Vavilov on Standard of Review in Canadian Administrative Law

Posted on February 6, 2020 by Shaun Fluker

By: Shaun Fluker

PDF Version: Vavilov on Standard of Review in Canadian Administrative Law

Case Commented On: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII)

In the summer of 2018, I wrote about disagreement within the Supreme Court of Canada over the role of contextual factors in the selection of a standard of review in Canadian administrative law (see The Great Divide on Standard of Review in Canadian Administrative Law). At that time, the Court had arrived at yet another fork in the road on standard of review and stated it would address the matter head-on in a hearing scheduled for late 2018. Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII) (Vavilov) is the result of that hearing, and Vavilov has, once again, amended the law applicable to selecting and applying the standard of review. This post is my analysis of Vavilov, and is organized as follows: (1) an overview on the law regarding standard of review up to Vavilov; (2) the law as per Vavilov on selecting the standard of review; (3) the law as per Vavilov on applying the standard of reasonableness; and (4) a short conclusion. I am admittedly somewhat late to this party. My colleague Nigel Bankes has previously written on an aspect of Vavilov here (which I reference below) and I also encourage readers interested in this topic to have a look at Paul Daly’s analysis of Vavilov here. Continue reading →

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Are Landlords’ Late Payment Fees Enforceable?

Posted on February 5, 2020 by Jonnette Watson Hamilton

By: Jonnette Watson Hamilton

PDF Version: Are Landlords’ Late Payment Fees Enforceable?

Case Commented On: 19007636 (Re), 2020 ABRTDRS 1 (CanLII)

Are the late payment charges that some leases provide for and some landlords demand from tenants who are late with the rent enforceable? Do they have to be paid? Like many questions about the law, the answer is “it depends.” Are the late payment charges a penalty? If they are, then they are not enforceable. Are the late payment charges a genuine pre-estimate of the landlord’s liquidated damages? If they are, then they are enforceable. I wrote about the distinction between penalties and pre-estimates of liquidated damages in 2017: see When are Late Payment of Rent Charges in Residential Tenancies Unenforceable? Nevertheless, now seems a good time to bring the issue up again for two reasons. First and most importantly, in the last week in January, Alberta’s UCP government changed the payment dates of the Assured Income for the Severely Handicapped (AISH) program and the Income Support program from four business days before a new month to the first day of that new month (or the last business day of the previous month if the first of the month is a holiday or weekend); see AISH and Income Support payment date change. The change takes effect March 1, 2020 although, because March 1 is a Sunday, payments will be mailed or directly deposited on Friday, February 28. With rent due the first of the month for many people, a lot of worry has been expressed about whether landlords will charge for late rent payments. Second, the Residential Tenancies Dispute Resolution Board (RTDRS), which hears the vast majority of the residential landlord and tenant disputes in this province, just published 19007636 (Re), a written decision that briefly discusses late rent payment charges. The RTDRS has just started making some of its decisions publicly available, and although the ABRTDRS CanLII database only contained 39 decisions as of February 3, it includes a relevant 2020 decision. Continue reading →

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Public Inquiry Into Anti-Alberta Energy Campaigns: Interim Report

Posted on February 4, 2020 by Nigel Bankes

By: Nigel Bankes

PDF Version: Public Inquiry Into Anti-Alberta Energy Campaigns: Interim Report

Matter Commented On: Allan Inquiry Interim Report, January 31, 2020

ABlawg has published a number of posts on the Allan Inquiry: The Alberta Inquiry and Freedom of Expression; Everything You Wish You Didn’t Need to Know About the Alberta Inquiry into Anti-Alberta Energy Campaigns; and Procedural Fairness and the Alberta Inquiry into Anti-Alberta Energy Campaigns.

Mr. Allan has now delivered his interim report to Minister Savage as required by his terms of reference (ToR). According to the ToR the interim report is to deal with “advice, proposals, recommendations, analyses or policy options related to the Inquiry …”. Continue reading →

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When is Legal Aid Funding a Right in Criminal Cases?

Posted on February 3, 2020 by Serena Eshaghurshan

By: Serena Eshaghurshan

PDF Version: When is Legal Aid Funding a Right in Criminal Cases?

Case Commented On: R v Acain, 2020 ABPC 6 (CanLII)

On December 10th, 2019, the Honourable Judge L.R. Grieve of the Provincial Court of Alberta (ABPC) heard and rendered a decision on a Rowbotham application, which is an application made for court-ordered counsel. The Applicant, Rowel Acain, was charged with impaired driving related offences pursuant to sections 320.14(1)(a) and 320.12(1)(b) of the Criminal Code, RSC 1985, c C-46. Mr. Acain’s application for state-funded counsel was denied. Continue reading →

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An Emerging Corporate Risk – Climate Impacts to Critical Energy Infrastructure

Posted on January 31, 2020 by Rudiger Tscherning

By: Rudiger Tscherning

PDF Version: An Emerging Corporate Risk – Climate Impacts to Critical Energy Infrastructure

Research Commented On: “Corporate Risk and Climate Impacts to Critical Energy Infrastructure in Canada” (Dalhousie Law Journal)

Introduction

This post, based on my recent article, examines climate impacts to critical energy infrastructure assets from a corporate risk perspective. It focuses on the importance of undertaking climate adaptation to critical energy infrastructure as a corporate risk-mitigation strategy. Emerging climate risk was most recently identified as one of the top five challenges facing the global economy at the World Economic Forum 2020 in Davos, Switzerland (see World Economic Forum Global Risks Report 2020).

By way of background, Canada’s 2009 National Strategy for Critical Infrastructure considers infrastructure as critical where the asset is essential to the “health, safety, security or economic well-being of Canadians.” Examples in the energy sector include electricity generation and transmission infrastructure, oil and gas industry infrastructure, maritime ports, and rail infrastructure related to energy transportation. All of these classes of assets are vulnerable to the anticipated and unanticipated effects of climate change impacts from extreme weather and climate events, which are predicted to intensify. These impacts may affect both the physical infrastructure of the asset and their operations, as well as the business continuity of the owners and operators of the asset. Within this context, adaptation to the effects of climate change can be considered a process of adjustments in natural and human systems to actual or expected climate impacts and their effects (see, for example, Article 7 of the Paris Agreement, 12 December 2015, FCCC/CP/2015/L.9/Rev.1). Continue reading →

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