Category Archives: Statutory Interpretation

What Precisely Is A Regulatory Offence?

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.

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

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. Continue reading →

Claims to Copyright Trumped by Expiration of Statutory Confidentiality Period

By: Nigel Bankes

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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. Continue reading →

Street v Mountford Applied to Decide: A Residential Tenancy Agreement or a Licence?

By: Jonnette Watson Hamilton

PDF Version: Street v Mountford Applied to Decide: A Residential Tenancy Agreement or a Licence?

Case Commented On: Singh v RJB Developments Inc., 2016 ABPC 305 (CanLII)

This Provincial Court decision by Judge Jerry LeGrandeur, Associate Chief Judge, is of interest primarily because he used the common law in order to determine whether the Residential Tenancies Act, SA 2004, c R-17.1 (RTA) applied to Jaspreet Singh’s occupation of a portion of a building owned by RJB Developments Inc (RJB). While this resort to the common law in this context is rarely seen, we can expect to encounter it more often, given the increasing variety in short- and long-term residential accommodations. The courts usually do rely on the common law in those few borderline cases, such as this one, where the question is whether the RTA applies, even though the statute appears to answer all questions about its scope. However, when resorting to the common law, the courts — including Judge LeGrandeur in this case — do not always indicate why they believe it is both necessary and possible to do so. This is unfortunate because the RTA is usually used by non-lawyers who often rely on explanations of the statute that are provided by Service Alberta (e.g., RTA Handbook and Quick Reference Guide) or non-profit organizations such as the Centre for Public Legal Education Alberta (e.g., Renting 101: A Guide to Renting in Alberta). None of those explanations indicate that landlords and tenants need to look outside the RTA to find out if it applies; they all simply paraphrase the statute. Continue reading →

No Priority for a Matrimonial Property Certificate of Lis Pendens Sandwiched Between Writs of Enforcement

By: Jonnette Watson Hamilton

PDF Version: No Priority for a Matrimonial Property Certificate of Lis Pendens Sandwiched Between Writs of Enforcement

Case Commented On: Singh v Mangat, 2016 ABQB 349 (CanLII)

The issue in Singh v Mangat was one of priority: in what order were different groups entitled to sale proceeds. There were three types of claimants to the proceeds of the sale of a husband’s interest in the matrimonial home: the wife, who had brought a matrimonial property action and registered a certificate of lis pendens on the title to those lands; those of the husband’s judgment creditors who registered their writs of enforcement on the title to the home before the wife’s certificate of lis pendens; and those of the husband’s judgment creditors who registered their writs of enforcement on the title to the home after the wife’s certificate of lis pendens. The relative timing of the registrations created what Master A. R. Robertson, QC, called a “CLP sandwich” (at para 2). This case appears to be the first time an issue of priority in circumstances involving a “CLP sandwich” has come before the Alberta courts. Master Robertson analyzed a complex statutory interpretation issue in order to resolve the priorities issue in this decision (handed down in June 2016 but only added to the CanLII database in October). In a result that might surprise those accustomed to priorities under a Torrens land title system, he resolved the issue in favour of all of the judgment creditors, those registered before the certificate of lis pendens and those registered after. Continue reading →