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EMPLOYMENT | COVID-19: Temporary changes to Alberta’s Employment Standards Code

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COVID-19 has impacted every aspect of people’s lives in Alberta, across Canada and around the world. Governments have scrambled to approve stimulus packages, update public health orders, and change laws to respond to this new disease.

Alberta declared a public health emergency under the Public Health Act on March 17, 2020. Doing so gives the government powers to temporarily suspend or change any part of a law through a Ministerial Order. The government posts all of Alberta’s public health orders and Ministerial Orders online.

Ministerial Order 18/2020 dated April 6, 2020 makes temporary changes to Alberta’s Employment Standards Code. The Employment Standards Code and the Ministerial Order apply to most workers in Alberta. For more information about who is not covered, see CPLEA’s Employment FAQs.

What are the temporary changes to the Code?

Ministerial Order 18/2020 introduced several temporary changes:

  1. Notice of Schedule Changes

Employers are usually supposed to give employees at least 24 hours’ written notice of a shift change. Right now, employers only have to give written notice as soon as possible in the circumstances. The requirement for 8 hours of rest between shifts has not changed.

Under an Averaging Agreement, an employee can make a temporary change to the employer’s schedule by giving them at least 2 weeks’ notice before the change comes into effect. Right now, employers only have to give employees notice as soon as possible in the circumstances.

These changes will allow employers and employees to respond quickly to staffing needs.

  1. Job-Protected Unpaid Leaves

Normally, an employee is entitled to up to 5 days of unpaid leave to deal with their own health or to meet their responsibilities in relation to a family member. Employees usually must be employed for 90 days to qualify for this leave.

… the government has temporarily changed the lay-off period to 120 consecutive days.Right now, an employee is entitled to unpaid leave for the period of time directed by Dr. Hinshaw to allow the employee to meet their responsibilities in relation to a family member who is under quarantine as well as any of their children affected by school or daycare closures. An employee does not need to have worked for the same company for 90 days to qualify for this leave. As well, an employee must give their employer documentation to prove the leave at a time when it is reasonable to do so. Employees are not required to provide a medical certificate.

  1. Group Terminations

Normally, an employer must notify the Minister of Labour and Immigration if the employer intends to terminate 50 or more employees at a single location within a 4-week period. The amount of notice (in weeks) depends on how many employees the employer is terminating.

Right now, employers are required to give the Minister notice of group terminations as soon as possible in the circumstances. The notice must include the number of employees the employer is terminating and the effective date of the terminations. However, employers are still required to provide employees with appropriate notice or pay in lieu of notice of the termination.

For more information on notice or pay in lieu of notice of termination, see CPLEA’s FAQs on termination.

  1. Temporary Lay-offs

Before COVID-19, employers could lay off an employee for a total of 60 days within a 120-day period. This means your employer could give you a lay-off notice and you could not work for up to 60 days in a 120-day period but still have a job.

Because of COVID-19, it is likely that many employees will not work at all in a 120-day period. Accordingly, the government has temporarily changed the lay-off period to 120 consecutive days. This means, your employer can lay you off for 120 consecutive days and recall you back to work at the end of that period. If your employer recalls you, you must return to the same job – it’s not a termination and re-hire. If your employer does not recall you, then your employment has ended and you are entitled to the appropriate notice or pay in lieu of notice.

For more information on temporary lay-offs, see CPLEA’s FAQs on lay-off.

  1. Applications for Variances or Exceptions to the Code

Ministerial Order 18/2020 dated April 6, 2020 makes temporary changes to Alberta’s Employment Standards Code.The Code sets out a process for employers, a group of employers or employer associations to apply to the government (Director or Minister) to issue a variance or exemptions from certain provisions of the Code. Under s. 74 of the Code, an employer could apply to the Director for variances or exemption from certain provisions. (Those provisions are set out in s. 43.86 of the Regulations.) Under s. 74.1, groups of employers or employer associations could apply to the Minister for variances or exemptions from any provisions under the Code or Regulations.

Now, employers, groups of employers and employer associations can all apply under ss. 74 and 74.1. As well, s. 43.86 of the Regulation has been changed. And the factors the Director or Minister must consider do not apply to employers, groups of employers or employer associations impacted by COVID-19.

How long will these changes last?

Ministerial Order 18/2020 remains in effect until August 14, 2020 unless one of the following happens first:

  • 60 days after the Order is cancelled by the Lieutenant Governor (if she cancels it before June 15, 2020);
  • the Minister terminates the Order because it is no longer in the public interest; or
  • the Lieutenant Governor cancels the Order.

Once the Ministerial Order ends, the changes described above will be reversed, and the original provisions of the Code and Regulations will apply.

For more information about changes to the law due to COVID-19, see CPLEA’s COVID-19 page.

Canada’s Carbon Tax Laws: Where are we now?

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On June 21, 2018, Canada’s Greenhouse Gas Pollution Pricing Act (the Act) came into effect. Part 1 of the Act imposes a surcharge on fuels such as gasoline, fuel oil, propane, kerosene and methanol. Distributors of the fuel pay the surcharge though the cost would likely be passed down to consumers. Part 2 of the Act applies to large industrial facilities that emit greenhouse gases (GHG). Facilities have a limit on the amount of GHG they can emit each year. If they go over that limit, they must pay through a credit system or an excess emissions charge or both. Government and media have affectionately referred to these fees as a carbon tax.

But here’s the kicker – Part 1 or Part 2 or both only apply to provinces that do not have a scheme that is acceptable to Canada. That is, the provinces can create their own carbon tax scheme but it must meet Canada’s goals. If a province does not have an acceptable scheme (or no scheme) in place, then the federal Act kicks in as a backstop.

Three provinces – Alberta, Saskatchewan and Ontario – asked their respective appeal courts to review the Act and provide an opinion on whether it is constitutional. Specifically at issue was whether Parliament has the power to enact this legislation under the Constitution Act, 1867 or if the power to enact this type of legislation rests with the provinces. We call this type of issue a division of powers issue.

The Alberta Court of Appeal released its decision on February 24th of this year. A majority of the justices who heard the reference held that the Act is not constitutional. Before this, appeal courts in the other two provinces had held that the Act is constitutional.

The Saskatchewan and Ontario governments have already appealed their courts’ decisions to the Supreme Court of Canada. The Supreme Court of Canada will hear Saskatchewan’s appeal on March 24, 2020 and Ontario’s the next day.

Why do we care?

