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CRIMINAL | Will the COVID-19 Crisis Keep Us Modern?

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How this global pandemic has changed things for the better in our criminal justice system  

The world is experiencing a pandemic that has been unprecedented in most of our lifetimes. While all of us have been affected individually, the criminal justice system has not been exempt from the effects of COVID-19. It too, serving as a primary and essential service in our country and in our provinces, has been forced to adapt to the rapid shift in limiting public gatherings and human interactions.

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Like a busy market bazaar, on any given day pre-COVID-19, criminal courthouses were buzzing. A plethora of people would be running to and fro, emotions high, or waiting endlessly for a matter to commence. People were everywhere. Now, courthouses are closed to members of the public. While it was a confusing and abrupt change for all of its regular participants, our criminal courts have been forced to adapt to a sleeker and more efficient version of itself. Hearings and pre-trials are now done via telephone or video conference. Materials and motions are being filed with the court electronically.

The COVID-19 pandemic has forced us to be more efficient in our approach, more flexible. We are no longer averse to keeping criminal matters moving through the system via telephone or other electronic mediums. We are no longer required to print hundreds of pages to serve materials on the court. Justice has been updated. But, it took the criminal justice system a terrifying global pandemic to become more streamlined and modern in its practice. As one of the most ancient processes in our civilization, it’s not hard to see why.

This newer and sleeker justice machine is of course categorized as a temporary response to the global pandemic. But whispers around tele-court hallways seem to suggest that there is a push coming from inside the belly of the beast to advocate for this streamlined and efficient new approach to criminal law to become permanent. There was once a time when a lawyer could only be in one place at one time. Now, we can call into multiple courthouses in one day bringing closure to many criminal matters at a much faster pace (while saving trees in the process).

Now, we can call into multiple courthouses in one day bringing closure to many criminal matters at a much faster pace (while saving trees in the process)..What we ultimately do lose though, is what we are all missing right now as a collective: that human-to-human interaction that cannot be replaced with even the best video conference applications. We cannot deny as a species that eye contact, body language and social cues speak volumes louder than even a great Zoom background selection.

One can only hope that at least some of the processes implemented will remain as shiny artifacts from the COVID-19 pandemic. Combining these new practices with the invaluable showcase of intelligence, showmanship and candour that any given day in court can bring will surely be a magnificent and harmonious blend of our justice system’s greatest strengths pre and post pandemic.

And to think: a little bat somewhere in China is responsible for potentially changing the Canadian criminal justice system for the better.

HUMAN RIGHTS | COVID-19: Human rights implications for Canadians held in remand, prisons and jails

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We find ourselves in unprecedented times. As we scramble to “socially distance” and address the economic consequences of the global pandemic, inmates in Canadian institutions are particularly vulnerable to adverse effects by virtue of the conditions where they are held. On March 30, 2020, the Canadian Government announced that two inmates in the Port-Cartier Institution of Quebec tested positive for COVID-19. Nine employees of the institution also tested positive.

There are significant numbers of people held in remand or custody. The majority of people held in remand have not been convicted of a crime and are awaiting trial. In 2017-2018 in Canada, there were 38,786 adults in provincial/territorial or federal custody per day, 792 youth in custody on average per day, and about 50% more adults (14,812) in remand that were in provincial/territorial sentenced custody (9,543).

Inmates held in close contact with each other who cannot “socially distance” or who do not have adequate access to hand sanitizer, masks or even soap are likely to become infected and could affect the staff as well. There are currently 700 federal inmates who are over 65 years old; these individuals are at very high risk.

While some people may not be particularly sympathetic, prisoners do have rights to adequate health care, reflected in both international law and in Canada’s Corrections and Conditional Release Act, (CCRA). The United Nations Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules) provide:

Rule 24

  1. The provision of health care for prisoners is a State responsibility. Prisoners should enjoy the same standards of health care that are available in the community, and should have access to necessary health-care services free of charge without discrimination on the grounds of their legal status.
  2. Health-care services should be organized in close relationship to the general public health administration and in a way that ensures continuity of treatment and care, including for HIV, tuberculosis and other infectious diseases, as well as for drug dependence.

