Carole (Staff Lawyer), Author at CPLEA.CA

On Drunk Driving and the Constitution

August 15, 2012 By Carole (Staff Lawyer)

In December 2011, the Legislative Assembly of Alberta passed the Traffic Safety Amendment Act, 2011 (the “Act”), which increased penalties for impaired drivers in Alberta. These changes were then incorporated into the Alberta Traffic Safety Act, and some of those changes recently came into effect.
In brief, the Act introduced progressive penalties for drivers with blood alcohol concentrations (“BAC”) of .05 or greater; added tougher penalties for drivers with BACs of over .08; and established a stronger zero tolerance policy for new drivers. In many ways, these changes are similar to changes that were introduced in British Columbia a few years ago.
Let’s look at some of the differences in a bit more detail.
Under the old law, Alberta drivers caught with BACs of .05 or greater are subject to a 24-hour suspension. Under the new law (see s.88 of the Traffic Safety Act), starting September 1, 2012 these same drivers would be subject to the following:

for first-time offenders, an immediate (i.e. roadside) 3-day licence suspension and a 3 day vehicle seizure;
for a second offence, an immediate 15-day licence suspension and a 7-day vehicle seizure, and a mandatory remedial course (for which the driver must pay); and
for third (and subsequent) offences, an immediate 30-day suspension and 7-day vehicle seizure for third, a remedial course, and a mandatory review by the Alberta Transportation Safety Board.

Under the old law, Alberta drivers caught with BACs of .08 or greater faced criminal charges and the possibility of having to install a device in their car that tests the driver’s breath and prevents the car from starting if it detects the presence of alcohol (the “ignition interlock”). The installation, removal and rental fee of the ignition interlock had to be paid for by the driver. The requirement for the ignition interlock was discretionary (i.e. it was up to the police to decide if that would or would not be a requirement). Under the new rules, drivers whose BACs are over .08:

will continue to face criminal charges;
will have their licences immediately suspended until the charges are resolved; and
for a first conviction, will require the ignition interlock for 1 year, for a second conviction will require it for 3 years, and for a third conviction will require it for 5 years (all still at the driver’s expense).

Under the old law, new drivers were already required to maintain a BAC of zero. However, now tougher penalties are in place. Graduated drivers who arestopped with any blood alcohol level at all will receive an immediate 30-day licence suspension and 7-day vehicle seizure. In addition, each such 30-day suspension will require one additional year in the Graduated Licence Program.
Drivers who have been accused under these provisions may: request a second roadside breath test; and challenge these penalties by appealing to the Alberta Transportation Safety Board (ATSB) before their criminal trial. However, the license suspension remains in effect during any appeal process.
Although we can likely all agree that driving under the influence is a bad thing (no matter how much we might like MadMen) and that BAC-related motor-vehicle accidents are high, the interesting question here will be whether or not this law will last.
The problem? Well – that pesky constitution of ours again!
Just for fun, let’s take a look at two sections that might come into play.

Some might argue that the new rules are “criminal” in nature and that, therefore, the provincial government has no right to pass such laws (criminal laws are in the federal jurisdiction – s.91(27) of the Constitution Act, 1867). This argument was attempted in British Columbia after it passed similar legislation. Although the British Columbia Supreme Court found that the provisions in question were not outside the jurisdiction of the province (see Sivia v British Columbia (Superintendent of Motor Vehicles), “Sivia”), an Alberta court might not make the same finding (as always, the devil is in the details!);

Section 11(d) of the Canadian Charter of Rights and Freedoms provides that: “any person charged with an offence has the right […] to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”. In the original law discussed in Sivia, it was not possible for the results of the roadside screening device to be challenged. That has since been changes, and, as noted above, the Alberta rules do provide for an appeal to the ATSB). However, that appeal could take longer that the suspension itself (especially for first-time offenders). The question therefore, is whether that is enough of an appeal mechanism to satisfy s.11(d) of the Charter. In addition, some might argue that that the indefinite license suspension means that more people will simply plead guilty right away so they can get their license back.

Whoever said the constitution wasn’t interesting?
For more information about the new rules, see the information provided on the Alberta Transportation website.
For more information on the constitutional implications, please see this article by the University of Alberta’s Centre of Constitutional Studies.

