Carolyn Milne, Vivek Warrier, Dierdre Sheehan, Blake Williams
This article provides an overview of recent regulatory and legislative developments from May 2017 to April 2018 of interest to energy lawyers. This includes the legal, political, and economic background to, and consequences of, new legislation and regulatory regimes. Also included are discussions of recent and ongoing judicial and regulatory decisions involving energy law. Topics discussed include market access and pipeline matters, climate change regulation, impact assessment changes, Aboriginal consultation, and abandonment liability.
{"title":"Recent Legislative and Regulatory Developments of Interest to Energy Practitioners","authors":"Carolyn Milne, Vivek Warrier, Dierdre Sheehan, Blake Williams","doi":"10.29173/ALR2512","DOIUrl":"https://doi.org/10.29173/ALR2512","url":null,"abstract":"This article provides an overview of recent regulatory and legislative developments from May 2017 to April 2018 of interest to energy lawyers. This includes the legal, political, and economic background to, and consequences of, new legislation and regulatory regimes. Also included are discussions of recent and ongoing judicial and regulatory decisions involving energy law. Topics discussed include market access and pipeline matters, climate change regulation, impact assessment changes, Aboriginal consultation, and abandonment liability.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2018-12-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47331657","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Stores Block, a 2006 Supreme Court of Canada case, established that utilities are the sole owners of utility assets, thereby granting them the right to gain on the disposition of such assets. The case was game-changing, spawning a string of Alberta Court of Appeal, Supreme Court of Canada, and regulatory body decisions. This article traces the progression of these decisions and examines their implications for property ownership principles, including utility asset dispositions, utility rate bases, the prudent investment test, and stranded assets. The authors ultimately argue that these interpretations of Stores Block have led to “deleterious effects” for regulated utilities in Alberta, and discuss resulting attempts at legislative intervention by the Government of Alberta.
{"title":"Prudence, Stranded Assets, and the Regulation of Utilities: A Review of Alberta Utility Regulatory Principles in a Post-Stores Block Era","authors":"Lou Cusano, D. M. Wood, E. Dickinson, G. Bruni","doi":"10.29173/ALR2509","DOIUrl":"https://doi.org/10.29173/ALR2509","url":null,"abstract":"Stores Block, a 2006 Supreme Court of Canada case, established that utilities are the sole owners of utility assets, thereby granting them the right to gain on the disposition of such assets. The case was game-changing, spawning a string of Alberta Court of Appeal, Supreme Court of Canada, and regulatory body decisions. This article traces the progression of these decisions and examines their implications for property ownership principles, including utility asset dispositions, utility rate bases, the prudent investment test, and stranded assets. The authors ultimately argue that these interpretations of Stores Block have led to “deleterious effects” for regulated utilities in Alberta, and discuss resulting attempts at legislative intervention by the Government of Alberta.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2018-12-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44682957","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Michael A. Marion, Miles Pittman, Leanne Desbarats, Blair McGeough
This article explores common legal issues that arise in the purchase and sale of energy assets. Legal disputes are frequent because of the complex nature of these transactions. The authors begin by discussing the ambiguities in purchase and sale agreements, and how the courts interpret them. Second, the authors analyze the types of disputes that can arise prior to closing that can compromise or frustrate the finalization of the sale. Third, post-closing disputes relating to the subject-matter of transactions, breaches of representations and warranties, and the mechanics of indemnities are considered. Finally, the authors close by examining other issues which may impact the ability of a party to bring a claim.
