Legislative Summary | Fall 2010

27th Legislature Third Session Spring Fall 2010

LEGISLATIVE REVIEW SUMMARY Fall 2010 - 27th Legislature - 3nd Session HIGHLIGHTS The 2010 Fall Session of the Legislature resulted in the passing of 13 bills. Practitioners may find the Wills and Succession Act and the Family Law Statutes Amendment Act of particular interest.

Bills passed were:

Wills Act, R.S.A. 2000, c. W-12 Legitimacy Act, R.S.A. 2000, c. L-9 Electoral Divisions Act, SA 2003, c. E-4.1

Traffic Safety (Distracted Driving) Amendment Act, S.A. 2010, c. 23 Government Organization Amendment Act, S.A. 2010, c. 19 Fuel Tax Amendment Act, S.A. 2010, c. 18 Mines and Minerals (Coalbed Methane) Amendment Act, S.A. 2010, c. 20 Alberta Health Act, S.A. 2010, c. A-19.5 Post-secondary Learning Amendment Act, S.A. 2010, c. 22 Class Proceedings Amendment Act, S.A. 2010, c. 15 Wills and Succession Act, S.A. 2010, c. W-12.2 Family Law Statutes Amendment Act, S.A. 2010, c. 16 Carbon Capture and Storage Statutes Amendment Act, S.A. 2010, c. 14 Freehold Mineral Rights Tax Amendment Act, S.A. 2010, c. 17 Police Amendment Act, S.A. 2010, c. 21 Electoral Divisions Act, S.A. 2010 c. E-4.2

Detailed Listing Of Bills Traffic Safety (Distracted Driving) Amendment Act Bill 16 Amends: Traffic Safety Act Summary: The Traffic Safety (Distracted Driving) Amendment Act, 2010, restricts the use of hand-held cell phones and activities like texting, reading, writing, personal grooming while driving, and puts restrictions on using other electronic devices (including entering information on Global Positioning Systems (GPS)) while driving.

Amended Legislation

In Force: On Proclamation.

Traffic Safety Act, R.S.A. 2000, c. T-6 Fuel Tax Act, S.A. 2006, c. F-28.1 Class Proceedings Act, S.A. 2003, c. C-16.5 Administration of Estates Act, R.S.A. 2000, c. A-2 Employment Pension Plans Act, R.S.A. 2000, c. E-8 Insurance Act, R.S.A. 2000, c. I-3 Interpretation Act, R.S.A. 2000, c. I-8 Matrimonial Property Act, R.S.A. 2000, c. M-8 Members of the Legislative Assembly Pension Plan Act, R.S.A. 2000, c. M-12 Métis Settlements Act, R.S.A. 2000, c. M-14 Mobile Home Sites Tenancies Act, R.S.A. 2000, c. M-20 Personal Directives Act, R.S.A. 2000, c. P-6 Residential Tenancies Act, S.A. 2004, c. R-17.1 Trustee Act, R.S.A. 2000, c. T-8 Unclaimed Personal Property and Vested Property Act, S.A. 2007, c. U-1.5 Alberta Evidence Act, R.S.A. 2000, c. A-18 Change of Name Act, R.S.A. 2000, c. C-7 [NOTE: Repealed by 2007, c.V-4.1 s. 88 (unproclaimed)] Child, Youth and Family Enhancement Act, R.S.A. 2000, c. C-12 Family Law Act, S.A. 2003 c. F-4.5 Interjurisdictional Support Orders Act, S.A. 2002, c. I-3.5 Interpretation Act, R.S.A. 2000, c. I-8 Law of Property Act, R.S.A. 2000, c. L-7 Maintenance Enforcement Act, R.S.A. 2000, c. M-1 Perpetuities Act, R.S.A. 2000, c. P-5 Reciprocal Enforcement of Judgments Act, R.S.A. 2000, c. R-6 School Act, R.S.A. 2000, c. S-3 Victims of Crime Act, R.S.A. 2000, c. V-3 Vital Statistics Act, R.S.A. 2000, c. V-4 Wills Act, R.S.A. 2000, c. W-12 Workers’ Compensation Act, R.S.A. 2000, c. W-15 Post-Secondary Learning Act, S.A. 2003, c. P-19.5 Energy Resources Conservation Act, R.S.A. 2000, c. E-10 Mines and Minerals Act, R.S.A. 2000, c. M-17 Oil and Gas Conservation Act, R.S.A. 2000, c. O-6 Public Lands Act, R.S.A. 2000, c. P-40 Surface Rights Act, R.S.A. 2000, c. S-24 Freehold Mineral Rights Tax Act, R.S.A. 2000, c . F-26 Police Act, R.S.A. 2000, c. P-17 Electoral Boundaries Commission Act, R.S.A. 2000, c. E-3

