Access to Justice Week Comes to Alberta

Planning is underway to hold Alberta’s first ever Access to Justice week from September 29 – October 5, 2019. Alberta will be joining OntarioSaskatchewan and British Columbia, who each have a week in October dedicated to Access to Justice. The Access to Justice Committee of the Canadian Bar Association (Alberta Branch) is hoping to partner with justice sector organizations to hold events during the week that raise awareness about access to justice. Events could include:

  • Report launches,
  • Keynote lectures,
  • Fundraisers,
  • Conferences or mini-conferences,
  • Continuing Professional Development offerings, and

The organizers would love for you to get involved! If you would like to volunteer or have an idea for an event or other initiative, please contact them at: communications@cba-alberta.org

This year, the Access to Justice Committee is taking a week to highlight some of the great initiatives already underway in Alberta. Every day this week they will be posting information about different justice sector organizations in Alberta and the important work they are doing to make access to justice a reality in this province. We would encourage you to check out their website:  https://www.cba-alberta.org/News-Media/News/Access-to-Justice-Blog/Access-to-Justice

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What Constitutes Assault in Residential Tenancy Law?

The Alberta Residential Tenancies Act (RTA)[1] allows landlords to evict tenants who assault or threaten to assault their landlord or other tenants. But what constitutes assault for the purpose of the RTA? Is it the same as the test for the tort of assault? Or the same as the test for assault under the Criminal Code[2]?

In tort law, assault and battery are independent causes of action. Battery is the direct, intentional and physical interference with another person that is either harmful or offensive to a reasonable person. Assault, on the other hand, is any direct and intentional act that causes someone to apprehend immediate harmful or offensive bodily contact.

Section 265 of the Criminal Code defines “assault” as the intentional application of force to a person without their consent, or threats by act or gesture to apply force to a person. Technically, any intentional touch may constitute an intentional application of force. However, the common law principle of de minimis non curat lex (the law does not concern itself with trifles) can be applied to dismiss very minor assault charges.

Alberta’s Provincial Court has not expressly adopted either of those tests in the residential tenancy context, but has used language and principles applicable to both.

The relevant legislation is section 30 of the RTA:

Termination of tenancy for damage or assault

30(1)    Notwithstanding section 29, if a tenant has

  • done or permitted significant damage to the residential premises, the common areas or the property of which they form a part, or
  • physically assaulted or threatened to physically assault the landlord or another tenant,

the landlord may apply to a court to terminate the tenancy or may terminate the tenancy by serving the tenant with a notice at least 24 hours before the time that the tenancy is to terminate.

Physical Assault

The question of what constitutes physical assault for the purposes of the RTA was answered in the 2005 Alberta Provincial Court case, Stubicar v Popilchak.[3] In that case, the landlord (Stubicar) applied for an order to terminate a tenancy alleging the tenant (Popilchak) had committed a substantial breach of the tenancy agreement by assaulting her. The basis for this claim was that, during an argument, Popilchak grabbed Stubicar’s arm. Judge Hess dismissed the application, finding that the incident in question did not meet the definition of assault under the RTA:

The other complaint made by Stubicar is that Popilchak touched her arm.  Given the purpose of the Act, I am not of the view that a mere touching in an apparent attempt to get someone’s attention is an assault.  I am of the opinion that the legislature contemplated an assault which had some consequence.  There is no consequence from the incidental touching [sic] which Stubicar has complained.[4]

Thus, in order for contact to constitute physical assault for the purposes of the RTA, it must be more than mere touching; it must be “consequential” and result in some degree of harm. The intention of the touch is also relevant. In this case, the touch was merely incidental as Popilchak’s intention was to hand a letter to Stubicar; an inconsequential and accidental touch did not constitute physical assault.

Threatening Physical Assault

A tenant can also be evicted for threatening to assault the landlord or another tenant. This rule was applied in the 2012 Alberta Queen’s Bench case, Grewal v Selim,[5] in which a landlord applied to terminate a tenancy on the grounds that the tenant had threatened to assault him. The court agreed and terminated the tenancy, stating at paragraph 6:

Second, Mr. Selim denies assaulting Mr. Grewal. The only evidence he has filed does not contain a clear denial of an assault. He says, “How I do assault him and same time my hands tied with camera and phone to phone 911 for assault me and ambulance came to see me.” Assaultive behaviour includes physically threatening behaviour. That, in my view, answers Mr. Selim’s question.

This decision suggests that not only can a tenant be evicted for making verbal threats to a fellow tenant or landlord, but also for making threatening physical gestures. It seems likely then that a tenant physically touching a tenant or landlord in an inconsequential way could result in eviction if it were done in a threatening manner.

