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Comment on One Person, Two Universities, Three Alberta Cases by Linda McKay-Panos

Linda McKay-Panos — Thu, 16 May 2013 18:13:59 +0000

Update: Anton Oleynik appealed the decision of Madam Justice Veit (Case #1 above). Alberta Court of Appeal Justices Ellen Picard, Peter Martin and Jack Watson dismissed the appeal, allowing the University of Calgary to apply for enhanced costs in the matter.

Comment on The Role of the “Noble Savage” in Environmental Social Activism by Susan Wright

Susan Wright — Thu, 16 May 2013 02:12:29 +0000

Excellent post Kathleen! I’ve followed your work since I was a student in your torts class back in the early 80′s.

I’d like to address the issue of consultation. A recent example of failed consultation is Bill 22, the Aboriginal Consultation Levy Act. The purpose of Bill 22 is to impose a levy on industry players “engaged in provincially regulated activities that might adversely impact” the treaty rights of First Nations’ and other identified aboriginal groups. Yet for some bizarre reason, the government failed to adequately consult with the First Nations about this Act. Treaties 6 and 8 brought their concerns to the media and the Wildrose party. The Wildrose grilled the Minister of Aboriginal Relations about the government’s lack of consultation with the very people this legislation would impact the most. The minister replied that he had consulted Treaties 6, 7 and 8 at the grand chief level and that “…if there is any issue, there might be some misinformation between the meetings between the technicians and the chiefs” (Hansard, May 13, 2013, page 2292). In other words, the lack of adequate consultation on Bill 22 is the fault of the First Nations, not the government.

Contrast this to the consultation the government engages in with industry, as well as the lengths to which the provincial and federal government have gone to champion the cause of industry (the Enbridge pipeline and TCPL’s Keystone come to mind) and one can’t help but conclude that the Alberta government’s position on consultation is nothing more than window dressing.

Susan Wright

Comment on Section 19 of the Perpetuities Act and the oil and gas lease as a fee simple determinable estate of a profit à prendre by Matt Langer

Matt Langer — Mon, 13 May 2013 16:32:31 +0000

What are your thoughts on the new amendment to s19 of the Perpetuities Act in Bill 24? Will removing mineral rights from the application of s19 completely solve the problem?

Comment on Condominiums, Caregivers and Human Rights by Jennifer Koshan

Jennifer Koshan — Wed, 08 May 2013 02:43:15 +0000

Thanks for your comments everyone. Richard, you may be right that there is an “absence of any Court of Queen’s Bench authority which supports the Commission’s position” that the Alberta Human Rights Act applies to condominium owners, but I stand by my analysis that this position is supported by Supreme Court of Canada authority, namely Berg (which called into question some aspects of Gay Alliance). I rely on Berg not for its reasons regarding eligibility criteria, but for its broad point that every service has its own public, whether we are talking about universities, taverns or (in this case) condominiums. I also note that the AHRA applies to numerous private contexts, including employment and tenancy arrangements, so its application to condominiums is not unique in that respect. While I believe there is compelling authority for the position that the AHRA applies as a matter of law to condominium owners, whether it should apply as a matter of policy is, of course, subject to debate (an important distinction raised in Chad Conrad’s earlier comment on my post). My own view is that discriminatory decisions of condominium boards on protected grounds such as disability should be subject to the remedial provisions of the AHRA, but we may have to agree to disagree about that.

Comment on Managed property, the reserve fund, ultra vires doctrine and other issues in interpreting the Condominium Property Act by J.S.

J.S. — Tue, 07 May 2013 01:11:23 +0000

The Government of Alberta is set to introduce new legislation, namely Bill 24, the Statutes Amendment Act, which will address the Shores decision. The legislation clarifies that if a corporation’s bylaws require the corporation to repair part of a bare land unit, then that property forms part of the property for which the corporation is required to maintain a reserve fund. The government has estimated that the change impacts approximately 1,300 corporations with 40,000 owners.

