community consultation procedure and any other procedure; either they all fall within the wording of section 687(3)(d) or none do. As he concluded, “[o]nce it is conceded that the SDAB has such a procedural jurisdiction, whether any particular procedural shortcoming is “insubstantial”, “minor”, or within the “margin of appreciation” is within the mandate of the SDAB.” (at para 81) And that decision is, presumably, subject to deference by the Court.
While Slatter J.A.’s approach is attractive for its simplicity, with respect, it fails to give effect to the clear and unambiguous mandatory language of the community consultation requirement in the Zoning Bylaw. The majority is correct to conclude that section 687(3)(d) must, except in the case of apparent inconsistency, be reconciled with the intent, purpose and language of the Zoning Bylaw. Were it otherwise, the SDAB could simply ignore any and all procedural dictates on the part of the delegated legislator. Surely the failure to comply with a mandatory direction in regard to community consultation is not a “minor” or “insubstantial” procedural breach in the development permitting process.
Moreover, as noted by the majority, the community consultation requirement in the Zoning Bylaw is intended to bring forth relevant information needed to assist development officers and the SDAB to determine whether the proposed variance will “unduly interfere with the amenities of the neighbourhood” or “materially interfere with or affect the use, enjoyment or value of neighboring parcels of land”. Mandating community consultation in one variance application but not in another would have the effect of negating the importance of information from affected landowners about the cumulative effects of separate variance applications. Because the SDAB typically evaluates each variance request on the basis of the community as it exists at the time of the hearing, this could have the effect of minimizing the cumulative impact of a series of variances on a mature neighborhood. As noted by the majority, community consultation is one way to mitigate this risk. It also encourages developers to make accommodations where possible to try to reduce opposition to a variance application.
That said, how far do the Court’s views on the importance of community consultation in this case extend? Certainly there is broad language here about the importance of consultation and the legitimacy of democratic processes. But it is unlikely these comments extend more generally, outside of situations where there is a clear mandated requirement for community consultation in a land use bylaw. And the comments clearly apply only to those landowners actually identified in the land use bylaw as being entitled to the consultation, not to the public at large.
So the Court of Appeal has slightly tipped the scales in favor of landowners in the development permit application process through this decision. But why only “slightly”? The result of this case was that the development permit was quashed and the matter remitted back to the SDAB, with a direction to ensure that House Co. completes the necessary community consultation. The consultation had to occur, but is there any requirement that the developer must accommodate the concerns brought forth? Probably not. While section 814.3(24) of the Zoning Bylaw requires developers to “document any opinions or concerns, expressed by the affected parties, and what modifications were made to address their concerns”, this language likely does not have the effect of requiring developers to actually accommodate the concerns in all cases. Such an interpretation would be hard to reconcile with the broad discretion given to development officers and the SDAB under the MGA to grant variances. Even the majority of the Court talked about consultation being an incentive for developers to make “reasonable” accommodations in response to affected landowner concerns. Ultimately, even if landowners are consulted, they may still get a decision they do not like – and that decision, unlike the one in this case, would be subject to a reasonableness standard of review that would attract considerable judicial deference.
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By: Jennifer Koshan and Drew Yewchuk
Cases commented on: Pintea v Johns, 2016 ABCA 99 (CanLII); Erdmann v Complaints Inquiry Committee, 2016 ABCA 145 (CanLII); JE v Alberta (Workers’ Compensation Board), 2016 ABCA 147 (CanLII); HH v DB, 2016 ABQB 164 (CanLII); Pickett v Walsh, 2016 ABQB 222 (CanLII); McCallum v Edmonton Frame and Suspension (2002) Ltd, 2016 ABQB 271 (CanLII); R v Cullen, 2016 ABQB 272 (CanLII); Alberta v Greter, 2016 ABQB 293 (CanLII); ET v Rocky Mountain Play Therapy Institute Inc, 2016 ABQB 299 (CanLII)
As the Coordinator and Student Assistant for ABlawg, we review all Alberta Court of Queen’s Bench and Court of Appeal decisions each week for their blogworthiness. During the month of May, we noted several cases dealing with issues related to access to justice and the courts’ role in and resources for dealing with self-represented litigants. Of course, resource issues do not only arise in cases involving self-reps. On June 1, 2016, Justice Berger of the Court of Appeal chastised counsel for parties to protracted litigation with the following words:
I would be remiss if I failed to express serious concerns for that which I perceive to be a disregard on the part of counsel for the limited resources available to the judiciary, particularly at a time when the courts are functioning with less than a full complement (Weatherford Canada Partnership v Kautschuk, 2016 ABCA 173 at para 7).
This statement refers to the fact that Alberta is short of both Court of Queen’s Bench and Court of Appeal justices. The need for the federal Minister of Justice to make judicial appointments to fill these vacancies and to create new positions given the increase in Alberta’s population has been commented on by Alberta’s Justice Minister Kathleen Ganley, as well as Chief Justice Neil Wittman of the Court of Queen’s Bench (see here and here). Chief Justice Wittman called the shortage a “crisis” as far back as October 2015, when he stated that the courts “are literally at the breaking point right now.”
