In Anticipation of Ernst v Alberta Energy Regulator

On January 12, 2016, the Supreme Court of Canada will hear oral arguments in Jessica Ernst v Alberta Energy Regulator, an appeal from Alberta that has considerable implications for administrative bodies and the remedies available against them. While ABLawg has published much on the case as it has weaved its way to the Supreme Court of Canada (see: "Revisiting Regulatory Negligence: The Ernst Fracking Litigation" by Martin Olszynski; "Ernst v Alberta (Energy Resources Conservation Board): The gatekeeper is alive and well" by Shaun Fluker; "The Charter Issue(s) in Ernst: Awaiting Another Day" by Jennifer Koshan; "Ernst v Alberta Environment: The Gatekeeper Refuses to Strike or Grant Summary Judgment" by Shaun Fluker; "Regulatory Negligence Redux: Alberta Environment's Motion to Strike in Fracking Litigation Denied" by Martin Olszynski; and "Leave to Appeal granted in Ernst v Alberta Energy Regulator" by Jennifer Koshan), my aim here is to delve deeper into the question on appeal and highlight certain arguments that are either missing or understated in the factums filed by the parties in advance of the Supreme Court hearing.

Background

Jessica Ernst v Alberta Energy Regulator is an action that was commenced by a landowner in Rosebud, Alberta against the administrative body charged with energy development and regulation in Alberta (initially the Energy Resources Conservation Board, which has now been reorganized and rebranded as the Alberta Energy Regulator — the “AER”). The landowner, Jessica Ernst, alleged a number of violations related to the approval and operation of hydraulic fracking and other incidental industrial activities near her residence, and the impact they were having on her health, property and quality of life.

Among the allegations found in Ernst’s claim, and the one that will be dealt with by the Supreme Court, is the alleged violation of her right to freedom of expression protected at s. 2(b) of the Charter of Rights and Freedoms. Ernst claims that between November 24, 2005 and March 20, 2007, the AER refused to accept communications from her due to her criticisms of the regulator and the decisions it had made. Ernst sought the remedy of monetary damages for the alleged violation, which can be granted under s. 24(1) of the Charter.

The AER brought an application to strike Ernst’s Charter claim on a number of grounds, including that it was barred by the statutory immunity clause found at s. 43 of the empowering statute of the regulator (at the time it was the Energy Resources Conservation Act, RSA 2000, c. E-10 – “ERCA”):

43. No action or proceeding may be brought against the Board or a member of the Board or a person referred to in section 10 or 17(1) in respect of any act or thing done purportedly in pursuance of this Act, or any Act that the Board administers, the regulations under any of those Acts or a decision, order or direction of the Board.

Supreme Court of Canada

The Supreme Court of Canada granted Ernst leave to appeal the Alberta Court of Appeal decision on April 30, 2015, and the question on appeal to be:

Is s. 43 of the Energy Resources Conservation Act, R.S.A. 2000, c. E-10, constitutionally inapplicable or inoperable to the extent that it bars a claim against the regulator for a breach of s. 2(b) of the Canadian Charter of Rights and Freedoms and an application for a remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms?

The factums of the parties are posted online, and are worthwhile reads, particularly those of Ryan D.W. Dalziel and Emily C. Lapper on behalf of the B.C. Civil Liberties Association, and Raj Anand on behalf of the David Asper Centre for Constitutional Rights. Rather than rehash the arguments found in them, I will focus on two concerns I have with the Alberta Court of Appeal decision that are partially but not fully addressed in the factums filed by the parties.

Types of Charter Remedies Available Under Section 24(1)

From my reading of the Alberta Court of Appeal decision, it is not entirely clear whether the Court recognized the differences between the two primary remedial provisions under the Charter: s. 24(1) of the Charter and s. 52(1) of the Constitution Act, 1982. A number of parties picked up on this and have made efforts to highlight the distinction between the two provisions. However, while most briefly touch on the distinction, I consider a foundational understanding of the Charter’s remedial framework to be critical to resolving this aspect of the question on appeal.

Section 24(1) states: 

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Section 52(1) states: 

(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

Remedial provisions under the Charter are differentiated on the basis of their application. Section 24(1) remedies apply to government conduct that has been found to violate the Charter. Section 52(1) on the other hand applies to Charter infringing laws, declaring them of no force or effect.

The AER is an administrative body that carries out functions delegated to it by the Legislature. The AER does not create law but rather implements it. For this reason, s. 52(1) has no application to Charter infringing conduct carried out by the AER. The only remedy available to Ernst is found under s. 24(1).

The discussion of s. 24(1) remedies in both the lower court decisions, as well as in some of the factums, is the most confounding aspect of this proceeding. As per the text of the provision, courts are able to fashion any remedy they consider appropriate and just in the circumstances. This ranges from damage awards to declarations of invalidity to literally anything conceivable by the court to be appropriate and just.

