Category Archives: Administrative Law

Does Judicial Review Apply to Decisions Made by Religious Groups?

By: Shaun Fluker

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Case Commented On: Wall v Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses, 2016 ABCA 255 (CanLII)

September at the law school for me includes getting back to the basics of administrative law with the 2Ls as we begin another academic year in the JD curriculum. Early on we study Justice Rand’s seminal 1959 judgment on abuse of discretion in Roncarelli v Duplessis, [1959] SCR 121 (CanLII) (as an aside for some interesting footage of media coverage on Roncarelli see here – thanks to my colleague Professor Martin Olszynski for passing this along), and then we move along to the doctrine of procedural fairness and the threshold question of when does a decision-maker exercising authority owe a duty of fairness. As it turns out, the Alberta Court of Appeal has very recently split over this threshold question in Wall v Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses, 2016 ABCA 255 (CanLII) and this is the subject of my comment here. The point of interest in Wall for administrative law is that the majority (written by Madam Justices Paperny and Rowbotham) rules the doctrine of procedural fairness applies to the impugned decision of the Highwood Congregation even though it is a non-statutory entity exercising power that is not sourced in legislation and does not purport to affect legal rights. Justice Wakeling provides a strong dissent on this point. Continue reading →

Human Rights Cannot Be Renounced or Waived

By: Hasna Shireen

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Case Commented On: Webber Academy Foundation v Alberta (Human Rights Commission), 2016 ABQB 442 (CanLII)

The Court of Queen’s Bench of Alberta recently upheld a human rights decision that found Webber Academy, a private school in Calgary, had unlawfully discriminated against two Muslim high school students by prohibiting them from performing certain prescribed Sunni prayers at school. Dr. Webber, President and Chairman of Webber Academy, said that bowing and kneeling was too overt and such prayers would be not allowed on campus. The Alberta Human Rights Tribunal in 2015 found that Webber Academy discriminated against the two students and awarded the students $12,000 and $14,000 respectively as damages for distress, injury and loss of dignity (see 2015 AHRC 8 (CanLII)). The Academy did not explicitly claim that the complainants had waived their rights prior to enrollment. However, on appeal Justice GH Poelman addressed the issue of waiver, as the pre-enrollment discussions between the students and staff were discussed at length by the Tribunal. Justice Poelman held that waiver is not a possible defence in any case, as human rights are a matter of public policy and protect the inherent dignity of every individual; thus they “cannot be waived or contracted out of” (at para 106). Continue reading →

Trinity Western Decision Fails to Clarify Approach to Balancing Conflicting Charter Rights

By: Joshua Sealy-Harrington and Marita Zouravlioff

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Case Commented On: Trinity Western University v The Law Society of Upper Canada, 2016 ONCA 518 (CanLII)

Two days before Canada Day, the Ontario Court of Appeal upheld the Law Society of Upper Canada’s decision to not accredit the proposed law school at Trinity Western University—a private Christian university in British Columbia which requires all prospective law students to abstain from gay sex. Many progressives hailed the decision as a victory for equality, and it undoubtedly was. But while the outcome was progressive in this case, its reasoning need not result in progressive outcomes in future cases. For this reason, we critique the Court’s reasons for failing to discuss the appropriate approach to balancing conflicting Charter rights. Continue reading →

Attorney General Argues That Backdoor Amendment to PPAs was Unlawful

By: Nigel Bankes

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Matter Commented On: Originating Application for Declaratory Relief and Judicial Review, filed by the Attorney General, July 25, 2016

The origins of the Power Purchase Arrangements (PPAs) “termination” saga are discussed in detail in a previous post and readers may wish to refer to that post for the necessary background. In an interesting development the Attorney General has commenced an application seeking a declaration that the amendments that were made to the PPAs after the public review process conducted by the then Alberta Energy and Utilities Board (AEUB) had concluded are unlawful. The crucial amendment was to a clause in the PPA which allows the buyer to transfer responsibility for the PPA to the Balancing Pool when a change of law makes the PPA not just unprofitable but “more unprofitable”. Continue reading →

Costs to the Respondent: Discouraging Habeas Corpus Applications

By: Amy Matychuk

PDF Version: Costs to the Respondent: Discouraging Habeas Corpus Applications

Case Commented On: Voisey v Canada (Attorney General), 2016 ABQB 316 (CanLII)

In Voisey v Canada (Attorney General), 2016 ABQB 316, Justice Crighton of the Alberta Court of Queen’s Bench rejected an application for habeas corpus and awarded $1000 in costs to the respondent. Mr. Voisey, a federal prison inmate, tested positive for drug use and was subsequently involuntarily transferred from a minimum to a medium security prison. He challenged the transfer based on several grounds, alleging it violated sections 1, 7, 12 and 15 of the Charter (at para 10), it was unreasonable because he was not violent, it was based on unproven suspicion, and he should have received the least restrictive measures possible (at para 20). The court found that all his claims were meritless, though it did acknowledge that a few of them met the minimum threshold of being “legitimate grounds” for claiming his reclassification was arbitrary. The court concluded, following Justice Shelley in Rain v Canada (Parole Board), 2015 ABQB 747 that the respondent “incurred significant expenditure for no valid purpose. That makes this a case where a substantial cost award is justified.” (at para 34) It awarded $1000 in costs against Mr. Voisey, to be paid in $5 increments out of his biweekly paycheques of $15, and the remainder to be payable immediately upon his release.

This case raises questions about the fairness and effectiveness of awarding costs against self-represented inmates on unsuccessful habeas corpus applications. Continue reading →