… whatever the Supreme Court of Canada decides is what all Canadians must live with, whether we agree with the outcome or not.We care about these decisions because they impact the federal and provincial governments’ response to climate change. But we also care about these decisions because of what they say about our judicial system and how we engage with it. Let’s break down the numbers:

  • A total of 15 justices across the three appeal courts heard the matter. Eight sided with Canada – that the Act is constitutional. Seven justices held that the Act is unconstitutional.
  • Eight different opinions were provided – 3 majority decisions, 2 concurring opinions (agreeing with the respective majority) and 3 dissenting opinions (disagreeing with the majority).
  • The opinions total 543 pages of text.

To be frank, this is a complicated matter. And I don’t just mean climate change. I also mean what power each level of government has to make laws about certain topics. In this case, the topic happens to be the environment and greenhouse gas emissions. But the same legal principles apply regardless of the topic. One hopes, anyways.

When read together, the 8 opinions are a fascinating study of legal reasoning and passion. They are difficult even for a lawyer to understand, let alone someone with very little, or no, legal training.

The Legal Principles

For the most part, the three courts discuss two major legal principles:

  1. federalism;
  2. the national concern doctrine.

Federalism refers to Canada having two levels of government: provincial and federal. Under our constitution, each level of government has power to make laws about certain areas. Section 91 of the Constitution Act, 1867 sets out a list of areas (called heads of power) over which the federal government has jurisdiction to make laws. Section 92 lists heads of power which the provincial governments have jurisdiction to make laws applicable in their own provinces. Federalism is a “foundational feature of Canada’s constitutional architecture and defining characteristic of Canada as a nation” (at para 130 of the Alberta Court of Appeal decision). When there is confusion over whether the federal or provincial governments have jurisdiction over a certain area, this is a division of powers problem.

The opening words to s. 91 of the Constitution Act, 1867 say that Canada has the following power, in addition to the heads of power listed:

to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

Each of these decisions comes down to how the justices characterize the subject matter of the Act.We call this power “POGG” (peace, order and good government). POGG is a residual power that the federal government has to make laws about the heads of power not specifically listed in s. 92 of the Constitution Act, 1867. The provinces also have a residual power over all matters of a local or private nature in the province, set out in s. 92(16). The drafters of the constitution realized there would be new things that would come up that they couldn’t think of then. How right they were! Climate change was not on anyone’s radar in 1867.

Canada’s POGG power has three branches:

  1. the gap branch – assigning matters to the federal government that the drafters of the constitution would have undoubtedly assigned to the federal government when it was drafted had they thought of it.
  2. the national concern branch – allowing the federal government to make laws on matters that are of a national concern.
  3. the emergency branch – making temporary laws in emergency situations, such as wartime provisions.

Any new heads of power assigned to the federal government under the national concern branch of POGG must have three characteristics: singleness (not too broad of a focus), distinctiveness (must be qualitatively different from the other listed heads of power), and indivisibility (must be a head of power that Parliament should obviously have).

Canada argued in each court that the Act is constitutional as a valid exercise of its power under the national concern branch of POGG.

Where the Justices Agreed

Let’s start with where all three courts agreed. First, neither Parliament nor the provinces have exclusive jurisdiction over the environment. The Supreme Court of Canada has made this clear in previous decisions.

Second, the process for determining whether a law is constitutional or not requires answers to two questions:

  1. What is the pith and substance of the law (i.e. what matter does the law address, both in purpose and effect)? At this step, the court characterizes the subject matter of the Act.
  2. Which level of government has jurisdiction over that matter? This is a classification process, but it is not perfect. A matter may overlap several heads of power described in ss. 91 and 92 of the Constitution Act, 1867. It’s a balancing act.

Third, the court has no place in commenting on the usefulness of a law. That is a policy decision left to governments. The topic of climate change is a contentious one, with many opinions all over the board. But ultimately, our governments (provincial and federal) must create policies and laws that outline Canada’s response to climate change. In reviewing whether these laws are valid, the court is not examining the usefulness of the law or the government’s choice of policy in addressing the issue. The court simply focuses on the legal principles at play.

Where the Justices Disagreed

Each of these decisions comes down to how the justices characterize the subject matter of the Act. This characterization is necessary to answer the first question of the test described above.

Saskatchewan

The Saskatchewan Court of Appeal took the first kick at the can. The Saskatchewan government filed their request for review of the Act before the Act became law. The Court didn’t hear from provincial and federal lawyers though until after the law came into effect.

Federalism refers to Canada having two levels of government: provincial and federal.Five justices heard the reference. Three justices found the Act to be constitutional while two justices found the opposite.

Saskatchewan presented two lines of argument:

  1. The Act imposes a tax, which offends federalism (because the Act only applies in some provinces depending on how provinces decide to exercise their legislative authority) and s. 53 of the Constitution Act, 1867 (how tax laws are made).
  2. The Act is concerned with property and civil rights and other matters of a purely local nature falling within exclusive provincial legislative authority.

Canada argued that the Act was constitutional under its national concern power. It characterized the Act as being about “the cumulative dimensions of GHG emissions.”

The Court rejected Saskatchewan’s arguments. It also rejected Canada’s characterization of the Act for being too broad. Instead, the Court characterized the Act as being about “the establishment of minimum national standards of price stringency for GHG emissions”. Using this new characterization, the Court found that this matter could become a new head of power under the national concern branch of POGG. In other words, this characterization was focused, distinct and indivisible.

In the dissenting opinion, two justices found the surcharge under Part 1 of the Act to be a tax with a broad purpose of bringing about behavioural changes to reduce GHG emissions. They found Part 2 to be a regulatory charge for the purpose of regulating GHG emissions. In their opinion, the Act is unconstitutional.

Ontario

Next up, Canada defended its Act before the Ontario Court of Appeal. Five justices heard the appeal. Four justices found the Act to be constitutional while one justice dissented.

Canada argued in each court that the Act is constitutional as a valid exercise of its power under the national concern branch of POGG.The majority of the justices also rejected Canada’s characterization of the Act as being about the “cumulative dimensions of GHG emissions”. Instead, the Court characterized the Act as being about “establishing minimum national standards to reduce greenhouse gas emissions.”

One justice wrote a concurring decision – she came to the same conclusion but for different reasons. She would have characterized the Act as being about “establishing minimum national greenhouse gas emissions pricing standards to reduce greenhouse gas emissions.”

In the dissenting opinion, a fifth justice characterized the Act as simply being the regulation of GHG emissions.

Alberta

Finally, it was Alberta’s turn. The province argued its case before the Alberta Court of Appeal in late December, 2019. Five justices heard the appeal. Four justices found the Act to be unconstitutional (one with a concurring decision). One justice dissented.

