ABLawg

On November 13, 2008, Justices Louis LeBel, Marie Deschamps and Louise Charron of the Supreme Court of Canada denied leave to appeal to Grace Johnston in a case involving her right to have a say in the disinterment of her son’s remains. No reasons were provided for the Supreme Court’s decision, although it is interesting to note that no costs were awarded against Grace Johnston for pursuing the leave to appeal application. As noted in previous posts on this case, (https://ablawg.ca/2008/01/12/leave-to-intervene-denied-to-metis-nation-in-case-involving-disinterment-of-rcmp/#more-44 and https://ablawg.ca/2008/06/07/disinterment-of-rcmp-officer-may-proceed-despite-parents%E2%80%99-wishes/#more-153), the Alberta Courts upheld the decision of the Director of Vital Statistics under the Cemeteries Act, R.S.A. 2000, c. C-3, to permit disinterment of Constable Leo Johnston’s remains on the application of his widow Kelly Barsness. Constable Johnston was one of four RCMP officers killed in the line of duty near Mayerthorpe, Alberta in March 2005, and was originally buried in his home town of Lac La Biche. Ms. Barsness’s wish to have Constable Johnston’s remains moved to the special RCMP Cemetery in Saskatchewan can now proceed, in spite of the objections of Grace Johnston, her husband Ronald, and members of the Métis community who were denied any standing in the case.

Recent Developments in the Black Bear Crossing Dispute

By Jennifer Koshan

On November 17, 2008

In Aboriginal, Constitutional, Human Rights, Supreme Court of Canada

Cases considered: Tsuu T’ina Nation v. Bearchief, 2008 CanLII 55966 (S.C.C.)

PDF Version: Recent Developments in the Black Bear Crossing Dispute

As noted in my previous post on Tsuu T’ina Nation v. Bearchief, the Tsuu T’ina Nation was effectively prevented from enforcing an eviction notice against residents of Black Bear Crossing (BBC) whose band membership was disputed, until such time as the membership of the residents was resolved. The Tsuu T’ina’s application for leave to appeal to the Supreme Court of Canada was denied by Chief Justice Beverley McLachlin and Justices Morris Fish and Marshall Rothstein on October 30, 2008 (with costs against the Tsuu T’ina Nation).

Can a Court of Queen’s Bench judgment that contains no law be considered law itself?

By Jonnette Watson Hamilton

On November 15, 2008

In Property

Cases Considered: B.H. v. E.J., 2008 ABQB 650

PDF Version: Can a Court of Queen’s Bench judgment that contains no law be considered law itself?

Title to a residential property in Edmonton was registered in the names of the plaintiff, B.H., and the defendant, E.J., as to each an undivided one-half interest as tenants in common. The property seemed to be up for sale and the question before the court was whether or not B.H. was entitled to any of the proceeds of sale. Her name was on the title, but did that mean B.H. had an interest in the Edmonton house which would entitle her to one-half of the sale proceeds? E.J. alleged that B.H.’s name was only placed on the title because she agreed to co-sign a mortgage for E.J. and that B.H. had no right to a portion of the sale proceeds. Mr. Justice James Langston agreed with the defendant, E.J., and ordered that all of the net proceeds of the sale of the property be paid to the defendant or, in the alternative, that the plaintiff transfer her undivided one-half interest to the defendant for $1.00. Remarkably, Justice Langston did so without referring to any legal authority whatsoever.

Torts, Tasers and Causation

By Greg Hagen

On November 13, 2008

In Torts

Cases Considered: Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333; Athey v. Leonati, [1996] 3 S.C.R. 458 Snell v. Farrell, [1990] 2 S.C.R. 311.

PDF Version: Torts, Tasers and Causation

The recent deaths that occurred in Calgary and Edmonton following the use of a conducted energy weapon (generically referred to here as a “taser”) have once again raised the issue of the appropriate use of tasers in policing. In fact, there have been at least 20 deaths in Canada following the use of tasers. The British Columbia Civil Liberties Association and Amnesty International Canada have called for a moratorium on their use. The RCMP Public Complaints Commissioner called for a moratorium on their use if the RCMP cannot properly instruct its members to appropriately deploy the taser in an operational setting. It is in this context that the Alberta Solicitor General, Fred Lindsay, and the Premier of Alberta, Ed Stelmach, downplayed the possibility that the use of a taser can cause death. This post argues that, notwithstanding the opinions of these elected officials regarding causation, it is possible for police officers to be found liable in negligence as a result of using a taser.

The civil standard of proof confirmed: Always proof on a balance of probabilities but now mindful of the mysterious “inherent” probabilities or improbabilities

By Brett Code, Q.C.

On November 13, 2008

In Civil Procedure, Supreme Court of Canada

Cases Considered: F.H. v. McDougall, 2008 SCC 53

PDF Version: The civil standard of proof confirmed: Always proof on a balance of probabilities but now mindful of the mysterious “inherent” probabilities or improbabilities

* Brett Code acknowledges the able assistance of Shankar Kamath, a student-at-law at Bennett Jones LLP.

In F.H. v. McDougall, released October 2, 2008, the Supreme Court of Canada has confirmed that there is only one standard of proof in a civil case: proof on a balance of probabilities. A mixed series of cases over the last 50 years had caused uncertainty as to the applicable standard of proof when trying allegations of morally blameworthy conduct, for example, of fraud, of sexual assault in the civil context or of dishonesty in the context of professional conduct by lawyers (see for example Bater v. Bater, [1950] 2 All E.R. 458 at 459 (C.A., Lord Denning); H.F. v. Canada (Attorney General), [2002] B.C.J. No. 436, 2002 BCSC 325 at para 154; R. v. Oakes, [1986] 1 S.C.R. 103 at 138; Continental Insurance Co. v. Dalton Cartage Co., [1982] 1 S.C.R. 164 at 169-171). What had evolved was an apparently sliding scale, sometimes requiring plaintiffs to meet a higher standard of proof, a standard often said to be commensurate with the occasion. That uncertainty is now resolved, perhaps finally.

Supreme Court denies leave to appeal to parents in disinterment case

Recent Developments in the Black Bear Crossing Dispute

Can a Court of Queen’s Bench judgment that contains no law be considered law itself?

Torts, Tasers and Causation

The civil standard of proof confirmed: Always proof on a balance of probabilities but now mindful of the mysterious “inherent” probabilities or improbabilities