ABLawg - - Page 293

Decision commented on: 321665 Alberta Ltd. v Husky Oil Operations Ltd, 2013 ABCA 221.

I suspect that there will be sighs of relief in the board rooms of downtown Calgary (or at least so soon as the occupants of those office towers are able to think about something other than the consequences of the current disastrous flooding) as a result of this decision in which the Alberta Court of Appeal unanimously allowed an appeal on a civil action based on sections 36 and 45 of the federal Competition Act, RSC 1985, c C-34 (as they stood at the relevant time) which had been successful at trial.

The Indian Residential School Settlement: Is Reconciliation Possible?

By Kathleen Mahoney

On June 26, 2013

In Aboriginal

PDF Version: The Indian Residential School Settlement: Is Reconciliation Possible?

Matter considered: The Indian Residential School Settlement

Being the Chief Negotiator for the Assembly of First Nations instigating and completing the Indian Residential School Settlement Agreement, cannot be described in words. The round- the- clock sessions with upwards of 80 lawyers, the meetings from coast to coast to coast with survivors, the conferences with experts from around the world, negotiations with the Vatican and the Prime Minister’s office – it doesn’t get much better than that for a human rights lawyer and law professor. Out of this amazing odyssey came the largest, most comprehensive and unique class action judgment in Canadian legal history. The question now is, to what effect? Can we expect reconciliation with the First Nations of Canada? Will the wounds finally heal? These are the questions up for discussion in this blog.

The Alberta Court of Appeal and the Test for Discrimination

By Jennifer Koshan

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

By Jennifer Koshan

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.

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

By Shaun Fluker

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.

Competition Law and the Upstream Oil and Gas Industry

The Indian Residential School Settlement: Is Reconciliation Possible?

The Alberta Court of Appeal and the Test for Discrimination

160 Girls Litigation Successful in Kenya

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