Oil’s Well Does End Well for Alberta Environmental Regulator

In August 2017, I reported that the SCC would hear an enchantment from the Court docket of Attraction for Alberta (Orphan Well Affiliation v Grant Thornton Restricted, 2017 ABCA 124). The case associated to the jurisdiction of a regulatory physique, not by way of its governing statute, however by way of a classical constitutional legislation query and division of powers. The battle – or obvious battle – was between a provincial regulator’s authority on environmental issues and the federal authorities’s jurisdiction over chapter. This case concerned Redwater, a bankrupt oil and fuel firm that owned over 100 oil wells, together with pipelines and different services. Whereas just a few of its wells have been nonetheless producing, on the time of its chapter the bulk have been spent. The price of dismantling the wells and remediating the properties far exceeded their worth. The trustee of Redwater’s property solely wished to take possession of and promote the productive wells, with proceeds going to the collectors in precedence as set out within the Chapter and Insolvency Act, RSC 1985 c. B-3 (“BIA”). To take action required permission from the Alberta Power Regulator to switch the licences of these wells that have been nonetheless productive. The Alberta Power Regulator refused, saying that the property remained accountable for the end-of-life obligations for the disowned wells. The trustee took the place that it may disclaim the unproductive property beneath s. 14.06(4) of the BIA and easily stroll away from the environmental remediation obligation. The trustee additional took the place that even when the regulator may compel the remediation, it must show its declare. Even when confirmed, the trustee argued that secured collectors took precedence over the price of the property’s environmental liabilities. The trustee additionally argued that the provincial laws was in battle with the BIA, so beneath the doctrine of federal paramountcy, the provisions of the BIA should prevail. The regulator disagreed, arguing there was no precise battle between the provincial and federal statutes. The trial decide discovered that the trustee may merely stroll away and that the abandonment prices needed to be confirmed in chapter. A divided Court docket of Attraction held that federal chapter legislation took priority over provincial jurisdiction to set environmental guidelines. The consequence was that its collectors got here forward of the corporate’s obligation to wash up previous oil wells. It successfully meant a bankrupt firm may merely stroll away from its obligations for environmental remediation and make the matter another person’s drawback. On January 31, 2019, in a 5-2 choice the SCC overturned the Court docket of Attraction: Orphan Well Affiliation v. Grant Thornton Ltd., 2019 SCC 5. The bulk discovered that there was no battle between the provincial regulator’s statutory powers and the BIA that may set off the doctrine of federal paramountcy. The complete court docket didn’t hear the case, as Martin J. was one of many members of the panel of the Court docket of Attraction that issued the choice beneath enchantment. She was the dissent within the court docket under. Though there have been some nuanced variations within the evaluation, Wagner C.J., writing for the bulk, got here to the identical conclusions and largely agreed with the evaluation of Martin J.A. (as she then was). A key facet of this case, which is already turning into merely generally known as “the orphan nicely case”, is that it places extra focus the primary a part of the three-part take a look at relating to a regulator’s means to impose an environmental obligation on a bankrupt set out in Newfoundland and Labrador v. AbitibiBowater Inc., [2012] Three S.C.R. 443, 2012 SCC 67. Briefly, that case asks whether or not: (1) the regulator is a creditor; (2) the debt arose earlier than the insolvency proceedings; and (3) it’s sufficiently sure that the regulator will search to gather from debtor. For probably the most half, the courts have centered on the final a part of the AbitibiBowater take a look at. The orphan wells case might have reinvigorated the primary a part of the take a look at. It did so by relying, partly, upon one other case from Alberta that shared many related info: PanAmericana de Bienes y Servicios v. Northern Badger Oil & Fuel Restricted, 1991 ABCA 181. The bulk discovered that the trustee couldn’t merely stroll away from the disowned websites. The bulk mentioned that the BIA protected trustees from private legal responsibility for an property’s environmental liabilities. It didn’t shield the property from these liabilities. This meant that the trustee, appearing for the property, couldn’t merely stroll away from the property’s environmental liabilities. The bulk additionally