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November 2012

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With brief legal updates written specifically for your target audience, OnPoint can help you stay in touch with your clients and acquire new ones. See p.3 Featured Cases: P4

Wrongful Dismissal; Labour Relations; Trade Unions

P6

Human Rights; Freedom of Speech; Hate Speech

P9

Municipal Law; Estoppel; Adverse Possession

P11

Labour Relations; Drug-Testing Policy; Injunctions; Stay of Proceedings

P13

Municipal Law; Property Development Permits


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e are a firm of legal research lawyers. For over 13 years, we have completed research and writing projects for lawyers in the private and public sectors in B.C. and Alberta. Many of our clients consider using our services as equivalent to relying upon work completed by in-house associates, and add a measure of profit accordingly when billing their own clients.

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Williams v. Telecommunications Workers Union, 2012 ABCA 284 Areas of Law: Wrongful Dismissal; Labour Relations; Trade Unions Union official properly dismissed from office following termination by third party employer CLICK HERE TO ACCESS THE JUDGEMENT

BACKGROUND

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he appellant Mimi Williams (“Williams”) commenced employment with Telus in Edmonton on October 31, 2003, as a customer service representative. She applied for membership in the respondent Telecommunications Workers Union (“TWU”) on December 19, 2003, and her application was approved on January 8, 2004. In March 2006, Williams was elected to the office of business agent for TWU in Edmonton for a three-year term. As a full time officer, Williams was paid an annual salary and

expenses by TWU. At the time of her election, Williams was employed by Telus. Subsequently, Telus terminated Williams’ employment. On March 6, 2007, Article XI of the constitution of TWU, covering the election of officers to Executive Council, was amended to insert paragraph 1(e) to read, “Only members of the union in good standing shall be eligible to vote or hold elective office.” The amendment was ratified and incorporated in the July 2007 constitution of TWU. Williams was dismissed as business agent with TWU on April 13, 2007. Williams sued TWU for wrongful dismissal, claiming that, under the terms of the

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TWU constitution, her remaining as business agent was not dependent upon her continuing to be an employee of Telus, nor, alternatively, upon continuing to be a member of TWU. TWU took the position that its constitution requires a person be both an employee in the bargaining unit and a member of TWU to be elected as a business agent on the executive council. The trial judge concluded Williams was not wrongfully dismissed, but she became ineligible to continue to hold the office of business agent, pursuant to the TWU constitution, when she was dismissed from her position with Telus. Williams appealed.

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604.879.4280 | info@onpointlaw.com Williams v. Telecommunications Workers Union, (cont.) APPELLATE DECISION

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he appeal was dismissed. There was no merit to Williams’ argument that, after the termination of her employment by Telus, she was an employee of an employer “in the communications or related fields”. Williams’ only possible employer was TWU, which was not in the communications or related fields. The purpose of TWU is the regulation of relations between employers and employees who are in the communications or related fields. TWU’s employees were not themselves workers in the communications or related fields. Once Williams ceased to be an employee of Telus, she could no longer be a member of TWU “in good standing”. This did not prevent her from becoming an Associate Member. November 2012

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However, she could no longer, as a matter of law, be eligible to hold office pursuant to Article V.11 of the constitution. The July 2007 amendment to Article XI.1, to add paragraph (e), mirrored the existing provision in Article V.11 for Associate Members, as well as Article XI.2(b) for local officers, and merely reflected a proper interpretation of the constitution.

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Lund v. Boissoin, 2012 ABCA 300 Areas of Law: Human Rights; Freedom of Speech; Hate Speech Letter to newspaper critical of “homosexual agenda” not constituting hate speech under Human Rights, Multiculturalism and Citizenship Act CLICK HERE TO ACCESS THE JUDGEMENT

BACKGROUND

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he respondent Stephen Boissoin (“Boissoin”) wrote a letter to the editor of the Red Deer Advocate, which published it on June 17, 2002, under the headline “Homosexual Agenda Wicked”. The newspaper composed the headline. At the time, Boissoin was the executive director of the respondent Concerned Christian Coalition Inc., (“Coalition”). The

target audience of the letter was people whom Boissoin believed were apathetic to the inroads made by the “homosexual machine”, primarily in respect to educating children that homosexuality is a morally acceptable choice and lifestyle. A news item published in the newspaper about two weeks later reported that a gay teenager had been assaulted in downtown Red Deer, solely because he was gay. In the newspaper article, the gay teenager

referred to Boissoin’s letter in the Red Deer Advocate as contributing to an environment of harassment. The appellant, Dr. Darren Lund (“Lund”), was a human rights educator and activist. In 2002, he was a member of the faculty of the University of Calgary, and had previously taught as a high school teacher in Red Deer, where he was involved with the Gay/ Straight Alliance. The specific reference by the

