ABLawg

Imposing Limits on the Public’s Right to Access Transit Services: Is the Alberta Court of Appeal’s Train of Thought in the Case of R v. S.A. on the Right Track?

On December 16, 2014

By: Ola Malik and Sarah E. Hamill

PDF Version: Imposing Limits on the Public’s Right to Access Transit Services: Is the Alberta Court of Appeal’s Train of Thought in the Case of R. v. S.A. on the Right Track?

Case Commented On: R. v. S.A., 2014 ABCA 191, leave denied December 11, 2014 (SCC)

The trilogy of decisions in R. v. S.A. discusses the limits that may be placed on the public’s right to access transit services. Initially, S.A.’s Charter arguments succeeded at trial (2011 ABPC 269 (SA (ABPC)), but she lost the subsequent appeal at the Court of Queen’s Bench (2012 ABQB 311 (SA (ABQB)) and, after having been granted leave from that decision to the Court of Appeal (2012 ABCA 323 (SA (leave application)), she ultimately lost at the Court of Appeal (2014 ABCA 191 (SA (ABCA)). On December 11, 2014, the Supreme Court of Canada denied leave to appeal. This decision has been the subject of previous posts on ABlawg here, here, and here.

In R. v. S.A., a thirteen year old girl was issued a Notice Not to Trespass under Alberta’s Trespass to Premises Act, RSA 2000, c T-7 (TPA) after she assaulted another youth at a train station. She was subsequently convicted of that offence. Edmonton Transit Service (ETS) issued the Notice, and banned S.A. from being on any ETS property for a period of 6 months. Although not obvious from the text of the Notice, it could be modified on application by the affected party to allow access to public transit for specified purposes and times, such as to attend school. With the help of a youth worker, S.A. sought, and was granted those modifications for certain hours during the week. S.A. was not ticketed on occasions where she used transit to travel to school, appointments, or for other “legitimate” purposes. She admitted to using ETS property on occasions which were subject to the ban. Several months following the issuance of the Notice, S.A. was found on ETS property and was charged with trespass under the TPA.

ABlawg: The Year in Review

By Admin

On December 15, 2014

In Uncategorized

PDF Version: ABlawg: The Year in Review

It is the time of year for making lists, and at ABlawg we have decided to put together a compilation of our highlights from 2014. It is also the season for the Canadian Law Blog Awards (Clawbies), and we have included a list of some of our favourite blogs as well.

A Series of Series

In 2014 ABlawg ran several series of posts on important judicial decisions and legislative developments in Alberta and Canada more broadly. These series provided an opportunity for the authors to discuss the nuances and impacts of these developments and to share that dialogue with ABlawg readers. Our series covered the following:

April / May 2014: Students in Law 696: Constitutional Clinical wrote a series of posts on the constitutionality of the exclusion of Alberta farm workers from the Employment Standards Code; Labour Relations Code; Occupational Health and Safety Act; and Workers’ Compensation Act. The posts gained attention from the media (see e.g. here and here), other blogs, opposition parties and the PC leadership candidates.

July / August 2014: Posts by Nigel Bankes, Jennifer Hocking, Jennifer Koshan, Kirk Lambrecht, Q.C., Sharon Mascher, Martin Olszynski, and Jonnette Watson Hamilton on Tsilhqot’in Nation v British Columbia, 2014 SCC 44 and Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48 covered issues including the scope of Aboriginal title, treaty rights, and the duty to consult, and the demise of the interjurisdictional immunity doctrine and the “lands reserved” head of section 91(24) of the Constitution Act 1867. Faculty, students, research associates and guests discussed this commentary and the underlying decisions in a roundtable discussion in July.

Alberta Introduces Amendments to PIPA

By Ronaliz Veron

On December 12, 2014

In Labour/Employment, Privacy

By: Ronaliz Veron

PDF Version: Alberta Introduces Amendments to PIPA

Bill Commented On: Bill 3, Personal Information Amendment Act, 3^rd Sess, 28^th Leg, Alberta, 2014

On November 15, 2013, the Supreme Court of Canada held in Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401, 2013 SCC 62 (AIPC v UFCW) that Personal Information Protection Act, SA 2003, c. P-6.5 (PIPA) and Personal Information Protection Act Regulation, Alta Reg 366/2003 (PIPAR) violated section 2(b) of the Charter of Rights and Freedoms, as they limited a union’s ability to collect, use, or disclose personal information in a lawful strike (See Linda McKay-Panos’ post on the decision). In oral argument, the Attorney-General of Alberta and the Information and Privacy Commissioner indicated that, if they were unsuccessful, they would prefer to have the entire legislation struck down to allow the legislature to re-consider PIPA as a whole. Acknowledging the comprehensive and integrated structure of PIPA, the Supreme Court declared it invalid but suspended the declaration of invalidity for a year to give the Alberta legislature ample time to make the necessary amendments (AIPC v UFCW at paras 40-41).

