ABLawg

Cases Considered: Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Company, 2007 ABCA 426, overruling Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Company, 2006 ABQB 302, which overruled John Chiasson v. Kellogg, Brown & Root (Canada) Company (Halliburton Group Canada Inc.) (February 14, 15, 16 and March 1, 2005; Colonel (Ret’d) Delano W. Tolley, Panel Chair)

PDF Version: Court of Appeal Sends Court of Queen’s Bench Decision to Rehab

In December 2007, the Court of Appeal of Alberta overturned a detailed Court of Queen’s Bench decision on pre-employment drug testing. The case originated in the Alberta Human Rights and Citizenship Commission (“AHRCC”). Mr. Chaisson, the complainant, was offered a position as a receiving inspector with Kellogg Brown & Root (“KBR”) ’s oil sands project, but was required to undergo a pre-employment medical and drug test, as a condition of his employment. Two weeks after commencing employment, the complainant’s results came back, indicating that he had tested positive for the presence of marijuana. Consequently, the complainant was terminated. The AHRCC’s Human Rights Panel dismissed Chaisson’s complaint on the basis that there was no evidence that the complainant suffered from a real or perceived disability, as he was only a recreational drug user, and thus was unable to substantiate a case of prima facie discrimination on the basis of physical disability. The Panel held that drug impairment of any kind would impact the complainant’s performance, and as such the pre-employment drug test was a reasonable requirement for the position for which the complainant was applying.

Alberta’s New Vexatious Litigant Law Applied

By Jonnette Watson Hamilton

On January 12, 2008

In Civil Procedure, Vexatious Litigants

Cases Considered: O’Neill v. Deacons, 2007 ABQB 754

PDF Version: Alberta’s New Vexatious Litigant Law Applied

The Alberta government passed new legislation in June of 2007 to give courts in the province more power to deal more effectively with “vexatious litigants.” These individuals were described by the Honourable Minister of Justice and Attorney General, Ron Stevens, in the Legislative Assembly on second reading of the amendments, in the following terms:

Taking Violence Against Women Seriously in Sentencing Decisions

By Jennifer Koshan

On January 12, 2008

In Criminal, State Responses to Violence

Cases Considered: R. v. Diebel, 2007 ABCA 418, R. v. Douglas, 2007 ABCA 321

PDF Version: Taking Violence Against Women Seriously in Sentencing Decisions

In two recent cases, the Alberta Court of Appeal has considered certain forms of violence against women to be an aggravating factor in sentence appeals. While both are memoranda of judgments and thus of lesser weight than reserved reasons for decision, the cases are nevertheless indicative of the Court’s resolve to take violence against women seriously.

Environmental Permitting and the Scope of the Duty to Consult

By Nigel Bankes

On December 12, 2007

In Aboriginal, Environmental, Natural Resources

Cases Considered: Siksika First Nation v. Alberta (Director Southern Region Environment) 2007 ABCA 402

PDF Version: Environmental Permitting and the Scope of the Duty to Consult

The Town of Strathmore faced a sewage problem. It proposed to deal with that problem by constructing a pipeline and disposing of some of its waste water into the Bow above the Siksika Reserve. Not surprisingly the Siksika took a dim view of this and when the Director approved the town’s application under the Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12, the Siksika appealed that decision to Alberta’s Environmental Appeal Board (the EAB). The Siksika also sought judicial review arguing amongst other things that the government of Alberta was in breach of its constitutional duty to consult the Nation. Justice Peter McInytre (oral reasons for judgement, available on the EAB’s website ) rejected the Siksika’s JR application on the grounds that the Siksika’s application was premature and therefore moot (because they might succeed before the EAB). In addition Justice McIntyre reasoned that the EAB procedure (and subsequent consideration of the EAB decision by the Minister) might cure any defect (want of consultation) there might have been in the Director’s procedure. There is no suggestion that Justice McIntyre rejected the application on the basis that the Siksika had not exhausted their local remedies.

Standing Against Public Participation at the Alberta Energy and Utilities Board

By Shaun Fluker

On December 12, 2007

In Administrative Law, Natural Resources

Cases Considered: Sawyer v. Alberta (Energy and Utilities Board), 2007 ABCA 297

PDF Version: Standing Against Public Participation at the Alberta Energy and Utilities Board

In September 2007, the Alberta Court of Appeal denied leave to appeal an AEUB (now the Energy Resources Conservation Board) decision that affirmed its longstanding position that participatory rights to contest the merits of an energy project by, for example, presenting evidence and/or cross-examining the project proponent, are not available to recreational users of public lands or urban environmentalists.