Changes to citizen's arrest

July 31, 2012 By Carole (Staff Lawyer)

On June 28, 2012 the federal government gave royal assent to a new law that expands the power for ordinary Canadians to make a citizen’s arrest, and that streamlines the provisions regarding defending oneself and one’s property.
So what exactly are these changes, and what do they mean for the average Canadian?
The new law, Bill C-26 (also known as the “Lucky Moose Bill” – more on that later) amends s.494 of the Criminal Code of Canada. Under the old law, ordinary citizens could only arrest someone if they found a person actually committing a criminal offence. This requirement for the offender to be caught red-handed is what had been the stumbling block in a widely-publicized 2009 case out of Toronto. In that case, David Chen, the owner of the Lucky Moose Food Mart (there’s the link!) spotted a man coming towards his store and recognized him as having previously stolen some plants. Chen and two employees chased the accused, caught up to him a short distance away, grabbed him, tied him up, and threw him into their delivery van so that they could hold him until the police came. Instead of being hailed as heroes, however, Mr. Chen and his employees found themselves arrested and charged with assault and forcible confinement (they were ultimately acquitted, although only after first refusing a plea bargain that sought to have them admit to lesser charges).
Under the new law, Mr. Chen would likely fare better. The new law allows citizen’s arrests not only while the offence is being committed, but within a “reasonable time” after the offence if the citizen making the arrest believes “on reasonable grounds” that it is “not feasible” for police to make the arrest. In short: there will now be more latitude in the manner and timing of making citizen’s arrests, as long as the actions in question are seen by the courts as being “reasonable” under the circumstances. However, law enforcement must still be contacted as soon as possible afterwards.
The new legislation also pulls together a number of Criminal Code provisions that dealt with the defence of personal property. More specifically, the new law allows those who are in “peaceful possession” of property to take reasonable steps to protect that property from persons entering the property when they are not allowed to do so, or from stealing or damaging that property. Again, the actions taken must have been reasonable in the circumstances.
The next question that arises is, naturally, what does “reasonable” in the circumstance mean? Although there is no definite answer to that question, the new law does set out a list of factors which the court may take into account in determining what is reasonable. These factors include: the nature of the force or threat; whether weapons were involved, whether the threat was imminent; the role of all parties involved in the incident; the prior relationship of all the parties if any; the age, size and gender of the parties; and the proportionality of the response.
The result: this is not a carte blanche for vigilantism, but, hopefully, it will help make us all safer and result in fewer victims finding themselves facing criminal charges.
Remember, though: keep it reasonable!
For information regarding the reasoning behind the new law, see the legislative summary.

What exactly is a “constitutional exemption”?

July 17, 2012 By Carole (Staff Lawyer)

A few days ago, we posted about the BC decision (“the Decision”) that struck down the law against assisted suicide. In that post, we mentioned that Gloria Taylor had obtained a “constitutional exemption.”
So what exactly is a constitutional exemption, and where exactly does a court get the power do that? For that, we have to go back to the Charter and the Constitution Act, 1982.
We start with section 52 of the Constitution Act, 1982, which states that: “[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” This is what helped the court strike down s.241(b) of the Criminal Code in the first place. However, in the Decision, the court went on to say that s.241(b) would continue to have force and effect for one year. So: s.241(b) is of no force and effect, but, it kind of is, for a year. Clear as mud, right?
This inconsistency then butts up against a different provision of the Charter, namely section 24. Section 24 of the Charter states that: “anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” In other words: if you bring a Charter case and you win, the Court can give you any remedy (i.e.: solution) that fits the case. That could be almost anything, depending on the case. For example: financial compensation, an old job back, or the right to be released from jail.
In this case, given that the law will still have “force and effect” for one year, Ms. Taylor would not be given the remedy she asked for (which, let’s face it, is the only remedy that will make any difference to her). For one whole year, it would still be illegal for a doctor to help her commit suicide. She could still be denied the choice she was seeking at the end of her life.
So – the compromise. We will let Ms. Taylor do it (this is being appealed by the federal government), but no one else (unless they, too, get a constitutional exemption).
Such compromises have been reached in other situations, although many people might not realize that that is what has occurred.
For example: Insite, the Vancouver Safe Injection Site. When Insite was opened in September 2003, it was originally awarded a three-year exemption under section 56 of the Controlled Drugs and Substances Act (CDSA), for scientific and research purposes. This was then temporarily extended a few times. However, the federal government refused to allow Insite to operate past July 2008. As a result, the non-profit society which operated the site brought a court action claiming, amongst many other things, that the drug possession and trafficking provisions of the CDSA (section 4(1) and 5(1)), as they applied to the Insite location, were unconstitutional, because they violated section 7 of the Charter (which guarantees that “everyone has the right to life, liberty and security of the person”). The argument was essentially as follows:

