Category: Constitutional Page 66 of 75

By: Jennifer Koshan

PDF Version: Security Trumps Freedom of Religion for Hutterite Drivers

Case Commented On: Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37

The Supreme Court of Canada’s long awaited decision on whether Hutterites can be forced to have their photographs taken to obtain a driver’s licence was released on July 24, 2009. Reversing the judgments of the Alberta Court of Queen’s Bench and the Alberta Court of Appeal, a majority of the Supreme Court finds that the violation of freedom of religion caused by the photo requirement is justifiable under section 1 of the Canadian Charter of Rights and Freedoms. This comment will argue that the majority’s decision, especially its failure to find a duty to accommodate on the part of the government, sets the protection of Charter rights back several years.

Another Take on Equality Rights by the Court of Appeal

By Jennifer Koshan

On July 13, 2009

In Aboriginal, Constitutional

By: Jennifer Koshan

PDF Version: Another Take on Equality Rights by the Court of Appeal

Case Commented On: Cunningham v Alberta (Aboriginal Affairs and Northern Development), 2009 ABCA 239

In my recent post on Morrow v Zhang, 2009 ABCA 215, Some Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries, I noted that this case was the first opportunity for the Court of Appeal to apply section 15 of the Charter (the equality rights provision) since the Supreme Court of Canada’s landmark decision in R v Kapp, 2008 SCC 41. Only a couple of weeks later, a differently constituted Court of Appeal panel decided another section 15 case, and the analysis and outcome of the two cases are quite different. While I have a few quibbles with the Court’s decision in Cunningham v Alberta (Aboriginal Affairs and Northern Development), I believe it is a much better example of how section 15 of the Charter should be applied than is Morrow v Zhang.

More Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries

By Jonnette Watson Hamilton

On July 8, 2009

In Constitutional, Insurance Law

By: Jonnette Watson Hamilton

PDF Version: More Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries

Case Commented On: Morrow v Zhang, 2009 ABCA 215, overturning 2008 ABQB 98

In her post critiquing the Alberta Court of Appeal decision in Morrow v Zhang, Some Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries, Professor Jennifer Koshan asks, “Did the Court actually apply the new approach to section 15 of the Charter?” I would like to focus on that question and raise a few additional and related matters. I agree with Professor Koshan that the Court of Appeal seems to apply the old test from Law v Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 in its section 15(1) analysis in Morrow v Zhang. However, they do so without a focus on human dignity, which seems to result in the application of the Law test in a very formalistic way, rather than substantively. Does it matter? I think that the use of the original Law test, complete with a focus on human dignity, could have rather easily resulted in an affirmation of the trial judge’s decision. Alternatively, and perhaps more importantly, I think that an application of the test in R v Kapp, 2008 SCC 41, could also have resulted in an affirmation of the trial judge’s decision had that application really focused on stereotyping.

Some Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries

By Jennifer Koshan

On June 22, 2009

In Constitutional, Insurance Law

By: Jennifer Koshan

PDF Version: Some Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries

Case Commented On: Morrow v Zhang, 2009 ABCA 215, overturning 2008 ABQB 98

Last February, Associate Chief Justice Neil Wittmann of the Alberta Court of Queen’s Bench found that the $4000 cap on non-pecuniary damages for soft tissue injuries violated the equality rights of motor vehicle accident victims, and could not be justified as a reasonable limit under section 1 of the Charter (see my earlier post on this case: Not on Their Backs: Cap on Damages for Soft Tissue Injuries Struck Down; Court Denies Stay of Remedy Pending Appeal). This decision was overturned by the Alberta Court of Appeal on June 12, 2009. Writing for a unanimous Court, Justice Patricia Rowbotham (with Justices Elizabeth McFadyen and Clifton O’Brien concurring) held that when viewed in the context of the overall scheme of insurance reforms, the cap did not violate section 15 Charter equality rights. In addition to its significance for the auto insurance industry and Alberta drivers, this decision is of interest as the first judgment of the Alberta Court of Appeal to consider section 15 since the Supreme Court of Canada set out a new approach to equality rights in R v Kapp, 2008 SCC 41.

Canada’s Temporary Immigration System

By Kristyn Stevens

On June 4, 2009

In Constitutional, Immigration and Refugee Law, Labour/Employment

Report considered: Standing Committee on Citizenship and Immigration, Temporary Foreign Workers and Non-Status Workers (May 2009)

PDF version: Canada’s Temporary Immigration System

“If a person is good enough to work here, a person is good enough to stay here.” This was the sentiment expressed in the recently released Report of the Standing Committee on Citizenship and Immigration, entitled Temporary Foreign Workers and Non-Status Workers (40th Parl., 2nd Sess. (May 2009)). Canada’s Temporary Foreign Worker’s Program was established to meet short-term labour shortages in the Canadian economy. Despite this initial goal, it has actually become more of a long-term solution to labour shortages and for immigrants wishing to make Canada their home. Temporary Foreign Workers (TFWs) remain in Canada for longer than the intended period, but maintain their “temporary status” and the limited rights that go along with that.