In 1214777 Alberta Ltd v 480955 Alberta Ltd, 2014 ABQB 301 Master Schlosser was asked to terminate a tenancy based on the allegation that the tenant was participating in the criminal activity of prostitution. He concluded that he could not based on the recent SCC case law which has now confirmed that the rights of prostitutes are protected by our Charter of Rights and Freedoms. Master Schlosser concluded:
[44] If we put the conflicts in the evidence aside for a moment, the complicating factor about
the landlord’s arguments is that the law of selling sex for money is in a state of limbo. Canadian
prostitution laws were challenged in the Supreme Court of Canada and found to be
unconstitutional. Madam Justice McLachlin said for the Court in Canada (AG) v. Bedford, 2013
SCC72:
3. Three applicants, all current or former prostitutes, brought an application seeking declarations that three provisions of the Criminal Code, R.S.C. 1985, c. C-46, are unconstitutional.
3. Three applicants, all current or former prostitutes, brought an application seeking declarations that three provisions of the Criminal Code, R.S.C. 1985, c. C-46, are unconstitutional.
4. The three impugned provisions criminalize various activities related
to prostitution. They are primarily concerned with preventing public
nuisance, as well as the exploitation of prostitutes. Section 210 makes it an
offence to be an inmate of a bawdy-house, to be found in a bawdy-house
without lawful excuse, or to be an owner, landlord, lessor, tenant, or occupier
of a place who knowingly permits it to be used as a bawdy-house. Section
212(1)(j) makes it an offence to live on the avails of another’s prostitution.
Section 213(1)(c) makes it an offence to either stop or attempt to stop, or
communicate or attempt to communicate with, someone in a public place for
the purpose of engaging in prostitution or hiring a prostitute.
5. However, prostitution itself is not illegal. It is not against the law to exchange sex for money. Under the existing regime, Parliament has confined lawful prostitution to two categories: street prostitution and “out-calls” – where the prostitute goes out and meets the client at a designated location, such as the client’s home. This reflects a policy choice on Parliament’s part. Parliament is not precluded from imposing limits on where and how prostitution may be conducted, as long as it does so in a way that does not infringe the constitutional rights of prostitutes.
[45] Although these laws were found to be inconsistent with the Charter and void, the declaration of invalidity was suspended for one year. (The date of the Judgment was December, 2013).
[46] The old laws are still on the books but in a kind of legal limbo. Some of the activities at 50th Street Massage Centre might technically constitute crimes but neither 50th Street Massage Therapy nor its inmates or proprietors have been convicted, or pleaded guilty to any municipal or federal offences, much less offences under the Criminal Code of Canada.
[47] The commercial lease speaks to legality not morality. I am not willing to terminate this commercial lease on the basis of this state of the law and evidence.
5. However, prostitution itself is not illegal. It is not against the law to exchange sex for money. Under the existing regime, Parliament has confined lawful prostitution to two categories: street prostitution and “out-calls” – where the prostitute goes out and meets the client at a designated location, such as the client’s home. This reflects a policy choice on Parliament’s part. Parliament is not precluded from imposing limits on where and how prostitution may be conducted, as long as it does so in a way that does not infringe the constitutional rights of prostitutes.
[45] Although these laws were found to be inconsistent with the Charter and void, the declaration of invalidity was suspended for one year. (The date of the Judgment was December, 2013).
[46] The old laws are still on the books but in a kind of legal limbo. Some of the activities at 50th Street Massage Centre might technically constitute crimes but neither 50th Street Massage Therapy nor its inmates or proprietors have been convicted, or pleaded guilty to any municipal or federal offences, much less offences under the Criminal Code of Canada.
[47] The commercial lease speaks to legality not morality. I am not willing to terminate this commercial lease on the basis of this state of the law and evidence.
The case was also noteworthy to see how the recent judicial pronouncements with respect to Summary Judgment applications are being applied in Applications to Masters ; Master Schlosser commented:
[14] The Hryniak approach was recently endorsed by our Court of Appeal in Windsor v
Canadian Pacific Railway Ltd., 2014 ABCA 108. Although that case was a ‘law case’, not ‘a
facts case’, and the remarks in that decision are obiter with respect to whether there are any
enhanced fact-finding powers now enjoyed by judges in this province, the Court did observe that
the approach chosen by the Supreme Court of Canada in Hryniak was consistent with the
Alberta rules. Rule 7.3 uses the very wide term, ‘merit’, and Rule 6.11, which lists the types of
evidence that can be considered on a motion, includes oral evidence (6.11(g)). Our Court of
Appeal has now also endorsed this approach for rule 3.68 applications (O’Connor Associates
Environmental Inc. v. MEC OP LLC, 2014 ABCA 140 ).
[15] It remains to be seen whether a judge sitting in chambers in Alberta can now find facts or
determine credibility based on Affidavit evidence. As was noted in the Ontario Civil Justice
Reform Project, there are many layers of decisions against it (and see Beier v. Proper Cat
Construction Ltd., 2013 ABQB 351,at para. 68, O’Hanlon Paving Ltd. v. Serengetti
Develoments Ltd., 2013 ABQB 428 and Schaffer v. Lalonde, 2014 ABQB 222 (M)). Like the
case in Ontario, a rule change, or a legislative change might be necessary.
