PDF Version: ABlawg: The Year in Review, 2015
It is that time of year again – time for ABlawg to put together a compilation of our highlights from the past year. It is also the 10th anniversary of the Clawbies, and we have included a list of some of our favourite Canadian Law Blogs here as well.
By: Erin Sheley
PDF Version: The Next Shot in the Constitutional Debate Over Mandatory Minimum Sentences for Firearms Offences
Case Commented On: R v Friesen, 2015 ABQB 717
The Court of Queen’s Bench has found a new constitutional limitation on Parliament’s attempt to impose mandatory minimum sentences for firearms offences. Just on the heels of R v Nur, 2015 SCC 15, where the Supreme Court struck down three- and five-year mandatory minimums for possession offences under section 95 of the Criminal Code, Mr. Justice Vital O. Ouellette has, in R v Friesen, 2015 ABQB 717, held an identical sentencing provision to be likewise unconstitutional for trafficking offences under section 99. This case suggests that Nur could have marked the beginning of widespread dismantling of the Criminal Code’s policy of gun-related mandatory minimums. In both Friesen and Nur the courts’ concerns are the same: the risk of discrepancy between the prototypical violent offenders targeted by the minimums and the potentially far less culpable parties who might be swept along by them.
By: Jonnette Watson Hamilton
PDF Version: Setting Aside Residential Tenancy Dispute Resolution Service Orders for Problems with Service: It Can’t Be Done
Case Commented On: Abougouche v Miller, 2015 ABQB 724 (CanLII)
As the recently-appointed Master in Chambers, James R. Farrington, clearly and concisely sets out in Abougouche v Miller, there is no way for a tenant to have an order made by the Residential Tenancy Dispute Resolution Service (RTDRS) set aside if a tenant fails to appear at the hearing before a Tenancy Dispute Officer because the tenant did not receive actual notice of that hearing. The tenant cannot go back to the Tenancy Dispute Officer; that person only has the power to correct typographic, grammatical, arithmetic or other similar errors in their orders, clarify their orders, and deal with obvious errors or inadvertent omissions in their orders (Residential Tenancy Dispute Resolution Service Regulation (RTDRS Reg), Alta Reg 98/2006, section 19(1)). The tenant cannot apply to the only body with the power to cancel or vary an RTDRS order — the Court of Queen’s Bench (sections 23(1) and 25(1)(b) RTDRS Reg) — because new evidence is not permitted on appeals (section 25(1) RTDRS Reg) and evidence about service in technical compliance with the regulations but inappropriate nonetheless would be evidence that was not before the Tenancy Dispute Office, i.e., new evidence. So a tenant — even a tenant as apparently well-prepared with legal arguments as the self-represented tenant was in this case — has no opportunity to be heard on the merits. Worse, a tenant like Ms. Miller, who appears to have vacated the rented premises because of significant deficiencies, including internal flooding, seems to be set up by the Residential Tenancies Act (RTA), SA 2004, c R-17.1. That Act allows her landlord to serve notice of a RTDRS hearing on her by posting it on the rented premises that she vacated, even if the landlord knows the tenant has vacated those premises, even if she vacated for good reasons, and even if the landlord is still in regular communication with the tenant by email and text messages about the deficiencies in the rented premises (section 57(3) RTA).
By: Jennifer Koshan and Jonnette Watson Hamilton
PDF Version: The Residential Tenancies Act and Domestic Violence: Facilitating Flight?
Legislation Commented On: Bill 204: Residential Tenancies (Safer Spaces for Victims of Domestic Violence) Amendment Act, 2015
Bill 204, the Residential Tenancies (Safer Spaces for Victims of Domestic Violence) Amendment Act, 2015, was introduced by Deborah Drever, Independent MLA for Calgary-Bow, to mark Family Violence Prevention Month on November 15, 2015. At that time, MLA Drever stated that “This bill seeks to empower and support survivors of violence by removing some of the barriers to leaving an unsafe home environment.” (Hansard, November 15, 2015). At Second Reading on November 16, 2015, MLAs from all parties expressed support for the Bill, which passed unanimously. Perhaps most powerful was the statement of the MLA for Lethbridge-East, Maria Fitzpatrick, who told her own story of domestic violence and the barriers to leaving her former spouse (Hansard, November 16, 2015). Amendments to the Bill were agreed to and introduced by the Committee of the Whole on November 30, 2015. This post will describe the ways in which Bill 204, as amended, proposes to revise the Residential Tenancies Act, SA 2004 cR-17.1, and will raise a number of issues that the Legislature may wish to consider before it passes the Bill in final form.
By: Nigel Bankes
Case Commented On: Stewart Estate v TAQA North Ltd, 2015 ABCA 357
Courts of Appeal have at least two important functions. The first is a corrective function – the power and the authority to take a second look at a problem and to reach a decision which more properly accords with the law. For a recent example which demonstrates the crucial importance of this role see the Court of Appeal’s review of Judge Camp’s infamous decision in R v Wagar, 2015 ABCA 327, which was the subject of important commentary by my colleagues, Professors Koshan and Woolley here and here. In many cases, the scope of that corrective function turns on the applicable standard of review: correctness, unreasonableness or overriding and palpable error. One of the important issues in Stewart Estate v TAQA North Ltd was the application of the Supreme Court of Canada’s decision in Creston Moly Corp v Sattva Capital Corp, 2014 SCC 53 (CanLII), [2014] 2 SCR 633 (Sattva) to the interpretation of oil and gas leases. Sattva is generally cited as authority for the proposition that unless there is an “extricable question of law”, a trial judge’s interpretation of a contract should generally be accorded deference. Thus, an appellate court should only intervene if it is of the view that the trial judge has made an overriding and palpable error – the traditional test for an appellate court’s assessment of a trial judge’s findings of fact. The principal rationale for applying the same test to contract interpretation issues as well as to findings of fact is that the rules on contractual interpretation allow a trial judge to take into account the factual and commercial matrix when assessing the intentions of the parties as revealed in the language used in the contract.