sections 4(1) and 5(1) of the CDSA apply to possession and trafficking for every purpose without discrimination or differentiation;
the Insite location is a health care facility with a goal to save lives and treat addiction;
because s.4(1) and s.5(1) of the CDSA impose an absolute and unqualified prohibition on controlled substances, it prevents access to this health care facility (i.e.: Insite) that reduces or eliminates the risk of death from an overdose and the risk of infectious disease, by persons who are ill with an addiction, thereby violating the right to life and security of the person;
because users of Insite risk incarceration while seeking health care services, the right to liberty is also violated; and
because s.56 of the CDSA (which refers to exception for science) should not relied upon as a remedy for a Charter violation.

The judge agreed and declared that s.4(1) was inconsistent with section 7 of the Charter. Naturally, the federal government was given time to rewrite the provisions in order to bring them in line with the Charter, and in the meantime (until June 30, 2009) the law remained in force and effect. In order to be able to continue its operations during this time, and during the appeals processes, Insite was granted a constitutional exemption. The case went to the Supreme Court of Canada (SCC) in 2011, and now, Insite is back to operating under an exemption of s.56 of CDSA. The reason? The SCC found that sections 4(1) and 5(1) of the CDSA are not unconstitutional (i.e. they are ok and can stand as they are). However, the federal government’s act of denying Insite a continuation of the s.56 exemption was in violation of s.7 of the Charter [see paragraph 156 of the SCC decision].
Interestingly, however, the exact extent of the use of constitutional exemptions has not been clearly defined, and there are those that argue that its legal foundation remains precarious.
As an interesting example: mandatory minimum sentences (“MMS”s) in criminal cases. The most topical case on this issue is R. v. Ferguson, which was heard by the SCC in 2008. In that case, Michael Ferguson, an RCMP officer, was accused of shooting and killing a detainee during an altercation with that detainee in a cell at an RCMP detachment. At trial, Officer Ferguson was convicted of manslaughter, a crime that carries a four year mandatory minimum sentence pursuant to s. 236(a) of the Criminal Code of Canada. However, Mr. Ferguson argued at trial that a four year sentence violates section 12 of the Charter, which states that “everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” But instead of arguing that s.236(a) should be struck down, he asked for a constitutional exemption (i.e.: the 4 year minimum sentence would continue to apply, just not to him). His reasoning – “the minimum sentence prescribed by Section 236(a) of the Code is grossly disproportionate to the particular circumstances of this case.” The SCC did not agree with him. Amongst many other things, the court found that constitutional exemptions for MMSs intruded on the role of Parliament by granting discretion to sentencing judges that they were not meant to have. This about it: the whole point of MMSs is to take away judges’ discretion to make sentencing decisions based on the circumstances of each individual case: if courts start to grant constitutional exemptions, they are taking back that discretion…something they can only really do if the law in question is generally unconstitutional (which was not argued here).
So… are constitutional exemptions now only available in cases like Ms. Taylor’s? That is, as an interim measure when a claimant requires relief from an unconstitutional law while law-makers examine the options for replacing that law (i.e.: where there has been a “suspended declaration of invalidity” under s. 52 of the constitution)? Hard to say. It will be interesting to see where Canadian law goes with this one.
Fascinating stuff, isn’t it, our constitution!

Is assisted suicide now legal?

July 13, 2012 By Carole (Staff Lawyer)

Not surprisingly, this is a question that we at CPLEA have been asked quite a bit lately.
On June 15^th of this year, the British Columbia Supreme Court struck down Canada’s laws against physician-assisted suicide on the basis that it is unconstitutional. In the case in question, Gloria Taylor, a woman suffering from ALS (also known as Lou Gehrig’s disease) asked to be allowed to have a doctor help her commit suicide before she became incapacitated. In making its finding of unconstitutionality, the court also gave Ms. Taylor a constitutional exemption to seek that medical assistance.
So what exactly does all of that mean?
Let’s start with the question of constitutionality. The Canadian Charter of Rights and Freedoms, which is part of the Constitution Act, 1982, protects the people of Canada from certain actions of governmental bodies. More specifically, governments (federal, provincial or municipal) are not allowed to treat people (either through a law or through any other action) in any way that violates the rights and freedoms set out in the Charter. One of these rights (section 15) is the right of every person to be “equal before and under the law” and to have “the right to the equal protection and equal benefit of the law without discrimination” based on various factors. One of these factors is “physical disability”. This is the provision that was applied in this case.
In a nutshell, the reasoning is as follows:

suicide itself is not illegal;
as a result, able–bodied people are able to commit suicide (i.e. there is no law that stops them from doing so);
however, some disabled people are legally prohibited from committing suicide (i.e. those who might need help because they can’t physically do it themselves). The law in question is section 241(b) of the Criminal Code of Canada (“s.241(b)”);
as a result, disabled people are not equal under the law (i.e. the law specifically prohibits them from doing what able-bodied people can);
under section 15 of the Charter, that in equality that is not allowed.

The result: s.241(b), the law that says that it is a crime to help someone commit suicide, is unconstitutional and is therefore, “struck down”. What that essentially means is that it is as if s.241(b) is simply crossed off the books – it is as if it does not exist.
So that means the terminally ill can all ask doctors for help, right? Wrong.
Often, when a law is declared unconstitutional, the court has to give the government some time to deal with that fact. Think about all the systems in place, all the official literature on the topic, websites etc. It takes time to prepare for changes in law. Not to mention, the court needs to give the government time to appeal the decision, if it so chooses (and this one already has been). Imagine the back and forth and back forth that could happen throughout the appeal process if law kept being struck down, and maybe reinstated, and struck down again…etc, etc. In this case, the government was given one year to get its affairs in order. For that year, the law remains in effect.
However, leaving it at that would not help Ms. Taylor very much. Not letting her decide her own time of death after she had won her case would not make much sense. As a result, the court granted Ms. Taylor a “constitutional exemption.” This is for her and her alone. In other words, it allows the law to remain in effect (for the one year, as planned), but gives Ms. Taylor the remedy she was seeking. In other words, Ms. Taylor is now free to find a doctor to help her commit suicide (for now anyway, but that is being appealed too). If she does, and that doctor does so during the year that the law technically remains in effect, that doctor will be exempt from prosecution under s.241(b) of the Criminal Code.
So the answer is: no, assisted suicide is not yet legal…unless you are Ms. Taylor.
If you want to read the whole BC decision, it can be found here.

Moving Forward: Legal and Psychological Supports for Victims of Domestic Violence Conference

April 17, 2012 By Carole (Staff Lawyer)

Space is still available for the Moving Forward: Legal and Psychological Supports for Victims of Domestic Violence Conference on April 24, 2012. This event is co-hosted by the Centre for Public Legal Education Alberta and Community Initiatives Against Family Violence.
Are you a social worker, community worker or lawyer who works with victims of domestic violence? The conference will provide an opportunity for you to increase your knowledge of legal issues and community supports, build relationships with other professionals, and to reflect on your practice.
For more information on the conference or to register, visit: http://ciafv.com/event/moving-forward.

Moving Forward: Supports for Victims of Domestic Violence Conference

February 27, 2012 By Carole (Staff Lawyer)

Are you a social worker, community worker or lawyer who works with victims of domestic violence? If so, have we got a learning and networking opportunity for you!
Community Initiatives Against Family Violence and the Centre for Public Legal Education Alberta are excited to announce, Moving Forward: Legal and Psychological Supports for Victims of Domestic Violence Conference on April 24, 2012 at the Santa Maria Goretti Community Centre in Edmonton, AB. This full day conference will feature keynote speakers and multiple breakout sessions by presenters who work in the family violence and legal fields to support victims as they move forward in their journey. It will also be an opportunity for delegates to learn more about domestic violence from both a legal and a psychological perspective and to become more aware of the wide array of services available to victims of domestic violence. The registration fee is $45.
Domestic Violence is a societal issue that affects 1 in four women and 1 in 7 men at some point in their lives. The Edmonton Police Service received 6500 domestic violence related calls in 2010. We do know that only about 25% of domestic violence incidents are reported to the police (Family Violence in Canada: A Statistical Profile 2011). Alberta has the second highest reported incidence of domestic violence in Canada. We are tied with Saskatchewan.
This conference is an opportunity for professionals to increase their knowledge base on legal issues and community supports, build relationships with other professionals, and reflect on their practice.
We gratefully acknowledge the Department of Justice Canada Victims of Crime Fund for providing funding for this event. Every year Justice Canada chooses a theme for Victims of Crime Week. For 2012, the theme is “Moving Forward.” This theme acknowledges both the journey that victims of crime undertake as they make changes in their lives and the work done in the last 30 years to improve services for victims of crime.
The conference brochure is available here.
You can view a listing of presentations and register at www.ciafv.com.

