Case considered: Pridgen v University of Calgary, 2012 ABCA 139

The Alberta Court of Appeal recently issued its judgment in the appeal by the University of Calgary from the October 2010 decision of Madam Justice Strekaf quashing a student discipline decision by the University (Pridgen v University of Calgary, 2010 ABQB 644). Madam Justice Strekaf’s judicial review decision was the subject of an ABlawg post by Heather Beyko - one of our JD students - in November 2010 (See “Facebook and Freedom of Expression”). Briefly speaking, the University imposed discipline on two undergraduate students for posting comments on Facebook concerning a course of instruction taken by them in the Faculty of Communication and Culture (as it was at the time) during the Fall 2007 semester. The University decided such comments amounted to non-academic misconduct and imposed discipline on both students including several months of academic probation. The students were successful on judicial review in front of Madam Justice Strekaf, who ruled the University decision was unreasonable in law and also infringed section 2(b) of the Charter of Rights and Freedoms. The Court of Appeal has unanimously upheld Madam Justice Strekaf’s finding that the University disciplinary decision was unreasonable under principles of administrative law. The Court of Appeal was more guarded on the Charter issue, with two of the three justices commenting it was unnecessary to consider the Charter to decide this case. My comment here focuses on the administrative law issues raised in this appeal.

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 Cases Considered: Oleynik v University of Calgary, 2012 ABQB 189 (Case #1); University of Alberta v Alberta (Information and Privacy Commissioner), 2012 ABQB 247 (Case #2); Association of Academic Staff of the University of Alberta v University of Alberta, 2012 ABQB 248 (Case #3)

These three cases involve personal privacy issues in the process of applying for a research grant from Social Sciences and Humanities Research Council of Canada (SSHRC). Two of the cases suggest that the access to information requests to Universities were being used to obtain evidence to support allegations of bias in decision-making.

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Case considered: Morris v Condominium Corporation No. 074 0215, 2012 ABQB 265

This April 23, 2012 decision by Master Lorne Smart appears to be the first to consider the appointment of an investigator under section 67(2) (a) of the Condominium Property Act, RSA 2000, c C-22. Section 67 allows a court to grant a variety of remedies if the court is satisfied that there has been “improper conduct” as defined in subsection 67(1) (a). Although many interested parties have used section 67 to seek injunctions, compensation and other remedies, the appointment of an investigator to review the improper conduct and report to the court is not a popular option. This decision is interesting for what it tells us about when it is appropriate to seek this particular remedy, when a court will exercise its discretion in favour of appointing an investigator, and what qualities make a particular person an appropriate investigator.

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PDF: Dower Consent Teasers

This case shows that the Dower Act, RSA 2000, c D-15 can still throw up intellectual teasers 55 years after this version of the statute was first enacted (Dower Act, 1948 (Alta), c 7). The case highlights the distinction between the consent required by section 4 of the Act (the normal case), and the consent required under section 25(2). Section 25(2) deals with the situation where the homestead property is co-owned by the spouses. The issue is whether a request by both spouses to the holder of a charge to postpone that charge is a consent to a disposition (i.e. the charge) for the purposes of section 4 or section 25(2). The majority responds in the negative.

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Case commented on: Trident Exploration Corp. (Re), 2012 ABQB 242

An operator under a pooling agreement who agrees to take charge of responding to a Crown offset notice and who fails to do so and fails to inform tract owners that it is no longer intending to respond, is grossly negligent within the meaning of Article 4 of the 1990 CAPL Operating Procedure.

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Alan Hunsberger, a Wildrose candidate who ran for election for the provincial legislature in Alberta, believes the Edmonton Public School Board’s policy of adopting anti-bullying policies to protect gay and lesbian students is wrong. He says that to adopt such policies is “godless, wicked and profane.” He says that homosexuals ” will suffer the rest of eternity in a lake of fire, hell, a place of eternal suffering.” He went on to write that others shouldn’t accept homosexuals for the way they are because “accepting people the way they are is cruel and not loving.” For the full text of his statement see here.

Should we be concerned? Is this really a freedom of speech issue? Or is it something else?

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PDF Version: The Safe Injection Site Precedent: Parliamentary Supremacy vs. Democratic Values?

 The recent SCC ruling in Canada (A.G.) v PHS Community Services Society (Insite) caused quite a stir when the Supreme Court of Canada ordered the Minister of Health to exempt a supervised injection site and its clients from drug possession laws.

Some editorial writers and Internet bloggers immediately described the decision as “a new tool for activism” a threat to the “peace between judges and legislators” and as “a confrontation brewing between the Harper government and Canadian courts” on everything from prostitution laws to euthanasia (For example, see Kirk Makin, Landmark Insite Decision Threatens Peace Between Judges and Legislators, The Globe and Mail, October 17, 2011; Kevin l. Boonstra, Cardus, LexView 74.0 - Can Injecting Illegal Drugs Ever Be Safe?, October 26, 2011.).

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Case commented on: Toronto Dominion Bank v. Beaton, 2012 ABQB 125

Access to justice is a hot topic: it is the stuff of judicial speeches; test case litigation; law society initiatives; and the list goes on. In Toronto Dominion Bank v Beaton, 2012 ABQB 125, which dealt with the seemingly routine issue of whether the court could order a fee waiver for transcripts for a leave to appeal application, Justice Joanne Veit of the Alberta Court of Queen’s Bench held that there is a constitutional right to access to justice, but that it was not breached in the circumstances of the case.

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PDF Version: Kangaroo-ism

My colleague, Jennifer Koshan, has written a serious ABlawg post on “The Alberta Election and Human Rights,” pointing out numerous problems with the Wildrose platform on Justice, Policing and Human Rights. The purpose of this post is much narrower and less serious, and that is to follow up on the “kangaroo courts” insult in the Wildrose policy statement.
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PDF Version: The Alberta Election and Human Rights

Several human rights issues have been raised in the Alberta election campaign to date. Perhaps most significantly, the Wildrose party’s platform on Justice, Policing and Human Rights proposes major changes to the Alberta Human Rights Act, RSA 2000, c A-25.5 (AHRA), changes that are both substantive and procedural in nature. I will set out those proposed changes in this post, and raise some related concerns.

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