News & Publications Archive

On January 1, 2008, amendments to the B.C. Human Rights Code came into force which prohibit discrimination against persons age 65 or older. One of the primary effects of these changes is that mandatory retirement in B.C. is no longer permitted.

After 339 days of hearings over five years, and at a cost of almost $30 million, a court in British Columbia has expressed its opinion that the Tsilhqot'in Nation has aboriginal title to approximately 2,000 square kilometres of land, but stopped short of making that opinion legally binding by granting a declaration of aboriginal title.

The implied undertaking rule has been established as a part of the common law across Canada and in some provinces has been codified as a part of the rules of court. Despite the prevalence and prominence of the implied undertaking rule, interesting questions remain as to its rationale, scope, and implementation in practice. This paper will attempt to explore some of those issues.

On November 21, 2007, the Supreme Court of British Columbia released the decision of Mr. Justice Vickers in Tsilhqot'in v. British Columbia.

Energy Law Newsletter with a Feature Article on Residential Natural Gas Unbundling in BC.

Presentation at The Canadian Institute’s Course Series on Negotiating & Drafting Key Business Agreements.

This paper will first review the history of the conflict between class proceedings and arbitration in Canada, and then address whether Union des consommateurs v. Dell Computer Corp. has provided guidance that arbitration agreements should, in general, be respected and that class proceeding legislation should not be regarded as providing a substantive ground to negate an arbitrator’s jurisdiction.

This edition of the Energy Law Newsletter has stories from British Columbia, Alberta and the Northwest Territories.

Significant developments in forestry law in 2006 include the finalization and implementation of a new softwood lumber agreement between Canada and the United States and further judicial decisions on aboriginal rights to forest resources.

In finding that arbitration prevailed over class proceedings, the British Columbia Court of Appeal has effectively ruled that a wide range of pension disputes in British Columbia can be put in the hands of a private arbitrator, rather than be subject to class proceedings, if one of the parties to the disputes wishes to do so.

The Federal Court of Canada's decision in Ahousaht First Nation v. Canada (Fisheries and Oceans) is significant in that it emphasizes the reciprocal duty of First Nations in the consultation process, clarifies the nature of that duty and provides commentary on what comprises adequate and appropriate consultation.

Presentation prepared for CPTA in June 2007.

In the last decade, plaintiffs unhappy with the economic impact that decisions or actions of public authorities have had on them have increasingly turned to the tort of misfeasance in public office (also referred to as abuse of power or abuse of authority) as an avenue for obtaining compensation.

Litigation is a fact of life for pension and benefit plan administrators and sponsors. The scope, frequency and complexity of litigation in this area continue to increase each year. The purpose of this paper is to discuss and update the current trends in pension and benefits litigation as they relate to class actions.

Energy Law Newsletter with a Feature Article on new Federal and Alberta Climate Change Initiatives.

Effective January 1, 2008, employers in B.C. will no longer be entitled to have mandatory retirement policies requiring all employees to retire at age 65.

Newsletter from the Labour and Employment Law Group.

A presentation about the Alberta Electric System Operator System (AESO), which has the mandate to ensure that all Albertans receive safe, economic and reliable power today and in the future.

On February 27, 2007 British Columbia issued "The BC Energy Plan: A Vision for Clean Energy Leadership". The document is an extensive statement of provincial energy policy, and a roadmap for future government action in BC's energy sector.

The purpose of this paper is to highlight the distinction between benefits provided under benefit trusts and claims made under disability insurance policies. While the substance of the claim is generally the same, the different legal nature of the benefits payable under a benefit trust will likely result in the claim being adjudicated and litigated in a different manner.

Quarterly newsletter from the Energy Law Group.

This is Lawson Lundell's web-based publication dedicated to keeping readers informed about developments in Canadian mining law.

This paper provides a guide to the regulatory approval processes for oil and natural gas exploration and production in the Northwest Territories, which holds an estimated 33% of Canada’s remaining conventionally recoverable natural gas resources and 25% of the remaining recoverable resources of light crude oil.

The Sappier Decision: Supreme Court of Canada Recognizes Aboriginal Right to Timber for Domestic Purposes and Clarifies Requirements for Establishing an Aboriginal Right.

Quarterly newsletter from the Energy Law Group.

In October 2004, the Supreme Court of Canada (“SCC”) issued its decision in Peoples Department Stores Inc. (Trustee of) v. Wise. It was hoped that this decision would clarify, once and for all, to what extent directors of insolvent or “near-insolvent” corporations are required to consider and take into account the interests of creditors when making governance decisions.

The issue of coalbed methane (CBM) ownership, frequently disputed between coal rights holders and holders of mines and minerals rights other than coal, has been the subject of numerous recent applications to the Alberta Energy and Utilities Board (AEUB). The AEUB recently announced that it will hold a hearing relating to legal entitlement of CBM on split-title freehold mineral lands in Alberta.