In light of this crisis, it seems worthwhile to look at a snapshot of cases involving issues concerning access to justice, the impact of self-represented litigants on the courts’ resources, and how the courts have been handling such issues. Some of these cases will also be the subject of more detailed ABlawg commentary. Although the nine decisions covered by this post amount to what could be called “anecdata” – a term used by Nicole Aylwin at the recent Access to Social Justice Symposium in Calgary to describe some of the research of the Cost of Justice project – our hope is that it is still useful to round up a month’s worth of decisions to get a sense of the breadth and depth of the problems. The cases we look at here are probably just the tip of the iceberg – some of the courts’ decisions might be communicated orally and not result in written reasons. And, it is important to note that the decisions we comment on here say nothing about the many, many legal problems that never end up in court because the parties do not have the support or resources to litigate.
Issues on Appeal
Three decisions of the Alberta Court of Appeal deal with issues arising when self-represented litigants manage and assess the prospects of success of their own litigation.
In Pintea v Johns, 2016 ABCA 99 (CanLII), the appellant missed service of notice of a hearing before a case management judge because he had moved and failed to provide his new address to the respondents or the court. A majority of the Court of Appeal (Justices Bruce McDonald and Barbara Lea Veldhuis) upheld the case management judge’s decision striking the appellant’s statement of claim in relation to a motor vehicle accident and issuing an order for costs against him. The majority found that “The fact that the appellant is a self-represented litigant in this appeal does not excuse his failure to comply with the Rules of Court in respect of notifying both the court and opposing counsel of a change of his address for service.” (at para 20) Justice Peter Martin, writing in dissent, disagreed, noting that in his opinion:
[T]he consequences of dismissing this appeal are excessively punitive. We now know that the appellant’s failure to attend the case management meetings was not an act of contempt; he was simply not aware of them. The appellant is a self-represented litigant, who we understand had no fault in the motor vehicle accident and who could reasonably have expected a significant award of damages for the injuries he suffered. Now instead, this disabled, unemployed man is saddled with a cost award of almost $83,000. In my respectful opinion, that is a significantly disproportionate consequence for failing to file a change of address with the court. (at para 34)
Justice Martin would have would have allowed the appeal, restored the statement of claim and set aside the order of costs (at para 35).
Self-represented litigants had their appeals dismissed in two other cases where the Court of Appeal noted that their claims were non-meritorious. In JE v Alberta (Workers’ Compensation Board), 2016 ABCA 147 (CanLII), Justice Veldhuis, sitting alone, considered an application to restore a worker’s compensation appeal that was struck by the Registrar for failure to file the appeal record. The applicant deposed that “he took significant steps to retain counsel to represent him, including refinancing his home to raise fees” (at para 3). However, there was delay in proceeding with the appeal, and in any event, the Court found that it had no arguable merit: “This appeal could never succeed, and it would be a waste of the parties’ resources to restore this appeal.” (at para 9).
Similarly, in Erdmann v Complaints Inquiry Committee, 2016 ABCA 145 (CanLII), Justices Jack Watson, Bruce McDonald and Frederica Schutz dismissed an appeal of a professional disciplinary body’s decision against the appellant, where she had been found guilty of three counts of unprofessional conduct as a chartered accountant and ordered to pay fines and costs. One of the appellant’s grounds of appeal was her lack of legal competency, but the Court found that this argument had no merit:
The only evidence on this issue was a GAF test score put forward by the appellant at the hearing before the Appeal Tribunal. No expert witness was called or tendered to interpret the score or explain the test results, and the appellant herself refused to testify under oath and be subjected to cross-examination. (at para 39)
The appellant’s other grounds of appeal were also found to have no merit and her appeal was dismissed.
Issues at Trial
A number of decisions at the Court of Queen’s Bench level concern issues relating to self-represented litigants at trial.
In HH v DB, 2016 ABQB 164 (CanLII), Justice J.S. Little dealt with Ms H’s appeal of a parenting order made in Provincial Court, where she was represented by counsel and Mr B was not. Quoting an Ontario Court of Appeal decision, Justice Little noted that “Running a trial with a self-represented individual can put a trial judge in a very difficult position: ‘When one party is self-represented, balancing trial efficiency and effectiveness with the appearance of independence and impartiality can be truly challenging’” (at para 10, quoting Martin v Martin, 2015 ONCA 596(CanLII) at para 108). Justice Little found that in this case, the trial judge’s conduct – which included interrupting Ms H’s counsel and limiting her time to examine her client, helping Mr B cross-examine Ms H, leading the direct examination of Mr B, and limiting Ms H’s counsel’s cross-examination of Mr B – led to the conclusion that “a well- informed person viewing the trial would conclude that consciously or unconsciously, the trial judge did not decide fairly.” (at para 17) The matter was sent back to Provincial Court for a re-hearing.
