Wednesday, February 22, 2017

Calgary man charged with seven counts of fraud


    The Alberta Securities Commission and Alberta RCMP say that a Calgary man has been charged in connection with an investigation conducted by the Joint Serious Offences Team.  Neil Andrew McDonald has been charged with seven counts of fraud over $5,000, one count of fraud under $5,000 and one count of money laundering.  The charges stem from information that alleges McDonald fraudulently raised about $240,000 from seven different investors between October 2012 and July 2015.  These are the first arrest resulting from an investigation of JSOT in Alberta and the third time McDonald has violated Alberta securities law.
    In 2009, he fraudulently raised $439,000 from investors and was banned from trading or advising in securities for a period of 15 years.  McDonald repaid the money in restitution and also agreed to pay the Commission settlement and investigation costs.  In 2011, he raised another $240,000 from investors and was charged under the Securities Act and slapped with a permanent ban from trading in Alberta in 2014.  He was also sentenced to jail for two years in May 2015.
    Officials say the current Criminal Code charges are from events that took place while he was engaged in court proceedings and waiting to serve his jail sentence.  McDonald remains in custody and is awaiting a bail hearing on Wednesday.  JSOT is an enforcement partnership between the ASC, the RCMP Federal Policing Financial Integrity Program and Alberta Crown Prosecution Service.  JSOT targets repeat offenders, serious frauds and breaches of ASC or court orders and bans.

    Alberta Proposes New Anti-Harassment Legislation

    Fasken Martineau DuMoulin LLP

    Jordan C. Hulecki
    Canada February 21 2017
    A proposed change to Alberta's Occupational Health and Safety (OHS) legislation aimed at preventing and punishing workplace harassment and bullying would create additional duties for Alberta workers and employers.
    Alberta OHS law currently recognizes physical violence in the workplace, but not psychological harassment. In November 2016, Alberta New Democrat Party MLA for Calgary-Klein, Craig Coolahan, introduced Bill 208, the Occupational Health and Safety (Protection from Workplace Harassment) Amendment Act, 2016. If passed, Bill 208 would make workplace harassment, or an employer's unreasonable failure to prevent it, offences under the Occupational Health and Safety Act (OHS Act), and would give workers the option of having harassment complaints investigated by an OHS officer.
    Bill 208 defines harassment as "any inappropriate conduct, comment, display, action or gesture by a person" that "constitutes a threat to the health and safety of the worker" and that either (A) is based on prohibited grounds (race, religion, gender, disability, etc.); or (B) "adversely affects the worker's psychological or physical well-being" and could reasonably "cause a worker to be humiliated or intimidated".
    Definition (B) expressly excludes "any reasonable action" by an employer "relating to the management and direction of the employer's workers or the work site", apparently recognizing that management styles may legitimately include elements that, in other contexts, could constitute harassment. Discriminatory harassment (definition (A)) cannot be excused on this basis.
    Under the proposed legislation, workers would be prohibited from harassing or "participating in the harassment of" other workers and employers would be responsible for ensuring that their workers are not exposed to employment-related harassment. Contravention of these responsibilities would trigger the penalty provisions in the OHS Act. Under these provisions, an OHS officer investigating a harassment complaint could have discretion to impose an administrative penalty of up to $10,000 for each day the harassment continues.
    Employers would also be required to establish and administer a workplace harassment policy and investigate harassment complaints. A worker who is dissatisfied with the employer's investigation would have the option of filing a complaint with an OHS officer for investigation and mediation. The results of this investigation would be subject to administrative review and appeal to the courts.
    Bill 208 received first reading on November 9, 2016, but the legislative Session ended without further progress.
    Alberta workers and employers would likely applaud the Legislature's recognition of workplace harassment as a legitimate concern deserving legal sanction. However, employers may dislike the prospect of becoming subject to OHS investigation of harassment complaints at the option of an aggrieved worker, which would increase uncertainty and compliance costs even for compliant employers. Conversely, workers may worry about the government's capacity to investigate complaints in a timely manner, given existing concerns that Alberta OHS officers are overstretched.
    The availability of administrative penalties at the investigation stage also raises concerns about fairness and consistency, considering the nuanced facts commonly associated with harassment complaints and the complicated definition of "harassment" that has been proposed. The exception for "reasonable management action" in particular will likely require interpretation, as will the meaning of "participating" in harassment.

