Category Archives: Access to Justice

Right to Know Day: You Have the Right to Know That Access to Information in Alberta is Terrible

By: Drew Yewchuk

PDF Version: Right to Know Day: You Have the Right to Know That Access to Information in Alberta is Terrible

Statement Commented On: Right to Know Day: Minister Glubish, September 28, 2020 

Last Monday was apparently the beginning of ‘Right to Know Week’, “which aims to advance and celebrate the public’s right to access information from governments.” This is also the 25th anniversary of the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 (FOIP). I have complained about the serious problems with FOIP before (here, here, here, and here). The timelines for record delivery are routinely ignored, absurdly high fees are charged for spurious reasons, the administrative review body is about a year behind, and the redactions are so vague and broadly worded that government bodies can hide almost whatever they want. In short, if the government wants to lie or cover something up, FOIP is an ineffective tool to stop them.

This post takes a lighter tone and discusses some of the hilarious abuses of FOIP I’ve seen from my work with the FOIP requests.

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The Expansion of Unconscionability – The Supreme Court’s Uber Reach

By: Jassmine Girgis

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Case Commented On: Uber Technologies Inc v Heller, 2020 SCC 16 (CanLII)

Contracts of adhesion, or standard form agreements (SFAs) are oftentimes unfair. They are drafted by the stronger parties. Their provisions are dense and difficult to understand. The party signing does not have a say in their contents – they are take-it-or-leave-it agreements. They are usually lengthy and cannot feasibly be read in the short time it takes the parties to transact. Some of the more onerous terms are deeply embedded (hidden?) in the document. The contracts more often than not limit the liability of the drafting party at the expense of the other party. They ensure occupiers are not liable for negligence, including their own. And the list goes on.

We are not powerless against these contracts – common law and equitable doctrines protect weaker parties from harsh or onerous provisions. Is this enough? Probably not. Certainly the Supreme Court of Canada thought more should be done to protect weaker parties against SFAs in the case of Uber Technologies Inc v Heller, 2020 SCC 16 (CanLII). But instead of leaving this job to the legislature, as it should have, it expanded the reach of the doctrine of unconscionability without providing any substantial guidance or principles, thereby furnishing lower courts with an enormously powerful weapon to use against SFAs.

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COVID-19, Domestic Violence, and Technology-Facilitated Abuse

By: Jennifer Koshan, Janet Mosher, and Wanda Wiegers

PDF Version: COVID-19, Domestic Violence, and Technology-Facilitated Abuse

On 27 May 2020, UN Women launched the “shadow pandemic” public awareness campaign, drawing attention to the global spike in domestic violence linked to COVID-19. Phumzile Mlambo-Ngcuka, Executive Director of UN Women, describes the idea of a shadow pandemic as follows: “Even before the [COVID-19] pandemic, violence against women was one of the most widespread violations of human rights. Since lockdown restrictions, domestic violence has multiplied, spreading across the world in a shadow pandemic.”

We are in the midst of a multi-year research project on domestic violence and access to justice across Canada, but decided to shift our attention this spring/summer to the legal and policy responses to domestic violence during the COVID-19 pandemic. One aspect of our research examines the responses of courts, including what sorts of matters they consider “urgent” enough to hear during the pandemic, and how urgent cases involving domestic violence are being dealt with on the merits. We found 67 relevant cases reported on Can LII between March 16 and June 1, 2020, with relevance meaning that the cases deal with domestic violence issues that were related to the pandemic in some way. These cases span the areas of family, child protection, criminal, and protection order law. One cross-cutting theme in the case law is surveillance and technology-facilitated abuse, which is the subject of this post. We also provide some comments on access to justice issues raised by our case law sample.

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Domestic Violence and Legal Responses to COVID-19 in Alberta

By: Jennifer Koshan

PDF Version: Domestic Violence and Legal Responses to COVID-19 in Alberta

Matters Commented On: Ministerial Order No 2020-011 (Community and Social Services); Court of Queen’s Bench Of Alberta, Amended Master Order #2 Relating to Court’s Response to the COVID-19 Virus; Court of Queen’s Bench Of Alberta, Pandemic Operations/ FAQ; The Provincial Court of Alberta, COVID-19 Pandemic Planning for the Scheduling of Matters

Many commentators have remarked on how COVID-19 and government orders to self-isolate will lead to increased rates of domestic violence and adversely impact victims of domestic violence seeking protection. Last weekend, for example, UN Secretary General António Guterres remarked that there has already been a “horrifying global surge in domestic violence” and urged “all governments to make the prevention and redress of violence against women a key part of their national response plans for COVID-19.” The law clearly has a significant role to play in this context. As noted in a previous post, domestic violence matters engage many legal issues: civil protection order law, criminal law, family and child protection law, residential tenancies law, social assistance and housing law, and employment law, to name a few. This post reviews some of the efforts of lawmakers and courts in Alberta to respond to domestic violence issues in light of the COVID-19 pandemic and identifies some areas where further measures are needed. My focus is on domestic violence – in other words, violence in the context of intimate partner relationships – rather than child or elder abuse. Child and elder abuse cases also present challenging issues in the current pandemic, but they are beyond the scope of my analysis here. Continue reading →

Costs Denied in Elder Advocates of Alberta Society Case

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: Costs Denied in Elder Advocates of Alberta Society Case

Case Commented On: Elder Advocates of Alberta Society v Alberta, 2020 ABQB 54 (CanLII)

In February 2018 and October 2019, we posted comments on the class action litigation in Elder Advocates of Alberta Society v Alberta, where a class of long-term care residents unsuccessfully challenged the Alberta government’s ability to charge accommodation fees in long-term care facilities. The case involved claims of unjust enrichment, negligence and contract – addressed by our colleague Lorian Hardcastle here – and discrimination based on age and mental / physical disability, which we dealt with in our posts. None of the claims were ultimately successful. The plaintiffs’ most persuasive argument was that the imposition of accommodation fees was discriminatory, which was accepted by the Alberta Court of Appeal. However, the Court found the discrimination to be justified (see Elder Advocates of Alberta Society v Alberta, 2019 ABCA 342 (Can LII) and our post on that decision here).

In spite of the lack of success of this class action, Justice June Ross, the trial judge in the case, recently denied the Province of Alberta and Alberta Health Services costs against the plaintiffs and their lawyers (see Elder Advocates of Alberta Society v Alberta, 2020 ABQB 54 (CanLII)). Continue reading →