Canada asked the Court to recognize “establishing minimum national standards that are integral to reducing Canada’s nationwide GHG emissions” as a new head of power under the national concern branch of POGG. The Court found that the national concern doctrine only applies to s. 92(16) of the Constitution Act, 1867 – the province’s residuary power. It does not apply to other listed heads of power specifically reserved for the provinces in the constitution.

The majority characterized the Act as being “at a minimum, regulation of GHG emissions”. The majority reasoned that if it gave Canada the power to make laws about the regulation of GHG emissions, then Parliament could make laws that would certainly step into provincial jurisdiction, including the provinces’ power to develop and manage its non-renewable resources under s. 92A of the Constitution Act, 1867.

… the court has no place in commenting on the usefulness of a law. That is a policy decision left to governments.One justice wrote a dissenting opinion, that the Act is constitutional. In his opinion, the pith and substance of the Act is to “effect behavioural change throughout Canada leading to increased energy efficiencies by the use of minimum national standards necessary and integral to the stringent pricing of greenhouse gas emissions”.

Conclusion

Are you starting to see how problematic characterizing the Act is? And how it is not an exact science? The legal challenges to the Act have nothing to do with climate change as a policy. Rather, the three appeal courts were tasked with providing an opinion as to whether Parliament had the authority to make laws about the GHG emissions scheme detailed in the Act. Or if the Constitution Act, 1867 gives the provinces authority over this area instead. Fifteen justices from three appeal courts across the country couldn’t reach a consensus.

At this point, there is no other option but for this matter to go to the Supremes. And they’ll say, “Stop!” That is how our justice system works. Is it perfect? No. Does it mean that the Supreme Court of Canada justices are smarter than the other justices who have written opinions on this topic? No. But they do have the final say. And whatever the Supreme Court of Canada decides is what all Canadians must live with, whether we agree with the outcome or not. Stay tuned!

BENCHPRESS | Challenges to the Constitution, Canada Labour Code and an insurance policy

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Constitutional Challenge: Third parties can profit from sex work

R v Anwar, 2020 ONCJ 103

Hamad Anwar and Tiffany Harvey were charged for running an escort service in London, O.N. They employed several adult women, providing vacation time and benefits. Specifically, they were charged with offences under the following Criminal Code provisions:

  • 286.2(1) (receiving a material benefit from sexual services)
  • 286.3(1) (procuring a person to offer or provide sexual services)
  • 286.4 (advertising sexual services).

The accused challenged the constitutionality of these provisions. They claimed that:

… the effect [of the legal regime created by the provisions] is, at a basic level, to deprive sex workers of those things that are natural, expected and encouraged in all sectors of the economy. As a result, sex workers, who are more likely in need of protection than more workers, are denied the benefits accorded to mainstream labour. (See para 3.)

The Ontario Court of Justice (Ontario’s lowest court) found that:

  • 286.2 and 286.3 violate s. 7 of the Charter (life, liberty and security of person)
  • 286.4 violates s. 2(b) of the Charter (freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication).

The Court determined that none of these violations could be saved under s. 1 of the Charter. The Court noted that the effect of s. 286.2 is to make sex work more dangerous “by discouraging all third parties other than the criminal element from becoming involved in the sex industry.” The Court also noted that s. 286.3 was arbitrary because it criminalized individuals offering administrative and safety services to sex workers that are provided to people in other industries. Finally, the Court concluded s. 286.4 fails to meet the minimal impairment requirement as it “imposes criminal liability on third-parties even if they are in non-exploitative commercial relationships with sex workers offering services at the same cost that they generally make available to the public.”

What’s next? Charges against the two accused are stayed. The Crown has not indicated whether they will appeal the decision. The decision was met with mixed reviews from the public.

Labour Code Challenge: Canada Post need not inspect mail routes

Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67

Canada Post is a federally-regulated employer. It must follow the provisions of the Canada Labour Code. Section 125(1)(z.12) requires that the work place committee or health and safety representative inspect every work place at least once per year.

A representative of the Canadian Union of Postal Workers, who also sat on the Local Joint Health and Safety Committee at the Burlington Depot in Ontario, filed a complaint with Human Resources and Skills Development Canada. “The complaint stated that the safety inspections should include letter carrier routes and locations where mail is delivered (‘points of call’), and not just the Burlington Depot building.” This complaint was significant because it could have national consequences. Canada Posted estimates that “letter carriers travel 72 million linear kilometers delivering mail to 8.7 million points of call.”

A Health and Safety Officer completed an investigation and concluded that Canada Post had not complied with s. 125(1)(z.12) of the Code. Canada Post appealed the Officer’s decision to the Occupational Health and Safety Tribunal Canada. The Appeals Officer at the Tribunal found that the inspection obligation only applied to the parts of the work place that the employer could control. He noted “Canada Post cannot alter nor fix the locations in the event of a hazard.” Therefore, Canada Post was not required to inspect letter carrier routes and points of call.

The Union applied to the Federal Court for judicial review of the Tribunal’s decision. The Federal Court dismissed the application for judicial review but the Federal Court of Appeal allowed the appeal and reinstated the original Health and Safety Officer’s decision. Canada Post appealed to the Supreme Court of Canada, which upheld the Appeal Officer’s decision. The Court found that the Appeals Officer’s decision was reasonable as it “followed from a clear line of reasoning.”

After all of that? Canada Post only needs to conduct safety inspections at its buildings, not on letter carrier routes or at points of call.

Life Insurance Challenge: No payout due to past terrorism

Mohammad v The Manufacturers Life Insurance Company, 2020 ONCA 57

The deceased applied for a life insurance policy on April 10, 1987. Purchasing life insurance was required to get a mortgage. The deceased answered all of the questions posed. None of the questions asked about the deceased’s past, and so the deceased did not reveal that he was a member of the Popular Front for the Liberation of Palestine (PFLP).

The PFLP is a terrorist entity. The deceased had been involved in storming an El Al civilian aircraft in 1968, moved to Lebanon shortly after, and then came to Canada in 1987 using an alias. Canadian immigration officials discovered his past, and he was deported to Lebanon in 2013. He died in 2015 from lung cancer.

The life insurance company refused to pay out the life insurance policy (worth $75,000) to the deceased’s wife because of the deceased’s past. The trial judge determined that the insurance company had not asked questions about the deceased’s immigration status or other past activities on the application form. This signaled this information was not material to assessing a candidate’s application for life insurance.

The Ontario Court of Appeal overturned the trial judge’s decision. The Court noted that it is a “principle of long standing that an applicant for insurance has an obligation to reveal to the insurer any information that is material to the application.” The Court concluded the “past actions of the deceased were material to the risk that he posed for the purpose of having his life insured.”