Alberta Health Act Bill 17 Amends: Alberta Health Act Summary: The Act sets out a preamble of “Health Care Values” and establishes a Health Charter that will be overseen by a provincial administrative body. A specially appointed “health advocate” will review and investigate complaints under the Charter.

Following that investigation, the advocate may submit a report to the Minister who may then, in turn, direct compliance with the Charter.

This direction for compliance may be directed to any regional health authority, health provider, professional college or operator, or any other person involved in the provision of health services.

It should be noted that s. 7 of the Act purports to preserve the power of regional health authorities, provincial health boards, and professional colleges to act within the scope of the enactment that established them.

Section 10 of the Act exempts the decisions of the Minister and health advocate from review and section 11 limits their liability, as well as the liability of the Crown.

Finally, section 14 of the Act calls for public input with respect to any regulations made under the Act. In Force: On Proclamation.

Government Organization Amendment Act Bill 18 Amends: Government Organization Act Summary: Establishes an enforcement and appeal mechanism for awards made under a domestic trade agreement. A “domestic trade agreement” is redefined in the amendment as an Agreement on Internal Trade (signed by the provinces, territories and federal government), amendments to that agreement, and trade enhancement agreements that are consistent with an Agreement on Internal Trade. Finally, the amendment explicitly limits private causes of action arising from breaches of a domestic trade agreement.

Repealed Legislation Dependants Relief Act, R.S.A. 2000, c. D-10.5 Intestate Succession Act, R.S.A. 2000, c. I-10 Survivorship Act, R.S.A. 2000, c. S-28

In Force: December 2, 2010, with exceptions.

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Fuel Tax Amendment Act Bill 19

Family Law Statutes Amendment Act Bill 22

Amends: Fuel Tax Act

Amends: - Alberta Evidence Act - Change of Name Act - Child, Youth and Family Enhancement Act - Family Law Act - Interjurisdictional Support Orders Act - Interpretation Act - Intestate Succession Act - Law of Property Act - Maintenance Enforcement Act - Perpetuities Act - Reciprocal Enforcement of Judgments Act - School Act - Victims of Crime Act - Vital Statistics Act - Wills Act - Workers’ Compensation Act

Summary: Permits producers of renewable fuel to sell their products to other renewable producers, refineries, and other production facilities on a “tax out” basis. The stated purpose of the amendments is to facilitate the blending of renewable and non-renewable fuels at the mandated levels at a terminal or refinery before the fuel becomes taxable. This will ease the cash flow and accounting burden on renewable fuel producers and full direct remitters (i.e. conventional producers), and reduce the complexity of generic fuel tax return reporting.

In Force: December 2, 2010, with exceptions.

Class Proceedings Amendment Act Bill 20 Amends: Class Proceedings Act

Repealed Legislation: Legitimacy Act

Summary: Pursuant to the Amendment Act, a person who commences a class proceeding must give notice to representative plaintiffs in any multijurisdictional or proposed multi-jurisdictional class proceeding elsewhere in Canada involving the same or similar subject matter.

Persons who receive such notice have a right to make submissions at the certification application.

There is a no longer separate treatment of resident and nonresident members of a class action. However, the Court may refuse to certify members of a class whom it determines should be properly included in an existing or proposed class proceeding in another jurisdiction.

Also, if the Court determines that a proceeding should proceed as a multi-jurisdictional class proceeding in another jurisdiction, it may refuse to certify it as a multi-jurisdictional class proceeding in Alberta.

