Author Archives: Jennifer Koshan

About Jennifer Koshan

B.Sc., LL.B (Calgary), LL.M. (British Columbia). Professor. Member of the Alberta Bar. Please click here for more information.

Access to Justice, Self-Represented Litigants and Court Resources: A Snapshot from Alberta Superior Courts for the Month of May

By: Jennifer Koshan and Drew Yewchuk

PDF Version: Access to Justice, Self-Represented Litigants and Court Resources: A Snapshot from Alberta Superior Courts for the Month of May

Cases commented on: Pintea v Johns, 2016 ABCA 99 (CanLII); Erdmann v Complaints Inquiry Committee, 2016 ABCA 145 (CanLII); JE v Alberta (Workers’ Compensation Board), 2016 ABCA 147 (CanLII); HH v DB, 2016 ABQB 164 (CanLII); Pickett v Walsh, 2016 ABQB 222 (CanLII); McCallum v Edmonton Frame and Suspension (2002) Ltd, 2016 ABQB 271 (CanLII); R v Cullen, 2016 ABQB 272 (CanLII); Alberta v Greter, 2016 ABQB 293 (CanLII); ET v Rocky Mountain Play Therapy Institute Inc, 2016 ABQB 299 (CanLII)

As the Coordinator and Student Assistant for ABlawg, we review all Alberta Court of Queen’s Bench and Court of Appeal decisions each week for their blogworthiness. During the month of May, we noted several cases dealing with issues related to access to justice and the courts’ role in and resources for dealing with self-represented litigants. Of course, resource issues do not only arise in cases involving self-reps. On June 1, 2016, Justice Berger of the Court of Appeal chastised counsel for parties to protracted litigation with the following words:

I would be remiss if I failed to express serious concerns for that which I perceive to be a disregard on the part of counsel for the limited resources available to the judiciary, particularly at a time when the courts are functioning with less than a full complement (Weatherford Canada Partnership v Kautschuk, 2016 ABCA 173 at para 7).

This statement refers to the fact that Alberta is short of both Court of Queen’s Bench and Court of Appeal justices. The need for the federal Minister of Justice to make judicial appointments to fill these vacancies and to create new positions given the increase in Alberta’s population has been commented on by Alberta’s Justice Minister Kathleen Ganley, as well as Chief Justice Neil Wittman of the Court of Queen’s Bench (see here and here). Chief Justice Wittman called the shortage a “crisis” as far back as October 2015, when he stated that the courts “are literally at the breaking point right now.” Continue reading →

A Terminal Dispute? The Alberta Court of Appeal Versus the Federal Government on Assisted Death

By: Jennifer Koshan

PDF Version: A Terminal Dispute? The Alberta Court of Appeal Versus the Federal Government on Assisted Death

Case and Legislation Commented On: Canada (Attorney General) v E.F., 2016 ABCA 155 (CanLII); Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), 42nd Parliament, 1st Session (as amended by the Standing Committee on Justice and Human Rights)

Anyone not familiar with the controversy surrounding assisted death got a taste of it last week during the debate over Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), which culminated in Elbowgate in the House of Commons. Also last week, in the first appellate decision to consider assisted dying post-Carter, the Alberta Court of Appeal weighed in on the criteria for constitutional exemptions during the suspension of the declaration of invalidity of the criminal provisions which prohibit assisted death (see Carter v Canada (Attorney General), 2015 SCC 5 (CanLII) (Carter 2015) and Carter v Canada (Attorney General), 2016 SCC 4 (CanLII) (Carter 2016); and for posts on those decisions see here and here). The Court of Appeal’s decision in Canada (Attorney General) v E.F., 2016 ABCA 155 (CanLII), highlights the lack of congruence between what Carter 2015 constitutionally required and what the government has, so far, delivered in Bill C-14, particularly when it comes to whether a person seeking medical assistance in dying must have an illness that is “terminal”. E.F. also comments on the appropriate role of the Attorney General of Canada in applications seeking judicial authorization of the constitutional exemption allowing assisted dying in certain circumstances during the suspended declaration of invalidity. Continue reading →

Excluding Mere Intimate Relationships: The Alberta Court of Appeal Interprets the Protection Against Family Violence Act

By: Jennifer Koshan

PDF Version: Excluding Mere Intimate Relationships: The Alberta Court of Appeal Interprets the Protection Against Family Violence Act

Case Commented On: Lenz v Sculptoreanu, 2016 ABCA 111 (CanLII)

The Protection Against Family Violence Act, RSA 2000, c P-27 (PAFVA) allows “family members” to obtain emergency protection orders (EPOs) on an ex parte basis, in circumstances where “family violence” has occurred, the claimant “has reason to believe that the respondent will continue or resume carrying out family violence”, and “by reason of seriousness or urgency, the order should be granted to provide for the immediate protection of the claimant and other family members who reside with the claimant” (section 2). In the context of intimate relationships, “family member” is defined to mean “persons who are or have been married to one another, who are or have been adult interdependent partners of one another or who are residing or have resided together in an intimate relationship.” Family member also includes those who are “parents of one or more children, regardless of their marital status or whether they have lived together at any time” (section 1(1)(d)).