The result? The deceased’s wife doesn’t get the $75,000 life insurance payout.

44-4: Climate Change

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Volume 44-4  Mar/Apr 2020

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Table of Contents

Climate change is one of today’s hottest topics. This issue looks at different aspects of the topic – from mitigation and adaptation, to legislation and legal challenges. We also report on how children’s stories teach about the law.

 

Feature Articles: Climate Change

Climate Change Mitigation and Adaptation
Brenda Heelan Powell and Rebecca Kauffman
Mitigation and adaptation efforts will be crucial in building capacity to cope with the impacts from climate change.

Canada’s Carbon Tax Laws: Where are we now?
Jessica Steingard
Appeal courts in Saskatchewan, Ontario and Alberta have provided opinions on whether Canada’s Greenhouse Gas Pollution Pricing Act is constitutional.

Searching for Hopeful Signs in a Dark Wood, Rapidly Shrinking: Laws to address the climate emergency
Rob Normey
Examples from the U.S., Brazil, the Netherlands, Denmark and New Zealand showcase different responses to climate change.

Do Natural Objects Have Legal Rights?
Myrna El Fakhry Tuttle
Countries have enacted laws and courts have granted legal rights to natural objects.

Kids facing effects of climate change are taking their governments to court
Margot Young
Frustrated by government failure to respond adequately to climate change, citizens are taking to the courts.

Special Report: Children’s Stories and the Law

Do Books Relieve Children’s Pain During Divorce?
Myrna El Fakhry Tuttle
Bibliotherapy – the use of literature to deal with personal problems – can assist children in understanding divorce.

Criminal Acts in Children’s Stories
Charles Davison
If we consider some of the most popular traditional children’s stories and fairy tales in the context of modern Canadian criminal law, serious concerns can arise.

Bear With Me: Law for little ones
Teresa Mitchell
One of the best ways to teach children about justice and laws is with stories.

Departments

BenchPress
Jessica Steingard

New at CPLEA
Lesley Conley

YOUTH & THE LAW | Social Media Terms of Use: I agree?

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We’ve all done it. Scrolled quickly through legal terms and clicked “I Agree” without reading a word. If you’re like me, you think, well how bad can these terms and conditions be? Everyone is using this app. But what exactly are you agreeing to?

In this column, we’ll look at the terms of use for Facebook, Instagram and Snapchat. (We’ll refer to these sites as ‘platforms’.)

The Documents

Each platform has its own terms and conditions and other policies:

  • Facebook’s Terms of Service (last updated July 31, 2019) apply to your use of Facebook and Messenger.
  • Facebook’s Data Policy (last updated April 19, 2018) applies to your use of Facebook, Messenger and Instagram.
  • Instagram’s Terms of Use (last updated April 19, 2018) apply to your use of Instagram.
  • Snapchat’s Terms of Service (last updated October 30, 2019 and apply to users outside the United States) and Privacy Policy (last updated December 18, 2019) apply to your use of Snapchat, Bitmoji and Spectacles.

There are other terms and policies that may apply to you if you are using other features or add-ons, or running a business. Check each platform’s website for more information.

The Terms

By using the services provided, you and the company have entered into a contract. But this contract is not one where you can negotiate the terms with the other party. Facebook will not change some of their terms just for you. If you don’t like the terms and conditions, then don’t use the platform!

User Restrictions

You must be at least 13 years of age to use Facebook, Instagram or Snapchat. Convicted sex offenders cannot use the platforms. You can only create one account on Facebook for your personal use.

Facebook, Instagram and Snapchat have data policies to let you know what information they collect and how they use it.Ownership of Content

You own the intellectual rights in your content. For example, if you post a photo that you took, you automatically own the copyright in that photo. Owning the copyright means others cannot use your photo without your permission. However, by using Facebook, Snapchat or Instagram, you give them permission to use your photo. Technically speaking, you grant them a license to host, use, copy, change, publish and distribute your copyrighted materials. All three platforms state that the purpose of this license is to provide and improve their services and products.

Activities Not Allowed

You cannot use the platforms for corrupt purposes, such as:

  • Violating or infringing on someone else’s rights (including copyright and privacy rights)
  • Bullying, harassing or intimidating someone
  • Doing illegal things or posting illegal things on the site (such as pornography, graphic violence, threats, hate speech)
  • Interfering with the platform’s software
  • Accessing someone else’s account without their permission.

Facebook, Instagram or Snapchat can delete any of your content that violates their terms and conditions. These companies can also share your information with police or lawyers as requested.

You own the intellectual rights in your content. Each platform has also created its own community guidelines or standards that outline other unacceptable behaviors, such as:

  • No nudity or sexually explicit content.
  • No hate speech, degrading or shaming content, blackmail or harassment, and repeated unwanted messages.
  • No violence or encouraging violence, including threats or against anyone based on race, ethnicity, national origin, gender, gender identity, sexual orientation, religion, disabilities or diseases.
  • No glorification of self-harm.

Resolving Disputes

If you have a dispute with Facebook, Instagram or Snapchat, try contacting them first to resolve the issue. If that doesn’t work, then each platform’s terms say how the dispute will be resolved. For example, if you have a dispute with Facebook, you can start a lawsuit where you live. If you have a dispute with Snapchat, the law of England and Wales applies and a judge in England will hear the dispute. That could be an expensive lawsuit!

Exclusion of Liability

Each platform’s terms try to limit the company’s liability to you for any losses (money or otherwise) you suffer from using their services. For example, if Instagram deletes your content, information or account, you probably won’t be successful if you try to sue them for losing all your photos.

Advertising

All three platforms are free to use. But there’s a catch.

By using the services provided, you and the company have entered into a contract.Ever wonder why you see so many ads that are eerily similar to things you buy or like? That’s because Facebook, Instagram and Snapchat make money from selling ads to businesses and other organizations that want to promote their products. Advertisers tell the company which audience they want to see the ads. And the company shows the ads to users who fit that description, based on users’ activities and interests.

Facebook, Instagram and Snapchat have data policies to let you know what information they collect and how they use it. The platforms may collect the following information:

  • information and content you provide on the platform
  • your activity (including people, accounts, hashtags, groups, use, etc.)
  • information about transactions made on the platform (such as Facebook donations)
  • things others do and information they provide about you (such as others sharing or commenting on photos of you)
  • information about the device you use to access the platform
  • information from third party providers who have a right to provide the platform with your information.

The companies use this info to show you ads, report back to advertisers and make their services better. They also collect this info to promote safety and security on the platforms.

Facebook shares this information as non-identifying information. This means that whoever receives the information would not be able to identify you. You can change your privacy settings in Facebook to control what information Facebook and Instagram can access. To do so, go to your “Settings” and then click on “Ads”.

