ABLawg

What’s in a name? Construction Owners Association of Alberta and Construction Labour Relations – An Alberta Association Concerned about “Employer” in the Alberta Human Rights Act

On June 29, 2010

PDF version: What’s in a name? Construction Owners Association of Alberta and Construction Labour Relations – An Alberta Association Concerned about “Employer” in the Alberta Human Rights Act

Case considered: Lockerbie & Hole Industrial Inc. v. Alberta (Human Rights and Citizenship Commission), 2010 ABCA 184

It is fairly rare that two agencies not parties to an action would seek leave to intervene in a human rights appeal. I am not terribly surprised that the Alberta Human Rights Commission (formerly the Alberta Human Rights and Citizenship Commission) has appealed the 2009 Court of Queen’s Bench decision in Lockerbie & Hole Industrial Inc. v. Alberta (Human Rights and Citizenship Commission), 2009 ABQB 241. As I noted in my previous post on this case, the decision of Justice T.D. Clackson involving the interpretation of who is considered an “employer” under s. 7(1) of the Alberta Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14 (now Alberta Human Rights Act, R.S.A. 2000, c. A-25.5) appeared to be contrary to both existing case law and the spirit of “large and liberal” interpretation normally given to human rights legislation. Apparently, there are Albertan companies and associations who share an interest in the outcome of the appeal.

Innovative but controversial municipal bylaws survive challenges

By Arlene Kwasniak

On June 25, 2010

In Administrative Law, Municipal Law

PDF version: Innovative but controversial municipal bylaws survive challenges

Case considered: Keller v. Municipal District of Bighorn No. 8, 2010 ABQB 362

This case is significant in three regards. First it raises the thorny issue of standard of review regarding the reasonableness of a municipal bylaw under the Municipal Government Act (R.S.A. 2000, c. M-26) (MGA), given that the SCC in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 (Dunsmuir) collapsed the previous standard of review categories of patent unreasonableness and reasonableness into one category, reasonableness, and section 539 of the MGA that states that no municipal bylaw (or resolution) may be challenged on the ground that it is unreasonable. Second, it considers the validity of an innovative municipal land use management tool that is not specifically authorized by the MGA, thus shedding light on the breadth of municipal authority in carrying out its land use and development functions. Third, it is the first decision to consider the effect of the Alberta Land Stewardship Act, S.A. 2009, c. A-26.8 (ALSA). The case considers who may bring a challenge regarding alleged non-compliance with the ALSA, and whether the ALSA is retroactive.

Supreme Court of Canada Upholds Constitutionality of Publication Bans in Bail Hearings, Media Outlets Unhappy

By Linda McKay-Panos

On June 23, 2010

In Constitutional, Supreme Court of Canada

PDF version: Supreme Court of Canada Upholds Constitutionality of Publication Bans in Bail Hearings, Media Outlets Unhappy

Case Considered: Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, an appeal from the Courts of Appeal of Ontario (Toronto Star Newspapers Ltd. v. Canada, 2009 ONCA 59) and Alberta (R. v. White, 2008 ABCA 294).

The Supreme Court of Canada recently dealt with appeals from Ontario (Toronto Star Newspapers Ltd. v. Canada) and Alberta (R. v. White) wherein several media outlets challenged the constitutionality of s. 517 of the Criminal Code, R.S.C. 1985, c.C-46, which sets out when judges must impose a mandatory publication ban for evidence heard in bail proceedings. In the White case, the Alberta Court of Appeal had determined that while Criminal Code s. 517 violates freedom of expression under Charter s. 2(b), it can nevertheless be saved by Charter s. 1 as reasonable and justifiable in a free and democratic society (see my previous post on White).

The True Bright Line Conflicts Rule

By Alice Woolley

On June 22, 2010

In Ethics and the Legal Profession

PDF version: The True Bright Line Conflicts Rule

Case considered: Kovac v. Opus Building Corp., 2010 ABQB 366

That a “lawyer must not represent opposing parties to a dispute” (Alberta Code of Professional Conduct, Ch. 6, Rule 1) may be the most obvious, best understood and least frequently violated rule on conflicts of interest. Sometimes lawyers have problems when a joint representation properly undertaken with consent, develops unanticipatedly into a dispute. One cannot readily imagine, however, circumstances in which a lawyer would file a statement of claim that seeks relief for a party, and from a party, both at the same time.

The case of the overbilling doctor Part II: The zero-sum game of enhancing administrative legitimacy?

By Shaun Fluker

On June 17, 2010

In Administrative Law

PDF: The case of the overbilling doctor Part II: The zero-sum game of enhancing administrative legitimacy?

Case considered: Searles v. Alberta (Health and Wellness), 2010 ABQB 157

This comment relates to an earlier post of mine back in June 2008 concerning the reassessment by the Minister of Health and Wellness on the billings of Dr. Gordon Searles, and the successful judicial review application by Searles in the Court of Queen’s Bench wherein Justice Burrows set aside the Minister’s reassessment because he found the process exhibited a reasonable apprehension of bias (Searles No. 1). (See Money attracts procedural fairness: the case of the overbilling doctor for necessary background to this discussion.) Subsequent to that judicial review the Minister recommenced the assessment process using a new delegate, and in September 2008 the Minister’s delegate advised Searles that he was once again reassessed in the amount of $985,777.09. Searles applied for judicial review of this second reassessment, once again asserting a reasonable apprehension of bias on the part of the Minister’s delegate (Searles No. 2).