Author: Linda McKay-Panos Page 13 of 23

Linda McKay-Panos is the Executive Director of the Alberta Civil
Liberties Research Centre. She taught Language Arts and Social Studies with the Calgary Board of Education for 7 years before returning to university to obtain a Law Degree. She practiced law for a time, before joining the Alberta Civil Liberties Research Centre in 1992 as a Research Associate. Linda is a sessional instructor in the Faculties of Communication and Culture and Law at the University of Calgary. Linda received her Bachelor of Education, Bachelor of Laws and Master of Laws degrees from the University of Calgary. Linda is the President of the Alberta Association for Multicultural Education and the Past President of the Public Legal Education Network of Alberta. Linda is the author of several publications dealing with civil liberties, access to information, human rights, discrimination, equality and related topics. Linda received the 2001 Suzanne Mah Award and an Alberta Centennial Medal in 2005 for her work in human rights in Alberta.

“Amended Amended Redacted Document” Ordered Released to the Press and Public Fifteen Days after Judgment

By Linda McKay-Panos

On July 20, 2011

In Civil Procedure, Privacy

PDF version: “Amended Amended Redacted Document” Ordered Released to the Press and Public Fifteen Days after Judgment

Case considered: Globe & Mail v Alberta, 2011 ABQB 363 (“Globe and Mail“)

When the police want to obtain a search warrant, they file a document with a justice of the peace or judge called an “Information to Obtain a Search Warrant” or “ITO”. In this case, Judge J.D. Bascom had sealed the contents of an ITO filed on a case with respect to an “Unnamed Company”. The Globe and Mail applied to the Court of Queen’s Bench for access to the ITO (subject to some redactions).

Justice William Tilleman dealt with the application for access to the ITO, and noted that he had to “face the difficult task of balancing the sometimes competing rights to freedom of expression and the press, with the administration of justice, the protection of innocent persons, and the right to a fair trial” (Globe and Mail at para 2).

For the Second Time, Federal Court of Canada Judge Sends Mandatory Retirement Case Back to Canadian Human Rights Tribunal

By Linda McKay-Panos

On June 2, 2011

In Human Rights, Labour/Employment

PDF version: For the Second Time, Federal Court of Canada Judge Sends Mandatory Retirement Case Back to Canadian Human Rights Tribunal

Case considered: Air Canada Pilots Association v Kelly and Vilven, 2011 FC 120 (“Vilven and Kelly #2“)

Recently Justice Anne Mactavish of the Federal Court sent Air Canada Pilots Association v Kelly and Vilven, 2011 FC 120 (“Vilven and Kelly #2“), a mandatory retirement case, back to the Canadian Human Rights Tribunal for the second time. I have described the earlier cases here and here.

Previously, the Federal Court found that the Tribunal was in error when it ruled that section 15(1)(c) Canadian Human Rights Act, RSC 1985, c.H-6 (CHRA), which allows mandatory retirement, was not age-based discrimination. The Tribunal determined that section 15(1)(c) was age-based discrimination under the Canadian Charter of Rights and Freedoms (Charter), and that it could not be saved by Charter section 1. Second, the Tribunal held that even if section 15(1)(c) were saved by Charter section 1, Air Canada’s mandatory retirement policy did not come within the exception in the CHRA that allows (age) discrimination where it is a bona fide occupational requirement (BFOR).

Issue of “Employment” in Human Rights Cases Arises Yet Again

By Linda McKay-Panos

On May 17, 2011

In Human Rights, Labour/Employment

PDF version: Issue of “Employment” in Human Rights Cases Arises Yet Again

Case commented on: 375850 Alberta Ltd. v Noel, 2011 ABQB 218

Recently, in the decision of Lockerbie & Hole Industrial Inc. v Alberta (Human Rights and Citizenship, Director), 2011 ABCA 3 (“Lockerbie”) the Alberta Court of Appeal changed the direction of human rights law in Alberta by providing a narrow definition of “employer” and “employment” for the purposes of the application of the employment discrimination provision in section 7 of the Alberta Human Rights Act, RSA 2000, c A-25.5 (“AHRA“). See my earlier blog on that case here.

