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Supreme Court of Canada May Finally Clear up Issue of “Employment” in Human Rights Cases

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On November 4, 2013

In Human Rights, Labour/Employment

PDF Version: Supreme Court of Canada May Finally Clear up Issue of “Employment” in Human Rights Cases

Case commented on: Fasken Martineau DuMoulin LLP v British Columbia (Human Rights Tribunal) 2012 BCCA 313; leave to appeal granted, Michael McCormick v Fasken Martineau Dumoulin LLP, 2013 CanLII 11313 (SCC).

I have written a number of posts (see for example here and here) about the narrowing interpretation given to “employment” in discrimination cases under the Alberta Human Rights Act, RSA 2000 c A-25.5. Since the Act protects individuals from discrimination in five areas (employment, notices, tenancy, services and accommodation, and trade unions), on several grounds (e.g., age, gender, race, colour, place of origin, ancestry, source of income, religious beliefs, family status, marital status, physical disability, mental disability, or sexual orientation), if the discrimination does not occur in an area defined as “employment” (or any of the other four areas) then the complainant cannot obtain a remedy under the Act. Consequently, one way that respondents seek to counter human rights complaints is by establishing that they do not fit within the current definition of “employment”, and hence the Commission does not have jurisdiction to deal with the complaint. As noted previously, the narrowing interpretation of “employment” seems to counter the overarching educational and remedial purpose of human rights law, and the “large and liberal interpretation” that is supposed to be given to provisions in the Act.

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“Wide and Deep”: Implications of the SCC’s Castonguay decision on the Interpretation of Environmental Protection Legislation, Fulfilling Reporting Requirements, Reporting Authorities’ Obligations and the Precautionary Principle

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On November 1, 2013

In Environmental

PDF Version: “Wide and Deep”: Implications of the SCC’s Castonguay decision on the Interpretation of Environmental Protection Legislation, Fulfilling Reporting Requirements, Reporting Authorities’ Obligations and the Precautionary Principle

Case commented on: Castonguay Blasting Ltd. v Ontario (Environment), 2013 SCC 52

On October 17, 2013, in Castonguay Blasting Ltd. v Ontario (Environment), 2013 SCC 52 [Castonguay] the Supreme Court of Canada dismissed the appeal of Castonguay Blasting Ltd. upholding a conviction under section 15(1) of the Ontario Environmental Protection Act, RSO 1990, c E 19 (EPA), for failing to report the discharge of a contaminant.  As Justice Abella, writing for a unanimous Court, states at the outset of her judgment, the Court was asked to engage in an interpretative exercise to determine whether, on these facts, the reporting requirement was triggered.  At the end of the day, the Supreme Court of Canada considered this a relatively straight forward exercise, in that “there is clarity both of legislative purpose and language:  the Ministry of the Environment must be notified when there has been a discharge of a contaminant out of the normal course of events without waiting for proof that the natural environment has, in fact been impaired.  In other words:  when in doubt, report.” (at para 2).

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Lawyers Who Write Bogus Demand Letters: The Freemen in Our Midst?

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On October 30, 2013

In Ethics and the Legal Profession, Vexatious Litigants

PDF Version: Lawyers Who Write Bogus Demand Letters: The Freemen in Our Midst?

The phenomenon of organized pseudo-legal commercial arguments (OPCA) being used to advance claims not recognized by law has received a great deal of attention in the past year.  From last year’s judgment of Associate Chief Justice Rooke in Meads v Meads, 2012 ABQB 571 [Meads], to the recent occupation of a Calgary apartment by a Freeman-of-the-land who claimed it as an “embassy”, OPCA litigants have disrupted the functioning of the legal system while attracting public attention and interest. In this column I argue that the defining indicia of OPCA are also present in the activities of some lawyers; specifically, in lawyers sending out demand letters based on spurious claims in the hope of extracting funds because of the fear and ignorance of those who receive them.  I will further argue that our failure to address that conduct undermines our moral authority to challenge OPCA litigants and, worse, may contribute to a cultural climate of skepticism about the law’s legitimacy and authority, which helps OPCA to flourish.

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Constitutional Questions and the Alberta Energy Regulator

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On October 24, 2013

In Aboriginal, Administrative Law, Constitutional

PDF Version: Constitutional Questions and the Alberta Energy Regulator

Decisions commented on: (1) ERCB Letter Decision, April 18, 2013, re Fort McKay First Nation, Notice of Question of Constitutional Law; (2) ERCB Letter decision, May 23, 2013, reasons for decision in relation to Fort McKay First Nation, Notice of Question of Constitutional Law; (3) 2013 ABAER 014, Dover Operating Corporation, Application for a Bitumen Recovery Scheme Athabasca Oil Sands Area, August 6, 2013; and (4) Fort McKay First Nation v Alberta Energy Regulator, 2013 ABCA 355

The Alberta Court of Appeal has granted leave to the Fort McKay First Nation (FMFN) to appeal two questions of law or jurisdiction in relation to decisions made by the Energy Resources Conservation Board (ERCB) (the predecessor to the Alberta Energy Regulator (AER)) and the AER itself in approving, subject to the further approval of the Lieutenant Governor in Council, Dover’s application for a major steam assisted gravity drainage (SAGD) bitumen recovery project. The two questions on which leave was granted are as follows:

(a) Whether the Tribunal erred in law or jurisdiction by finding that the question whether approval of the project would constitute a meaningful diminution of the Treaty rights of the Fort McKay First Nation and therefore be beyond provincial competence was not a question of constitutional law as defined in the Administrative Procedures and Jurisdiction Act;

(b) Whether the Tribunal erred in law or jurisdiction by finding that it had no jurisdiction to consider constitutional issues other than those defined as “questions of constitutional law” in the Administrative Procedures and Jurisdiction Act.

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Disclosure of Foreign Assets in Matrimonial Property Actions

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On October 22, 2013

In Property

PDF Version: Disclosure of Foreign Assets in Matrimonial Property Actions

Case commented on: Chikonyora v Chikonyora, 2013 ABCA 320

Had the decision of the Court of Queen’s Bench been allowed to stand in this case, the division of matrimonial property could have become much more difficult for many divorcing spouses in Alberta. They might have had to sue in every jurisdiction in which they held property, whether that was in a province other than Alberta or a country other than Canada. The lower court decision had held that spouses did not have to disclose information about their assets held outside Alberta because the Alberta superior courts had no jurisdiction over those assets. Fortunately an appeal was taken to the Alberta Court of Appeal, which applied the relevant provisions of the Matrimonial Property Act, RSA 2000 c M-8 (MPA), and required disclosure of assets held outside Alberta. In addition to the “potential crisis averted” aspect of this case, it is also an example of how frustrating access to justice can be for self-represented litigants.

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