{"title":"Sober Second Thoughts: Litigating Purchase and Sale Agreements in the Energy Industry","authors":"Michael A. Marion, Miles Pittman, Leanne Desbarats, Blair McGeough","doi":"10.29173/ALR2510","DOIUrl":"https://doi.org/10.29173/ALR2510","url":null,"abstract":"This article explores common legal issues that arise in the purchase and sale of energy assets. Legal disputes are frequent because of the complex nature of these transactions. The authors begin by discussing the ambiguities in purchase and sale agreements, and how the courts interpret them. Second, the authors analyze the types of disputes that can arise prior to closing that can compromise or frustrate the finalization of the sale. Third, post-closing disputes relating to the subject-matter of transactions, breaches of representations and warranties, and the mechanics of indemnities are considered. Finally, the authors close by examining other issues which may impact the ability of a party to bring a claim.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2018-12-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41710795","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
S. Gordon, Howard A. Gorman, Q.C., G. Benediktsson
This article provides practical insight and strategic guidance regarding how to properly structure the prosecution or defence of a claim in a rising and falling market, and what expert and fact evidence is necessary. First, the article discusses the threshold required to be awarded specific performance and how courts have interpreted Semelhago’s “uniqueness” test, especially in the context of property purchased for commercial investment purposes. Next, if specific performance is not awarded, the valuation date must be chosen. The authors propose a new “hybrid approach” for assessing damages whereby the loss based on actual cash follow up to the date of trial is measured (and a risk adjustment applied to reflect that revenues are never earned risk-free). The net present value of remaining cash flow is then calculated on the basis of the most recent data available at the date of trial. The proposed hybrid approach allows the plaintiff to receive the value of land less the cost to acquire it, plus in every claim month the plaintiff receives the cash it would have earned, but also assumes the risk of operating the land as of that time. Finally, in considering Southcott the authors address some strategic and practical considerations regarding mitigation and the needed evidentiary burden to consider.
{"title":"May You Litigate in Interesting Times: Specific Performance, Mitigation, and Valuation Issues in a Rising (or Falling) Market","authors":"S. Gordon, Howard A. Gorman, Q.C., G. Benediktsson","doi":"10.29173/ALR2508","DOIUrl":"https://doi.org/10.29173/ALR2508","url":null,"abstract":"This article provides practical insight and strategic guidance regarding how to properly structure the prosecution or defence of a claim in a rising and falling market, and what expert and fact evidence is necessary. First, the article discusses the threshold required to be awarded specific performance and how courts have interpreted Semelhago’s “uniqueness” test, especially in the context of property purchased for commercial investment purposes. Next, if specific performance is not awarded, the valuation date must be chosen. The authors propose a new “hybrid approach” for assessing damages whereby the loss based on actual cash follow up to the date of trial is measured (and a risk adjustment applied to reflect that revenues are never earned risk-free). The net present value of remaining cash flow is then calculated on the basis of the most recent data available at the date of trial. The proposed hybrid approach allows the plaintiff to receive the value of land less the cost to acquire it, plus in every claim month the plaintiff receives the cash it would have earned, but also assumes the risk of operating the land as of that time. Finally, in considering Southcott the authors address some strategic and practical considerations regarding mitigation and the needed evidentiary burden to consider.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2018-12-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41822439","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
As the Atlantic Canadian oil and gas industry continues to mature, offshore regulators face new and varied issues as they work to implement the objectives of the Atlantic Accords. Laws that were largely developed before the Atlantic Canadian offshore contained producing projects are now being applied to a diverse and evolving industry. As is often the case, laws, as expressed on paper, can prove difficult to apply to each unique set of circumstances that arises in practice.Fundamentally, many of the powers of the Atlantic Canadian offshore regulators rely on the concept of “waste.” An offshore regulator can order a company to commence, continue, or increase production of petroleum where it is of the opinion that such an order “would stop waste.” Conversely, the regulators may order a decrease, cessation, or suspension of the production of petroleum for the same reason. In certain situations of “waste,” the Accord Acts provide for a “forced marriage” via compulsory unitization.While “waste” is instrumental to the authority of the offshore regulators, by necessity its definition is open to some interpretation. This article will explore various interpretations of “waste,” and examine the role of waste in the Atlantic Canadian offshore regimes.