Inmates held in close contact with each other who cannot “socially distance” or who do not have adequate access to hand sanitizer, masks or even soap are likely to become infected and could affect the staff as well.While these rules are not legally enforceable, they set the standard for treatment of prisoners that is accepted by countries across the world. The CCRA is legally enforceable in Canada. It provides:

86 (1) The Service shall provide every inmate with

(a) essential health care; and

(b) reasonable access to non-essential health care.

(2) The provision of health care under subsection (1) shall conform to professionally accepted standards.

CRC Commissioner’s Directive 800 defines essential health care as:

Health services: physical and mental health services, which include health promotion, disease prevention, health maintenance, patient education, diagnosis and treatment of illnesses, in accordance with the National Essential Health Services Framework.

It would seem that access to effective measures to address COVID-19 would be part of “essential health care”.

There have been calls by various justice-related groups for prisons and jails to release non-violent inmates, those who are medically vulnerable or those who have less than 90 days left in their sentences to stop the spread of the coronavirus. Some inmates are considering legal action. In Prince Albert, the inmate wellness committee hired Ottawa lawyer Michael Spratt to explore a possible legal challenge on how the government and prisons are handling COVID-19.

Some provinces have taken measures such as releasing some inmates (e.g., those who were serving on weekends) or creating separate spaces for those who become sick. However, those who are still in institutions face more isolation, dealing with no visitors, no recreation or gym time—all of which can result in mental health effects, such as depression or even suicide.

Hopefully, all possible measures will be taken to address the inmate population before some of these dire predictions come to fruition.

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.

Know Your Rights: Copyright in Canada in the era of COVID-19 and beyond

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The effects of the COVID-19 pandemic and social distancing measures hit Canada’s arts communities early, hard and fast. Even when present measures ease up, the return of performing artists to the stage looks to be a slow one.

Some creators may use this time in isolation to craft new works, while others may find it impossible to do so while trying to make ends meet and take care of their health and loved ones. Others are finding different approaches to making a living with their talents, such as creating original online content and live streaming performances on social media. With all norms interrupted and innovations sure to emerge, now is as good a time as ever to hone up on the protection copyright laws provide to creators.

What is Copyright?

… copyright is not just one thing — it is bundles of rights, not necessarily held by one person.Copyright is entirely a statutory right, granted by the Copyright Act of Canada (the “Act”). This means that copyright protection is limited to what is specifically provided for by the Act.

At its essence, copyright provides economic rights which prevent the unauthorized use or reproduction of original literary (including computer programs), artistic, dramatic or musical works. Copyright also provides a separate form of protection, colloquially known as neighbouring rights, to:

  • the maker of any sound recording (i.e. record label);
  • any performer whose performance of an artistic, dramatic or musical work is captured in that sound recording; and
  • the broadcaster in its signal (i.e. radio waves).

Here’s the thing: copyright is not just one thing — it is bundles of rights, not necessarily held by one person. There are different sets of rights for different things, which may be owned by different parties. For example, A might write a song that B performs on a sound recording made by C, which D then broadcasts. All of A, B, C and D have different rights, which may be retained by them, or sold or granted to others.

Economic Rights

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The basic economic right provided by the Act is the exclusive right to:

  • produce or reproduce a work, or a substantial part of it, in any material form;
  • perform the work, or a substantial part of it, in public; and,
  • publish the work, or any substantial part of it.

This economic right includes, for example, the exclusive right to:

  • convert a dramatic work to another form, such as a novel, or vice versa;
  • make a sound recording or film of a literary, dramatic or musical work;
  • communicate the work to the public;
  • exhibit the work;
  • translate the work;
  • sell a tangible work; and
  • authorize someone to do any of the above.

Neighbouring Rights

Neighbouring rights provide performers certain exclusive rights, including the right to “fix” a live performance (i.e. record it) or have the performance broadcast, streamed, etc., or authorize others to do so. If the performance is already recorded, the performer has the exclusive right to reproduce that recording, make it available to the public, sell the recordings or authorize others to do such things.