Judicial Economy, Judicial Extravagance and Pension Splitting under a Matrimonial Property Order

By Jonnette Watson Hamilton

On December 11, 2014

In Access to Justice, Family, Property

By: Jonnette Watson Hamilton

PDF Version: Judicial Economy, Judicial Extravagance and Pension Splitting under a Matrimonial Property Order

Case Commented On: McMorran v Alberta Pension Services Corporation, 2014 ABCA 387

The Court of Appeal decision in McMorran v Alberta Pension Services Corporation determines an instrumentally important question in the pension and matrimonial property law areas. In addition, it is procedurally unusual for two reasons. First, although it is a matrimonial property action, the dispute is really between Justice Robert Graesser, the Court of Queen’s Bench judge who rendered the decision appealed from (McMorran v McMorran, 2013 ABQB 610) and the administrator of the Alberta public service pensions plans, the “appellant” by court order in the Court of Appeal — i.e., not between the former husband and wife who are both “respondents”. Second, the concurring judgment of Justice Thomas Wakeling disagrees with the majority judgment of Justices Ronald Berger and Frans Slatter on one statutory interpretation point, but no consequences appear to flow from that disagreement and the two judgments do not engage with each other on the point. The reasons for two separate judgments are not made explicit, but they appear to be a result of different perspectives on the value of judicial economy. And in these days of legal and public focus on access to justice issues and the need for a “culture shift” in the current legal system, I think it is important to consider whether we can afford judicial extravagance.

How much discretion does a regulator have to limit the recovery of a utility’s legal costs?

By Nigel Bankes

On December 10, 2014

In Administrative Law, Energy, Utility Regulation

By: Nigel Bankes

PDF Version: How much discretion does a regulator have to limit the recovery of a utility’s legal costs?

Case Commented On: ATCO Gas and Pipelines Ltd v Alberta (Utilities Commission), 2014 ABCA 397

In this case the Court of Appeal confirmed that the Alberta Utilities Commission (AUC) has some level of discretion as to the extent to which it allows a regulated utility to recover its prudently incurred legal costs from its customers when that utility participates in hearings called by the AUC to consider generic issues of interest to all regulated utilities and their customers and shareholders. One member of the Court (Justice Peter Martin) thought that the Commission went too far in denying recovery in relation to one set of costs and would have sent that matter back to the Commission.

The decision is interesting because it involves the intersection between an adjudicator’s discretion to allow for the recovery of legal costs and the general principle that a utility ought to have the opportunity to recover all of its prudently incurred operating costs (including the legal costs associated with rate setting) through the tariff approved by the regulator. A decision that recognizes that a utility has prudently incurred certain costs but which then denies the utility even the opportunity to recover those costs will generally be unsupportable: BC Electric Railway Company v Public Utilities Commission, [1960] SCR 837. In this case however there were special considerations and thus while the majority found the Commission’s decision both reasonable and correct, the decision is not likely of broad application – a point that Chief Justice Fraser herself seems to acknowledge at paras 70 – 73. In particular, and notwithstanding other and rather more sweeping statements from the Chief Justice (see, for example para 106, quoted below, and paras 110 – 111), it is not likely that the decision can be applied in the more routine situation in which a utility incurs legal costs as part of preparing and presenting its general rate application (GRA) to the AUC for it to set just and reasonable rates. The AUC may still scrutinize those legal costs on prudence grounds (and see here in particular Justice Martin at para 171) to ensure that the utility is not gold-plating its costs (e.g. where it chooses to retain expensive outside counsel to undertake a task that could be more economically dealt with in-house) but it likely cannot say (even on a reasonableness standard of review) that the legal costs associated with preparing and presenting a GRA are not recoverable.