{"title":"Waste Not, Want Not: \"Waste\" as a Tool of Resource Conservation in the Atlantic Canadian Offshore","authors":"G. Moores, M. Andrews, A. Whitehead","doi":"10.29173/ALR2506","DOIUrl":"https://doi.org/10.29173/ALR2506","url":null,"abstract":"As the Atlantic Canadian oil and gas industry continues to mature, offshore regulators face new and varied issues as they work to implement the objectives of the Atlantic Accords. Laws that were largely developed before the Atlantic Canadian offshore contained producing projects are now being applied to a diverse and evolving industry. As is often the case, laws, as expressed on paper, can prove difficult to apply to each unique set of circumstances that arises in practice.Fundamentally, many of the powers of the Atlantic Canadian offshore regulators rely on the concept of “waste.” An offshore regulator can order a company to commence, continue, or increase production of petroleum where it is of the opinion that such an order “would stop waste.” Conversely, the regulators may order a decrease, cessation, or suspension of the production of petroleum for the same reason. In certain situations of “waste,” the Accord Acts provide for a “forced marriage” via compulsory unitization.While “waste” is instrumental to the authority of the offshore regulators, by necessity its definition is open to some interpretation. This article will explore various interpretations of “waste,” and examine the role of waste in the Atlantic Canadian offshore regimes.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2018-12-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45210151","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article summarizes a number of recent judicial decisions of interest to energy lawyers. The authors review and comment on the past year’s case law in several areas including contractual interpretation, employment and labour law, Aboriginal law, constitutional law, intellectual property, bankruptcy and insolvency, and selected developments relating to summary judgments. Specific topics addressed include the appropriate standard of review, workplace drug and alcohol testing policies, appellate intervention in commercial arbitration, the appropriateness of granting summary judgments, valuation of dissenting shareholders’ shares, a duty to consult, the applicability of municipal bylaws when they conflict with federal legislation, and the rights and obligations of oil and gas companies placed into receivership. For each case, some background information is given, followed by a brief explanation of the facts, a summary of the decision, and commentary on the outcome.
{"title":"Recent Judicial Decisions of Interest to Energy Lawyers","authors":"O. Dixon, C. Feasby, J. Lee","doi":"10.29173/ALR2511","DOIUrl":"https://doi.org/10.29173/ALR2511","url":null,"abstract":"This article summarizes a number of recent judicial decisions of interest to energy lawyers. The authors review and comment on the past year’s case law in several areas including contractual interpretation, employment and labour law, Aboriginal law, constitutional law, intellectual property, bankruptcy and insolvency, and selected developments relating to summary judgments. Specific topics addressed include the appropriate standard of review, workplace drug and alcohol testing policies, appellate intervention in commercial arbitration, the appropriateness of granting summary judgments, valuation of dissenting shareholders’ shares, a duty to consult, the applicability of municipal bylaws when they conflict with federal legislation, and the rights and obligations of oil and gas companies placed into receivership. For each case, some background information is given, followed by a brief explanation of the facts, a summary of the decision, and commentary on the outcome.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2018-12-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47394101","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The recent fashion in the Canadian law of judicial review is to apply the reasonableness standard of review to virtually any decision rendered by an administrative decision-maker. Reasonableness review is a deferential standard of review that requires a court to ensure that the administrative decision falls within a range of reasonable outcomes that are defensible in light of the facts and law. When reasonableness review is applied to questions of law, the Supreme Court has occasionally ruled that the question admits of only one reasonable interpretation and has affirmed or quashed an administrative decision on that basis.This article addresses the difficult question of whether a judicial decision affirming that a provision admits of only one reasonable interpretation is strictly binding on an administrative decision-maker interpreting that provision in the future. If reasonableness review is premised on deference, then deference ought to apply to an administrative decision-maker’s interpretation of that question in the future, even if it differs from the court’s interpretation. After situating this issue within the principled foundation of the Canadian law of judicial review, this article explores possible solutions to this problem, attempting to balance the need to protect the rule of law against the rationale for deference to administrative interpretations of law in the first place. It ultimately concludes by suggesting that, should Canadian courts continue to apply reasonableness review to virtually all questions of law, a uniquely administrative law approach to stare decisis will need to be developed in order to maintain a coherent and principled system of judicial review.
