ABLawg

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.

The Supreme Court of Canada’s Approach to the Charter’s Equality Guarantee in its Pay Equity Decisions

By Jonnette Watson Hamilton

On July 12, 2018

In Human Rights, Supreme Court of Canada

By: Jonnette Watson Hamilton and Jennifer Koshan

PDF Version: The Supreme Court of Canada’s Approach to the Charter’s Equality Guarantee in its Pay Equity Decisions

Case Commented On: Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 (CanLII); Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18 (CanLII)

The latest decisions of the Supreme Court of Canada on s 15 of the Canadian Charter of Rights and Freedoms are the two companion pay equity decisions rendered May 24, 2018 in Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 (CanLII) (APP) and Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18 (CanLII) (CSQ). The analysis of the Charter’s s 15(1) prohibition of discrimination on the ground of sex and s 15(2) protection of ameliorative programs from charges of reverse discrimination – the two-case, five-judgment spanning focus of this post – reveals a seriously fractured court reminiscent of the court that decided the so-called “equality trilogy” of the mid-1990s. It reveals the lack of consensus at the end of Beverley McLachlin’s term as Chief Justice and after a significant turnover in members in the past four years, with the three most recently appointed judges who heard these appeals dissenting. The issues this post addresses – and we address them only briefly in this forum – are: (1) What is the current legal test for discerning a breach of s 15? (2) What are the contentious points on which the current justices disagree? And (3) What might these pay equity decisions mean for the future of equality law in general? Unfortunately, there is enough disagreement about the answers to the first two questions that this lengthy post will only discuss the relevant law and not go into detail on its application to the facts in this case (except in the use of comparators).

An earlier ABlawg post by Jennifer Koshan, The Supreme Court of Canada’s Pay Equity Decisions: A Call to Action for Alberta?, explores the implications of these two decisions for the Alberta government’s pay equity obligations. The context and facts of both decisions are detailed in that post, but a brief recap to set the stage for the s 15 analysis is in order.

Relevant Considerations in Approving Assignments Under the CCAA

By Nigel Bankes

On July 10, 2018

In Bankruptcy and Insolvency, Energy

By: Nigel Bankes

PDF Version: Relevant considerations in approving assignments under the CCAA

Case Commented On: Dundee Oil and Gas Limited (Re), 2018 ONSC 3678

As part of approving a plan of compromise or arrangement under the Companies’ Creditors Arrangement Act, RSC 1985, c. C-36, s.11.3 (CCAA), the Court on an “application by a debtor company and on notice to every party to an agreement and the monitor, … may make an order assigning the rights and obligations of the company under the agreement to any person who is specified by the court and agrees to the assignment.” Section 11.3(3) provides the following guidance to the Court in exercising this power:

(3) In deciding whether to make the order, the court is to consider, among other things,

(a) whether the monitor approved the proposed assignment;

(b) whether the person to whom the rights and obligations are to be assigned would be able to perform the obligations; and

Open Court Principle: ABCA Agrees with Less than Full Disclosure in Some Circumstances

By Jay Moch

On July 9, 2018

In Aboriginal, Access to Justice

By: Jay Moch

PDF Version: Open Court Principle: ABCA Agrees with Less than Full Disclosure in Some Circumstances

Case Commented On: Aboriginal Peoples Television Network v Alberta (Attorney General), 2018 ABCA 133 (CanLII) (APTN)

In 2011, Casey Armstrong was stabbed to death, leading to the arrest of Wendy Scott and Connie Oakes, a Cree woman. Scott pled guilty to the second-degree murder charge, while Oakes decided to undergo a jury trial, which led to her eventual conviction (APTN, at para 4). During Oakes’ trial, Scott acted as a key witness for the Crown. On cross-examination, Scott was questioned about three videotaped statements she had made to the police following her arrest. To highlight the inconsistencies between Scott’s in-court testimony and the police statements, specific small portions of the videotapes were played to the jury and judge. Although only parts of the tapes were shown, the trial judged marked the videos collectively as “Exhibit F for identification” (APTN, at para 5).

Protecting the Public Interest: Law Society Decision-Making After Trinity Western University

By Alice Woolley

On July 6, 2018

In Constitutional, Human Rights, Supreme Court of Canada

By: Alice Woolley and Amy Salyzyn

PDF Version: Protecting the Public Interest: Law Society Decision-Making After Trinity Western University

Cases Commented On: Law Society of British Columbia v Trinity Western University, 2018 SCC 32 (CanLII); Trinity Western University v Law Society of Upper Canada, 2018 SCC 33 (CanLII).

Introduction

Canadian law societies strive to regulate lawyers and legal services in the public interest. Courts emphasize the law societies’ broad discretion to determine what the public interest requires in governing the profession and, accordingly, defer to the law societies’ exercise of that discretion (See Malcolm Mercer’s analysis of this on slaw.ca).

Courts defer to law societies because they accept the underlying rationale for law societies’ power and responsibility. Courts recognize the importance of the independence of the bar, and view self-regulation (of lawyers by lawyers) as an appropriate mechanism for ensuring that independence (This view is problematic but widely accepted – see, e.g., Law Society of British Columbia v Trinity Western University 2018 SCC 32 (“LSBC v TWU”) at para. 37). Courts view serving the public interest as something law societies must pursue in exchange for the privilege of self-regulation (LSBC v TWU at para 32) but simultaneously identify self-regulation as likely to ensure protection of the public interest given law societies’ “particular expertise and sensitivity to the conditions of practice” (LSBC v TWU at para. 37). Briefly (albeit circularly), courts assert that they defer to law societies because independence of the bar requires self-regulation; self-regulation requires law societies to act in the public interest; and self-regulation effectively protects the public interest because of law societies’ institutional expertise.

This blog post raises questions about whether current law society policy-making structures can effectively consider and advance the public interest. In particular, and in light of the saga of Canadian law societies’ consideration of TWU’s attempt to open a law school, it considers whether law societies can fulfill their mandate to regulate in the public interest when benchers make policy decisions in hard cases.

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

The Supreme Court of Canada’s Approach to the Charter’s Equality Guarantee in its Pay Equity Decisions

Relevant Considerations in Approving Assignments Under the CCAA

Open Court Principle: ABCA Agrees with Less than Full Disclosure in Some Circumstances

Protecting the Public Interest: Law Society Decision-Making After Trinity Western University