ABLawg

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.

Regulating Covid-19 From the Criminal Law Perspective

By Lisa Silver

On April 29, 2020

In COVID-19, Criminal

By: Lisa Silver

PDF Version: Regulating Covid-19 From the Criminal Law Perspective

The focus of this post is criminal law. This is a bold statement considering we are, with this COVID-19 crisis, currently deeply within the regulatory world. There is so much to unpack in the area of regulation and COVID-19 that to focus on one area is dissatisfying. There are, however, many of my colleagues both here in Alberta and across the country discussing various aspects of the regulatory “new normal”. Specifically, I suggest a look at ABlawg where there are a number of COVID-19 related posts from colleagues writing in their areas of expertise such as statutory interpretation and law-making, health, human rights, environmental and energy law. Many of these areas overlap with the criminal law perspective but I will try to keep this post anchored in more classical criminal law concerns. This will require a discussion of regulatory offences, specifically those arising in the time of COVID-19, which enforce a regulatory scheme through the criminal sanction. By using criminal law concepts to enforce the regulatory scheme, these regulatory offences are subject to those criminal law legal principles which describe, define and confine offences. In this discussion, I will look at the general precepts of regulatory offences, how this form of liability connects to traditional criminal law concepts and then apply our knowledge to a COVID-19 measure involving social or physical distancing. This application will be done through a survey of that measure across Canada to identify the ways in which we are responding in the context of regulation. This survey will provide the basis for some preliminary recommendations based on lessons learned through the review of these regulatory, and in some instances, non-regulatory measures.

The AER Must Consider the Honour of the Crown

By Nigel Bankes

On April 28, 2020

In Energy

By: Nigel Bankes

PDF Version: The AER Must Consider the Honour of the Crown

Decision Commented On: Fort McKay First Nation v Prosper Petroleum Ltd, 2020 ABCA 163

In this important decision, a unanimous panel of the Court of Appeal concluded that the Alberta Energy Regulator (AER) has an obligation to take into account the honour of the Crown when deciding whether to recommend approval of a new oil sands project under s 10 of the Oil Sands Conservation Act, RSA 2000, c O-7 (OSCA). The AER had not done so in this case. Accordingly, the Court vacated the AER’s approval of Prosper’s Rigel project and referred the matter back to the AER. The decision is an important decision on the implications of the honour of the Crown in the context of a regulatory tribunal, but it is also an important decision on cumulative impacts and the limits that cumulative impacts may impose on the Crown’s power to take up lands under the numbered treaties. Previous posts on ABlawg have emphasized the importance of this point for the prairie provinces and other provinces with numbered treaties within their boundaries: see here, here, here and here.

What is Non-Adversarial Advocacy?

By Deanne Sowter

On April 27, 2020

In Uncategorized

By: Deanne Sowter

PDF Version: What is Non-Adversarial Advocacy?

There is no provision in the Federation of Law Societies Model Code that specifically regulates non-adversarial advocacy. The Code has an Advocacy section (R 5.1) and it distinguishes advocacy in an adversarial process, but it does not have a corresponding section for advocacy in a non-adversarial process. There is no universal definition of non-adversarial advocacy. In 2016, I conducted empirical research on advocacy in the family law context, and drawing from that I argued that the Code needs to be updated to include non-adversarial advocacy. (See here.) In that study, I talked to collaborative lawyers and family lawyers who have a settlement-oriented practice. Those processes inform the type of advocacy expected and required. However, not all dispute resolution processes can be neatly packed into one category or the other, nor do all disputes involve sides that subscribe to the same approach to advocacy. In this post, I question whether it is the process that distinguishes adversarialness.

Governance and Accountability: Preconditions for Committing Public Funds to Orphan Wells and Facilities and Inactive Wells

By Nigel Bankes

On April 24, 2020

In Environmental, Oil & Gas

By: Nigel Bankes, Shaun Fluker, Martin Olszynski and Drew Yewchuk

PDF Version: Governance and Accountability: Preconditions for Committing Public Funds to Orphan Wells and Facilities and Inactive Wells

Announcement commented on: Department of Finance Canada, Canada’s COVID-19 Economic Response Plan: New Support to Protect Canadian Jobs, April 17, 2020

As any resident of this province knows, the Alberta oil and gas sector’s problem of underfunded environmental liabilities has been growing for decades. On April 17, 2020, in response to the impact of both the COVID-19 pandemic and the Saudi/Russian price war, the federal government announced an injection of $1.7 billion of public funds to support the ‘clean up’ of inactive and orphan wells in Saskatchewan, Alberta and British Columbia. With respect to Alberta, $200 million will go to the Orphan Well Association as a loan to deal with orphan wells (i.e. wells that have no owner) while $1 billion will go to the Government of Alberta to deal with inactive wells (i.e. wells that are not producing but have not been properly closed and remediated).

The first part of this post examines the background to the Orphan Well Association and how it has moved from being an industry funded organization to the recipient of significant public funds. We suggest that this change in the source of funding is likely permanent and thus demands a complete rewrite of the governance structure for orphan wells in the interests of transparency and accountability. The second part of this post offers comments on the proposed program for inactive wells. This part of the post is shorter and more speculative because the announcement is remarkably vague and lacking in important details on this part of the program.

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

Regulating Covid-19 From the Criminal Law Perspective

The AER Must Consider the Honour of the Crown

What is Non-Adversarial Advocacy?

Governance and Accountability: Preconditions for Committing Public Funds to Orphan Wells and Facilities and Inactive Wells