In contrast, in McCallum v Edmonton Frame and Suspension (2002) Ltd, 2016 ABQB 271 (CanLII), Justice Robert A. Graesser considered an appeal from a small claims court ruling where both parties were self-represented. He cited a recent decision, Malton v Attia, 2016 ABCA 130 (CanLII) – which falls just outside our snapshot, having been decided on April 29, 2016 – where the Court of Appeal recognized the challenges posed by self-represented litigants in another case where the trial judge was found to have gone too far in assisting the litigant:
 Self-represented litigants appear with increasing frequency in our trial courts. In response, courts have made procedural reforms to facilitate effective and efficient dispute resolution. However, the fundamentals of trial process have not changed. A fair hearing requires an impartial, independent adjudicator. It requires that parties know the case they have to meet, have the opportunity to martial evidence to meet it, and the opportunity to make submissions with respect to it. These are core elements of our justice system.
 These basic requirements can pose a challenge to the trial judge presiding over a trial with self-represented litigants. He or she must carefully walk the line between being of assistance to those litigants and becoming their advocate.
In McCallum, however, “both sides were on a level playing field: both were unrepresented by counsel. The trial judge played no favourites and applied the same rules to both parties. He was not obliged to relax his standards to accommodate the parties’ lack of experience or familiarity with the rules of evidence and trial procedures.” (at para 107) Justice Graesser found “no bias or reasonable apprehension of bias on the part of the trial judge” (at para 100), and dismissed the appeal. He did note that if the appellant had possessed greater familiarity with court procedure, that could have led to a different result, but this was not seen as an error attributable to the trial judge:
The results might have been different if Mr. McCallum had been able to secure the attendance of the expert from Derrick Dodge, as he had planned. However, his inability to do so is not visited on the trial judge, but rather Mr. McCallum’s unfamiliarity with the rules of evidence and court procedure. (at para 102)
Conversely, in Pickett v Walsh, 2016 ABQB 222 (CanLII), a dispute over spousal support and matrimonial property, Justice Wayne Renke found that a trial had not been hindered by the parties’ lack of counsel – though issues related to self-representation were not directly before the court: “The parties represented themselves. They conducted the trial with calm civility and focus. I thank them for the seriousness and objectivity they brought to the proceedings.” (at para 7)
There are other cases where being self-represented clearly hinders the ability of parties to properly conduct their litigation.
In R v Cullen, 2016 ABQB 272 (CanLII), a self-represented litigant attempted to file an application alleging Charter breaches in relation to his arrest as well as against mental health and government housing agencies. Justice B.R. Burrows noted that the accused had counsel for the trial of his criminal charges, but not for the Charter application. He indicated that while he was “mindful that both the Crown and the Court will always exercise great flexibility so as to ensure that an accused in custody can bring alleged breaches of Charter rights to Court and to seek a remedy”, the problem was that in this case, “the materials are so woefully deficient that to permit the application to proceed would necessitate the exercise of an unreasonable degree of flexibility.” (at para 8) The application was adjourned so that the accused, who has mental health issues, “can seek a Charter remedy either by filing appropriate materials in this application or by commencing a new application.” (at para 12) Although he gets a second chance, one is left to wonder about Mr Cullen’s capacity to develop appropriate application materials if he continues to be self-represented.
Adverse consequences in the form of costs awards may also befall some self-represented litigants. In ET v Rocky Mountain Play Therapy Institute Inc, 2016 ABQB 299 (CanLII), the claimant was subject to an enhanced costs award against him of $18,000 for making “serious unfounded allegations” (at para 9) against the respondents and their counsel in an interlocutory proceeding related to his claim for breach of contract, defamation and negligence. More fortunate was the self-represented litigant in Alberta v Greter, 2016 ABQB 293 (CanLII), who attempted to use “pseudolaw” concepts to excuse her liability to repay her student loans. The Alberta government originally sought double costs against her, but did not pursue this position following its successful application for summary judgment. According to Master in Chambers S.L. Schulz, “If Alberta had maintained that claim I would have granted the double costs award sought, or ordered solicitor and own client indemnity costs against Ms. Greter.” (at para 33) Instead, Ms Greter was ordered to pay costs of $3000. These cases are interesting to compare to Pintea, where the costs award of $83,000 seems highly punitive, especially in light of Justice Martin’s point about the merits of the action.
One initial observation is that the nine decisions covered in this post cover a broad range of underlying legal issues, including motor vehicle accidents, employment-related claims, family and criminal law issues, and small claims and debt-related matters. This is consistent with the recent findings of the Cost of Justice project that access to justice issues can arise in relation to myriad “everyday legal problems” (See Trevor C.W. Farrow, Ab Currie, Nicole Aylwin, Les Jacobs, David Northrup and Lisa Moore, Everyday Legal Problems and the Cost of Justice in Canada: Overview Report at p 8).