{"title":"Rethinking the Ramifications of Reasonableness Review: Stare Decisis and Reasonableness Review on Questions of Law","authors":"M. Biddulph","doi":"10.29173/alr2499","DOIUrl":"https://doi.org/10.29173/alr2499","url":null,"abstract":"The recent fashion in the Canadian law of judicial review is to apply the reasonableness standard of review to virtually any decision rendered by an administrative decision-maker. Reasonableness review is a deferential standard of review that requires a court to ensure that the administrative decision falls within a range of reasonable outcomes that are defensible in light of the facts and law. When reasonableness review is applied to questions of law, the Supreme Court has occasionally ruled that the question admits of only one reasonable interpretation and has affirmed or quashed an administrative decision on that basis.This article addresses the difficult question of whether a judicial decision affirming that a provision admits of only one reasonable interpretation is strictly binding on an administrative decision-maker interpreting that provision in the future. If reasonableness review is premised on deference, then deference ought to apply to an administrative decision-maker’s interpretation of that question in the future, even if it differs from the court’s interpretation. After situating this issue within the principled foundation of the Canadian law of judicial review, this article explores possible solutions to this problem, attempting to balance the need to protect the rule of law against the rationale for deference to administrative interpretations of law in the first place. It ultimately concludes by suggesting that, should Canadian courts continue to apply reasonableness review to virtually all questions of law, a uniquely administrative law approach to stare decisis will need to be developed in order to maintain a coherent and principled system of judicial review.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2018-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45141192","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article conducts a comprehensive review of Alberta’s Mine Financial Security Program (MFSP), the provincial program that governs the collection of financial assurance for reclamation liabilities (also known as “reclamation liability security,” “financial reclamation sureties,” or “closure bonds”). This article assesses the MFSP program in relation to surface oil sands mining. It concludes that while the recently implemented MFSP has improved some aspects of the oil sands reclamation security regime, Alberta’s MFSP still suffers from issues of transparency, inadequate collection of financial security, and utilization of underinclusive classifications of environmental liabilities. Moreover, this article analyzes the particular risk that oil sands assets have of “stranding” (namely, being unanticipatedly or prematurely written off, downwardly revalued, or converted to a liability) as well as how stranding would impact Alberta’s financial assurance regime.This article concludes that while the oil sands are at a heightened risk for asset stranding compared to the international oil industry as a whole, international oil and gas assets are unlikely to become completely stranded. This article also finds that investors have likely already priced the risk of asset stranding at 1.5–2 percent and will be unlikely to readjust their portfolios unless divestment campaigns strengthen or environmental legislation becomes more certain. The MFSP uses a method that does not account for large fluctuations in oil prices, nor does it sufficiently account for the risk of partial stranding. If asset stranding were to occur, the only way the Alberta government would be able to afford the costs of reclamation would be to paradoxically develop the very resource that was defaulted on, against the environmental legislation or political pressures that caused the stranding.
{"title":"Alberta’s Oil Sands: An Unsecured Asset? An Analysis of the Mine Financial Security Program in Relation to Surface Mining of the Alberta Oil Sands","authors":"Michelle Cook","doi":"10.29173/ALR2501","DOIUrl":"https://doi.org/10.29173/ALR2501","url":null,"abstract":"This article conducts a comprehensive review of Alberta’s Mine Financial Security Program (MFSP), the provincial program that governs the collection of financial assurance for reclamation liabilities (also known as “reclamation liability security,” “financial reclamation sureties,” or “closure bonds”). This article assesses the MFSP program in relation to surface oil sands mining. It concludes that while the recently implemented MFSP has improved some aspects of the oil sands reclamation security regime, Alberta’s MFSP still suffers from issues of transparency, inadequate collection of financial security, and utilization of underinclusive classifications of environmental liabilities. Moreover, this article analyzes the particular risk that oil sands assets have of “stranding” (namely, being unanticipatedly or prematurely written off, downwardly revalued, or converted to a liability) as well as how stranding would impact Alberta’s financial assurance regime.This article concludes that while the oil sands are at a heightened risk for asset stranding compared to the international oil industry as a whole, international oil and gas assets are unlikely to become completely stranded. This article also finds that investors have likely already priced the risk of asset stranding at 1.5–2 percent and will be unlikely to readjust their portfolios unless divestment campaigns strengthen or environmental legislation becomes more certain. The MFSP uses a method that does not account for large fluctuations in oil prices, nor does it sufficiently account for the risk of partial stranding. If asset stranding were to occur, the only way the Alberta government would be able to afford the costs of reclamation would be to paradoxically develop the very resource that was defaulted on, against the environmental legislation or political pressures that caused the stranding.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2018-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43052343","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Medical assistance in dying (MAID) is a relatively new phenomenon in Canada, and is therefore a growing area of interest in the legal and medical communities. Research is hampered, however, by the lack of a standardized approach to collecting data on MAID cases. The authors first discuss the importance of having comprehensive data to improving preventative and end-of-life care across Canada. The authors then canvas the existing framework for reporting MAID cases in Canada before noting its deficiencies, most importantly, a lack of comprehensive, nation-wide data collection. The authors then propose a model for national data collection based on the existing Canadian cancer registry system.