However, for some unexplained reason, the lower courts treat all s. 24(1) remedies available to the court to be the same. At least that is the impression left after the court examines the ‘good governance’ implications of awarding Charter damages against an administrative body, and then goes on to hold on the basis of that narrow examination that all remedies under s. 24(1) can act to undermine that principle.

Not all remedies are created equally. It is incorrect to assume that since a specific remedy under s. 24(1) may have a negative impact on the principle of good governance, that all remedies under the provision will have a similarly adverse impact. To fully understand the scope and impact of remedies available under s. 24(1), courts must engage in a contextual analysis of these features rather than simply assuming similitude between the vast array of remedies available under the provision.

Let’s assume that the lower courts are correct in their reasoning that awarding Charter damages against the AER will undermine good governance (the factum of the BCCLA disputes this claim), as the administrative body will not be able to fully exercise its role out of fear of being financially liable for conduct it has engaged in. Does the same apply to declarations of constitutional invalidity under s. 24(1)? Can Charter damages be held to have the same adverse impact on the principle of good governance as the court merely stating that an administrative actor’s conduct was unconstitutional?

This is not canvassed by the lower courts. In fact, the lower courts simply rely on the limits the Supreme Court of Canada has set down for when it is “appropriate and just” to award Charter damages to hold that all Charter remedies under s. 24(1) are barred. The courts have conflated Charter damages under s. 24(1) to represent all remedies available under the provision.

Although declaratory relief under s. 24(1) of the Charter is “personal” in nature, it is difficult to accept the premise that they are so disruptive to the operations of an administrative body that they undermine the principle of good governance. In fact, I would argue that declarations on the constitutional validity of government conduct can achieve the opposite result. Declarations can deepen dialogue between the courts and legislature to ensure that the vast and all encompassing ‘regulatory state’ that has emerged over the past half-century is engage in lawful conduct, and if not, what corrective measures must be carried out. Access to these remedies under the Charter provide individuals redress for fundamental violations of their rights and freedoms, and can act to ensure that these violations do not continue. In my view, the availability of declarations against administrative bodies for Charter infringing conduct strengthens the principle of good governance, rather than undermining it.

Alternative Avenues of Effective Redress

Integral to the Court of Appeal’s holding that s. 24(1) remedies are barred against the AER is the assumption that parties have alternative “effective avenues of redress.” The specific alternative avenue of redress identified by the Alberta Court of Appeal is described in four sentences at a para 30(c):

limits on remedies do not offend the rule of law, so long as there remain some effective avenues of redress: Ward at paras. 34-5, 43. The long standing remedy for improper administrative action has been judicial review. There is nothing in s. 43 that would have prevented the appellant from seeking an order in the nature of mandamus or certiorari to compel the Board to receive communications from her. Further, she could have appealed any decisions of the Board to this Court, with leave.

Like many empowering statutes of administrative bodies in Alberta, the ERCA provided the AER considerable discretion while at the same time significantly limited the type of conduct that could be judicially reviewed:

Board decision final

25 When any Act authorizes the Board to examine, inquire into, hear or determine any matter or question, subject to sections 40 and 41, every action, decision and order of the Board with respect to that matter or question is final and conclusive and is not open to question or review in any court.

Appeal

41(1) Subject to subsection (2), on a question of jurisdiction or on a question of law, an appeal lies from the Board to the Court of Appeal.

(2) An application for leave to appeal must be filed and served within 30 days from the day that the order or direction sought to be appealed from was made, or within a further period of time granted by the judge where, in the opinion of the judge, the circumstances warrant it.

Read together, sections 25 and 41 indicate that only orders and decisions that raise a question of law or jurisdiction can be judicially reviewed by the Alberta Court of Appeal. All other actions, decisions or orders made by the AER are final and conclusive, and not open to review by any court.

The ERCA does not define what an “order” is, but some indication is provided as to what a “direction” is in the Energy Resources Conservation Board Rules of Practice, Alta Reg 98/2011 (ERCBRP):

Directions

4 The Board may, at any time before making a decision on a proceeding, issue any directions that it considers necessary for the fair determination of an issue.

From the text of the provision, and what orders and directions are understood to be in the judicial setting, it can be assumed that an AER order or direction is a formal pronouncement made in relation to a proceeding that the regulator is conducting.

I am not convinced that the decision taken by the AER to not accept communications from Ernst constitutes an order or direction pursuant to s. 41 of the ERCA. It is more akin to an action than an order or direction, and if that is the case, s. 25 of the ERCA bars any review of it by a higher court. From this reading of the ERCA, it’s likely that Ernst would not be able to judicially review the regulator’s conduct through the appeal provision found in the statute.

