ABLawg

Legislation Commented On: Back to School Act, SA 2025, c B?0.5; Protecting Alberta’s Children Statutes Amendment Act, 2025, SA 2025, c 24

PDF Version: The Notwithstanding Clause x 4 in Alberta: Now What?

As discussed previously on ABlawg, in the space of one month in late 2025 the Alberta government invoked the notwithstanding clause in section 33 of the Charter four times through two different statutes: the Back to School Act, SA 2025, c B?0.5 (BTSA) and the Protecting Alberta’s Children Statutes Amendment Act, 2025, SA 2025, c 24 (PACSAA). The BTSA ended the Alberta teachers’ strike and lockout, ordered the teachers back to work, imposed “collective agreements”, and prohibited further strikes and lockouts with hefty penalties attached (see this post by Shaun Fluker et al). The government used section 33 to declare that the BTSA shall operate notwithstanding sections 2 and 7 to 15 of the Charter (section 3) and purported to oust the jurisdiction of courts to hear constitutional challenges related to the legislation (section 14). The PACSAA amended three Alberta statutes that target the rights of trans and gender diverse youth by restricting access to gender-affirming health care (Health Professions Act, RSA 2000, c H-7, ss 1.91 and 1.92), prohibiting use of gender-affirming names and pronouns at school without parental consent / notification (Education Act, SA 2012, c E-0.3, s 33.2; see also amendments that limit access to education on sex, sexuality and gender identity), and limiting participation in “women-only” sports (Fairness and Safety in Sport Act, SA 2024, c F-2.5) (see this previous post). The amendments in the PACSAA again declare that these three statutes shall operate notwithstanding sections 2 and 7 to 15 of the Charter. Pursuant to section 33(3) of the Charter, declarations such as those in the BTSA and PACSSA cease to have effect five years after they come into force. The BTSA and the PACSAA also declare that they apply notwithstanding the Alberta Bill of Rights, SA 2000, c A-14 and Alberta Human Rights Act, RSA 2000, c A-25.5, but the issues arising from those declarations will not be explored here.

“Time is of the Essence” Clauses are Incompatible with Indefinite Time Provisions

By Jassmine Girgis

On March 3, 2026

In Contracts, Remedies

By: Jassmine Girgis

Case Commented On: Nova Fish Farms Inc v Cold Ocean Salmon Inc, 2025 NLCA 28 (CanLII)

PDV Version: “Time is of the Essence” Clauses are Incompatible with Indefinite Time Provisions

A “time is of the essence” (TOE) clause is a boilerplate contract clause that renders a time limit or deadline in a contract to be a fundamental term of the agreement, entitling the other party to terminate the agreement if that term is breached, even in a minor way.

In Nova Fish Farms Inc v Cold Ocean Salmon Inc, 2025 NLCA 28 (CanLII), the Court of Appeal of Newfoundland and Labrador decided that a TOE clause does not apply to an indefinite time provision in a contract. On January 22, 2026, the Supreme Court granted leave to appeal this decision.

The Application of Provincial Statutes of Limitation to Indigenous Claims

By Kent McNeil

On February 26, 2026

In Indigenous, Limitations, Treaty Rights

By: Kent McNeil

Case Commented On: Wesley v Alberta, 2024 ABCA 276 (CanLII), leave to appeal denied, Stoney Indian Band, et al. v His Majesty the King in Right of the Province of Alberta, et al., 2025 CanLII 44340 (SCC)

PDF Version: The Application of Provincial Statutes of Limitation to Indigenous Claims

The application of provincial statutes of limitation to Indigenous rights claims has become a major issue in recent years (for detailed discussion, see Kent McNeil & Thomas Enns, “Procedural Injustice: Indigenous Claims, Limitation Periods, and Laches” (2022) All Papers (McNeil & Enns). Because many of these claims are based on alleged wrongs committed long in the past, both the provincial and federal governments often rely on the expiry of statutory limitation periods and the equitable doctrine of laches to prevent them from ever being decided on their merits. The Supreme Court has generally accepted the limitations defence insofar as claims for substantive relief such as damages are concerned, but has ruled that declarations of Crown wrongdoing that are designed to promote negotiations, without entailing any consequential remedial relief, are not barred by limitation periods (e.g. see Manitoba Metis Federation Inc. v Canada (Attorney General), 2013 SCC 14 (CanLII); Shot Both Sides v Canada, 2024 SCC 12 (CanLII)). The Alberta Court of Appeal decision in Wesley v Alberta, 2024 ABCA 276 (Wesley ABCA), is a recent example of the application of limitation periods that, in my view, reveals a persistent lack of willingness by the courts to give serious consideration to the constitutional issues at stake.

Limiting Contractual Liability for Breaching the Duty of Good Faith

By Jassmine Girgis

On February 24, 2026

In Contracts, Corporate / Commercial, Indigenous, Remedies

By: Jassmine Girgis

Case Commented On: 1401380 Ontario Limited (Wilderness North Air) v Hydro One Remote Communities Inc, 2025 ONCA 827 (CanLII)

PDF Version: Limiting Contractual Liability for Breaching the Duty of Good Faith

The contractual duty to exercise discretion in good faith applies to every contract, regardless of the parties’ intentions; parties cannot exclude the duty altogether. But what if they do not seek to exclude the duty itself, and instead seek only to limit the consequences of breaching it? Is that distinction legally meaningful? And is it permitted?

This post discusses how the duty to perform in good faith endures on both conceptual and practical grounds as long as there is liability for breaching it, even where that liability is contractually limited.

In 1401380 Ontario Limited (Wilderness North Air) v Hydro One Remote Communities Inc, 2025 ONCA 827 (CanLII), the Ontario Court of Appeal decided that parties may limit the scope of their liability for breach of the duty of good faith, and that doing so does not constitute contracting out of the duty itself.

AlphaBow Again Challenges AER Enforcement Related to Oil and Gas Closure Liabilities During Insolvency

By Drew Yewchuk

On February 23, 2026

In Energy, Environmental, Insolvency, Oil & Gas

By: Drew Yewchuk

Decisions Commented On: Re AlphaBow Energy Ltd., 2025 ABKB 622 (CanLII) (AlphaBow ABKB); Re AlphaBow Energy Ltd., 2026 ABCA 35 (CanLII) (AlphaBow ABCA)

PDF Version: AlphaBow Again Challenges AER Enforcement Related to Oil and Gas Closure Liabilities During Insolvency

This post comments on two decisions relating to the ongoing insolvency process of AlphaBow Energy Ltd. (AlphaBow). AlphaBow brought challenges to the power of the Alberta Energy Regulator (AER) to require security deposits as a condition for transferring oil and gas licences from AlphaBow’s inventory. AlphaBow was unsuccessful at King’s Bench and then failed to get leave to appeal from the Court of Appeal.

This post provides some background to AlphaBow’s insolvency, summarizes the two decisions, and concludes with commentary on what AlphaBow’s ongoing insolvency process shows about oil and gas closure liability management and insolvency in Alberta.