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“Beyond This Court’s Capacity”: Habeas Corpus Hearings Restricted to Liberty Remedies Only

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On July 24, 2017

In Constitutional, Criminal

By: Amy Matychuk

PDF Version: “Beyond This Court’s Capacity”: Habeas Corpus Hearings Restricted to Liberty Remedies Only

Case Commented On: McCargar v Canada, 2017 ABQB 416 (CanLII)

On May 5, 2017, Mr. McCargar, currently a federal prison inmate, filed a joint habeas corpus application in the Court of Queen’s Bench on behalf of himself and three other inmates. Habeas corpus is a constitutional and common law remedy for unlawful detention; however, it is usually invoked as an individual remedy because it assesses individual circumstances, so a joint application is unorthodox. Mr. McCargar also undertook to represent his fellow inmates (at their request) in court on the joint application. Justice John T. Henderson quickly disabused Mr. McCargar of the notion that he could act in the role of a lawyer, and in his judgment, described the narrow circumstances in which joint habeas corpus applications are appropriate, clarified the kinds of state treatment that merit the remedy of habeas corpus at all, declined to take jurisdiction of the application, and proposed new restrictions on habeas corpus hearings. He also ordered $1000 in costs against Mr. McCargar, found Mr. McCargar in prima facie contempt of court, and restricted his court filing activities pending a hearing on whether he should be declared a vexatious litigant.

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Another Workplace Death Illustrates the Need for More Enhanced Protections for Farm Workers

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On July 20, 2017

In Labour/Employment

By: Jennifer Koshan

PDF Version: Another Workplace Death Illustrates the Need for More Enhanced Protections for Farm Workers

Matter Commented On: Report to the Minister of Justice and Solicitor General of a Public Fatality Inquiry into the Death of Stephen Murray Gibson

On June 29, 2017 the Alberta government released the report of Judge Anne Brown concerning a Public Fatality Inquiry held into the death of Stephen Murray Gibson. Gibson was a farm worker who was killed in 2014 when his clothing became caught in an auger’s unshielded power take off (PTO), and he was pulled into the equipment and instantly killed. Gibson worked for Hamilton Farms, a husband and wife cattle, grain and hay operation, and he had not had a day off in four weeks, “as it was a very busy time of year, with winter feeding and calving” (at para 4). Judge Brown’s report recognizes that “Farming is hard and hazardous work”, and notes that the Enhanced Protection for Farm and Ranch Workers Act – which I have written about on ABlawg previously (see here, here and here) – extended the protection of the Occupational Health and Safety Act, RSA 2000, c O-2 and the Workers Compensation Act, RSA 2000, c W-15 to farm and ranch workers who are paid non-family members (at paras 9 and 11). What the report does not address, because it was written on May 8, 2017, is the fact that Bill 17, the Fair and Family-friendly Workplaces Act introduced by the government on May 24, 2017, exempts farm and ranch workers from protections regarding hours of work and time off in the Employment Standards Code, RSA 2000, c E-9 (see section 4 of Bill 17, adding the new section 2.1 to the Employment Standards Code, which will come into effect on January 1, 2018).

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The Impact of a Dower Act Life Estate on the Valuation and Distribution of Intestate Estates

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On July 18, 2017

In Property, Wills and Estates

By: Jonnette Watson Hamilton

PDF Version: The Impact of a Dower Act Life Estate on the Valuation and Distribution of Intestate Estates

Case Commented On: Estate of Johnson, Rick Allen (Re), 2017 ABQB 399 (CanLII)

The deceased, Rick Allen Johnson, died intestate–i.e., without a will–in February 2013. He was survived by a spouse and by two children of a previous marriage. The years of aggravation, frustration, hostilities and legal fees that is foretold by those two short sentences will be obvious to the many individuals who have found themselves in a similar situation. The particular issue in this case was how much of the deceased’s property his children inherited, if any, given the life estate in the deceased’s house granted to his surviving spouse by the Dower Act, RSA 2000, c D-15, and the preferential share of an intestate estate given to the surviving spouse by the Wills and Succession Act, SA 2010, c W-12.2.  Specifically, the question was: Should the present value of the wife’s Dower Act life estate be deducted from the value of the deceased’s house for the purpose of distributing his estate between his surviving spouse and his children? Justice John W. Hopkins answered that question with a “no”, holding that the value of the deceased’s house for the purposes of the distribution of his estate under the Wills and Succession Act was the full value of the house, with no deduction for the life estate. I think his answer is wrong.

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The Federal Response to the Report of the Expert Panel on the Modernization of the National Energy Board

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On July 14, 2017

In Aboriginal, Energy, Environmental

By: Nigel Bankes

PDF Version: The Federal Response to the Report of the Expert Panel on the Modernization of the National Energy Board

Document Commented On: Environmental and Regulatory Reviews, Discussion Paper, Government of Canada, June 2017

Professor Mascher has provided an overview of this Discussion Paper. This post highlights how the Discussion Paper responds to the Report of the Expert Panel on the Modernization of the National Energy Board. This is not a straightforward task for two reasons. First, while the Discussion Paper contains one page that is devoted to “modern energy regulation” (at 20) there are references throughout the document that are perhaps also relevant to the National Energy Board (NEB) as well as the other regulatory processes that are under review. Second, and more importantly (and as has already been highlighted by Professor Mascher), the Discussion Paper is not directly responsive to the Report of the Expert Panel. While there are a few quotations from the Expert Panel Report (and from the other review processes) scattered through the Discussion Paper there is no systematic tabulation of Expert Panel recommendations against the responses of the Government of Canada with perhaps (no doubt wishful thinking on my part) some supporting reasoning. Instead, all that we have is a set of high level proposals.

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An Overview of the Environmental and Regulatory Reviews Discussion Paper – Let the Discussion Begin

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On July 13, 2017

In Environmental

By: Sharon Mascher

PDF Version: An Overview of the Environmental and Regulatory Reviews Discussion Paper – Let the Discussion Begin

Document Commented On: Environmental and Regulatory Reviews Discussion Paper, Government of Canada, June 2017

On June 29, 2017, the Government of Canada released a Discussion Paper outlining a series of “system-wide changes” the Government “is considering to strengthen Canada’s environmental assessment and regulatory processes”. The changes are directed at the Government’s commitment to “deliver environmental assessment and regulatory processes that regain public trust, protect the environment, introduce modern safeguards, advance reconciliation with Indigenous peoples, ensure good projects go ahead, and resources get to market” (at 3).

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