    Faculty of Law makes history with sitting of the court

    February 22, 2017
    Chief Justice Catherine Fraser of the Court of Appeal of Alberta welcomed guests and brought greetings on behalf of the Court. Photos by Adrian Shellard, for the Faculty of Law
    Chief Justice Catherine Fraser of the Court of Appeal of Alberta welcomed guests and brought greetings on behalf of the Court. Photos by Adrian Shellard, for the Faculty of Law
    The justices of the Court of Appeal of Alberta, from left, Justice Bruce McDonald, Justice Jack Watson, Justice Patricia Rowbotham, Chief Justice Catherine Fraser, Justice Sheilah Martin, Justice Peter Martin, Justice Frederica Schutz, Justice Brian O'Ferrall made history while helping celebrate the law school's 40th anniversary.
    The justices of the Court of Appeal of Alberta — from left: Justice Bruce McDonald, Justice Jack Watson, Justice Patricia Rowbotham, Chief Justice Catherine Fraser, Justice Sheilah Martin, Justice Peter Martin, Justice Frederica Schutz, Justice Brian O'Ferrall — made history while helping celebrate the law school's 40th anniversary.
    "Oyez, oyez, oyez! This ceremonial Sitting of the Court of Appeal of Alberta in celebration of the ruby anniversary of the foundation of the Faculty of Law at the University of Calgary is now in session. All persons having business before this honourable court, draw nigh and you shall be heard. God save the Queen!"
    As the Faculty of Law’s 40th, or ruby, anniversary year ends, it seemed fitting to use the occasion to make history. On Feb. 16, the law school hosted the Ceremonial Sitting of the Court of Appeal of Alberta, which was the first time the court had sat outside the law courts in Edmonton and Calgary, and the first time the court had convened a panel of eight judges. There are typically only three on a panel at any one time, and only very occasionally will the court sit in a panel of five.
    “Our founders made history when they successfully fought for the creation of our law school more than 40 years ago,” says Ian Holloway, dean of the law school. “To be able make history again as we close out our anniversary celebrations was very serendipitous.”
    The room was filled with good cheer and pride as the audience listened to the great institution the law school has become; from a law school drawing the skepticism of law firms for its focus on skills, to one that is recognized as a leader in innovation for the practice of law. Craig Steele, LLB’89 and past-president of the Calgary Bar Association, said about the mooting and debating program, “This law school, with its focus on practical learning, helped me hone my advocacy skills for my career and set me up for continued success.”
    Tony Young, president of the Law Society of Alberta, echoed Steele’s comments, saying, “The Faculty of Law is a leader in innovation in the practice of law, giving students a better understanding of the practical realities of the profession before they enter the legal marketplace.”
    “Each student enters the law school with a sense of purpose,” said Chief Justice Catherine Fraser, past recipient of an Honorary Doctor of Laws from the University of Calgary, who led the sitting. “And these students graduate with a greater sense of the human experience and are voluntarily assuming the role as guardians of the rule of law.”
    Chief Justice Fraser implored students to “keep the faith, and pass on the rule of law in at least as good shape as it was given to you.”

    Legislative committee recommends abolishing 'archaic' squatters' rights law

    The motion gained all-party backing with enthusiastic support from opposition MLAs and cautious agreement from members on the government side.
    The motion’s success brought a round of applause from Wildrose MLA Don MacIntyre, who proposed it at the resource stewardship committee meeting at the Federal Building on Tuesday.
    Adverse possession — often referred to as squatters’ rights — happens when someone occupies the land of another person. It can be accidental, with a misplaced fence line or building, or someone purposely occupying vacant land.  “The key is the occupier possessing the land for long enough — typically 10 years,” reads a report from the Miller Thomson law firm.  In an interview after the motion passed, MacIntyre said scrapping the law would ease the minds of Alberta landowners.
    “It means landowners will actually have the right to their land and they will be able to do something positive if there are people squatting on their land,” said MacIntyre.  He said the big question now is how the government decides to draft the legislation.  “What (the bill) actually looks like when it comes out of the mill is anyone’s guess. So this is only step one,” he said.
    The law has long been in the crosshairs, with the Alberta property rights advocate recommending it be scrapped in 2014. Alberta and Nova Scotia are the only provinces with such a law still on the books. The resource stewardship committee requested a review of the law by Alberta Justice in early 2016; it never got underway.  Government MLAs initially worried that abolishing the law would leave a land rights void or a loophole that could be exploited.  MacIntyre tried to allay their concerns, saying the motion only recommends that the legislature work on a bill. That bill can be brought back to the committee for consultations and tweaking and any holes can be filled before the legislation is passed, he said.  After about an hour of debate, MLAs were unanimously in favour of the recommendation.  Across the board, opposition MLAs argued the law was a relic of a different time in Alberta’s history, when its citizens were more transient.
    “It’s an old law that’s crazy and should be abolished,” said Progressive Conservative MLA Wayne Drysdale, in the most succinct version of an argument that was repeated several times. Several MLAs referred to the law as “archaic.”  The adverse possession law has only been used 23 times in the last 27 years, but it has been the focus of some high-profile cases.  In 1999, a woman was told to leave her shack on a southern Alberta ranch that was owned by multimillionaire brothers Maurice and Harold King. Tysanna Robertson had argued she was entitled to live in the home permanently through adverse possession. She said the brothers took her in after she fled an abusive relationship and she had been allowed to live and graze her horses on the pastures without paying rent.
    The court ruled that she was simply living there thanks to the generosity of the King brothers and because she wasn’t mentioned in either of their wills, she had to leave.
    In 2015, a rancher from Cardston in southern Alberta got nearly 10 acres of land from his neighbour, after successfully arguing he was entitled to it through adverse possession.