With respect to the claim that Ernst could apply to the Alberta Court of Appeal for the administrative remedy of mandamus or certiorari, I am equally sceptical if that would be possible given other provisions found in the ERCA. Mandamus is a writ that compels an administrative body to complete a certain action that it is clearly required or has discretion to perform under legislation. The remedy is granted in extraordinary cases, and rarely when the administrative body has discretion to perform the conduct in question. While the ERCA provided broad authority to the AER to make decisions necessary to carry out its function, there is no specific provision that requires it to accept communications made to the administrative body. Moreover, mandamus does not allow courts to create duties but is granted to ensure that existing statutory duties are fulfilled. I don’t suspect that a reviewing court could carve out the specific duty of accepting communications out of the broad powers conferred to the AER.

Certiorari is another administrative remedy granted in only exceptional circumstances. The remedy permits a reviewing court to quash the decision of an administrative body in the case of a jurisdictional error. If the AER made a decision that exceeded its jurisdiction and it adversely impacted the rights or interests of Ernst, than Ernst could seek a writ of certiorari to quash the decision.

While there appears to be no provision under the ERCA that requires the AER to accept or consider communications, it appears that it is within the AER’s jurisdiction to refuse communications:

Powers of Board

20 The Board, with the approval of the Lieutenant Governor in Council, may take any action and may make any orders and directions that the Board considers necessary to effect the purposes of this Act and that are not otherwise specifically authorized by this Act.

The AER could take any action it considered necessary to effect the purposes of the ERCA, including those not specifically authorized by the legislation.

An argument can be made that the provision is too vague to include within it the authority to refuse receipt of communications. However, it can also be argued, and perhaps more convincingly, that the broad powers of the AER also encompass the power to refuse communications from impacted parties such as Ernst. At the very least, it is not possible for the court to assume that the former is the case without first thoroughly examining the provisions of the ERCA to determine what administrative remedies are available, whether it is judicial review, mandamus, certiorari or none, as I submit to be the case.

Conclusion

Ernst v Alberta Energy Regulator could have significant ramifications for holding administrative bodies accountable not only here in Alberta but across the country. If the Alberta Court of Appeal decision is upheld, governments in Canada will effectively have a blueprint to insulate administrative bodies from Charter scrutiny. By including statutory immunity clauses in the empowering statutes of administrative bodies and delegating to them Charter infringing conduct, governments can shield themselves from liability. Government conduct that was once prohibited due to its Charter infringing nature would now be lawful because of the presence of statutory immunity clauses barring Charter remedies. In my view, upholding this approach will invariably lead to an erosion of Charter rights, rendering such constitutional protections meaningless — a significant concern given the emergence and continued growth of the ‘regulatory state’ in Canada.

Mapping Traditional Territory and Securing Aboriginal Rights, Interests and Jurisdiction

In collaboration with North Raven Consulting, Nanda Law is proud to unveil an innovative new consultation tool for First Nations in Alberta. The tool combines technical GIS mapping with precise legal analysis to inform First Nations in Alberta of current and emerging impacts on their traditional territory and treaty rights. With this information, First Nations are better able to anticipate and craft strategies to assert their jurisdiction and interests, minimize encroachment, and maximize benefits.  

In Alberta, the traditional territories of First Nations are under threat by industrial development that often results in the erosion of Treaty rights in exchange for minimal compensation. Government and industry do not respect First Nations’ goals of protecting treaty and Aboriginal rights and maintaining the ability to practice important traditional land uses while also earning an economic livelihood from their traditional territories. They believe that First Nations cannot have both.

To defend their jurisdiction, rights and interests, while adapting to a changing way of life, First Nations must engage in a comprehensive and precise assessment of the threats that exist to their traditional territories, and develop maps and tools that will assist in negotiations with government and industry to minimize impacts and maximize benefits in traditional territories. Only by fully understanding the nature, scope and extent of the threats faced, can First Nations develop and advance a plan to assert their interests and jurisdiction.

To do this, North Raven Consulting and Nanda Law propose an innovative new tool that will include the following components:

1) Full-scale mapping of the traditional territory to highlight First Nation interests, rights corridors and other areas of importance;

2) Identifying spatial and non-spatial government and industry plans (“Plans”) that impact the interests and jurisdiction of the First Nation within their traditional territory;

3) Layering Plans on the traditional territory map, and identifying details and overlaps between First Nation interests and rights with Plans;

4) Applying remote sensing to priority areas to visually display how much industrial disturbance has occurred over the last three decades;

5) Conducting a thorough legal audit of the traditional territory in relation to the Plans and impact on the interests and jurisdiction of the First Nation; and

6) Developing strategies to minimize impacts and maximize benefits from the Plans within the traditional territory.

