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CIVIL PROCEDURE - Parties - Interveners - Charter litigation

Friday, October 09, 2020 @ 6:16 AM  


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Application by Alberta Union of Provincial Employees (AUPE), British Columbia Civil Liberties Association (BCCLA) and Canadian Civil Liberties Association (CCLA) for permission to intervene in an appeal by the province from an interim injunction that suspended regulatory amendments pending trial. The province, through amendments to the Child, Youth and Family Enhancement Act, had lowered the maximum age of eligibility for benefits under the Support and Financial Assistance Agreement Program from 24 to 22 years old. The respondents, participants in the Program, alleged the amendments violated their rights under ss. 7 and 12 of the Canadian Charter of Rights and Freedoms (Charter) and constituted a breach of fiduciary duty by the province. The respondents had successfully applied for permission to have the appellate court’s prior decision in Alberta Union of Provincial Employees v. Alberta (AUPE 2019) reconsidered in the context of the appeal. AUPE proposed to address the test for injunctive relief. BCCLA proposed to address the scope of s. 7 Charter protection. CCLA proposed to address the distinction between mandatory and prohibitive injunctions in the context of constitutional cases and that no presumption of constitutionality should be recognized for legislation enacted in the public interest.

HELD: Application allowed. AUPE had an interest in and would be directly and significantly affected by the reconsideration of AUPE 2019 and any possible modifications or clarifications to the test for injunctive relief that followed from it. AUPE would bring a different perspective on how a more strenuous test for injunctive relief involving legislation could impact various Charter rights differently, which would assist the court in its consideration of the policy implications that might flow from their reconsideration of AUPE 2019. BCCLA met the test for intervention on the argument that if the respondents’ s. 7 claim was a positive rights claim, there was a serious issue to be tried with respect to that claim. CCLA was granted permission to intervene on the issue of whether the presumption of constitutionality should be recognized.

A.C. v. Alberta, [2020] A.J. No. 919, Alberta Court of Appeal, D. Pentelechuk J.A., September 4, 2020. Digest No. TLD-October52020010