Procedural Fairness in the Issuance of a Ministerial Order to Dismiss a Municipal Councilor under Section 574 of the Municipal Government Act

By: Shaun Fluker

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Case Commented On: Buryn v Alberta (Minister of Municipal Affairs), 2017 ABQB 613 (CanLII)

Municipalities in Alberta are creatures of statute and thus subject to both the oversight of the Minister of Municipal Affairs (Minister) and Alberta courts. When the affairs in a municipality go offside, the Municipal Government Act, RSA 2000, c M-26 (MGA) provides mechanisms for bringing matters back into line. Municipal affairs in Thorhild County seem to have taken a turn for the worse several years ago, and led to the submission of a petition by electors asking the Minister to inquire into the conduct of the Thorhild municipal council and its chief administrative officer. The MGA provides the Minister with authority to conduct an inquiry into the affairs of a municipality or the conduct of municipal councilors. These powers are exercised on a fairly regular basis, with 33 entries listed on the government website since December 2009. The inspection into the affairs at Thorhild culminated in a Ministerial Order dismissing three members of the Thorhild council. On the eve of the recent municipal election, in Buryn v Alberta (Minister of Municipal Affairs) Madam Justice Dawn Pentelechuk quashed the Ministerial Order as unlawful for failing to afford the councilors procedural fairness.

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Clarified: The Rebuttable Presumption of a Purchase Money Resulting Trust

By: Jonnette Watson Hamilton

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Case Commented On: Singh v Kaler, 2017 ABCA 275 (CanLII)

Singh v Kaler is a useful case for two purposes. First, it clearly describes the work that a presumption does–making useful evidentiary points. Second, it clarifies the test for finding a resulting trust based on the payment of money. Clarification of the law was evidently necessary. According to the majority–Justices Patricia Rowbotham and Sheila Greckol (at para 22)–the trial judge erred in law by applying the test for resulting trust that was set out in cases predating the 2013 Supreme Court of Canada decision in Nishi v Rascal Trucking Ltd, 2013 SCC 33 (CanLII). While there is a dissenting opinion, the dissent is confined to a limitations point; the Court of Appeal is unanimous on the presumption and resulting trusts points. Continue reading →

Age Discrimination and Ameliorative Program Protections to be Broadened Under Alberta Human Rights Act

By: Jennifer Koshan

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Legislation Commented On: Bill 23, An Act to Amend the Alberta Human Rights Act

On November 1, 2017, Bill 23, An Act to Amend the Alberta Human Rights Act, had first reading in the Alberta Legislature. As I noted in a post in February 2017, Bill 23 was spurred by a Charter challenge commenced by elder advocate Ruth Adria. She argued that the exclusion of protections against age discrimination in respect of services available to the public and tenancies in sections 4 and 5 of the Alberta Human Rights Act, RSA 2000, c A-25.5 (AHRA), violated her constitutional equality rights. The Alberta government did not fight the challenge, and consented to an order requiring age discrimination to be added to the AHRA by January 2018. The government then undertook consultations on the apparently thorny issue of how the amendments would affect adult-only condominiums, cooperatives, and apartments. Bill 23 attempts a compromise, and if passed, it will allow some exceptions to the new prohibitions against age discrimination in this context. But there are apparent gaps and uncertainties in the Bill that the government may wish to address, as I will elaborate upon here. Bill 23 will also add to the AHRA a new provision, section 10.1, protecting ameliorative policies and programs, which also merits some commentary. Continue reading →

Ktunaxa Nation: On the “Spiritual Focal Point of Worship” Test

By: Howard Kislowicz and Senwung Luk

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Case Commented On: Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 (CanLII)

On 2 November 2017, the Supreme Court of Canada rendered its long awaited decision in Ktunaxa Nation. As noted by David Laidlaw in the initial post concerning Ktunaxa Nation, the decision raised significant issues surrounding the scope of religious freedom and its particular application to Indigenous groups, the Crown’s duty to consult and accommodate Indigenous groups, and administrative law more generally. In this blog post, we focus on the first issue: what this case says and means for religious freedom claims. Continue reading →

Silencing the Qat’muk Grizzly Bear Spirit

By: David Laidlaw

PDF Version: Silencing the Qat’muk Grizzly Bear Spirit

Case Commented On: Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 (CanLII)

In the course of reading the recent decision of the Supreme Court of Canada in Ktunaxa Nation v British Columbia, I was struck by the number (13) of authorized non-party intervenors. There is a central omission – who speaks for Qat’muk’s Grizzly Bear Spirit?

The Appellant Ktunaxa Nation described the Qat’muk region as a place of spiritual significance for them. As the Supreme Court said, “Notably, it is home to an important population of grizzly bears and to Grizzly Bear Spirit, or K?aw?a Tuk?u?ak?is, ‘a principal spirit within Ktunaxa religious beliefs and cosmology’” at paragraph 5 in the Majority Decision authored by Chief Justice McLachlin and Malcolm Rowe JJ, concurred in by Justices Abella, Karakatsanis, Wagner, Gascon, and Brown (Majority Decision).   Continue reading →