The Everyday Legal Problems report focuses on the cost of legal problems to the litigants, based on a telephone survey of 3000 Canadians. Our snapshot of cases captures a somewhat different picture, which is the cost of self-represented litigants to the justice system in terms of frivolous, unsupported, or improperly framed claims, applications and appeals, resulting in adjournments and, more generally, wasted and inefficiently used court time. But the justice system and its requirements may also impose costs on self-represented litigants – not just costs in the technical sense of a penalty for unsuccessful litigation, but also costs in terms of the inability to properly mount claims that may be meritorious. In cases where judges step in to assist self-represented litigants, they must exercise great caution in remaining impartial and independent so as to avoid having their conduct lead to further litigation.
These are issues that courts in Alberta and elsewhere have been facing for some time – see for example the work of Julie Macfarlane on self-represented litigants in Canada. In Alberta, however, the shortage of judges is likely exacerbating some of the negative effects of a system full of self-represented litigants, for example by increasing the use of court time, resulting in delays and the negative consequences associated with delays. We add our voices to those of others who have called on the federal Minister of Justice to make it a priority to fill the vacancies in Alberta superior courts and to provide a proper complement of judges in Alberta, before matters get any worse.
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By: Nigel Bankes
Decision commented on: Proceeding 336 Application 1820596 Pool Delineation, Crossfield Basal Quartz C & V Pools, June 2, 2016, 2016 ABER 007
Alberta’s Oil and Gas Conservation Act, RSA 2000, c O-6 (OGCA) defines a pool as “(i) a natural underground reservoir containing or appearing to contain an accumulation of oil or gas, or both, separated or appearing to be separated from any other such accumulation”. Wells are identified as producing from particular pools and many provisions of the OGCA and the Oil and Gas Conservation Rules, Alta Reg 151/1971 (OGCR) turn on the question of whether or not a particular well is producing from a particular pool. For example, s 15(3) of the OGCA provides that “No person shall apply for a licence for a well for the purpose of obtaining production from the same pool as that from which another well is obtaining or capable of obtaining production in the same drilling spacing unit …”.
In this particular case, the applicant, Bearspaw Petroleum Ltd wanted its well classified as producing from the Crossfield Basal Quartz C Pool (BQ C Pool) rather than the single well BQ V pool in order to be able to gain access to the gas processing plant operated by the C Pool working interest owners – if necessary by means of a common processor order under s 53 of the OGCA. Since it is usually necessary to establish drainage as a pre-condition to obtaining a common processor order (i.e. that H’s well or wells are draining production from underneath B’s leased lands) (see Directive 065, Resources Applications for Oil and Gas Reservoirs, Unit 1, Equity) B first had to establish that its well was in the same pool as H’s wells.
The Factual Background
The applicant in this case, Bearspaw (B in the above), was the licensee of a well (102/11-24) in the single section, single well Crossfield Basal Quartz (BQ) V pool. Bearspaw applied under s 33 of the OGCA to have that well included in the multi section, multi well BQ C Pool. Section 33 provides as follows:
33(1) The Regulator may, by order,
(b) designate a pool by describing the surface area vertically above the pool and by naming the geological formation, member or zone in which the pool occurs or by some other method of identification that the Regulator in any case considers suitable;
The BQ C Pool working interest owners (Harvest Operations Corp., Nexen Crossfield Partnership, and Exxon Mobil Canada Energy – hereafter Harvest, and H in the above) objected to the reclassification on the basis that there was insufficient evidence of communication between the C pool and the reserves identified by Bearspaw’s well.
The AER’s Decision
The Alberta Energy Regulator (AER) began its analysis by noting that as the applicant, Bearspaw had the burden of proof to establish, on the balance of probabilities, that its 102/11-24 well should be included in the BQ C Pool. It also recognized (at para 16) that:
There are no prescribed factors that the AER must take into account when considering an application made under section 33(1) of the OGCA. Previous pool delineation decisions made by the AER’s predecessors have taken into account a variety of factors including geology, geochemistry, gas composition, pressure data, and other matters that may be broadly described as reservoir characteristics.
The Regulator used these factors to structure its decision.
Bearspaw and Harvest each offered an interpretation of the geology “that was broadly similar but different in detail” (at para 19). Both acknowledged that the region consisted of sands deposited in a complex fluvial system but while Harvest emphasised factors such as deeply incised fluvial channel systems that would contribute to the separation of pools in the reservoir, Bearspaw, while acknowledging the heterogeneity of the reservoir, preferred to interpret the reservoir as consisting of a braided fluvial system. The AER concluded that the evidence of the highly heterogeneous nature of the reservoir could not on its own support the application to redraw the boundaries of the BQ C Pool (at para 27). The AER reached a similar conclusion with respect to gas chemistry, noting (at para 29) that while there was a “marked similarity” with respect to most components of the gas produced from the BQ C wells and Bearspaw’s well, there were also some differences.
