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.

Some Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries

By: Jennifer Koshan

PDF Version: Some Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries

Case Commented On: Morrow v Zhang, 2009 ABCA 215, overturning 2008 ABQB 98

Last February, Associate Chief Justice Neil Wittmann of the Alberta Court of Queen’s Bench found that the $4000 cap on non-pecuniary damages for soft tissue injuries violated the equality rights of motor vehicle accident victims, and could not be justified as a reasonable limit under section 1 of the Charter (see my earlier post on this case: Not on Their Backs: Cap on Damages for Soft Tissue Injuries Struck Down; Court Denies Stay of Remedy Pending Appeal). This decision was overturned by the Alberta Court of Appeal on June 12, 2009. Writing for a unanimous Court, Justice Patricia Rowbotham (with Justices Elizabeth McFadyen and Clifton O’Brien concurring) held that when viewed in the context of the overall scheme of insurance reforms, the cap did not violate section 15 Charter equality rights. In addition to its significance for the auto insurance industry and Alberta drivers, this decision is of interest as the first judgment of the Alberta Court of Appeal to consider section 15 since the Supreme Court of Canada set out a new approach to equality rights in R v Kapp, 2008 SCC 41. Continue reading →

The Charter, School Boards and Discrimination Claims

Case considered: Hamilton v. Rocky View School Division No. 41, 2009 ABQB 225

PDF version: The Charter, School Boards and Discrimination Claims

In a recent post I examined whether the Canadian Charter of Rights and Freedoms would apply to the University of Calgary in the context of its handling of an anti-abortion protest that took place on University campus (see Freedom of Expression, Universities and Anti-Choice Protests). A recent decision of the Alberta Court of Queen’s Bench looks at a similar issue, namely the application of the Charter to a local school board, but this time in the context of an employment discrimination issue. In Hamilton v. Rocky View School Division No. 41, Justice Bryan Mahoney found that the Charter did not apply to the school board’s alleged actions, and that the plaintiff was restricted to pursuing his claim under human rights legislation.

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Rule of Law, Deference and Contempt: Another Chapter in the Black Bear Crossing Dispute

Case Considered: Tsuu T’ina Nation v. Frasier, 2009 ABCA 140

PDF version: Rule of Law, Deference and Contempt: Another Chapter in the Black Bear Crossing Dispute

The dispute between the three remaining residents of Black Bear Crossing (BBC) and the Tsuu T’ina Nation was back before the courts on April 6, 2009. On that date, the Alberta Court of Appeal (Justices Peter Martin, Frans Slatter and Sal LoVecchio) heard an appeal by the Tsuu T’ina Nation of the finding of contempt made against it on November 7, 2008 by Justice Jo’Ann Strekaf. The contempt order related to the failure of the Tsuu T’ina Nation to comply with earlier orders requiring it to maintain utilities and water service at BBC while the three residents – Fred Frasier, Florence Peshee and Regina Noel – remained there pending the resolution of their claims for band membership (see my earlier post “Litigation by installments”: Further Developments in the Black Bear Crossing Dispute). While the Court of Appeal dismissed the appeal in eight short paragraphs, its judgment is replete with lofty legal concepts such as the rule of law and deference that call out to be unpacked.

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Gender Reassignment Surgery, Human Rights, and the Minister

Legislation Considered: Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c.H-14

PDF Version: Gender Reassignment Surgery, Human Rights, and the Minister

When the Alberta government introduced its budget on April 7, 2009, one of its cuts was to de-insure new gender reassignment surgeries. According to the CBC, “[t]he province had funded a maximum of 20 gender reassignment surgeries [GRS] annually; the cut is expected to save the government about $700,000 a year.” The CBC also reported that a number of human rights complaints were filed by transgendered persons on April 15, 2009, alleging that the cut amounts to discrimination on the basis of gender identity contrary to Alberta’s Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c.H-14 (“HRCMA“). In response to a question about whether an Ontario case where a similar cut was found to violate human rights legislation would serve as a precedent in Alberta, Lindsay Blackett (Minister of Culture and Community Spirit) is said to have made the following comment: “We have a slightly different process, and we have slightly different value systems and a way of thinking in Alberta, and since most of the people on our commission are from Alberta, they may look at it a little differently then Ontarians do.” Blackett’s reported comment is disturbing on a number of grounds.

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Freedom of Expression, Universities and Anti-Choice Protests

PDF version: Freedom of Expression, Universities and Anti-Choice Protests

Anti-abortion protestors were back in force at the University of Calgary the last week of March following news that on March 16, they pleaded not guilty to trespassing charges laid against them in relation to a similar incident in November, 2008. One might reasonably think that the freedom to express anti-choice views deserves protection on a university campus, a center of academic debate on a range of controversial subjects. Or one might reasonably think that the University of Calgary was justified in advising the Campus Pro-Life group that they could mount their protest, provided they turned their signs – depicting graphic images of the Rwandan genocide, the Holocaust, the Ku Klux Klan and aborted fetuses – inward. But the University is making a different argument, namely that the Canadian Charter of Rights and Freedoms does not apply to universities. I think that view is itself subject to debate.

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