A tenant can also be found to have threatened physical assault via written communication. This happened in the 2016 Alberta Provincial Court case of Devonshire Properties Inc. v Tran,[6] in which the tenant wrote a letter to his landlord saying, “You and Sutherland owe us blood and Scheurer needs to be taught a lesson.” The Court concluded, at paragraph 28:

Unfortunate for the Defendant is his statement that these comments in Exhibit 5 were written out of frustration and anger lending credence to the suggestion that these were not harmless comments but rather in the nature of a threat. Viewed by an objective reasonable person I cannot see how these comments can be seen as anything but a threat. Consequently I am satisfied that the literal wording of the comments in Exhibit 5 was clearly a threat to the Plaintiff and its employees. It is a clear contravention of section 30(1)(b) of the RTA.

As with the physical touching, the determination of whether section 30(1)(b) had been breached by a written communication required not only a review of what the tenant said or did, but also, importantly, their intention. In this case, the court decided that the written comments constituted a threat of assault because the writer intended them to be threatening.

Conclusion

I therefore propose that the test for whether a tenant has assaulted or threatened to assault a landlord so as to have violated section 30 of the RTA can be stated as follows:

  1. Did the tenant touch the landlord or another tenant in a consequential way?
  2. Was the touch intended to threaten or assault? (If yes to both of these questions, assault is found. If no to either, it is likely that no assault will be found although it is possible that a highly consequential touch might still be found to constitute assault even without intent to assault).
  3. If there was no touch, did the tenant threaten, through any method of communication, to touch the landlord or another tenant in a consequential way?
  4. Did the tenant intend their communication to be threatening? (If no to question one, but yes to both questions three and four, threat of assault found).

[1] Residential Tenancies Act, SA 2004, c R.17.1.

[2] Criminal Code, RSC 1985, c C-46.

[3] Stubicar v Popilchak, 2005 ABPC 304.

[4] Ibid, at para 14.

[5] Grewal v Selim, 2012 ABQB 560.

[6] Devonshire Properties Inc. v Tran, 2016 ABPC 218.

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Pizza Delivery Drivers: Employees or Independent Contractors? Commentary on Steiner v MNR.

Pizza Delivery Drivers: Employees or Independent Contractors? Commentary on Steiner v MNR.

 By Michael A. Power with Lydia Potter

Pizza delivery is a big business that relies heavily on drivers to transport fresh, piping hot pizzas right to your door. In most cases, delivery drivers use their own vehicles and pay their own vehicle costs (fuel, insurance, and maintenance) to deliver those pizzas to you.  In exchange, business owners usually pay delivery drivers a flat fee for every pizza delivered. Drivers may also get to keep any tips they collect.

Many pizza companies consider their delivery drivers self-employed independent contractors. Drivers may even sign independent contractor agreements with business owners, stating they are not “employees.” One important consequence of being considered self–employed is that such drivers will generally not qualify for Employment Insurance benefits if they lose their jobs.

However, notwithstanding what business owners say, pizza delivery drivers could actually be employees of the pizza businesses who hire them—even if they sign contracts saying they are self-employed independent contractors.

In Steiner v. MNR,[1]  driver Vita Steiner signed an independent contractor agreement with the owner and operator of a Pizza 73 franchise and began work in March 2003. She used her own vehicle to deliver pizzas for a fixed amount (initially $2.80 per pizza; later, $3.50 per pizza plus any tips she received). Despite working roughly full-time hours exclusively for one Pizza 73 franchisee, Steiner’s income as a delivery driver was minimal. She nonetheless continued the work for over six years until she was fired by the owner in August, 2009.

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Can a Landlord Charge a Tenant Late Fees?

Many residential leases purport to require tenants to pay their landlords late fees if they pay their rent late. Many tenants pay those fees without challenging them, and the question arises: are these fees enforceable?

Short Answer:

A late fee is only enforceable if it is a genuine pre-estimate of damages a landlord will suffer if the rent is paid late. Examples of such a loss include the interest a landlord could have earned on the money, the NSF fee charged by the bank when the landlord tried to withdraw the rent money, or the cost incurred by missing a mortgage payment. The burden is on the landlord to prove the loss on a balance of probabilities.

Long Answer:

The Alberta Residential Tenancies Act [1] is silent on the question of late fees. At common law, the rule on whether or not a fee for breaching a term of a contract is enforceable depends on whether the fee is a penalty (in which case the fee is not enforceable) or liquidated damages (in which case it is enforceable). The terms “penalty,” and “liquidated damages” are defined in the 1915 Supreme Court Case, Canadian General Electric [2]: “A penalty is the payment of a stipulated sum upon breach of the contract, irrespective of the damage sustained. The essence of liquidated damages is a genuine pre-estimate of damage.” This is in keeping with the principle that an injured party is entitled to be compensated and made whole, but not bettered by a damage award, as explained in Meunier [3].