In the end therefore the decision turned on the AER’s assessment of the evidence with respect to observed pressures and reservoir characteristics. The challenge for Bearspaw here was that the pressure data did not track what would be expected in a homogeneous reservoir (i.e. – and this is my take on the technical issues – a clearly observed linear drop in pressure at the Bearspaw well resulting from production from the BQ C Pool wells). But that did not deter the AER since (at para 32) it was accepted that the reservoir was heterogeneous:
In a homogeneous pool or a pool that was more homogeneous than heterogeneous, we would expect the pressure in the 102/11-24 well to be much closer to that of the pressures in the C pool wells if the wells were in the same pool. However, we find that the BQ reservoir is more heterogeneous than homogeneous and so the fact that the initial static gradient pressure of the 102/11-24 well differs by more than we would expect in a homogeneous pool is not conclusive evidence of 102/11-24 being in the same or a separate pool.
While hardly a resounding endorsement of Bearspaw’s position, the AER was further fortified in its conclusion that it should re-draw the boundaries by evidence from Harvest’s own experts of the pressure performance of different wells already included in the BQ C Pool. This evidence tended to show that while some wells in the C Pool exhibited similar pressure/time characteristics, the 6-26 well (diagonally offsetting Bearspaw’s well) did not exhibit the same performance but did show evidence of (at para 33) “limited communication”. This was further reinforced by evidence that demonstrated that the initial pressure in supposedly separate pools in the reservoir differed when one would have expected similar pressures in discrete pools in the same reservoir. This suggested communication (and therefore drainage) prior to “discovery” of a “new” pool. Other evidence also suggested, on the balance of probabilities, gradual pressure decline at Bearspaw’s well consistent with depletion by wells in the BQ C pool (at para 45). In response Harvest contended that if the AER accepted this “ongoing measureable decline” as evidence of pressure communication, such communication was not “effective”. This appears to be an argument that drainage over a long period of time (quaere what is a long period of time) should be discounted.
In a very real sense therefore the issue for the AER boiled down to the question of how much communication was enough to conclude that the reserves should be treated as being in one and the same pool and therefore capable of being drained from any particular well in the pool. The AER emphasised that the test was not an economic test (at para 56) (“The monetary value of potential or lost production does not assist …”) but a physical test (at para 57):
Neither party made arguments based on statutory interpretation, case law, or previous decisions of the regulator or its predecessors on this point. The OGCA does not require or establish thresholds of communication for the purposes of determining whether pools which are in fact physically connected can appear to be separate for the purposes of pool delineation. In light of the overall purposes of the OGCA set out in section 4, especially preventing waste and providing for efficient development of oil and gas resources of Alberta, the panel finds that for the purposes of determining whether an accumulation of oil or gas appears to be separate, communication is the ability of production from one or more wells in a reservoir to affect production by depleting reserves that might otherwise be produced from another well in the same reservoir.
Applying that test to the evidence before it the AER concluded as follows (at para 58):
… our interpretation of the BQ reservoir pressure evidence is that the 102/11-24 well is and has been experiencing drainage. [Whatever the scale of that drainage] … the fact that pressures that reflect drainage are repeatedly measurable and ongoing is sufficient. The only producing wells in evidence before us that could affect production from the 102/11-24 well are the C pool wells. As a result, we conclude that on a balance of probabilities, the accumulation of gas in the BQ at the 102/11-24 well does not appear separate from that in the C pool.
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By: Jessica Magonet
Should courts shun third party intervention in criminal proceedings? Two recent Alberta Court of Appeal cases address this issue: R v Vallentgoed, 2016 ABCA 19 (CanLII) (January 2016) and R v Barton, 2016 ABCA 68 (CanLII) (March 2016).
In Vallentgoed, the Edmonton and Calgary Police Services (EPS / CPS) were denied leave to intervene in a criminal appeal by Justice Veldhuis. The appeal concerned the scope of the Crown’s obligation to disclose approved instrument (AI) maintenance logs. Approved instruments are instruments used to measure blood alcohol levels. The accused, Vallentgoed and Gubbins, were charged with impaired driving offenses and had requested additional disclosure of AI maintenance records.
In Barton, Justice Berger granted leave to intervene to the Women’s Legal Education and Action Fund (LEAF) and the Institute for the Advancement of Aboriginal Women (IAAW) in the Crown’s appeal of Barton’s acquittal for the murder of Cindy Gladue. Ms. Gladue, a Cree woman engaged in sex work, died as a result of an injury caused by Mr. Barton. According to LEAF’s press release, “At the trial, the jury accepted the defence argument that Ms. Gladue, an Indigenous woman, had consented to ‘rough sex’ and acquitted the man accused of her murder, Bradley Barton.” (Women’s Legal Education and Action Fund (LEAF) and the Institute for the Advancement of Aboriginal Women (IAAW) Seek Leave to Intervene in R. v Barton).