{"title":"Medical Assistance in Dying: Canadian Registry Recommendations","authors":"Q. C. R. M. Carter, Brandyn Rodgerson, M. Grace","doi":"10.29173/ALR2497","DOIUrl":"https://doi.org/10.29173/ALR2497","url":null,"abstract":"Medical assistance in dying (MAID) is a relatively new phenomenon in Canada, and is therefore a growing area of interest in the legal and medical communities. Research is hampered, however, by the lack of a standardized approach to collecting data on MAID cases. The authors first discuss the importance of having comprehensive data to improving preventative and end-of-life care across Canada. The authors then canvas the existing framework for reporting MAID cases in Canada before noting its deficiencies, most importantly, a lack of comprehensive, nation-wide data collection. The authors then propose a model for national data collection based on the existing Canadian cancer registry system.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2018-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44383071","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Doré and Loyola affirmed that administrative decision-makers have a duty to balance statutory aims and values protected by the Charter. In several cases, decision-makers have weighed Charter protections and values on both sides of a contested issue. Sometimes this is a matter of a genuine conflict between different Charter restraints on the state. In other situations, Charter values or even Charter rights have been found to weigh on the side of state action, providing support and justification for an otherwise Charter-infringing state act. Such cases challenge an orthodox understanding of the Charter’s nature and role. In this article, the author describes the orthodox view of the Charter within a broadly classical liberal model; that is, as being a restraint on the state, as affecting government rather than private conduct, and as being a source of few free-standing positive entitlements. The author then describes the pre-Doré exceptions to these basic precepts and contrasts the uses made of the Charter by administrative decision-makers via the balancing prescribed in Doré and Loyola, noting where the outcome or analysis has challenged an orthodox conception of our Charter. The article then situates these developments within contemporary discussions of the relevance of orthodox liberal constitutionalism in Canada.
{"title":"Novel Uses of the Charter Following Doré and Loyola","authors":"Edward Cottrill","doi":"10.29173/alr2498","DOIUrl":"https://doi.org/10.29173/alr2498","url":null,"abstract":"Doré and Loyola affirmed that administrative decision-makers have a duty to balance statutory aims and values protected by the Charter. In several cases, decision-makers have weighed Charter protections and values on both sides of a contested issue. Sometimes this is a matter of a genuine conflict between different Charter restraints on the state. In other situations, Charter values or even Charter rights have been found to weigh on the side of state action, providing support and justification for an otherwise Charter-infringing state act. Such cases challenge an orthodox understanding of the Charter’s nature and role. In this article, the author describes the orthodox view of the Charter within a broadly classical liberal model; that is, as being a restraint on the state, as affecting government rather than private conduct, and as being a source of few free-standing positive entitlements. The author then describes the pre-Doré exceptions to these basic precepts and contrasts the uses made of the Charter by administrative decision-makers via the balancing prescribed in Doré and Loyola, noting where the outcome or analysis has challenged an orthodox conception of our Charter. The article then situates these developments within contemporary discussions of the relevance of orthodox liberal constitutionalism in Canada.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":null,"pages":null},"PeriodicalIF":0.5,"publicationDate":"2018-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42726465","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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