ABLawg

For the Second Time, Federal Court of Canada Judge Sends Mandatory Retirement Case Back to Canadian Human Rights Tribunal

On June 2, 2011

PDF version: For the Second Time, Federal Court of Canada Judge Sends Mandatory Retirement Case Back to Canadian Human Rights Tribunal

Case considered: Air Canada Pilots Association v Kelly and Vilven, 2011 FC 120 (“Vilven and Kelly #2“)

Recently Justice Anne Mactavish of the Federal Court sent Air Canada Pilots Association v Kelly and Vilven, 2011 FC 120 (“Vilven and Kelly #2“), a mandatory retirement case, back to the Canadian Human Rights Tribunal for the second time. I have described the earlier cases here and here.

Previously, the Federal Court found that the Tribunal was in error when it ruled that section 15(1)(c) Canadian Human Rights Act, RSC 1985, c.H-6 (CHRA), which allows mandatory retirement, was not age-based discrimination. The Tribunal determined that section 15(1)(c) was age-based discrimination under the Canadian Charter of Rights and Freedoms (Charter), and that it could not be saved by Charter section 1. Second, the Tribunal held that even if section 15(1)(c) were saved by Charter section 1, Air Canada’s mandatory retirement policy did not come within the exception in the CHRA that allows (age) discrimination where it is a bona fide occupational requirement (BFOR).

Saskatchewan oil and gas land titles case confirms the basic principles: a volunteer cannot take the benefit of a registrar’s error

By Nigel Bankes

On May 31, 2011

In Property

PDF version: Saskatchewan oil and gas land titles case confirms the basic principles: a volunteer cannot take the benefit of a registrar’s error

Case commented on: Ronald Olney (Executor of the estate of Kenneth Olney) v Great-West Life Assurance Company and the Registrar of Land Titles, 2011 SKQB 186

This case applies basic Torrens title law to resolve the competing claims of a mineral owner whose title was cancelled by the Registrar’s error and the claim of the current registered owner. It would have been a nice problem for a first year property exam except that it is a tad too easy – just a straightforward application of Canadian Pacific Railway Co. v Turta, [1954] SCR 427 that any first year property law student should have nailed!

Perennial Problem of Section 8 of the Interest Act

By Jonnette Watson Hamilton

On May 27, 2011

In Property

PDF version: Perennial Problem of Section 8 of the Interest Act

Case considered: Equitable Trust Co. v. Lougheed Block Inc., 2011 ABQB 193

This is one of several recent cases concerning the Lougheed Building at 604 – 1st Street SW in Calgary. The issue in this particular case was whether section 8 of the Interest Act, R.S.C. 1985, c. I-15, rendered mortgage terms providing for interest rate increases and administrative fees on default and in the final month of the mortgage unenforceable. Section 8 prohibits penalties for non-performance on loans secured by mortgages and is a statutory version of a long-standing equitable rule. This decision is of interest because the Master in Chambers, Judith Hanebury, adopts a limiting approach to section 8 which was rejected by the British Columbia Court of Appeal and because the mortgaged building, the Lougheed Building, is of historic interest. (The Lougheed Building has been designated a Historic Resource at both the municipal and provincial levels and was recently restored. Its heritage value lies in its representation of Calgary’s tremendous commercial growth prior to World War One; it is also an excellent example of the imposing Chicago Style of commercial architecture. For photos and details of the restoration, see the Canada’s Historic Places web site).

The Alberta Law Reform Institute (ALRI) launches its new website: a valuable source for researching the law of Alberta

By Carol Burgess

On May 25, 2011

In Blogs and Websites, Legal Research

PDF version: The Alberta Law Reform Institute (ALRI) launches its new website: a valuable source for researching the law of Alberta

Website commented on: The Alberta Law Reform Institute (ALRI), http://www.alri.ualberta.ca/

The Alberta Law Reform Institute (ALRI) is the official law reform agency of the province of Alberta. It provides independent comprehensive advice to the Government of Alberta and other agencies. Lawyers and researchers will be interested to learn that ALRI has launched its new website. You might want to take a moment to click on the http://http://www.alri.ualberta.ca/ site and familiarize yourself with the wealth of information that is available here including all of ALRI’s reports going back to its formation in 1967. Out of print reports are available in pdf format. The reports are organized on the website by subject matter and by report type: issues paper, consultation memoranda, reports for discussion and final reports. All of the material is fully searchable. ALRI will also provide hard copies of in print reports on request.

The Practice (not theory) of Avoiding Conflicts of Interest

By Alice Woolley

On May 24, 2011

In Ethics and the Legal Profession

PDF version: The Practice (not theory) of Avoiding Conflicts of Interest

Cases commented on: Novotny v. LePan, 2011 ABQB 205, R. v. Lewis, 2011 ABQB 227

As I have written about previously on this blog (e.g., here), the question of how disqualifying conflicts of interest should be identified has divided the profession and caused tension between it and the judiciary. The result has been not only dissensus, but also on occasion increasingly complicated ways of articulating when a conflict should be disqualifying, and when it should not be. The Canadian Bar Association’s Model Code of Professional Conduct, for example, has conflict of interest rules and commentaries that extend for some 27 pages (CBA Model Code).