ABLawg

By: Linda McKay-Panos

PDF Version: Age Discrimination in Long Term Disability Plans: Reasonableness Not Required in Alberta

Case Commented On: International Brotherhood of Electrical Workers, Local 1007 v Epcor Utilities Inc, 2016 ABQB 574 (CanLII) (IBEW ABQB)

This case demonstrates grievance arbitration panels’ shared jurisdiction with the Alberta Human Rights Commission on human rights issues. It also shows one of the fairly rare circumstances when individuals (or their employers) can effectively contract out of human rights protection. The International Brotherhood of Electrical Workers (IBEW) Local 1007 represented Darrell McGowan in a grievance wherein he asserted that he was forced to resign and access his pension instead of being able to access his long term disability (LTD) benefits. The LTD Policy negotiated between McGowan’s employer (Epcor) and its third party benefits provider (Sun Life) expressly excluded access to LTD benefits for people “who retire or those who are eligible to retire with a full pension” (Re Epcor Utilities Inc. and IBEW, Local 1007 (McGowan), 2015 CarswellAlta 1657 (IBEW Arbitration) at 2).

McGowan had worked for Epcor for 36 years and had been receiving LTD payments for about a year when his payments ceased as he reached pensionable age. McGowan’s Union argued that the provision in the LTD Policy constituted discrimination against McGowan on the basis of age and/or disability. The Union reasoned that the policy was discriminatory because those who are disabled and thus eligible for LTD benefits, but who intend to and are potentially able to return to work, or who may recover from a disability and be accommodated by the employer, are not eligible to receive LTD benefits (IBEW Arbitration at 2).

Flipping DBS: Finding Limits on Retroactive Child Support Variation

By Kyle Gardiner

On October 28, 2016

In Family

By: Kyle Gardiner

PDF Version: Flipping DBS: Finding Limits on Retroactive Child Support Variation

Case Commented On: CLW v SVW, 2016 ABQB 546, appeal filed.

In 2006, the Supreme Court of Canada released its decision in the case of DBS v SRG, 2 SCR 231, 2006 SCC 37 (CanLII), which addressed the nuances of retroactive child support. A retroactive order for child support is one that has a start date prior to the date the order was made – for example, an order made in October for child support payments deemed to be payable as of August. In DBS v SRG, the Court reiterated that child support is the right of the child, and that this right survives the child’s parents’ marriage breakdown (at para 38). I have previously blogged on the pre-existing nature of this right to support (see here). The Court also stressed that courts are not precluded from considering retroactive awards just because the current child support regime is application based. The Court in DBS v SRG also held that the presumptive start date for a retroactive child support order should be the date the recipient gave notice to the payor that child support was needed, or “broaches the subject” as Justice Bastarache J (for the majority) puts it (at para 125). The majority held that child support may be sought retroactively to a maximum of three years from the date of the recipient’s application to court. However, if the payor has been found to have engaged in blameworthy conduct or misconduct of some sort, this three-year time limit would not apply (at para 5). The Court was silent with respect to time limits on retroactive variation orders like that sought in CLW v SVW, the case that is the subject of this post.

Compulsory Conciliation under the Law of the Sea Convention: Rich Pickings in the Decision on Objections to Competence of the Timor-Leste/Australia Conciliation Commission

By Nigel Bankes

On October 27, 2016

In Law of the Sea

By: Nigel Bankes

PDF Version: Compulsory Conciliation under the Law of the Sea Convention: Rich Pickings in the Decision on Objections to Competence of the Timor-Leste/Australia Conciliation Commission

Decision commented on: Conciliation Commission, Between the Democratic Republic of Timor-Leste and the Commonwealth of Australia: Decision on Australia’s Objections to Competence, 19 September 2016 (Registry, the Permanent Court of Arbitration)

