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Category: Administrative Law Page 11 of 39

ABQB Upholds Arbitrator’s Decision on Innocent Absenteeism, the Duty to Accommodate and Notice

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On July 13, 2018

In Administrative Law, Labour/Employment

By: Linda McKay-Panos

PDF Version: ABQB Upholds Arbitrator’s Decision on Innocent Absenteeism, the Duty to Accommodate and Notice

Case Commented On: Canadian National Railway Company v Teamsters Canada Rail Conference, 2018 ABQB 405 (CanLII) (CNR)

Canadian National Railway (CNR) applied unsuccessfully to the Alberta Court of Queen’s Bench (ABQB) (per Justice W.N. Renke) for a review of the Arbitration Award made under Case No 4510, December 5, 2016 (the Award). Because CNR is a federal undertaking, the applicable legislation includes the Canada Labour Code, RSC 1985 c L-2 (CLC) and the Canadian Human Rights Act, RSC 1985 c H-6 (CHRA).

CNR terminated an employee (Grievor) for innocent absenteeism on January 30, 2015. The Teamsters Canada Rail Conference (Union) submitted a grievance opposing the termination. Because CNR declined the grievance, the matter went to Arbitration (before Arbitrator John Moreau) as provided for in the Memorandum of Agreement between CNR and the Union (CNR at paras 3 and 4). The Grievor was successful at the Arbitration, and Justice Renke upheld the Arbitrator’s decision.

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Is Non-denominational Education a Secularism Principle or a Violation of Human Rights Law?

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On June 27, 2018

In Administrative Law, Human Rights

By: Hasna Shireen and Linda McKay-Panos

PDF Version: Is Non-denominational Education a Secularism Principle or a Violation of Human Rights Law?

Case Commented On: Webber Academy Foundation v Alberta (Human Rights Commission), 2018 ABCA 207 (CanLII)

In 2015, the Alberta Human Rights Tribunal (AHRT) found that a private school in Calgary (Webber Academy) had unlawfully discriminated against two Muslim high school students by prohibiting them from performing certain prescribed Sunni prayers on the school campus. The AHRT awarded the students $12,000 and $14,000 respectively as damages for distress, injury and loss of dignity (see 2015 AHRC 8 (CanLII)). The Court of Queen’s Bench of Alberta (per Justice G.H. Poelman) upheld that decision (see 2016 ABQB 442 (CanLII), and see the ABlawg post on this decision). Webber Academy appealed the decision to the Alberta Court of Appeal (ABCA), adding new constitutional issues. The Court of Appeal (per Justices Jack Watson, Patricia Rowbotham, and JD Bruce MacDonald) sent the matter back to the AHRT for re-determination after it has heard appropriate evidence and argument on all the issues. The ABCA held that the AHRT was better placed to make the necessary findings of fact, mixed fact and law, or questions of law alone that were within its jurisdiction. The ABCA noted that there may be remaining discrete issues under the Canadian Charter of Rights and Freedoms, such as the constitutionality of s 4 of the Alberta Human Rights Act, RSA 2000, c A-25.5 (AHRA), which prohibits discrimination in services customarily available to the public, including education. The ABCA ordered a new hearing with a new panel of the Tribunal, and the AHRT was ordered to refer any Charter questions by way of a stated case to the Court of Queen’s Bench for resolution. (Webber at para 52).

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Supreme Court Sides with Law Societies in Trinity Western University Litigation

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On June 15, 2018

In Administrative Law, Constitutional, Ethics and the Legal Profession, Supreme Court of Canada

This morning the Supreme Court of Canada released its decisions in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 (CanLII) and Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33 (CanLII). A majority of the Court upheld the decisions of the Law Societies of British Columbia and Upper Canada to deny accreditation to or approval of Trinity Western University (TWU) law school. For readers wanting more context for the Supreme Court decisions, please see previous ABlawg posts on TWU here, and watch for analysis of the decisions on ABlawg in the coming days.

Judicial Review is about the Legality of State Decision-Making

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On June 11, 2018

In Administrative Law

By: Shaun Fluker

PDF Version: Judicial Review is about the Legality of State Decision-Making

Case Commented On: Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26 (CanLII)

The Supreme Court of Canada has reversed the Alberta Court of Appeal decision in Wall v Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses, 2016 ABCA 255 (CanLII) which ruled the Highwood Congregation decision to expel one of its members was subject to judicial review on the basis of an alleged breach of procedural fairness. In this unanimous judgment, the Supreme Court ruled that the Court of Appeal stretched the reach of judicial review too far in holding that this mechanism of judicial oversight applies to a decision of a non-state actor.

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Judicial Review on the Vires of Subordinate Legislation

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On May 24, 2018

In Administrative Law

By: Shaun Fluker

PDF Version: Judicial Review on the Vires of Subordinate Legislation

Case Commented On: West Fraser Mills Ltd. v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22 (CanLII)

Judicial review on the vires of subordinate legislation is a subject I previously examined in a March 2016 post concerning subordinate legislation enacted by the Alberta College of Pharmacists and its dispute with Sobeys over the use of consumer inducements in retail pharmacies. I noted back in 2016 there was some uncertainty over the standard of review a court should apply when reviewing the vires of legislation enacted by a statutory tribunal or other delegate. Indeed, the whole concept of judicial review on the vires of subordinate legislation is a bit murky in Canadian administrative law. The Supreme Court’s decision in West Fraser Mills Ltd. v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22 (CanLII) addresses the topic, but unfortunately the Court is split and fails to situate its reasoning with the Court’s Katz Group Canada Inc. v. Ontario (Health and Long Term Care,  2013 SCC 64 (Katz) decision which also addresses the principles governing a vires determination of subordinate legislation. The majority in West Fraser Mills rules that the principles set out in Dunsmuir govern judicial review on the enactment of subordinate legislation by a statutory tribunal, and therefore where the tribunal’s governing legislation provides for the power to enact subordinate legislation the presumption of reasonableness applies to a review on the vires of that legislation. The dissenting justices hold the standard ought to be correctness.

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