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.

Blogging and Legal Education

By: Jennifer Koshan

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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.

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

By: Jennifer Koshan and Jonnette Watson Hamilton

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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.

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Leave to Appeal granted in Ernst v Alberta Energy Regulator

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.

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The Supreme Court’s New Constitutional Decisions and the Rights of Farm Workers in Alberta

By: Jennifer Koshan

PDF Version: The Supreme Court’s New Constitutional Decisions and the Rights of Farm Workers in Alberta

Cases Commented On: Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1 (CanLII); Meredith v Canada (Attorney General), 2015 SCC 2 (CanLII); Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4 (CanLII); Carter v Canada (Attorney General), 2015 SCC 5 (CanLII)

As I was saying to my constitutional law students the other day, the first few weeks of 2015 have been remarkable for the sheer number of Charter decisions released by the Supreme Court of Canada, including several that have overturned previous decisions in important ways. Of the eight SCC decisions released to date in 2015, five are major Charter rulings. Several of these decisions have implications for a project on the rights of farm workers that I worked on with a group of constitutional clinical students in the winter of 2014. The students’ posts on the constitutionality of excluding farm workers from labour and employment legislation are available here, here, here and here. In this post, I will outline the impact these recent Charter decisions have on the students’ arguments. In a nutshell, they make the claims of farm workers for legislative protection even stronger, refuting the argument of Premier Jim Prentice that we need “more research and debate” before taking action on these unconstitutional exclusions.

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Supreme Court of Canada Strikes Down Ban on Physician Assisted Death

By: Jennifer Koshan

PDF Version: Supreme Court of Canada Strikes Down Ban on Physician Assisted Death

Case Commented On: Carter v Canada (Attorney General), 2015 SCC 5

In a landmark decision, on February 6, 2015 the Supreme Court of Canada unanimously struck down the criminal prohibition against physician assisted death (PAD) in Carter v Canada, 2015 SCC 5. By declining to follow its 1993 decision in Rodriguez v British Columbia, 1993 CanLII 75 (SCC), [1993] 3 SCR 519, which had upheld the prohibition, Carter marks the third time in the first few weeks of 2015 that the Court has overruled previous Charter decisions (see also Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1 and Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, which will be the subject of a future ABlawg post). In Carter, the Court held that the ban on PAD violates the rights to life, liberty and security of the person contrary to the principles of fundamental justice under section 7 of the Charter, and could not be justified as a reasonable limit under section 1. As predicted, however, the Court declined to deal with the claim that the ban on PAD also violates equality rights contrary to section 15(1) of the Charter.

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