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Supreme Court of Canada hears appeal in Alberta v. Elder Advocates of Alberta Society

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On January 27, 2011

In Civil Procedure, Supreme Court of Canada

Case Commented On: Her Majesty the Queen in Right of the Province of Alberta v. Elder Advocates of Alberta Society et al., 2009 ABCA 403, appeal heard January 27, 2011

On January 27, 2011, the Supreme Court of Canada heard arguments in the case of Alberta v. Elder Advocates of Alberta Society et al. The case arose after the provincial Health Minister issued a directive in August 1991 indicating that the operators of long term care facilities in Alberta were to charge and collect the maximum accommodation charge permitted by s. 3(1) of the Nursing Homes Operation Regulation, A.R. 258/85. The plaintiffs sought to certify class action proceedings under the Class Proceedings Act, R.S.A. 2000, c. C-16.5, on behalf of approximately 14,000 long term care facility residents. The plaintiffs argued that the residents had been overcharged because the Crown and Regional Health Authorities did not ensure that the monies paid by them for the “accommodation charge” were used solely for accommodation and meals. The class proceedings were certified by Justice Sheila Greckol of the Alberta Court of Queen’s Bench (see 2008 ABQB 490) and this decision was upheld by the Alberta Court of Appeal (2009 ABCA 403, per Justices Conrad, Berger and Rowbotham). The overall issue in the case is whether class proceedings were properly certified, which in turn raises issues related to the underlying cause of action. The Supreme Court described those issues as follows: What is the test for imposing a fiduciary duty upon the Crown outside the Aboriginal context? Does the province owe a private law duty to “exercise all reasonable care, skill and diligence with respect to the administration, monitoring and auditing of the public funding provided to operators and the accommodation charges paid to operators by residents”? If the province does not owe a fiduciary duty or duty of care with respect to setting the maximum accommodation charge, can dismissal of the common law claims against the province be avoided by pleading unjust enrichment? Do the pleadings support a Charter damages claim? Should a class action be certified based on any surviving cause of action? The Supreme Court reserved its decision in the case.

The problem of costs at the Energy Resources Conservation Board: Leave to appeal granted in Kelly #4

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On January 26, 2011

In Environmental, Intervenors and Standing

PDF version: The problem of costs at the Energy Resources Conservation Board: Leave to appeal granted in Kelly #4 

Case considered: Kelly v. Alberta (Energy Resources Conservation Board), 2011 ABCA 19

The Court of Appeal has granted leave on a matter that I believe has the potential to produce one of the most significant decisions from the Court in some time concerning energy and environmental law in Alberta. This outcome is largely due to the persistence of Susan Kelly and many other residents, along with their counsel Jennifer Klimek, who have appeared in front of the Court numerous times in recent years seeking leave to appeal decisions by the Energy Resources Conservation Board (ERCB) that issue sour gas well licences near their homes in the Drayton Valley region southwest of Edmonton. Kelly et al have been very successful in obtaining the Court’s permission to appeal several ERCB decisions, and one result of their efforts is that the law governing the ERCB is changing. (See my previous ABlawg posts The Problem of Locus Standi at the Energy Resources Conservation Board: A Diceyan Solution and The Problem of Locus Standi at the Energy Resources Conservation Board: Leave to appeal granted in Kelly #2.

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Alberta Court of Appeal Decides Syncrude not an Employer under Human Rights Legislation

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On January 24, 2011

In Human Rights, Labour/Employment

PDF version: Alberta Court of Appeal Decides Syncrude not an Employer under Human Rights Legislation 

Case commented on: Lockerbie & Hole Industrial Inc v Alberta (Human Rights and Citizenship Commission, Director), 2011 ABCA 3

It is perhaps ironic that in a decision where the Human Rights Panel found that there had been no discrimination, one of the respondents used the occasion to appeal the finding that it was an employer under the (then) Alberta Human Rights, Citizenship and Multiculturalism Act (currently Alberta Human Rights Act, RSA 2000, c A-25-5), and therefore subject to the Act. Since the structure of the “employment” relationship at issue in this case is commonly practiced in Alberta, the Court of Appeal ruling on whether Syncrude was an employer could have a significant impact on Alberta human rights law.

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The Court of Appeal confirms that the word “producible” does not mean actual production

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On January 20, 2011

In Oil & Gas

PDF version: The Court of Appeal confirms that the word “producible” does not mean actual production 

Case considered: Bearspaw Petroleum Ltd v Encana Corporation, 2011 ABCA 7

The Court of Appeal in a memorandum of judgement (Rowbotham, McDonald and Bielby JJA) has confirmed Justice McMahon’s decision at trial which I blogged here.  See that post for a summary of the facts.

There were two issues in this case: (1) the proper interpretation of the habendum (duration) of a petroleum and natural gas lease, and (2) the existence of a covenant to market. The Court finds for the lessee (Bearspaw) on both grounds.

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The Saskatchewan Court of Appeal’s Marriage Commissioners Decision – What are the Implications for Alberta?

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On January 18, 2011

In Constitutional, Family

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 ruled last week on the constitutionality of proposed amendments to Saskatchewan’s Marriage Act, S.S. 1995, c.M-41, which would have allowed marriage commissioners to decline to perform marriage ceremonies that were contrary to their religious beliefs. The Court found that the proposed amendments violated the equality rights of gays and lesbians under section 15 of the Canadian Charter of Rights and Freedoms, and that this violation could not be justified under section 1 of the Charter because the Saskatchewan government had not minimally impaired the rights of same sex couples in the way it had set out the proposed scheme for religious exemptions.

What are the implications of the decision in Alberta? Surprisingly, the Marriage Act, R.S.A. 2000, c. M-5, still defines marriage as “marriage between a man and a woman” (section 1(c); see also the preamble), even though in 2004 the Supreme Court confirmed that the power to determine whether same sex couples have the capacity to marry belongs to the federal government under section 91(26) of the Constitution Act 1867 (Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698). While the Alberta government tried to shield the law by using section 33 of the Charter, the notwithstanding clause, that clause could not have saved the invalidity of the Act on division of powers grounds, and the relevant section of the Marriage Act expired in 2005 in any event. Furthermore, Alberta marriage commissioners have been performing same sex marriages in this province since 2005 in spite of the heteronormative definition in the Marriage Act. An attempt to bring in a law similar to that ruled upon in the Saskatchewan case was defeated when Bill 208, the Protection of Fundamental Freedoms (Marriage) Statutes Amendment Act, 2006, was blocked by members of Alberta’s opposition parties. This Bill would have amended the Marriage Act and human rights legislation to protect marriage commissioners who refused to perform same sex marriages on religious or moral grounds. On the face of it then, marriage commissioners in Alberta do not have the sort of opting out protection that was considered in the Saskatchewan case.

Melissa Luhtanen of the Alberta Civil Liberties Research Centre will be providing further analysis of the Saskatchewan case and its implications in Alberta on ABlawg; readers may also be interested in this post on the case by Denise Réaume on the Women’s Court of Canada blog.

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