ABLawg

Legislation Commented On: Dower Act, RSA 2000, c D-15

The Alberta Law Reform Institute (ALRI) is studying whether the Dower Act should be reformed or repealed. The project is still in its early stages, with a consultation document forthcoming in 2021. In the meantime, ALRI is seeking preliminary feedback on the Dower Act and any practical problems it may present.

Key Features of the Dower Act

The rights under the Dower Act only apply to married people (s 1(c)). The Act is intended to protect a spouse (the “dower spouse”) if the couple’s home is solely owned by the other spouse (the “owner spouse”). It applies to a “homestead”, which is a parcel of land where the owner spouse lived during the marriage (s 1(d)). The Dower Act protects the dower spouse from losing their home, either during the lifetime of the owner spouse or after the owner spouse’s death. There are two key features:

Consent to disposition: The owner spouse cannot dispose of a homestead without the consent of the dower spouse (s 2(1)). Disposition includes a transfer, long-term lease, or mortgage (s 1(b)). If the owner spouse disposes of a homestead without consent, they may be subject to a penalty and liable to pay damages to the dower spouse (ss 2(3), 11).
Life estate: The dower spouse is entitled to a life estate in the homestead after the death of the owner spouse (s 18).

The Dower Act has been part of the law of Alberta for more than 100 years, but it has not changed substantially since 1948.

Private Health Care and the Law Part 2: Lessons for Alberta

By Lorian Hardcastle

On October 28, 2020

In Health Law

By: Lorian Hardcastle

PDF Version: Private Health Care and the Law Part 2: Lessons for Alberta

Case Commented On: Cambie Surgeries Corporation v British Columbia (Attorney General), 2020 BCSC 1310 (CanLII)

On September 10, Justice Steeves of the BC Supreme Court released his decision in Cambie Surgeries Corporation v British Columbia (Attorney General). The driving force behind this case was Dr. Brian Day, an orthopedic surgeon who founded a private surgical clinic in Vancouver that engaged in illegal billing practices. When the BC government cracked down on those practices, Day responded by arguing that the combination of long wait times and laws limiting private funding for insured services violated the Charter.

It is important to note that this case only considered private funding for medically necessary hospital and physician services (i.e. those addressed in the Canada Health Act, RSC 1985, c C-6) and not the plethora of other health services for which there is a patchwork of public and private funding, such as drugs and dental care. In a previous post, I examined Justice Steeves’ constitutional analysis. Here, I summarize the international evidence on private health care and the implications of this decision for Alberta in light of recent moves to increase private surgical clinics and a vote at the United Conservative Party’s (UCP) Annual General Meeting supporting privately financed health care.

The 2019/2020 Year in Access to Justice on ABlawg

By Drew Yewchuk

On October 27, 2020

In Access to Justice

By: Drew Yewchuk

PDF Version: The 2019/2020 Year in Access to Justice on ABlawg

Event Commented On: Access to Justice Week 2020

The Canadian Bar Association’s annual Access to Justice Week in Alberta runs from October 26-31, 2020. The schedule of events is here.

This post considers some of the major access to justice issues that have been featured on ABlawg in the past year. I start with a final follow up on the four challenges for access to justice I identified in the 2017/2018 post, and I then comment on other recent developments.

Furthering Expression in the Public Interest: SCC Provides Interpretation of Ontario’s Anti-SLAPP Legislation

By Daniella Marchand

On October 26, 2020

In Access to Justice, Civil Procedure, Supreme Court of Canada

By: Daniella Marchand and Nafisa Abdul Razak

PDF Version: Furthering Expression in the Public Interest: SCC Provides Interpretation of Ontario’s Anti-SLAPP Legislation

Case Commented On: 1704604 Ontario Ltd. v Pointes Protection Association, 2020 SCC 22 (CanLII)

Last month, the Supreme Court of Canada (SCC) released their decision in the Pointes Protection case, dismissing 1704604 Ontario Ltd.’s appeal and upholding the Ontario Court of Appeal’s (ONCA) decision. This commentary follows up our first post regarding the ONCA’s decision on 1704604 Ontario Ltd v Pointes Protection Association, 2018 ONCA 685 (CanLII). In our previous post, we advocated for the enactment of a similar provision in Alberta as exists in Ontario, relying on the analysis set out by Justice David Doherty and the arguments made by various interveners as to the necessity of anti-SLAPP (Strategic Litigation Against Public Participation) legislation. For background on the previous proceedings, please see our other post titled “Is Now the Time to Consider Anti-SLAPP Legislation in Alberta? A Reflection on Pointes Protection”.

Here, we continue to recommend the introduction of similar anti-SLAPP legislation in Alberta. In Pointes Protection, the SCC provides a detailed analysis of Ontario’s anti-SLAPP legislation, perhaps expecting that this decision may guide the development of similar legislation in other provinces and territories. In this post, we will examine the test as interpreted by the SCC, and how this framework presents a novel opportunity for adoption of anti-SLAPP legislation to the Alberta legislature.

A Legal Regime for the Development of Geothermal Resources in Alberta

By Nigel Bankes

On October 24, 2020

In Energy, Oil & Gas

By: Nigel Bankes

PDF Version: A Legal Regime for the Development of Geothermal Resources in Alberta

Bill Commented On: Bill 36, Geothermal Resources Development Act, 2nd Sess, 30th Leg, Alberta, 2020 (first reading 20 October 2020)

The recognition of a “new” resource, whether that be the use of pore space for sequestering carbon dioxide or in this case the exploitation of geothermal energy (for a primer on geothermal energy see David Roberts, “Geothermal Energy Poised for a Big Breakout” Vox (21 October 2020)), often requires the creation of new legal and regulatory instruments (or adaptation of existing ones) to provide legal certainty for investors and to protect the public interest. Although the issues may vary for different “new” resources, such instruments will typically need to address the following types of questions: (1) who owns the resource in question and how may a developer acquire rights to the resource?; (2) what regulatory regime needs to be put in place to protect the public interest, including the environment? and; (3) what liability regime should we put in place to provide compensation in the event that third parties suffer harm and to ensure fulfillment of reclamation and abandonment obligations?

With the introduction of Bill 36, the Government of Alberta proposes to put in place a legal regime that will address these questions. In large part, the Bill addresses the second and third issues by drawing extensively on the Oil and Gas Conservation Act, RSA 2000 c O-6 as a model. I will not say much about that model in this post, but one well-known flaw of this model is that it has proven to be far too permissive. What I mean by permissive is that the model gives the Alberta Energy Regulator (AER) the power to make a lot of rules (e.g. rules for suspension and timely abandonment of wells) but it does not actually require that such rules be put in place. As a result, those rules may never be promulgated and the public interest not fully protected. See “Bill 12: A Small Step Forward in Managing Orphan Liabilities in Alberta”.

Does the Dower Act Still Serve a Useful Purpose? ALRI Wants to Hear From You!

Private Health Care and the Law Part 2: Lessons for Alberta

The 2019/2020 Year in Access to Justice on ABlawg

Furthering Expression in the Public Interest: SCC Provides Interpretation of Ontario’s Anti-SLAPP Legislation

A Legal Regime for the Development of Geothermal Resources in Alberta