A Balancing Act: Re-Opening Provincial Economies while Prioritizing Health Risks to Vulnerable Groups

By: Lorian Hardcastle and Naomi Lightman

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Matter commented on: COVID-19 in Alberta and Canada

Despite calls that we are “in it together”, many of Canada’s most vulnerable communities are bearing the brunt of the COVID-19 pandemic. This includes individuals living and working in long-term care facilities, factory workers, homeless and incarcerated populations, and some on-reserve Indigenous communities. In implementing public health measures, policymakers largely failed to prioritize these groups. Rather, many of the strategies for social distancing presumed individual family homes, nuclear family arrangements, access to private cars, workplaces that could transition to online formats, and living conditions where outdoor space was available. As a result, many groups outside this presumed norm were either left behind or inadequately protected during the spread of the virus. In this post, we argue that as provincial governments begin the process of re-opening their economies, policymakers must balance the interests of the broader public with those who live and work in conditions that put them at risk.  Continue reading →

Alberta Court Grants Injunctive Relief in a Constitutional Case

By: Myrna El Fakhry Tuttle

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Case Commented On: A.C. and J.F. and her Majesty the Queen in Right of Alberta (19 March 2020), Edmonton 2003-048252020 (ABQB) (Transcript available here)

On March 19, 2020, Court of Queen’s Bench Justice Tamara Friesen granted a temporary injunction prohibiting the Alberta Government from implementing an amendment of the Child, Youth and Family Enhancement Regulation, Alta Reg 160/2004, which lowered the age of eligibility from 24 to 22 for young adults receiving financial and social support under the Support and Financial Assistance (SFA) program. This temporary injunction will apply until the Court hears and rules on the issue of whether the amendment unjustifiably violates the Canadian Charter of Rights and Freedoms. Continue reading →

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

By: Jonnette Watson Hamilton

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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. Continue reading →

Regulating Covid-19 From the Criminal Law Perspective

By: Lisa Silver

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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. Continue reading →

The AER Must Consider the Honour of the Crown

By: Nigel Bankes

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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. Continue reading →