Author: Jonnette Watson Hamilton Page 6 of 42

B.A. (Alta.), LL.B. (Dal.), LL.M. (Col.).
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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.

Alberta Court of Appeal Restores Access to Habeas Corpus

By Jonnette Watson Hamilton

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.

Are Landlords’ Late Payment Fees Enforceable?

By Jonnette Watson Hamilton

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.

Costs Denied in Elder Advocates of Alberta Society Case

By Jonnette Watson Hamilton

On January 24, 2020

In Access to Justice, Costs

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: Costs Denied in Elder Advocates of Alberta Society Case

Case Commented On: Elder Advocates of Alberta Society v Alberta, 2020 ABQB 54 (CanLII)

In February 2018 and October 2019, we posted comments on the class action litigation in Elder Advocates of Alberta Society v Alberta, where a class of long-term care residents unsuccessfully challenged the Alberta government’s ability to charge accommodation fees in long-term care facilities. The case involved claims of unjust enrichment, negligence and contract – addressed by our colleague Lorian Hardcastle here – and discrimination based on age and mental / physical disability, which we dealt with in our posts. None of the claims were ultimately successful. The plaintiffs’ most persuasive argument was that the imposition of accommodation fees was discriminatory, which was accepted by the Alberta Court of Appeal. However, the Court found the discrimination to be justified (see Elder Advocates of Alberta Society v Alberta, 2019 ABCA 342 (Can LII) and our post on that decision here).

In spite of the lack of success of this class action, Justice June Ross, the trial judge in the case, recently denied the Province of Alberta and Alberta Health Services costs against the plaintiffs and their lawyers (see Elder Advocates of Alberta Society v Alberta, 2020 ABQB 54 (CanLII)).

Keeping an Eye on Foreclosing Banks

By Jonnette Watson Hamilton

On January 22, 2020

In Uncategorized

By: Jonnette Watson Hamilton

PDF Version: Keeping an Eye on Foreclosing Banks

Case Commented On: Canadian Imperial Bank of Commerce v Strihavka, 2019 ABQB 835

Who is keeping an eye on the conduct and claims of banks and other financial institutions that are foreclosing on people’s homes in Alberta? In at least one case – this case of Canadian Imperial Bank of Commerce v Strihavka – it was a Master of the Court of Queen’s Bench who discovered a bank was providing false or, at least, misleading evidence and the bank’s lawyer was not living up to their professional responsibilities, all for the purpose of taking a person’s home away from them more quickly than allowed at law. Whether this one case is an aberration due to an isolated act of carelessness, negligence or malice, or whether this case is one of many is unclear. The facts suggest there might be systemic issues in foreclosure proceedings in this province.

Author: Jonnette Watson Hamilton Page 6 of 42

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

Alberta Court of Appeal Restores Access to Habeas Corpus

Are Landlords’ Late Payment Fees Enforceable?

Costs Denied in Elder Advocates of Alberta Society Case

Keeping an Eye on Foreclosing Banks