Author Archives: Admin

Supreme Court of Canada grants Leave to Appeal in Daniels

Case commented on: Harry Daniels et al. v. Her Majesty the Queen as represented by The Minister of Indian Affairs and Northern Development et al, 2013 FC 6, varied 2014 FCA 101; leave granted November 20, 2014 (SCC) (35945)

Yesterday the Supreme Court of Canada (Chief Justice McLachlin and Justices Cromwell and Wagner) agreed to hear Daniels, a case that raises the issue of whether Métis and non-status Indians fall within the scope of federal powers under section 91(24) of the Constitution Act 1867. For an ABlawg comment on the Federal Court and Federal Court of Appeal decisions, see here.

The panel’s decision reads as follows:

The motion of the intervener Métis National Council for an extension of time to serve and file a response to the application for leave to appeal and for leave to file a response to the application for leave to cross-appeal is granted.  The application for leave to appeal is granted with costs in any event of the cause. The application for leave to cross-appeal is granted.  A party having intervened in the Federal Court of Appeal and wishing to intervene before this Court shall seek leave to intervene.

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British Columbia’s Water Sustainability Act – A New Approach to Adaptive Management and No Compensation Regulation

By: Deborah Curran

 PDF Version: British Columbia’s Water Sustainability Act – A New Approach to Adaptive Management and No Compensation Regulation

Bill commented on:Bill 18 – 2014 (British Columbia), The Water Sustainability Act, 2014 Legislative Session: 2nd Session, 40th Parliament

The British Columbia Legislature gave third and final reading to Bill 18 – 2014, B.C.’s new Water Sustainability Act (“the Act”), on April 29, 2014 as the long awaited overhaul of the water management and allocation regime in B.C. As someone who teaches both municipal and water law I am pleased with the legislation. I have been so bold as to say that the Act is the best piece of environmental legislation introduced in B.C. in more than a decade. Of particular interest, in this age of if not climate change then more extreme weather events that typically involve precipitation in its liquid or frozen forms, is the way the Act strives towards an adaptive approach to water management and thus water rights. Under the new law licences issued in perpetuity will be subject to regional water sustainability plans that can reduce water diversions (ss 64-85) and subject to having their terms and conditions reviewed anytime after thirty years from when the Actcomes into force (s 23). This spectre of changing water rights may hasten a new era of water use as decision makers may amend the terms and conditions of a licence for more efficient use of water or water conservation, and may take into account the following factors when reviewing licence terms and conditions:

  • the best available technology in respect of water use efficiency and water conservation;
  • best practices in respect of water use efficiency and water conservation;
  • any increase in knowledge respecting actual stream flow or aquifer conditions;
  • the effects of climate change;
  • the licensee’s beneficial use of the water;
  • the use, operation or maintenance of works; and
  • other prescribed factors.

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Challenging the Farm Work Exclusions in the Employment Standards Code

By: Graham Martinelli and Andrew Lau

PDF Version: Challenging the Farm Work Exclusions in the Employment Standards Code

Legislation Commented On: Employment Standards Code, RSA 2000, c E-9

Editor’s Note

This is the fourth and final post in the series written by students in Law 696: Constitutional Clinical in the winter term of 2014. For the other posts see here, here and here.).

Introduction

In 2014, an adolescent (ages 12-14) working in the food industry in Alberta is restricted from participating in any work involving a deep fryer in a kitchen because deep fryers are deemed to be too unsafe for adolescents to operate (Employment Standards Regulations, Alta Reg 14/1997, s. 51(a)). Regardless of the task engaged in, adolescents working in the food industry must be accompanied by an adult older than 18 years old whenever they work (Employment Standards Regulations, s. 53(3)(b)). Yet, if that same child, or their younger sibling, worked on a farm instead of in a kitchen there would be no similar restrictions on the conditions of their employment. Farm children of any age younger than 15 can operate dangerous heavy equipment without adult supervision, and the laws of Alberta do almost nothing to regulate this scenario.

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The Constitutionality of the Exclusion of Farm Industries under the Alberta Workers’ Compensation Act

By: Nelson Medeiros and Robin McIntyre

PDF Version: The Constitutionality of the Exclusion of Farm Industries under the Alberta Workers’ Compensation Act

Legislation Commented On: Workers’ Compensation Act, RSA 2000 c W-15

As part of the Constitutional Clinical Law class at the University of Calgary, we studied the constitutionality of the exclusion of farm workers from four statutes in Alberta; the Occupational Health and Safety Act, RSA 2000 c O-2 [OHSA], Labour Relations Code [LSC], RSA 200 c L-1, Employment Standards Code, RSA 2000 c E-9 [ESC], and the Workers’ Compensation Act, RSA 2000 c W-15 [WCA]. With respect to the WCA, we developed arguments as to why the exemption of the agricultural industries from mandatory inclusion under the Workers’ Compensation Act violates s. 7 and s. 15 of the Canadian Charter of Rights and Freedoms [Charter].  For earlier posts on the constitutionality of the OHSA and LRC see here and here. Continue reading →

Faculty Council Resolution Re: Harper, MacKay and McLachlin

Editor’s Note

On May 6, 2014, our Faculty Council passed a unanimous motion calling on Prime Minister Stephen Harper and Justice Minister Peter MacKay to apologize to Chief Justice Beverly McLachlin of the Supreme Court of Canada for impugning her integrity and that of the Court. The letter is available here: Calgary_Faculty_Council_May_2014; the text is set out below.

The Faculty of Law Council at the University of Calgary joins with the Canadian Council of Law Deans and members of the legal community across Canada in expressing its grave concern with respect to statements made by Prime Minister Stephen Harper and Minister of Justice Peter MacKay, suggesting that Chief Justice Beverley McLachlin engaged in improper conduct in the context of the appointment of Mr. Justice Marc Nadon to the Supreme Court of Canada.

On the contrary, the facts confirm that the Chief Justice’s actions were consistent with the duties of her office, responsible, and beyond criticism. To suggest that the Chief Justice in performing her administrative role was inappropriately lobbying is to endanger one of the most important aspects of Canadian constitutional democracy, that being the relationship of respect between the independent judicial and executive arms of our government.

The University of Calgary Faculty of Law Council joins in the legal community’s condemnation of the government’s declarations regarding the actions of Chief Justice McLachlin. Our shared sentiment is that this is an unprecedented, baseless attack on one of the most important institutions of Canada’s constitutional democracy.

We call on the Prime Minister and the Minister of Justice to immediately and unequivocally apologize to the Chief Justice for wrongly impugning her integrity and to the Supreme Court of Canada for attempting to compromise its independence.

Unanimously approved by the University of Calgary Law Faculty Council on May 6, 2014.