Background

Part XV of the Law of the Sea Convention (LOSC or Convention) provides, inter alia, for “compulsory conciliation” with respect to disputes concerning the interpretation or application of the Convention in a number of instances. This particular dispute concerns Articles 74, 83 and 298 of the Convention. Articles 74 and 83 are the well-known provisions dealing with the delimitation of the exclusive economic zone and the continental shelf where there are overlapping entitlements as between adjacent or opposite states. Timor-Leste and Australia are opposite states separated by the Timor Sea which is approximately 300 NM wide. On the same day that Timor-Leste regained its independence (20 May 2002) the two states concluded the Timor Sea Treaty which established a Joint Petroleum Development Area pending delimitation of the boundary. Further negotiations between the two states led to the adoption (2006) of the Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS). In separate arbitral proceedings Timor-Leste is contesting the validity of CMATS. The two states have yet to agree on a permanent maritime boundary.

The Appointment of Justice Rowe

By Drew Yewchuk

On October 26, 2016

In Supreme Court of Canada

By: Drew Yewchuk

PDF Version: The Appointment of Justice Rowe

Event Commented On: Nomination of the Honourable Malcolm Rowe for Appointment to the Supreme Court of Canada

On October 17, 2016 Prime Minister Trudeau nominated Justice Malcolm Rowe for appointment to the Supreme Court of Canada. Justice Rowe was a trial judge in Newfoundland and Labrador for two years before being appointed to the Court of Appeal of Newfoundland and Labrador in 2001.

The first section of this post describes the recent changes to the Supreme Court appointment process, as Justice Rowe is the first nomination under the new process. The second section of this post reviews Justice Rowe’s application for the position. The third discusses the public hearing, which I attended in Ottawa on 25 October 2016.

R v Anthony-Cook and the Community’s Sense of Justice

By Lisa Silver

On October 25, 2016

In Criminal, Supreme Court of Canada

By: Lisa Silver

PDF Version: R v Anthony-Cook and the Community’s Sense of Justice

Case Commented On: R v Anthony-Cook, 2016 SCC 43 (CanLII)

In R v Anthony-Cook, 2016 SCC 43 (CanLII), Justice Moldaver, on behalf of the full court, clarifies the test to be applied by a sentencing judge when departing from a joint submission on sentence and then gives clear step-by-step instructions to judges on how to properly apply the appropriate test. The joint sentence recommendation in this case arose out of a tragic set of circumstances in which the 28-year-old offender, who suffered from addiction and mental health issues, assaulted a fellow attendee at a local addiction and counselling organization. The assault resulted in death, and Mr. Anthony-Cook, after his lawyer negotiated a plea resolution with the Crown prosecutor (including an agreement on sentence), entered a plea of guilty to the charge of manslaughter. At the sentencing hearing, the defence and Crown prosecutor offered a joint submission on sentence, recommending the offender receive a further 18-months incarceration (he had already been in custody for a total of 11 months) without any period of probation.

The sentencing judge declined to accede to the joint recommendation as the proposed sentence did “not give adequate weight to the principles of denunciation, deterrence, and protection of the public” (R v Anthony-Cook, 2014 BCSC 1503 (CanLII), Ehrcke J at para 68) and instead imposed a sentence of two years less a day to be followed by 3 years of probation. (at paras 54 to 63) In the sentencing judge’s view, the sentence proposed was unfit and therefore he was not bound by the joint submission. As a result, he departed “to some extent” from the negotiated sentence recommendation. (at para 67) The British Columbia Court of Appeal agreed with the sentencing judge’s assessment that the proposed sentence was unfit and not in the public interest and found no error in his sentencing decision. The matter was further appealed to the Supreme Court of Canada (SCC) to clarify the test to be used by a sentencing judge in departing from a joint submission on sentence. Appellate courts across Canada were not ad idem on the issue, using four different tests for departure: the fitness test, the demonstrably unfit test, the public interest test, and a test which viewed the issues of fitness and public interest as the same. The SCC was asked to clarify which test was the controlling one, with the Court unanimously approving the public interest test. As the sentencing judge erred by applying the incorrect test, Anthony-Cook’s negotiated sentence was imposed by the Court.