Question of the month from the Garvie Reading Room:
Can my landlord prevent me from displaying an election sign supporting a particular candidate?
This depends on the type of election. Both the Canada Elections Act (S.C. 2000, c. 9), section 322, and the Alberta Election Act (E.1, RSA 2000), section 135.5 state clearly that no landlord may prohibit a tenant from displaying election advertising posters on the premises nor may any condominium corporation prohibit any owner or tenant from displaying such posters. They do allow the landlord or condominium corporation to set reasonable limits on the size or type of posters and to prohibit such displays in common areas of the building. Common areas are usually those areas that all tenants can access, like the laundry room, parking lot and land surrounding the building.
However, the Alberta Local Authorities Election Act (E-21, RSA 2000), which governs municipal elections makes no reference to election advertising at all, other than to prohibit such displays at polling stations on election day. Many municipalities have bylaws or regulations related to campaign signs on municipal property and roadways. Generally they have no regulations about private property but do caution that placement of signs on private property must have the permission of the property owner. This would imply that in a municipal election the landlord can refuse for a tenant to display a campaign poster or ask a tenant to remove a sign that has been posted. There may even be a term in your lease governing such displays.
Because each province governs both their own elections and their municipalities, these rules may well differ in other provinces.
A Question about Pocket Bikes (mini-motorcycles)
Question of the month from the Garvie Reading Room:
What are the rules about riding a pocket bike in Canada? Can I ride it on the roadway or on sidewalks?
The governing of motor vehicles is a shared jurisdiction: provincial and territorial governments regulate and enforce the licensing, operation, modification and maintenance of all vehicles using public roads while Transport Canada controls the importing of vehicles and motor vehicle safety standards.
Because the rules about what types of vehicles are allowed on public roadways are set by provincial and territorial governments there is not one answer for the whole country. Following are three examples of the rules in three different provinces.
Information for BC comes from the Insurance Corporation of British Columbia who advise that “Mini motor vehicles, commonly referred to as “pocket bikes” or “mini choppers,” do not meet federal safety standards for use on public roads. Their use is limited on public roads to designated parade routes. The reason that these vehicles aren’t generally allowed on public roads is because they don’t meet minimum height specifications for headlamps, tail lamps, stop lamps, and turn signals. They’re also difficult for other motorists to see.”
On a webpage titled “New and Alternative Vehicles”, Ontario Transportation writes that: “Pocket bikes are meant for closed circuit use only, not public roadways. These bikes can be imported as “restricted-use motorcycles.” However, in order to comply with federal standards, pocket bikes require 17-digit vehicle identification numbers, reflectors and warning labels that clearly state these bikes are intended for off-road use only.”
Alberta Transportation has a Fact Sheet which explains that pocket bikes are prohibited motor vehicles meaning that they are not permitted on roadways which includes sidewalks along the roadway. They may only be operated on private property.
If your province is not covered in this article, you could contact your provincial or territorial government department of transportation for more information. A list of links is provided here (scroll down to the Provincial Governments section).
Who pays for heat when utilities are included in the rent?
Utilities, including heat, are included in my rent. Yesterday, my landlord gave me a copy of the heating bill and said that I had to pay for the heat from now on, because the bill was too expensive. Do I have to pay?
No, you don’t have to pay the bill. The lease agreement that you have with your landlord is a contract, and both of you are bound by the terms of the contract. Just like you could not decide to pay your landlord $50 less a month in rent just because you felt like paying less, your landlord can’t tell you to pay more a month. When your landlord agreed to pay the utilities, he accepted the risk that utility costs might increase. The landlord, in order to get more money, could increase the rent. As noted in Service Alberta’s RTA Handbook:
Landlords cannot require tenants to pay utilities after a tenancy has started if the residential tenancy agreement:
• Contains express wording that the utilities are included in the rent,
• Is silent on who is responsible for utilities, but the landlord has always taken a portion of the rent to pay the utilities.
Landlords and tenants can mutually agree that utilities will no longer be included in the rent.
To recover higher utility costs, landlords must give a legal written notice of a rent increase.
But what if your landlord sends you a bill for the heat anyway? You may want to consider writing your landlord a letter, setting out the reasons why you are not going to pay the utility bill. It is a good idea to have things in writing, just in case you end up in a dispute with your landlord. If you are refusing to pay because a term of the lease states that the utilities are included, then attach a copy of the lease with that term highlighted. You could even attach the RTA Handbook section that we already talked about to the letter, so that the landlord can then contact Service Alberta for more information.
If the landlord decides to increase the rent to cover the higher than expected utility costs, then the landlord must follow the rules regarding rent increases. You can read our Rent Increases Tipsheet to find out more information.
