Author: Jennifer Koshan Page 14 of 41

B.Sc., LL.B (Calgary), LL.M. (British Columbia).
Professor. Member of the Alberta Bar.
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By: Jennifer Koshan

PDF Version: Alberta Agrees to Amend Human Rights Legislation to Expand Prohibitions Against Age Discrimination

Case Commented On: Ruth Maria Adria v Attorney General of Alberta, Court File No 1603 05013, Consent Order filed 13 January 2017

Human rights legislation exists in every province and territory in Canada, and at the federal level, but protection against discrimination varies amongst jurisdictions with respect to what grounds and areas are protected. Until recently, the Alberta Human Rights Act, RSA 2000, c A-25.5, only protected against age discrimination in the areas of publications and notices (section 3), employment practices and advertisements (sections 7 and 8), and membership in a trade union, employers’ organization or occupational association (section 9). Age was not a protected ground in relation to the provision of goods, services, accommodation or facilities customarily available to the public (section 4), or in relation to tenancies (section 5).

In January 2017, the Alberta government agreed to expand the Alberta Human Rights Act to include age as a protected ground under sections 4 and 5. This development was prompted by an application brought in March 2016 by Ruth Maria Adria under section 15 of the Charter, the constitutional equality rights guarantee, to have the omission of age declared unconstitutional and to have age read in to these sections.

Die Another Day: The Supreme Court’s Decision in Ernst v Alberta Energy Regulator and the Future of Statutory Immunity Clauses for Charter Damages

By Jennifer Koshan

On January 16, 2017

In Constitutional, Energy, Supreme Court of Canada

By: Jennifer Koshan

PDF Version: Die Another Day: The Supreme Court’s Decision in Ernst v Alberta Energy Regulator and the Future of Statutory Immunity Clauses for Charter Damages

Case Commented On: Ernst v Alberta Energy Regulator, 2017 SCC 1 (CanLII)

On January 13, 2017, the Supreme Court of Canada released its decision in Ernst v Alberta Energy Regulator, 2017 SCC 1 (CanLII), an appeal it heard in January 2016. As noted in a previous ABlawg post, the appeal arose from the decisions of Alberta courts to strike Jessica Ernst’s claim for damages against the Energy Resources Conservation Board (now the Alberta Energy Regulator) for allegedly violating her freedom of expression under s 2(b) of the Charter. At issue before the Supreme Court was whether the decisions to strike her claim should be upheld, which turned on whether the statutory immunity clause in s 43 of the Energy Resources Conservation Act, RSA 2000, c E-10 (ERCA) could constitutionally bar a claim for damages under s 24(1) of the Charter against the Board. The length of time the Court took to deliver its decision might be explained by the Court’s 4:4:1 split. Justice Abella serves as the swing judge by siding with Justice Cromwell (with Justices Karakatsanis, Wagner, and Gascon) in upholding the decision that Ernst’s claim for Charter damages should be struck, basing her decision primarily on Ernst’s failure to provide notice of the constitutional challenge in earlier proceedings. I had predicted that the Supreme Court would deny leave to appeal based on that lack of notice, yet had to eat my words when a three-member panel of the Court – including Justice Abella – granted leave despite the lack of notice. The other two judges who granted the leave application, Karakatsanis and Côté JJ, are split between the Cromwell faction and the dissent (written by Chief Justice McLachlin and Justices Moldaver and Brown, with Justice Côté concurring), which would have allowed the appeal and permitted Ernst’s claim for Charter damages against the Board to proceed.

This post will parse the three judgments to determine what the Court actually decided on the viability of the Charter damages claim and for what reasons. There may be subsequent posts by my colleagues on other aspects of the decision. It is important to note that Ernst’s underlying tort claims against Encana and the provincial government for contamination of her groundwater are ongoing; the Supreme Court only ruled on whether Ernst’s claim for Charter damages against the Board for violating her freedom of expression could proceed.