discovered that the regulator was not asserting any claims that wanted to be proved within the chapter. It was not appearing to get better a debt and didn’t stand to achieve any monetary profit. Relatively, the regulator was appearing to implement an obligation, one which the property owed to surrounding landowners and the general public at massive. Whereas circuitously cited on this level, this discovering shares sturdy similarities to PanAmerianca at para. 33, the place the Chief Justice of Alberta spoke of the duty of the citizen not being to the peace officer or public authority that enforces the legislation, however fairly to the general public and group at massive. The conclusion of the bulk meant that there was no battle between the provincial and federal statutes and there was no want to use the doctrine of federal paramountcy. As there was no debt to show, it additionally meant that there was no disruption of the precedence of collectors established by the BIA. Côté J. bolstered her fame as the nice dissenter. Supported by Moldaver J., she would have dismissed the enchantment. Côté J. concluded that there was a real inconsistency between the statutes and that the environmental obligations have been provable claims. Côté J. primarily based this, partly, upon a discovering that the provincial legislation didn’t acknowledge the lawful and legitimate disclaimers invoked by the trustee beneath the BIA. This case can have a major influence on the oil patch, the place there are tens of hundreds of inactive oil wells. The choice offers better life to the precept of polluter pays. As Wagner C.J. acknowledged at para. 160, “chapter just isn’t a licence to disregard guidelines”. Oil’s Well Does End Well for Alberta Environmental Regulator

Thursday Thinkpiece: Impaired Driving and Other Criminal Code Driving Offences–A Practitioner’s Handbook

Periodically on Thursdays, we current a major excerpt, often from a not too long ago printed ebook or journal article. In each case the correct permissions have been obtained. In case you are a writer who want to take part on this characteristic, please tell us through the positioning’s contact kind. Impaired Driving and Other Criminal Code Driving Offences Creator: Karen Jokinen and Peter EagerForeword: The Honorable Joseph Di Luca, Superior Court docket of JusticeNormal Editors: Brian H. Greenspan and Justice Vincenzo Rondinelli ISBN: 978-1-77255-292-8Writer: Emond PublishingWeb page Rely: 467Publication Date: November, 2018 Common Worth: $115Collection Subscription Worth: $100 Excerpt: from Chapter 2: 80 and Over—s 320.114(1)(b). [Footnotes omitted. They are often discovered within the authentic on this PDF model] IV. Fundamental Ideas A. Blood Alcohol Focus: Absorption and Elimination An in depth dialogue of how BAC is confirmed takes place in Chapter 18, Proving Blood Alcohol Focus By Breath Samples: Authorized Devices and Licensed Proof, however you’ll want to have an understanding of what BAC is and the way it adjustments. BAC could also be established in quite a few methods, mostly by way of the evaluation of breath or blood samples. The evaluation, for Criminal Code functions, will give a outcome expressed in “milligrams of alcohol, per 100 milliliters of blood.” Part 320.14(1)(b) criminalizes having equal to or greater than 80 milligrams of alcohol in 100 millilitres of blood. A person’s BAC adjustments predictably. After consumption, alcohol is quickly absorbed into the blood. The physique begins to remove alcohol by way of excretion and metabolism (sweat, urine, and many others.). The pace at which the human physique absorbs and eliminates alcohol is effectively understood. Whereas charges of absorption and elimination differ between people, they achieve this inside a predictable vary. Proof about this may be supplied by knowledgeable toxicologists. Toxicologists, given details about a person’s top, weight, and intercourse, can precisely predict BAC at a later time in the event that they understand how a lot alcohol a person has consumed. They will additionally “learn again” from a recognized BAC and advise on what a person’s BAC would have been at an earlier time. Breath samples are sometimes seized by the police, often at a detachment, by having the accused blow into an “authorised instrument.” Blood samples are drawn by a physician or nurse, both in response to a police demand or for medical functions. These samples are analyzed by the authorised instrument, by hospital employees, or by a toxicologist, which establishes the person’s BAC. B. The Canadian Alcohol Per Se Restrict of 80 Milligrams of Alcohol per 100 Millilitres of Blood Completely different nations use totally different alcohol per se limits. Some jurisdictions use 80, others 50, and others have even decrease authorized limits. A person doesn’t must be falling down drunk to pose a danger to others on the