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Rasouli v Sunnybrook Health Services Centre: End of Life matters reach the Supreme Court of Canada

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On January 19, 2012

In Health Law

PDF version: Rasouli v Sunnybrook Health Services Centre: End of Life matters reach the Supreme Court of Canada

Case Considered: Rasouli v Sunnybrook Health Services Centre, 2011 ONCA 482

This case involves the issue of consent under Ontario’s Health Care Consent Act, 1996, SO, 1996 c 2, Schedule “A” (the “Act”). While no similar law exists in Alberta, the case, through its discussion of the conflict between doctors’ ability to determine treatment, and the patient’s ability to refuse, raises issues that extend beyond the legislative boundaries of Ontario.

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Non-Biological Father from Separated Same-Sex Couple Declared a Legal Parent

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On January 12, 2012

In Constitutional, Family

By: Melissa Luhtanen

PDF Version: Non-biological Father from Separated Same-Sex Couple Declared a Legal Parent 

Case Commented On: D.W.H. v D.J.R., 2011 ABQB 608

Background

Mr. H. and Mr. R. lived together as partners and planned to have a baby through a surrogate mother. Mr. R’s sperm was used to conceive the baby, S, with Ms. D as the surrogate mother. Ms. D lived with the two fathers and Mr. R when the baby was first born. After that, the baby lived with the two male partners and visited the surrogate mother once or twice a week. The couple separated when S was 3 years old and Mr. H. applied for access. Madame Justice Eidsvik in D.W.H. v D.J.R., 2009 ABQB 438 found that the child had a mother (who was the surrogate), but no father who could be recognized in law (see my previous post “Gay fathers not seen as a parental unit under the Family Law Act“). Mr. H was given access until November 2007 when, based on a parenting assessment, contact was discontinued. Mr. H.’s relationship with S has since almost completely ceased. Mr. H. applied for guardianship but his application was opposed.

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“The proof of the pudding is in the eating” that litigation is not the best way to quantify interim costs.

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On January 11, 2012

In Access to Justice, Civil Procedure, Constitutional

PDF version: “The proof of the pudding is in the eating” that litigation is not the best way to quantify interim costs.

Case considered: R v Caron, 2011 ABCA 385

Gilles Caron has been a very present figure before the Alberta courts since ABlawg began posting comments in late 2007 (see here). Caron is challenging the constitutionality of Alberta’s legislation on the basis that the province’s laws are not enacted in both English and French. That issue is now before the Court of Appeal (see 2010 ABCA 343 and here). Caron’s litigation has also involved an access to justice component in that he has pursued interim costs awards to fund his litigation. That issue went to the Supreme Court of Canada, which ruled that the Alberta government was required to fund Caron’s language rights challenge (see 2011 SCC 5, [2011] 1 SCR 78 and here). The lingering question was, to what extent was such funding required? That issue was recently considered by the Alberta Court of Appeal. In a decision written by Justice Jean Côté, Caron was awarded far less funding than he sought for the Court of Appeal litigation, and in the form of a loan rather than a grant (see 2011 ABCA 385).

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Giving deference to the adequacy of reasons

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On December 28, 2011

In Administrative Law

PDF version: Giving deference to the adequacy of reasons

Case considered: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62

Earlier this month the Supreme Court of Canada issued its decision in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, upholding the ruling of an arbitrator concerning vacation entitlements in a labour dispute. This unanimous Supreme Court of Canada decision written by Madam Justice Abella has changed the law in Alberta governing judicial review for adequacy of reasons provided by an administrative decision-maker. For earlier commentary and background for this post, readers should review my December 2010 ABlawg entitled “What is the applicable standard of review in assessing the adequacy of reasons?” The issue concerns the measure of judicial deference owed to an administrative decision-maker in reviewing the adequacy of reasons given for decision.

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Blow over? Think twice before blaming it on the flu.

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On December 21, 2011

In Criminal

PDF version: Blow over? Think twice before blaming it on the flu. 

Decision considered: R v Kasim, 2011 ABCA 236.

The Respondent claimed to have drunk no more than 3 or 4 beers between 7 and 8:30 p.m. on September 18, 2008. He was behind the wheel soon after. At about 9 p.m. he complied with a lawful demand for an Intoxilyzer breath sample and the two samples he provided measured 100 mg percent, or 20 mg percent over the legal maximum of 80 mg of alcohol in 100 millilitres of blood. At trial the Respondent testified that his body temperature was elevated as he was suffering from the flu or a fever that day. This testimony was corroborated, and the trial judge accepted it. The Respondent’s expert witness, Dr. Malicky, testified that given the Respondent’s elimination rate, and an elevated body temperature, “his blood alcohol level at the time should have been approximately 36 mg percent if he had three containers of beer, and 60 mg percent if he had four containers of beer” (R v Kasim, [2010] AJ No 969, para 64). The Respondent argued that the test results were therefore askew and that raised a reasonable doubt as to whether he the violated the Criminal Code (RSC, 1985, c C-46). Both the Provincial Court judge and Queen’s Bench summary conviction appeal judge found for the Respondent. By consent order the Crown appealed to the Court of Appeal on a single issue: “The summary conviction appeal judge erred in law in her interpretation of s. 258(1) (c) of the Criminal Code” (CA decision at para 7). These Criminal Code provisions set out presumptions that subject to certain time and other limitations Intoxilyzer readings of blood alcohol are accurate. The provisions also limit permissible challenges to the presumed accuracy.

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