The Enhanced Protection for Farm and Ranch Workers Act One Year Later

By Jennifer Koshan

On November 17, 2016

In Labour/Employment

By: Jennifer Koshan

PDF Version: The Enhanced Protection for Farm and Ranch Workers Act One Year Later

Legislation Commented on: Bill 6, Enhanced Protection for Farm and Ranch Workers Act, 29th Legislature, 1st Session (2015-2016)

It has been exactly one year since the government introduced Bill 6, the Enhanced Protection for Farm and Ranch Workers Act, in the Alberta Legislature. The Bill made amendments removing the exclusion of farm and ranch workers from Alberta’s labour and employment legislation, and eventually passed in December 2015 after heated debate (for an earlier post on Bill 6 see here). The Bill went through some amendments during legislative debates, notably exempting family members and unpaid farm and ranch workers from inclusion in the Occupational Health and Safety Act, RSA 2000, c O-2 and Workers’ Compensation Act, RSA 2000, c W-15. The government also constituted broad-based working groups to make recommendations on implementing Bill 6, and the inclusion of farm and ranch workers in employment standards, labour relations and occupational health and safety legislation was suspended pending these consultations. In spite of these concessions, the Wildrose party – which vociferously argued against the Bill – reiterated its intent to “kill Bill 6” at its convention in Red Deer in late October.

This Fall’s Supreme Court Hearings – A Missing Voice for Human Rights

By Jennifer Koshan

On October 19, 2016

In Human Rights, Intervenors and Standing, Supreme Court of Canada

By: Jennifer Koshan

PDF Version: This Fall’s Supreme Court Hearings – A Missing Voice for Human Rights

Case Commented On: Brent Bish on behalf of Ian Stewart v. Elk Valley Coal Corporation, Cardinal River Operations, et al, SCC Case No 36636, leave to appeal granted from Stewart v Elk Valley Coal Corporation, 2015 ABCA 225 (CanLII)

On Monday, the Prime Minister’s Office announced that Justice Malcolm Rowe of the Court of Appeal of Newfoundland and Labrador has been nominated to the Supreme Court of Canada. A question and answer session with Justice Rowe will take place on Tuesday October 25, 2016 at the University of Ottawa, and the PMO has invited two law students from every Canadian law school to attend. We will be blogging about the Q & A event on ABlawg, so stay tuned for that.

Provided Justice’s Rowe’s nomination is accepted, there will soon be a full slate of justices on the Supreme Court to hear this fall’s appeals. The Globe and Mail ran an interesting article a couple of weeks ago noting some of this session’s more interesting hearings. One case that was not mentioned is one that we have been watching on ABlawg – Stewart v Elk Valley Coal (see here, here and here – the case also goes by the name of Bish, the union member who filed a complaint on behalf of Stewart). Intervener facta were filed in Stewart on October 7, and there is an important set of voices missing from those arguments. On August 12, 2016, Justice Russell Brown denied intervener status to the Canadian Human Rights Commission and the Ontario Human Rights Commission, the Manitoba Human Rights Commission, the Saskatchewan Human Rights Commission and the Yukon Human Rights Commission, who had applied to intervene jointly.

Human Rights, the Charter, and Access to Justice

By Jennifer Koshan

On September 30, 2016

In Access to Justice, Human Rights

By: Jennifer Koshan

PDF Version: Human Rights, the Charter, and Access to Justice

Case Commented On: Canadian Human Rights Commission v. Canada (Attorney General), 2016 FCA 200 (CanLII)

This summer, the Federal Court of Appeal upheld the ruling of the Canadian Human Rights Tribunal (CHRT) that if a claimant wishes to challenge discriminatory federal legislation, they must do so via a Charter claim rather than a human rights complaint. This post will analyze the Court’s decision, compare it to the approach taken in Alberta in cases such as Gwinner v. Alberta (Human Resources and Employment), 2002 ABQB 685 (CanLII); aff’d 2004 ABCA 210 (CanLII), and raise some concerns about the implications of the federal approach for access to justice. I will not analyze the Court’s reasons on standard of review, but it is interesting to note that following a survey of Canadian courts of appeal, the Federal Court of Appeal refers to the “sorry state of the case law and its lack of guidance on when decisions of human rights tribunals interpreting provisions in human rights legislation will be afforded deference” (Canadian Human Rights Commission v. Canada (Attorney General), 2016 FCA 200 (CanLII) at para 78). The Supreme Court has an opportunity to clarify the standard of review issue in Stewart v Elk Valley Coal Corporation, 2015 ABCA 225, leave granted 2016 CanLII 13730 (SCC), which we have blogged on here and here and which will be heard by the Court in December. In addition, this month the Canadian Human Rights Commission filed an application for leave to appeal the Federal Court of Canada decision that is the subject of this post.