[16] If we put these decisions together, the approach that now ought to be taken toward summary determination is as follows. I am drawing remarks of Master MacLeod in the Pammett decision and those of Wakeling, J., (as he then was) in the Proper Cat case. The new approach has been described as the “roadmap approach”. As I see it, the Alberta roadmap is as follows:
[17] The starting point (as found in the Windsor decision para. 13 and Hryniak at para. 49) is ‘to examine the record to see if a disposition that is fair and just to both parties can be made on the existing record’. The court is to look at the record and the dispute to decide whether it is essential to the resolution of the dispute that the court see the witnesses. If the answer is yes, the matter must go to trial. If the initial answer is ‘no’, the court is to engage in a six step process:
-
The court is to presume that the best evidence from both sides is before the
court. (e.g. Canada v. Lameman, 2008 1 SCR 372, at 378 and 382). The
decided cases tell us that summary judgment applications have to be
decided on the evidence before the court and not on what the evidence
might be. Parties are required to put their best foot forward. This
reinforces the importance of treating summary judgment applications advisedly and with due caution. The only caveat that might apply here is that if the summary judgment application is before a Master and the losing party does not like the Master’s opinion, it is not so difficult to patch up the evidence on appeal. - As a corollary to number 1, the court is to ask whether a negative inference can be drawn from the absence of evidence on certain points.
- Next, the court should look at the complete package and ask whether all of the evidence is admissible. Rule 13.18 (3), for example, tells us that we can’t use hearsay for a final application.
- Next, the court should ask whether there is a conflict in the evidence and, if so, whether, (a) the conflict has been resolved on cross examination: Janvier v 834474 Alberta Ltd., 2010 ABQB 800, or, (b), whether the evidence giving rise to the conflict is purely self-serving and is otherwise unsupported: Guaranty v. Gordon, 1999 SCC. Self serving evidence does not give rise to a triable issue.
- The next step is to examine the evidence. As Master MacLeod said in the Pammett decision:
[28] There are subtle distinctions here. The court may assess the sufficiency of the evidence admissibility of evidence and reliability of evidence without access to enhanced fact finding powers. The court may also apply the law to the facts without deciding a genuine question of law.
(emphasis added). Assessing the sufficiency of the evidence will also involve considering whether the issue can fairly be decided on the factual record before the court (Tottrup v. Clearwater Municipal District (99) (2007) 68 Alta L.R. (4th) 237 at 242 and Gayton v. Lacasse, 2010 ABCA 123 at para. 11). - Having performed that evidentiary exercise, as Master MacLeod further says in the Pammett case: (and see Proper Cat at paras. 61-64, 69):
[31] A plaintiff will be entitled to judgment if the plaintiff can prove all elements of the cause of action and the defendant either has no defence or is missing critical elements of proof necessary to maintain that defence. A defendant will be entitled to judgment if the plaintiff cannot prove an essential element of its cause or if the defendant has a complete defence.
[18] In a sense, much of the above is not truly new. It is more like a field guide to the principles summarized in Proper Cat and elsewhere. The main change is that the concept of proportionality urges the court to give summary remedies where it can.
[19] None of this affects the well established legal burdens. The legal or persuasive burden is on the Applicant throughout. The Respondent is not obliged to furnish evidence. However, if an Applicant discharges the evidentiary burden imposed upon it on a balance of probabilities, the evidentiary burden then falls to the Respondent to show that there is arguable merit to the case: Murphy Oil Company Ltd. v. Predator Corporation Ltd., 2006 ABCA 69, Proper Cat at paras. 66-7, 70, and Dasilva v McLean, 2011 ABQB 618 (M), and, now, that there is a compelling reason that it should go to trial.
[20] As noted in Schaffer v. Lalonde, Masters have an additional power under section 9(3)(b) of the Court of Queen’s Bench Act. If the evidence leads to something that cannot be resolved on the basis set out above, the parties can agree to have the court determine the issue, which would be fully in keeping with the concept of proportionality and would be consistent with embracing the culture shift noted by the Supreme Court of Canada in Hryniak.
[21] There is one last issue. And it requires guidance from above. The Hryniak case suggests that the threshold for granting summary judgment may be at the civil standard (balance of probability), rather than ‘plain and obvious’, or ‘beyond doubt’, which is closer to the criminal standard. The Supreme Court of Canada did not directly address this issue, or for that matter, any of the cases that establish the standard. It was not necessary to the decision as a chambers judge found that the outcome ‘was clear’, which seems to imply that the higher standard was met.
[22] Nevertheless, there is a tension between the language used in the Hryniak case and the well established standard for granting summary remedies. Until this issue is dealt with, when the court asks whether there is ‘any issue of merit that genuinely requires a trial’ (Windsor at para. 16), or whether a fair and just determination can be made on the merits, the threshold remains ‘plain and obvious’, ‘or beyond doubt’. In the meantime, this court is not free to conduct ‘paper trials’ on the civil standard.
[23] The concept of proportionality does not mean, as some hopeful plaintiff’s seem to think, that plaintiff’s now have a license to railroad the defendant. The concept cuts both ways.
I have taken the comments from Master Schlosser to reflect that though much has changed not much has changed. This was also reflected to me on a recent Special Application to Master Robertson. The Court will continue to expect a high standard of proof to conclude that Summary Judgment should be granted but the Hryniak and Windsor cases will work to extol Masters and Justices to take one last look at the evidence to see if an equitable result can be achieved without the burden of trial.
