By: Avnish Nanda
PDF Version: Litigating Death in Care Cases in Alberta
Legislation and Cases Commented On: Fatal Accidents Act, RSA 2000, c F-8, Argent v Gray, 2015 ABQB 292, FRN v Alberta, 2014 ABQB 375, SM v Alberta, 2014 ABQB 376
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.
By: Martin Olszynski
PDF Version: 5 Things I learned about Canada’s New Fish Habitat Protection Laws
Case Commented On: Section 35 of the Fisheries Act, RSC 1985 c F-14, as amended by the Jobs, Growth and Long-term Prosperity Act, SC 2012, c 19
This is a follow-up post to an earlier blog from May in which Alex Grigg and I described a research project looking into the new “fisheries protection” regime under the amended Fisheries Act. Interested readers are referred to that post for background. Briefly, in order to gain insight into the difference between the previous habitat protection regime and the new fisheries protection regime, we analyzed the primary permitting vehicle in this context, the Fisheries Act section 35 authorization (previously authorizing harmful alteration, disruption or destruction of fish habitat, now authorizing the death of fish and the permanent alteration or destruction of fish habitat). One hundred and eighty four authorizations (just over 1600 pages worth) issued by the Department of Fisheries and Oceans’ two largest regions (Pacific and Central & Arctic) over a six-month period for the years 2012, 2013, and 2014 were analyzed, with 2014 being the first year under the new regime. In order to help frame the analysis and provide additional baseline information, twelve statutorily required annual reports to Parliament on the administration and enforcement of the habitat/fisheries protection provisions were also analyzed (2001/02 – 2013/14). In this post, I discuss five of the most significant findings from this analysis. The full paper (from which this post borrows liberally) is available here.
By: Sarah Burton
PDF Version: What Happens when a Self-Rep Steps on a Procedural Landmine during Judicial Review
Case Commented On: Raczynska v Alberta Human Rights Commission, 2015 ABQB 494
The Alberta Court of Queen’s Bench recently rejected an application to judicially review the dismissal of a meritorious human rights claim. Why? The self-represented applicant did not name and serve the correct respondent on time. The fatality of this misstep would have been reasonably evident to any lawyer familiar with the Rules of Court, Alta Reg 124/2010 and case law governing judicial review. For self-represented litigants, however (and particularly those coming from the relatively forgiving forum of the Alberta Human Rights Commission) this is just one of the endless procedural landmines that can destroy their claim.
By: Shaun Fluker
PDF Version: Justice for the Western Chorus Frog?
Case Commented On: Centre Québécois du droit de l’environnement v Canada (Environment), 2015 FC 773 (CanLII), TransCanada PipeLines Limited King’s North Connection Pipeline Project (July 2015), GHW-001-2014 (National Energy Board)
These two decisions were issued about a week apart in late June, and have nothing in common except for the fact that both concern the threatened Western Chorus Frog species in Canada. Québécois du droit de l’environnement v. Canada (Environment) is a Federal Court judgment issued by Justice Martineau ordering the federal Minister of the Environment to reconsider her refusal to issue an emergency protection order for the Western Chorus Frog under section 80 of the Species at Risk Act, SC 2002, c 29. The King’s North Connection Pipeline Project decision issued by the National Energy Board under section 58 of the National Energy Board Act RSC 1985, c N-7 exempts TransCanada from having to obtain a certificate under section 31 and thus effectively approves the construction of an 11 kilometre gas pipeline thru known habitat for the Western Chorus Frog in southern Ontario. I consider these posts together as a means for another comment on the intersection between species at risk protection and development in Canada. These decisions also demonstrate that species at risk issues can arise in congested urban areas, not just in the far away wilds.
By: Alice Woolley
PDF Version: The Authority of Law?
Case Commented On: R v L.L. 2015 ABCA 222
In R v L.L. 2015 ABCA 222, the Alberta Court of Appeal reversed an award of costs made against the Crown at trial. In an earlier blog post I had strongly criticized the trial judge’s costs award, and the Court of Appeal’s reversal indicates it shared my concerns. The costs award amounted to improper second-guessing of counsel (at para 13) and also an improper interference with prosecutorial discretion given the trial judge did not find that the Crown had abused the court’s process (at para 11).
I am not going to revisit those issues here. Rather, I want to consider a question that the trial judgment raises and, somewhat surprisingly, so does the Court of Appeal’s: why do courts get the law wrong? To be clear, I don’t mean – “why do they interpret the law in a way that I don’t agree with” (although obviously I sometimes think that too). I mean – what ought we to make of the fact of judicial error?
