Federal Court of Appeal Provides Reasons in TMX Leave Applications

By: Nigel Bankes, Martin Olszynski and David Wright

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Decision Commented On: Raincoast Conservation Foundation v Canada (Attorney General), 2019 FCA 224.

On September 4, 2019, the Federal Court of Appeal (FCA) granted leave to six of the twelve parties who had applied for judicial review of Cabinet’s decision to re-approve the Trans Mountain Expansion (TMX) project. This post situates this most recent development in the broader TMX context and examines this rare instance of the FCA providing reasons in a leave decision. Continue reading →

The End of Adverse Possession?

By: Stella Varvis

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Report Commented On:Alberta Law Reform Commission, Adverse Possession and Lasting Improvements to Wrong Land, Report for Discussion No 33 (July 2019)

Squatters. Land rustlers. Property pirates.

No matter how you describe it, the law of adverse possession suffers from a public perception problem. Many Albertans believe that adverse possession is an affront to their real property rights, or that that it simply shouldn’t exist within a Torrens land titles system. Despite the fact that adverse possession has existed in Alberta since the province’s inception – and that successful cases are relatively rare – the idea that adverse possession rewards a deliberate trespasser, and penalizes a registered owner who is forced to give up some of their titled land without any compensation, continues to persist. Continue reading →

Time for Buy-Back: Supreme Court Set to Hear Important Adverse Effects Discrimination Case

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: Time for Buy Back: Supreme Court Set to Hear Important Adverse Effects Discrimination Case

Case Commented On: Fraser v Canada (Attorney General), 2018 FCA 223 (CanLII), leave to appeal granted, 2019 CanLII 42345 (SCC)

In December, the Supreme Court of Canada will hear an appeal in an equality rights challenge under section 15(1) of the Canadian Charter of Rights and Freedoms. Several female members of the Royal Canadian Mounted Police argue that their employer’s pension rules – which denied pension buy-back rights to those who were job-sharing – discriminated against them based on their sex and family or parental status. The case is a classic example of adverse effects discrimination, involving a claim that a law or policy that is neutral on its face has an adverse impact on the basis of grounds protected under section 15(1). In this post we will review the Federal Court and Federal Court of Appeal decisions rejecting the women’s claim to set the stage for the upcoming appeal at the Supreme Court. Continue reading →

Context is Everything When it Comes to Charter Application to Universities

By: Linda McKay-Panos

PDF Version: Context is Everything When it Comes to Charter Application to Universities

Case Commented On: Yashcheshen v University of Saskatchewan, 2019 SKCA 67 (Can LII)

The issue of whether a university is subject to the application of the Charter has arisen in a number of cases, some of which appear to conflict. See: BCCA Unfortunately Chooses Not to Follow Alberta’s Lead on the Issue of Whether the Charter Applies To Universities.

In Yashcheshen, the issue of Charter application occurred when Yashcheshen sought admission to the College of Law at the University of Saskatchewan without submitting a Law School Admission Test (LSAT) score, because she had a disability (Crohn’s Disease) that she believed would prevent her from having a fair opportunity to write the LSAT (at para 1). When Yashcheshen submitted her application without an LSAT score in February 2014, it was not accepted. The College suggested that, because it required everyone to submit an LSAT score and it did not administer the test, Yashcheshen should apply to the Law School Admission Council for an accommodation with respect to the LSAT (at para 7). Continue reading →

Mandatory Dispute Resolution Coming Back to Alberta, But What About Domestic Violence Cases?

By: Jennifer Koshan, Janet Mosher and Wanda Wiegers

PDF Version: Mandatory Dispute Resolution Coming Back to Alberta, But What About Domestic Violence Cases?

Matter Commented On: Court of Queen’s Bench of Alberta, Notice to the Profession & Public – Enforcement of Mandatory Alternative Dispute Resolution Rules 8.4(3)(A) and 8.5(1)(A)

Last month, the Court of Queen’s Bench of Alberta issued a Notice to the Profession indicating that it would be lifting the suspension of the mandatory alternative dispute resolution (ADR) provisions of the Alberta Rules of Court, Alta Reg 124/2010, for a one-year pilot period commencing September 1, 2019. Mandatory ADR (or mandatory judicial dispute resolution, JDR) will now apply once again to civil and family litigation in Alberta. Although there are some exceptions to this requirement, there is no explicit exemption for domestic violence cases. As noted in a previous ABlawg post concerning similar developments under family legislation in Saskatchewan and federally under the Divorce Act, RSC 1985, c 3 (2nd Supp), as well as a more recent post on a government review of civil and family legislation in Ontario, cases involving domestic violence may not be not appropriate for ADR, and should be explicitly exempted from any mandatory requirements. There should also be screening and training requirements on domestic violence for those who will be assessing exemptions and conducting ADR. Continue reading →