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Author: Jonnette Watson Hamilton Page 6 of 43

B.A. (Alta.), LL.B. (Dal.), LL.M. (Col.).
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Protests Matter: A Charter Critique of Alberta’s Bill 1

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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.

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

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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.

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Residential Tenancies in Alberta: Evictions for Non-Payment of Rent No Longer Suspended

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On April 30, 2020

In COVID-19, Landlord/Tenant

By: Jonnette Watson Hamilton

PDF Version: Residential Tenancies in Alberta: Evictions for Non-Payment of Rent No Longer Suspended

Legislation Commented On: Tenancies Statutes (Emergency Provisions) Amendment Act, 2020 (Bill 11); Late Payment Fees and Penalties Regulation, Alta Reg 55/2020; and six Ministerial Orders issued in relation to COVID-19

In response to the COVID-19 pandemic, the Alberta government has issued six ministerial orders that affect residential tenancies, as well as one regulation and one amending statute. All eight instruments are described in terms of the changes they make to pre-pandemic residential tenancy law in a table towards the end of this post. For the most part, however, this post focuses on the two ministerial orders dealing with evictions. Ministerial Order No. 20/2020 temporarily suspended the enforcement of some of the eviction orders made by the tenancy dispute officers of the Residential Tenancy Dispute Resolution Service (RTDRS) or by judges of the Provincial Court or Court of Queen’s Bench. Eviction order enforcement was suspended only if the reason to terminate the tenancy was for the failure to pay rent and/or utilities and nothing else, and only if that failure to pay was due to circumstances beyond the tenant’s control caused by the COVID-19 pandemic. Just how civil enforcement agencies have been deciding if those reasons are present is unknown. The suspension of evictions only lasts until Ministerial Order No. 20/2020 lapses. It lapses on the earliest of April 30, 2020, or when the Minister of Justice or the provincial Cabinet terminates it, or 60 days after the Order in Council declaring the state of public health emergency lapses – unless it is sooner continued by a Cabinet order. It appears that the suspension will end on April 30. What happens to evictions on and after May 1? The answer to that question is dictated by Ministerial Order No. SA: 005/2020, which imposes on landlords a duty to negotiate payment plans with their tenants. A landlord cannot get a court or RTDRS order to terminate a tenancy (or to pay rent in arrears or compensation for overholding) unless the landlord can prove either that the tenant failed to carry through on an agreed payment plan or, if there is no agreed payment plan, that the landlord “made reasonable efforts to enter into a meaningful payment plan” before applying to the court or RTDRS. Barring a last-minute Cabinet order, Ministerial Order No. SA: 005/2020 will be the only law standing between tenants who cannot pay their rent due to COVID-19 and their eviction after May 1.

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Alberta Court of Appeal Restores Access to Habeas Corpus

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On April 7, 2020

In Constitutional, Criminal

By: Jonnette Watson Hamilton

PDF Version: Alberta Court of Appeal Restores Access to Habeas Corpus

Case Commented On: Wilcox v Alberta, 2020 ABCA 104 (CanLII) (Wilcox CA)

This Court of Appeal decision is significant for a number of reasons. Most importantly, the decision means that accused individuals in pre-trial solitary confinement in Alberta now have access to habeas corpus, the fastest way to challenge the legality of that confinement. So too do prisoners held in solitary confinement from the very beginning of their sentence. It is also significant because it criticizes the approach taken by the Court of Queen’s Bench to recent habeas corpus applications, including that of Mr. Wilcox. The appellate court found that the lower courts misunderstood precedents, cited cases for rules those cases did not support, ignored a 1985 Supreme Court of Canada decision, relied upon a case that had been overturned, found that an issue was not pled when it was, came to unreasonable conclusions, and made an unwarranted threat of personal costs against Mr. Wilcox’s counsel. In addition, the Court of Appeal clarified which habeas corpus pleadings are vexatious and abusive and which are not. It also vindicated the work of the Alberta Prison Justice Society and many of the individual prisoners’ rights lawyers in that group.

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Are Landlords’ Late Payment Fees Enforceable?

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On February 5, 2020

In Landlord/Tenant

By: Jonnette Watson Hamilton

PDF Version: Are Landlords’ Late Payment Fees Enforceable?

Case Commented On: 19007636 (Re), 2020 ABRTDRS 1 (CanLII)

Are the late payment charges that some leases provide for and some landlords demand from tenants who are late with the rent enforceable? Do they have to be paid? Like many questions about the law, the answer is “it depends.” Are the late payment charges a penalty? If they are, then they are not enforceable. Are the late payment charges a genuine pre-estimate of the landlord’s liquidated damages? If they are, then they are enforceable. I wrote about the distinction between penalties and pre-estimates of liquidated damages in 2017: see When are Late Payment of Rent Charges in Residential Tenancies Unenforceable? Nevertheless, now seems a good time to bring the issue up again for two reasons. First and most importantly, in the last week in January, Alberta’s UCP government changed the payment dates of the Assured Income for the Severely Handicapped (AISH) program and the Income Support program from four business days before a new month to the first day of that new month (or the last business day of the previous month if the first of the month is a holiday or weekend); see AISH and Income Support payment date change. The change takes effect March 1, 2020 although, because March 1 is a Sunday, payments will be mailed or directly deposited on Friday, February 28. With rent due the first of the month for many people, a lot of worry has been expressed about whether landlords will charge for late rent payments. Second, the Residential Tenancies Dispute Resolution Board (RTDRS), which hears the vast majority of the residential landlord and tenant disputes in this province, just published 19007636 (Re), a written decision that briefly discusses late rent payment charges. The RTDRS has just started making some of its decisions publicly available, and although the ABRTDRS CanLII database only contained 39 decisions as of February 3, it includes a relevant 2020 decision.

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