ABLawg

Legislation Commented On: Emergencies Act, RSC 1985, c 22 (4th Supp); Order in Council, PC Number: 2022-0106 (February 14, 2022), SOR/2022-20; Emergency Measures Regulation, SOR/2022-21; Emergency Economic Measures Order, SOR/2022-22

On February 14, the federal Minister of Justice and Attorney General announced the declaration of a public order emergency under the Emergencies Act, RSC 1985, c 22 (4^th Supp). The emergency was formally declared by proclamation made by the Governor in Council under section 17 of the Act with Order in Council, PC Number: 2022-0106 (February 14, 2022), SOR/2022-20. This proclamation provides for the exercise of extraordinary powers to take measures to end the blockades and occupations across Canada; actions that were initiated as a protest against restrictions on individual and economic liberties imposed by COVID-19 public health measures, but which quickly morphed into #freedomconvoy, weaponized extremism, threats of insurrection, and significant economic losses. The emergency powers have initially been set out in the Emergency Measures Regulation, SOR/2022-21 and the Emergency Economic Measures Order, SOR/2022-22. As is required by the Act, the declaration and these powers will be the subject of a debate in Parliament this week.

What’s the Matter with the Dower Act? How Law Reform Can Help with Everyday Legal Problems

By Laura Buckingham

On February 15, 2022

In Law Reform, Property

By: Laura Buckingham

PDF Version: What’s the Matter with the Dower Act? How Law Reform Can Help with Everyday Legal Problems

Reports Commented On: Alberta Law Reform Institute, Dower Act: Consent to Disposition, Report for Discussion 36; Alberta Law Reform Institute, Dower Act: Life Estate, Report for Discussion 37

Sometimes, the problem with a law is easy to see. If a government proposes legislation that might be unconstitutional, events play out in the public eye. Lawyers, academics, and other experts will point out the issue (for just a few examples, see e.g. here, here, and here). A court challenge can attract a lot of attention. If a court strikes down a law, news media will report the story.

Other problems are less visible. That does not mean they are less important. Most of us encounter the law in commonplace situations, like buying or selling a home, making a will or administering an estate, entering a lease, being hired or fired from a job, or getting divorced. If these transactions are inefficient or difficult to navigate, it won’t make the news. Nonetheless, these problems are important to the people affected by them. Resolving them can take money and time. A common problem that affects a lot of people can have a big cumulative effect. Law reform often addresses these kinds of problems. The Alberta Law Reform Institute’s (ALRI) project on the Dower Act, RSA 2000, c D-15 is a good example.

Rigs in a Parlour: The Freedom Convoy and the Law of Private Nuisance

By David V Wright

On February 9, 2022

In Torts

By: David V Wright and Martin Olszynski

PDF Version: Rig in a Parlour: The Freedom Convoy and the Law of Private Nuisance

Matter Commented On: Li v Barber et al, Court File No CV-22-00088514-00CP

After more than a week of disruptive, and at times highly offensive, protesting in the nation’s capital, private law has been engaged. Specifically, residents of the inner downtown area applied to the Ontario Superior Court for injunctive relief (essentially, a temporary ban on certain conduct) and for damages under the tort of private nuisance. This post discusses the basic elements and principles of private nuisance as they relate to the present context (we do not comment on procedural aspects – e.g., certification of the proceeding as a class action). Our preliminary assessment is that the prospects for success on the question of private nuisance are very good. Early indications from the Court are consistent with this assessment, as Justice Hugh McLean of the Ontario Superior Court granted an interim injunction on Monday (copy of the Court order here). In doing so, Justice McLean indicated that the right of citizens to peace and quiet was the overriding right (see this detailed thread on Twitter summarizing the Court proceedings).

Frost on the Constitutional Windshield: Challenge to Critical Infrastructure Defence Act Struck by Alberta Court of Appeal

By Jennifer Koshan

On February 8, 2022

In Critical Infrastructure Defence Act, Protest

By: Jennifer Koshan, Lisa Silver and Jonnette Watson Hamilton

PDF Version: Frost on the Constitutional Windshield: Challenge to Critical Infrastructure Defence Act Struck by Alberta Court of Appeal

Case Commented On: Alberta Union of Public Employees v Her Majesty the Queen (Alberta), 2021 ABCA 416 (CanLII) (AUPE (ABCA))

The Critical Infrastructure Defence Act, SA 2020, c C-32.7 (CIDA) has been in the news recently, with the truckers’ blockade at Coutts, Alberta causing some to question the lack of enforcement of available legal sanctions. CIDA prohibits entering on to, damaging, or obstructing essential infrastructure in the province, amongst other activities. Essential infrastructure is broadly defined and includes highways and – as of October 2021– health care facilities (Critical Infrastructure Defence Regulation, Alta Reg 169/2021; for a discussion of that addition see here). However, it appears that no charges have been laid under CIDA to date despite several disruptive COVID-19 related protests on and blockades of essential infrastructure.

Indigenous Rights and Private Party Liability

By Kent McNeil

On January 26, 2022

In Aboriginal, Torts

By: Kent McNeil

PDF Version: Indigenous Rights and Private Party Liability

Matter Commented On: Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc, 2022 BCSC 15 (CanLII)

To what extent can private parties be held liable in tort law, specifically nuisance, for damage done to Indigenous rights? This was the issue in Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc, 2022 BCSC 15 (CanLII) [Thomas]. In 1952, the Aluminum Company of Canada (now Rio Tinto Alcan Inc., or RTA) completed construction of a dam on the Nechako River in west-central British Columbia to generate electricity for its aluminum smelting operations. Construction of the dam had been authorized by agreements with and a licence from British Columbia pursuant to a provincial statute, the Industrial Development Act, SBC 1949, c 31, which had been enacted to facilitate construction of the hydroelectric dam (Thomas, paras 66-69). The company has abided by all the conditions of the agreements and the licence.

COVID-19 and the Emergencies Act (Canada) Redux

What’s the Matter with the Dower Act? How Law Reform Can Help with Everyday Legal Problems

Rigs in a Parlour: The Freedom Convoy and the Law of Private Nuisance

Frost on the Constitutional Windshield: Challenge to Critical Infrastructure Defence Act Struck by Alberta Court of Appeal

Indigenous Rights and Private Party Liability