Vallentgoed and Barton initially present starkly different visions of the intervener’s role in criminal proceedings. In Vallentgoed, Justice Veldhuis claims that intervener status should be rarely granted in criminal proceedings. She writes:
The discretion to grant intervener status should be exercised sparingly, particularly in criminal proceedings where the dispute must remain between the accused and the Crown: R v Neve,  8 WWR 294 at para 16, 184 AR 359 (CA). Interventions in criminal appeals are “generally shunned by the courts for a variety of policy and prudential reasons”, especially the risk “that the hearing of other voices can distort an appeal”: R v JLA, 2009 ABCA 324 at para 2, 464 AR 310. (para 6, emphasis added)
Two months later, Justice Berger acknowledges this perspective in Barton:
Some judges have opined that it is very unusual for the court to consider interventions in criminal appeals. By way of illustration, Watson J.A. in R. v. J.L.A., 2009 ABCA 324 (an important precedent-setting criminal law pronouncement heard by a designated five person panel reported as R. v. Arcand, 2010 ABCA 363) explained that “the issue in such cases is between an individual and the state.” (para 5)
But Justice Berger then rejects this approach:
I say, with great respect, that judges are too quick to shun intervention by a third party in a criminal case. Watson J.A. has observed “all necessary voices with proper standing will necessarily be heard through the traditional binary process” – but not always. In fact, I have a real concern that the focus on the risk that “the hearing of other voices can distort an appeal,” cited theoretically as a basis to reject the intervention of a party who is perceived to lend support to the Crown’s position, is then invoked far too frequently to deny the appropriate intervention of a party who might assist the court but whose submissions may also be helpful to the defendant in the case. See, for example, R. v. J.L.A., supra. (para 10, emphasis added)
I disagree with Justice Veldhuis’s claim that criminal disputes should remain between the accused and the Crown. Criminal law concerns the entire community—it is a conversation about how to interpret and apply our criminal law and related procedural protections, and in some cases, about how to sanction and rehabilitate a community member who has committed a grave wrong. While the Crown is mandated to represent the public interest in criminal disputes, it often fails to do so because the public interest and the state’s interest frequently diverge. Moreover, different members of our community have incompatible interests, so it is impossible for the Crown to do justice to all of these perspectives. Interveners thus have a critical role to play in criminal proceedings by explaining to the court how the case will affect the people they represent. In Barton, LEAF and IAAW wanted to explain how the precedent set by this case would impact women, particularly Aboriginal women. As they write in their leave application:
This appeal raises legal issues regarding the law on sexual assault that transcend this particular case and the Court’s decision on those issues will significantly affect the law on sexual assault. In particular, the Proposed Interveners are interested in this appeal because of the precedent that it will set and the impact it will have on sexual assault complainants, particularly Aboriginal women engaged in sex work. (LEAF and IAAW Application, para 6)
By granting leave to intervene to LEAF and IAAW in Barton, Justice Berger ensured that the perspectives of women could inform and enrich a decision that directly affects them.
While I believe interveners play an important role in criminal proceedings, I think Justice Veldhuis is right that particular caution is warranted in determining who should be granted leave to intervene in criminal cases. When assessing a leave application for criminal proceedings, courts must be especially careful to ensure that the applicant will provide a fresh perspective, and will not merely reinforce the Crown’s position. Of course, in civil proceedings, courts must also verify that the proposed intervener will bring a new perspective to the case. If an intervener merely bolsters the position of one of the parties, the trial may become unfair. Granting leave to intervene to an applicant that just repeats the views of one party essentially gives that party more air time before the judge. While courts should ensure that all trials are fair, they have a particular obligation to guarantee the fairness of criminal trials since the accused’s freedom is at stake. In fact, the right of an accused to a fair trial is constitutionally protected in section 11(d) of the Charter, which states:
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal…
Significantly, Justice Veldhuis and Justice Berger both focus on whether the applicants would bring a fresh perspective to the case in determining whether to grant them leave to intervene.
In Barton, Justice Berger writes:
At the end of the day, the relevant inquiry is whether the proposed intervener will advance different and valuable insights and perspectives that will actually further the court’s determination of the matter (see: Canadian Doctors for Refugee Care v. Canada (Attorney General), 2015 FCA 34 at para. 15, citing with approval Canada (Attorney General) v. Pictou Landing First Nation, 2014 FCA 21 at para. 11). Put another way, can the applicant add to the effective adjudication by ensuring that all the issues are presented in a full adversarial context? See: Reference re Workers’ Compensation Act, 1993 (Nfld.), 1989 2 SCR 335, at para. 13. (para 8, emphasis added)
Justice Berger notes “judges of the Court of Appeal who will sit in judgment on the appeal will benefit from the unique perspectives of the interveners” (para 13, emphasis added). LEAF and IAAW intend to discuss “the definition of “sexual activity” in s. 273.1(1) of the Criminal Code” and to “provide a substantive equality analysis of the meaning of consent and also observations on the procedure required by s. 276 of the Criminal Code” (para 12).