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Lund v. Boissoin, (cont.) alleged victim to Boissoin’s letter triggered Lund’s complaint to the Human Rights and Citizenship Commission in July 2002. Lund maintained that Boissoin’s letter exposed people to hatred and contempt, and that it fostered an atmosphere of violence, citing the reported assault and the alleged quotation of the victim as support for his claim. The human rights

panel agreed with Lund that the letter exposed homosexuals to hatred or contempt, and concluded that Boissoin and the Coalition violated subsection 3(1)(b) of the Human Rights, Multiculturalism and Citizenship Act, RSA 2000, c H-14 (“Act”). Boissoin and the Coalition appealed by originating notice pursuant to section 37

of the Act. Overturning the panel’s conclusions, the reviewing judge went on to find that the panel had erred in its finding that the impugned letter was hateful and contemptuous of homosexuals. Lund appealed to the Court of Appeal.

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November 2012

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Lund v. Boissoin, (cont.) APPELLATE DECISION

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he appeal was dismissed. Subsection 3(1)(b) of the Act directly prohibits the publication before the public of any statement that is likely to expose a person or a class of persons to hatred or contempt on the basis of the listed grounds. The words “hatred or contempt”, found in s. 3(1) (b), are to be interpreted according to the Supreme Court’s decision in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 (“Taylor”). The newspaper published the subject letter because it decided that it was an honestly held expression of opinion by Boissoin on an issue of

public debate. The letter was essentially an expression of Boissoin’s opinion that teaching children at school that homosexuality is normal, and that same sex families are equivalent to heterosexual families, is morally wrong and should not be tolerated. Boissoin and others have the freedom to think, whether stemming from their religious convictions or not, that homosexuality is sinful and morally wrong, and the right to express that thought to others. The letter would properly be viewed as a polemic on a matter of public interest and did not qualify as reaching the extreme limits mandated by Taylor to expose persons to hatred or contempt. While expressing hostility to teaching tolerance of homosexuality in school, it did not, on the whole, elicit emotions of detestation, calumny, or vilification against homosexuals. The letter also constituted an expression of opinion in the course of public discourse within the meaning of subsection 3(2) of the Act, which exempts it from the application of subsection 3(1)(b). Subsection 3(2) is directed solely at the free expression of opinion. If the public statement properly qualifies as an expression of opinion, and is not something more than that, or something of a different character, then pursuant to s. 3(2) the statement of opinion is exempt from the prohibition set forth in subsection 3(1).

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Parkdale Nifty Fifties Seniors Association v Calgary (City), 2012 ABCA 301 Areas of Law: Municipal Law; Estoppel; Adverse Possession City and community association estopped from interfering with use of leased city properties by seniors’ group CLICK HERE TO ACCESS THE JUDGEMENT

BACKGROUND

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n 1983, the respondent community seniors’ group incorporated as a society, calling itself the Parkdale Nifty Fifties Seniors Association (“Nifty Fifties”). In the early 1980’s, with the City of Calgary’s support, appellant Parkdale Community Association (“Parkdale”) built a new community centre, including an autonomous senior citizens’ area, which became known as “Founders Hall”, to support that group’s activities. Parkdale allowed the seniors’ group to use the space without having to sign a lease or pay rent. By the 2000s, Parkdale began losing money and started searching for additional sources of

November 2012

revenue. In 2009, the Parkdale Board decided to take a more aggressive approach to the renting of its facilities. It began soliciting sublease offers for all parts of its facilities – including the Founders Hall, and the expansion, being used by the Nifty Fifties. In May of 2010, Parkdale presented the Nifty Fifties with a rental policy requiring them to relinquish their space and all of their rental revenue. Parkdale also advised that it had arranged to have the locks on the doors changed, although this was never done. A few months later, Parkdale gave notice to one of the Nifty Fifties’ renters that its lease was invalid and that it would have to sign a lease with Parkdale. Parkdale then went about posting a notice to all users that it was necessary for them to have a sublease with Parkdale, and that Parkdale would