All three platforms are free to use. But there’s a catch.Snapchat may share public information about you, such as your name, username, Snapcode and profile pictures. To change how your data is collected and used for advertising, follow Snapchat’s step-by-step instructions.

Other Privacy Concerns

In addition to what information the platforms share about you to advertisers, you should also think about:

  • How are other users sharing your information? Are your friends sharing your photos or other information about you? What are your friends’ privacy settings?
  • What other companies are you interacting with on the platforms? For example, if you buy a game through Facebook, that game company may not be connected to Facebook and may have its own privacy policy.
Conclusion

The takeaway? If you don’t agree with these terms, delete your accounts!

44-3: 20/20

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Volume 44-3  Jan/Feb 2020

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Table of Contents

The beginning of a new year is a time to reflect on the past. In this issue, we’re looking back at important changes to the law over the last 20 years. We also report on the state of the law in rural communities.  

 

Feature Articles: 20/20 Looking Back

CONSUMER | Canada’s Law on Consumer Product Safety
Judy Feng
Introduced in 2010, the Canada Consumer Product Safety Act regulates consumer products that pose or might pose a danger to human health and safety.

CRIMINAL | The Right to be Tried Without Undue Delay
Charles Davison
The Jordan decision introduced deadlines on the right to be tried without undue delay and continues to impact the criminal justice system as a whole.

ENVIRONMENT | The Crown’s Duty to Consult
Jeff Surtees
The Haida Nation decision provided a framework for consultation where claims for Aboriginal rights and title had been made but not yet decided.

FAMILY | DBS v SRG: Retroactive child support claims
John-Paul Boyd
In DBS v SRG, the Supreme Court of Canada developed a single analysis for retroactive child support claims.

HUMAN RIGHTS | Access to Justice Given a Boost by Downtown Eastside Sex Workers Case
Linda McKay-Panos
The Supreme Court of Canada adapted the rule on public interest standing, resulting in potential for better access to justice.

NOT-FOR-PROFIT | The Unchanging Meaning of ‘Charity’
Peter Broder
A noticeable non-development has been the unchanging meaning of ‘charity’ despite significant advances in society.

YOUTH | Canada’s Youth Criminal Justice System
Jessica Steingard
In 2003, Canada revamped its youth justice system with the introduction of the Youth Criminal Justice Act.

Special Report: Rural Law

Promoting the Practice of Law in Rural, Regional & Remote Communities
Tonya Lambert
There is an access to justice crisis developing in rural, remote and regional communities across the country.

Crime in Rural Alberta
Dave Pettitt and Jessica Steingard
Rural crime is a problem in Alberta. How can we prevent and respond to it? And what does the law say about trespassers?

Departments

BenchPress
Jessica Steingard

New at CPLEA
Lesley Conley

Viewpoint
Peter Bowal
The Supreme Court of Canada Changes Its Mind

YOUTH | Canada’s Youth Criminal Justice System

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20/20: Looking back over the last 20 years

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In April 2003, the Youth Criminal Justice Act (YCJA) replaced the Young Offenders Act. The YCJA sets out the justice system that applies to young persons – aged 12 to 17 – charged with an offence in Canada. Children under 12 cannot be charged with a crime. The YCJA looks at your age when the crime was committed.

Canada’s youth justice system operates according to several guiding principles, including:

  • protecting the public by holding you accountable for your actions while also recognizing you may not fully understand the consequences of your actions
  • promoting your rehabilitation and reintegration back into society
  • encouraging you to repair the harm done to those impacted by the offence, including the surrounding community.

In this article, I will summarize some of the stages of the youth justice system.

What happens if the police catch me?

The YCJA promotes using measures outside of court processes (called “extrajudicial measures”) to respond to less serious youth crime. Extrajudicial measures include:

  • Taking no further action.
  • Giving an informal warning.
  • Giving a formal warning, called a police caution. This could be a letter to you and your parents or a meeting at the police station between you, your parents and a senior police officer.
  • Referring you to community programs or agencies that may help you not to commit offences.

If extrajudicial measures are not appropriate, the police can lay charges or give you a ticket. They may or may not arrest you, depending on the offence you committed.

What happens if the police charge me?

1. The police will give you a document that says when you must appear in court.

It may be called a Promise to Appear or a Recognizance. You must report to court on that day or there may be further consequences. All youth are eligible to receive representation by a lawyer through Legal Aid Alberta. Contact Legal Aid Alberta for more information.

Judges have a wide range of sentencing options available, with custody usually being a last resort.2. The police will contact your parents or guardians.

You cannot keep it a secret from them. If the whereabouts of your parent is not known or if your parent is not available, then the police must notify an adult relative or other adult who is known to you and is likely to assist you.

There is an exception: if you were under 18 when you committed the crime but are at least 20 years old when you first appear before a youth justice court, your parents do not have to be notified.

3. The police can hold you in custody until your court hearing.

At a bail hearing, a judge or justice of the peace will not release you if:

  • you have been charged with a serious offence or if this is not your first offence; and
  • it is likely that you will not appear in court when required to, you are likely to commit a serious offence, or the circumstances justify you being held in custody; and
  • no release conditions are suitable to your situation.

A serious offence is an indictable offence for which the maximum punishment for an adult is five years or more in jail. The YCJA specifically states that police cannot hold you in custody as a substitute for appropriate child protection, mental health or other social measures. The court may also order that you be placed in the care of a responsible person instead of being held in custody.

If you are released until your court hearing, you may have to comply with various conditions. If you do not comply, there may be further consequences.

4. You must attend the court hearing.

At the court hearing, the court may decide that you are eligible for extrajudicial sanctions. You may be eligible:

  • depending on the offence you committed;
  • if you have not been referred for extrajudicial sanctions in the past two years; and
  • if you have spoken to a lawyer about your rights.

You must also admit responsibility for the offending behaviour and agree to participate in the program.

Note: Extrajudicial sanctions can also be used before you are charged with an offence. The police will put the charge on hold. If you complete the sanctions, then the police will not charge you. If you do not complete the sanctions, then the police will charge you and you will go to youth justice court.

All youth are eligible to receive representation by a lawyer through Legal Aid Alberta.If you proceed with extrajudicial sanctions, you will be referred to a probation officer or a youth justice committee for an intake meeting (or “conference”). They will meet with you and work with you to create conditions that are meaningful and achievable for you. Your parents, social worker and other supports may also be included in the conference. Conditions are meant to recognize and repair the harm you have done to those affected by your actions. For example, if you are being charged with shoplifting, your conditions might include writing a letter of apology to the store, reflecting on your behaviour, community service or personal service (for a family member). If you successfully complete the agreed upon conditions within the given time period (usually 3-4 months), the charges will be withdrawn – meaning they will not appear on your record. If you do not complete the conditions, the charges will remain.