Comment on Condominiums, Caregivers and Human Rights by Richard I. John

Richard I. John — Sun, 05 May 2013 04:33:21 +0000

I do not agree with Ms. Koshan’s comments; please see my blog for my explanation:

http://bridgeland-law.blogspot.ca/2013/05/condominium-complexes-are-private.html

Comment on What has Meads v Meads wrought? by Anne McVea

Anne McVea — Sat, 04 May 2013 08:46:04 +0000

This was an excellent and interesting blog post until the final paragraph. I can’t agree that Lord Denning lacked humility and wisdom. Thanks to the person who posted the links to Denning sites.

If you ask me, Justices and Masters show quite a bit of wisdom, forbearance and compassion to the parade of humanity that daily appears before them. They probe for what “legally salient ” facts they can find to make a determination. It is true that there is little time or patience (except perhaps in trial) for the whole saga of wrongdoing but it seems like the “personal and moral” aspects find their expression more in legislation which imposes a statutory moral code on society. The complainant locates their grievance within the relevant wording (or not). To use the blog poster’s example, a party’s obsession with his/her spouse’s infidelity can be addressed by filing for divorce on grounds of adultery. The Divorce Act permits that form of moral indictment.

The litigants described here seem to position themselves outside any social contract ; they likely know that they have no arguments that conform to societal values as expressed in statutes or the rule of law so what is their goal? They deserve to be heard respectfully and not dismissively and in a free society, they get their shot at changing the law; however, respect is a two way street. They should be routed through the law library and forced to cite an actual statute prior to filing their claims.

Comment on For the Second Time, Federal Court of Canada Judge Sends Mandatory Retirement Case Back to Canadian Human Rights Tribunal by Jennifer Koshan

Jennifer Koshan — Sun, 28 Apr 2013 15:10:08 +0000

On March 28, 2013, the Supreme Court denied leave to appeal the Federal Court of Appeal ruling that McKinney v University of Guelph, [1990] 3 SCR 229, required that section 15(1)(c) of the CHRA be found constitutionally valid, thus defeating the pilots’ discrimination claim. See Kelly v Air Canada Pilots Assn, [2012] SCCA No 395 and 2012 FCA 209. Regardless, section 15(1)(c) has now been repealed by the federal government.

Comment on Under the Influence: The Alberta Court of Appeal and the Test for Discrimination by Jennifer Koshan

Jennifer Koshan — Fri, 26 Apr 2013 21:32:08 +0000

Thanks for your comment Jonnette. I’m not sure I agree that it is impossible to make out stereotyping or arbitrariness in adverse effects cases. Stereotypical thinking (e.g. the assumption that all workers are able-bodied) might lead to situations where workplace policies are crafted in a way that they are neutral on their face, yet have an adverse impact on, for example, workers with disabilities. This could also be seen as an arbitrary failure to take the needs of workers with disabilities into account. This example may not involve negative stereotyping in the sense that you suggest, but it still involves a “disadvantaging attitude … that attributes characteristics to members of a group regardless of their actual capacities.” (Quebec v A, cited in my post, at para 326, Abella J). This is arguably what the second contextual factor from Law was meant to capture before it became a way of bringing government justification arguments into the analysis under section 15 of the Charter.

Comment on Who Bears the Loss for Converted Security Deposits? by Jonnette Waston Hamilton

Jonnette Waston Hamilton — Fri, 26 Apr 2013 21:09:49 +0000

I am a little tardy in posting this update about the results of the re-argument of this appeal. In Equitable Trust Company v Lougheed Block Inc, 2012 ABCA 261, the Court of Appeal dismissed the appeal. The original judgment, Equitable Trust Company v Lougheed Block Inc, 2012 ABCA 87, 522 AR 79, which was the subject of my original post, is therefore of no effect. The court’s initial conclusions about who knew what about the security deposits were incorrect; in actual fact, the security deposits were never received by the receiver-manager from the former landlord/defaulting mortgagor and the appellant knew or ought to have known this when it made the Offer to Purchase. This change in facts resulted in a change in the outcome of the case.