Breaking Up Is Hard to Do, But Dividing Property Shouldn’t Be

By: Laura Buckingham

PDF Version: Breaking Up Is Hard to Do, But Dividing Property Shouldn’t Be

Case Commented On: Alberta Law Reform Institute, Property Division: Common-law Couples and Adult Interdependent Partners, Report 112

Last fall, I wrote a post about the Alberta Law Reform Institute’s project on property division for common-law couples. At that time, we were seeking feedback on preliminary recommendations for reform. Since then, we have heard from hundreds of Albertans. We considered all the feedback we received to develop our final recommendations. Last week, ALRI published its final recommendations in Property Division: Common-law Couples and Adult Interdependent Partners, Report 112.

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Barring Claims Against Discriminatory Legislation: Canada v Canada

By: Elysa Darling and Drew Lafond

PDF Version: Barring Claims Against Discriminatory Legislation: Canada v Canada

Case Commented On: Canada (Canadian Human Rights Commission v Canada (Attorney General), 2018 SCC 31 (Can LII)

Two weeks ago, in Canada (Canadian Human Rights Commission v Canada (Attorney General)  (CHRC v AG), the Supreme Court of Canada upheld the decision of the Canadian Human Rights Tribunal (CHRT) that direct challenges to legislation cannot be pursued under section 5 of the Canadian Human Rights Act, RSC 1985, c H-6 (the CHRA). The claimants in this case argued that they were discriminated against under section 6 of the Indian Act, RSC 1985, c I-5 and filed a complaint under section 5 of the CHRA asking the CHRT to render inoperative the offending provisions in the Indian Act. The decision of the CHRT, with which the Court agreed, was that a complaint under the CHRA cannot be used to directly challenge legislation on the basis that it is discriminatory.

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Alberta Court follows Third Eye Capital v Dianor in a Royalty Characterization Case

By: Nigel Bankes

PDF Version: Alberta Court follows Third Eye Capital v Dianor in a Royalty Characterization Case

Case Commented On: Manitok Energy Inc (Re), 2018 ABQB 488 (CanLII)

In a welcome development Justice Karen Horner has followed the Ontario Court of Appeal’s recent decision in Third Eye Capital Corporation v Resources Dianor Inc., 2018 ONCA 253 (CanLII) (the subject of a post here) and concluded that the royalty agreements at issue in this case were intended to create an interest in land and did in law create such an interest notwithstanding that the royalty was described as in interest in oil volumes once produced rather than as in interest in the minerals themselves.

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

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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Eighteen Years of Inmate Litigation Culminates with Some Success in the SCC’s Ewert v Canada

By: Amy Matychuk

PDF Version: Eighteen Years of Inmate Litigation Culminates with Some Success in the SCC’s Ewert v Canada

Case Commented On: Ewert v Canada, 2018 SCC 30 (CanLII)

On June 13, 2018, the Supreme Court of Canada (SCC) issued its decision in Ewert v Canada (Ewert SCC), in which the majority held that the Correctional Service of Canada (CSC) breached its statutory duty to Jeffrey G Ewert, a Métis inmate, when it used five actuarial risk assessment tests that were not proven to be accurate when applied to Indigenous offenders. CSC uses these tests to assess inmates’ risk of recidivism, and the test results can impact liberty-related processes such as security classification, parole hearings, and eligibility for escorted temporary absences (ETAs). Mr. Ewert had rather slim positive evidence for the presence of cultural bias in the tests; his argument was, instead, that his and others’ legitimate concerns about the possibility of bias should require CSC to produce research confirming the tests’ validity. He was initially successful at the Federal Court in 2015, overturned at the Federal Court of Appeal in 2016, and ultimately prevailed at the SCC. His lengthy litigation efforts resulted in a total of five written decisions and spanned eighteen years. In this post, I will review the long history of Mr. Ewert’s efforts, the progression of his case through the courts, and the significance of the remedy he received.

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