There are various youth justice committees across the province, each with different focuses. One example of a youth justice committee is the Youth Restorative Action Project (YRAP) in Edmonton. This organization is run by youth, for youth. It works with youth affected by a variety of significant social issues including substance abuse, homelessness, family violence and prostitution. In addition to convening conferences under the YCJA, YRAP provides ongoing supports to youth in the community through its mentorship program and weekly drop-in events.

If you are not eligible for extrajudicial sanctions, or you do not successfully complete your extrajudicial sanctions, the Crown prosecutor will proceed with the charges against you. If you plead “guilty”, the judge will sentence you (at a separate hearing). If you plead “not guilty”, there will be a trial. Do not enter a plea until you speak with a lawyer. At the trial, if the Crown prosecutor successfully proves that you committed the offence, the judge will find you guilty and sentence you.

What will my sentence be?

The principle of proportionality says that less serious crimes should have less serious consequences and more serious crimes should have more serious consequences. Your sentence should also promote your rehabilitation and reintegration back into society. For example, you won’t necessarily be sentenced to jail for stealing a chocolate bar, but there will still be consequences.

Extrajudicial sanctions can also be used before you are charged with an offence.Youth justice committees, such as YRAP, can also get involved at the sentencing stage. They may meet with you and brainstorm sentencing options. They will present their sentencing recommendations to the judge in a pre-sentence report. The judge can accept, change or ignore the recommendations. Ultimately, your sentence is up to the judge.

Judges have a wide range of sentencing options available, with custody usually being a last resort. In 2016-2017, only 13% of guilty youth cases received a custody sentence, compared to 38% of guilty adult criminal court cases. Options include:

  • The judge giving you a stern lecture or warning.
  • A court order saying you must report to someone or attend a specific program. For example, if you are more likely to get into trouble right after school, or on weekends, when you are unsupervised, the order could require you to attend a program during these times.
  • A court order directing you to complete community service.
  • A court order directing you to attend a rehabilitative program. This is only available for serious violent offenders.

If you are sentenced to custody, you will be held in a youth custody facility until you are 18. Once you turn 18, you can be moved to an adult corrections facility.

The judge can sentence you as an adult, instead of a youth, for your crimes if:

  • you were at least 14 years old when the crime was committed;
  • an adult could be sentenced to jail for more than two years for the same crime;
  • the Crown prosecutor proves to the court that you behaved like an adult and that a youth sentence would not be long enough to hold you accountable for your actions.
How long does my youth record last?

As a general rule, your name cannot be published if you are accused or found guilty of a crime as a young person. (The rules change if you are sentenced as an adult.) The YCJA also sets out who has access to your records and for how long, usually depending on what type of sentence you receive. For more information, see the Government of Canada’s Youth Records webpage.

In the next issue of LawNow, we will be looking at Instagram and Snapchat’s Terms and Conditions. Just what are you agreeing to when you click that button without reading?

Crime in Rural Alberta

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Photo Credit: Jessica Nobert

Rural crime is a problem in Alberta. In the city, if you have a security alarm on your home, you can realistically expect it to be effective. In the country, who is going to hear the alarm? How long will it take for a police response?

Before moving to an acreage, I (Dave) spent most of my life living in the core of Canadian cities. Crime was part of everyday life. I was never surprised to find my car broken into when I lived in the city. Not a week went by without some kind of theft, be it empty bottles or a freshly planted shrubbery. My solution was moving to the country, and it has worked for me.

I am a lucky acreage owner who has not had to deal with any property crime. Rural life has been wonderful for my family. However, many of my neighbours have had problems, and they are afraid.

The Alberta government recently made several announcements regarding rural crime and policing. First, it announced it will be increasing the number of RCMP officers serving rural Alberta. By 2024, there will be an additional 300 RCMP officers. Second, the government passed a series of amendments to Alberta’s trespassing laws aimed at discouraging rural crime.

Preventing Crime

When talking to rural Albertans about what they have done to prevent crime, there are a lot of ideas but no real solutions. One neighbour purchased a top of the line security system when they moved into their home. The security system did not prevent a thief from hooking up to their enclosed trailer and driving away with the owner’s tools and livelihood. Gates are broken, thieves smile at security cameras and nobody is close enough to hear the alarm. Big dogs seem to be the most effective deterrent.

In a video series, Crime Prevention Through Environmental Design, the RCMP tells rural Albertans how to prevent crime. Some tips from the video series include:

  • Limit visibility of items from the road (keep your toys hidden)
  • Limit theft by making it difficult
  • Install a driveway alarm so you know when people enter your yard
  • Clean lines of sight (make sure your entire yard is visible from the house)
  • Lock all outbuildings
  • Install deadbolts with strike plates on all exterior doors
  • Keep gates closed at all times
  • Ensure property is looked after
  • Install motion-activated LED lights

The RCMP tips focus on decreasing the likelihood that a thief will choose your property. Arguably, this does not prevent the crime, as much as move it down the road to the next house without motion-activated LED lights.

Responding to Crime

The RCMP website says to report suspicious activity to the local detachment. And wait?

The bottom line is, occupiers can be criminally responsible for their actions and sued by the trespasser for their injuries or death.Where the police cannot help, farmers and acreage owners are looking for solutions within their own communities. Another neighbour had their truck stolen from their garage while they were home. After this incident, an RCMP officer recommended that the community start a Facebook chat group to communicate. Now, every time a strange vehicle enters the community, someone is talking about it, taking pictures and writing down license plates. When another property was hit, the homeowner called the RCMP with the license plate of the truck as it drove off with their camper filled with gear. Not surprisingly, the stolen truck and the criminals were long gone before the police could arrive.

Another common thread of conversation among my neighbours is what actions can we take against trespassers? We have heard of the recent cases where farmers have taken action and themselves been subject to civil lawsuits (by the trespassers) or even criminal proceedings.

There are a few different laws in Alberta that address an occupier’s liability towards a trespasser and penalties for trespassing. Changes to these laws came into effect on December 5, 2019 but are retroactive to January 1, 2018. (Note: The term occupiers includes homeowners and renters.)

When can an occupier be liable for the injuries or death of a trespasser?

The bottom line is, occupiers can be criminally responsible for their actions and sued by the trespasser for their injuries or death.

The Occupier’s Liability Act sets out when an occupier is liable for people coming onto its premises. An occupier has different levels of liability towards visitors it allows onto its land, child trespassers and adult trespassers.

