Author Archives: Sarah Burton

About Sarah Burton

Sarah Burton is the Research Associate with the Alberta Civil Liberties Research Centre. She attended law school at Dalhousie University, and was called to the Nova Scotia and Alberta bars in 2009. After working as a civil litigation associate for two years, in 2011 she returned to school to obtain a Master of Laws specialized in Human Rights and Public Law from the London School of Economics and Political Science. After graduating with distinction, she returned to private practice and worked as a litigator with Norton Rose Fulbright’s Calgary office until March of 2014, when she accepted a research position with ACLRC. While working as a litigator, Sarah regularly represented clients in Court and appeared before the Alberta Court of Appeal. She enjoys research and writing, and has authored publications dealing with various civil litigation issues. Sarah is very interested in civil liberties and human rights issues, and has a history of involvement with organizations that provide advice and support to indefinitely detained asylum seekers. She is currently working on a research project with ACLRC with a goal of advancing access to justice for Albertans.

Judicial Dissent over Priorities in Civil Justice: Queue-Jumping and the Commercial List

By: Sarah Burton

PDF Version: Judicial Dissent over Priorities in Civil Justice: Queue-Jumping and the Commercial List

Case Commented On: Lustre Studio Inc. v West Edmonton Mall Property Inc, 2014 ABQB 525

In Lustre Studio Inc. v West Edmonton Mall Property Inc, 2014 ABQB 525, the Honourable Mr. Justice B.R. Burrows provided a candid window into judicial frustrations with access to justice in Alberta.  In pointed words, he expressed dissatisfaction with the courts’ willingness to prioritize and accommodate commercial cases through mechanisms unavailable in family and non-commercial matters. While Justice Burrows clearly criticizes this preferential treatment, he also expresses resignation in quelling the tide. This decision implicitly questions the priorities of our justice system and the preference given to commercial matters over non-commercial cases, even when they urgently require the court’s attention. Practically speaking, Justice Burrows may be correct in stating that expanded accommodations for commercial cases are here to stay. If so, this innovative project should be harnessed to create equally effective mechanisms for family and other non-commercial cases. Continue reading →

A Smart Decision – Access to Counsel for the Poor and Disabled in a Legal Aid Crisis

By: Sarah Burton

PDF Version: A Smart Decision – Access to Counsel for the Poor and Disabled in a Legal Aid Crisis

Case commented on: R v Smart, 2014 ABPC 175

Access to justice advocates should to take a few moments to review R v Smart, 2014 ABPC 175, where the Honourable Assistant Chief Judge Anderson stayed proceedings against three accused persons who could not afford counsel, but did not qualify for Legal Aid. While such applications are not uncommon, the evidence considered in Smart extends far beyond the norm. This extensive evidence, coupled with Judge Anderson’s probing commentary on access to justice, places a welcomed spotlight on Alberta’s Legal Aid funding crisis. In Smart, Judge Anderson sought to provide concrete guidance to courts facing similar applications. While he accomplished this task, his engagement with access to justice issues may be the more lasting legacy of the judgment.

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Curious Interactions between the Charter, Contempt Orders, and the Evolution of Section 1

By: Sarah Burton

PDF Version: Curious Interactions between the Charter, Contempt Orders, and the Evolution of Section 1

Case commented on: Alberta v AUPE, 2014 ABCA 197

In Alberta v AUPE the Alberta Court of Appeal reviewed the validity of a civil contempt order issued against the Alberta Union of Public Employees (“AUPE”). While ultimately upholding the order for civil contempt, the unanimous Court of Appeal sizably narrowed its provisions to protect AUPE’s freedom of expression. The decision turned on two issues: the admissibility of televised news reports as evidence, and the constitutionality of court orders that restrict free speech. Of these two issues, the Charter discussion is particularly interesting. The Court of Appeal presented and applied an alternative to the Oakes test, holding that Oakes is ill-suited to challenges that do not involve laws of general application. In addition, the Court curiously failed to consider a critical threshold issue – namely, whether the Charter applied to court orders at all. Thus, Alberta v AUPE not only widens a narrow exception to the Oakes test, it imposes Charter restrictions on contempt orders without discussing its authority to do so.   Continue reading →

Striking a Balance: Efficiency and Fairness in an Evolving Justice System

By: Sarah Burton

PDF Version: Striking a Balance: Efficiency and Fairness in an Evolving Justice System

Case commented on: Martin v. Sievers, 2014 ABQB 357 (CanLII)

In Martin v. Sievers, 2014 ABQB 357 (Martin), Master Smart confirmed that lawyers control the flow of relevant documents in an Independent Medical Examination (IME). This persists despite a more efficient mechanism for hired experts to access a party’s full medical record. Martin stands for the proposition that the “cultural shift” towards efficiency in the courtroom cannot sacrifice long-standing quality protections for the justice system (at paras 10, 12). Viewed from an access to justice perspective, Martin held that increasing access should not sacrifice justice in the process. Continue reading →

What is “Advice”? Supreme Court Exempts Policy Options from Access to Information Request

By: Sarah Burton 

PDF Version: What is “Advice”? Supreme Court Exempts Policy Options from Access to Information Request

Case commented on: John Doe v Ontario (Finance), 2014 SCC 36 (CanLII)

In this case, the Supreme Court of Canada considered whether certain government documents constituted “advice” under the Freedom of Information and Protection of Privacy Act, RSO 1990, c F.31, thus exempting them from disclosure in an access to information request. In making this determination, the Court balanced two competing and important policy interests: the public’s interest in accessing government information, and the government’s interest of obtaining full and frank opinions from public servants. The Court claimed that its decision to protect public service candour was compelled by principles of statutory interpretation. A detailed examination of the case demonstrates that the judgment, while defensible, was actually less inevitable than the Court would like us to believe.

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