ABLawg

Case Commented On: Inland Financial Inc v Guapo, 2018 ABQB 162 (Master) (CanLII), aff’d 2019 ABQB 15 (CanLII), aff’d 2020 ABCA 381 (CanLII)

Jose Neeves Guapo and Maria Guapo, a married couple, owned a home registered in the names “Jose Guapo and Maria Guapo” as joint tenants. Their son, Jose Domingos Guapo, lived in the home but had no ownership interest in it. It is important to note that father and son shared the same first name and surname and that the name on the register did not include Jose Guapo Sr’s middle name. The Court of Appeal summarized the key facts as follows (at para 5):

Jose Guapo Jr persuaded his mother to apply through a broker to Inland Financial for a loan to be secured by a mortgage on the home. He had done this on 12 different occasions with different brokers for progressively larger amounts. Inland Financial approved the loan in the amount of $245,000. The mortgage documents to secure the loan were prepared by Inland Financial’s lawyers and signed by Maria Guapo and Jose Guapo Jr, impersonating his father, who had no knowledge of the transaction. Inland Financial thought the son owned the house with his mother particularly since they had both sworn a statutory declaration that they were the owners and the house was their principal residence. The mortgage was registered against the title to the home. Funds were advanced and used to pay out two previous mortgages, also fraudulently obtained by Jose Guapo Jr, and the balance of the funds were paid into a bank account in the names of Maria Guapo and Jose Guapo Jr. It is unclear whether Maria Guapo understood the nature of the transaction as she did not speak English and did only what her son instructed her to do. She had received a Grade 4 education in Portugal, at the lawyer’s office her son spoke to her only in Portugese (sic), and she testified through an interpreter at questioning. There is no evidence that she received any funds from the mortgages.

When Jose Guapo Jr defaulted on the mortgage payments Inland commenced foreclosure proceedings. Inland also sought personal judgment against Jose Guapo Jr but did not seek a personal remedy in fraud against Maria Guapo. Jose and Maria Guapo defended; the son was noted in default.

As the title to this post suggests, these facts potentially engaged both the Dower Act, RSA 2000, c D-15 and the Land Titles Act, RSA 2000, c L-4 (LTA). The Court of Appeal decided the case solely on the basis of the Dower Act while the judgments below addressed the implications of both statutes.

Harnessing the Power of AI Technology; A Commentary on the Law Commission of Ontario Report on AI and the Criminal Justice System

By Lisa Silver

On November 18, 2020

In Constitutional, Criminal

By: Lisa Silver and Gideon Christian

PDF Version: Harnessing the Power of AI Technology; A Commentary on the Law Commission of Ontario Report on AI and the Criminal Justice System

Report Commented On: Law Commission of Ontario, The Rise and Fall of AI and Algorithms In American Criminal Justice: Lessons for Canada, (Toronto: October 2020).

The Law Commission of Ontario (LCO) recently released its Report on the use of artificial intelligence (AI) and algorithms in the Canadian criminal justice system. The Report, which is the first of three papers on the issue, is one of the most comprehensive discussions of the use of AI and algorithmic technologies in the criminal justice system to date. In Canada, AI use in the criminal justice system is limited and not easily subject to in-depth review. In the United States, however, AI and algorithms are used extensively throughout the justice system, particularly in pre-trial release decision-making. Not surprisingly, then, the Report draws from this American experience to arrive at a number of recommendations for application to the Canadian context. Based on those lessons learned, the LCO Report warns of “the risk of adopting unproven and under-evaluated technologies too quickly to address long-standing, complex and structural problems in the justice system” (at 7). Yet, in the midst of this cautionary tone, the Report also recognizes that AI use in the criminal justice system will likely increase in the future. The Report proactively outlines a framework for such use by urging AI regulation, the application of legal protections to AI, and community involvement in developing AI best practices. All of these warnings and recommendations are extremely useful but the Report begs the basic question of whether the justice system should be using machine intelligence, with its embedded biases, in matters that can profoundly change people’s lives. Ultimately, the Report should stand as a timely reminder of the unharnessed power of technology and the realistic potential for injustice when it is used without restraint.

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

By Shaun Fluker

On November 10, 2020

In Environmental, Protection of Species

By: Shaun Fluker

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

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.

Forgery, Fraud and the Dower Act

Harnessing the Power of AI Technology; A Commentary on the Law Commission of Ontario Report on AI and the Criminal Justice System

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