BenchPress - Vol 42-6 - LawNow Magazine

BenchPress – Vol 42-6

  1. Victory for Students in Gay-Straight Alliances in Alberta

In 2015, the Government of Alberta under Jim Prentice passed Bill 10: An Act to Amend the Alberta Bill of Rights to Protect our Children. This Bill amended The School Act to allow students to create voluntary student organizations, including gay-straight alliances (GSAs). As stated by the late Premier, it was an unambiguous commitment to equality for the LQBTQ community. In 2017, the Government of Alberta under Premier Rachel Notley passed Bill 24: An Act to Support Gay-Straight Alliances, which enhanced protections for LGBTQ+ students including prohibiting schools from exposing students who are part of gay-straight alliances to their parents or peers.

In this case, parents and private schools applied to advocate for parental rights to know that their children are in GSAs. They argued that Bill 24 infringes on their freedoms of conscience, religion, and expression. They also argued that Bill 24 infringed Section 2 of the Charter of Human Rights and Freedoms by preventing them from accessing education consistent with their moral and religious values.  They requested an interim injunction to this Bill and asked that:

  • the new provisions not be incorporated; and
  • the Minister of Education be prevented from de-funding or de-crediting schools for not complying with the new provisions.

An interim injunction is a temporary court order which lasts until the court has had an opportunity to hear the full case and make a final order. The Court dismissed their application. Based on the test for an interim injunction, the Court found that:

  • There is no serious constitutional issue to be tried because GSAs are voluntary organizations and students are not required to participate in them. Therefore, the rights of parents or schools to teach moral and religious values to their children are not restricted.
  • There would be irreparable harm from these changes. In fact, an expert in psychology found that GSAs actually provided many benefits including improved school performance, increase sense of safety and belonging at school, reduced casual sex, reduced drug use and abuse and enhanced psychological well-being.
  • The balance of convenience weighs in favour of maintaining the legislation. Based on expert evidence, statistically, there is a greater risk of harm to LGBTQ students without the legislation due to greater homophobia and as a result, a higher risk of suicides. Therefore, it is more important (and less harmful) to maintain the injunction and support LGBTQ students, than temporarily limiting a parents right to know and make decisions about their child’s involvement in a GSA.

The Court also considered that the Ministry of Education stated that they no plans in the upcoming year to de-fund or de-credit any schools. Furthermore, the Court noted that there was no urgency to the situation, as the provisions for allowing GSAs have been in existence since 2015. Urgency is a consideration in providing an interim injunction.

PT v Alberta, 2018 ABQB 496

  1. Trinity Western University’s Law School Goes Unaccredited After Supreme Court of Canada Decision

The Supreme Court of Canada released two landmark cases regarding Trinity Western University’s bid for accreditation under the Law Society of British Columbia and the Law Society of Ontario (formerly known as Law Society of Upper Canada).

Trinity Western University (TWU) is a Christian university in British Columbia. TWU students have to sign a Covenant, which forbids students to have sexual intimacy outside of a marriage between a man and a woman. When TWU wanted to create a new law school, it applied for accreditation from the provincial law societies. Both the Law Society of British Columbia and the Law Society of Ontario denied accreditation. Each Law Society found that access and diversity in the legal profession, as well as preventing harm to LGBTQ students, were factors to consider in their decision. These factors were at risk with accreditation and were found to be against the public interest, which is in the Law Societies’ mandates.

TWU launched a claim under the Charter of Rights and Freedoms arguing that their freedom of religion had been infringed.

Interestingly, in British Columbia, the trial court and Court of Appeal agreed with TWU. In Ontario, the trial court and Court of Appeal disagreed with Ontario.

At the Supreme Court of Canada, a majority of the judges upheld the decisions of the Law Societies to deny accreditation to TWU’s law school. Although the Court found that the Law Societies’ decision did infringe on TWU’s freedom of religion, they found that the Law Societies’ had reasonably balanced religious freedom with their mandate to serve the public interest, based on the aforementioned factors.

As a result of the Supreme Court of Canada’s rulings, TWU has stated that it will not be starting a law school in the near future.

Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 

Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33

http://www.millerthomson.com/en/publications/communiques-and-updates/social-impact-newsletter-formerly-the/june-21-2018-social-impact/supreme-court-of-canada-upholds-decision-to-deny-accreditation-to-trinity-western-university-law-school/

  1. A Fickle Fiddler Dashes Boyfriend/Musician’s Dreams

Eric Abramovitz is a gifted clarinetist. He has studied the clarinet since he was seven years old and won many awards. In 2013, Abramovitz applied to study for two years at the Coburn Conservatory of Music in Los Angeles, California. If accepted, he would receive a full scholarship including tuition and living costs, and would study closely with world-renowned clarinetist Yehuda Gilad. Only two students are accepted per year to this program.

