Author: Jonnette Watson Hamilton Page 5 of 42

B.A. (Alta.), LL.B. (Dal.), LL.M. (Col.).
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Case Commented On: Fraser v Canada (Attorney General), 2020 SCC 28 (CanLII)

On October 16, 2020, the Supreme Court of Canada released its long-awaited decision in Fraser v Canada (Attorney General), 2020 SCC 28 (CanLII). Fraser involved a claim of adverse effects discrimination by female RCMP members who lost their entitlement to full pension benefits when they entered temporary job-sharing arrangements. We blogged on the Federal Court of Appeal decision in Fraser here, and – in the interests of disclosure – also participated in the Supreme Court intervention in Fraser by the Women’s Legal Education and Action Fund (LEAF) (for LEAF’s news release following the Fraser decision, see here).

Fraser is the first successful adverse effects claim under section 15 of the Canadian Charter of Rights and Freedoms in over 20 years and it is the first ever successful adverse effects claim under section 15 in a sex discrimination context. This post will focus on the typical challenges that have been faced in adverse effects claims and review how Justice Rosalie Abella’s majority decision in Fraser responded to these problem areas, which were also apparent in the lower court decisions in Fraser. Although Justice Abella wrote for the majority of the Court (Chief Justice Richard Wagner and Justices Michael Moldaver, Andromache Karakatsanis, Sheilah Martin and Nicholas Kasirer, as well as herself), we will refer to the judgment as hers because it appears to be the culmination of her life-long work on equality rights and may be her last judgment on this subject before her retirement in 2021.

We also review the two dissenting judgments in Fraser, written by Justices Russell Brown / Malcolm Rowe and Justice Suzanne Côté. Our title is inspired by Justice Abella’s allegation that the dissent “tug[s] at the strands of a prior decision they disagree with … [to] unravel the precedent” (at para 133, referring to Alliance, one of the Court’s two 2018 pay equity decisions that we cite below). Interestingly, the same could be said of the majority judgement, which unravels the knots of a large body of section 15 jurisprudence that has made it difficult to prove adverse effects discrimination claims. It is these problem areas that we turn to next.

Tenant’s Insurance, Ministerial Order No SA:005/2020 and Evictions of Residential Tenants

By Jonnette Watson Hamilton

On September 25, 2020

In COVID-19, Landlord/Tenant

By: Jonnette Watson Hamilton

PDF Version: Tenant’s Insurance, Ministerial Order No SA:005/2020 and Evictions of Residential Tenants

Case Commented On: 20005321 (Re), 2020 ABRTDRS 20 (CanLII)

This decision by a Tenancy Dispute Officer (TDO), J. Lambert, of Alberta’s Residential Tenancy Dispute Resolution Service (RTDRS) is notable for three reasons. The first – and probably the most helpful to the widest range of landlords and tenants – is the discussion about whether or not a tenant’s failure to produce evidence of tenant’s insurance as required by their residential tenancy agreement is a “substantial breach” that entitles the landlord to evict the tenant. It seems that many residential tenancy agreements require tenants to obtain insurance for their own property – contents insurance – and many tenants do not bother to do so. The second reason is its consideration of Ministerial Order No SA:005/2020, which was intended to offer some help to tenants who could not pay their rent due to COVID-19. That Ministerial Order lapsed on August 14, 2020, so whatever impact it had should be apparent by now. But because of structural problems such as the small percentage of RTDRS decisions made public and the closure of courts to eviction cases at the beginning of the pandemic, we will probably never know whether or what kind of difference that Ministerial Order made. We do have a hint of its impact in the decision in 20005321 (Re), but it is only a hint. The third reason this decision is notable is that it is one of only 24 RTDRS decisions made public so far in 2020. The publication of some RTDRS decisions was a recent and deliberate commitment to “improved access to justice by publishing written RTDRS decisions through the CanLII database”, according to the Service Alberta Annual Report 2019/2020 (at 19). This decision contributes toward that goal, but more is needed.

