By: Linda McKay-Panos
PDF Version: Settlement Agreements Can Pose Challenges for Human Rights Commissions
Cases Commented On: Buterman v Greater St. Albert Regional School Division No. 29, 2014 AHRC 8; Buterman v Greater St. Albert Regional School Division No. 29, 2015 AHRC 2
It is a well-known principle that one cannot contract out of one’s human rights. For example, one cannot contract or agree to be subjected to sexual harassment in the workplace in the future. This does not, however, prevent parties from entering into settlement agreements after a human rights situation has occurred. Respondents and complainants settling claims under the Alberta Human Rights Act, RSA 2000 c A-25.5 (AHRA) agree that no further human rights complaints will be made about the current circumstances, in exchange for receiving money or other remedy. There is a long line of case law in which these settlement agreements have been upheld by the Alberta Human Rights Tribunal or the courts. The leading case that sets out the requirements for upholding a settlement agreement is Chow v Mobil Oil, 1989 ABQB 1026. The Buterman decisions demonstrate some of the access to justice challenges faced by the Alberta Human Rights Commission (AHRC) and the parties when the settlement agreement is at issue.
Jan Buterman is the president of the Trans Equality Society of Alberta (TESA). He wants to encourage all Canadians, including those who are transgender, to understand that transgender Canadians have rights. Buterman is currently working on a campaign to encourage the Senate to withdraw an amendment to a trans*-rights bill that would clarify that “everyone” and “every individual” referenced in the Canadian Charter of Rights and Freedoms include transgender people.
By: Kathleen Mahoney
PDF Version: Human Rights and Equality under Attack: The Difficult Challenge Ahead
Human rights and equality discourse is under attack in many parts of the world. The assumption that equality is a social ideal has been hijacked, hoodwinked, and misrepresented in even the most advanced human rights jurisdictions. The anti-equality discourse is being led by those with agendas that are not at all commensurate with the promotion and continuance of a human rights culture that has advanced the rights of marginalized people all over the world since the inception of the Universal Declaration of Human Rights. Errors, distortions and outright lies have tainted the discourse about the purpose and importance of human rights commissions and other implementation tools devised for the realization of human rights and equality (see Pearl Eliadis’s new book, Speaking Out on Human Rights).
What is most startling about the critics of human rights and human rights enforcement is that they are so uninterested in what is really happening. Exacerbating the problem is a biased media. Instead of being neutral reporters and commentators, a substantial portion of the media has become advocate, judge and jury against human rights and human rights machinery (see International Council on Human Rights Policy, Journalism, media and the challenge of human rights reporting (2002)). In Canada for example, the very existence of human rights commissions and some of the protections they offer against discrimination has been seriously debated in the press and in some of the highest political circles, for all the wrong reasons (see e.g. National Post, “A Bit Late for Introspection”).
By: Nigel Bankes
PDF Version: Entitlements Protected by a Property Rule vs Entitlements Protected by a Liability Rule; or FPIC vs Regulated Access
Case Commented On: Sproule v Altalink Management Ltd, 2015 ABQB 153
AltaLink is building a transmission line to connect new wind generation in southern Alberta to the grid. The routing and construction of the line was approved by the Alberta Utilities Commission. Part of the line crosses private lands including lands owned by Sproule and the other parties to this appeal, and part crosses Piikani First Nation lands. Altalink reached a negotiated agreement with the Piikani First Nation but was unable to reach an agreement with Sproule et al. Accordingly, Altalink proceeded under the terms of the Surface Rights Act, RSA 2000, c. S-24 (SRA) to obtain right of entry orders and subsequently compensation orders for the different parcels.
Sproule et al appealed the compensation order on two main grounds; only the first is the subject of this post. The first ground of appeal was that the Board had wrongly refused to consider other compensation arrangements in setting the appropriate level of compensation for the Sproule et al lands. In particular, the appellants argued that the Board should have taken into account: (1) the levels of compensation that Sproule received under other agreements for wind turbines and a cell phone tower located on his land, and (2) the amounts received by the Piikani First Nation from Altalink for consenting to the transmission line crossing the Piikani Reserve. There was evidence before the Board that Altalink had been considering two routes for the transmission line, a preferred route that would cross the reserve and a second best route that avoided the reserve. The route across the reserve resulted in savings to Altalink (and ultimately to all consumers in Alberta) of about $30 million. Sproule’s evidence on appeal suggested that the Piikani received about $444,000 per mile under their agreement with Altalink (for a total of $7.45 million) whereas Sproule et al received about $60,000 per mile under the terms of the Board compensation order.