This tool provides First Nations the foundation to defend their traditional territory, and ensure their jurisdiction, rights and interests are protected for future generations. A drop in oil prices has temporarily slowed industrial development in Alberta, making now an ideal time for First Nations to use their scarce resources to press for better protection to their traditional territories as well as better benefits from their traditional territories.

Deliverables will include:

• A final report on the project with a stand-alone appendix containing results in maps and tables that can be used in negotiations,

• Large (36’’x24’’) hard copies of all maps, which can be used in negotiations, made during the project, and

• A presentation of the project findings to the Chief and Council and the Consultation Coordinator.

(From the Executive Summary of Joint Technical-Legal Proposal for First Nations: Mapping Traditional Territory and Securing Aboriginal Rights, Interests and Jurisdiction, prepared by North Raven Consulting and Nanda Law)

The current economic climate in Alberta presents First Nations with an excellent opportunity to invest in strategic tools to ensure that when development accelerates, they will be ready to respond and effectively participate in consultation frameworks. If you are interested in learning more about this unique tool, please contact Nanda Law.

Letter of Intent: Binding Agreement or Agreement to Agree?

Given the prominent use of Letter of Intents ("LOI") in commercial transactions in Alberta, the lack of clarity over when they become binding agreements is surprising. Fortunately, a recent unreported summary judgment decision by Master Sandra L. Schulz, QC in 1561097 Alberta Ltd. v Parkland Industries Ltd. provides guidance to parties in commercial transactions as to when courts will consider a LOI binding rather than an agreement to agree.

Facts

Parkland Fuel Corporation ("Parkland") is Canada's largest independent fuel distributor, and is an active player in supplying fuel to fuel stations across Alberta. In addition to fuel, Parkland, like other fuel distributors, provides point of sale equipment and technology (POS), major fuel branding and signage, and other features designed to enhance consumer appeal and profitability of fuel stations.

In 2012, the Plaintiff 1561097 Alberta Ltd. ("156 Alberta") began negotiations with Parkland to acquire fuel, a POS and branding for its fuel station located in Alcurve, Alberta. At the outset, Parkland instructed 156 Alberta that in order for more in-depth negotiations to occur, it would require 156 Alberta to execute the following LOI:

156 Alberta did not consider the LOI to be binding. The LOI was considered to be the starting point of negotiations. By executing the LOI, 156 Alberta could assess whether the POS would meet the needs of its business, and firm out other terms for the final agreement. On this understanding, 156 Alberta executed the LOI, and implemented the POS provided by Parkland while it continued with negotiations. Revenues collected through the POS were held in trust by Parkland, and could be used for the purchase of fuel or released back to 156 Alberta.

However, after months of negotiations, 156 Alberta walked away from the deal upon being presented the finalized agreement, which contained key terms missing in the LOI. Chiefly, the requirement that 156 Alberta and its three Directors sign personal guarantees, and agree to a collateral mortgage on the property of the fuel station. Contrary to the terms of the LOI, Parkland did not attach a Standard Form Agreement as a schedule to the LOI, which would have provided 156 Alberta notice of these obligations at the start of negotiations. Only when 156 Alberta was presented with the finalized agreement did it become aware of these requirements and decided it was far too much liability to assume.

Parkland acknowledged that it failed to provide 156 Alberta a Standard Form Agreement with the LOI, but argued that the LOI was still binding and held accumulated revenues from the sales 156 Alberta made through the use of the POS as damages for its breach. 156 Alberta had received $133,418.21 in revenues through use of the POS, which Parkland refused to release.

As a result, 156 Alberta commenced an action by Statement of Claim against Parkland, followed by an Application for Summary Judgment that argued that the LOI was not binding upon the parties.

Law

The law around LOIs, and when they become binding is underdeveloped in Alberta, although a clear framework has emerged.  

Uniform in Substance

For a LOI to be binding, the subsequent formalized or finalized agreement must include terms that match the key provisions of the LOI. Courts will only enforce LOIs when the key terms bargained to by the parties also appear in the finalized agreement. In the event that these key terms fail to appear in the finalized agreement, a LOI could be considered unenforceable.

Conduct Establishing Intention to be Bound

The second part of the framework is whether the parties to the LOI conducted themselves in a manner that suggests that they considered themselves bound by the terms of the LOI. In the event that the key terms in the LOI are not found in the finalized agreement, an LOI will still be binding if the Court finds that there was an intention to be bound by the LOI through the conduct of the parties.

Decision

After reviewing the evidence and submissions of the parties, Master Schulz quickly determined that the LOI was not binding upon the parties. Master Schulz found that the terms of the LOI were clear on its face — a position agreed to by both parties — and that her interpretation of the document was limited to its four corners. In that review, Master Schulz determined that the inclusion of the personal guarantees and collateral mortgage in the finalized agreement were key terms that should have been set out in the LOI. There was no uniformity in substance between the LOI and finalized agreement. As a result, the LOI was not enforceable, resulting in Master Schulz granting 156 Alberta judgment in the sum of $133,418.21.