street. It’s a prison offence to function a conveyance whereas one’s potential to function is impaired by alcohol or a drug. Scientific research have demonstrated that a person’s potential to function a car is impaired lengthy earlier than seen signs of impairment are noticeable. Hyperlinks between alcohol consumption and deficits in car operation have been established for a minimum of 60 years and have been being mentioned as early as 1904. Expertise important to secure driving, akin to response time or the flexibility to interact in a number of simultaneous duties, are affected lengthy earlier than somebody begins to indicate seen indicators of intoxication, akin to slurred speech. Most toxicologists agree that every one people studied present indicators of impaired driving potential at a BAC of 50 milligrams of -alcohol in 100 millilitres of blood. Impairment can typically be noticed at decrease BACs and is extra vital at 80 milligrams of alcohol in 100 milliliters of blood. Crown attorneys typically ask toxicologists to testify about hyperlinks between impairment and BAC, however toxicologists could agree that they can’t immediately apply research to the person earlier than the court docket and that people will differ within the degree of their impairment. In consequence, Canada, like most jurisdictions, criminalizes those that put the general public in danger by working a conveyance with a BAC equal to or above a specific alcohol per se restrict. Canada has chosen the restrict of 80 milligrams of alcohol in 100 millilitres of blood. V. Adjustments and Their Justification Invoice C-46 repealed part 253 of the Criminal Code and changed it with part 320.14(1)(b). Though the previous and new offences each goal those that function motor automobiles with a per se restrict of alcohol within the blood, the offences are considerably totally different. The language in part 253 had been in existence since 1969. Consuming and driving expenses are probably the most litigated Criminal Code offences, taking over vital courtroom time. The regulation has been complicated and obscure for even probably the most skilled practitioners. Based on the legislative abstract underlying Invoice C-46, public security stays the precept concern underlying consuming and driving laws in Canada. The “80 and over” offence was modified in an effort to simplify the laws, handle complexity in language, scale back trial time required for consuming and driving circumstances, and simplify strategies of proof. Defence teams take the place that constitutional challenges to elements of this laws will enhance the workload for each Crown counsel and the courts. On this a part of the chapter, we are going to focus on the primary variations between the previous part 253 and new part 320.14(1)(b) offence. These are: simplifying the offence, by making the occasions of offence and testing the identical; criminalizing bolus consuming; criminalizing intervening consuming; and criminalizing readings of “80.” A. Simplifying the Offence, by Making the Time of Offence the Similar because the Time of Testing Part 320.14(1)(b) eliminates a central downside for the Crown underneath the previous part 253 offence. Part 253 required the Crown to show a person’s BAC on the time of driving. Sadly, breath or blood samples can’t be seized on the time of driving. Samples might be seized solely after driving has ended. The physique eliminates alcohol over time, which means BAC will change between the time of driving and time of seizure. In consequence, the Crown wanted some evidentiary hyperlink between BAC on the time of assessments and BAC on the time of driving. This evidentiary hyperlink was established in certainly one of two methods. The primary was by retaining an knowledgeable toxicologist who might “learn again” the BAC from the time the pattern was taken to the time of driving. This manner was costly and time-consuming. The second method was by utilizing the presumptions of accuracy and identification contained within the previous part 258(1)(c) of the Criminal Code. These have been presumptions that: the breath assessments precisely set out the accused’s BAC; and that BAC at time of driving was the identical as on the time of the assessments. The Crown needed to show quite a few preconditions for the presumptions to use, together with that the samples have been taken “as quickly as practicable.” Failing to show the preconditions disadvantaged the Crown of the presumptions. This meant that though the proof was admissible, the presumptions didn’t apply. If the Crown couldn’t fill the evidentiary hyperlink, an acquittal would comply with. A lot drinking-and-driving litigation hinged on whether or not the Crown might show the preconditions for the presumptions of accuracy and identification. Part 320.14(1)(b) resolves the central downside by making the time of offence and