ABLawg

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.

Canada’s interpretation of the Hague Convention on the Civil Aspects of International Child Abduction – the influence of the new hybrid approach on a child’s objection to return

By Rudiger Tscherning

On May 10, 2018

In Family, International Law

By: Rudiger Tscherning

PDF Version: Canada’s interpretation of the Hague Convention on_the_Civil Aspects of International Child Abduction – the influence of the new hybrid approach on a child’s objection to return

Cases Comment On: Office of the Children’s Lawyer v Balev, 2018 SCC 16; Erhardt v Meyer, 2018 ABQB 333; Husnik v Barbero Salas, 2018 ONSC 2627

Introduction

On November 9, 2017, the Supreme Court of Canada (SCC) heard the appeal in Office of the Children’s Lawyer v JPB and CRB (Supreme Court of Canada, Leave to Appeal (37250)) (Balev), a case which raises important issues about the interpretation of the Hague Convention on the Civil Aspects of International Child Abduction. For an overview of the background and issues arising from the Balev litigation, see my earlier posts at here, here, and here. The SCC rendered its decision in Balev on April 20, 2018.

Are the Alberta Ethics Commissioner’s actions subject to parliamentary privilege or judicial review?

By Hasna Shireen

On May 8, 2018

In Administrative Law

By: Hasna Shireen

PDF Version: Are the Alberta Ethics Commissioner’s actions subject to parliamentary privilege or judicial review?

Case Commented On: McIver v Alberta (Ethics Commissioner), 2018 ABQB 240

Ric Mclver, a member of the Legislative Assembly of Alberta, made comments during Question Period about power companies. His comments were subject to a complaint that he was in conflict of interest as his wife is a sole shareholder and director of a power company. The Ethics Commissioner investigated and determined that he breached the Conflict of Interest Act, RSA 2000, c C-23 [CIA] [Any following references to legislative sections are assumed to be to the CIA unless otherwise noted] and eventually sanctioned Mr. McIver. He was ordered to apologize to pay $500 and to apologize to the Legislative Assembly. In an application for judicial review, Mr. McIver challenged the Ethics Commissioner’s decision and argued that she exceeded her jurisdiction in interfering with his free speech (McIver, para 2). Justice Janice Ashcroft of the Alberta Court of Queen’s Bench addressed the following issues.

What is the role of the Ethics Commissioner in this judicial review?
Is the decision to sanction Mr. McIver subject to judicial review, or is it protected by the constitutional doctrine of parliamentary privilege?
If the decision is subject to judicial review, did the Ethics Commissioner exceed her jurisdiction? (McIver, para 9)

Bills C-68 and C-69 and the Consideration of Sex, Gender and Other Identity Factors

By Jennifer Koshan

On May 2, 2018

In Energy, Environmental

By: Jennifer Koshan

PDF Version: Bills C-68 and C-69 and the Consideration of Sex, Gender and Other Identity Factors

Legislation Commented On: An Act to amend the Fisheries Act and other Acts in consequence (Bill C-68) and An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts (Bill C-69)

Over the past couple of months, several of my colleagues have posted comments on Bill C-68 and Bill C-69 (see here). My focus in this post is on one section that is common to Bills C-68 and C-69, which provides that when making a decision under the relevant Act, the decision-maker may or indeed must consider, among other things, “the intersection of sex and gender with other identity factors” (see proposed section 2.5(i) of the Fisheries Act (“may”), section 22(1)(s) of the proposed Impact Assessment Act (“must”), and sections 183(2)(c), 262(2)(c) and 298(3)(c) of the proposed Canadian Energy Regulator Act (“must”)). The preamble of Bill C-69 also states that “the Government of Canada is committed to assessing how groups of women, men and gender-diverse people may experience policies, programs and projects and to taking actions that contribute to an inclusive and democratic society and allow all Canadians to participate fully in all spheres of their lives.”