For many years, parties have created various legal tools to grant others the right to use a portion of their lands. Prior to the imposition of statutory controls on the subdivision and leasing of land, this could simply be accomplished by the property owner granting exclusive possession over a portion of their land to a tenant by way of a lease. In many situations, rather than a fee simple or leasehold subdivision, the goals of the parties can be achieved by the granting of an easement in favour of one party by the other.

Hotel development and financing has always been a challenging area of real estate development. Conventional real estate lenders do not like the long time it takes for a new hotel to build a customer base and become profitable. Combined with cyclical tourism markets and smaller resale markets, many lenders are not keen to service this market. One principle source of financing in recent years is the development of strata hotels and fractional ownership structures that have achieved various degrees of success.

Quarterly newsletter from the Energy Law Group.

This paper provides information on four topics that should be useful to developers of resort properties, as well as potential buyers and investors in resort property strata units, homes or commercial enterprises. The four topics are: the unique characteristics and issues of utility services; who are the utility regulators and what do they do?; From whom, and under what terms, are utility services available?; and a summary of issues for developers and investor-owners.

Two Supreme Court of Canada November 2004 landmark decisions provide a preliminary outline of the parameters of the Crown’s duty to consult and, where appropriate, accommodate Aboriginal peoples in circumstances where Aboriginal interests have been asserted, but not proven. The decisions also provide a framework for Aboriginal consultation activity related to potential infringements of Aboriginal rights caused by land and resource development activities.

Enacted in 1990, the Metis Settlements Act proposed a statutory framework which addressed the desire of Metis for legal recognition of their settlement land base and their corresponding desire for self government and control over that land base. The effect of the legislation has been to provide Metis people with a voice in how oil and gas operations are conducted on settlement lands.

The Uniform Law Conference of Canada recently drafted a report that addressed the desirability of allowing national or multi-jurisdictional class actions.

The importance of renewable energy resources cannot be overstated. In a climate of rising oil and natural gas prices, enhanced environmental awareness and increasing evidence that fossil fuel supplies are finite, politically vulnerable and environmentally taxing, renewable energy is a promising energy alternative. While not totally without impact on the environment, renewable energy is cleaner than fossil fuels and, by definition, cannot be depleted.

Aboriginal rights, title and treaty issues are one of the most significant legal issues currently facing the oil and gas industry in Western Canada. This paper provides an overview of the current legal context respecting aboriginal rights, title and treaty issues in Western Canada and its impact on the oil and gas industry. It also includes some comments on one commonly used means to reduce uncertainty in relation to consultation issues, namely, impact and benefit agreements.

A review of the Courts’ approach to the concepts of consultation, accommodation, and justification in the post-treaty context. This consideration will begin with the numbered treaties and then compare the approach to consultation that appears to be reflected in modern land claims agreements and treaties, including the various agreements-in-principle currently under negotiation under the auspices of the British Columbia Treaty Commission. Essentially, the issue under consideration is how, and to what extent, the concepts of consultation, accommodation and justification may continue to apply with respect to land and resource decisions on Crown land in the post-treaty context.

Quarterly newsletter from the Energy Law Group.

National Instrument 43-101 is a rule issued by the Canadian Securities Administrators to develop uniform Canadian standards to govern how issuers disclose scientific and technical information about mineral projects to the public. Its aim was to restore public confidence in mining-related stocks by enhancing the accuracy and integrity of public disclosure in the mining sector.

A brief overview of topical issues relating to British Columbia property assessment and taxation, including the parking site tax, prepared for the Canadian Property Tax Association Western Chapter 2006 Education Seminar Legal Panel.

Over the past few years, courts in Canada have faced the apparent conflict between competing statutory mandates with respect to class proceedings and arbitrations. The British Columbia Court of Appeal resolved the statutory conflict by requiring a court to weigh the circumstances of each case to determine whether a class proceeding or arbitration is the preferable procedure.

Supreme Court of Canada Protects Property Rights of Public Utilities.

Quarterly newsletter from the Energy Law Group.

There appears to be a perception that income trusts do not do as good a job with governance as regular corporations. On October 19, 2005 the Globe and Mail printed a summary piece on income funds, which commenced with the following comment: “Canada’s largest income trusts may have the heft to play in the benchmark index majors, but when it comes to corporate governance practices, they are still in the minor leagues.”

The Mikisew Cree Decision: Balancing Government’s Power to Manage Lands and Resources with Consultation Obligations under Historic Treaties.

Hembruff v. Omers: Ontario Court of Appeal Rejects Notion of a Duty to Disclose Potential Pension Plan Changes.

Quarterly newsletter from the Energy Law Group.

A review of the approach of the Courts (and the issues currently before the Courts) to the concepts of consultation, accommodation, and justification in the post-treaty context—specifically in relation to the numbered treaties. In addition, we consider the approach to consultation that appears to be reflected in modern land claims agreements and treaties.

The National Venture Capital Association (US) has prepared various model venture capital documents for use in the industry, including a term sheet (the “NVCA Term Sheet”). This paper covers the NVCA Term Sheet from a Canadian perspective and outlines the key terms for a venture capital investment drawing on the provisions of the NVCA Term Sheet.