Summary:

The Family Law Statutes Amendment Act incorporates significant amendments to three different enactments in the family law area: the Family Law Act, Maintenance Enforcement Act and Interjurisdictional Support Orders Act.

The following are some of the developments resulting from the enactment of the Amendment Act.

The Act, among other things: • defines the legal parentage of children born using assisted human reproduction and surrogacy; • abolishes the status of illegitimacy; • establishes that the duration of child support payments is governed by the law of the jurisdiction which issued the Order; • reverses the applicability of law with regard to the entitlement to receive or continue to receive child support and as to amount; Alberta law will apply first unless the child is not entitled to support thereunder; • addresses contact information requirements for clients and how insufficient funds payments and overpayments are treated at law; and • addresses child and spousal support orders between Albertans and parties in other jurisdictions.

In Force: On Proclamation.

Wills and Succession Act Bill 21 Amends: - Administration of Estates Act - Employment Pension Plans Act - Insurance Act - Interpretation Act - Matrimonial Property Act - Members of the Legislative Assembly Pension Plan Act - Métis Settlements Act - Mobile Home Sites Tenancies Act - Personal Directives Act - Residential Tenancies Act - Trustee Act - Unclaimed Personal Property and Vested Property Act

In Force: On Proclamation, with exceptions.

Post-Secondary Learning Amendment Act Bill 23 Amends: Post-Secondary Learning Act Summary: The Post-Secondary Learning Amendment Act adds the power for a board of governors to pass a bylaw for parking, including authorized or prohibited parking times and zones, signage, markings, meters fees, penalties, fines, hearings and determination of disputes under the bylaw.

In Force: On Proclamation.

Repealed Legislation - Dependants Relief Act - Intestate Succession Act - Survivorship Act - Wills Act

Carbon Capture and Storage Statutes Amendment Act Bill 24 Amends: - Energy Resources Conservation Act - Mines and Minerals Act - Oil and Gas Conservation Act - Public Lands Act - Surface Rights Act

Summary: This new Act repeals and replaces the Dependants Relief Act, Intestate Succession Act, Survivorship Act and Wills Act. The legislation updates matters such as wills and family support, and adds new rights related to matrimonial property distribution on death.

Given the broad scope of this Act, the committee recommends that practitioners in this area review it in its entirety to ascertain its implications.

Summary: The Carbon Capture and Storage Statutes Amendment Act declares that the pore space below all land (with the exception of land belonging to the Crown in the right of Alberta) in Alberta is the property of

In Force: On Proclamation.

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Freehold Mineral Rights Tax Amendment Act Bill 25 Amends: Freehold Mineral Rights Tax Act Summary: This amendment seeks to install new objections and appeal procedure regarding taxes on mineral rights.

Generally speaking, the objection procedure mirrors the one used by the Canada Revenue Agency pursuant to the Federal Income Tax Act. However there are a number of important differences. Specifically, a taxpayer must pay the amount of tax alleged to be owed before the objections proceeding may begin and appeals are made to the Court of Queen’s Bench under its own procedure.

This amendment also revises the record-keeping requirements imposed on taxpayers. Specifically, the retention period is extended from five to six years and the Minister is given extensive powers to direct record production (in particular, a $100,000 fine for non-compliance).

In Force: December 2, 2010.

Police Amendment Act Bill 27

Amends: Mines and Minerals Act Summary: The key provision of this amendment is section 2, which declares that coalbed methane is, and always has been, natural gas, for both Crown and freehold minerals for the purposes of the Mines and Minerals Act. Under the Amendment Act, coalbed methane is owned by the holder of the natural gas right.

Kevin P. Feehan, Q.C. – Legislative Officer C. R. Head – Secretary

Amends: Police Act Summary: The Police Amendment Act aims to streamline the current police complaint and discipline process.

Among other things, it proposes to expand the powers of the Director to address all complaints, not just public complaints. Prior to scheduling an appeal for hearing, the Board will review within 30 days of receipt, the written Notice of Appeal and record of hearing, and may either dismiss the matter if it considers the matter frivolous, vexatious or made in bad faith or make a decision on the complaint without a hearing. The Board may give directions and if those directions are not complied with or not responded to, it may dismiss the appeal.