Analysis

While Master Schulz did not not comment on whether the Court would have found the LOI enforceable had Parkland included a Standard Form Agreement that addressed both the personal guarantees and collateral mortgage, I imagine that this could have very likely been the case. There are, however, broader lessons that can be learned from the decision.

First, personal guarantees and collateral mortgages are essential terms to any agreement. This is uncontroversial, and rather quite apparent, but important to reiterate. Personal guarantees and collateral mortgages are highly regulated and impose significant liability on the parties executing them. In Alberta, guarantees must be explained by a notary public or lawyer to ensure that the guarantor is aware of their legal obligations. The inclusion of personal guarantees and collateral mortgages in any agreement makes them key and central terms that must be overviewed in an explicit and thorough manner. They cannot be imposed on parties as an adhesion to an already executed agreement.

Second, the drafting of the LOI matters, and that parties should be aware of the obligations imposed through its terms. LOIs that do not match oral representations, or what one party expects will appear in the finalized agreement, should not be signed. Neither should parties sign LOIs in order to start or continue negotiations. LOIs are documents that carry with them serious implications, and parties should read, consider and govern their conduct appropriately in relation to them.

Elevating the Precautionary Principle to Constitutional Status under section 7 of the Charter

On September 1, 2015, the Canadian Environmental Law Association (“CELA”), on behalf of Grassy Narrows First Nation and members of the nation, filed an Application for Judicial Review of a pair of decisions made by the Ontario government (“Ontario”) with respect to how an authorized forest management plan (“plan”) will impact their constitutional rights. Members of the Grassy Narrows First Nation fish in the English-Wabigoon river system and have a traditional diet that relies heavily on area fish. Since the 1960s, there have been concerns over mercury poisoning in the watershed, including fish found with high levels of the mercury and members frequently being diagnosed or exhibiting symptoms of mercury poisoning.

The Applicants allege that the approval of clearcut logging under the plan without the requirement of an individual environmental assessment (“IEA”) increases the risk Grassy Narrows First Nation members face of additional mercury poisoning. They alleges that clearcut logging “will trigger new releases of mercury to the watershed, increase the accumulation of mercury in the food chain, and prolong and exacerbate the existing mercury problem.” For this reason, the Applicants plead the decisions made by Ontario to authorize the plan and waive the requirement of an IEA infringes their section 7 Charter rights, which relates to:

the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

I am interested in constitutionalizing environmental protections under Charter, and have recently published an academic article in the Journal for Environmental Law and Practice that explores avenues to do so in the context of heavy oil development in Peace River, Alberta. In the paper, I also devote time to setting out the theoretical basis for bridging the precautionary principle and section 7 of the Charter. From my perspective, the precautionary principle is congruent with section 7 of the Charter of Rights and Freedoms and provides the basis to entrench this foundational environmental principle in the Canadian Constitution.

This post outlines that theory and why entrenching the precautionary principle is an objective worthy of pursuit. Entrenching the precautionary principle in the constitution will add greater substance to Canadian environmental law, provide a clearer avenue for impacted parties to obtain redress, and realize the international and domestic commitments Canadian governments have made to implement the principle in environmental decision making.

This argument proceeds in three parts. First, I define the precautionary principle. Then, I outline section 7 of the Charter of Rights and Freedoms with a focus on how the provision encompasses protections for both actual and prospective harms. I conclude by explaining the consequences of elevating the principle to constitutional status.

1. Precautionary Principle

   There are many competing definitions of the precautionary principle. Generally, the principle can be described as follows: the duty to not approve or engage in activity that causes serious adverse environmental impacts, even if there is no certainty that these adverse impacts will materialize. In other words, the precautionary principle protects against prospective harms that may or may not occur, though a real risk exists.

2. Section 7 of the Charter of Rights and Freedoms

   Section 7 protects against actual deprivations of the life, liberty and security of the person interests of individuals by the state, as well as the risk of deprivation. For instance, in Canada v PHS Community Services Society, Canada v Bedford and Canada v Carter, the claimants did not allege actual section 7 deprivations. Rather, they alleged that the deprivations may occur in the future. It was the risk of harm that flowed from when Insite closed, sex workers had a bad date or when the terminally ill were physically unable to end their own lives. None of these events had yet transpired in these cases or formed the basis of the claims, yet the court still found that the state infringed the claimants’ section 7 rights. 

   In fact, causation under section 7 has developed in a manner that is consistent with its aim of protecting against actual and prospective harms. Claimants are not required to demonstrate direct harm to establish a section 7 violation. They can demonstrate a violation by showing that: (1) they belong to a class of persons, (2) the class of persons is more likely experience a deprivation due to the state’s (in)action, and (3) the claimant faces a real risk of harm due to their membership in the class of persons. Causation allows section 7 to encompass both actual and prospective harms.