time of seizure (testing) the identical. In consequence, the Crown now not wants a mechanism to “learn again” the blood alcohol focus at time of testing to the time of the offence. The necessity to name a toxicologist, or the necessity for an evidentiary presumption now not exists. The important thing to this transformation is use of the terminology in part 320.14(1)(b) of being 80 or over “inside two hours after ceasing to function.” Generally, testing or seizure takes place inside two hours of the time of operation. As we are going to see in Chapter 18, the place samples are taken greater than two hours after operation, courts are required to statutorily learn again the accused’s BAC. In consequence, the time of testing or seizure is identical because the time of the offence. This implies the previous presumptions of accuracy and identification are repealed, as they’re now redundant, simplifying the offence. B. Criminalizing Bolus Consuming The brand new “80 or over” offence criminalizes bolus consuming. Fairly merely, being “underneath 80” on the time of operation will now not be a defence. Underneath the previous laws, a declare of bolus consuming concerned an accused arguing that she or he consumed alcohol shortly earlier than driving and that the alcohol had not been totally absorbed into the accused’s bloodstream throughout driving. Thus, though the accused was “over 80” on the time of the take a look at, she or he was underneath 80 on the time of driving and entitled to an acquittal. The Supreme Court docket of Canada in R v St-Onge Lamoureux famous that bolus consuming circumstances and consuming instantly after an accident includes behaviour that demonstrates “vital irresponsibility with regard to public security or a pathological response by the accused.” It’s debatable that consuming quickly instantly earlier than driving is a type of risk-taking behaviour that places the general public in additional hazard than merely consuming and driving. From a Crown perspective, these adjustments are welcome and symbolize a useful improvement that can promote public security. The Canadian Bar Affiliation, in its submissions on Invoice C-46 to the Parliamentary Standing Committee, expressed concern that these adjustments danger criminalizing harmless people who should not truly working a motorcar when their blood alcohol focus is “over 80.” The Supreme Court docket of Canada, nevertheless, in R v Malmo-Levine, has dominated that the “hurt precept”–the notion that Parliament can criminalize solely behaviour that causes societal hurt–is just not a elementary precept of justice that would give rise to a breach underneath part 7 of the Canadian Constitution of Rights and Freedoms. If counsel are analyzing the constitutionality of this laws, they might want to overview quite a few paperwork, starting with historic Supreme Court docket of Canada choices addressing consuming and driving, Malmo-Levine, and supplies coping with the Parliamentary historical past behind Invoice C-46. C. Criminalizing Intervening Consuming In quite a few reported circumstances, people concerned in visitors accidents both eat alcohol on the scene or go away the scene and eat alcohol at one other location previous to a breath take a look at. This has been known as the “intervening drink defence.” Intervening consuming, information of which regularly lies completely with the accused, can be utilized to undermine the outcomes of a breath take a look at. Intervening consuming is trigger for concern, given the widespread understanding that consuming and driving is against the law, that there’s a authorized obligation to stay on the scene of an accident, and that police examine visitors accidents. The inference is that people partaking on this behaviour are doing so to disguise their prison consuming and driving. As a matter of widespread sense, drivers would remember that consuming after an accident could undermine the Crown’s reliance on breath assessments. The brand new “80 or over” offence criminalizes this behaviour. The Canadian Bar Affiliation has argued that consuming to defeat a breath take a look at was already prison: it amounted to the offence of obstructing justice opposite to part 129 of the Criminal Code. The affiliation means that the brand new part 320.14(1)(b) offence could function to catch harmless consuming, and as such, the laws is overbroad. Defence counsel could argue that “harmless consuming” would come with people who determine to calm their nerves by having a drink after an accident with out the intention of interfering with breath readings. Defence counsel might also argue that the restricted nature of the part 320.14(5) defence, which can require toxicological proof, could enhance the chance of convicting the harmless. Crowns would possible reply that explanations akin to, “I …

No Going Back, So Why Aren’t We Moving Forward?

