AER Duty of Care Anywhere? Judge decries chaos, uncertainty around liability of public authorities: “Such a low standard would immunize government from liability in every case of bureaucratic ineptitude, no matter how substandard or damaging the misconduct may be. No court anywhere has set the bar that low.” [Except in Alberta?]

The Ernst #Fracking Litigation: ABQB’s Duty of Care Analysis for ERCB & AEnv in GIF Form #firsttime #readytoflip posted by Martin Olszynski April 12, 2015

AER ERCB vs Alberta Environment Proximity Animation

Click here or above image to play the Ernst frac case Duty of Care animation

The Hill case involved a wrongful arrest; Cooper was a case about financial losses in the stock market.

Judge decries chaos, uncertainty around liability of public authorities by Glenn Kauth, April 13, 2015, Canadian Lawyer Magazine

“In support of its conclusion that the beekeepers’ claim was subject to a policy bar and should be struck, the Federal Court held that recognizing a duty of care ‘could have’ a chilling effect on Canada’s performance of its duties. . . . Here, again I disagree,” wrote Stratas.

“In law, this standard — ‘could have” — sets the bar far too low. One can always speculate that recognizing a duty of care could have a chilling effect. Such a low standard would immunize government from liability in every case of bureaucratic ineptitude, no matter how substandard or damaging the misconduct may be. No court anywhere has set the bar that low.”

In the end, Stratas, with Justice Marc Nadon concurring, decided the court should allow the claim to continue. But he then went on to expound on whether the legal system should do more to allow a route for monetary remedies based on public law principles through, for example, judicial review.

“By and large, our common law recognizes the differences between private and public spheres and applies different rules to them. Private matters are governed by private law and are addressed by private law remedies; public matters are governed by public law and are addressed by public law remedies,” he wrote.

“This anomaly should now end. The law of liability for public authorities should be governed by principles on the public law side of the divide, not the private law side,” he added.

“What are the principles of the underlying public law?” he continued.

Today, they are found primarily in administrative law, in particular the law of judicial review. Broadly speaking, we grant relief when a public authority acts unacceptably or indefensibly in the administrative law sense and when, as a matter of discretion, a remedy should be granted. These two components — unacceptability or indefensibility in the administrative law sense and the exercise of remedial discretion — supply a useful framework for analyzing when monetary relief may be had in an action in public law against a public authority.

Martin Olszynski, an assistant professor at the University of Calgary Faculty of Law, says the comments were essentially obiter outlining a framework for a better way of dealing with chaotic state of the law the judge identified when it comes to liability on the part of public authorities.

The idea, he says, would be to apply the concepts of unacceptability or indefensibility to determine whether to grant monetary relief in judicial reviews, an area where he notes applicants typically don’t seek a financial remedy. Stratas’ comments, then, are about “broadening the scope and applicability of judicial review as a tool and expanding it,” according to Olszynski. [Emphasis added]

HEARTBREAKING: Supreme Court of Canada declines to hear farmers’ appeal by Jeffrey Heyden-Kaye, April 15, 2015, Ponoka News
An appeal to the Supreme Court to hear a class action lawsuit against the federal government’s decision to dismantle the Canadian Wheat Board (CWB) was declined.

The Friends of the CWB issued a statement last week expressing their disappointment in the Canadian legal system.

“The legal system has quite simply not been able to afford justice to western Canadian farmers so far,” stated Friends’ spokesperson Stewart Wells.

Dismantling the CWB has resulted in lower prices of grains for farmers, added the Canadian Wheat Board Alliance. A fact sheet is provided by the alliance showing the cost of wheat per bushel in February compared to prices during CWB days.

Of the $11.38 per bushel price at the port on Feb. 26, elevators and railways received $6.69 per bushel while the farmer received $4.69, a share of only 41 per cent , compared to 90 per cent share in 2009. While prices were lower in 2009, $6.82 per bushel at the port, farmers received $6.16 cents per bushel.

Doug Hart has been advocating farmers’ rights for some time and he feels there are two issues:

• Getting the best price for farmers.

• Farmers feel they should have the right to the work that the CWB did.

“They’re failing on both those counts,” said Hart, who also spoke against the controversial omnibus Bill C-18 last year.

While grain prices are up, the farmers’ portions are down, said Hart. Some of the money is going to the brokers who are agents for the farmers and buyers. “And they have no mud on their boots,” he stressed.

