photo: flickr.com/Sally T. Buck

In Canadian courts, even though they are not litigants, third parties may have an interest in intervening in court proceedings because the court’s judgment may affect them or others whom they represent. They often have information that they believe may be relevant to the courts in making their decisions. In Canada, interveners usually appear in appellate proceedings, but they can also appear in trial proceedings. Interveners commonly intervene on either side of a human rights or Charter dispute because these cases often deal with broad public policy issues. Interveners may include human rights statutory bodies (e.g., the Alberta Human Rights Commission), governments, unions, employer groups and interest groups (e.g., the Council of Canadians with Disabilities). While governments (e.g., Attorneys General) have the right to intervene in Charter cases and must be given notice in advance of a Charter claim, private interveners must seek leave (permission) from the court to intervene. It is quite usual for several interveners to seek leave to intervene in major human rights and Charter cases.

photo: flickr.com/fstorr/

Recently, the Alberta Court of Queen’s Bench (per Justice R. Paul Belzil) granted Unifor, Local 707A (the Union) an interim injunction prohibiting Suncor Energy Inc (Suncor) from implementing its random drug and alcohol testing policy pending either a successful application for leave to appeal to the Supreme Court of Canada or, failing that, the parties holding a fresh arbitration hearing in early 2018.

photo: flickr.com/talkradionews/

Alberta will be amending its Alberta Human Rights Act RSA 2000, c A-25.5 (“Act”), to expand protections for age discrimination and include improved program protections. Bill 23, which introduced amendments to the Act, was passed on November 14, 2017. These amendments were scheduled to come into force on January 1, 2018. The changes were prompted by a Charter challenge by elder advocate Ruth Adria, who argued that the exclusion of protections against age discrimination in the areas of services available to the public and tenancies (in sections 4 and 5 of the Act) violated her Charter equality rights. In early 2017, the Alberta government agreed to a court order that required age discrimination to be added to the Act by January 2018.

photo: flickr.com/mastermaq/

Alberta’s youth criminal justice system is struggling to meet the demand for mental health treatment due to a lack of space in secure mental health treatment facilities. The youth criminal justice system would benefit from a more integrated approach to the administration of youth criminal justice services, the introduction of youth mental health courts, and the promised increase in funding for mental health services for youth in the system.

photo: flickr.com/Province of British Columbia

In two earlier rather complex decisions (Epcor Utilities Inc. v International Brotherhood of Electrical Workers Local No. 1007 (McGowan Grievance) (2015), 22 CCPB (2d) 57, 2015 CanLII 62763 (AB GAA), application for judicial review dismissed; International Brotherhood of Electrical Workers Local 1007 v Epcor Utilities Inc., 2016 ABQB 574 (CanLII)), Epcor Utilities Inc.’s long term disability plan was held at first glance to discriminate based on age, but was defended because it was a legitimate and genuine (bona fide) pension plan. In an earlier post, I described the lower court’s focus on statutory interpretation of subsection 7(2) of the Alberta Human Rights Act, RSA 2000, c A-25.5 (AHRA).

photo: flickr.com/davesblogg007

Police Record Checks are increasingly requested by employers and other entities, including volunteer, educational, licensing, adoption, foster care, and foreign travel organizations or authorities. It is important to understand that Police Record Checks can and do reveal information that goes far beyond records of criminal convictions. The most frequent call received by the Alberta Civil Liberties Research Centre (ACLRC) is from people who are surprised and distraught that a “criminal record check” has revealed personal information about them that is unrelated to any criminal record they may or may not have. The information disclosed in a Police Record Check not only includes records of criminal convictions but can also include “non-conviction records” and “police contact records.” The disclosure of this broader range of records can result in the subject of the PRC experiencing unfair treatment and humiliation. Police Record Checks also disproportionately affect people who have more contact with the police, such as people living in poverty or people with mental health or developmental disabilities. They may also negatively impact employers and other organizations that receive this information, if they collect, retain, use or disclose it in a manner that violates the law, including human rights, privacy and criminal laws.

By Linda McKay-Panos

Republished with permission from LawNow Vol 42(2) (Nov/Dec 2017)

On October 4, 2017, Minister of Foreign Affairs, Chrystia Freeland, announced that the House of Commons had passed a bill that originated in the Senate: the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law) (Bill S-226, First Session, Forty-second Parliament, 64-65-66 Elizabeth II, 2015-2016-2017 (the “Magnitsky Act”). The bill must be approved again by the Senate before it becomes law. It is said to be similar to legislation and other motions passed in other countries and jurisdictions: United States, European Parliament, the Netherlands, the UK, Italy, Poland and Estonia. The legislation is named in memory of Russian whistle-blower Sergei Magnitsky, who accused Russian officials of tax fraud and was later beaten to death in 2009 in a Moscow prison.  When debating Bill S-226 at its second reading, Senator A. Raynell Andreychuk spoke at length about Canada’s international human rights obligations and efforts to ensure that human rights laws are adhered to around the world (see online: Senate of Canada, October 25, 2016) 1st Session, 42nd Parliament, Volume 150, Issue 65 https://sencanada.ca/en/Content/Sen/chamber/421/debates/065db_2016-10-25-e#54).

photo: flickr/Government of Canada

In 2015, JH appealed a decision by a Review Panel, appointed to determine the need for his continued detention under the Mental Health Act, RSA 2000, c M-13 (Alberta MHA), that he should be held indefinitely in the care of the Foothills Hospital (JH v Alberta Health Services, 2015 ABQB 316 (CanLII)). JH had come to the Foothills with a fever and an infected knee injury the year prior, and was then kept there against his will, based on the Review Panel’s determination. The Review Panel’s conclusion that JH should continue to be detained was based on its view that JH lacked insight into his medical needs and exhibited poor judgment, both of which might put him at risk of harm. The outcome of the case and whether JH would continue to be held in detention was contingent on whether JH fit the criteria for detention set out in section 8(1) of the Alberta MHA, namely that he: (a) suffered from a mental disorder; (b) was likely to cause harm to himself or others, or to suffer substantial physical or mental deterioration if not kept in detention; and (c) was unable to continue at the facility other than as a formal patient. JH’s consulting psychiatrist testified that it was his opinion that JH fit these criteria, as he suffered from a neurocognitive disorder which manifested itself as poor judgment and memory, and that without mental health support in the form of psychiatric detention, JH would deteriorate both mentally and physically. However, an assessment completed by another doctor concluded that JH only had mild memory impairment, and that he understood his health problems enough to maintain health treatment on his own. Justice Eidsvik of the Alberta Court of Queen’s Bench considered JH’s steady employment history prior to the car accident that had left him with cognitive issues, his ability to obtain help both financially and medically on his own, and his commitment to continue on his medication. Based on this evidence, the Court concluded that Alberta Health Services (AHS) failed to prove that JH should continue to be detained, and that any risks to him were not severe enough to justify constraints on his liberty and self-determination.

Image: flickr.com/Teri Bateman

Various provincial and federal jurisdictions choose to protect people from discrimination on various grounds in areas such as employment, services customarily available to the public and tenancy. In some cases, the grounds protected are the same across jurisdictions. In others, court challenges have resulted in court orders that grounds are to be read into human rights law (e.g., “sexual orientation” was read into Alberta’s human rights law by the Supreme Court of Canada in the Vriend case in 1998.)