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The Alberta Court of Appeal and the Test for Discrimination

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On June 21, 2013

In Human Rights

PDF version: The Alberta Court of Appeal and the Test for Discrimination

Case commented on: Lethbridge Regional Police Service v Lethbridge Police Association, 2013 ABCA 47, leave to appeal denied, June 20, 2013, Supreme Court of Canada.

A couple of months ago I posted a blog on the uncertainty over the test for discrimination under human rights legislation, particularly in Alberta (see here). In the Supreme Court’s most recent human rights decision, Moore v British Columbia (Education), 2012 SCC 61, the Court appeared to return to the traditional prima facie approach to discrimination first set out in Ontario Human Rights Commission and O’Malley v Simpsons-Sears, [1985] 2 SCR 536. Yet in Lethbridge Regional Police Service v Lethbridge Police Association, the Alberta Court of Appeal declined to cite Moore, and applied a restrictive test for discrimination in the employment context. This approach operated to the detriment of Lester, a probationary police constable whose claim of discrimination was dismissed because the Lethbridge Regional Police Service appeared to have at least some non-discriminatory reasons for not extending his contract, and because there was found to be no evidence of stereotyping or egregious discrimination (see para 37). The Court of Appeal took a similarly restrictive approach in Wright v College and Association of Registered Nurses of Alberta (Appeals Committee), 2012 ABCA 267, in which the Supreme Court declined to grant leave to appeal (see 2013 CanLII 15573 (SCC)).  On June 20, 2013, the SCC also denied leave to appeal in the Lethbridge Police Association case. As is the usual practice, the panel (Justices LeBel, Karakatsanis and Wagner) did not provide reasons for decision. This is an unfortunate development given the need for clarity over the test for discrimination. Until the Supreme Court decides to tackle that issue head on, it is to be hoped that the Court of Appeal will follow the Supreme Court’s direction in Moore, and cease its inclination to impose onerous burdens on human rights claimants.

160 Girls Litigation Successful in Kenya

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On June 18, 2013

In International Law

PDF version: 160 Girls Litigation Successful in Kenya

Case commented on: C.K. et al v The Commissioner of Police et al, Petition No. 8 of 2012, High Court of Kenya (May 27, 2013)

On May 27, 2013, J.A. Makau of the High Court of Kenya granted judgment for the petitioners in a constitutional claim challenging the failure of the Kenyan police to conduct prompt, effective, proper and professional investigations into complaints of sexual abuse against girls (known as “defilement” under Kenyan law). I have had the privilege of working as part of the volunteer legal team for this case over the last couple of years, under the auspices of a small but mighty NGO called the Equality Effect.  The Equality Effect (E2) consists of lawyers, academics, and activists primarily from Canada, Ghana, Kenya and Malawi who use domestic and international human rights laws to challenge women’s and girls’ inequality, including gender-based violence.  This post will describe the claim and the process leading to it, and the decision and its implications in Kenya and beyond.

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Raising Questions About the Use of an Offset For Compliance with Carbon Emission Reduction Obligations

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On June 13, 2013

In Environmental, International Law

By: Shaun Fluker

PDF Version: Raising Questions About the Use of an Offset For Compliance with Carbon Emission Reduction Obligations

Case Commented On: Citizen’s Climate Lobby and Our Children’s Earth Foundation v California Air Resources Board (Superior Court of California, County of San Francisco, January 25, 2013, Case number CGC-2-519544)

This comment examines a recent judicial review decision by the Superior Court of California dismissing a challenge to the legality of the carbon emission offset regime established by California’s Air Resources Board (CARB). The petitioners in this case alleged the offset regime does not comply with its parent statute – the Global Warming Solutions Act of 2006, (California, AB 32) – and thus the CARB does not have legal authority to implement it. The essence of the claim was that a carbon emission offset created by the CARB regime would not necessarily represent the real and demonstrable carbon emission reduction required by the legislation. The Court ruled the offset regime created and administered by the CARB complies with the legislation.

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Alberta Energy Regulator: Split Jurisdiction Implications for Crown Consultation?

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On June 11, 2013

In Aboriginal, Energy

PDF version: Alberta Energy Regulator: Split Jurisdiction Implications for Crown Consultation?

Legislation considered: Responsible Energy Development Act, SA 2012, c 17; Designation of Constitutional Decision Makers Regulation, AR 69/2006

The new single Alberta Energy Regulator under the Responsible Energy Development Act, has been proclaimed in force in part (OC 163/2013) on June 4, 2013 to be effective June 17, 2013. Section 21 of that Act, in force on June 17, 2013, states that the Alberta Energy Regulator has no jurisdiction to assess the adequacy of Crown consultation:

Crown consultation with aboriginal peoples

21. The Regulator has no jurisdiction with respect to assessing the adequacy of Crown consultation associated with the rights of aboriginal peoples as recognized and affirmed under Part II of the Constitution Act, 1982.

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Roundtable on Quebec v A: Searching for Clarity on Equality

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On June 5, 2013

In Constitutional, Human Rights

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: Roundtable on Quebec v A: Searching for Clarity on Equality

Case Commented On: Quebec (Attorney General) v A, 2013 SCC 5 (case summary available here)

On May 13, 2013, we led the Faculty of Law’s first roundtable discussion of the summer on the Supreme Court’s most recent equality rights decision, Quebec (Attorney General) v A. Participants included faculty members, researchers from the Alberta Civil Liberties Research Centre and Alberta Law Reform Institute, and a number of JD and graduate students. Coincidentally, a virtual roundtable on the case is also ongoing at the moment, moderated by Sonia Lawrence, Director of Osgoode Hall’s Institute for Feminist Legal Studies (IFLS), with participation from law profs Robert Leckey, Hester Lessard, Bruce Ryder, and Margot Young. Many of the issues raised in the IFLS discussion were also debated in our roundtable.

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