He suggests farmers are losing on the deal and feels there is some precedent for them suing the federal government. He referred to Jessica Ernst, who is suing Alberta Environment, the Energy Resources Conservation Board and Encana for negligent investigation of fracking that led to water well contamination.

He said it took three years in determining if Ernst was even allowed to sue.

“I would argue that they’re (the farmers) trying to do the same thing here,” said Hart.

He feels the federal government did not considers farmers’ rights before shutting down the CWB.

“The Government of Canada and (Agriculture) Minister Gerry Ritz have a duty of care to farmers.”

The National Farmers Union (NFU) also expressed its disappointment with the decision. In a press release on Friday, April 10 the NFU states if the Supreme Court had heard the case, it would have been able to determine whether common law rights applied to assets that farmers paid for.

“Did the federal government unlawfully expropriate a proprietary interest of grain producers in the CWB by enacting the Marketing Freedom for Grain Farmers Act in 2011?” asks the release.

NFU board member Doug Scott states that with the CWB, farmers got close to 100 per cent of the price of grain but that has since changed.

The main appeal was submitted by four farmers representing the western provinces and includes Harold Bell of British Columbia, Andrew Dennis of Manitoba, Nathan Macklin of Alberta and Ian McCreary of Saskatchewan. [Emphasis added]

Government privatizes wheat board in deal with G3 Global Grain Group by Chinta Puxley, The Canadian Press, April 14, 2015, Calgary Herald

The federal government is moving to privatize the Canadian Wheat Board in a deal with a company partially owned in Saudi Arabia.

G3 Global Grain Group will get 50.1 per cent of the company in exchange for an investment of $250 million. G3 is a joint venture between Bunge Canada, and SALIC Canada, a subsidiary of the Saudi Agricultural and Livestock Investment Co.

The rest will be kept in trust for farmers who deliver grain to the board. They will get $5 per tonne in units controlled by the trust. In seven years, G3 Global Grain Group has the option to buy back the units from farmers at market value.

While the Opposition NDP called the deal “economic treason,” Agriculture Minister Gerry Ritz said it will increase Canada’s ability to export grain, create jobs and spawn economic growth on the Prairies. “Every relevant [???] farm group across Canada supports this move,” he said in Winnipeg on Wednesday. “We see this as a great first step moving forward. We look forward to having another viable competitor.”

Prairie farmers used to sell their wheat and barley to the board, which in turn exported it to foreign markets. Despite vocal opposition and several lawsuits, the federal government went ahead three years ago with a long-standing promise to abolish the monopoly. A proposal that would have seen a farmer-owned entity acquire the wheat board was rejected by the board last year. 

Karl Gerrand, president and CEO of G3, said the company will be based in Winnipeg and is an “independent Canadian agri-business.” Canadian farmers who deliver to the board will have a stake and say in its future, he said. [How, with the ability to buy the farmers’ stake in 7 years?] “G3 will use the knowledge and expertise of these farmer equity holders to help guide our growth strategy, to help us stay focused and to create opportunities for all of our stakeholders.” [Tells Canadians what we need to know about the give away, and the Harper government]

Grain farmer Dan Mazier, president of the Keystone Agricultural Producers in Manitoba, said the prospect of new players with the infrastructure to move Canadian grain is exciting. But many were taken aback by the clause allowing G3 to buy back equity from farmers, he added.

“We didn’t see that one coming at all. That’s got everybody kind of concerned.”

Ian White, president of the Canadian Wheat Board, said the deal will give the board a “world-class presence.” [Oh?  Like the legally immune, No Duty of Care Charter violating AER?] “We’re creating a powerful new player in Western Canada,” he said.

NDP critic Pat Martin called it “a day of infamy on the Canadian Prairies.” The federal Tories legislated the most successful grain marketing company in the world out of business for ideological reasons and handed it over to “foreign entities free of charge.”

“They thought it was communism for Canadian farmers to act co-operatively in their own best interests,” Martin said. “Our worst fears are realized. This is the death rattle of a great Canadian institution.”

Anders Bruun, lawyer for Friends of the Canadian Wheat Board, said the deal represents the largest transfer of wealth from farmers in Canadian history.

He said it’s not clear how farmers will benefit from owning units in a trust rather than shares in the new wheat board.

“Some people will be asking if those units are really worth a lot,” Bruun said. “We’re flying in fog here and that fog goes all the way to the ground.” [Emphasis added]

2015 04 18 Malcolm Mayes Cartoon, Saudi co bought CWB

Cartoon by Malcolm Mayes, Edmonton Journal, April 18, 2015

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