Repost from ABlawg: “The Increase of Self-Represented and Vexatious Litigants”

This post is an introduction to Jonnette Watson Hamilton’s article “The Increase of Self-Represented and Vexatious Litigants” published on ABlawg:

http://ablawg.ca/wp-content/uploads/2018/09/Blog_JWH_ATB_v_Hawrysh_Sept_2018.pdf

Hamilton’s article describes the new approach Alberta courts have adopted in regards to court access restrictions. Courts no longer require a litigant to be persistently vexatious to justify a court access restriction order. Instead, a judge may give an Interim Court Access Restriction Order in as little as seven days from the first instance of the alleged vexatious conduct, which is what happened in the cases studied by Hamilton (Alberta Treasury Branches v Hawrysh, 2018 ABQB 475 and Alberta Treasury Branches v Hawrysh, 2018 ABQB 618). Hamilton also uses these cases to illustrate how the status of ‘self-represented litigant’ may itself be (wrongfully) considered indicative of abusive litigation conduct. The article highlights the need for protection of self-represented litigants and their right of access to the courts.

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Economic Evictions in a Residential Tenancy

Economic Evictions in a Residential Tenancy

Case commented on: Oneka Land Company Ltd v Mouyadine Nur, RTDRS Case No. E-18-61728, September 17, 2018, unreported (“Oneka”)

The 2014 Court of Queen’s Bench Master’s decision Milner’s Aloha Mobile Home Park (1998) Ltd v Jenkins2014 ABQB 229 (CanLII) (“Milner’s Aloha”) recognized that if a landlord in a mobile home site tenancy tries to use a rent increase to evict a tenant that they otherwise could not lawfully evict, the Court can step in and treat the rent increase as void.

Attempts to use rent increases to evict tenants are sometimes called economic or constructive evictions.

In a post on ABlawg [ https://ablawg.ca/2014/05/15/constraining-a-landlords-ability-to-terminate-a-residential-tenancy-by-raising-the-rent/ ], Jonnette Watson Hamilton discussed the Milner’s Aloha case and concluded that, given the similarities between the provisions of the Mobile Home Sites Tenancies Act (MHSTA) and the Residential Tenancies Act (RTA), a tenant in an RTA context should have the same remedy in an economic eviction situation. However, there has been no reported decision of which the author is aware where an RTA tenant has successfully used this argument in Alberta.

Recently, in the Oneka case referenced above, the ECLC represented a tenant at a hearing at the Residential Tenancy Dispute Resolution Service (RTDRS) where this defence was successfully raised in an eviction application. RTDRS decisions are granted orally and are not reported, and so their use as precedents is limited. It is hoped that this discussion of the case will provide a useful reference for advocates who practice in this area.

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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.

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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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