Mobile Phone Searches at School
Before I worked at CPLEA as a Program Coordinator I was a teacher. The school I taught in had a strict mobile phone policy. If a student was caught with their phone in class they would have it confiscated. The student would then have to pick up their phone at the end of the day from the Principal’s office.
I was talking to a former teaching colleague about an Edmonton school that went a step further and searched the contents of a student’s phone. My friend wondered if this violated the rights of the student.
Section 8 of the Charter of Rights and Freedoms ensures that everyone has the right to be secure against unreasonable search and seizure (which means that everyone has a right to expect a reasonable amount of privacy). Those that act on the behalf of the government, such as police officers, must act in a fair and reasonable way and usually need a search warrant to do a search.
In schools, the guidelines regarding privacy are a little less strict, as teachers and principals are responsible for student safety. Students are aware that they must comply with school regulations and as a result that they may be subject to searches.
It is sometimes appropriate for teachers and principals to search student property such as backpacks and lockers. Before the search, however, questions such as the following must be considered.
- Is there enough proof to justify the search?
- Is the search reasonable?
- Is the search carried out in a reasonable manner?
CPLEA created a series of lesson plans for schools about the Charter called You Decide: Charter Challenges. The teacher backgrounder that accompanies the lesson plans is an interesting read with more information about Charter rights in schools.
Do you have to tell your landlord if you're going on vacation?
You’ve been dreaming of that perfect vacation for months and it’s finally here: you can practically hear the surf hitting the shore and feel the sun warming your skin while the warm breeze lightly sifts through your hair. Then there’s a knock on your door, interrupting your holiday daydreams and bringing you back to the winter wonderland that is Alberta. Your landlord is at the door, wanting to know if the rumours she’s heard about you leaving tomorrow on a three week vacation are true. If you are leaving for that long, she tells you, then you were supposed to let her know in advance and the rent has to be paid now, instead of on the first of the month, because she wants to make sure that she has the money before you go out of town.
Does the landlord have the right to know when a tenant is going on vacation?
Can the landlord demand that rent be paid in advance of a tenant going on vacation?
Your landlord may have the right to ask for details regarding your vacation plans. The landlord would have this right if there is a term in the lease that provides that the tenant must inform the landlord of absences from the property. The reason that some landlords include this provision within the lease is usually for insurance purposes. Sometimes a landlord’s insurance policy will state that if the rental property is vacant or uninhabited for a period of time, then the insurance will lapse and the landlord would no longer have valid insurance on the property.
You may benefit from letting your landlord know of your absence too. If your landlord knows that you will be away, then the landlord may be willing to drive by the property to check on it, or may be willing to help you with sidewalk cleaning in the winter. Also, it’s a good idea to provide the landlord will the contact information for the person you have checking on the place or house-sitting for you, if you have made those arrangements with someone else. If there is an emergency, the landlord may need to get in touch with you or with the person you designate. If you do not have anyone else checking on the place for you, then you should make sure that the landlord has a reliable way to get in touch with you (and remember, you probably did not provide your landlord with your cell phone number when you moved in).
The landlord cannot demand that rent be paid in advance of the date that the rent is due. The rent is due on a specific day and at a specific time, and the landlord cannot unilaterally change that term without the tenant’s consent. Make sure, though, that you have a reliable way to pay your rent while you are gone. If you pay by cheque, how are you going to get the cheque to the landlord if you’re out of town? Do you have a reliable friend that could deliver the cheque for you? If you pay by email money transfer, do you know that you have a reliable and secure internet connection in the place you are visiting?
You’re probably going to have to clean a foot of snow off your car in the airport parking lot when you get back; you don’t need to be greeted with an eviction notice on your door too.
Can a landlord charge a tenant for renovations?
I just got a question from a tenant. The landlord replaced all the windows in the rental property, and then gave the tenant a bill for half the cost of the renovations. Seriously.
The tenant doesn’t have to pay the landlord the money. There are some costs that are simply the costs of doing business, and maintaining the property by replacing windows is just one of many costs this landlord is going to run into.\
If the tenant had broken a window because, I don’t know, there was an intense game of indoor baseball going on, then yes, for sure, the landlord could charge the tenant for the repair and replacement of the window. Or the landlord could charge the tenant when the tenant moved, and keep some of the security deposit to cover the cost.
The Residential Tenancies Act doesn’t actually set out who is responsible for repairs and that’s why sometimes, there is confusion about what repairs the landlord can charge the tenant for, and what repairs the landlord can’t charge for. The common sense approach is that any “big” repairs are the landlord’s responsibility and “teeny tiny” repairs are the tenant’s responsibility. So, while the tenant can change the lightbulb, it’s the landlord that installs the new light fixtures when the old ones break.