When Dorothy realized she wasn’t in Kansas anymore, she stopped appearing as if she had been. So far as she knew, there was no going again. In 2012, the American Bar Affiliation amended its Mannequin Guidelines of Skilled Conduct to substantiate {that a} lawyer’s responsibility of competence contains consciousness of “advantages and dangers and related to related expertise” to authorized follow. 35 states (together with Kansas!) have since adopted the requirement into their very own guidelines {of professional} conduct. In the meantime, in Canada, our regulation societies aren’t transferring with any sense of urgency. Consultations on the query started in 2017, however don’t anticipate steering anytime quickly. From the November 2018 Regulation Society of Ontario report back to Convocation (i.e., its board of administrators), that is what we all know: The Standing Committee is constant to interact with related stakeholders on proposed amendments to the Mannequin Code coping with technological competence and the return to follow by former judges. A complete paper on the proposed amendments was distributed to regulation societies in June to deal with considerations expressed by some jurisdictions. Suggestions from these regulation societies with assist to find out whether or not consensus will be achieved on these points. I’m not right here to knock the regulation societies, not even those or the leaders inside them that seemingly query whether or not they’ve actually left Kansas. And for these focused on understanding points across the moral responsibility of technological competency, you’ll discover some nice items right here on Slaw. I reference the regulation society dialogue as however one, albeit a big and extremely seen, instance of the overall ambivalence of the Canadian authorized institution to understanding, to adapting to, to adopting, and to driving advantages from the technological revolution quickly altering almost all the things else round us. Positive, they are saying, it’s essential, however what’s the frenzy? Once I name out the “Canadian authorized institution,” I imply actually all elements – courts, governments, regulation faculties, corporations, company authorized departments, regulators, bar associations, publishers, service suppliers, and so on… Whereas we are able to definitely discover many inspirational and spectacular particular person examples of individuals, tasks and organizations which can be doing nice issues, or on the very least try to maneuver ahead, true change stays an exercise occurring very a lot on the margins and is pushed extra by the efforts of particular person leaders than by something resembling institutional change. And in lots of circumstances, as a result of the leaders themselves face varied types of enterprise or environmental inertia (or worse!) from established order adherents, there are limits to their impacts and effectiveness, and certainly to their legacy had been they to cease pushing ahead. Amongst public establishments, the dearth of sources to modernize processes is a big issue, as is widespread timidity at contemplating something apart from incremental change. Amongst regulation faculties, the perpetual lack of alignment inside and throughout regulation faculties of their existential objective is an element, and one which amplifies the historic disconnect between classroom priorities and preparation of future-ready authorized professionals. Amongst regulation corporations, the dearth of concerted push again from shoppers and rivals to turn out to be extra environment friendly and responsive is an element. Amongst all authorized service supplier environments (solo to huge regulation, in-house and public sector), concern of failure – commercially or in achievement {of professional} obligations to shoppers – is an element that constrains consideration of radical shifts in enterprise fashions. Amongst publishers and others serving the Canadian authorized institution, seeing an setting extra welcoming to a steady-as-she-goes strategy than to something new and radical, probably the most prudent plan of action is to concentrate on locking in conventional approaches for so long as potential. Returning to regulators and bar associations, their pure warning provides to the challenges. It was solely a pair years in the past that one regulation society president brazenly questioned whether or not attorneys in her jurisdiction might abide by their skilled obligations whereas counting on cloud-based applied sciences within the administration of their operations. Whereas it will not be a regulator’s place to cleared the path in all circumstances, the tempo of change round them now not grants them the luxurious of treating each query like Chesterton’s fence: Within the matter of reforming issues, as distinct from deforming them, there’s one plain and easy precept; a precept which is able to most likely be known as a paradox. There exists in such a case a sure establishment or regulation; allow us to say, for the sake of simplicity, a fence or gate erected throughout a street. The extra fashionable kind of reformer goes gaily as much as it and says, “I don’t see the usage of this; allow us to clear it away.” To which the extra clever kind of reformer will do nicely to reply: “If you happen to don’t see the usage of it, I definitely received’t allow you to clear it away. Go away and assume. Then, when you’ll be able to come again and inform me that you just do see the usage of it, I could let you destroy it.” Collectively, we’ve turn out to be higher at understanding and articulating the challenges and limitations, and of bifurcated entry to authorized providers based mostly on monetary wherewithal, in addition to the hurt to society of a justice system that grows more and more out of attain. We additionally perceive that technological change creates dangers and alternatives, and that attending to these dangers and seizing these alternatives takes collective motion inside organizations and establishments, in addition to interconnected motion throughout