The Power of Perspectives

The Canadian Bar Association

Yves Faguy

Another legal battle over environmental clean-up heads to the SCC

By Yves Faguy November 9, 2017 9 November 2017

Another legal battle over environmental clean-up heads to the SCC

 

 

The Supreme Court of Canada has agreed to hear the expedited appeal of the Redwater decision, a ruling that would spare a hurting energy industry from cleaning up orphaned wells.

Why it’s important: 

The Alberta case will have major implications on the priority and treatment of environmental claims in bankruptcy.

Following the downturn in commodity prices over the last few years, the province has seen a spike in the number of orphaned wells – oil and gas wells that have been taken out of production and abandoned by owners gone bankrupt and without the means to pay for the cleanup.

According to a recent C.D. Howe Institute report, Alberta has roughly 155,000 inactive wells scattered across the province that have not yet been fully remediated

The crash in commodity prices of the past three years has been linked to a dramatic increase in orphans – oil and gas wells assigned to the OWA because there's no owner financially able to seal the wells, remove equipment and restore the land when their productive life ends.  The industry and eventually taxpayers in the province could find themselves on the hook for clean-up costs reaching as high as $8 billion, the report says.

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The profession

The CBA proposes incivility test in Groia intervention

By Yves Faguy November 6, 2017 6 November 2017

The CBA intervened today in the Groia hearing before the Supreme Court of Canada.  In 2011, the Law Society of Upper Canada found that Joe Groia engaged repeatedly in uncivil conduct in the defense of his client, John Felderhof, the chief geologist and central figure of the Bre-X Minerals scandal. The trial judge made no formal complaint to the Law Society about Groia’s conduct. Even so, a disciplinary panel found that the lawyer violated professional conduct rules by being rude and lacking respect for the court.  The Ontario Court of Appeal affirmed the Law Society’s ruling.

Represented by Norton Rose’s Pierre Bienvenu and Matthew J. Halpin, the CBA is proposing a two-step test for courtroom incivility amounting to professional misconduct that properly balances three different values – courtroom civility, the independence of the judiciary, and the right of litigants to fearless and zealous representation.  The proposed test is as follows:

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The profession

LSUC's diversity statement: Unconstitutional?

By Yves Faguy October 23, 2017 23 October 2017

LSUC's diversity statement: Unconstitutional?

 

The soon-to-be-renamed Law Society of Upper Canada has caused significant controversy in the legal profession over its new requirement that licensees abide by a statement of principles promoting equality, diversity and inclusion. The requirement is part of a broader effort on the part of the law society to remove barriers encountered by racialized licensees, as proposed by a working group whose recommendations were adopted late last year.

Why the fuss? Critics say that requiring lawyers to adopt a statement on diversity and inclusion violates freedom of expression, as protected under the Canadian Charter.  The main objection here is that it amounts to forcing them to express opinions they may or may not share – very different, according to Bruce Pardy of Queen’s than having to comply with a law all the while having the right to disagree with it: “The Supreme Court of Canada has said that forcing someone to express opinions that they do not have “is totalitarian and as such alien to the tradition of free nations like Canada, even for the repression of the most serious crimes,” he writes.  What’s more, writes Léonid Sirota, oaths like these are questionable from a constitutional point of view, and the legal profession should show some backbone by refusing to comply with orthodoxy imposed on it from above. Defenders of the requirement — Adam Dodek, among them — respond that these objections are a stretch too far, particularly as the law society is merely trying to promote Charter values and therefore the statement amounts to “nothing more than a positive affirmation.” To Jennifer Quito, the statement of principles “directs action, not belief” and merely upholds obligations not to discriminate already covered under Ontario’s professional conduct rules.  Even if there is a violation of freedom of expression, it is justified, she writes: “Requiring lawyers to confirm their human rights obligations is not deleterious, and in any event, it would be far outweighed by the salutary effects.”

So far, freedom of expression and thought appears to be alive and well in the legal profession.

 

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Immigration

The Supreme Court rules on the meaning of "serious criminality"

By Yves Faguy October 19, 2017 19 October 2017

The Supreme Court rules on the meaning of "serious criminality"

 

The Supreme Court of Canada has ruled, in a unanimous decision, that a conditional sentence for a marijuana grow-up offence cannot justify the deportation of a foreign national.

What was at issue:  The top court had to decide whether a conditional sentence consists of a “term of imprisonment” as understood under the Immigration and Refugee Protection Act, and whether the appellant should be removed from Canada for serious criminality.  Under s. 36(1) of the IRPA, a permanent resident or a foreign national can be found inadmissible to Canada on grounds of “serious criminality.” That includes being convicted in Canada of a federal offence punishable by a maximum term of imprisonment of 10 years or more.  The appellant in this case was a Vietnamese citizen and permanent resident in Canada since 1989. In 2013, he received a 12-month conditional sentence after being convicted of charges related to his involvement in the grow-op. At the time he was charged, the maximum penalty was seven years of imprisonment, just before getting bumped up to 14 years under the Harper government.  In the court’s words:

It is clear from the wording of the provision that whether or not an imposed sentence can establish “serious criminality” depends on its length. Length is the gauge. It must be “more than six months”. However, the seriousness of criminality punished by a certain length of jail sentence is not the same as the seriousness of criminality punished by an equally long conditional sentence. In other words, length of the sentence alone is not an accurate yardstick with which to measure the seriousness of the criminality of the permanent resident.

The court also ruled that a new maximum sentence cannot be retroactive to the time the offense was committed.

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Aerospace

After the Bombardier-Airbus deal

By Yves Faguy October 18, 2017 18 October 2017

After the Bombardier-Airbus deal

 

Now that Bombardier has agreed to “sell” a majority stake in its C Series passenger jet business to aerospace manufacturer Airbus, it would seem that Boeing’s recent play in getting U.S. officials to threaten major import duties on the jet program has backfired. Under the agreement, some of the aircraft will be assembled at Airbus’ plant in Alabama.

This isn’t over yet: There’s no question that Airbus, and to a much lesser extent Bombardier, look to be coming out of this ahead. Already Delta Air Lines has said it looks forward to taking delivery of its order of C Series jets. But Boeing is calling the deal “questionable, ” trying to paint it as a barely transparent move to dodge U.S. trade law. In response to that claim, Bombardier President Alain Bellemare said: "It's not intended to circumvent anything, but the fact is that when you produce an aircraft in the U.S. it's not subject to any U.S. import tariff rules." We’ll see. How much of the aircraft will, in fact, be produced in the U.S. will likely be the focus of trade experts as the drama — not to mention simmering trade tensions between the U.S. and Canada — plays out.

Looking toward 2023 and beyond: Airbus has been pretty clear about wanting to become sole proprietor of the C Series program. “It’s not forever a threesome. Over time, we take 100 percent of the program. That’s the end game,” said Airbus vice president of communications Rainer Ohler on Monday. “At the end of the day, this will be an Airbus program.” Airbus will also be able to exercise warrants to acquire up to 100,000,000 subordinate voting Class B shares of Bombardier at an exercise price per share equal to C$2.29. The warrants will have a five-year term from the date of issue (likely in 2018).  In 2025, Airbus can exercise the right to buy the entire C Series program from Bombardier at a "fair value”. Bombardier will also have the reciprocal right to force the sale to Airbus, if it so decides.

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