    Monday, February 20, 2017

    Growing trial delays spike applications to get cases thrown out, lawyer warns

    Almost 60 applications filed since October after deadlines exceeded

    CBC News Posted: Feb 16, 2017 2:48 PM MT Last Updated: Feb 16, 2017 9:26 PM MT
    After the Supreme Court of Canada imposed strict timelines on how long a criminal matter can take to get to trial, 58 applications have been filed in Alberta to have cases dismissed over unreasonable delays.
    After the Supreme Court of Canada imposed strict timelines on how long a criminal matter can take to get to trial, 58 applications have been filed in Alberta to have cases dismissed over unreasonable delays. (CBC)
    Alberta lawyers are sounding the alarm again about backlogs in the justice system that have resulted in alleged criminals walking free before they get to trial.  Last summer, a Supreme Court decision put hard timelines on what is considered an unreasonable delay for bringing criminal matters to trial.
    Defence lawyers can now file so-called Jordan applications — named after the high court decision that gives the Crown 18 months to get provincial court matters to trial and 30 months for superior court cases. Since late October, lawyers in Alberta have filed 58 Jordan applications to suspend cases over unreasonable delays.  Ian Savage, head of the Criminal Defence Lawyers Association in Calgary, says he isn't surprised.  "I think that number will be increasing over the next year drastically," he said.  Savage says lawyers and judges are trying to bring cases to trial more quickly, but there's only so much they can do.
    "There are many current strains in the system that work against that, that only government can actually control in terms of financing the justice system," he said.  Since the province started tracking Jordan applications last October: 
    • 58 Jordan applications have been filed.
    • 10 applications are pending.
    • Six applications have been granted, one of which was appealed by the Crown.
    • 16 applications have been dismissed by the court.
    • 12 applications were abandoned by defence.
    • Six matters were proactively stayed by Crown on the basis that they would not survive a Jordan application.
    • Eight matters were resolved unrelated to Jordan.
    Savage says one of the problems is the shortage of Court of Queen's Bench judges in Alberta.  Last October, the Alberta government announced it would create 10 new judge positions.  Judges at the superior court level — such as Alberta's Court of Queen's Bench — are appointed and paid by the federal government, but the province administers and pays for all the related support services at the courthouses.  Although provinces can increase the number of justice positions on superior courts, only the federal government has the authority to approve and appoint justices.  "We understand more [Queen's Bench] judges are going to be appointed ... but that won't alleviate the long term deficiency that's been in place in Alberta for more than 10 or 15 years," Savage said. "So that will slowly improve the system, but not quickly."
    At the provincial court level, Savage says the government's decision to hold the line on legal aid funding is also creating delays. "So there's a lot of things in the system that are not functioning well, and will continue to produce more applications under the Jordan principles."  Justice Minister Kathleen Ganley said she couldn't comment on whether more funding was coming to legal aid because the budget, expected in March, is currently being developed. 
    She said measures are being taken to reduce the number of cases that end up in court. Ganley says early case resolution units staffed by senior Crown prosecutors resolve criminal cases without having to go to trial.  The province is also trying to move procedural applications out of the courtroom and over to the courthouse counter, as well to use remote scheduling so parties don't have to appear before a judge to set dates for a next appearance.  "So that takes those administrative things away from judges in the provincial court to have to deal with so that's been helpful," Ganley said