There is also the Minimum Housing and Health Standards that can help us to decide who should pay for repairs. One of the landlord’s responsibilities is to make sure that the rental property meets these standards. The standards set out that the windows must be in good repair, free of cracks and weatherproof. So, if the windows in the property do not meet this standard, then it’s the landlord’s job to make sure that the windows get repaired or replaced. If the property is not being maintained, then the tenant can call Environmental Public Health and talk to an inspector about the problem that they’re having with the rental.
What should the tenant do? The tenant should tell the landlord, in writing, that they are not going to pay for the windows. The tenant could put in reasons why they aren’t paying (and while it might be tempting to write that you aren’t paying because the charge is ridiculous, it’s probably better to refrain). Hopefully the landlord will just go away at this point. If the landlord still insists on being paid, then there are three ways the landlord may react.
- The landlord could sue the tenant for half of the cost of the renovation. The landlord is going to have to convince a judge that the tenant should have to pay for the windows, which seems unlikely.
- The landlord could keep the security deposit when the tenant moves out. If the tenant doesn’t agree with a charge made against the security deposit, then the tenant can bring an application in Provincial Court or through the Residential Tenancy Dispute Resolution Service for return of the security deposit.
- The landlord could pass the bill to a collection agency. If the tenant is contacted by a collection agency, then the tenant can inform the agency in writing that the tenant is disputing the debt, and ask that the landlord prove the debt in court. If the tenant does that, then the collection agency cannot contact the tenant any longer. Service Alberta has a tipsheet about dealing with collection agencies.
In the meantime, the tenant might want to think about moving. If the landlord thinks that the tenant should pay for the windows, what else does he think the tenant should pay for?
The Supreme Court of Canada and the Case of Baby M
In school, we learn that the Supreme Court of Canada (SCC) is the ‘highest court’ in the land (and has been since 1949). We learn that lower court decisions can be “appealed” to the SCC, and we hear about all kinds of important decisions coming from the Court. But, for most of us, the exact process of getting to the SCC, and whether that is even possible, is a bit of mystery. Add to that the influence from television crime shows, which seem to imply that anything and everything can and should be appealed …. and it is no surprise that most of us a little fuzzy on the issue of appeals.
Yesterday, in Edmonton, the question of appeals to the SCC formed part of the most talked-about story of the day: Baby M. In that case, the Alberta Court of Appeal had decided that M should be taken off of life support. M’s parents asked the SCC to stay that decision (i.e.: keep M on life support) in order to give them time to apply to appeal the case to the SCC. The SCC refused.
So what does all of that mean?
Most cases come before the SCC in a formalized procedure, beginning with a judgment at trial, which is then appealed to a Court of Appeal. If the litigants are of the opinion that a mistake was made at the appeal level, then one or both may ask for ‘leave to appeal’ the matter to the SCC. This happens about 600 per year. This process of leave is a surprise to many people, who sometimes think that there is an automatic ‘right’ to appeal to the SCC. There isn’t (except for a few exceptions). And leave is not that easy to get: the SCC only grants it about 80 times per year.
During the leave process, a panel of SCC judges (usually 3) does a little mini-analysis to decide if it should even hear the appeal (so it a 2-step process). More specifically, the SCC applies the criteria found in the Supreme Court Act, which states that an application for leave to appeal may be granted if the case:
- raises an issue of public importance (in other words, the case must raise an issue that goes beyond the immediate interests of the parties to the case); and
- should be decided by the Supreme Court of Canada.
But surely the Baby M case is of public importance?
Well, yes. But the SCC can refuse leave if it feels that the law in question, as socially important as it may be, has already been decided (especially if it was previously examined by the SCC itself) and there is nothing else to say on the issue. Sometimes, however, even though the SCC has already made a decision about the topic in question, it will nonetheless grant leave. This can occur, for example, when the SCC feels that the fabric of society has significantly changed since it last gave a decision on the issue.
In this case, we were not yet at the “leave” stage per se. The court was being asked for a stay in order to give baby M’s parents’ time to apply for leave to have the case heard at the SCC. But, since the stay was denied, and Baby M died, there will now no longer be a case to hear, and no need to apply for leave.
Although individual Canadians may disagree on the outcome, I think that, as a group, we can all agree that it was both inspiring and comforting and to see the speed and thoughtfulness with which our court system responded in the case.
May Baby M rest in peace.
Legal help for low income Calgary seniors
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Call (403) 234-9266 for an appointment to meet with a lawyer. Available each Tuesday morning at Calgary Legal Guidance.
Changes to citizen's arrest
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”?
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!