3. Consequences of Elevating the Precautionary Principle to Constitutional Status 

There are three potential consequences of elevating the precautionary principle to constitutional status that make pursuing this objective valuable:

(A) Informs Environmental Assessments and Approvals: constitutionalizing the precautionary principle provides substance to environmental assessments, and sets out a clear threshold that must be met for approvals to occur that is beyond the reach of governments. The substance and thresholds of environmental assessments and approvals is currently opaque, different depending on projects and jurisdictions, and continually subject to the whims of the government. This provides a framework that is clear and unchanging, setting out the legal rights and obligations of all parties.

(B) Provides a Clear Mechanism for Impacted Individuals to Challenge or Review Environmental Approvals: recognizing the constitutional status of the precautionary principle will provide an avenue for impacted individuals to challenge or review environmental approvals. Section 7 can be raised anytime an impacted individual believes that state activity or sanctioned activity creates real harm or the risk of harm. It also provides clarity on the type of evidence that must be marshalled in such situations.

(C) Provides the Basis to Realize the Precautionary Principle in Canadian Law: Canada has committed to implementing the precautionary principle in various international treaties and protocols, and the concept is frequently invoked in the preambles of domestic statutes and policies. However, these commitments and invocations have not been realized, as there is no basis to enforce international treaties domestically and statutes do not give rise to causes of action to ensure the principle is adopted. Section 7 provides the space to recognize the precautionary principle in a manner that is entirely consistent with the progression and development of Canadian jurisprudence.

From my perspective, the jurisprudence has developed around s. 7 to allow for the entrenchment of the Precautionary Principle in Canadian constitutional law. The consequences of such a development would have significant impact on environmental assessments and policy in this country. All that is required is for litigants to make this argument on a strong set of facts. One hopes that Grass Narrows First Nation does, and that this case will bridge the Precautionary Principle and Canadian constitution.

How the Right to Self-Government is an Inherent Part of Aboriginal Title

I consider Professor Kent McNeil, Professor of Law at Osgoode Hall Law School, to be the leading thinker on Aboriginal Title in Canada. Professor McNeil provided the theoretical foundation for Aboriginal Title in common law jurisdictions with his 1989 landmark text, Common Law Aboriginal Title. In Delgamuukw v British Columbia, the Supreme Court of Canada would adopt Professor McNeil’s thesis to establish the basis for Aboriginal Title in Canadian law. Professor McNeil has also produced other important writings in the field, which are far too many to recount here, and is consistently cited in Aboriginal Title decisions concerning the nature and scope of the right (to understand Professor McNeil’s influence, just review the Aboriginal Title Trilogy — Delgamuukw, Marshall / Bernard, Tsilhqot'in — and make note of what sources the Supreme Court relies on and where they are cited).

I was fortunate enough to be a student of Professor McNeil’s at Osgoode, where his teaching further instilled and developed my passion and understanding of Aboriginal Title. In the lead up to Tsilhqot’in, I was able to work with Professor McNeil on a special podcast for TheCourt.ca profiling the case. A recent conversation with a colleague in Vancouver led me to revisit the lecture, particularly in relation to the comments Professor McNeil makes (and has made in his writings and other lectures) on the inherent right to self-government that is part and parcel to the grant of Aboriginal Title.

Aboriginal Title provides Aboriginal groups the right to exclusive use and occupation of lands they hold title over, subject to Crown infringements that must be justified. Aboriginal Title is granted to the Aboriginal group as a whole and is communally held, reflecting Indigenous understandings of land ownership in Canada.

Title lands are communally held, but to fully realize and exercise the right, Aboriginal groups need to engage in some sort of internal regulation: how should particular parcels be used (zoning), which plots will be provided to which members, where will public works projects be located (roads, sewers, etc), what types of activities will be permitted and when (hunting, fishing, trapping, etc), etc. However, the Aboriginal group that holds title has sole discretion over how to regulate these land rights among members, without any Crown interference. This is due to the nature of Aboriginal Title, which again is the right to exclusive use and occupation of title lands. Internally, an Aboriginal group’s own laws and customs (Indigenous laws and customs), govern the regulation of land rights among members over title lands.

Therefore, Aboriginal Title not only bestows land rights to Aboriginal groups, but also the implicit right to determine for itself how to use and occupy title lands. In other words, in addition to land rights, it provides Aboriginal groups the right exercise jurisdiction, sovereignty, or self-governance over title lands. To reiterate, Aboriginal Title grants Aboriginal groups both ownership and jurisdiction over title held lands.

