Year: 2009 Page 14 of 24

Case Considered: Kelly v. Alberta (Energy and Utilities Board), 2009 ABCA 161

PDF version: Charter and Oil and Gas Issues to Await Another Day: A Disappointing End to the Kelly Appeal?

In an earlier post, I suggested that a recent development in the Kelly appeal would likely lead the Court of Appeal to declare the appeal moot (see “An Important Development in the Kelly Appeal“). I also suggested that, although this would not be a surprising decision, it would amount to a disappointing end for an appeal which held out promises of elucidating important legal issues. The Court of Appeal has indeed dismissed the Kelly appeal as moot. Although this result is certainly disappointing from a legal point of view, it is perhaps less so from a societal and public participation point of view.

To Employ or Not to Employ: Is That the Question?

By Linda McKay-Panos

On June 2, 2009

In Human Rights, Labour/Employment

Case considered: Lockerbie & Hole Industrial Inc. v. Alberta (Human Rights and Citizenship Commission), 2009 ABQB 241, overturning Donald Luka v. Lockerbie & Hole Industrial Inc. and Syncrude Canada, Alberta Human Rights and Citizenship Commission, February 15, 2008 (Beth Bryant)

PDF version: To Employ or Not to Employ: Is That the Question?

An appeal of a Human Rights Panel (“Panel”) decision brings to the fore an issue that has arisen in many human rights cases. When there is a complaint of discrimination in the area of employment under s. 7 of the Human Rights, Citizenship and Multiculturalism Act, R.S.A 200, c. H-14 (“HRCMA“), who will be considered an “employer”? This is especially pertinent in the current marketplace in Alberta where workers are often contractors or sub-contractors.

The Charter, School Boards and Discrimination Claims

By Jennifer Koshan

On June 1, 2009

In Constitutional, Human Rights

Case considered: Hamilton v. Rocky View School Division No. 41, 2009 ABQB 225

PDF version: The Charter, School Boards and Discrimination Claims

In a recent post I examined whether the Canadian Charter of Rights and Freedoms would apply to the University of Calgary in the context of its handling of an anti-abortion protest that took place on University campus (see Freedom of Expression, Universities and Anti-Choice Protests). A recent decision of the Alberta Court of Queen’s Bench looks at a similar issue, namely the application of the Charter to a local school board, but this time in the context of an employment discrimination issue. In Hamilton v. Rocky View School Division No. 41, Justice Bryan Mahoney found that the Charter did not apply to the school board’s alleged actions, and that the plaintiff was restricted to pursuing his claim under human rights legislation.

Amendments to Bill 44 Worsen a Bad Bill

By Linda McKay-Panos

On May 29, 2009

In Human Rights

Legislation considered: Bill 44, Human Rights Citizenship and Multiculturalism Amendment Act; Amendment A1A; Amendment A1B

PDF version: Amendments to Bill 44 Worsen a Bad Bill

In a previous post, I discussed a number of concerns about the proposed amendments to Alberta’s Human Rights Citizenship and Multiculturalism Act, R.S.A. 2000 c. H-14 (“Act”). One of the proposed amendments in Bill 44, referred to as the parental opt-out provision, has been the subject of much criticism. See Janet Keeping and Sheila Pratt, for example.

Do testators have moral as well as legal obligations to their dependants? Not in Alberta

By Jonnette Watson Hamilton

On May 28, 2009

In Wills and Estates

Case considered: Petrowski v. Petrowski Estate, 2009 ABQB 196

PDF version: Do testators have moral as well as legal obligations to their dependants? Not in Alberta

Alberta’s Dependants Relief Act, RSA 2000, c. D-10.5 allows adult children who are unable to earn a livelihood by reason of physical or mental disability to challenge their parent’s will if that will does not made “adequate” provision for their “proper maintenance and support.” There is similar legislation in other provinces and the leading precedent on what factors a judge should take into account in exercising their discretion to vary a will is a Supreme Court of Canada decision on appeal from British Columbia: Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807. The Supreme Court held in Tataryn that a judge was not limited to a needs-based analysis, but should also consider the deceased’s moral obligations. However, the British Columbia legislation the Supreme Court interpreted in Tataryn differs from Alberta’s in two important respects and the Alberta Court of Appeal has yet to consider the relevance of these differences. It is therefore still an open question in Alberta as to whether or not Tataryn applies to the interpretation of this province’s statute and whether moral obligations can or should be taken into consideration. The Petrowski v. Petrowski Estate judgment is the latest Queen’s Bench decision to grapple with this issue. It holds that, in Alberta, only the obligations imposed in law by the legislature are moral obligations; law is co-extensive with morality in this context. The result of this decision is that a property owner’s freedom to dispose of his property is enhanced.