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.

Non-Fatal Exclusion: The Fatal Accidents Act, Stepchildren, and Equality Rights

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF version: Non-Fatal Exclusion: The Fatal Accidents Act, Stepchildren, and Equality Rights

Case Commented On: Dares v Newman, 2012 ABQB 328

A father died in a motor vehicle accident. For his grief and the loss of his father’s guidance, care and companionship, his biological child received $45,000 in bereavement damages from the at-fault driver’s insurance company under section 8(2)(c) of the Fatal Accidents Act, RSA 2000, c F-8. His two adopted children, who had not spoken to him for twenty years, also received $45,000 each under the same provision. His two stepchildren, to whom he had stood in the place of a parent for twenty years – and who had received his guidance, care and companionship over two decades and who suffered grief on his death – received nothing. This case raises the issue of the extent to which government is entitled to deny benefits to certain claimants for the purpose of restricting legal action against private parties for tortious conduct causing death. Continue reading →

Transporting Liberty: A Right Not to be Deprived of Access to Public Transit?

PDF version: Transporting Liberty: A Right Not to be Deprived of Access to Public Transit?

Case considered:  R v S.A., 2012 ABQB 311, overturning 2011 ABPC 269

Section 7 of the Charter provides that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”  The liberty interest in section 7 has been slowly evolving since the Charter came into force in 1982. Debates have occurred about how broadly the right not to be deprived of liberty should be constitutionally protected, and to date a majority of the Supreme Court has not accepted a wide interpretation.  In R v S.A., the issue was whether banning a young person from all Edmonton Transit System (ETS) properties for a period of time violated her protected liberty interests, and if so, whether this violation was contrary to the principles of fundamental justice.  At the Provincial Court level, Judge D. Dalton answered both questions in the affirmative, taking a broad approach to the interpretation of liberty (2011 ABPC 269). On appeal, Justice M.A. Binder of the Court of Queen’s Bench interpreted liberty more narrowly, and found that there was no violation of section 7 (2012 ABQB 311). An application for leave to appeal that decision was filed by S.A. on June 14. This post will contrast the two decisions and argue in favour of a broad interpretation of liberty in the circumstances of this case.

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Face-ing the Charter’s Application on University Campuses

PDF version: Face-ing the Charter’s Application on University Campuses

Case considered: Pridgen v University of Calgary, 2012 ABCA 139

Linda McKay Panos recently posted an ABlawg comment on R v Whatcott, 2012 ABQB 231, where Justice Paul Jeffrey held that the Canadian Charter of Rights and Freedoms applied to the actions of the University of Calgary when it was enforcing trespass legislation against a non-student distributing anti-gay leaflets on campus (see University Campus is not Charter-Free). The Court of Appeal – or more accurately one member of the Court of Appeal – came to the same conclusion in the case of Pridgen v University of Calgary, 2012 ABCA 139, albeit in different circumstances. Shaun Fluker has already commented on the administrative law aspects of Pridgen (see The need to explain yourself before imposing discipline under the law); I will deal with the Court’s assessment of whether the Charter applies to the University in the context of student discipline proceedings.

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In forma pauperis: A Constitutional Right to Access to Justice

PDF version: In forma pauperis: A Constitutional Right to Access to Justice

Case commented on: Toronto Dominion Bank v. Beaton, 2012 ABQB 125

Access to justice is a hot topic: it is the stuff of judicial speeches; test case litigation; law society initiatives; and the list goes on. In Toronto Dominion Bank v Beaton, 2012 ABQB 125, which dealt with the seemingly routine issue of whether the court could order a fee waiver for transcripts for a leave to appeal application, Justice Joanne Veit of the Alberta Court of Queen’s Bench held that there is a constitutional right to access to justice, but that it was not breached in the circumstances of the case.

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The Alberta Election and Human Rights

Document considered: Wildrose Platform on Justice, Policing and Human Rights

PDF Version: The Alberta Election and Human Rights

Several human rights issues have been raised in the Alberta election campaign to date. Perhaps most significantly, the Wildrose party’s platform on Justice, Policing and Human Rights proposes major changes to the Alberta Human Rights Act, RSA 2000, c A-25.5 (AHRA), changes that are both substantive and procedural in nature. I will set out those proposed changes in this post, and raise some related concerns.

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