By: Geoff S. Costeloe
PDF Version: Reaffirming the Importance of Clarity in Drafting a Will
Case Commented On: MRM Estate (Re), 2015 ABQB 475
A recent Alberta Court of Queen’s Bench decision has demonstrated the lengths that the Court can go to determine the true intentions of a testator of a Will. The central issue in this case is determining whether or not the provided Last Will and Testament of the Testatrix was genuine despite several deficiencies. This case highlights one of the important changes from the previous Wills Act, RSA 2000, c W-12 which was in force until February 2012 when it was replaced by the Wills and Succession Act, SA 2010, c W-12.2 (the “Act”).
By: Jennifer Koshan
PDF Version: New Developments on the Test for Discrimination Under Human Rights Legislation: Time for Rehab?
Cases Commented On: Stewart v Elk Valley Coal Corporation, 2015 ABCA 225, Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39
Last month Shaun Fluker posted a comment on the Alberta Court of Appeal’s standard of review analysis in Stewart v Elk Valley Coal Corporation, 2015 ABCA 225 (here). In this post I will comment on the Court of Appeal’s analysis of the test for discrimination under human rights legislation in Stewart, a matter I have commented on previously in relation to the same case at the Court of Queen’s Bench level (here), as well as in posts on other cases (see e.g. here, here and here). I will include in my analysis the Supreme Court of Canada’s decision from late July in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, which also deals with the test for discrimination. I will argue that the ABCA majority (Justices Watson and Picard) affirmed the wrong test in Stewart, particularly in light of the Supreme Court’s subsequent clarification in Bombardier. The approach of Justice O’Ferrall, writing in dissent at the Court of Appeal, is more in keeping with Bombardier and other recent jurisprudence. Continue reading
By: Jonnette Watson Hamilton
PDF Version: Section 6 of the Federal Interest Act is Obsolete
Case Commented On: David v Premiere Canadian Mortgage Corporation, 2015 ABQB 505 (CanLII)
In this decision, Justice Robert A. Graesser makes an interesting policy argument about section 6 the Interest Act, R.S.C. 1985, c. I-15, using it to bolster his conclusions about the application of the doctrine of precedent. As a result, this decision is useful for teaching about precedents, the principle of stare decisis, and how to use policy in making legal arguments. This decision also illustrates the need for reform of the 135 year old federal Interest Act.
Section 6 of the federal Interest Act provides that if a mortgage is repayable in one of three ways — on a “sinking fund plan”, by blended payments of principal and interest, or involving “an allowance of interest on stipulated repayments” — then the mortgage must contain a statement of the interest payable calculated annually or semi-annually and not in advance. If the mortgage does not contain that statement, then “no interest whatever shall be chargeable, payable or recoverable”. The consequences of not complying with section 6, if it applies, are therefore significant. In this particular case, the interest paid by the Davids, which they were seeking to have returned to them, amounted to more than $83,000. (This was not a mortgage foreclosure case. The Davids had satisfied all of their obligations under the mortgage and were suing the mortgagee for non-compliance with section 6 of the Interest Act.)
By: Jonnette Watson Hamilton
PDF Version: “Champagne Wishes and Caviar Dreams”
Case Commented On: Hood v Skauge, 2015 ABQB 476 (CanLII)
Those who are old enough to remember — and who liked — the 1984-1995 TV show, “Lifestyles of the Rich and Famous”, which featured the extravagant lifestyles of wealthy entertainers, athletes and business moguls, might be thrilled to know that NBC is reviving the series. They might also be delighted to read the 97-paragraph Parts V and VI in this decision by Justice Craig M. Jones interpreting a Cohabitation Agreement entered into by Cheryl Hood and Richard Skauge (see “Q&A w/ Olympia Trust Founder Rick Skauge”, Exempt Edge). The TV show was said to give special attention “to the prices paid for the various luxuries with which the rich enhanced their daily lives, ranging from spacious seaside villas, to classic cars, to gold-plated bathroom fixtures” (plot summary here). Justice Jones engages in an account of the lifestyle led by Ms. Hood and Mr. Skauge for a little over four years, between December 2004 and May 2009 — a lifestyle that included a yacht, three homes in Calgary, Mercedes automobiles, a cabin near Penticton, trips to Italy, Paris, New York, Thailand, St. Thomas, Disneyland, Fiji, and Hawaii (as well as Vancouver, Banff, Toronto, Quebec City and North Battleford), a $100,000 ring and various sexual relationships outside the relationship that is scrutinized in this case.
ABlawg is pleased to announce the launch of our second ebook on equality rights. Our ebooks will be accessible from a new tab at the top of the ABlawg website, and each ebook will be introduced with a post that will go out by email, RSS feed, and Twitter to our subscribers. Each ebook will have a table of contents with hyperlinks to the collected posts and will be fully searchable.
If readers have ideas for ebooks in particular areas or other feedback on this initiative we would be pleased to hear from you.
The introduction to this ebook is by Jonnette Watson Hamilton and Jennifer Koshan. We also thank Evelyn Tang (JD 2016) for her hard work in producing the ebook.