ABLawg

By: Kyle Gardiner

PDF Version: Charter Equality Challenges to the Income Tax Act: The Unsuccessful Streak is Strong, 30 Years On

Research Commented On: Shea Nerland Law LLP Fellowship Project on Tax Law and Equality, Summer 2016

On 2 May, 2016, I began a research project with Jonnette Watson Hamilton, Jennifer Koshan and Saul Templeton examining the role section 15 of the Charter plays in tax law. Over 50 variables were recorded from each of the 134 equality challenges to tax law that we analyzed. To read my post on one of these cases, Grenon v. Canada, 2016 FCA 4 (CanLII), see here. The data promises to be a rich tool for examining equality in the realm of tax law.

When I was conducting a literature review for this project, I reviewed Kathleen Lahey’s “The Impact of the Canadian Charter of Rights and Freedoms on Income Tax Law and Policy” in David Schneiderman & Kate Sutherland, eds, Charting the Consequences: The Impact of Charter Rights on Canadian Law and Politics (Toronto: University of Toronto Press, 1997) 109. In that study, Lahey conducted a review of 300 cases in which Charter challenges were brought to various income tax provisions between 1985 and 1995. The current research extends Lahey’s study, systematically reviewing section 15(1) Charter challenges to tax law that have been brought since the conclusion of her study in October, 1995. While many taxation provisions outside of the Income Tax Act, RSC 1985, c 1 (5^th Supp) have seen their share of section 15(1) challenges, the cases examined in our study were specifically section 15(1) equality challenges to a section or sections of the Income Tax Act. Our data awaits further statistical analysis beyond what has been done preliminarily here.

Human Rights Cannot Be Renounced or Waived

By Hasna Shireen

On September 1, 2016

In Administrative Law, Human Rights

By: Hasna Shireen

PDF Version: Human Rights Cannot Be Renounced or Waived

Case Commented On: Webber Academy Foundation v Alberta (Human Rights Commission), 2016 ABQB 442 (CanLII)

The Court of Queen’s Bench of Alberta recently upheld a human rights decision that found Webber Academy, a private school in Calgary, had unlawfully discriminated against two Muslim high school students by prohibiting them from performing certain prescribed Sunni prayers at school. Dr. Webber, President and Chairman of Webber Academy, said that bowing and kneeling was too overt and such prayers would be not allowed on campus. The Alberta Human Rights Tribunal in 2015 found that Webber Academy discriminated against the two students and awarded the students $12,000 and $14,000 respectively as damages for distress, injury and loss of dignity (see 2015 AHRC 8 (CanLII)). The Academy did not explicitly claim that the complainants had waived their rights prior to enrollment. However, on appeal Justice GH Poelman addressed the issue of waiver, as the pre-enrollment discussions between the students and staff were discussed at length by the Tribunal. Justice Poelman held that waiver is not a possible defence in any case, as human rights are a matter of public policy and protect the inherent dignity of every individual; thus they “cannot be waived or contracted out of” (at para 106).

Supporting the Unrepresented: Providing Trial Information to Self-Represented Litigants

By Alena Storton

On August 29, 2016

In Access to Justice, Criminal

By: Alena Storton

PDF Version: Supporting the Unrepresented: Providing Trial Information to Self-Represented Litigants

Case Commented On: R v Hamiane, 2016 ABQB 409 (CanLII)

Recent appeals by self-represented litigants (SRL) often focus on the extent of a trial judge’s duty to assist the self-represented litigant. Trial judges are expected to assist SRLs throughout a trial, but the scope of assistance is left to their discretion (R v Hamiane, 2016 ABQB 409 (CanLII); Cold Lake First Nations v Alberta (Minister of Tourism, Parks & Recreation, 2012 ABCA 36 (CanLII); Malton v Attia, 2016 ABCA 130 (CanLII); for earlier posts discussing Malton v Attia see here and here). From the appeals, however, it is clear that SRLs do not feel sufficiently supported or informed to meaningfully participate in a trial. To remedy this issue, trial judges should consider altering the way in which they approach assisting SRLs in the trial process. Judges already explain procedural steps during a trial, as seen in Hamiane. By providing that same assistance at the outset of a trial in accordance with an established set of guidelines, however, trial judges could streamline the process and ensure that all SRLs receive consistent information sufficient to allow them to meaningfully and fully participate in a trial.

Polyamorous Families in Canada: Early Results of New Research from CRILF

By John-Paul Boyd

On August 24, 2016

In Criminal, Family

By: John-Paul Boyd

PDF Version: Polyamorous Families in Canada: Early Results of New Research from CRILF

Report Commented On: Canadian Research Institute for Law and the Family, Perceptions of Polyamorous Relationships: Preliminary Data

On 20 June 2016, the Canadian Research Institute for Law and the Family began a study on Canadian perceptions of polyamory, advertised with the assistance of the Canadian Polyamory Advocacy Association, gathering preliminary data with a public survey. The information gathered thus far, from the 547 people who answered our survey, paints a nuanced picture of polyamorous individuals and their family arrangements.

The polyamorous families we are looking at are those created by three or more freely consenting adults, in distinction to faith-based, and often patriarchal, forms of polygamy that exist in much of Africa, the Middle East and North America, the latter of which have been popularized in shows like Big Love and Sister Wives. The polyamorous population we are studying places a high value on equality and honesty, and the rights of individuals to leave a relationship when and how they wish.

Trinity Western Decision Fails to Clarify Approach to Balancing Conflicting Charter Rights

By Joshua Sealy-Harrington

On August 23, 2016

In Administrative Law, Constitutional, Legal Education

By: Joshua Sealy-Harrington and Marita Zouravlioff

PDF Version: Trinity Western Decision Fails to Clarify Approach to Balancing Conflicting Charter Rights

Case Commented On: Trinity Western University v The Law Society of Upper Canada, 2016 ONCA 518 (CanLII)

Two days before Canada Day, the Ontario Court of Appeal upheld the Law Society of Upper Canada’s decision to not accredit the proposed law school at Trinity Western University—a private Christian university in British Columbia which requires all prospective law students to abstain from gay sex. Many progressives hailed the decision as a victory for equality, and it undoubtedly was. But while the outcome was progressive in this case, its reasoning need not result in progressive outcomes in future cases. For this reason, we critique the Court’s reasons for failing to discuss the appropriate approach to balancing conflicting Charter rights.