Author: Jennifer Koshan Page 18 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: Is There a Right to Private Health Care in Alberta? A “Constitutional Vivisection”

Case Commented On: Allen v Alberta, 2015 ABCA 277

To what extent do precedents in constitutional cases allow litigants to take short cuts on evidence and procedure in subsequent claims? According to the Alberta Court of Appeal in Allen v Alberta, 2015 ABCA 277, it depends on a number of considerations. Many of the criteria that Justice Slatter enumerates in his opinion in Allen are sensible ones. However, he uses this case – involving a section 7 Charter challenge to the ban on private insurance in the health care context – to mount a critique of previous section 7 decisions, the Supreme Court of Canada, and even the framers of the Charter. Justice Slatter’s critique is arguably inconsistent with the role of the courts as guardians of the constitution, and Justices Martin and Watson, although concurring in the result, distance themselves from his critique. Ironically, Justice Slatter’s reasons for judgment are often devoid of precedential support even as he is writing on that very subject.

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.

Blogging and Legal Education

By Jennifer Koshan

On June 5, 2015

In Blogs and Websites, Legal Education

By: Jennifer Koshan

PDF Version: Blogging and Legal Education

I was at the Canadian Association of Law Teachers (CALT) conference in Ottawa earlier this week and participated in a roundtable on blogging and legal education. Other participants included University of Ottawa’s Angela Cameron from Blogging for Equality; Paul Daly from Administrative Law Matters; and Moin Yahya from the University of Alberta Faculty of Law Blog. Suzanne Bouclin from the University of Ottawa chaired.

I started off the discussion by describing the ways that ABlawg engages law students. We employ a student coordinator who spends about 10 hours per week summarizing Alberta court decisions, posting, moderating comments, and maintaining the ABlawg website. Student bloggers are recruited through volunteer organizations such as Student Legal Assistance and Pro Bono Students Canada, and some of them continue to blog for ABlawg after graduation. Some professors have also incorporated blogging into our courses; for example my constitutional clinical students were required to synthesize their 50 page briefs on the rights of farmworkers into shorter, more accessible blog posts (see here, here, here and here). Interestingly some of the students questioned the value of this exercise at the time, but the blog posts led to attention from media and Alberta politicians, and an invitation to submit a book chapter consolidating the students’ work. Faculty members also use blog posts in the classroom as the basis for problems, moot/factum exercises, and as supplementary reading. ABlawg includes a category of posts on legal education as well.

The Supreme Court’s Latest Equality Rights Decision: An Emphasis on Arbitrariness

By Jennifer Koshan

On May 29, 2015

In Aboriginal, Constitutional

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: The Supreme Court’s Latest Equality Rights Decision: An Emphasis on Arbitrariness

Case Commented On: Kahkewistahaw First Nation v Taypotat, 2015 SCC 30 (CanLII)

The Supreme Court released its decision in Kahkewistahaw First Nation v Taypotat, 2015 SCC 30 yesterday. We commented on the Federal Court of Appeal decision in the case here. Taypotat was one of two appeals concerning adverse effects discrimination under section 15(1) of the Charter heard by the Supreme Court in October 2014, the other being Carter v Canada (Attorney General), 2015 SCC 5. The Supreme Court declined to rule on the section 15(1) issue in Carter (see here; see also the Court’s decision not to address section 15 in last week’s ruling in R v Kokopenace, 2015 SCC 28 (CanLII), a case involving the representativeness of juries for Aboriginal accused persons). However, the Court did not have the option of avoiding section 15 in Taypotat. In a unanimous judgment written by Justice Abella, the Court held that the adverse effects claim in Taypotat was not established by the evidence.

Leave to Appeal granted in Ernst v Alberta Energy Regulator

By Jennifer Koshan

On April 30, 2015

In Constitutional, Energy

By: Jennifer Koshan

PDF Version: Leave to Appeal granted in Ernst v Alberta Energy Regulator

Case commented on: Ernst v Alberta Energy Regulator, 2013 ABQB 537, aff’d 2014 ABCA 285, leave to appeal granted April 30, 2015 (SCC)

Today the Supreme Court (Justices Abella, Karakatsanis and Côté) granted leave to appeal with costs in the cause to Jessica Ernst. The Court’s description of the case is as follows:

Charter of Rights – Constitutional law – Enforcement – Remedy – Freedom of expression – Statutory immunity clause held to preclude adjudication of individual’s action in damages for alleged Charter breach by the regulator – Can a general “protection from action” clause contained within legislation bar a Charter claim for a personal remedy made pursuant to s. 24(1) of the Charter – Can legislation constrain what is considered to be a “just and appropriate” remedy under s. 24(1) of the Charter – Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28.

The applicant owns land near Rosebud, Alberta. She brought an action against: i) EnCana Corporation for damage to her water well and the Rosebud aquifer allegedly caused by its construction, drilling, hydraulic fracturing and other activities in the area; ii) Alberta Environment and Sustainable Resource Development, claiming it owes her a duty to protect her water supply and had failed to address her complaints about EnCana; and iii) the respondent regulator, for “negligent administration of a regulatory regime” related to her claims against EnCana. She brought a further claim for damages against the regulator under s. 24(1) of the Charter for alleged breaches of her s. 2(b) Charter rights. She alleges that from November, 2005 to March 2007, the Board’s Compliance Branch refused to accept further communications from her through the usual channels for public communication until she agreed to raise her concerns only with the Board and not publicly through the media or through communications with other citizens. She submits the respondent infringed her s. 2(b) Charter rights both by restricting her communication with it and by using those restrictions to punish her for past public criticisms and prevent her making future public criticisms of the respondent.

The respondent brought an application to strike paragraphs from the Statement of Claim or grant summary judgment in its favour. The Court of Queen’s Bench of Alberta granted the application and struck out the applicant’s negligence and Charter claims. While the Court held that the Charter claims were not doomed to fail and did disclose a cause of action, it held that the courts were precluded from considering the claims by the statutory immunity provision in the Energy Resources Conservation Act, R.S.A. 2000, c. E-10. The Alberta Court of Appeal dismissed the appeal.

There have been several ABlawg posts on the Alberta courts’ earlier decisions in the Ernst litigation. The most relevant to the issue that is now going to the Supreme Court is my post The Charter Issue(s) in Ernst: Awaiting Another Day.