In his response to LEAF and IAAW’s application for intervention, Barton cited Justice Watson’s statement in R v J.L.A. that: “[w]here the defendant already faces the voice of the state, the courts must necessarily be concerned about introduction of any other voice that could hurt the defendant” (para 2, emphasis added) (Respondent’s Memorandum of Argument in Barton, para 7). Justice Berger rightly rejected this view. The protection of the defendant’s liberty interest should not come at the cost of stifling the voices of parties who are affected by the outcome of a case and have a fresh perspective to provide. Inviting interveners into the courtroom may at times place an additional burden on the accused, but as long as they are not merely bolstering the Crown’s position, their voices should be heard.
Justice Veldhuis’s analysis in Vallentgoed also focuses on whether the applicants would provide a new perspective on the case. She writes:
Intervener status will be granted where the applicant: (1) is directly and significantly affected by the outcome of the appeal, and (2) has expertise and a fresh perspective on the subject matter of the appeal that is useful for the appeal’s resolution: R v Morgentaler,  1 SCR 462 at para 1,  SCJ No 48 (QL); City of Edmonton v Edmonton (Subdivision and Development Appeal Board), 2014 ABCA 340 at para 8, 584 AR 255. (para 5, emphasis added)
Justice Veldhuis notes that CPS and EPS would be directly and significantly affected by the outcome of the appeal, as the case could oblige them to disclose AI maintenance records. “However,” she explains, “it is doubtful that the EPS and CPS will provide a fresh perspective on the issues or present different submissions from the Crown on appeal” (para 8, emphasis added). This was doubtful because EPS and CPS, like the Crown, were arguing for limited disclosure. CPS wanted to claim “that the common and similar disclosure requests made by defence counsel are really a ‘strategy’ to ‘stall the prosecution of impaired driving cases’” (para 10). Justice Veldhuis notes that “[i]t is unclear how these arguments differ from or provide a unique perspective relative to that of the Crown” (para 10). As for EPS: “During oral submissions, counsel for EPS argued the Crown factum did not sufficiently cover the issue of the scope of disclosure and if permitted to intervene, the EPS would seek to expand on the Crown’s position” (para 15).
I wonder if Justice Veldhuis and Justice Berger would have reached the same outcomes had their cases been switched. Both judges focused their analysis on whether the intervener would provide a fresh perspective. Whereas LEAF and IAAW were bringing a unique perspective to the case, by discussing its impact on women, EPS and CPS sought to merely reinforce the Crown’s position. Moreover, the interests of the Crown and of the police coincide substantially—both actors are part of the state.
Justice Veldhuis writes in Vallentgoed:
Permitting the CPS to advance arguments that substantially overlap with and bolster the Crown’s position is prejudicial as it simply serves to amplify the voice of the state at the potential cost of the Respondents. (para 10, emphasis added)
This quote suggests that for all of Justice Veldhuis’s talk about a criminal law dispute being limited to the Crown and the accused, her real concern is ensuring that the accused’s trial is fair.
I wish she had framed her concern in those terms. By suggesting that third party intervention in criminal cases is rarely appropriate, Justice Veldhuis may have made it more difficult for parties affected by the outcome of a criminal case to intervene. Criminal disputes do not merely affect the accused and the state. These disputes can affect Aboriginal women, doctors, people living with AIDS, and people of faith. While the Crown speaks with one voice, the community speaks with many. These voices should not be silenced in the courtroom.
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By: Jonnette Watson Hamilton
Case commented on: R.O. v D.F., 2016 ABCA 170 (CanLII)
This Court of Appeal decision is useful in drawing a distinction between litigation that is vexatious and a litigant who is vexatious. A vexatious court proceeding may be challenged under various provisions in the Alberta Rules of Court, Alta Reg 124/2010. Typically, the vexatious proceeding is brought to an end and costs are awarded against the person responsible. The scope of the relief is confined to the one particular case. A vexatious litigant order, on the other hand, is made under section 23.1 of the Judicature Act, RSA 2000, c J-2, and typically forbids the person against whom it is made from commencing or continuing any proceedings in any court in Alberta against any person. Declaring someone to be a vexatious litigant is a much broader and more serious matter. The issue in this appeal was whether R.O. was a vexatious litigant, as the Court of Queen’s Bench judge had declared her to be, when all of her allegedly vexatious behaviour was confined to this one case.
The issue is not easy to decide because of the wording of section 23(2) of the Judicature Act, which describes when a vexatious litigant order may be made:
23(2) For the purposes of this Part, instituting vexatious proceedings or conducting a proceeding in a vexatious manner includes, without limitation, any one or more of the following:
(a) persistently bringing proceedings to determine an issue that has already been determined by a court of competent jurisdiction;
(b) persistently bringing proceedings that cannot succeed or that have no reasonable expectation of providing relief;
(c) persistently bringing proceedings for improper purposes;
(d) persistently using previously raised grounds and issues in subsequent proceedings inappropriately;
(e) persistently failing to pay the costs of unsuccessful proceedings on the part of the person who commenced those proceedings;
(f) persistently taking unsuccessful appeals from judicial decisions;
(g) persistently engaging in inappropriate courtroom behaviour. (emphasis added)
The opening clause of section 23(2) states that a vexatious litigant order can be made for “conducting a proceeding in a vexatious manner”, i.e., for conducting only one proceeding in a vexatious manner. This is apparently contradicted by the list of seven examples which follow, because all but the last example in the list refer to “proceedings” or “appeals” in the plural. Nonetheless, section 23(2) leaves open the question of whether acting vexatiously in only one proceeding is enough to leave a person vulnerable to an order that bars them from bringing any further proceedings.