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not recognize leasing arrangements made with Nifty Fifties. On October 22, 2010, the Nifty Fifties filed an Originating Notice in the Court of Queen’s Bench, seeking, inter alia, an injunction restraining Parkdale from interfering with or altering rental arrangements between the Nifty Fifties and its tenants. The trial judge found that Parkdale and the City were estopped from denying the right of Nifty Fifties to the use and possession of the Founders Hall and the expansion on the same terms as existed before the litigation began. Parkdale and the City appealed.


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Parkdale Nifty Fifties Seniors Association v Calgary , (cont.) APPELLATE DECISION

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he appeals were dismissed. Whatever limited right the trial judge found the Nifty Fifties to have as a result of the estoppel was derived from the head lease and did not constitute an interest in lands that was independent of the lease. The trial judge correctly held, on the evidence before him, that the Nifty Fifties were induced and encouraged to develop and use the subject areas within the leased lands exclusively for the purposes of their constituency. Furthermore, he found that the building expansion was funded by the Nifty Fifties on the expectation that they would have possession and

occupancy by paying their proportionate share of the common costs. In these circumstances, the trial judge correctly found it would be unconscionable for the Nifty Fifties to be deprived of their interest in the lease estate – however one describes that interest. The City’s reliance upon s. 609 of the Municipal Government Act, RSA 2000, c M-26, to defeat the Nifty Fifties’ interest is misplaced. Section 609 provides that “[n]o person can acquire an estate or interest in land owned by a municipality by adverse or unauthorized possession, occupation, enjoyment or use of the land.” Parkdale’s leasehold interest was neither adverse nor unauthorized, and the Nifty Fifties’ interest was derived with Parkdale’s consent. The use and occupation of the subject areas did not place Parkdale in default under its lease. In consequence, the Nifty Fifties’ interest in the leasehold estate was not obtained by adverse or unauthorized possession, occupation, enjoyment or use of the land. The Nifty Fifties have been in possession of their premises with the knowledge and consent of the City. Possession by consent is not an adverse possession.

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Communications, Energy and Paperworkers Union, Local 707 v. Suncor Energy Inc., 2012 ABCA 307 Areas of Law: Labour Relations; Drug-Testing Policy; Injunctions; Stay of Proceedings Interim injunction of employer’s drug and alcohol testing policy affirmed CLICK HERE TO ACCESS THE JUDGEMENT

BACKGROUND

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he respondent Communications, Energy and Paperworkers Union, Local 707 (“Union”) applied to Macklin J for an injunction to prevent the applicant Suncor Energy Inc. (“Suncor”) from proceeding on October 15, 2012, with a new random drug and alcohol testing policy affecting members of the Union who work in “safety-sensitive” or “specified” positions. The Union contended that Suncor regarded about 85% of the site positions to fit those categories. Suncor submitted the policy would involve a computer-based random selection of employees and that November 2012

the process itself involved urine samples. By letter dated June 20, 2012, Suncor had announced its intention to the workers that it would apply this new policy as of October 15, 2012. The Union filed a grievance with respect to the new policy in July 2012. There were exchanges of correspondence between the Union and Suncor on the merits and also as to arbitrator nominees. By the time the motion came before Macklin J, no arbitrator had yet been agreed upon. The arbitration panel was set to hear the grievance on November 28, 2012. Suncor said that the new policy was a further step in a series of policy changes it had taken over the years to enhance the safety of the inherently dangerous

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worksite involved, outlined the varieties of risks involved, and referred to fatalities that had occurred. Suncor characterized this new policy as an exercise of management rights consistent with the express terms of the collective agreement and contended that it was not inconsistent with the reasonableness standard ordinarily applied to the exercise of management rights. The collective agreement does not itself expressly authorize the sort of random testing contemplated by Suncor’s policy. The Union’s position was that the new policy was not consistent with the collective agreement nor with the common


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Communications, Energy and Paperworkers Union, (cont.) law, particularly as embodied by the values and principles set out in cases dealing with ss. 7 and 8 of the Canadian Charter of Rights and Freedoms. The Union also submitted the policy contravenes the Personal Information Protection Act, SA 2003,

c P-6.5, and the Alberta Human Rights Act, RSA 2000, c A-25.5. Macklin J. ruled that Suncor was prohibited from implementing a random drug and alcohol testing policy with respect to the members of the Union until a labour arbitrator renders a decision on the

grievance of the Union regarding the random drug and alcohol policy. Suncor applied under Rule 508(3) of the Alberta Rules of Court for a stay of the injunction.