Abramovitz, after attending an in-person interview and presentation, was accepted into the program by email on March 27, 2014. His girlfriend at the time, Jennifer (Jooyeon) Lee, a fellow music student, secretly accessed his email and declined the offer for Abramovitz without his knowledge. She then deleted the acceptance email. Furthermore, she created a fake email address, using Yehuda Gilad’s name, to tell Abramovitz that he was not accepted. In the email, she continued to tell him that he was accepted to study at the University of South California with a scholarship of $5,000 a year. Annual tuition was $51,000 at the University of South California. She knew that Abramovitz would be unable to accept the offer due to his financial circumstances.

Believing that he was rejected for a 2 year full scholarship, Abramovitz stayed in Canada for the remainder of his studies. He only found out the truth years later when he entered in a Graduate Certificate Program at the University of South Carolina to study with Gilad. This opportunity covered few costs and gave Gilad less time with Abramovitz than the initial program he was accepted into.

In tallying up all the costs against Lee, the Court included opportunity costs and cost of attending the school. Abramovitz was awarded $350,000 and costs. Lee did not appear at trial and did not defend the claim.

Abramovitz v. Lee, 2018 ONSC 3684

  1. Conflicts of Law in the Internet Age

Mitchell Goldhar is a wealthy businessman based in Canada. He also owns one of the most popular professional Israeli soccer teams. On November 29, 2011, Haaretz.com, Israel’s oldest daily newspaper, published an unflattering article online about Mr. Goldhar based on his ownership and management of the Israeli soccer team and his Canadian businesses. The newspaper made comments such as, “[w]ithin the club, however, there are those who believe that Goldhar’s managerial culture is based on overconcentration bordering on megalomania, penny-pinching and a lack of long-term planning.” Goldhar tried to sue Haartez.com for libel in Ontario stating that the article caused damage to his business and personal life. The newspaper is not distributed in Canada, however, it is available electronically.

The question the courts were asked was whether the case should proceed in Ontario or should it be referred back to a court in Israel.

The Supreme Court of Canada found that Israel was the most appropriate jurisdiction for Goldhar to sue Haartez.com. Holding a trial in Israel would be fairer and more efficient. Moreover, since Haaretz.com has no assets in Ontario, it would be far easier for Goldhar to sue and collect an award in Israel.

Haaretz.com v. Goldhar,  2018 SCC 28 

  1. Canadian Human Rights Commission Does Not Have to Consider Discrimination Under the Indian Act

This case involved two other cases. In both cases, the complainants argued that the government department formerly known as Indian and Northern Affairs Canada (INAC) acted in discriminatory fashion under Indian Act in providing services by preventing individuals from obtaining or keeping their Indian status. In the first case, three siblings argued that sex-based discrimination resulted in their grandmother losing her Indian status when she married a non-status person, which meant that eventually, her children were ineligible for Indian status. In the second case, individuals lost their status through an “enfranchisement order”. Their family member gave up Indian status rights to become a fully enfranchised Canadian citizen. As a result, his grandchildren did not have Indian status.

The Canadian Human Rights Tribunal (CHRT) found that these complaints directly attacked the Indian Act and that this law, or any legislation, is not a “service”. Therefore, the CHRT did not have jurisdiction to hear the case. As a result, the CHRT dismissed their claims. Both the Federal Court and Federal Court of Appeal, in appeals, agreed with the CHRT decision.

At the Supreme Court of Canada (SCC), the Court agreed with all three prior decisions.

Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31

https://www.theglobeandmail.com/politics/article-canadian-human-rights-tribunal-cannot-challenge-discrimination-in/

  1. Three Partners in a Polyamorous Relationship Recognized as Legal Parents

For the first time in Canada, a court in Newfoundland and Labrador has found three unmarried adults to be legal parents of a child. The three adults are part of a “polyamorous” relationship. This is different than bigamy and polygamy, which involve marriage with two or more people. Bigamy and polygamy are illegal in Canada.

The relationship consists of two men and a woman. The family has been together for three years, but the biological father is unknown and is not identified. The Court found that recognizing all three individuals was in the best interests of the child – the child was born into a stable, loving family in a safe and nurturing environment.

https://www.cbc.ca/news/canada/newfoundland-labrador/polyamourous-relationship-three-parents-1.4706560

Authors:

Aaida Peerani
Aaida Peerani is Staff Lawyer and Editor for LawNow Magazine at the Centre for Public Legal Education Alberta. www.cplea.ca
 


A Publication of CPLEA