The Court of Queen’s Bench in the Noel case applies the Lockerbie analysis for determining whether the alleged discrimination occurred in the area of employment. Beverly Noel worked for Dy-Kel Services Ltd., a company involved in well testing. The company arranged and paid for Noel’s accommodation at Hamburg Open Camp [“the Camp”], owned by 375850 Alberta Ltd. The evidence at the Human Rights Tribunal indicates that Noel worked a shift on February 21, 2006, and returned to her room. She emerged from her shower unclothed to discover a camp maintenance employee, Jacob Chernish, standing in the doorway watching her. She told him to leave her room, and he did not, and replied that she had left her keys in the door. He also accused her of smoking marijuana in the room. The next day, Noel awoke in her bed to find Chernish standing in her room. He again accused her of smoking marijuana in her room. Noel informed her immediate supervisor at Dy-Kel what had occurred, and then the Camp manager, who told her that he would speak to Chernish. The Camp manager also referred her to Edwin Wiebe, a Director of 375850 Alberta Ltd., who was in Edmonton. She spoke to Wiebe on two occasions, but he hung up on her when she asked him to wait while she went to retrieve a letter of apology written to her on February 27, 2006 by Chernish. Noel was not able to contact Wiebe again (Noel at paras 3 to 4).

Leon’s Furniture and Privacy: When is it Unreasonable to be Reasonable?

By Linda McKay-Panos

On May 11, 2011

In Privacy

PDF version: Leon’s Furniture and Privacy: When is it Unreasonable to be Reasonable?

Case considered: Leon’s Furniture Limited v Alberta (Information and Privacy Commissioner), 2011 ABCA 94

This significant privacy case illustrates some of the difficulties courts (and many lawyers and law students) experience with the appropriate legal tests for judicial review of administrative decisions. Generally, on judicial review, courts will apply a high level of deference for the decisions of tribunals, and will examine whether the decision was “reasonable.” Over the course of several years, the courts have determined that when reviewing a decision of an administrative tribunal, where that tribunal has expertise in the area, or the review involves a question that is within the core function of the tribunal, the standard of review is “reasonableness.” On the other hand, the reviewing court will employ the standard of “correctness” when the situation calls for the interpretation of a question of law that is not specifically within the area of expertise of the tribunal. One of the key issues in this case is whether the Information and Privacy Commissioner’s interpretation of the reasonableness standard provided under the Personal Information Protection Act, RSA 2000, c P-6.5 [“PIPA“] was reasonable.

Access to Justice and Human Rights Cases

By Linda McKay-Panos

On March 17, 2011

In Access to Justice, Administrative Law, Human Rights

PDF version: Access to Justice and Human Rights Cases

Case Considered: McClary v Geophysical Services Inc., 2011 ABQB 112

Not being able to afford legal representation occurs quite frequently in civil and criminal legal cases. Some individuals choose to self-represent-either because they cannot afford legal counsel, or because they want to present their own cases. Inability to afford legal counsel has become a critical problem that leads to an acute lack of access to justice in Canada. In Alberta, recent cuts to the Legal Aid program will likely have serious effects on people with both civil and criminal issues. Even in tribunal matters, or matters where one is not required to be legally represented, such as the human rights process in Alberta, not having legal representation can have important consequences, both for the courts and for the litigants. While in some matters at the Commission (and later on appeal to the courts), the Act permits counsel to be assigned to represent and advise complainants, McClary was not such a matter. Also, it is important to note that in all matters before the Commission, respondents must hire their own legal representation should they desire it. The limited availability of legal counsel for parties in human rights cases exists partly because the human rights process is supposed to be user-friendly and low-cost to complainants and respondents.