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The Expansion of Unconscionability – The Supreme Court’s Uber Reach

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On July 23, 2020

In Access to Justice, Contracts, Supreme Court of Canada

By: Jassmine Girgis

PDF Version: The Expansion of Unconscionability – The Supreme Court’s Uber Reach

Case Commented On: Uber Technologies Inc v Heller, 2020 SCC 16 (CanLII)

Contracts of adhesion, or standard form agreements (SFAs) are oftentimes unfair. They are drafted by the stronger parties. Their provisions are dense and difficult to understand. The party signing does not have a say in their contents – they are take-it-or-leave-it agreements. They are usually lengthy and cannot feasibly be read in the short time it takes the parties to transact. Some of the more onerous terms are deeply embedded (hidden?) in the document. The contracts more often than not limit the liability of the drafting party at the expense of the other party. They ensure occupiers are not liable for negligence, including their own. And the list goes on.

We are not powerless against these contracts – common law and equitable doctrines protect weaker parties from harsh or onerous provisions. Is this enough? Probably not. Certainly the Supreme Court of Canada thought more should be done to protect weaker parties against SFAs in the case of Uber Technologies Inc v Heller, 2020 SCC 16 (CanLII). But instead of leaving this job to the legislature, as it should have, it expanded the reach of the doctrine of unconscionability without providing any substantial guidance or principles, thereby furnishing lower courts with an enormously powerful weapon to use against SFAs.

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Restoring Balance? Bill 32, the Charter, and Fair Democratic Process

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On July 15, 2020

In Constitutional

By: Colin Feasby

PDF Version: Restoring Balance? Bill 32, the Charter, and Fair Democratic Process

Bill Commented On: Bill 32, Restoring Balance in Alberta’s Workplaces Act, 2020, 2nd Sess, 30th Leg, Alberta, 2020

On July 7, the United Conservative Party (UCP) government introduced Bill 32, styled the Restoring Balance in Alberta’s Workplaces Act, 2020. Bill 32 makes a number of changes to Alberta’s labour relations statutes that are of questionable constitutionality. The focus of this post is only on the constitutional dimensions of Bill 32’s impact on the capacity of unions to participate in political activities. Bill 32 is interesting from the perspective of democracy jurisprudence because it appears to be a paradigmatic example of the use of legislative power to silence or impair the efficacy of political opponents. A constitutional challenge to Bill 32, which seems inevitable based on early statements by Alberta unions, promises to provide a forum for the consideration of whether political animus is relevant to constitutional analysis. This post does not express a view on the constitutionality of Bill 32; rather, it explores how courts should approach constitutional analysis of legislation that has an obvious negative effect on political opponents of the government.

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Court Confirms that Offshore Board Cannot Extend a Licence Term by Issuing a Replacement Licence

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On July 14, 2020

In Administrative Law, Environmental, Oil & Gas

By: Nigel Bankes 

PDF Version: Court Confirms that Offshore Board Cannot Extend a Licence Term by Issuing a Replacement Licence

Case commented on: David Suzuki Foundation v Canada-Newfoundland and Labrador Offshore Petroleum Board, 2020 NLSC 94 (CanLII).

This decision involves the terms of the federal and provincial legislation implementing the Atlantic Accord: Canada-Newfoundland and Labrador Atlantic Accord Implementation Act, SC 1987, Ch 3 (Federal Act), and Canada-Newfoundland and Labrador Atlantic Accord Implementation Newfoundland and Labrador Act, RSNL 1990, c C-2 (Newfoundland Act) (collectively the Accord legislation). I commented on earlier proceedings in this litigation (David Suzuki Foundation v Canada-Newfoundland Offshore Petroleum Board, 2018 NLSC 146 (CanLII)) confirming the public interest standing of the applicant here. That earlier post also provides the factual background:

Corridor Resources Inc. (Corridor) received a nine year exploration licence (EL 1105) from the Canada-Newfoundland Offshore Petroleum Board (CNLOPB or Board) on January 15, 2008 under the terms of the Accord legislation. … As is customary, the EL was divided into two periods: Period I, five years and Period II, 4 years. In order to validate the licence for Period 2 Corridor had to commence the drilling of a well within the Period I and diligently drill through to completion. Corridor’s proposal to drill proved controversial and triggered a time-consuming environmental assessment procedure. In response to this Corridor applied for and was granted an extension to Period I but in the end it was not able to drill a well as required by the EL.

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COVID-19, Domestic Violence, and Technology-Facilitated Abuse

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On July 13, 2020

In Access to Justice, COVID-19, Family

By: Jennifer Koshan, Janet Mosher, and Wanda Wiegers

PDF Version: COVID-19, Domestic Violence, and Technology-Facilitated Abuse

On 27 May 2020, UN Women launched the “shadow pandemic” public awareness campaign, drawing attention to the global spike in domestic violence linked to COVID-19. Phumzile Mlambo-Ngcuka, Executive Director of UN Women, describes the idea of a shadow pandemic as follows: “Even before the [COVID-19] pandemic, violence against women was one of the most widespread violations of human rights. Since lockdown restrictions, domestic violence has multiplied, spreading across the world in a shadow pandemic.”

We are in the midst of a multi-year research project on domestic violence and access to justice across Canada, but decided to shift our attention this spring/summer to the legal and policy responses to domestic violence during the COVID-19 pandemic. One aspect of our research examines the responses of courts, including what sorts of matters they consider “urgent” enough to hear during the pandemic, and how urgent cases involving domestic violence are being dealt with on the merits. We found 67 relevant cases reported on Can LII between March 16 and June 1, 2020, with relevance meaning that the cases deal with domestic violence issues that were related to the pandemic in some way. These cases span the areas of family, child protection, criminal, and protection order law. One cross-cutting theme in the case law is surveillance and technology-facilitated abuse, which is the subject of this post. We also provide some comments on access to justice issues raised by our case law sample.

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Some Comments on Bill 24, the COVID-19 Pandemic Response Statutes Amendment Act, 2020

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On July 10, 2020

In Administrative Law, COVID-19, Rule of Law

By: Shaun Fluker

 PDF Version: Some Comments on Bill 24, the COVID-19 Pandemic Response Statutes Amendment Act, 2020

Legislation Commented On: Bill 24, the COVID-19 Pandemic Response Statutes Amendment Act, 2020, 2nd Sess, 30th Leg, Alberta, 2020

Lawmaking by the Alberta government in response to COVID-19 has been somewhat disorganized and very non-transparent. As well, Alberta seems to be the only Canadian jurisdiction which seized on the public health emergency as an opportunity to double-down on Henry VIII lawmaking by the Executive. These are troubling observations in a political system where the legitimacy of governance is based upon an open, accountable, and predictable legislative process. The need to act swiftly and flatten the curve of COVID-19 certainly justified some deviation from the lawmaking norm in a representative democracy, but Alberta has relied extra heavily on executive and delegated legislative authority in its COVID-19 lawmaking. Accordingly, it would have been reasonable to expect the Legislature to restore some normalcy to lawmaking when the state of public emergency ended in Alberta on June 15.

On June 18, the Minister of Health introduced Bill 24, the COVID-19 Pandemic Response Statutes Amendment Act, 2020 into the Legislature, and most of the Act came into force on June 26 with royal assent. As the Legislature’s first comprehensive post-emergency response to COVID-19, as opposed to subject-specific legislation or the lawmaking thus far enacted by the Executive and its delegates, it is disappointing to observe how little this statute offers. However, on its first reading the Minister of Health did at least promise a forthcoming comprehensive review of the Public Health Act, RSA 2000, c P-37, and Bill 24 requires this to commence no later than August 1.

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