The Amendment Act also gives additional powers to the Board in conducting appeals. For example, it may dismiss a witness or the matter based on the behavior of the witness or complainant.

The class of complainants regarding the conduct of a police officer is restricted to persons who were the direct target of the conduct, persons who suffered as a result of the conduct, their agent, a person in a personal relationship with that person, or persons who were present and witnessed the conduct of the police officer.

The limitation date for complaints has been expanded to the latter of two dates: one year after (a) the conduct occurred, or (b) when the complainant first knew or ought to have known that the conduct occurred.

The decision of the Police Chief is final regarding the dismissal of a complaint that he considers not of a serious nature.

In Force: On Proclamation, with exceptions.

In Force: December 2, 2010.

Mines and Minerals (Coalbed Methane) Amendment Act Bill 26

Legislative Review Committee

Kevin P. Feehan Q.C. - Chair

In Force: December 2, 2010.

The remainder of the amendment limits the liability of the Crown for any action resulting from this amendment and deems that the characterization of coalbed methane as natural gas is not an expropriation under the Expropriation Act.

Edmonton Committee Christopher R. Head Karen Hewitt Jason Banack Rob M. Curtis, Q.C. Debbie A. Yungwirth Melissa Timbres Grant Dunlop Anne Kaplan Art Wilson, Q.C. Darin Hannaford Peter Michalyshyn, Q.C. Omolara Oladipo Frank Friesacher Andrew McLaughlin Nate Whitling Wendy Thiessen Lillian H. Yeung

Electoral Divisions Act Bill 28

Bill Ranson, Q.C. - Chair

the Crown in the Right of Alberta and remains so whether or not rights are granted in respect of a subsurface reservoir or minerals occupying a subsurface reservoir.

The Amendment Act also declares that no Crown grant of land has or will operate as a conveyance of title to the pore space relating to minerals or water below the surface of the land.

Installations and equipment used in contravention of the Act are forfeited to the Crown in right of Alberta, free and clear of all interests, charges and liens. The Act specifies agreements into which the Minister may enter relating to carbon capture and storage, including the permanent disposal or sequestration of carbon dioxide.

The Act establishes a Post-Closure Stewardship Fund to address the costs related to the Crown’s assumption of liability related to the ownership of captured carbon.

The Act also grants the Board the power to make an order granting a right of entry onto any land.

Amends: Electoral Boundaries Commission Act Repealed Legislation: Electoral Divisions Act Summary: The Electoral Divisions Act creates 87 electoral divisions and repeals the 2003 Electoral Divisions Act. It also amends the Electoral Boundaries Commission Act. In Force: On the day that a writ is issued under section 40 of the Election Act for the next general election.

The Legislative Review Committee is a joint committee of The Law Society of Alberta and the Canadian Bar Association Alberta and, in addition receives funding from the Alberta Law Foundation. It has subcommittees in both Edmonton and Calgary and has filled a role in the legislative review process in Alberta for over 30 years. The Committee reviews all bills introduced in the Alberta Legislature and provides comments and assistance to both Government and the Bar on drafting and operative aspects of legislation and amending legislation. The Committee is often called upon confidentially to give legal practitioners’ input on draft legislation and regulations. It played significant roles in the shaping of the Personal Property Security Act, the Civil Enforcement Act, the Builders’ Lien Act and other Alberta statutes. Its chairperson sits as a member of various stakeholder committees consulted by Government, including the Registry Liaison Committee, which have helped shape statute law.

The Committee draws upon practitioners with a wide range of practical experience, some of whom have served for many years. It also, through its Legislative Liaison Officer, facilitates input by CBA sections, the Law Society, and business and community groups on the policy of legislation. At the end of each legislative session the Committee publishes and circulates to Bench and Bar a short summary of all legislation passed during the session.

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Calgary Committee

Marty Kay, Q.C. Cliff Shaw, Q.C. Bernie Roth Stacy Petriuk Al Lucas, Q.C. Cynthia Martens Kathleen Rockwell Jordan Deering Jeff Thom, Q.C. Colin Feasby Robert Harvie Toby Eines Dennis McDermott, Q.C.