Revolutionary, certainly, but not to the degree that detractors would have you believe. As Campbell et al v. AG BC/AG Cda & Nisga'a Nation et al, notes, jurisdictional rights over title lands, as well as the survival of Indigenous laws and customs has long been acknowledged by the Canadian constitution and common law. These rights have been diminished after the assertion of Crown sovereignty, but never extinguished, and continue to survive, and thanks to s. 35 of the Constitution, are constitutionally entrenched.

From my perspective, this understanding carves out a unique jurisdictional space or level of government in Canada for Aboriginal groups. In addition to federal and provincial governments, with their respective spheres of control (and to some extent, municipalities can be lumped in here, though just those that have Charters and been granted exclusive jurisdictional authority and powers), Aboriginal groups have emerged as another political level. While their jurisdiction is relegated in scope to areas they have control over, which in the Aboriginal Title context relates to land rights, it can extend further, as evident in certain modern treaties.

For Aboriginal clients who have never surrendered title rights or that have existing Aboriginal Title claims, I tend to advise that they continue to strongly assert jurisdiction over their lands. First, they have the right to, as title has not been extinguished, and they are asserting their right to exclusive use and occupation of the said lands, subject to Crown infringement. Second, it can also help establish Aboriginal Title claims, as evidence of Indigenous laws and customs can be used to establish control and occupancy, which is a relevant, though not fully realized, method to prove title.

The law around Aboriginal Title rights is still being developed, and it is exciting times for rights holders and legal practioners. Please contact me if I can be of any assistance if dealing with an Aboriginal Title issue.

Litigating Death in Care Cases in Alberta

More than 775 children with some involvement with child protective services in Alberta have died since 1999. This past year alone, approximately 31 children have died while in provincial care or while receiving protective services. The vast majority of children dying in care are of Aboriginal heritage, and all come from marginalized backgrounds. Only until recently have the deaths of all children who die in provincial care been investigated. Prior to 2014, provincial fatality inquiries were only held into select deaths, with none of the findings and recommendations binding on the province or care providers.

For the families of children who have died in care, litigating wrongful death claims against the province and care providers offers an opportunity to obtain redress. Unfortunately, very few cases have been filed, let alone litigated, due in large part, in my view, to the marginalized position of families and the opaqueness of this area of law. With respect to the latter, common law causes of action are non-existent, duties of care are not clearly defined and the jurisprudence is sparse. However, a pair of companion decisions released by Justice Robert A. Graesser in 2014, and a notable decision by the Alberta Court of Appeal on punitive damages in the wrongful death context, provides a path forward. Drawing from these decisions and a more recent one, this post outlines a potential legal framework that could be used to inform and help formulate death in care claims against the province and care providers whose wrongful conduct led to the death. It is intended to spark a conversation on how lawyers can assist families of children who have died in care obtain financial restitution and push for reform to the child protective services system in Alberta. 

Causes of Action and Damages in Death in Care Claims

The common law provides no basis for families of individuals who have died through wrongful means to recover damages for the loss resulting from the death. Statutory causes of action are instead relied upon to obtain financial restitution, which in Alberta is primarily set out under the Fatal Accidents Act (the Survival of Actions Act RSA 2000, c S-27 provides another statutory cause of action but is not relevant in this particular context. For the Survival of Actions Act to be pled, claimants have to demonstrate that the deceased or their estate suffered actual financial loss as result of the death, which is unlikely here, as the deceased are children). 

The Fatal Accidents Act provides the family of the deceased a statutory cause of action for non-pecuniary damages against those whose wrongful act, neglect or default caused the death of the deceased. Pursuant to section 8(2)(b), the parents of children who have died in care, and potentially the children of the children who have died in care, are entitled to damages for bereavement (defined more specifically as damages for grief and loss of the guidance, care and companionship of the deceased person). See Non-Fatal Exclusion: The Fatal Accidents Act, Stepchildren, and Equality Rights for an overview of the history and context of the Fatal Accidents Act. Any sort of negligence (including systemic negligence, which has been pled in this context), breach of fiduciary duty or other cause of action that resulted in a child in care’s death could be subsumed under the Fatal Accidents Act. Damages may be awarded without reference to any other damage awards granted and without evidence of damage. The parent or parents of the deceased child are entitled to a statutory maximum of $82,000 in damages, to be divided equally if the action is brought for the benefit of both parents. 

In FRN v Alberta and SM v Alberta, Justice Graesser considers two applications to strike brought by the Crown against claims filed by families of children who have died in provincial care. In considering the applications, which are partially successful, Justice Graesser provides a template for wrongful death claims in this context. Justice Graesser thoroughly examines the pleadings for causes of action against the Crown and care providers, which in both cases are individual foster parents and not corporate care providers. While it is necessary to read both companion decisions in their entirety, for the sake of brevity, Justice Graesser examines the various causes of action pled against the defendants and narrows them to two that could be meritorious. 

