ABLawg

The Federal Court’s decision in Pembina Institute for Appropriate Development v. Canada (Attorney General), 2008 FC 302, is proving to have more significance than I anticipated in my initial blog (see Just a Bump on the Road to Socio-Ecological Ruin). In that judgment, Madame Justice Tremblay-Lamer held the Kearl joint panel erred in law by failing to comply with one of the duties imposed upon it by section 34 of the Canadian Environmental Assessment Act, S.C. 1992, c. 37. Shortly thereafter, the Federal Department of Fisheries and Oceans informed Imperial Oil that, as a consequence of the joint panel’s error in law, the Kearl project authorization issued by the Minister pursuant to the Fisheries Act, R.S.C. 1985, c. F-14, was a nullity. In correspondence addressed to Imperial Oil, the Department of Fisheries and Oceans stated in part:

Please be advised that the Department of Fisheries and Oceans is of the view that, as a result of the Honourable Madam Justice Tremblay-Lamer’s decision, the Authorization for Works or Undertakings Affecting Fish Habitat and the Authorization to Destroy Fish by any means other than Fishing (ED-03-2806) which was issued by the Minister of Fisheries and Oceans pursuant to subsection 35(2) of the Fisheries Act to Imperial Oil Resources Ventures Limited on February 12, 2008, is a nullity.

Vriend Ten Years Later

By Linda McKay-Panos

On May 21, 2008

In Constitutional, Human Rights, Supreme Court of Canada

By: Linda McKay-Panos

PDF Version: Vriend Ten Years Later

Case Commented On: Vriend v Alberta, [1998] 1 S.C.R. 493

April 2, 2008 marked the 10th anniversary of the release of the SCC decision in Vriend v Alberta. This decision was remarkable in many ways. First, there were no less than 17 intervenors by the time the case reached the SCC. Our affiliated agency, the Alberta Civil Liberties Association, was one of those intervenors. The case was significant because of the remedy that was ordered by the SCC and because of the analysis that the SCC undertook in determining that sexual orientation should be included as a protected ground in Alberta’s Individual’s Rights Protection Act (“IRPA”, now called the Human Rights, Citizenship and Multiculturalism Act (“HRCMA”), R.S.A. 2000, c. H-14). It is also interesting to examine what has happened in the area of sexual orientation and human rights since this noteworthy case.

Making Noise: Loudspeaker Preaching to Homeless Leads to Contempt and Injunction

By Jennifer Koshan

On May 16, 2008

In Constitutional, Municipal Law, Remedies

Cases Considered: Pawlowski v. Calgary (City), 2008 ABQB 267

PDF Version: Making Noise: Loudspeaker Preaching to Homeless Leads to Contempt and Injunction

The Street Church Ministries (“SCM”) and its leader, Artur Pawlowski, have been active and controversial participants in Calgary’s response to homelessness for the last few years. The SCM holds religious services in downtown Calgary parks and gives away free meals to the homeless there. Pawlowski uses amplified sound during his sermons “to reach out to drug dealers, prostitutes and others who have fallen through the gaps” of Calgary society, and believes it is God’s command that he feed and provide hope for the poor (Graeme Morton and Richard Cuthbertson, “Ban on preacher’s loudspeaker upheld”, Calgary Herald, May 1, 2008, p. B7). However, use of amplified sound without a permit is banned by Calgary’s Parks and Pathways Bylaw, Bylaw No. 20M2003. While originally the City permitted the SCM to use amplified sound, after receiving noise complaints from nearby residents (including those at the Calgary Drop-In Centre) it would only permit use of the parks without amplification, although it offered to find an alternative site where such sound could be used. Pawlowski refused the offer and continued his loudspeaker preaching, leading to bylaw tickets, injunction applications, and eventually, in this most recent case, a civil contempt order.

Minimum Housing Standards for Residential Tenancies Upheld

By Nickie Nikolaou

On May 16, 2008

In Landlord/Tenant, Property

By: Nickie Vlavianos

PDF Version: Minimum Housing Standards for Residential Tenancies Upheld

Cases Commented On: BPCL Holdings Inc. v Alberta, 2008 ABCA 153

Alberta’s Residential Tenancies Act (“RTA”), S.A. 2004, c. R-17.1, is generally speaking a landlord-friendly statute. It is not replete with protections for tenants. One important exception is s. 16(c), a fairly recent addition to the RTA. Section 16(c) requires landlords to ensure that rental premises “meet at least the minimum standards prescribed by housing premises under the Public Health Act and regulations.” Clearly, the Legislature intended some minimal health and safety protection for tenants.

Dunsmuir: Much Ado about Nothing

By Shaun Fluker

On May 16, 2008

In Administrative Law, Supreme Court of Canada

Cases Considered: Dunsmuir v. New Brunswick, 2008 SCC 9

PDF Version: Dunsmuir: Much Ado about Nothing

The majority judgment in Dunsmuir, written by Justices Bastarache and Lebel JJ. (writing also for Fish, Abella, and McLachlin JJ.), begins by setting out its grandiose intention to re-examine judicial review principles in Canadian administrative law with the view to making them more workable and coherent. In an initial glance, one is immediately struck by how such an immense and significant task is built upon a seemingly insignificant set of facts. The appellant, a former non-unionized provincial employee who was dismissed with pay in lieu of notice, sought to uphold a grievance arbitrator’s ruling that his employment be reinstated. In dismissing the appeal, the Supreme Court judgment follows that of both the New Brunswick Court of Queen’s Bench and Court of Appeal. One cannot also help but notice that in purporting to reformulate the pragmatic and functional approach to substantive judicial review, Dunsmuir consists of three concurring but inconsistent sets of reasons. Indeed, it is difficult to envision Dunsmuir as a defining moment in Canadian administrative law along the lines of CUPE Local 963 v. New Brunswick Liquor Board, [1979] 2 SCR 227, Nicholson v. Haldimand-Norfolk Police Commissioners, [1979] 1 SCR 311, Knight v. Indian Head School Division, [1990] 1 SCR 653, Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982, or Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817. This is because Dunsmuir falls well short of its lofty ambitions. Binnie J.’s reasons aside, Dunsmuir is little more than formal acknowledgement of recent shifts in, and deficiencies with, the Supreme Court’s attitude towards substantive judicial review.

Federal Court upholds nullification of Kearl oil sands authorization

Vriend Ten Years Later

Making Noise: Loudspeaker Preaching to Homeless Leads to Contempt and Injunction

Minimum Housing Standards for Residential Tenancies Upheld

Dunsmuir: Much Ado about Nothing