Year: 2015 Page 11 of 33

By: Sarah Burton

PDF Version: What Happens when a Self-Rep Steps on a Procedural Landmine during Judicial Review

Case Commented On: Raczynska v Alberta Human Rights Commission, 2015 ABQB 494

The Alberta Court of Queen’s Bench recently rejected an application to judicially review the dismissal of a meritorious human rights claim. Why? The self-represented applicant did not name and serve the correct respondent on time. The fatality of this misstep would have been reasonably evident to any lawyer familiar with the Rules of Court, Alta Reg 124/2010 and case law governing judicial review. For self-represented litigants, however (and particularly those coming from the relatively forgiving forum of the Alberta Human Rights Commission) this is just one of the endless procedural landmines that can destroy their claim.

Justice for the Western Chorus Frog?

By Shaun Fluker

On August 27, 2015

In Protection of Species

By: Shaun Fluker

PDF Version: Justice for the Western Chorus Frog?

Case Commented On: Centre Québécois du droit de l’environnement v Canada (Environment), 2015 FC 773 (CanLII), TransCanada PipeLines Limited King’s North Connection Pipeline Project (July 2015), GHW-001-2014 (National Energy Board)

These two decisions were issued about a week apart in late June, and have nothing in common except for the fact that both concern the threatened Western Chorus Frog species in Canada. Québécois du droit de l’environnement v. Canada (Environment) is a Federal Court judgment issued by Justice Martineau ordering the federal Minister of the Environment to reconsider her refusal to issue an emergency protection order for the Western Chorus Frog under section 80 of the Species at Risk Act, SC 2002, c 29. The King’s North Connection Pipeline Project decision issued by the National Energy Board under section 58 of the National Energy Board Act RSC 1985, c N-7 exempts TransCanada from having to obtain a certificate under section 31 and thus effectively approves the construction of an 11 kilometre gas pipeline thru known habitat for the Western Chorus Frog in southern Ontario. I consider these posts together as a means for another comment on the intersection between species at risk protection and development in Canada. These decisions also demonstrate that species at risk issues can arise in congested urban areas, not just in the far away wilds.

The Authority of Law?

By Alice Woolley

On August 25, 2015

In Ethics and the Legal Profession

By: Alice Woolley

PDF Version: The Authority of Law?

Case Commented On: R v L.L. 2015 ABCA 222

In R v L.L. 2015 ABCA 222, the Alberta Court of Appeal reversed an award of costs made against the Crown at trial. In an earlier blog post I had strongly criticized the trial judge’s costs award, and the Court of Appeal’s reversal indicates it shared my concerns. The costs award amounted to improper second-guessing of counsel (at para 13) and also an improper interference with prosecutorial discretion given the trial judge did not find that the Crown had abused the court’s process (at para 11).

I am not going to revisit those issues here. Rather, I want to consider a question that the trial judgment raises and, somewhat surprisingly, so does the Court of Appeal’s: why do courts get the law wrong? To be clear, I don’t mean – “why do they interpret the law in a way that I don’t agree with” (although obviously I sometimes think that too). I mean – what ought we to make of the fact of judicial error?

Reaffirming the Importance of Clarity in Drafting a Will

By Admin

On August 24, 2015

In Wills and Estates

By: Geoff S. Costeloe

PDF Version: Reaffirming the Importance of Clarity in Drafting a Will

Case Commented On: MRM Estate (Re), 2015 ABQB 475

A recent Alberta Court of Queen’s Bench decision has demonstrated the lengths that the Court can go to determine the true intentions of a testator of a Will. The central issue in this case is determining whether or not the provided Last Will and Testament of the Testatrix was genuine despite several deficiencies. This case highlights one of the important changes from the previous Wills Act, RSA 2000, c W-12 which was in force until February 2012 when it was replaced by the Wills and Succession Act, SA 2010, c W-12.2 (the “Act”).

New Developments on the Test for Discrimination Under Human Rights Legislation: Time for Rehab?

By Jennifer Koshan

On August 21, 2015

In Human Rights

By: Jennifer Koshan

PDF Version: New Developments on the Test for Discrimination Under Human Rights Legislation: Time for Rehab?

Cases Commented On: Stewart v Elk Valley Coal Corporation, 2015 ABCA 225, Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39

Last month Shaun Fluker posted a comment on the Alberta Court of Appeal’s standard of review analysis in Stewart v Elk Valley Coal Corporation, 2015 ABCA 225 (here). In this post I will comment on the Court of Appeal’s analysis of the test for discrimination under human rights legislation in Stewart, a matter I have commented on previously in relation to the same case at the Court of Queen’s Bench level (here), as well as in posts on other cases (see e.g. here, here and here). I will include in my analysis the Supreme Court of Canada’s decision from late July in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, which also deals with the test for discrimination. I will argue that the ABCA majority (Justices Watson and Picard) affirmed the wrong test in Stewart, particularly in light of the Supreme Court’s subsequent clarification in Bombardier. The approach of Justice O’Ferrall, writing in dissent at the Court of Appeal, is more in keeping with Bombardier and other recent jurisprudence.