ABLawg

By: Jennifer Koshan

PDF Version: Another Take on Equality Rights by the Court of Appeal

Case Commented On: Cunningham v Alberta (Aboriginal Affairs and Northern Development), 2009 ABCA 239

In my recent post on Morrow v Zhang, 2009 ABCA 215, Some Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries, I noted that this case was the first opportunity for the Court of Appeal to apply section 15 of the Charter (the equality rights provision) since the Supreme Court of Canada’s landmark decision in R v Kapp, 2008 SCC 41. Only a couple of weeks later, a differently constituted Court of Appeal panel decided another section 15 case, and the analysis and outcome of the two cases are quite different. While I have a few quibbles with the Court’s decision in Cunningham v Alberta (Aboriginal Affairs and Northern Development), I believe it is a much better example of how section 15 of the Charter should be applied than is Morrow v Zhang.

More Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries

By Jonnette Watson Hamilton

On July 8, 2009

In Constitutional, Insurance Law

By: Jonnette Watson Hamilton

PDF Version: More Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries

Case Commented On: Morrow v Zhang, 2009 ABCA 215, overturning 2008 ABQB 98

In her post critiquing the Alberta Court of Appeal decision in Morrow v Zhang, Some Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries, Professor Jennifer Koshan asks, “Did the Court actually apply the new approach to section 15 of the Charter?” I would like to focus on that question and raise a few additional and related matters. I agree with Professor Koshan that the Court of Appeal seems to apply the old test from Law v Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 in its section 15(1) analysis in Morrow v Zhang. However, they do so without a focus on human dignity, which seems to result in the application of the Law test in a very formalistic way, rather than substantively. Does it matter? I think that the use of the original Law test, complete with a focus on human dignity, could have rather easily resulted in an affirmation of the trial judge’s decision. Alternatively, and perhaps more importantly, I think that an application of the test in R v Kapp, 2008 SCC 41, could also have resulted in an affirmation of the trial judge’s decision had that application really focused on stereotyping.

Court of Appeal Agrees that Severing a Joint Tenancy Requires More than Intention

By Nickie Nikolaou

On July 6, 2009

In Property, Wills and Estates

Case considered: Felske Estate v. Donszelmann, 2009 ABCA 209

PDF version: Court of Appeal Agrees that Severing a Joint Tenancy Requires More than Intention

In a previous post, I concluded that the Court of Queen’s Bench correctly dismissed an application brought by a neighbor of Mrs. Felske for a declaration that he was entitled to half of her farm upon her death. The Court of Appeal has agreed and has dismissed the neighbor’s appeal.

Is a Bison Squeeze Real or Personal Property? A Question of Law or a Question of Interpretation?

By Jonnette Watson Hamilton

On July 2, 2009

In Property

Case considered: Olson v. Angermeier, 2009 ABQB 356

PDF version: Is a Bison Squeeze Real or Personal Property? A Question of Law or a Question of Interpretation?

One of the first things a law student in first year property law class learns is the distinction between real property and personal property, the most basic of divisions in this area of law. The distinction is usually taught with reference to a case or two about the law of fixtures. The law of fixtures is the area of law that encompasses the legal rules that apply to transform personal property to real property and vice versa. There are hundreds of cases concerned with classifying something as real or personal property. The controversies usually arise in connection with the sale of real property. For example, is the dishwasher real or personal property? Does it go with the house on the sale of the real property or can the seller move it out with his or her other personal property? This type of question was the issue in Olson v. Angermeier. Was a bison squeeze a chattel (personal property) or a fixture (real property)? Answering that question would determine whether or not the bison squeeze was part of the sale of the NE¼-9-62-5-W5th.

Lame duck constitutional arguments: a new twist on Syncrude’s Tailings Pond Debacle

By Jocelyn Stacey

On June 30, 2009

In Environmental

PDF version: Lame duck constitutional arguments: a new twist on Syncrude’s Tailings Pond Debacle

The dead duck saga continues. In a previous post on ABlawg (R. v. Syncrude Canada: The Case of The 500 Dead Ducks), Shaun Fluker left off with the words “stay tuned”. Stay tuned, indeed. As it turns out, Syncrude Canada is contemplating making this relatively mundane regulatory (albeit environmentally significant) offence a little more interesting.