Justices Peter Costigan, Marina Paperny, and Patricia Rowbotham heard this appeal from two orders made by Mr. Justice B.A. Millar, the case management judge, on June 18, 2014. One of his orders found R.O. to be in contempt of court for failing to comply with previous orders that banned the identification of the parties and penalized her contempt by striking her statement of claim and directing her to pay costs of $217,000. The Court of Appeal upheld this order, acknowledging that while the penalties were harsh they were justified because “this was a very serious breach of a clear court order” (para 32).
The other order by Justice Millar declared R.O. to be a vexatious litigant in very broad terms:
As the Court of Appeal noted, the decision to declare someone a vexatious litigant is a discretionary one: see section 23.1 of the Judicature Act providing that “the Court may order”. The standard of review for this discretionary ruling is reasonableness (para 33, citing Liu v Matrikon Inc, 2010 ABCA 383 (CanLII) at para 10). The Court of Appeal found the vexatious litigant order made by Justice Millar to be unreasonable because it was “overbroad” (para 37).
Justice Millar’s stated reasons for granting the vexatious litigant order focused on this particular case. R.O. had been found in contempt for breaching court orders twice, had filed four applications seeking many types of interlocutory orders, had attempted to re-litigate matters that had already been decided, had failed to pay court costs when ordered to do so, had threatened to sue others connected to D.F., and had put forward “far flung conspiracy theories” (para 35).
Certainly some of this behaviour falls within the types of behaviour listed in section 23(2). But is it “persistent”? Did R.O. “persistently [bring] proceedings to determine an issue that had already been determined”? Did she “persistently [fail] to pay the costs of unsuccessful proceedings”?
The Court of Appeal noted (at para 38) that Justice B.A. Browne, in 644036 Alberta Ltd v Morbank Financial Inc, 2014 ABQB 681 (CanLII), had explicitly drawn a distinction between a vexatious proceeding and a vexatious litigant. Justice Browne had held that the litigant before her was vexatious because his behaviour was not confined to the case before her but had spilled over into other proceedings in Alberta and British Columbia. She held that the “more general response” of a vexatious litigant order ? “a wider net … cast to constrain” ? was warranted because of the breadth of his litigation activities (644036 Alberta Lt at para 97).
In this case, the Court of Appeal found that there had not been enough evidence before Justice Millar to justify a finding that R.O. had a history of “persistently” engaging in any of the behaviours in section 23(2) against anyone other than D.F. (para 39). The key point is that R.O.’s behaviour was confined to this one proceeding, and, being so confined, it did not warrant the broad response of a vexatious litigant order.
This is a helpful line that has been drawn, and certainly more helpful than the authority that the Court of Appeal cited for drawing it. They refer to Pawlus v. Pope, 2004 ABCA 396 (CanLII) for its general support (para 39). However, the court in Pawlus v. Pope set aside a vexatious litigant order because the necessary notice had not been given to the Minister of Justice and Attorney General so that argument could be made about the impact of section 23 of the Judicature Act on the court’s inherent jurisdiction (Pawlus v. Pope at para 17) and because the proposed vexatious litigant had requested an adjournment and that request was not opposed by the other party (Pawlus v. Pope at para 18). Neither of these reasons is relevant in this case.
Because Justice Millar’s goal was to put an end to all litigation between R.O. and D.F. and those associated with D.F. ? a reasonable goal in the Court of Appeal’s estimation ? the Court of Appeal substituted its own much narrower vexatious litigant order: “Any litigation or steps in litigation against [D.F.] and those associated with him, including his family (immediate and extended) and his employer shall require leave of the Court of Queen’s Bench” (paras 37, 40).
As mentioned, the helpful guiding point for lower courts is that vexatious behaviour confined to one case will not justify (except possibly in exceptional circumstances) the broad response of a typical vexatious litigant order under section 23.1 of the Judicature Act. It will justify bringing the vexatious proceeding to an end and an order forbidding the commencement of further proceedings against the same individual. A broad vexatious litigant order will require (except perhaps in exceptional circumstances) a history of vexatious behaviour in more than one case.
It also appears that it now takes a shorter history and fewer instances of vexatious behaviour in fewer cases to warrant the issuance of a vexatious litigant order than it did even five years ago. In 2011, I noted in “How persistent does a vexatious litigant have to be?” that it seemed to take a lot of improper behaviour against a large number of long-suffering defendants for a very long time (e.g., ten years) before a person was denied unmediated access to a court. That no longer seems to be true.
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