APPELLATE DECISION

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he application for a stay of the order of Macklin J is dismissed. The three-part test applied to motions under Rule 508(3) consists of serious question(s), irreparable harm and balance of convenience. Suncor has a serious question which is arguable on the appeal. The evidence of Suncor as to harm does not persuade the Court of Appeal that there is a real possibility that the enforcement of the drug and alcohol policy would avoid the tragic result the policy is aimed at stopping between now and November 28, 2012,

the date of the arbitration panel hearing. There is considerable force on the Union’s side of the debate, since, as La Forest J. stated in R v Dyment, [1988] 2 SCR 417 at 429, 55 DLR (4th) 503, “[one’s] sense of privacy transcends the physical and is aimed essentially at protecting the dignity of the human person. Our persons are protected not so much against the physical search (the law gives physical protection in other ways) as against the indignity of the search, its invasion of the person in a moral sense.” As the Union submits, this sort of intrusion by random alcohol and drug testing is inevitable. On balance, for this comparatively short period, the negative effect on Union members is visible, and the prospect of an actual increase in the margin of safety during such a short window of time is not enough to overcome that fact.

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Karagic v. Calgary (City), 2012 ABCA 309 Areas of Law: Municipal Law; Property Development Permits Permit variance decision by Calgary Subdivision and Development Appeal Board affirmed; Board’s interpretation of boulevard as “amenity” reasonable

BACKGROUND

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n December 2010, the applicant Sasa Karagic (“Karagic”) applied for a development permit from the respondent City of Calgary Development Authority requesting the relaxation of the driveway width on his property. The existing driveway served a single garage. The Development Authority advised him in writing that a permit was not required. On that assurance, Karagic widened his driveway. After the construction of the new driveway, the Development Authority changed its position and

November 2012

informed Karagic that a development permit was required. The development permit was approved on September 28, 2011, but it required a partial narrowing of the driveway. Karagic appealed the permit. The Richmond/Knob Hill Community Association (“Association”) joined the appeal, arguing that the driveway should be removed altogether. The respondent Subdivision and Development Appeal Board of the City of Calgary (“Board”) considered the relevant sections of The City of Calgary Land Use Bylaw 1P2007 (“Bylaw”) and the Municipal Government Act, RSA 2000, c M-26

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(“MGA”) and determined that the widened driveway unduly interfered with the amenities of the neighborhood. The Board amended the permit conditions, reducing the size of the driveway to its previously existing width across city property, and allowed the widening only on the private property. Karagic applied to the Court of Appeal for leave to appeal.


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Karagic v. Calgary (City) , (cont.) APPELLATE DECISION

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he application was dismissed. The principal issue was the Board’s interpretation of the term “amenities” in s. 687(3) (d)(i)(A) of the MGA. Section 687(3)(d)(i)(A) provides: “In determining an appeal, the subdivision development appeal board [...] may make an order or decision or issue or confirm the issue of a development permit even though the proposed development does not comply with the land use bylaw if, in its opinion, the proposed development would not unduly interfere with the amenities of the neighborhood.” “Amenities” was not defined in the MGA. Karagic submitted that the Board erred in finding that the boulevard was an amenity. To satisfy the test for leave, Karagic must establish an error of law or jurisdiction. An error of jurisdiction existed where there was no evidence to support the

Board’s decision. In the present case, the Board had ample evidence about the impact of the driveway on safety on the boulevard. The Board considered that there were schools in the area and that pedestrian use would be affected by a widened driveway which potentially accommodated more cars, either parked or crossing the boulevard. The Board’s interpretation was justified, intelligible, transparent and within a range of possible acceptable decisions. The Board’s finding that the boulevard was an amenity must be read in conjunction with the whole of the reasons. Furthermore, the Board’s decision involved the application of the law to the facts and was not reviewable by The Court of Appeal.

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Alberta Take Five November 2012