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New Child Support Guidelines Blog Post

By: Olivia Manzer

Those who receive or pay child support may see an increase or decrease in the amount of child support they pay or receive as a result of the update to the Federal Child Support Guidelines that came into effect on Wednesday, November 22, 2017.

This change is as a result of the new Canadian income tax rates that came into effect in January 2016. The new rates reduced the income tax rate for those that earn between $45,282 and $90,563 per year from 22% to 20.5%, and increased the income tax rate for those that earn over $200,000 per year to 33% from 29%.[1]

It is important to note that the change in the amount of child support will not be automatically applied to a child support order if an individual who pays or receives child support falls into one of the two categories mentioned above. If, however, the updated child support amount is different than the amount in a court order obtained before November 22, 2017, an affected party can apply to the court to have the amount changed due to the “change in circumstances”.[2]

If an individual’s income is between $45,282 and $90,563, the decrease in tax rate leaves them with more disposable income and, as a result, they may see their child support payment amounts increase under the Federal Child Support Guidelines. Conversely, those who are in the highest tax bracket are now paying a higher rate of taxes, have less disposable income, and may see their guideline amounts decrease.

For example, an individual who paid child support for two children in Alberta and made $46,000 per year would have previously had a guideline child support amount of $646 per month. After the changes on November 22, 2017, all else remaining equal, the guideline amount would have increased by $21 to $667 per month.

It is important to note that each case is different and, depending on an individual’s income, what province they live in, their personal circumstances and any child support agreements or orders, there may be no change in the support amount. It is also important to note that this change does not apply retroactively; amounts owed prior to November 22, 2017 are not affected by the new Guidelines.

[1] https://www.canada.ca/en/financial-consumer-agency/services/financial-toolkit/taxes-quebec/taxes-quebec-2/5.html

[2] http://www.justice.gc.ca/eng/fl-df/child-enfant/ft-tf.html

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Supporting Victims of Domestic Violence: Abolishing the Conditional Permanent Residence Provision and the Next Steps

Supporting Victims of Domestic Violence: Abolishing the Conditional Permanent Residence Provision and the Next Steps

Arden Mathieson
Summer Law Clerk
Edmonton Community Legal Centre

Prior to April 28, 2017, immigrants to Canada under the spousal sponsorship program had to live with their sponsors for two years in order to prove their relationships were genuine. If they moved out before the end of the second year—they lost their permanent residence and were accused of misrepresentation. This conditional permanent residence provision was introduced in October 2012, as a means to prevent immigration to Canada through fraudulent marriages. What may have been a well-intentioned attempt to regulate immigration, actually resulted in increased marginalization of immigrant spouses who were experiencing domestic violence.

The permanent residence provision forced victims of domestic violence to choose between leaving their abusive partners and losing their immigration status. Worse, some sponsors took advantage of the provision to perpetrate or continue violence and abuse. The West Coast Legal Education and Action Fund’s [LEAF] position paper captures this vividly: “[A]busive sponsors prey upon the precarious immigration status of their partners to control their behaviour and stop them from reporting the violence or leaving the relationship.”[1]

Low levels of reporting and language barriers limit our understanding of family violence, particularly within newcomer families. Relatively little data exists on how family violence plays out among those who have relocated to Canada. A recent resource by Justice Canada, Abuse is Wrong in any Language, recognizes that, sometimes, behaviours occur in immigrant families that are not always recognized as family violence or crimes.[2]
Examples of family violence include:

  • Physical abuse
  • Sexual abuse
  • Emotional/psychological abuse/violence
  • Economic or financial abuse
  • Spiritual abuse[3]

There are many ways an immigrant could prove they were once in a genuine relationship without continuing to live with an abusive spouse: for example, immigration officers often rely on documented love letters, text messages, emails, photos from events like weddings and anniversaries, marriage certificates, children’s birth certificates, letters from family or friends, and sworn affidavits. So why, given that the federal government was aware that domestic violence was a problem in spousal sponsorship, did they require permanent residents to stay in an unsafe homes and relationships?

In April 2017, the Liberal government abolished the conditional permanent residence provision for spouses and partners. Abolishing the provision is a good first step toward conceptualizing access to justice for vulnerable immigrants, but it is not enough. As service providers, we also need to understand how to support immigrants once they leave abusive sponsors.