What is a Sheriff anyway?

December 21, 2011 By Carole (Staff Lawyer)

A few weeks ago, an Edmonton court halted proceedings in a child pornography trial because there was no provincial Sheriff available to provide security in the courtroom.
I don’t know about you, but when I hear the word “sheriff”, I think of this guy. Even if you don’t think of that particular character, you might, at least, associate that word with the police. In the United States, from which much of our television and movies come, do actually at time use the word “sheriff” to refer to a particular rank of police officer. We do not.
So, In Alberta, what exactly is a “sheriff”? Not surprisingly, as is often the case with these pesky legal definitions, there is more than one answer.
In terms of what happened at the courthouse, however, “sheriffs” are employees of the Solicitor General’s department (Government of Alberta), hired to help support provincial law enforcement agencies and to promote safe and secure communities throughout the province. For example:

Communications Officers operate a 24-hour security control room where the status of alarm systems throughout the province are monitored, and the coordinate activities of contracted security personnel.
Perimeter Security Sheriffs maintain safety and security for all persons within designated Government facilities (they do so by conducting security patrols or using complex security equipment, assesses and responds to breaches of security, and assists other security personnel).
Law Courts Sheriffs provide and maintain a safe and secure setting for all persons within the province’s 75 provincial courthouses. For example, they are responsible for staffing metal detectors at courthouse entrances, providing general security, and they are supposed to be present in all criminal and family courtrooms.
- Law Court Sergeants are responsible for supervising Sheriffs, handling and transporting offenders, and providing police support at community events.
- Traffic Sheriffs provide specialized service in: collision investigation, awareness and educational presentations, warrant apprehension, traffic safety enforcement, traffic enforcement and joint force traffic safety operations with Alberta’s policing agencies.
- Traffic Sergeants supervise Sheriffs delivering enforcement, education and awareness initiatives. They also collaborate and partner with stakeholders, clients and other enforcement agencies to reduce collisions.
- Surveillance Sheriffs provide a complex and highly specialized services assisting other law enforcement agencies in surveillance activities and investigation on people of interest.

For more information on these roles you can see here, or watch this short video about Sheriffs. For more information on becoming a Sheriff, see here.
Just to be clear, however, there is another kind of Sheriff. This kind has to do with civil enforcement (a kind of debt collection).
For example: if you buy some new appliances on credit, then don’t make your payments, someone may show up at your door to take the appliances back. In relation to this sort of thing, the Office of the Sheriff oversees the civil enforcement “agencies” (companies) that do all this kind of work. The title of the person who actually does the work (like coming out and taking the appliances) is called a “bailiff”. For more information about that, see here.

Animals & Domestic Violence

June 16, 2011 By Carole (Staff Lawyer)

Deliberate cruelty, or threatened cruelty, to animals is a form of violence. Besides being harmful to a living creature that is capable of feeling pain, animal cruelty can be one of the earliest predictors that an individual is developing a pattern of seeking power and control by inflicting suffering on others. It can also be an indicator of other kinds of violence being perpetrated on family members or others.
As a result, animal cruelty, or threatened animal cruelty, is often present in cases of family violence. More specifically, many studies in Canada and the U.S. have shown that, amongst other things:

family pets are often targets in domestic violence, and threats of violence toward a pet are often used as a means of control by an abusive family member; and
many victims of domestic violence remain in an abusive situation out of concern for the safety of their pets or livestock.

In Alberta, there are legal options to deal with existing, or threatened, animal cruelty in situations of domestic violence.

The first is the Alberta Protection Against Family Violence Act. Under that act, a judge (or justice of the peace) may make “any provision” that s/he “considers necessary to provide for the immediate protection” of the person asking for the order of protection (known as the “claimant”). In such a case, the animal/pet would be treated as “property” (as, in law, an animal is not a person and, therefore, not a ‘family member’) and a judge could make an order about that property (for example: a provision that the animal be in the exclusive possession of the claimant). Given that an abused person may stay in an abusive situation in order to protect an animal, thereby jeopardizing his/her own safety, it can be argued that in order to immediately protect that individual, an order regarding the animal may be required. In order for that to happen, however, abused persons need to know that this is a possibility (many do not). Also, lawyers — or police officers or social workers — acting in behalf of the claimant need to know that they can ask a judge for such a provision.
In addition, if you have cause to believe there is animal abuse occurring in your community, you can report it to the appropriate SPCA or humane society for your area. The staff who take the calls will help to identify the nature of the situation and the appropriate response. Your call will be treated in confidence, though your name and contact information may be required in case further information is needed. If cases go to court, you may need to provide written or verbal testimony.

