Monthly Archives: May 2008

Vriend Ten Years Later

By: Linda McKay-Panos

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Case Commented On: Vriend v Alberta, [1998] 1 S.C.R. 493

April 2, 2008 marked the 10th anniversary of the release of the SCC decision in Vriend v Alberta. This decision was remarkable in many ways. First, there were no less than 17 intervenors by the time the case reached the SCC. Our affiliated agency, the Alberta Civil Liberties Association, was one of those intervenors. The case was significant because of the remedy that was ordered by the SCC and because of the analysis that the SCC undertook in determining that sexual orientation should be included as a protected ground in Alberta’s Individual’s Rights Protection Act (“IRPA”, now called the Human Rights, Citizenship and Multiculturalism Act (“HRCMA”), R.S.A. 2000, c. H-14). It is also interesting to examine what has happened in the area of sexual orientation and human rights since this noteworthy case.

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Making Noise: Loudspeaker Preaching to Homeless Leads to Contempt and Injunction

Cases Considered: Pawlowski v. Calgary (City), 2008 ABQB 267

PDF Version: Making Noise: Loudspeaker Preaching to Homeless Leads to Contempt and Injunction 

The Street Church Ministries (“SCM”) and its leader, Artur Pawlowski, have been active and controversial participants in Calgary’s response to homelessness for the last few years. The SCM holds religious services in downtown Calgary parks and gives away free meals to the homeless there. Pawlowski uses amplified sound during his sermons “to reach out to drug dealers, prostitutes and others who have fallen through the gaps” of Calgary society, and believes it is God’s command that he feed and provide hope for the poor (Graeme Morton and Richard Cuthbertson, “Ban on preacher’s loudspeaker upheld”, Calgary Herald, May 1, 2008, p. B7). However, use of amplified sound without a permit is banned by Calgary’s Parks and Pathways Bylaw, Bylaw No. 20M2003. While originally the City permitted the SCM to use amplified sound, after receiving noise complaints from nearby residents (including those at the Calgary Drop-In Centre) it would only permit use of the parks without amplification, although it offered to find an alternative site where such sound could be used. Pawlowski refused the offer and continued his loudspeaker preaching, leading to bylaw tickets, injunction applications, and eventually, in this most recent case, a civil contempt order.

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Minimum Housing Standards for Residential Tenancies Upheld

By: Nickie Vlavianos

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Cases Commented On: BPCL Holdings Inc. v Alberta, 2008 ABCA 153

Alberta’s Residential Tenancies Act (“RTA”), S.A. 2004, c. R-17.1, is generally speaking a landlord-friendly statute. It is not replete with protections for tenants. One important exception is s. 16(c), a fairly recent addition to the RTA. Section 16(c) requires landlords to ensure that rental premises “meet at least the minimum standards prescribed by housing premises under the Public Health Act and regulations.” Clearly, the Legislature intended some minimal health and safety protection for tenants.

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Dunsmuir: Much Ado about Nothing

Cases Considered: Dunsmuir v. New Brunswick, 2008 SCC 9

PDF Version:  Dunsmuir: Much Ado about Nothing

The majority judgment in Dunsmuir, written by Justices Bastarache and Lebel JJ. (writing also for Fish, Abella, and McLachlin JJ.), begins by setting out its grandiose intention to re-examine judicial review principles in Canadian administrative law with the view to making them more workable and coherent. In an initial glance, one is immediately struck by how such an immense and significant task is built upon a seemingly insignificant set of facts. The appellant, a former non-unionized provincial employee who was dismissed with pay in lieu of notice, sought to uphold a grievance arbitrator’s ruling that his employment be reinstated. In dismissing the appeal, the Supreme Court judgment follows that of both the New Brunswick Court of Queen’s Bench and Court of Appeal. One cannot also help but notice that in purporting to reformulate the pragmatic and functional approach to substantive judicial review, Dunsmuir consists of three concurring but inconsistent sets of reasons. Indeed, it is difficult to envision Dunsmuir as a defining moment in Canadian administrative law along the lines of CUPE Local 963 v. New Brunswick Liquor Board, [1979] 2 SCR 227, Nicholson v. Haldimand-Norfolk Police Commissioners, [1979] 1 SCR 311, Knight v. Indian Head School Division, [1990] 1 SCR 653, Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982, or Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817. This is because Dunsmuir falls well short of its lofty ambitions. Binnie J.’s reasons aside, Dunsmuir is little more than formal acknowledgement of recent shifts in, and deficiencies with, the Supreme Court’s attitude towards substantive judicial review.

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The Guarantees Acknowledgement Act and Equity

Cases Considered: Bharwani v. Chengkalath, 2008 ABCA 148

PDF Version: The Guarantees Acknowledgement Act and Equity

Sometimes it becomes apparent when reading a decision that the court would have preferred to reach a different result. Usually this is because the law seems to compel the result the court reaches, but fairness demands another. The decisions of the Court of Queen’s Bench and the Court of Appeal in Bharwani v. Chengkalath are examples of the constraints the law occasionally puts on a court’s ability to do what seems right. The defendant in this case won, but it did not seem fair that she did.

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