The maker of the sound recording (i.e. record label) also has certain exclusive rights, including the right to publish the recording for the first time, reproduce it in any material form, rent it out, make it available to the public (i.e. streaming, etc.) and sell it in any material form.

At the end of the day, authorizing others to do things with a performer’s performance or a sound recording typically means that the performer and/or sound recording maker (or the owner of those rights if they have been transferred), receives royalties or payment.

Moral Rights

The Act also recognizes that authors and performers have moral rights. These rights focus on the artist/performer’s right to preserve the integrity of their work. Artists/performers can refuse any change that would be prejudicial to their honour or reputation and have the right to claim authorship or to remain anonymous.

Use of an insubstantial amount of a work does not require permission from the copyright owner.For example, Canadian artist Michael Snow’s moral rights were famously infringed when the Toronto Eaton Centre placed red ribbons around the necks of the geese in his work Flight Stop during the Christmas season. Snow successfully brought an action to compel the Centre to remove the ribbons from his work.

Moral rights exist for the duration of the copyright and are non-transferable, so they only belong to the author/performer or, on death, to the person the rights are bequeathed to. When an author/performer assigns their copyright (in whole or in part), the author/performer retains their moral rights but may be asked to formally waive these rights in favour of the new owner(s).

Conditions for Protection

Copyright only exists in original works which are fixed in some material form (i.e. put in writing or recorded). In order to be original, the work must:

  • be more than a mere copy of another work;
  • be the product of the author’s exercise of skill and judgment; and
  • be more than a purely mechanical exercise.

Moreover, copyright does not protect ideas or facts — it only protects the original expression of those ideas or facts.

Copyright also only applies to original works where the author was, at the date the work was created, a citizen or subject of, or ordinarily resident in, Canada or a treaty country. There are other instances where protection applies, as well as specific provisions addressing citizenship and residency requirements for neighbouring rights.

Ownership & Registration

Copyright protection arises as soon as you create a work and fix it in a material form. You do not need to do anything to receive copyright protection. Your copyright is still protected in Canada even if you do not use the copyright symbol (©) in association with your work. However, using the copyright symbol reminds others that you are claiming copyright in the work, and you could rely upon your use as evidence in certain infringement cases. You may wish to register your copyright with the Copyright Office, as registration creates a presumption of evidence of ownership.

Copyright is entirely a statutory right, granted by the Copyright Act of Canada …Generally speaking, the author of a work, the performer of a performance or the maker of a sound recording are the first owners of the copyright, though certain exceptions may apply. For example, if works are made in the course of employment, there is a presumption that the employer is the first owner of that copyright.

A copyright owner may assign (transfer) their rights, in whole or in part, to another party (or parties). The assignment may be for the whole term of the copyright or for a portion of it. An assignment is a change to copyright ownership. Assignments of registered works may be registered with the Copyright Office upon payment of the prescribed fee.

As well, copyright owners may issue licences to authorize another party or parties to use a work for certain purposes and under certain conditions. Licences may be exclusive or non-exclusive and the copyright owner still retains ownership. Collective Rights Societies – such as SOCAN, Re:Sound and Access Copyright – help administer members’ copyrights by issuing licences and collecting and distributing royalties.

Term of Protection

Generally speaking, copyright protection lasts for the life of the author, the remainder of the calendar year in which they die and for 50 years following that calendar year. There are certain exceptions to this general rule that address situations where works are created by joint authorship, where the author is unknown and where works are posthumous. Additionally, there are specific provisions dealing with the duration of copyright in performer’s performances, sound recordings and signals.

The term of copyright protection will soon be extended to comply with the United States-Mexico-Canada Agreement (USMCA).

Once copyright expires, the work, performance or sound recording falls into the public domain. Anyone is then free to make use of it without obtaining permission.

Users

Generally speaking, users of copyrighted works, performances, sound recordings and signals must get permission to do anything that is the exclusive right of the copyright owner. Otherwise, the user may be infringing copyright and could be required to pay damages to the owner and comply with other court orders, such as delivering up infringing copies. So, before you perform someone else’s song in a live stream or record it, or use someone else’s photograph or art on your website, you need to get permission (i.e. a licence) from the copyright owner.