With respect to trespassers, the Act distinguishes between criminal trespassers and non-criminal trespassers. A trespasser is a criminal trespasser if the occupier has reasonable grounds to believe that the trespasser is committing or about to commit an offence under the Criminal Code of Canada. Notable about this definition is that the occupier must have reasonable grounds – this means more than just a suspicion. The courts generally ask what an ordinarily prudent person in the same situation would do.

Where the trespasser is a criminal trespasser, the trespasser cannot start a civil claim for death or injury damages against an occupier. There is an exception though where the occupier causes the death or injury by conduct that is wilful and grossly disproportionate in the circumstances AND results in the occupier being convicted of a criminal offence (by way of indictment).

If the trespasser is convicted of a serious criminal offence, victims can apply for a restitution order.Where the trespasser is not a criminal trespasser, an occupier is not liable to them for damages for death or injury unless the death or injury results from the occupier’s wilful or reckless conduct.

Where the trespasser is a child, the occupier has greater liability. The occupier must make sure the child will be reasonably safe from dangerous conditions or activities on the premises that could harm or kill the child. The child’s age and ability to appreciate the danger are taken into account, along with the occupier’s burden in removing the danger or protecting the child.

What are the penalties for trespassers?

Trespassers can be charged with various criminal offences under Canada’s Criminal Code. The sentences can range from fines to prison terms.

Alberta’s Petty Trespass Act and Trespass to Premises Act also create offences for entering a person’s land without permission. They also set out pretty steep fines for breaking these laws. The penalties depend on whether or not the trespasser had notice (oral or written) not to enter onto the land.

A person cannot enter onto land without the occupier’s permission if entry is prohibited with a notice, such as a “No Trespassing” sign or a verbal warning. A person must also leave the land immediately after being directed to do so by the occupier or some other authorized person, such as a security guard.

A person also cannot enter onto land without the occupier’s permission if entry is prohibited without notice. This includes land that is:

  • a lawn or garden;
  • used for crops, raising animals (such as cattle, horses, birds or fish), or beekeeping;
  • surrounded by a fence, natural boundary or a combination of the two; or
  • enclosed in a way that indicates the occupier’s intention to keep people off the land or keep animals on the land.

The penalties for contravening these provisions varies. For a first offence, the fine cannot exceed $10,000. For a second offence and all other offences on the same land, the fine cannot exceed $25,000. If a corporation helps or directs a person to commit the offence, the corporation can be fined up to $200,000. The government collects these fines. The victim does not get this money. Compensation of victims is restitution.

A person who trespasses despite a notice not to, or does not leave after being directed to, can also be sentenced to prison for up to 6 months.

Restitution

In some cases, the person who suffered lost or damaged property can get restitution if a trespasser is caught, charged and convicted of an offence.

Where the trespasser is a child, the occupier has greater liability.If the trespasser is convicted of a serious criminal offence, victims can apply for a restitution order. This is a court order requiring the offender to pay out-of-pocket expenses directly related to the crime, including for damage, destruction or loss of property. However, restitution is only available for certain crimes. One such crime is robbery. Robbery means to steal using violence or threats of violence or using an offensive weapon (or imitation).

If the trespasser is convicted of a provincial offence, such as trespass under the Acts described above, the judge can order the offender to pay up to $100,000 to the victim. This is compensation for loss of or damage to property suffered by the victim as a result of the offence. There must be a way to determine the amount of the loss or damage. Previously the maximum amount of compensation was $25,000.

Conclusion

While these changes to the law are encouraging, enforcement is a concern. To fine or imprison a trespasser means to catch a trespasser. And to get restitution means the trespasser is convicted of an offence. From my experience, that does not happen a lot.

BENCHPRESS | Subway Pictograms, Roads on Reserve and Employee Attitudes

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Subway Pictogram: Warning sign or law?

Kosoian v Société de transport de Montréal, 2019 SCC 59

On May 13, 2009, Ms. Kosoian rode a down escalator in one of Montreal’s subway stations. She didn’t hold the handrail. A police officer saw this and ordered her to hold the handrail or he would issue her a ticket. She refused. Another police officer arrived. The police officers led Ms. Kosoian to a holding room, searched her bag without her consent and handcuffed her. Ms. Kosoian was given a $100 ticket for refusing to obey the pictogram and a $320 ticket for hindering an inspector in the performance of inspection duties.

The Municipal Court dropped the ticket. Ms. Kosoian started a civil claim against the police officer, the transit authority and the City of Montreal for “unlawful and unreasonable arrest on the basis of a pictogram that did not create an offence” but simply gave a warning. The trial judge dismissed Ms. Kosoian’s claim and applauded the actions of the police officers. The majority of the Court of Appeal also dismissed Ms. Kosoian’s claim. The Supreme Court of Canada overturned both lower courts.

The Supreme Court of Canada held that a reasonable police officer would not have concluded that failing to obey the pictogram was an offence under a by-law. A reasonable officer would have concluded the pictogram was a safety warning. Accordingly, the Court found the police officer civilly liable for his actions.

The Court also held that the transit authority and the City of Montreal were liable. The transit authority was directly liable because it trained police officers that disobeying the pictograms were offences. It was also liable as mandator for the police officer’s fault. The City of Montreal was liable as the police officer’s principal.

Over ten and a half years after the incident, the Court awarded Ms. Kosoian $20,000 in damages – 50% payable by the transit authority and 50% by the police officer.

Roads on Reserve: Private or public?

R v Adams, 2019 ABPC 296

In February of 2019, Mr. Adams was convicted of driving while prohibited in Edmonton. He was prohibited from driving on a “street, road, highway, or any public place in Canada” that the public has a “right of access” or is ordinarily “entitled or permitted to use” (per s. 2 of Canada’s Criminal Code and s. 1 of Alberta’s Traffic Safety Act).

The next month, Mr. Adams was driving on Paul First Nation in central Alberta – from his mother’s house to his uncle’s house to pick up medication for his sick mother. An RCMP officer pulled over Mr. Adams for having a burned-out taillight. The officer then discovered the driving prohibition from the February conviction. The officer arrested Mr. Adams and impounded the vehicle (belonging to his mother). After 30 days, the impound fees were higher than the vehicle’s value, and it was abandoned.

Provincial Court Judge Shaigec had to decide whether the public had a right of access to use the roads on Paul First Nation. He noted that:

  • the Indian Act confirms that Paul First Nation land is set apart for the use and benefit of the people who live there;
  • there are “No Trespassing” signs located at different entry points into Paul First Nation;
  • the roads are maintained by Paul First Nation;
  • the general public has no reason to drive on the roads – the roads are not necessary to travel on to connect to any highways or other locations outside of Paul First Nation;
  • anyone from outside of the community who travels on the roads is usually doing so to attend special ceremonies or to provide services in the community.