By: Saul Templeton
PDF Version: Trinity Western University: Your Tax Dollars at Work
Case Commented On: Trinity Western University v Nova Scotia Barristers’ Society, 2015 NSSC 25
Trinity Western University (“TWU”) claims it is a private religious institution. This is the explanation offered by the courts for denying students, staff and faculty at TWU protection under the Canadian Charter of Rights and Freedoms. This protection is denied even though it is generally accepted, even by supporters of TWU, that TWU’s Community Covenant, “indeed treat[s] LGBT people in a way that would have profoundly negative effects of [sic] their lives.” See Trinity Western University v Nova Scotia Barristers’ Society, 2015 NSSC 25 [NS Barristers’ Society] at para 251).
What does it mean for a university to be publicly funded? I am a tax scholar, so I offer a definition supported by tax policy. TWU is publicly funded because it receives significant tax benefits as a result of its registered charity status. TWU is tax exempt, and therefore underwritten by public funding. The tax exemption is equivalent to a direct subsidy to TWU, since it represents tax revenue forgone, and governments must make up the shortfall elsewhere. TWU also issues charitable tax receipts that allow (and encourage) donors to give more money to TWU than they otherwise could, since the state gives donors a kickback on their taxes for doing so.
By: John-Paul Boyd
PDF Version: A Remarkable, Plain Language Judgment from the Ontario Court of Justice
Case Commented On: R v Armitage, 2015 ONCJ 64 (CanLII)
A few weeks ago, Mr. Justice Nakatsuru of the Ontario Court of Justice released a remarkable judgment in the case of R. v Jesse Armitage. A flood of decisions in criminal matters are released every day, and in that sense Justice Nakatsuru’s sentencing decision in Armitage was not exceptional. What sets the judgment apart are the judge’s decisions to direct his opinion to the offender and to write that opinion entirely in plain language.
By: Jonnette Watson Hamilton
PDF Version: A Vexatious Litigant After Only Two Applications in One Proceeding
Case Commented On: Re FJR (Dependent Adult), 2015 ABQB 112 (CanLII)
Although the Alberta law giving the courts more power to deal with “vexatious litigants” in a simplified process has only been in effect a little more than five years — since October 30, 2009 — the law is quite well settled. Under section 23.1(1) of the Judicature Act, RSA 2000, c J-2, on application or the court’s own motion, and with notice to the Minister of Justice and Solicitor General, if a Court is satisfied that a person is instituting vexatious proceedings or is conducting a proceeding in a vexatious manner, then the court may order that the person not commence or continue proceedings without the court’s permission. Section 23(2) provides a non-exclusive list of examples of vexatious proceedings and conduct. These provisions have been considered in approximately 70 cases over the past five years. Recently and helpfully, in Chutskoff v Bonora, 2014 ABQB 389 (CanLII) at paras 80-93, Justice Michalyshyn undertook a comprehensive review of this case law. As a result of all of this consideration, most vexatious litigant proceedings now simply involve application of the established principles to the particular facts of each case. Nonetheless, the occasional new legal issue arises, as it does in Re FJR. This post considers a case in which the person found to be a vexatious litigant had only made two applications, and both of them were made in only one court proceeding.
By: Dylan Finlay
PDF Version: A Case for Adopting the Lewko Approach to Refusal Law
Case Commented On: R v Soucy, 2014 ONCJ 497
Obtaining breath samples from those suspected of driving while impaired is a necessary practicality in enforcing impaired driving law. A police officer must have a legal authority to demand that an individual supply a sample of his or her breath, and there must be legal ramifications should that individual decline. Consequently, s. 254(5) of the Criminal Code, RSC 1985, c C-46 makes it an offence to fail or refuse to comply with a breath demand, without a reasonable excuse. As a criminal offence, s. 254(5)’s necessary elements include both an actus reus and a mens rea. Two deeply divided lines of authority arise from interpreting s. 254(5)’s requisite mens rea, or culpable state of mind.
