ABLawg

By: Linda McKay-Panos

PDF Version: Supreme Court Limits Employment Relationship in Human Rights Cases

Case commented on: McCormick v Fasken Martineau DuMoulin LLP, 2014 SCC 39

In an earlier post, I expressed hope that in McCormick, the Supreme Court of Canada would clear up the issue of “employment” in human rights cases. They have certainly spoken, but perhaps have not cleared up the issue in the way I was hoping they would.

Until recent times, employment (i.e. the legislative terms “employ”, “employee”, “employer”) was given a large and liberal interpretation, in keeping with the notion that human rights law is quasi-constitutional. For example, an employment relationship would be found to exist for human rights law, where it might not be found for tax law. The trend of narrowing the interpretation of employment may contradict the educational and remedial purposes of human rights law. Concerns about this trend in law may explain why several human rights commissions —including Alberta’s—intervened in this Supreme Court of Canada case.

Bishop Tutu: His Challenge to the Legal Profession on the Morals and Ethics of Climate Change

By Kathleen Mahoney

On June 10, 2014

In Climate Change

By: Kathleen Mahoney

PDF Version: Bishop Tutu: His Challenge to the Legal Profession on the Morals and Ethics of Climate Change

Conference Commented On: As Long as the Rivers Flow: Coming Back to the Treaty Relationship in our Time, Fort McMurray, AB, May 31-June 1, 2014

I was privileged this past weekend to hear Desmond Tutu speak at a conference on climate change and treaty rights in Fort McMurray Alberta (see the program here). His remarks were directed at climate change in general and the Alberta oil sands development in particular. He clearly made the link between carbon emissions from the oil sands and climate change. He then situated the issue of climate change squarely in a moral and ethical dimension. He argued that consideration of this dimension must play a central role in legal and policy decisions about responses here in Canada and around the world.

It is clear that Tutu’s ethical and moral concerns touch on fundamental rights and the very nature of justice and equity. Distributive justice, compensatory justice, procedural justice and human rights are all implicated. We heard from many speakers at the conference that in the Canadian context, First Nations bear the brunt of resource development when their treaty rights, food sources, water and cultures are compromised by climate change and environmental damage.

Greenpeace v Canada: Symbolic Blow to the Nuclear Industry, Game-changer for Everyone Else?

By Martin Olszynski

On June 9, 2014

In Energy, Environmental

By: Martin Olszynski

PDF Version: Greenpeace v Canada: Symbolic Blow to the Nuclear Industry, Game-changer for Everyone Else?

Case commented on: Greenpeace Canada v Canada (Attorney General), 2014 FC 463 (CanLII)

In this lengthy (431 paragraphs) decision, the Federal Court allowed in part Greenpeace et al’s application for judicial review regarding the Joint Review Panel report(the Report) for the Darlington New Nuclear project proposed by Ontario Power Generation (OPG). Justice Russell held that the environmental assessment (EA) conducted by the Joint Review Panel (JRP) failed to comply with the Canadian Environmental Assessment Act, SC 1992 c 37 (as it then was). Specifically, there were gaps in the treatment of hazardous substances emissions and spent nuclear fuel, and a failure to consider the effects of a severe “common cause” accident. As noted by the media, while the decision is of limited effect on a project already indefinitely postponed by the province, “it is a symbolic blow to an industry coping with the public and political fallout from Japan’s 2011 Fukushima meltdown.” As further discussed below, the decision is also likely to have implications for EA in Canada generally and several other projects currently making their way through either the regulatory process or the courts, including Taseko’s New Prosperity mine, Enbridge’s Northern Gateway pipeline and Kinder Morgan’s Trans Mountain pipeline.

Court of Appeal Confirms the Availability of a Disgorgement Remedy as a Possible Means of Assessing Damages for Breach of a Modern Land Claim Agreement

By Nigel Bankes

On June 5, 2014

In Aboriginal, Remedies

By: Nigel Bankes

PDF Version:Court of Appeal Confirms the Availability of a Disgorgement Remedy as a Possible Means of Assessing Damages for Breach of a Modern Land Claim Agreement

Case commented on: Nunavut Tunngavik Incorporated v Canada (Attorney General), 2014 NUCA 02

The Nunavut Court of Appeal has confirmed the availability of a disgorgement remedy as a possible means of assessing damages for breach of a modern land claim agreement. However, the majority of the Court (Justices Slatter and O’Brien) ruled that summary judgment was not available to the Nunavut Tunngavik Inc (NTI) in this case and that consequently damages must still be assessed following the trial. Justice Hunt (dissenting on this point) concluded that summary judgment was available. All members of the Court were agreed that nominal damages would not be appropriate in this sort of case even if NTI were unable to prove actual damages. To allow an award of nominal damages for breach of a land claim agreement would not foster the overall goal of reconciliation.

EPA’s New Power Sector Climate Rules: A Brewing Political and Legal Storm

By James Coleman

On June 4, 2014

In Climate Change, Energy

By: James Coleman

PDF Version: EPA’s New Power Sector Climate Rules: A Brewing Political and Legal Storm

Proposal Commented On: United States Environmental Protection Agency proposal for cutting power plant greenhouse gas emissions

On June 2, the United States Environmental Protection Agency (EPA) proposed requiring all fifty states to adopt greenhouse gas controls for their existing power plants. And EPA went further, proposing that, together, states would have to cut U.S. power sector emissions by 30% by 2030. (You can see a chart of how much each state would have to cut here.)

These rules face strong political and legal opposition and will not go into action until 2020 at earliest. Their ultimate fate will depend on whether President Obama’s administration stands behind them, whether the public elects a new President that supports them, and whether the courts agree that EPA has authority to cap state greenhouse gas emissions. Their immediate impact is twofold: 1) it tells other countries that there’s a chance the U.S. could commit to strong greenhouse gas rules at 2015 negotiations in Paris; and 2) it sets the stage for an epic political and legal struggle over energy policy in the United States. Many nations, including Canada, are eager to see what will result.