In addition to damages under the Fatal Accidents Act, families may also be entitled to damages under section 24(1) of the Charter of Rights and Freedoms according to Justice Graesser (FRN v Alberta at paras 50 -55 and 75-88, SM v Alberta at paras 87 – 104, 129). Damages could be awarded to the parents of children in care for the violation of their Charter rights as a result of the death. Justice Graesser identifies potential section 7 Charter rights that could be breached in such instances, including:

1. the right to nurture one’s child, to care for its development and to make decisions for it in fundamental matters, but not limited to medical care and moral upbringing; and
2. the right to physical and psychological integrity (FRN v Alberta at para 87 and SM v Alberta at para 100).

It is important to recognize that the enumerated section 7 rights relate to the rights of the parents and not of the children themselves, as Charter cannot generally be asserted after death.

Justice Graesser also sets out potential principles of fundamental justice that claimants could rely on to make out their section 7 Charter claims, the most relevant being:

1. that to have a right, you must have a remedy when your right is violated;
2. if a child is being provided with care under the Act, the child should be provided with a level of care that is adequate to meet the needs of the child; and
3. there should be no unreasonable delay in making or implementing a decision affecting a child (SM v Alberta at para 101).

While it is not certain whether Charter arguments can be successfully made in each case, Justice Graesser makes clear that the apprehension, custody and death of a child in care could lead to such section 7 violations and corresponding damage awards under section 24(1). 

In the event that the children of a child who has died in care bring a claim under the Fatal Accidents Act, the statutory award they would be entitled to is $49,000 for each child. The award is not split between the children, as it is for parents of deceased children under the Act, but represents their individual entitlement. Moreover, as indicated in Argent v Gray, 2015 ABQB 292, pursuant to section 5.1(2) of the Limitations Act, RSA 2000, c L-12 the two year limitations period for the children would be suspended until they reached the age of majority, recommencing afterwards. While this scenario may be rare, there is a distinct possibility that this could occur, and given the quantum of damages and limitations issues described above, filing on behalf of the children may provide a strategic advantage to the family of the deceased over filing on behalf of the parents. 

Until recently it was generally thought that claimants were limited to non-pecuniary damages under the Fatal Accidents Act and not entitled to punitive damages. This understanding changed with Steinkrauss v Afridi, 2013 ABCA 417 (clarified in Steinkrauss v Afridi, 2014 ABCA 14 – See Punitive Damages Now Possible in Alberta Fatal Accidents Actions for further discussion of punitive damages and the Fatal Accidents Act) For the first time, the Court acknowledged that punitive damages could be awarded under the Fatal Accidents Act, and that such awards would be granted in addition to the $82,000 maximum set out for bereavement damages in the legislation. Provided that it can established that conduct related to the wrongful act, negligence or default that led to the death was so egregious that it must be punished, denounced or deterred, claimants are now entitled to punitive damages in Alberta. From my experience litigating such cases, punitive damages are a real possibility given the often tragic and preventable manner in which many children in care die. 

The number of children dying in care in Alberta is alarming. While there are a multitude of factors involved, the number of deaths caused by accidental or preventable means is disturbing. For both the families, and social justice activists interested in pursuing policy reform through the law, the civil justice system can provide a method to force the province and care providers to ensure there are adequate safeguards and protections for children in their care.

(This piece was first published on ABlawg).

Why We Practice Public Law

While I represent clients in a variety of different matters, my area of interest is public law. Public law refers to:

(a) the legal relationships between individuals and the state; and

(b) the legal relationships between individuals that are of importance to the public.

This area of law is broad, and has had me assist clients with a variety of issues, including: trademark disputes, suing governments for the wrongful deaths of children in their care, helping an elderly couple maintain their disability benefits while being away from the country, advising First Nations on their treaty rights, and representing religious organizations in municipal tax appeals.

My interest in this area of law is two-fold. First, my conception of justice innately draws me to issues involving individuals and the state, and the laws that regulate that relationship. Second, in this area of practice, you are able to link the specific with the broad, and if you are fortunate, influence public policy towards your understanding of the Good. These are the driving forces that undergird my passion for public law, and my interest in assisting individuals and groups in their efforts to hold the state accountable.

Nanda Law emerged from this mould: a strong passion and interest in public law matters, but with a keen eye towards emerging issues. We also strive to do law differently. From how we treat and assist clients, to how we approach legal issues. For instance, we are the first law firm in Canada to partner with an environmental and indigenous land-use consulting firm, which ensures that our Aboriginal clients have full-scale representation and understanding of their legal issues. Moreover, we have successfully crafted novel legal arguments and claims in a variety of public law areas, and work tirelessly to ensure that our clients assert and defend their rights to the fullest extent possible.

Public law is our focus and expertise, and we are capable and committed to helping individuals and groups across Alberta and British Columbia in their claims against the state.