As the Honourable Donna Martinson, a retired judge of the British Columbia Supreme Court, has explained:

Meaningful access to justice requires more than just providing women and children with access to any lawyer, or any judge. The justice part of access to justice requires that those lawyers and judges dealing with family law cases and criminal law cases have the interest in, aptitude for, and the professional experience and expertise required to deal with the complexities of, and multifaceted nature of, IPV [intimate partner violence].[4]

To provide access to justice (and not just access to the justice system), it is essential for lawyers, judges and immigration officers to take professional training in how to recognize and respond to domestic violence, and in the tactics and dynamics of coercive control. Unless the key players have the right training, serious harm to immigrants ’physical, emotional, and spiritual well-being will continue, unexposed.

In my experience with the Edmonton Community Legal Centre (“ECLC”), I have noticed that abusive sponsors can use the legal system to exert power and control over immigrant victims of domestic violence in two ways. Firstly, abusive sponsors may initiate unwarranted civil or family litigation to exert their dominance. Often unable to afford legal representation, the Respondent spouses may succumb to the demands of their abusers. Secondly, abusive sponsors may threaten (and some individuals act on these threats) to call the police to have their partners charged with non-existent crimes; revoke immigration sponsorships; make anonymous, unwarranted tips to social assistance authorities to prompt fraud investigations; or complain to Child Protective Services about their partners’ fabricated neglect or abuse of their children. The engagement of any one of these legal systems can trigger investigations by multiple authorities. For example, a call to the police will usually prompt a report to Child Protective Services and, for spouses without permanent residence, to Immigration, Refugees and Citizenship Canada. In such circumstances, participation in the legal system by sponsored spouses is not access to justice; rather, it further marginalizes vulnerable newcomers. In this way, newcomers may have access to a legal forum or process, but not access to justice.

An in-depth and intersectional appreciation of domestic violence — and of how it is enabled by social structures and institutions, law included — is critical. These structures include the overlapping systems of oppression that operate not only to render some spouses—most often women–more vulnerable to violence and with fewer resources to exit relationships, but also to construe only some spouses as “victims” deserving of legal redress.

Now that the conditional permanent residence provision for spouses has been abolished, the next step is collaboration between legal actors.  Lawyers, judges, and immigration officers must integrate with social service providers like shelters, counsellors, social workers, and churches to meet the needs of vulnerable immigrant spouses. None of the above actors can address domestic violence on their own. As experts in our respective fields, we must learn from each other and capitalize on shared resources. It is not enough that an abused immigrant is permitted to leave their sponsor and continue to reside in Canada. True access to justice requires physical and psychological supports. This is why at The Edmonton Community Legal Center we have a multi-disciplinary team that includes an immigration lawyer, a registered immigration consultant, asocial benefits advocate, and a family law client liaison who connect clients with the various social services they need.

REACH Edmonton provides training to prevent family violence in a cultural context. If you are connected to families from emerging ethno-cultural communities and would like a session on healthy families or healthy youth relationships, contact Justin Otteson (780-238-3756) or Helen Rusich (780-619-8780) of REACH Edmonton.  I encourage members of the public, legal actors and service providers to join me in learning more about how to best support immigrant women and other vulnerable spouses.

[1] West Coast Legal Education and Action Fund. (2015, January). Position Paper: Sanctuary City Policy. Retrieved June 21, 2017, from http://www.westcoastleaf.org/wp-content/uploads/2015/01/WCL-Position-Paper-Sanctuary-City.pdf

[2] Government of Canada Department of Justice. (2009). Abuse is Wrong in any Language. In Criminal Justice. Retrieved from http://www.justice.gc.ca/eng/rp-pr/cj-jp/fv-vf/fe-fa/index.html

[3] Ontario Council of Agencies Serving Immigrants. (2006, September). Prevention of Domestic Violence against Immigrant and Refugee Women. Retrieved from http://ccrweb.ca/sites/ccrweb.ca/files/ocasi_domviolence_resource_book_nov2006_0.pdf

[4] Hon Martinson, D. (October, 2014.) keynote address delivered at the Canadian Observatory on the Justice System’s Responses to Intimate Partner Violence National Conference, University of New Brunswick:  Multiple Court Proceedings and Intimate Partner Violence: A Dangerous Disconnect. Retrieved from: http://www.unb.ca/conferences/mmfc2014/_resources/presentations/donna-martinson-keynote.pdf

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Door-to-Door Deception

As of January 2017, section 9.1(1) of the Direct Selling Business Licensing Regulation has made it a prohibited practice to sell furnaces, air conditioners, water heaters, windows and energy audits door to door.[1] This regulation does not retroactively apply to individuals who purchased these items before January 2017. Numerous consumers have been tricked and taken advantage of by door-to-door salesmen, and this legislation seeks to protect future consumers.

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