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.

160 Girls Litigation Successful in Kenya

PDF version: 160 Girls Litigation Successful in Kenya

Case commented on: C.K. et al v The Commissioner of Police et al, Petition No. 8 of 2012, High Court of Kenya (May 27, 2013)

On May 27, 2013, J.A. Makau of the High Court of Kenya granted judgment for the petitioners in a constitutional claim challenging the failure of the Kenyan police to conduct prompt, effective, proper and professional investigations into complaints of sexual abuse against girls (known as “defilement” under Kenyan law). I have had the privilege of working as part of the volunteer legal team for this case over the last couple of years, under the auspices of a small but mighty NGO called the Equality Effect.  The Equality Effect (E2) consists of lawyers, academics, and activists primarily from Canada, Ghana, Kenya and Malawi who use domestic and international human rights laws to challenge women’s and girls’ inequality, including gender-based violence.  This post will describe the claim and the process leading to it, and the decision and its implications in Kenya and beyond.

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Roundtable on Quebec v A: Searching for Clarity on Equality

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: Roundtable on Quebec v A: Searching for Clarity on Equality

Case Commented On: Quebec (Attorney General) v A, 2013 SCC 5 (case summary available here)

On May 13, 2013, we led the Faculty of Law’s first roundtable discussion of the summer on the Supreme Court’s most recent equality rights decision, Quebec (Attorney General) v A. Participants included faculty members, researchers from the Alberta Civil Liberties Research Centre and Alberta Law Reform Institute, and a number of JD and graduate students. Coincidentally, a virtual roundtable on the case is also ongoing at the moment, moderated by Sonia Lawrence, Director of Osgoode Hall’s Institute for Feminist Legal Studies (IFLS), with participation from law profs Robert Leckey, Hester Lessard, Bruce Ryder, and Margot Young. Many of the issues raised in the IFLS discussion were also debated in our roundtable.

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Under the Influence: The Alberta Court of Appeal and the Test for Discrimination

PDF version: Under the Influence: The Alberta Court of Appeal and the Test for Discrimination

Cases commented on: Wright v College and Association of Registered Nurses of Alberta (Appeals Committee), 2012 ABCA 267, leave to appeal denied, 2013 CanLII 15573 (SCC); Lethbridge Regional Police Service v Lethbridge Police Association, 2013 ABCA 47, leave to appeal application filed, April 15, 2013, SCC

On March 28, 2013 the Supreme Court of Canada denied leave to appeal in the case of Wright v College and Association of Registered Nurses of Alberta. Linda McKay-Panos blogged on that case here; it involves a claim of discrimination by two nurses with opioid addictions who were disciplined by their professional association after stealing narcotics from their employers. A majority of the Alberta Court of Appeal (per Slatter, JA, Ritter JA concurring) held that there was no discrimination and thus no duty to accommodate the nurses, using an approach that focused on stereotyping, prejudice and arbitrariness. Writing in dissent, Justice Berger undertook a traditional prima facie discrimination analysis and decided that the nurses had experienced discriminatory treatment. This split reflects a wider uncertainty about the appropriate test for discrimination under human rights law, and in particular the extent to which the approach to discrimination under section 15 of the Charter should have an influence. In the Supreme Court’s most recent human rights judgment, Moore v British Columbia (Education), 2012 SCC 61 (per Abella J), the Court declined to explicitly clarify the proper test, yet implicitly indicated that the traditional prima facie approach to discrimination is correct. Perhaps that is why the Court decided not to hear the appeal in Wright, which was decided before Moore.  A more recent Court of Appeal decision, Lethbridge Regional Police Service v Lethbridge Police Association, was decided after Moore, yet Justices Martin, Watson and Slatter maintained a focus on stereotyping as the defining feature of discrimination. Worse, Lethbridge Police seems to impose additional burdens on complainants in human rights cases. This post will critically consider the Alberta Court of Appeal’s approach to discrimination and argue that the Supreme Court should grant leave to appeal in Lethbridge Police to clarify the proper test.

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Supreme Court Renders Leave to Appeal Decisions in Several Alberta Cases

PDF version: Supreme Court Renders Leave to Appeal Decisions in Several Alberta Cases

Cases considered: R v Mack, 2012 ABCA 42, leave to appeal granted, April 11, 2013 (SCC); Métis Nation of Alberta Region 1 v Joint Review Panel, 2012 ABCA 352, leave to appeal dismissed April 11, 2013 (SCC); Fitzpatrick v Alberta College of Physical Therapists, 2012 ABCA 207, leave to appeal dismissed April 11, 2013 (SCC)

On April 11, 2013 the Supreme Court of Canada handed down leave to appeal decisions in three cases from Alberta.

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Condominiums, Caregivers and Human Rights

PDF version: Condominiums, Caregivers and Human Rights

Case commented on: Condominium Plan No 9910225 v Davis, 2013 ABQB 49.

Anyone who has seen the film Amour knows that caring for an ill and elderly loved one can be an impossibly demanding task, both physically and emotionally. Many families turn to live-in caregivers in these circumstances. When those being cared for live in a condominium, and the condominium’s bylaws purport to restrict the use of live-in caregivers, what legal avenues are open to challenge the bylaws, or decisions made on the basis of the bylaws? This scenario arose in Condominium Plan No. 9910225 v Davis. Justice R. G. Stevens dealt with the issue as one of interpretation of the bylaws, but also suggested that human rights legislation was not an option in this type of case. I will argue in this post that human rights legislation does apply in the context of condominiums, and provides an important avenue of redress.

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