By: Jennifer Koshan
PDF Version: The Supreme Court’s New Constitutional Decisions and the Rights of Farm Workers in Alberta
Cases Commented On: Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1 (CanLII); Meredith v Canada (Attorney General), 2015 SCC 2 (CanLII); Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4 (CanLII); Carter v Canada (Attorney General), 2015 SCC 5 (CanLII)
As I was saying to my constitutional law students the other day, the first few weeks of 2015 have been remarkable for the sheer number of Charter decisions released by the Supreme Court of Canada, including several that have overturned previous decisions in important ways. Of the eight SCC decisions released to date in 2015, five are major Charter rulings. Several of these decisions have implications for a project on the rights of farm workers that I worked on with a group of constitutional clinical students in the winter of 2014. The students’ posts on the constitutionality of excluding farm workers from labour and employment legislation are available here, here, here and here. In this post, I will outline the impact these recent Charter decisions have on the students’ arguments. In a nutshell, they make the claims of farm workers for legislative protection even stronger, refuting the argument of Premier Jim Prentice that we need “more research and debate” before taking action on these unconstitutional exclusions.
Editor’s Note: Several Faculty members signed this letter, the full version of which is available here.
An open letter to members of Parliament on Bill C-51
Dear Members of Parliament,
Please accept this collective open letter as an expression of the signatories’ deep concern that Bill C-51 (which the government is calling the Anti-terrorism Act, 2015) is a dangerous piece of legislation in terms of its potential impacts on the rule of law, on constitutionally and internationally protected rights, and on the health of Canada’s democracy.
Beyond that, we note with concern that knowledgeable analysts have made cogent arguments not only that Bill C-51 may turn out to be ineffective in countering terrorism by virtue of what is omitted from the bill, but also that Bill C-51 could actually be counter-productive in that it could easily get in the way of effective policing, intelligence-gathering and prosecutorial activity. In this respect, we wish it to be clear that we are neither “extremists” (as the Prime Minister has recently labelled the Official Opposition for its resistance to Bill C-51) nor dismissive of the real threats to Canadians’ security that government and Parliament have a duty to protect. Rather, we believe that terrorism must be countered in ways that are fully consistent with core values (that include liberty, non-discrimination, and the rule of law), that are evidence-based, and that are likely to be effective.
By: Ola Malik and Sarah Burton
PDF Version: Honour Killings and City Buses – The Limits on Advertising Controversial Messages on Public Transit and the Soon-To-Be-Decided Case of AFDI v The City of Edmonton
Consider these two ads which deal with the subject of honour killings. You are told that the maker of these advertisements, the American Freedom Defence Initiative (“AFDI”) published the ads in order to raise awareness of the subject and to provide support to young girls whose lives are in danger. These ads are similar with the exception of the revisions made to the second ad in italics.
Girls’ Honor Killed by their Families. Is Your Family Threatening you? Is Your Life in Danger? We Can Help: Go to FightforFreedom.us
Muslim Girls’ Honor Killed By Their Families. Is Your Family Threatening You? Is there a Fatwa On your Head? We Can Help: Go to FightforFreedom.us
The second ad has the initials “SIOA”, or “Stop the Islamization of America” added at the bottom.
Advertising for the second ad has been purchased from the Edmonton Transit Service (“ETS”). It will appear in the form of a large panel covering the rear of an Edmonton city bus. AFDI has purchased 5 such ads which will run for 4 weeks.
Do you believe either of these ads constitutes lawful expressive activity such that they are protected by freedom of expression as provided by section 2(b) of the Charter?
What do you make of the second sign? It doesn’t expressly advocate violence or hate, nor is it expressly hateful of the Muslim community. It is a matter of fact that thousands of Muslim girls around the world have been killed in this way.
But is it misleading to suggest that honour killings only happen in the Muslim community and might this expose the Muslim community to vilification and harmful stereotyping by those who don’t know better? Is the logo “Stop the Islamization of America” a laudable aim worthy of protection, or is it simply hateful?