New Rules of Court Interpreted: Rule 6.37 and Notice to Admit

Case commented on: Andriuk v. Merrill Lynch Canada Inc., 2011 ABQB 59

Andriuk filed a statement of claim against Merrill Lynch pursuant to the Class Proceedings Act, S.A. 2003, c. C-16.5. Merrill Lynch had indicated that it would not provide a statement of defence until after the certification hearing and Andriuk did not object. Andriuk then served Merrill Lynch with a Notice to Admit Facts under the former Rule 230. Merrill Lynch claimed the Notice to Admit Facts (called a “Notice to Admit” under New Rule 6.37) was premature and otherwise improper and brought an application to strike it. Madam Justice Sheilah Martin dismissed Merrill Lynch’s application.

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Issue of Timing Arises Again: Alberta Court of Queen’s Bench Quashes Decision of Information and Privacy Commissioner for Reasonable Apprehension of Bias

PDF version: Issue of Timing Arises Again: Alberta Court of Queen’s Bench Quashes Decision of Information and Privacy Commissioner for Reasonable Apprehension of Bias 

Case considered: Alberta Teachers’ Association v Alberta (Information and Privacy Commissioner), 2011 ABQB 19 (“Wright“)

Once again, the issue of timing in the investigation of privacy complaints has been raised. In Alberta Teachers’ Association v Alberta (Information and Privacy Commissioner) (“Wright“), pending litigation on the issue of timing currently before the Supreme Court of Canada (“SCC”) prevented the Alberta Court of Queen’s Bench from dealing with the timing issue; see the “Supreme Court hears Alberta Privacy Case” post commenting on ATA News v Information and Privacy Commissioner, 2010 ABCA 26 (“ATA News“). Nevertheless, since timing was raised again as an issue in Wright, the outcome of the SCC decision in ATA News will be important.

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Court of Appeal grants relief from forfeiture in an oil and gas lease case

PDF version: Court of Appeal grants relief from forfeiture in an oil and gas lease case 

Case commented on: Canpar Holdings Ltd. v. Petrobank Energy and Resources Ltd., 2011 ABCA 62

The principal significance of this case is that it confirms that the Court may relieve against the forfeiture of an oil and gas lease that is terminated for cause (in this case failing to calculate and tender royalties as prescribed by the lease) – as opposed to termination in accordance with its own terms (e.g. for failure to drill or produce), in which case there can be no relief. In granting relief the Court signals that it will draw guidance from non-oil and gas cases dealing with relief from forfeiture. I think that this is the first reported decision in which the Court of Appeal has exercised its discretion to relieve against forfeiture in an oil and gas lease case.

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Mandatory Retirement Issue for Air Canada Pilots Has Taken Flight Again

PDF version: Mandatory Retirement Issue for Air Canada Pilots Has Taken Flight Again 

Case considered: Air Canada Pilots Association v Kelly, 2011 FC 120 (“Kelly“)

In 2009, the Canadian Human Rights Tribunal (“Tribunal”) ruled in favour of Robert (Neil) Kelly and George Vilven, two Air Canada Pilots who had challenged their mandatory retirement at age 60. See my post on “Pilot from Airdrie is Successful in Mandatory Retirement Case.” The Tribunal in that case – Vilven v Air Canada and Air Canada Pilots Association; Kelly v Air Canada and Air Canada Pilots Association, 2009 CHRT 24 (Vilven and Kelly) – ruled that the mandatory retirement provisions in the airline’s collective agreement with the Air Canada Pilot’s Association (“ACPA”) (as protected under s. 15(1)(c) of the Canadian Human Rights Act (“CHRA”)) violated the Canadian Charter of Rights and Freedoms (“Charter“) and could not be saved by s. 1 of the Charter. In 2011, the Federal Court agreed with the Tribunal’s decision on the Charter issue (see Kelly, paras. 50 to 351). In a decision on the remedy (2010 CHRT 27), the Tribunal ordered Air Canada to reinstate Kelly and Vilven and to compensate them for lost income. Continue reading →

The Saskatchewan Court of Appeal’s Marriage Commissioners Decision – The Never-Ending Fight for Human Rights of Same-Sex Couples

By: Melissa Luhtanen

PDF Version: The Saskatchewan Court of Appeal’s Marriage Commissioners Decision – The Never-Ending Fight for Human Rights of Same-Sex Couples

Case and Legislation Commented On: In the Matter of Marriage Commissioners Appointed under the Marriage Act, SS 1995, c M-4.1, 2011 SKCA 3; Marriage Act, RSA 2000, c M-5

The Saskatchewan Court of Appeal considered two proposed amendments to the Marriage Act, S.S. 1995, c. M-4.1. The Act legislates on the solemnization of marriage in Saskatchewan. It provides for specific religious officials and marriage commissioners to solemnize marriages. The Lieutenant Governor in Council in Saskatchewan sought the Court’s opinion on potentially amending the Marriage Act after complaints from marriage commissioners who said that solemnizing same-sex marriages breached their rights under s.2(a) of the Charter. Continue reading →