BenchPress - Vol 43-6 - LawNow Magazine

BenchPress – Vol 43-6

  1. Federal Court Translates Decision into Cree and Dene

The Federal Court of Canada made history recently when it issued a judgment in the Cree and Dene languages. The case involved Councillor Whalen and the Fort McMurray No. 468 First Nation (FMFN).

On January 10, 2019, a Band Council Resolution (BCR) was signed by Chief Kreutzer and Councillor Kreutzer which purported to suspend Councillor Whalen with pay pending a further hearing on January 25, 2019. The suspension was in response to rising tensions between Councillor Whalen and Chief and Councillor Kreutzer. The matter came to a head with a blockade of the FMFN premises from January 7 to 9, 2019. Chief and Councillor Kreutzer allege that Councillor Whalen organized and supported the blockade while Councillor Whalen says she only acted as a mediator between the blockaders and Council.

Councillor Whalen brought an application before the Federal Court for judicial review of the January 10th decision to suspend her. The Court found that “FMFN’s Council [had] no power, under its Election Regulations, to suspend a councillor except in limited circumstances, which do not apply to this case” (at para 1). The Court quashed FMFN’s January 10, 2019 decision, effectively reinstating Councillor Whalen.

The Court’s unprecedented decision to translate the judgment into Cree and Dene is a significant step towards making court proceedings more accessible to impacted individuals who do not speak French or English, especially indigenous communities. Councillor Whalen celebrated this departure from tradition, saying that many of the elders in her community will now be able to understand the outcome of the proceedings.

Whalen v Fort McMurray No. 468 First Nation, 2019 FC 732

  1. Director Liable for Workplace Injuries

The Alberta Court of Appeal held that a director of a corporation could be held personally liable for injuries suffered by workers when a temporary staircase, installed by the director, broke. The Workers’ Compensation Board (WCB) was bringing a subrogated action for monies paid to the injured appellants.

The respondent, Stewart, was an employee and director of DWS Construction Ltd. The injured workers were employed by another company. The Court acknowledged that the injured workers could not sue DWS Construction Ltd. for damages because of the WCB scheme. However, the Court found that Stewart could be held liable because of ss. 15 and 16 of the Workers’ Compensation Act.

Section 15 of the Act reads that, subject to s. 16, a director is not a worker for the purpose of the Act “unless they apply to the Board … to have the Act apply to them as workers and the Board approves the application.” Section 16(1)(c) reads that an individual is deemed to be a worker except when the individual “is a director of a corporation and is performing the work as part of the business of the corporation, whether by way of manual labour or otherwise…” The respondent had not applied for insurance under s. 15 of the Act.

The Court noted that “[w]hile the claimants would have anticipated receiving compensation from the Board for any injuries they suffered, that does not negate the Board’s expectation that it could pursue subrogated claims against tortfeasors outside the system.” The Court also noted that the deciding factor was that the nature of the damage was personal injury: “There are strong public policy reasons to ensure that physically injured plaintiffs are compensated. Claims for pure economic loss raise different issues.”

It remains to be determined if the respondent actually did act negligently.

Hall v Stewart, 2019 ABCA 98 (CanLII)

  1. Habeas corpus Remedy for Detained Refugee

Mr. Chhina arrived in Canada in 2006 and was ordered deported in 2012 for lying on his refugee application and committing crimes. Prior to his deportation, Mr. Chhina was held at a maximum security institution and kept on lockdown for all but 90 minutes each day. Mr. Chhina challenged the length, uncertain duration and conditions of his detention.

The Supreme Court of Canada found that the review procedure in the Immigration and Refugee Protection Act (IRPA) was not as broad and advantageous as habeas corpus. Habeas corpus is a “fundamental and historic remedy which allows individuals to seek a determination as to the legality of their detention.”

The Court listed three reasons for its decision:

  1. In a detention review under IRPA, the Minister makes a prima facie case for continued detention and then the onus shifts to the detainee. In a habeas corpus application, the onus is on the Minister.
  2. On judicial review, the Federal Courts do not conduct fresh reviews of each detention period and have limited remedies (usually an order for redetermination). In a habeas corpus application, the Court considers all of the relevant evidence and can order the detainee released if the detention is not justified.
  3. A judicial review application under IRPA requires leave and “perfecting an application for leave on judicial review can take up to 85 days.” Given that detention hearings are held every 30 days, it is very unlikely for a judicial review to happen within that period. Habeas corpus, on the other hand, is a “swift and imperative remedy”.

This case is moot because Mr. Chhina was deported in September of 2017, before the case was heard by the Court. The Court heard the matter anyway because of the importance of “clearly delineating the exceptions to habeas corpus.”

Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29 (CanLII)

  1. Unequal Division of Post-Separation Debt

An Alberta couple separated after 26 years of marriage. They were debt-free at the time of separation and for three years afterwards. Their finances remained interconnected due to business assets. After six years of separation, they went to trial only on the division of personal assets and debts. The trial dealt with three issues, one being the division of the husband’s post-separation debt.

After the separation, the husband accumulated $115,699 in credit card debt and a line of credit. The wife had $1489 in credit card debt. Under the Matrimonial Property Act (MPA), property is divided as of the date of trial. The trial judge “concluded that this debt would be divided equally between the parties, stating it was impossible for her to determine whether the debts that arose related to matrimonial assets or their preservation.” The wife argued that the husband alone should be responsible for the debt because he did not provide reasons for the debt and because his income allowed him to support himself.

The Court of Appeal noted that an analysis under s. 8 of the MPA is a “discretionary function” and that the delineated factors “empower a court to divide specific property or debt proportionately, to achieve a just and equitable result.” The Court concluded at para 34:

We agree [with the wife’s arguments]. The onus is on the party incurring debt after separation to demonstrate that the debt was used for the benefit of the family unit and not solely for the debtor’s own purposes. If that cannot be established, s 8 of the MPA permits unequal distribution of the debt, including sole responsibility for the debt falling to the party that incurred it …

Stuve v Stuve, 2019 ABCA 142 (CanLII)


Jessica Steingard
Jessica Steingard
Jessica Steingard, BCom, JD, is a staff lawyer at the Centre for Public Legal Education Alberta.

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