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

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On June 27, 2018

In Administrative Law, Human Rights

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

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On June 26, 2018

In Aboriginal, Supreme Court of 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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Energy Regulatory Forum: Agency Counsel Update

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On June 25, 2018

In Energy

Presenters: Meighan G. LaCasse, Counsel, Alberta Energy Regulator; Katherine Murphy, Associate General Counsel, National Energy Board; JP Mousseau, Counsel, Alberta Utilities Commission

Summarized by: Aaron Johnson, Law Student, University of Alberta

PDF Version: Energy Regulatory Forum: Agency Counsel Update

Editor’s Note: This is the third in a series of blog posts that provides summaries of presentations from the ninth annual Energy Regulatory Forum, held in Calgary on May 28, 2018, as summarized by student attendees.

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The Supreme Court of Canada’s Pay Equity Decisions: A Call to Action for Alberta?

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On June 22, 2018

In Constitutional, Human Rights

By: Jennifer Koshan

PDF Version: The Supreme Court of Canada’s Pay Equity Decisions: A Call to Action for Alberta?

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)

Alberta does not have strong pay equity legislation. The Alberta Human Rights Act, RSA 2000, c A-25.5, only guarantees equal pay to employees of both sexes for “the same or substantially similar work” for the same employer (s 6). Most other Canadian jurisdictions require employers to pay male and female employees equal pay for work of equal value in either human rights legislation (see e.g. Canadian Human Rights Act, RSC 1985, c H-6, s 11; Quebec’s Charter of Human Rights and Freedoms, CQLR, c C-12, s 19) and / or in stand alone pay equity legislation  (see e.g. Quebec’s Pay Equity Act, RSQ 1996, c 43, which applies to public and private employers, and Prince Edward Island’s Pay Equity Act, RSPEI 1988, c P-2, which applies to the public sector), or they have pay equity negotiating frameworks for some public sector employees (see here). Not unexpectedly, a 2016 Parkland Institute report written by Kathleen Lahey found that Alberta has the largest gender income gap in Canada at 41%, a gap which is often larger for women who are racialized (including Indigenous women) or have disabilities (at 21). The report recommended that Alberta design “robust” pay equity legislation “capable of significantly improving the economic status of women in Alberta” (at 2, 3).

Two recent Supreme Court of Canada decisions shed some light on whether Alberta is constitutionally obliged to enact more robust pay equity legislation (see Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 (CanLII) (Alliance du personnel professionnel); Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18 (CanLII) (Centrale des syndicats)). This post will explore the implications of these decisions for the government’s pay equity obligations in Alberta. A future post with Jonnette Watson Hamilton will discuss in more detail the Court’s approach to equality rights under s 15 of the Canadian Charter of Rights and Freedoms in these cases.

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Hamlet of Clyde River and Chippewas of the Thames First Nation – Impact on Alberta’s Administrative Tribunals: Alberta Energy Regulator, Alberta Utilities Commission, Natural Resources Conservation Board, National Energy Board

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On June 18, 2018

In Energy

Presenters: Martin Ignasiak, Partner, Osler Hoskin & Harcourt LLP; Sandy Carpenter, Partner, Blake, Cassels & Graydon LLP

PDF Version: Hamlet of Clyde River and Chippewas of the Thames First Nation – Impact on Alberta’s Administrative Tribunals: Alberta Energy Regulator, Alberta Utilities Commission, Natural Resources Conservation Board, National Energy Board

Summarized by: Moira Lavoie (JD Candidate, University of Alberta)

Editor’s Note: This is the second in a series of blog posts that provides summaries of presentations from the ninth annual Energy Regulatory Forum, held in Calgary on May 28, 2018, as summarized by student attendees.

In July 2017, the Supreme Court of Canada released a set of decisions dealing with the duty to consult where an administrative agency serves as the final decision maker: Clyde River (Hamlet) v. Petroleum Geoservices Inc. 2017 SCC 40 (CanLII) and Chippewas of the Thames First Nation v Enbridge Pipelines Inc. 2017 SCC 41 (CanLII). Sandy Carpenter, counsel for the proponent in Clyde River, and Martin Ignasiak, counsel for Suncor in Chippewas, provided an overview of the two decisions and their implications for administrative agencies moving forward. In both cases the National Energy Board (NEB) was the final decision-maker on the proposed projects. The Crown was not involved in making the decision nor as a project proponent in either case.

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