establishments. However what we now have but to see, are elementary shifts from any of the establishments. We ought to proceed to encourage and have a good time the individuals, tasks and organizations which can be responding to alter and constructing the long run. And the place we see alternatives to push establishments ahead we must always act, as a result of we have to spark a tradition shift and we have to do it quick. One such alternative is underway in Ontario. Ontario is the province with the biggest inhabitants in Canada, the seat of the Federal Authorities, the Supreme Court docket of Canada and probably the most energetic decrease courts, probably the most authorized professionals and the biggest regulation society, the pinnacle places of work of the biggest regulation corporations and residential to a expertise and innovation group that’s hiring at charges that make Silicon Valley weep. Who leads the Regulation Society of Ontario presently of speedy change is awfully essential. Election season for the lawyer and paralegal benchers of the Regulation Society of Ontario has kicked off, with all candidate nominations filed in February and the voting window set for late April. Now, to be clear, I’m not suggesting that transferring ahead depends on regulatory management alone. There are far too many pockets of inaction elsewhere to place the blame solely on the regulator. However I’m suggesting that some seven years for the reason that ABA took the place that technological competency is a essential aspect of authorized follow competency, we ought to be involved that the Canadian authorized institution has not absolutely acknowledged the technicolor land of Ozwe now inhabit. We have a uncommon probability to determine and empower the changemakers who sense the urgency and search to do greater than merely watch from the sidelines. If you’re an Ontario lawyer or paralegal, your vote this spring might have an immense influence on the Canadian authorized institution. I’ve invited all candidates to share their views on a pair dozen identified priorities, together with the next: If you’re a candidate, remember to let voters know the place you stand. If you’re an eligible voter, make sure analysis the candidates and remember to vote. If you happen to care about these points, whether or not a voter or not, don’t wait, and search for your alternatives to behave and to assist transfer us all ahead. No Going Back, So Why Aren’t We Moving Forward?

A Three-Step Strategy for Getting Heard

Have you ever ever seen how arduous it may be to get folks to pay attention? Have you ever ever had a problem getting your level throughout, even when it was about one thing of essential import? In conversations with attorneys in non-public follow and in-house counsel I regularly hear concerning the difficulties they run into advising purchasers and colleagues on various programs of motion, or threat prevention measures to take. It’s so straightforward for essential recommendation to be discounted as a result of the lawyer is seen as not getting the massive imaginative and prescient, or being too threat averse, or creating pointless roadblocks. Subsequent time it’s good to present a shopper or colleague with an perception they could not instantly welcome attempt utilizing this three-step strategy to getting your level throughout, I name it the “3As”. Step One: Energetic Listening It was Steven Covey who a long time in the past famously wrote: “Search first to know, then to be understood.” Your first step is to pay attention for what’s essential to your shopper or the colleague you’re working with. What are their objectives? What are their issues? What motion do they want to take and why? The important thing to energetic listening is to be curious and to make use of questions to attract out all of the related data. Step Two: Align: In step two, align, you talk your understanding of their perspective and present your assist. On this essential second step you point out that you simply align with their objectives and display your understanding of their concepts. It may be tempting to right away converse to the dangers and issues however that is the error that the majority typically leads to failed communication. Most frequently, folks have to know they have been heard, and that you’re aligned with them earlier than they’re open to listening to about issues and dangers or different choices for consideration. Step Three: Different: In step three you current your various viewpoint. When it’s time to increase an objection or spotlight a threat, use the phrase and to introduce your viewpoint. Utilizing the phrase “and” strategically builds on what was already expressed and provides to it. Keep away from utilizing the phrase however which acts as an eraser of every part that was stated earlier than and thereby positions what it’s a must to provide as a substitute for, or as higher than what stated by others. This will set off your listener into rejecting what it’s a must to say earlier than they suppose it via. One other technique you’ll be able to attempt on this final step of presenting alternate options is to supply suggestions. Suggestions are assertive however not overbearing. Observe the refined distinction between these two phrases: “Given these dangers my recommendation is for you to hunt a written settlement earlier than continuing. “ “Given these dangers my advice is that you simply search a written settlement earlier than continuing.” Placing this 3A strategy into motion: Suppose again to the final time you have been annoyed by not with the ability to get the shopper to listen to your recommendation, what occurred? How might the 3A strategy have aided you in getting your level throughout? Use this three-step technique of energetic listening, alignment, and presenting alternate options subsequent time you’ve an essential level to get throughout. Discover what’s efficient in getting you heard. Adapt this technique to your individual communication fashion and learn to make it work for you. A Three-Step Strategy for Getting Heard