Exercising the Discretion to Allow Late Family Maintenance and Support Applications

By Jonnette Watson Hamilton

On September 9, 2020

In Wills and Estates

By: Jonnette Watson Hamilton

PDF Version: Exercising the Discretion to Allow Late Family Maintenance and Support Applications

Case Commented On: Lamont Estate, 2020 ABQB 449 (CanLII)

A family member has a limited amount of time in which to apply to the Court of Queen’s Bench of Alberta when seeking a greater share of a deceased person’s estate than the share given to them in that person’s will or on intestacy. Under section 89(1) of the Wills and Succession Act, SA 2010, c W-12.2 (WSA), the family member must apply within six months after the grant of probate or administration. Nevertheless, a court may allow a late application for a greater share of any part of the estate not yet distributed: section 89(2). This decision of Justice Nicholas Devlin appears to be the first time that a court has looked at what factors it should consider when exercising its discretion to allow or disallow a late application.

Protests Matter: A Charter Critique of Alberta’s Bill 1

By Jonnette Watson Hamilton

On June 9, 2020

In Constitutional, Human Rights

By: Jennifer Koshan, Lisa Silver, and Jonnette Watson Hamilton

PDF Version: Protests Matter: A Charter Critique of Alberta’s Bill 1

Bill Commented On: Bill 1, the Critical Infrastructure Defence Act, 2nd Sess, 30th Leg, Alberta, 2020

The last few weeks have emphasized the crucial role of public protests. The Alberta Energy Minister’s statement about the COVID-19 pandemic being a great time to build pipelines without protestors went viral (and not in a good way), and demonstrations in the United States and Canada are stark reminders that direct and systemic racism and colonialism are present in Canadian society today. In the midst of these events, the Alberta government passed Bill 1, the Critical Infrastructure Defence Act. Bill 1 was initially tabled in February 2020 during the blockades of rail lines in support of Wet’suwet’en hereditary chiefs. Only five sections long, it contains a number of prohibitions and offences relating to activities involving “essential infrastructure.” This post reviews Bill 1’s compliance with the Canadian Charter of Rights and Freedoms, concluding that it is an unjustifiable violation of at least five different fundamental rights and freedoms. A second post will examine how Bill 1 also treads on the federal government’s criminal law powers under The Constitution Act, 1867 and Aboriginal rights under section 35 of The Constitution Act, 1982.

Can an Alberta Landlord’s Duty to Make Reasonable Efforts to Negotiate a Meaningful Payment Plan with Residential Tenants before Evicting Tenants be Enforced?

By Jonnette Watson Hamilton

On May 25, 2020

In COVID-19, Landlord/Tenant

By: Jonnette Watson Hamilton

PDF Version: Can an Alberta Landlord’s Duty to Make Reasonable Efforts to Negotiate a Meaningful Payment Plan with Residential Tenants before Evicting Tenants be Enforced?

Legislation Commented On: Ministerial Order No. SA: 005/2020 [Service Alberta]

Since May 1, 2020, a landlord in Alberta has been able to evict a residential tenant for non-payment of rent and utilities even if the failure to pay is due to circumstances beyond the tenant’s control caused by the COVID-19 pandemic. At least one politically prominent landlord has already starting eviction proceedings (see here and here). In place of the suspension of evictions that expired April 30, the government introduced a duty on landlords to make reasonable efforts to enter into meaningful payment plans with their tenants. According to the government description of this new duty (in Rent Payment Plans COVID-19), landlords will have to prove they made these efforts before landlords can issue a 14-day notice or apply to the courts or Residential Tenancy Dispute Resolution Service (RTDRS) to terminate a tenancy for non-payment of rent. Landlords may eventually have to prove that they made those efforts if tenants sue them or refuse to leave the rental premises, but there is a gap in the new law that makes it unnecessarily difficult for tenants – or anyone else – to enforce a landlord’s new duty. The Minister for Service Alberta needs to amend section 29 of the Residential Tenancies Act, SA 2004, c R-17.1 (RTA) and section 32 of the Mobile Home Sites Tenancies Act, RSA 2000, c M-20 (MHSTA) to allow tenants who have failed to pay rent to object to a 14-day notice terminating a tenancy on the basis that the landlord has not complied with its new duty.

Author: Jonnette Watson Hamilton Page 5 of 42

Tugging at the Strands: Adverse Effects Discrimination and the Supreme Court Decision in Fraser

Tenant’s Insurance, Ministerial Order No SA:005/2020 and Evictions of Residential Tenants

Exercising the Discretion to Allow Late Family Maintenance and Support Applications

Protests Matter: A Charter Critique of Alberta’s Bill 1

Can an Alberta Landlord’s Duty to Make Reasonable Efforts to Negotiate a Meaningful Payment Plan with Residential Tenants before Evicting Tenants be Enforced?