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How Lawyers Resolve Family Law Disputes

On October 24, 2014

By: John-Paul Boyd

PDF Version: How lawyers resolve family law disputes

This past July I was able to sample the views of 167 lawyers and judges attending the Federation of Law Societies of Canada‘s National Family Law Program in Whistler, British Columbia through a survey designed and implemented by two prominent academics and the Canadian Research Institute for Law and the Family. The survey asked questions about participants’ views on shared parenting and shared custody, litigants without counsel, and dispute resolution.

In the course of digesting the resulting data for a report, I noticed something very interesting about the information we’d collected on dispute resolution. We had asked lawyers to tell us the percentage of their family law cases which are ultimately resolved by: arrangements made by the parties themselves; negotiation involving lawyers; mediation; collaborative settlement processes; arbitration; through court with the assistance of a judge at an interim hearing or a judicial conference; or, through court at trial. Here’s what the numbers told us:

Access vs Privacy: A Mounting Rivalry

By Ronaliz Veron

On October 22, 2014

In Administrative Law, Health Law, Privacy

By: Ronaliz Veron

PDF Version: Access vs Privacy: A Mounting Rivalry

Case Commented On: Covenant Health v Alberta (Information and Privacy Commissioner), 2014 ABQB 562

Covenant Health v Alberta, 2014 ABQB 562, addresses a difficult power struggle that can develop between government facilities responsible for caring for the elderly, and the family members who question that care. It also examines the conflicting interests that arise when a public health body is asked to disclose records that contain patient data and non-patient information. In navigating the interaction between the Health Information Act, RSA 2000, c H-5 and the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 (Freedom of Information Act), Judge Wakeling’s reasons reveal a mounting rivalry between the right to access personal information and the right to privacy. In the end, the Court, after engaging in a balancing exercise, clearly chose to favour privacy rights over access rights.

Disagreement in the Court of Appeal about the Wisdom of Judicial Economy

By Jonnette Watson Hamilton

On October 21, 2014

In Property

By: Jonnette Watson Hamilton

PDF Version: Disagreement in the Court of Appeal about the Wisdom of Judicial Economy

Case Commented On: Calgary Jewish Academy v Condominium Plan 9110544, 2014 ABCA 279

In this judgement, the Court of Appeal reversed the decision of Justice Adele Kent in Calgary Jewish Academy v Condominium Plan 9110544, 2013 ABQB 134, where she had found the Academy’s lease of a portion of the Condominium Corporation’s land invalid. The Court of Appeal decision is of interest because of the different approaches taken by Justices Clifton O’Brien and Alan Macleod on the one hand, and Justice Brian O’Ferrall in a concurring opinion on the other, and what those different approaches might say about the wisdom of judicial or decisional economy. The case also illustrates (yet again) that no good deed goes unpunished.

The Calgary Jewish Academy, the plaintiff in this matter, and the condominium complex, the defendant, are neighbours on land adjacent to Glenmore Trail. The Academy has operated a school on their land since 1958. In 1978, the City of Calgary made changes to Glenmore Trail that cut off emergency access to the school. Fortunately, the City owned the land adjacent to the school and leased a portion of it to the Academy for use as a parking lot and for emergency access. The lease—the first lease—was for 10 years, and the Academy had an option to renew for a further period of 10 years on the same terms and conditions. The rent was one dollar per year. A caveat claiming an interest in land pursuant to the lease was filed against the City’s land.

Ernst v Alberta (Energy Resources Conservation Board): The gatekeeper is alive and well

By Shaun Fluker

On October 20, 2014

In Civil Procedure, Environmental

By: Shaun Fluker

PDF Version: Ernst v Alberta (Energy Resources Conservation Board): The gatekeeper is alive and well

Case Commented On: Ernst v Alberta (Energy Resources Conservation Board), 2014 ABCA 285

This comment adds to the earlier post by Martin Olszynski (here) on the Ernst litigation against Alberta Environment, the Alberta Energy Regulator/Energy Resources Conservation Board (AER/ERCB) and Encana Corporation concerning allegations of groundwater contamination from hydraulic fracturing. Readers interested in more details on the substance of the litigation will find it here. My focus in this comment is on whether the Alberta Court of Appeal has correctly applied the law on a motion to strike under Rule 3.68 of the Alberta Rules of Court, Alta Reg 124/2010 (the Rules). I argue the Court of Appeal has erred by applying the test too restrictively.

Simply put, Ernst alleges that Alberta Environment and the AER/ERCB owe her a duty of care and are negligent by failing to meet that duty. This is a question of regulatory negligence, and the parameters of the law on this question have been summarized by Professor Olszynski. The AER/ERCB applied to the Court to strike Ernst’s claim for failing to disclose a reasonable cause of action, and for summary judgment. In the first instance, Chief Justice Wittman granted the request to strike back in September 2013 (Ernst v Encana Corporation, 2013 ABQB 537).

The Debate over the Charter’s Reach Continues: A Question Regarding Free Expression at Airports

By Sarah Burton

On October 17, 2014

In Constitutional

By: Sarah Burton

PDF Version: The Debate over the Charter’s Reach Continues: A Question Regarding Free Expression at Airports

Case Commented On: The Calgary Airport Authority v Canadian Centre for Bio-Ethical Reform, 2014 ABQB 493

In The Calgary Airport Authority v Canadian Centre for Bio-Ethical Reform, 2014 ABQB 493 (“CAA v CCBR”), Chief Justice Wittmann granted an interim injunction prohibiting an anti-abortion group from protesting at the Calgary International Airport. Separate and apart from the polarizing subject-matter, this case is interesting because it raises some basic Charter questions that stubbornly refuse to be settled. Despite raising interesting questions regarding the reach of the Charter to quasi-governmental entities and the meaning of public property, the Court did not provide any answers at this stage. Given the nature of an interim injunction application, Chief Justice Wittmann was only asked to determine if the matters raised “serious issues to be tried” – a decision he had little difficulty making. Even without final answers though, this decision still merits attention. Not only are the issues themselves thought-provoking, the parties clearly viewed the application as one of massive importance, and accordingly prepared forceful arguments. At the very least, Chief Justice Wittman’s direction that the matter move expeditiously via case management signals that the Court will be providing a substantive answer to these questions in the not-too-distant future.