In Lenz v Sculptoreanu, 2016 ABCA 111 (CanLII), the Alberta Court of Appeal (Justices Rowbotham, Wakeling and Schutz) made a “comprehensive consideration of the language used in the legislation, the scheme of the legislation, and its objects”, and concluded that this definition does not include persons who have been involved in an intimate relationship without residing together and do not fall within the definition of “adult interdependent partner” in the Adult Interdependent Relationships Act, SA 2002, c A-4.5” (at para 4).

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Alberta Human Rights Act Applies to Condominium Corporations

By: Jennifer Koshan

PDF Version: Alberta Human Rights Act Applies to Condominium Corporations

Case Commented On: Condominium Corporation No 052 0580 v Alberta (Human Rights Commission), 2016 ABQB 183 (CanLII)

A few years ago I wrote a post arguing that the Alberta Human Rights Act, RSA 2000, c A-25.5 (AHRA), applies to the relationship between condominium owners and their condominium corporations. The Alberta Court of Queen’s Bench was recently faced with a case where it had to address that issue directly. In Condominium Corporation No 052 0580 v Alberta (Human Rights Commission), 2016 ABQB 183 (CanLII), Justice Robert A. Graesser held that the AHRA does indeed apply to condominium corporations. This post will explain his reasons for decision, and comment on a remark he made about the lack of authoritativeness of blog posts as secondary sources.

This case arose when Condominium Corporation No 052 0580 (the Corporation) brought an application for judicial review challenging the jurisdiction of the Alberta Human Rights Commission to investigate a human rights complaint by one of its owners. The underlying dispute involved Dennis Goldsack, the owner of a condominium unit in Tradition at Southbrook, Edmonton, who was confined to a wheelchair and had been assigned a parking stall closest to the building’s elevators. The Corporation’s Board decided to repurpose that stall for bicycle parking and storage, and reassigned Goldsack a parking stall that was further from the elevators and narrower. After failed negotiations with the Corporation, Goldsack brought a human rights complaint against it under section 4 of the AHRA. This section prohibits discrimination on the ground of physical disability (as well as other grounds) in the provision of “goods, services, accommodation or facilities that are customarily available to the public”.

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Constitutional Exemptions for Physician Assisted Dying: The First Case of Judicial Authorization in Alberta

By: Jennifer Koshan

PDF Version: Constitutional Exemptions for Physician Assisted Dying: The First Case of Judicial Authorization in Alberta

Case Commented On: HS (Re), 2016 ABQB 121 (CanLII)

On February 29, 2016, Justice Sheilah Martin of the Alberta Court of Queen’s Bench released a decision providing authorization for physician assisted death to HS, an adult woman with amyotrophic lateral sclerosis (ALS). This is thought to be the first case outside of Quebec where a court has confirmed the eligibility of a claimant for a constitutional exemption following the Supreme Court of Canada’s decision in Carter v Canada (Attorney General), 2016 SCC 4 (CanLII) (Carter II). As I noted in a previous post, in Carter I (Carter v Canada (Attorney General), 2015 SCC 5) the Supreme Court struck down the criminal prohibition against physician assisted death (PAD) on the basis that it unjustifiably violated the rights to life, liberty and security of the person in section 7 of the Charter. That remedy was suspended for a year to allow the federal government time to enact a new law without leaving a gap in the legislative scheme that might be used to induce vulnerable persons to take their own lives. The Court declined to grant exemptions from the suspension in Carter I given that none of the claimants were in need of immediate relief; Gloria Taylor, the only Carter claimant who had originally sought an exemption, had died before the Supreme Court hearing (2015 SCC 5 at para 129). In Carter II, the Supreme Court extended the suspension of its remedy by 4 months to account for the change in federal government (see Elliot Holzman’s post on Carter II here). In light of the extraordinary nature of the extension — which permitted an unconstitutional law to remain in effect for an extended time — the Court granted a constitutional exemption to competent adults when they met certain criteria: (1) they clearly consent to the termination of life and (2) they have “a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition and that cannot be alleviated by any treatment acceptable to the individual.” (2016 ABQB 121 at para 2). This post will focus on the role of courts that are called upon to assess claimants’ eligibility for constitutional exemptions, as discussed by Justice Martin in the HS case.

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