Copyright only exists in original works which are fixed in some material form (i.e. put in writing or recorded).Use of an insubstantial amount of a work does not require permission from the copyright owner. However, since the Act does not define what constitutes substantial use or insubstantial use, even sampling a few seconds of a sound recording may constitute infringement.

Essentially, the Act grants a temporary monopoly to copyright owners. To balance this, the Act provides certain exceptions to copyright infringement, a few of which are discussed below. Before relying on any of the following exceptions to infringement, consult with a lawyer for legal advice specific to your situation.

Non-Commercial User Generated Content

This exception is colloquially referred to as the “YouTube exception”. An individual may use an existing work, performance, sound recording or signal (protected by copyright) to create new content without consent of the owner when:

  • the new content is created solely for non-commercial purposes;
  • the source and (if known) the name of the author, performer, maker or broadcaster is mentioned (if reasonable to do so);
  • there are reasonable grounds to believe the existing work, performance, sound recording or signal, is not itself infringing copyright; and
  • use of the new content does not have a substantial adverse effect (financial or otherwise) on the existing work, performance, sound recording or signal, or on an existing or potential market for it.

Private Copying

It is generally not infringement to create copies of protected works provided that:

  • you legally own the copy of the work you are reproducing;
  • the copy of the work you are reproducing is not, in itself, an infringing copy;
  • to make the reproduction, you did not circumvent a technological protection measure;
  • you do not give the copy away; and
  • the copies are only for your individual private purposes.

Copyright protection arises as soon as you create a work and fix it in a material form.If you sell or give away the existing copy of the work you reproduced, you must destroy any copies you made.

Fair Dealing

Fair dealing allows anyone to use copyrighted works without authorization when the use is for the following specific purposes: research, private study, education, parody, satire, criticism or review, and news reporting.

However, the use must be fair in order for it not to constitute infringement. A determination of whether the dealing is fair is no simple matter. To decide, courts look at factors such as the purpose, character and amount of the dealing, as well as alternatives to the dealing, the nature of the work and the effect of the dealing on the work. If, on the whole, the factors tend towards fairness, then the use will likely be fair.

Conclusion

Understanding copyright is an important part of understanding how to make money and protect the integrity of your creative works. Additionally, if you are a user of copyrighted works, it is important to understand what unauthorized use may violate copyright owners’ rights and what unauthorized use may be permitted as an exception to infringement.

HOUSING | COVID-19 in Alberta: A legislative overview of tenancy-related changes

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Since declaring a public health emergency in Alberta on March 17, 2020, the government has made a flurry of announcements and legislative amendments in response to the COVID-19 pandemic. The government has implemented these changes through legislation and Ministerial Orders that majorly impact both landlords and tenants during this pandemic.

Unlike legislation that goes through a legislative process (including debate), Ministerial Orders do not require approval of the Cabinet. Orders can modify legislation. And like legislation, Orders have the force of law. A number of Ministerial Orders are currently in effect and introduce new protections for renters under the Residential Tenancies Act and Mobile Home Sites Tenancies Act during the state of public health emergency. Most of these orders are in effect as of April 1, 2020.

Ministerial Orders

No fees or penalties for late payment of rent or non-payment of rent

Ministerial Order no. SA: 003/2020 (Service Alberta) makes the Late Payment Fees and Penalties Regulation. Under the Regulation, landlords cannot charge a fee or penalty for late payments of rent or nonpayment of rent between April 1, 2020 and June 30, 2020. This applies even if a provision in a residential tenancy agreement says otherwise. The Regulation applies to every tenancy agreement in effect on April 1, 2020 (the coming in force of the Regulation) and those entered into between April 1, 2020 and June 30, 2020 under the Residential Tenancies Act.

