Category: Statutory Interpretation Page 2 of 4

Ministerial Order Commented On: Ministerial Order 51/2021 (Environment and Parks)

On May 27, the Minister of Environment and Parks (Jason Nixon) issued Ministerial Order 51/2021 to impose a fee to access Kananaskis Country. This new access fee applies to many popular parks and recreational areas in Kananaskis Country such as West Bragg Creek, Barrier Lake, Elbow Falls, Evans Thomas Creek, Spray Lakes, and Highwood Pass. Payment of the fee provides the purchaser with a Kananaskis Conservation Pass. The geographic scope of the fee requirement is curiously both over and under inclusive in relation to its name. The boundary map on the Alberta parks website (and attached to Ministerial Order 51/2021) indicates the access fee applies to areas outside of what is commonly known as Kananaskis Country (e.g. portions of the Bow Valley Wildland Park east of Canmore, including Grotto Canyon and Mount Yamnuska) and – as was pointed out by Nathan Schmidt (JD 2021) here – the fee does not apply to the McLean Creek area which is clearly within Kananaskis Country. This post critically examines the legislative changes made to implement the Kananaskis Conservation Pass requirement.

Distracted Driving and the Traffic Safety Act

By Shaun Fluker

On April 2, 2019

In Criminal, Statutory Interpretation

By: Shaun Fluker

PDF Version: Distracted Driving and the Traffic Safety Act

Case Commented On: R v Ahmed, 2019 ABQB 13 (CanLII)

Alberta added distracted driving offences to the Traffic Safety Act, RSA 2000 c T-6 in 2011, and two of these provisions are the subject of this decision by Justice John T. Henderson. The accused was charged under section 115.1(1)(b) for operating a vehicle while looking at his mobile phone. This particular section prohibits driving while holding, viewing or manipulating a hand-held electronic device or a wireless electronic device. The facts were not in dispute at trial, but the traffic commissioner ruled that a mobile phone is not an “electronic device” and thus acquitted the accused. The Crown appealed this decision to the Court of Queen’s Bench. A literal or plain reading of section 115.1(1)(b) does lead one to question the view that a mobile device is not an electronic device, but statutory interpretation is not always a literal exercise – particularly when the provisions themselves are written in a complicated or “inelegant” manner as is noted by the court here. This case is perhaps more about distracted drafting than it is distracted driving.

What Precisely Is A Regulatory Offence?

By Lisa Silver

On September 26, 2018

In Criminal, Statutory Interpretation

By: Lisa Silver

PDF Version: What Precisely Is A Regulatory Offence?

Case Commented On: R v Precision Diversified Oilfield Services Corp, 2018 ABCA 273

This semester, I will start teaching 1Ls the first principles of criminal law. The main components of a crime, consisting of the familiar terms of actus reus or prohibited act and mens rea or fault element, will be the focus. These concepts, that every lawyer becomes intimately familiar with in law school, are figments of the common law imagination as actus reus and mens rea do not figure in the Criminal Code. The terms are derived from the Latin maxim, “actus non facit reum nisi mens sit rea,” which translates as “there is no guilty act without a guilty mind.” This stands for the proposition that the actus reus or prohibited act must coincide or happen at the same time as the mens rea or fault element. That maxim, however, fails to shed light on what those terms mean in law. Indeed, what exactly is a prohibited act or actus reus depends on the crime as described in the Criminal Code, and what exactly is the fault element or mens rea depends on a combination of common law presumptions, statutory interpretation, and case law. In other words, it’s complicated. Even more complex is the vision of these terms when applied to the regulatory or quasi-criminal context. In the recent decision of R v Precision Diversified Oilfield Services Corp, 2018 ABCA 273 [Precision], the Alberta Court of Appeal attempts to provide clarity to these terms but in doing so may be creating more uncertainty.

When are Late Payment of Rent Charges in Residential Tenancies Unenforceable?

By Jonnette Watson Hamilton

On May 10, 2017

In Contracts, Landlord/Tenant, Property, Provincial Court, Statutory Interpretation

By: Jonnette Watson Hamilton

PDF Version: When are Late Payment of Rent Charges in Residential Tenancies Unenforceable?

Case Commented On: 416566 Alberta Ltd. v Fothergill, 2017 ABPC 96 (CanLII)

This Provincial Court decision by Judge Jerry LeGrandeur, Associate Chief Judge, is of interest because he considers whether the fee a landlord charged for the late payment of rent was a valid pre-estimate of liquidated damages or an illegal penalty. If it is an estimate of damages, the tenant must pay the fee. If it is a penalty, it is unenforceable and the tenant does not have to pay the fee. Judge LeGrandeur’s decision was made under the Mobile Home Sites Tenancies Act, RSA 2000, c M-20, rather than the more often used Residential Tenancies Act, SA 2004, c R-17.1, but both statutes deal with late payment charges the same way: neither says anything at all about them. As a result, late payment fees can be included in leases and, if tenants agree to pay those fees by signing leases that include them, the tenants have to pay the late payment fees unless those fees are what the common law calls a “penalty.” Judge LeGrandeur’s decision, which is applicable to all types of residential tenancies, is welcome because there is a lack of direction in Alberta about how much can be charged for a late payment fee before it becomes an illegal penalty and unenforceable.

Claims to Copyright Trumped by Expiration of Statutory Confidentiality Period

By Nigel Bankes

On May 8, 2017

In Intellectual Property, Natural Resources, Statutory Interpretation

By: Nigel Bankes

PDF Version: Claims to Copyright Trumped by Expiration of Statutory Confidentiality Period

Case Commented On: Geophysical Service Incorporated v EnCana Corporation, 2017 ABCA 125

In reserved reasons, a unanimous Court of Appeal has affirmed Justice Eidsvik’s decision at trial (2016 ABQB 230) in this contentious proceeding. This litigation has pitted the seismic company, GSI, against most, if not all, of the major exploration and production companies operating in Canada, as well as the federal regulators, the National Energy Board, and the Canada/Newfoundland Offshore Petroleum Board. GSI claims that seismic data that it generated is protected by copyright for the usual term of the Copyright Act, RSC 1985, c C-45 and that the various (and many) defendants have breached that protection by copying or facilitating the copying of protected materials once the confidentiality period protecting data filed with the regulators has expired.