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Agreement Commented On: Agreement for the conservation and recovery of the Woodland Caribou in Alberta entered into by Canada and Alberta on October 19, 2020 (the “Canada-Alberta Agreement on Woodland Caribou”)

Decisions Commented On: Canada Energy Regulator Report – Nova Gas Transmission GH-003-2018 (February 2020) and Order-in-Council PC 2020-811 (19 October 2020)

On October 23, Alberta and Canada announced they had finalized an agreement under section 11 of the federal Species at Risk Act, SC 2002, c 29 (SARA) concerning the threatened woodland caribou in Alberta. As I predicted here several years ago, this agreement is the federal government’s response to Alberta’s failure to implement recovery measures and habitat protection for caribou in accordance with the SARA recovery strategy, which clearly documents the Alberta populations as the most at-risk of all the woodland caribou remaining in Canada. This comment examines the actual significance of this agreement for the protection of remaining caribou habitat in Alberta. The short answer is that the caribou would be wise to hold off on celebrating this announcement. This section 11 agreement is unlikely to amount to much, if anything, for them in terms of actual habitat protection on the ground. No one should be fooled by the applause from industry or the self-congratulatory remarks made by our politicians: this agreement is yet another shameful exercise by those who merely want to give the appearance of effective public policy on reversing the decline of woodland caribou populations in Canada. It will do nothing to change the steadfast reliance by regulators on ‘manage and mitigate’ measures – as demonstrated most recently by the Canada Energy Regulator in its Nova Gas Transmission Report GH-003-2018 – that have proven to be overwhelmingly ineffective.

Tugging at the Strands: Adverse Effects Discrimination and the Supreme Court Decision in Fraser

By Jennifer Koshan

On November 9, 2020

In Constitutional, Equality, Supreme Court of Canada

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: Tugging at the Strands: Adverse Effects Discrimination and the Supreme Court Decision in Fraser

Case Commented On: Fraser v Canada (Attorney General), 2020 SCC 28 (CanLII)

On October 16, 2020, the Supreme Court of Canada released its long-awaited decision in Fraser v Canada (Attorney General), 2020 SCC 28 (CanLII). Fraser involved a claim of adverse effects discrimination by female RCMP members who lost their entitlement to full pension benefits when they entered temporary job-sharing arrangements. We blogged on the Federal Court of Appeal decision in Fraser here, and – in the interests of disclosure – also participated in the Supreme Court intervention in Fraser by the Women’s Legal Education and Action Fund (LEAF) (for LEAF’s news release following the Fraser decision, see here).

Fraser is the first successful adverse effects claim under section 15 of the Canadian Charter of Rights and Freedoms in over 20 years and it is the first ever successful adverse effects claim under section 15 in a sex discrimination context. This post will focus on the typical challenges that have been faced in adverse effects claims and review how Justice Rosalie Abella’s majority decision in Fraser responded to these problem areas, which were also apparent in the lower court decisions in Fraser. Although Justice Abella wrote for the majority of the Court (Chief Justice Richard Wagner and Justices Michael Moldaver, Andromache Karakatsanis, Sheilah Martin and Nicholas Kasirer, as well as herself), we will refer to the judgment as hers because it appears to be the culmination of her life-long work on equality rights and may be her last judgment on this subject before her retirement in 2021.

We also review the two dissenting judgments in Fraser, written by Justices Russell Brown / Malcolm Rowe and Justice Suzanne Côté. Our title is inspired by Justice Abella’s allegation that the dissent “tug[s] at the strands of a prior decision they disagree with … [to] unravel the precedent” (at para 133, referring to Alliance, one of the Court’s two 2018 pay equity decisions that we cite below). Interestingly, the same could be said of the majority judgement, which unravels the knots of a large body of section 15 jurisprudence that has made it difficult to prove adverse effects discrimination claims. It is these problem areas that we turn to next.