Similarly, Ministerial order no. SA: 004/2020 (Service Alberta) modifies the Mobile Home Sites Tenancies Act to waive late fees from April 1, 2020 to June 30, 2020. This applies even if a provision in a mobile home site tenancy agreement says otherwise. The late fee waiver applies to every mobile home site tenancy agreement in effect on April 1, 2020 and those entered into between April 1, 2020 and June 30, 2020.

Requirement for payment plans

Ministerial order no. SA: 005/2020 (Service Alberta) changes both the Residential Tenancies Act and the Mobile Home Sites Tenancies Act to establish payment plans. If a tenant breaches a tenancy agreement by not paying rent, arrears of rent or utilities, a landlord cannot end the tenancy without:

  • making reasonable efforts to enter into a meaningful payment plan OR
  • entering into a payment plan and then the tenant not following such plan.

Similarly, before making an application for certain remedies (for example, recovery of rent arrears for unpaid rent or termination of a tenancy), landlords must demonstrate the tenant agreed to a payment plan but failed to follow it. Alternatively, landlords must demonstrate that they made reasonable efforts to enter into a meaningful payment plan before making an application.

No rent increases

The Consumer Protection Act now allows customers to extend utility payments.Ministerial order no. SA: 006/2020 (Service Alberta) modifies the Residential Tenancies Act and Mobile Home Sites Tenancies Act to address rent increases. Effective March 27, 2020 (the date of the Order), any new rental rate increases or pre-existing scheduled rental rate increases are suspended for the term of the Order. This Order also applies to fixed term tenancies that have ended and where the landlord and tenant have or will enter into a new tenancy agreement (for the same premises but for an increased amount of rent). This means that the rental payment stated in the expired or terminated tenancy continues for the duration of the Order and replaces the amount of rent payable under the new agreement. Any rent increases will come into effect when the Order ends.

No evictions for failing to pay rent, utilities or both in April 2020

Ministerial order no. 20/2020 (Justice and Solicitor General) suspends the authority of civil enforcement agencies and bailiffs under the Civil Enforcement Act and the Alberta Rules of Court to evict a person for failing to pay rent, utilities or both. This suspension applies to orders issued by the Residential Tenancy Dispute Resolution Service (RTDRS), the Provincial Court and the Court of Queen’s Bench. This Order is only good until April 30, 2020.

Utility payment deferrals, landlord restrictions on entry of premises and more

Under Ministerial order no. SA: 009/2020 (Service Alberta), Service Alberta made a number of changes to legislation it administers, including the Consumer Protection Act, Residential Tenancies Act and Condominium Property Act. Some of the highlights are:

  • The Consumer Protection Act now allows customers to extend utility payments. Between March 17 and June 18, 2020, it is an unfair practice for any person (including suppliers, landlords or condominium corporations) to:
    • refuse to defer a sub metering customer’s utility payments when the customer requests it AND
    • disconnect that customer from energy supply for non-payment, including any non-payment of arrears that accrued before March 17.
  • The Residential Tenancies Act is modified so that landlords cannot enter a rental unit if the tenant, potential purchaser or landlord is self-isolating or in quarantine because they are showing COVID-19 symptoms or have tested positive for COVID-19. However, a landlord in self-isolation or in quarantine can name an agent to enter the premises on their behalf, as long as the agent gives proper notice under the Residential Tenancies Act.
  • A tenant dispute resolution officer with RTDRS must make their order no later than 60 days after the proceedings conclude. This is a change from 30 days in the Residential Tenancies Dispute Resolution Service Regulation.
  • Most of the changes to the Condominium Property Act have to do with a condominium corporation’s governance and gives condominium corporations flexibility in complying with the legislation during the pandemic. For example, the changes suspend certain meeting requirements but do not prevent virtual meetings (e.g., meeting to elect first board, AGMs, etc.). For more information on changes to condominium legislation during the pandemic, go to our COVID-19: Tips for Condominiums in Alberta webpage.
Legislation Changes

Bill 11 and new provisions under the Residential Tenancies Act and Mobile Home Sites Tenancies Act

The first reading of Bill 11: Tenancies Statutes (Emergency Provisions) Amendment Act, 2020 was on March 31, 2020, and it swiftly received Royal Assent on April 2, 2020. Bill 11 amends both the Residential Tenancies Act and the Mobile Home Sites Tenancies Act, while validating the Late Payment Fees and Penalties Regulation, to prohibit rent increases and late fees during a state of public emergency.