Judge Shaigec concluded he had reasonable doubt that the public had a “right of access” or is ordinarily “entitled or permitted to use” the roads traveled by Mr. Adams on Paul First Nation. He found Mr. Adams not guilty of the offence of driving while prohibited.

Interestingly, Judge Shaigec did not find the officer’s actions to be unreasonable. And so he did not allow a claim for costs under s. 24(1) of the Charter for a breach of s. 8 (right to be secure against unreasonable search and seizure).

Employee’s Bad Attitude: Manageable or cause for termination?

SaskTel v Unifor, Local 2S, 2019 CanLII 57057 (SK LA)

The employee began work for SaskTel in 1993. She worked in various positions, eventually ending up as a senior clerical associate in the Assignment Centre until her termination in March 2017. In her role, she provided technical and administrative support to SaskTel’s residential and commercial installers.

In her first 20 years of service, SaskTel never disciplined the employee. Then, in May 2013, the employee received a warning letter about her conduct – that her “angry, offensive tone, language and disposition in the workplace was unacceptable.” For example, the employee swore aggressively, calling people names and belittling them, and was openly critical of management. The manager described the employee’s behaviour as constituting bullying. Following that, the employee received two one-day suspensions relating to her tone on two different service phone calls.

SaskTel then hired an external investigator to “verify the [employee’s] behaviour and its impact on others and to provide conclusions about the work environment”. The investigator concluded that the employee’s conduct was “consistent with personal harassment and bullying and the prospect for change was low.”

SaskTel terminated the employee’s employment. The union grieved the warning letter, the suspensions and the termination. The matter went before an arbitrator.

The arbitrator heard evidence from managers and past employees. The witnesses described the employee as the office bully. The arbitrator concluded that the employee’s behaviour was “unacceptable and would not change” and so termination was warranted. The arbitrator also noted that even though SaskTel had not followed its harassment policy, this failure did not compromise the decision to terminate the employee.

BenchPress – Vol 44-2

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Wines from the West Bank not “Products of Israel”

Kattenburg v Canada (Attorney General), 2019 FC 1003

The applicant, Dr. Kattenburg, is described as a wine lover and activist. He filed a complaint with the Canadian Food Inspection Agency (CFIA) that wines from the West Bank and sold in Canada should not be labelled as “Products of Israel”. The West Bank is not within the State of Israel.

CFIA administers and enforces various acts and regulations, including the Food and Drugs Act, as it relates to food. Section 5(1) of that Act reads:

No person shall label, package, treat, process, sell or advertise any food in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, value, quantity, composition, merit or safety.

The CFIA concluded that the wines could be sold as labelled. Dr. Kattenburg appealed the decision to the CFIA’s Complaints and Appeals Office (CAO). The “CAO noted that the Canada-Israel Free Trade Agreement … defines Israeli ‘territory’ as including areas where Israel’s customs laws are applied” (at para 3). Israel’s customs laws are applied in the West Bank.

The Federal Court found in favour of Dr. Kattenburg. The Court concluded it was not reasonable for the CAO to allow the wines to be labelled as “Products of Israel” when they in fact come from the West Bank. The Court found the labels to be “false, misleading and deceptive” and to contravene both the Consumer Packaging and Labelling Act and the Food and Drugs Act.

Accommodation Charges for Long-Term Care Residents are OK

Elder Advocates of Alberta Society v Alberta, 2019 ABCA 342

The Elder Advocates of Alberta Society and a group of plaintiffs launched a class action lawsuit against the Government of Alberta. The plaintiffs claimed that the accommodation charge collected by long-term care facilities (nursing homes or auxiliary hospitals) from residents was increased without statutory authorization. The plaintiffs argued that the increased accommodation charge was higher than the actual costs of accommodation and meals. The result, they argued, was that residents were actually subsidizing health care services which were supposed to be provided free. Among other things, the plaintiffs also claimed discrimination under s. 15 of the Canadian Charter of Rights and Freedoms.

The trial judge found that the accommodation charges were within the maximum set by regulation under the Nursing Homes Act. The trial judge also found that the legislation does not require a nexus between the accommodation charge and the actual cost of providing accommodation and meals. However, the trial judge noted, if the legislation requires a nexus, there was sufficient evidence of one. Finally, the trial judge found the plaintiffs had not established substantive discrimination and so their Charter claim failed.

On appeal, the Court of Appeal dismissed the appeal.

The take-away? Accommodation charges imposed by nursing homes and auxiliary hospitals are legal so long as they stay within the maximum set out in the regulations.

Wife Defames Lawyer over Marriage Contract Advice

Levine v Zed, 2019 NBQB 186

Joan Zed asked her lawyer, Allan Levine, to prepare a cohabitation agreement in 2015. She signed the agreement but her new partner, Kevin Zed, did not. Joan and Kevin then decided to get married on October 21, 2016. A few days before the wedding, Mr. Levine called Joan to tell her he had received a marriage contract for her to sign. A lawyer at the law firm where Kevin’s brother worked had prepared the marriage contract. Joan signed the contract on October 20th.

A few months later, Joan realized the marriage contract did not match the cohabitation agreement. The one difference was that the marriage contract stated she would not get anything if Kevin predeceased her. The cohabitation agreement did not say anything about gifts on death.

Joan began posting comments on Facebook and driving by Mr. Levine’s office with posters in her car reading “Lawyer Allan Levine misrepresented me as a favour to a fellow lawyer” and “Allan Levine is A Liar & A Thief”, among other statements.

Mr. Levine filed a defamation lawsuit against Joan. Joan filed a counterclaim that Mr. Levine was negligent, acted in bad faith, and is guilty of collusion and fraud. She claimed significant financial losses.

Unfortunately for Mr. Levine, he had previously been the subject of an investigation by the Law Society of New Brunswick for improperly using his trust account. Thus, the trial judge had to weigh whether Mr. Levine’s past actions were evidence that Joan’s defamatory statements were true.

The trial judge ultimately decided that Mr. Levine had been negligent in advising Joan on the marriage contract. However, the trial judge also found that Joan’s comments were defamatory. He noted Joan seemed to have a distrust of the judicial system. She had asked for the recusal of all Queen’s Bench of New Brunswick’s justices and that the file be transferred to the Federal Court. Joan even filed a complaint against the trial judge to the Canadian Judicial Council!

The damage? The trial judge ordered that each party pay the other $2500 in nominal damages.

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