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.

Who is a Farm Worker? And Why Does It Matter?

By: Jennifer Koshan

PDF Version: Who is a Farm Worker? And Why Does it Matter?

Case Commented On: R v Northern Forage Inc., 2009 ABQB 439

Alberta marked its 5th annual Farm Workers Day on August 20, 2009. As in previous years, the event provided an opportunity to advocate for equal protection for farm workers under Alberta’s labour and employment laws. Farm workers are currently excluded from the following laws: (1) protections regarding wages, overtime, holidays, and hours of work (see Employment Standards Code, R.S.A. 2000, c.E-9, section 2(4)); (2) mandatory coverage for workers compensation (see Workers’ Compensation Regulation, Alta. Reg. 325/2002, Schedule A); (3) work-related health and safety protections (see Occupational Health and Safety Act, R.S.A. 2000, c. O-2, section 1(s)); and (4) protections related to the unionization of workers (see Labour Relations Code, R.S.A. 2000, c. L-1, section 4(2)(e)). This makes Alberta one of the most lax provinces in Canada in terms of farm worker protection. Groups such as the Alberta Federation of Labour have called for an end to such exclusions, and a recent inquest into the fatality of agricultural worker Kevan Chandler led Judge Peter Barley to recommend that “paid employees on farms should be covered by the Occupational Health and Safety Act…” (at 7). Until the Alberta government amends the relevant legislation, however, questions may arise as to which workers are covered by the exclusions.

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Supreme Court grants leave to appeal in Caron

Case considered: R. v. Caron, 2009 ABCA 34, leave granted by SCC August 27, 2009

The Supreme Court of Canada has released its decision on the Alberta government’s leave to appeal application in R. v. Caron.  Chief Justice McLachlin and Justices Abella and Rothstein granted the government’s leave application (without costs). As is typical in such matters, no reasons for decision were given.  The case concerns an interim costs award that was granted to Caron to help fund his language rights challenge against Alberta legislation. As noted in a previous post, Caron was granted an interim costs award by Justice V.O. Ouellette of the Alberta Court of Queen’s Bench in October 2007.  This award was upheld by the Alberta Court of Appeal in January 2009.  In the meantime, Caron’s language rights challenge was successful after his Provincial Court trial, and this matter is now under appeal. Regardless of the outcome of the language rights challenge, the interim costs matter is a critical issue for access to justice.  The Alberta Court of Appeal held that interim costs awards are available in quasi-criminal matters before provincial courts, and it is expected that this will be one of the government’s grounds for appeal.  ABlawg will report on future developments in the case.

A Clarification of Evidentiary Requirements under the Protection Against Family Violence Act

Cases Considered:  J.S. v. D.J.K., 2009 ABQB 426.

PDV Version: A Clarification of Evidentiary Requirements under the Protection Against Family Violence Act

Justice Donald Lee is a prolific author of judgments posted to the Alberta Courts website, and one of the only Alberta judges to post decisions made under the Protection Against Family Violence Act, R.S.A. 2000, c. P-27 (PAFVA) (see my earlier post Family Violence Cases in Alberta: A Snapshot). In one of his recent decisions, Justice Lee helpfully clarifies the evidentiary requirements for hearings to confirm emergency protection orders made under the PAFVA.

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Security Trumps Freedom of Religion for Hutterite Drivers

By: Jennifer Koshan

PDF Version: Security Trumps Freedom of Religion for Hutterite Drivers

Case Commented On: Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37

The Supreme Court of Canada’s long awaited decision on whether Hutterites can be forced to have their photographs taken to obtain a driver’s licence was released on July 24, 2009. Reversing the judgments of the Alberta Court of Queen’s Bench and the Alberta Court of Appeal, a majority of the Supreme Court finds that the violation of freedom of religion caused by the photo requirement is justifiable under section 1 of the Canadian Charter of Rights and Freedoms. This comment will argue that the majority’s decision, especially its failure to find a duty to accommodate on the part of the government, sets the protection of Charter rights back several years.

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Another Take on Equality Rights by the Court of Appeal

By: Jennifer Koshan

PDF Version: Another Take on Equality Rights by the Court of Appeal

Case Commented On: Cunningham v Alberta (Aboriginal Affairs and Northern Development), 2009 ABCA 239

In my recent post on Morrow v Zhang, 2009 ABCA 215, Some Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries, I noted that this case was the first opportunity for the Court of Appeal to apply section 15 of the Charter (the equality rights provision) since the Supreme Court of Canada’s landmark decision in R v Kapp, 2008 SCC 41. Only a couple of weeks later, a differently constituted Court of Appeal panel decided another section 15 case, and the analysis and outcome of the two cases are quite different. While I have a few quibbles with the Court’s decision in Cunningham v Alberta (Aboriginal Affairs and Northern Development), I believe it is a much better example of how section 15 of the Charter should be applied than is Morrow v Zhang.

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