… Bill 11 only addresses late fees and rent increase protections. It does not deal with other aspects of the tenancy protection plans announced by the province.One of the changes confirms that landlords cannot increase the amount of rent owed under an existing tenancy agreement until after the emergency ends (June 30, 2020 or another date decided by government) where the:

  • landlord has given a tenant written notice of the rent increase AND
  • the notice period or the Regulation is to elapse between March 27, 2020 and the emergency end date.

Another change affirms that landlords cannot charge fees or penalties for late payment of rent or non-payment of rent between April 1, 2020 and the emergency end date. This change applies to every tenancy agreement in effect in Alberta on April 1, 2020 and every tenancy agreement entered into in Alberta between April 1, 2020 and the end date.

Any provisions in the tenancy agreement are void if they are contrary to the prohibition of rent increases, fees and penalties during the public health emergency.

Interestingly, Bill 11 only addresses late fees and rent increase protections. It does not deal with other aspects of the tenancy protection plans announced by the province. For example, the Bill does not address payment plans and protection from eviction for the month of April for non-payment of rent. Minister (of Service Alberta) Nate Glubish’s rationale is noted in the Hansard pages upon the Bill’s 3rd reading: “[T]hat is dealt with through the Ministerial Orders and only needs to happen for the duration of the public health crisis. It doesn’t need that protection at the expiry of the crisis, so that’s why that is not included in this bill.”

Nevertheless, the wording and legislative intent of the Bill affirms that particular protections – such as prohibition of rent increases, fees and penalties during the state of public health emergency – will still be in effect retroactively beyond the expiry of the public health emergency.

Conclusion

We have heard from both tenants and landlords in Alberta in the past several weeks of the impact of COVID-19. Many are facing challenges, some of which are not addressed by the above Ministerial Orders or legislation. For one, tenants that don’t fall under the Residential Tenancies Act or Mobile Home Sites Tenancies Act miss out on the tenancy protections put in place during the pandemic.

… Ministerial Orders have the force of law—even if they are only in place for a short period.Another concern among tenants is uncertainty of what happens after the end of April— more specifically, when the Ministerial Order for no evictions for failing to pay rent, utilities or both in April 2020 expires. While (in theory under Ministerial Order) landlords must work together with tenants to make payment plans (or at least make reasonable efforts to do so) before a landlord can end a tenancy during the pandemic, there’s questions about whether this is indeed happening in practice. Here at CPLEA, we have been receiving complaints from tenants that some landlords are not cooperating with them in making payment plans. We don’t know if this is a widespread issue.

We have also heard from landlords about their concerns in making their own mortgage payments. The possibility of a prolonged pandemic raises issues about long-term loss of income on their properties. Despite any short-term relief offered by their banks through mortgage deferrals (remember, deferrals just mean paying later), their mortgages remain. Landlords are still on the hook for principal and, in most cases, accrued interest during the deferral period. Some landlords have inquired about whether there is any provincial or federal loan forgiveness for residential property owners similar to the Canada Emergency Commercial Rent Assistance (CECRA) program, which provides forgivable loans to qualifying commercial property owners. Hint: the answer is no as of the writing of this article.

What we can conclude from the flurry of Ministerial Orders and legislative changes over the past several weeks is that there has been swift action in addressing tenancy challenges during the pandemic. Bill 11 makes permanent some rental protections first introduced under Ministerial Orders (such as prohibition of rent increases and fees/penalties during a public health emergency), but not others. However, one important thing to emphasize during this time is that Ministerial Orders have the force of law—even if they are only in place for a short period. Only time will tell if further legislation or Ministerial Orders will address emerging tenancy issues during this pandemic.

For more information on tenancy and condominium-related legislative changes during the COVID-19 pandemic, see the following CPLEA COVID-19 resources:

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