ABLawg

Columbia River Treaty Negotiations to Commence

On May 25, 2018

By: Nigel Bankes

PDF Version: Columbia River Treaty Negotiations to Commence

Announcements commented on: (1) Global Affairs Canada, Canada and United States launch negotiations to renew Columbia River Treaty, May 22, 2018, (2) US Department of State, Launching negotiations to modernize the Columbia River Treaty regime, May 22, 2018, (3) British Columbia, Statement on Upcoming Treaty Negotiations, May 22, 2018, (4) Okanagan Nation Alliance, Shuswap Nation Council and Ktunaxa Nation Council, Canada Excludes Indigenous First Nations form International Columbia River Treaty Re-Negotiation, May 23, 2018.

The Governments of Canada and the United States have announced that they will begin negotiations (May 29 and 30, 2018, Washington DC) to “modernize” the Columbia River Treaty. For background on this issue see my previous post here. British Columbia and three First Nation groups have also issued press releases.

Judicial Review on the Vires of Subordinate Legislation

By Shaun Fluker

On May 24, 2018

In Administrative Law

By: Shaun Fluker

PDF Version: Judicial Review on the Vires of Subordinate Legislation

Case Commented On: West Fraser Mills Ltd. v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22 (CanLII)

Judicial review on the vires of subordinate legislation is a subject I previously examined in a March 2016 post concerning subordinate legislation enacted by the Alberta College of Pharmacists and its dispute with Sobeys over the use of consumer inducements in retail pharmacies. I noted back in 2016 there was some uncertainty over the standard of review a court should apply when reviewing the vires of legislation enacted by a statutory tribunal or other delegate. Indeed, the whole concept of judicial review on the vires of subordinate legislation is a bit murky in Canadian administrative law. The Supreme Court’s decision in West Fraser Mills Ltd. v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22 (CanLII) addresses the topic, but unfortunately the Court is split and fails to situate its reasoning with the Court’s Katz Group Canada Inc. v. Ontario (Health and Long Term Care, 2013 SCC 64 (Katz) decision which also addresses the principles governing a vires determination of subordinate legislation. The majority in West Fraser Mills rules that the principles set out in Dunsmuir govern judicial review on the enactment of subordinate legislation by a statutory tribunal, and therefore where the tribunal’s governing legislation provides for the power to enact subordinate legislation the presumption of reasonableness applies to a review on the vires of that legislation. The dissenting justices hold the standard ought to be correctness.

The Balance of Confidentiality

By Anoushka Gandy

On May 23, 2018

In Human Rights, Privacy

By: Anoushka Pamela Gandy

PDF Version: The Balance of Confidentiality

Case Commented On: Campbell v Alberta (Chief Electoral Officer), 2018 ABQB 248

Campbell involves an appeal from a decision of the Chief Electoral Officer of Alberta to sanction Jarrett Campbell and Jaskaran Sandhu during the provincial election held on May 5, 2015. The Chief Electoral Officer applied to the Court of Queen’s Bench for guidance regarding what should be contained in a Certified Record produced by the Electoral Officer under Alberta’s Elections Act, RSA 2000, c E-1 [Elections Act]. The main issue before the court was whether the Chief Electoral Officer was able to redact information that is confidential and irrelevant to the appeal (Campbell, at para 2).

Dispensing Speedy Justice: The Supreme Court of Canada & Decisions from the Bench

By Lisa Silver

On May 22, 2018

In Access to Justice, Appellate Practice

By: Lisa Ann Silver

PDF Version: Dispensing Speedy Justice: The Supreme Court of Canada & Decisions from the Bench

Recently, I was asked to comment on the recent Supreme Court of Canada decision on R v Stephan, 2018 SCC 21. The decision, given from the Bench immediately after the argument of the appeal, took many media outlets by surprise. The media, and to a large extent, lawyers, are not accustomed to speedy decision-making from the Supreme Court. We collectively expect the Court to reserve judgment and then, after months of diligent research and writing, the Court issues an unassuming missive that the judgment will be rendered on X date at Y time. I have often waited at my computer close to the appointed hour in order to immerse myself in the expectation of a new judgment release. For instance, I eagerly awaited the release of R v Marakah, [2017] 2 SCR 608 and R v Jones, [2017] 2 SCR 696, at 9:45 a.m. EST to be first in line to the lines of decision-making, which would, we all hoped, reveal the answers to the perplexing issues raised by the s. 8 issues surrounding the seizure of text messages found on a 3^rd party’s smart phone. True, the Supreme Court could disappoint as reality often does not live up to expectations. But at least we had 200 paragraphs on which to mull over how we should have or ought to have known better. So, when the Stephan decision was rendered so quickly, I began to wonder if this was a trend on the part of the Supremes or whether it was merely my own biases coming into play. I was determined, therefore, to see if in fact the Supreme Court is rendering from the Bench more often than in the past and if so, why.

Arbitrator’s Decision re Post-Incident Drug and Alcohol Test Upheld on Judicial Review

By Linda McKay-Panos

On May 14, 2018

In Arbitration, Labour/Employment

By: Linda McKay-Panos

PDF Version: Arbitrator’s Decision re Post-Incident Drug and Alcohol Test Upheld on Judicial Review

Decision Commented On: Canadian Energy Workers’ Association v ATCO Electric Ltd, 2018 ABQB 258, (CEWA)

Clearly, challenges surrounding drug and alcohol testing policies and procedures take up quite a bit of time and energy of companies, unions, arbitrators and eventually, courts. The factual context is very important in these cases. This leads to the courts often deferring to the fact finding and conclusions drawn by tribunals.