November 2008 – Page 3

The recent decision of the B.C. Supreme Court finding municipal bylaws unconstitutional for prohibiting certain practices associated with homelessness in parks has received a great deal of media attention in Alberta and nationally. In Victoria (City) v. Adams, Justice Carol Ross considered bylaws in the City of Victoria that prohibit persons from “tak[ing] up temporary abode over night” and erecting or constructing “a tent, building, or structure, including a temporary structure” in city parks (Parks Regulation Bylaw No. 07-059, ss. 14(d) and 16(1)). Justice Ross found that these provisions violated the rights of homeless persons to life, liberty and security of the person under section 7 of the Charter, and that the violation was not in accordance with the principles of fundamental justice or a reasonable limit under section 1 of the Charter. This post will consider the implications of the case for Alberta, and in particular Calgary.

Crown Discretion and the Power to Stay Proceedings

By Jennifer Koshan

On November 5, 2008

In Constitutional, Criminal

Cases Considered: R. v. Powder, 2008 ABQB 579; R. v. Powder, 2008 ABCA 568

PDF Version: Crown Discretion and the Power to Stay Proceedings

In what circumstances can Crown prosecutors stay proceedings with impunity? This was the issue in a recent Alberta case, R. v. Powder, where the court seemed to disagree with the Crown’s actions but also seemed to feel powerless to respond. Given that the Crown may recommence proceedings it has stayed within one year of the stay, this case has implications for how the Crown can deal with a prosecution that has gone off the rails. The case is also of interest because it involves the use of tasers, a law enforcement tool that has come under much criticism lately.

The Fraud Exception to Indefeasibility of Title: Applying Section 203 of the Land Titles Act

By Jonnette Watson Hamilton

On November 3, 2008

In Property

Cases Considered: Hall v. Tieken Estate, 2008 ABQB 646

PDF Version: The Fraud Exception to Indefeasibility of Title: Applying Section 203 of the Land Titles Act

The land registration system used in Alberta is established by the Land Titles Act, R.S.A. 2000, c. L-4 and based on the Torrens system. Under this system, the provincial government has custody of all titles, plans and other documents related to interests in land and responsibility for the accuracy of all land titles information registered or filed with it. In a jurisdiction with a Torrens system, the government guarantees that a person named as the owner in the register established and maintained by the government has a title that is subject only to encumbrances and exceptions registered against that title and to enumerated statutory exceptions. Basically, a person’s title is free of adverse claims unless those claims are mentioned on their title. Their title is “indefeasible.” There are, of course, exceptions to indefeasible title in a Torrens system. Fraud is one of those exceptions, and it was the exception in issue in this case. In general, if you participate or collude in fraud, you do not have an indefeasible title.

Mandatory Retirement and Wrongful Dismissal: An Age Old Question of Compensation for Discrimination

By Linda McKay-Panos

On November 2, 2008

In Human Rights, Labour/Employment

Cases Considered: Magnan v. Brandt Tractor Ltd., 2008 ABCA 345

PDF Version: Mandatory Retirement and Wrongful Dismissal: An Age Old Question of Compensation for Discrimination

It has long been a legal principle in Canada that there is no recognized tort of discrimination; people should be pursuing remedies for discrimination from human rights tribunals: Board of Governors of Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181. This basic principle is supported by another principle: there is no recognized cause of action for breach of a statute, especially in negligence: Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205. These principles were considered earlier this year in Honda Canada Inc. v. Keays, 2008 SCC 39, where the Supreme Court held that breach of a human rights code does not amount to an independent actionable wrong. However, a recent decision of the Alberta Court of Appeal confirms that these legal principles can be blurred when it comes to remedying wrongful dismissal that contains an element of discrimination.

Month: November 2008

The Constitutionality of Calgary’s Parks and Pathways Bylaw for Homeless Persons

Crown Discretion and the Power to Stay Proceedings

The Fraud Exception to Indefeasibility of Title: Applying Section 203 of the Land Titles Act

Mandatory Retirement and Wrongful Dismissal: An Age Old Question of Compensation for Discrimination