SPCA Research Study

Have you experienced domestic violence that impacted your pets or livestock?
Did concern for those animals affect your decisions about seeking safety?
Are you willing to be interviewed for a study that will help others?

An Alberta research study looking at how the presence of livestock/pets affected domestic violence situations is seeking participants who willing to be interviewed about their experience. Anyone who had pets/livestock while living in an abusive home situation can volunteer for the interviews. If you provide permission, your children in grades 6 or higher can also be interviewed.
The study, which runs until Decemeber 2011, is sponsored by the Alberta SPCA and is being conducted by researchers from the University of Calgary and an education consulting group. The project received clearance from the University of Calgary Research Ethics Board. Your identity will be kept confidential. The information you provide will help other families and animals in the future
If you are willing to participate, please call Donna at 403-650-4608 or email spcaresearch@gmail.com.
Special thanks to the Alberta SPCA for its assistance in the creation of this blog post.

Condos & Early Planning Agreements – Part 2

May 17, 2011 By Carole (Staff Lawyer)

A little while ago, we began a discussion about early planning agreements. In the kind of response we love to see here at the LRC, a reader, Yakov A., provided a great deal of further information on the topic (see his comments on arguments that might result in the return of the deposit).
In a nutshell, Yakov informed us that, for various reasons, these contracts (also sometimes called “Reservation Agreements”) may not be “enforceable” by the developer, but they may be enforceable by the purchaser. So what does that mean? Well, it means that, should a developer go to court to say “I demand what I think I am entitled to under this contract”, the developer might not get it. On the other hand, and for various other possible reasons, the person buying the house might have better luck. And, once again, the answer provided by the law will be: it depends. One of the things upon which it depends is the arguments made by the people presenting the case.
What should we take away from this? Well:

if you are already in this situation, don’t let the arguably as-of-yet-not-totally-clear law on this topic deter you from trying to get your deposit back – it might work;

if you do try to get your deposit back, consider hiring a lawyer. As you can see from Yakov’s insightful comments, lawyers who specialize in a particular field are truly a wealth of information and can really be helpful in reaching your goals; and

if you are buying a condo and/or entering into one of these agreements, do your homework, protect yourself, and make sure you understand what you are doing.After all, even if you can go to court to get all or some of your money back, or reach a settlement before going to court, these process are long, emotionally draining and do cost money in and of themselves (not to mention arguably the last thing you need as you search for another property)!

Thanks again Yakov!

Condos & Early Planning Agreements

May 4, 2011 By Carole (Staff Lawyer)

Anyone who has ever bought, or looked into buying, a condominium, knows that owning a condo is really very different from owning a house. First, there is the condo corporation. Then, there are matters such as the condo board, the condo fees, common areas, the reserve fund, and the by-laws. Now, for potential buyers of incomplete condos, we can add “early planning agreements” to the list of things they really need to learn about.
An early planning agreement is a contract which authorizes the developer to design a condominium according to the buyer’s specifications and gives the buyer the option to sign a purchase agreement later at an agreed upon price. Although this sounds like a great idea (a condo made just for me!!), it has led to some problems, and those problems have started to wind their way through the courts.
The issue? Early planning agreements are not covered by the Condominium Property Act, which otherwise gives buyers the right to cancel a contract within 10 days of signing a purchase agreement with a developer, as well as the right to a full refund within 10 days of the developer receiving notice to cancel. In early planning agreements, on the other hand, there may be no right to refund of the deposit at all. What you are entitled to depends on what you signed, and each contract is different. That being the case, court results have varied, depending on the specifics of each situation.
So, as always, be sure to read you contract very carefully before you sign it. Ensure that any cancellation and deposit refund rights are clearly spelled out and that you understand them. Consider getting independent legal advice.
For more information on early planning agreements, see Service Alberta’s news release.
For more information on condo-buying in general, see Service Alberta’s tipsheet about buying and owning a condo.