Church of Atheism of Central Canada v MNR: Charitable Status for Atheists and the Triviality of Religious Freedom Infringements

By Kathryn Chan

On November 3, 2020

In Constitutional, Federal Court

By: Kathryn Chan & Howard Kislowicz

PDF Version: Church of Atheism of Central Canada v MNR: Charitable Status for Atheists and the Triviality of Religious Freedom Infringements

Case Commented On: Church of Atheism of Central Canada v MNR, 2019 FCA 296 (CanLII)

On October 29, the Supreme Court of Canada denied leave to appeal in Church of Atheism of Central Canada v MNR, 2019 FCA 296 (CanLII), a charitable registration appeal that raised questions about the constitutionality of according tax privileges to a class of “religious” charities in Canada. This result is unsurprising. The decision of the Federal Court of Appeal was unanimous and the Church of Atheism was not represented by counsel. The evidentiary record was probably sparse, since the evidentiary record in charitable registration appeals is limited to the documents in the Canada Revenue Agency’s file at the time that registration is denied. Nevertheless, Church of Atheism of Central Canada v MNR raised important legal issues that affect the largest segment of Canada’s charitable sector. This post discusses several issues that are likely to re-emerge in a future case.

Freedom of Expression & Protecting the Visual Environment

By Lisa Silver

On October 30, 2020

In Constitutional

By: Lisa Silver

PDF Version: Freedom of Expression & Protecting the Visual Environment

Case Commented On: Top v Municipal District of Foothills No. 31, 2020 ABQB 521 (CanLII)

The legal environment is primarily constructed by written or spoken words. Lawyers write, submit, and file documents, and through their daily work, create a language of the law. Sometimes written laws impact the visual world. Such a law was at issue in the recent decision of Justice Nicholas Devlin in Top v Municipal District of Foothills No. 31, 2020 ABQB 521 (CanLII). In that case, the Municipal District (MD) Bylaw prohibited the use of signage on trailers, a continuing problem in the rural setting of the Foothills County. Other types of signage were permitted but it was the aesthetically unpleasing trailer signs, parked along the side of the roadways, which were a matter of contention. Justice Devlin agreed the law limited free expression under section 2(b) of the Charter but was a reasonable limit under section 1 of the Charter, considering the municipality’s pressing and substantial objective to protect the “visual environment” from “visual pollution” (at para 3). Although raised to justify the Charter violation, the idea that the visual environment is a value to be protected is intriguing. In Top, expression and the visual intersect, as the written law provides a platform for the perfect view. This post will explore this intersection and whether the legal landscape can or should protect the visual one.

Does the Dower Act Still Serve a Useful Purpose? ALRI Wants to Hear From You!

By Katherine MacKenzie

On October 29, 2020

In Legal Education, Legal Research, Property, Wills and Estates

By: Katherine MacKenzie

PDF Version: Does the Dower Act Still Serve a Useful Purpose? ALRI Wants to Hear From You!

Legislation Commented On: Dower Act, RSA 2000, c D-15

The Alberta Law Reform Institute (ALRI) is studying whether the Dower Act should be reformed or repealed. The project is still in its early stages, with a consultation document forthcoming in 2021. In the meantime, ALRI is seeking preliminary feedback on the Dower Act and any practical problems it may present.

Key Features of the Dower Act

The rights under the Dower Act only apply to married people (s 1(c)). The Act is intended to protect a spouse (the “dower spouse”) if the couple’s home is solely owned by the other spouse (the “owner spouse”). It applies to a “homestead”, which is a parcel of land where the owner spouse lived during the marriage (s 1(d)). The Dower Act protects the dower spouse from losing their home, either during the lifetime of the owner spouse or after the owner spouse’s death. There are two key features:

Consent to disposition: The owner spouse cannot dispose of a homestead without the consent of the dower spouse (s 2(1)). Disposition includes a transfer, long-term lease, or mortgage (s 1(b)). If the owner spouse disposes of a homestead without consent, they may be subject to a penalty and liable to pay damages to the dower spouse (ss 2(3), 11).
Life estate: The dower spouse is entitled to a life estate in the homestead after the death of the owner spouse (s 18).

The Dower Act has been part of the law of Alberta for more than 100 years, but it has not changed substantially since 1948.

Canada and Alberta Agree to More Pie-In-The-Sky on Woodland Caribou

Tugging at the Strands: Adverse Effects Discrimination and the Supreme Court Decision in Fraser

Church of Atheism of Central Canada v MNR: Charitable Status for Atheists and the Triviality of Religious Freedom Infringements

Freedom of Expression & Protecting the Visual Environment

Does the Dower Act Still Serve a Useful Purpose? ALRI Wants to Hear From You!