Alberta Union of Provincial Employees v Her Majesty the Queen (Alberta), 2021 ABQB 371

Court of Queen’s Bench of Alberta Citation: Alberta Union of Provincial Employees v Her Majesty the Queen (Alberta), 2021 ABQB 371 Date: 20230825 Docket: 2003 10486 Registry: Edmonton Between: Alberta Union of Provincial Employees, Guy Smith, Susan Slade, and Karen Weiers Plaintiffs/Respondents - and - Her Majesty the Queen in Right of Alberta Defendant/Applicant Corrected judgment: A corrigendum was issued on August 25, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Madam Justice S. Leonard _______________________________________________________

Introduction [ 1 ] The Plaintiffs filed a Statement of Claim alleging that the Critical Infrastructure Defence Act , SA 2020, c C-32.7 (the CIDA ) violates their rights under subsections 2 (b), (c), and (

d) as well as

section 7 of the Canadian Charter of Rights and Freedom,

Part 1 of The Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 (the Charter ). They also allege that the CIDA violates their rights under subsections 1 (a), (

d) and (

e) of the Alberta Bill of Rights , RSA 2000, c A-14 . They seek a declaration that the CIDA intrudes upon federal jurisdiction pursuant to sections 91(27) and 92(10) (

a) of The Constitution Act, 1867 , (UK), 30 & 31 Vict, c 3 . [ 2 ] This is an application by the Defendant to have the Plaintiffs’ Statement of Claim struck pursuant to Rule 3.68 of the Alberta Rules of Court , Alta Reg 124/2010 . The Defendant asserts that the claim is an abuse of process because the Plaintiffs do not have standing to bring the claim and the pleadings do not disclose a reasonable claim. In response, the Plaintiffs assert that they have standing and that their claim is not purely hypothetical.

The prohibitions contained in the CIDA have had an immediate effect, creating both a chilling effect on democratically protected public demonstrations and on the collective bargaining process. Position of the Parties [ 3 ] The Defendant argues that the Plaintiffs lack private interest standing because they have not been charged under the CIDA . They also argue that the claim is not justiciable because it lacks a factual foundation. As such, the Plaintiffs lack public interest standing. The lack of a factual foundation also undermines the Plaintiffs’ claims that the CIDA violates their rights under

section 2 and 7 of the Charter . In short, the claim is premature and should be struck. Further, because the Trespass to Premises Act , RSA 2000, c T-7 does not violate

section 7 of the Charter , neither does the CIDA , which is largely the same. [ 4 ] The Plaintiffs assert in response that they have both private and public interest standing. They argue that their pleadings contain a sufficient factual foundation within which to adjudicate the claim. The claim is not premature and the Charter claims are justiciable.

Further, the CIDA is fundamentally different from trespass legislation because in contrast to trespass legislation, the CIDA does not require notice that a potential offender is not to enter “essential infrastructure.” [ 5 ] For the reasons that follow, I find that the Plaintiffs have public interest standing. Although the claim lacks a specific factual foundation, their claims are justiciable and capable of adjudication through the lens of a reasonable hypothetical scenario. The Legislation [ 6 ] The Critical Infrastructure Defence Act , SA 2020, c C-32.7 came into force on June 7, 2020.

The CIDA prevents persons from unlawfully entering, damaging or interfering with the construction of essential infrastructure in the Province of Alberta. [ 7 ] The prohibitions of the CIDA are contained in

section 2 : 2(1) No person shall, without lawful right, justification or excuse, wilfully enter on any essential infrastructure.

(2) No person shall, without lawful right, justification or excuse, wilfully damage or destroy any essential infrastructure.

(3) No person shall, without lawful right, justification or excuse, wilfully obstruct, interrupt or interfere with the construction, maintenance, use or operation of any essential infrastructure in a manner that renders the essential infrastructure dangers, useless, inoperative or ineffective.

(4) No person shall aid, counsel or direct another person to commit an offence under subsection (1), (2) or (3), whether or not the other person actually commits the offence.

(5) A person who enters on any essential infrastructure, having obtained by false pretences permission to enter on the essential infrastructure from the owner or an authorized representative of the owner, is deemed to have contravened subsection (1) unless the person had a lawful right, justification or excuse to enter on the essential infrastructure. [ 8 ] “Essential infrastructure” is defined broadly in the CIDA and includes a highway as defined in the Traffic Safety Act , RSA 2000, c T-6 , oil production and processing sites, public utilities, railways, and buildings. [ 9 ] The Traffic Safety Act ( TSA ) defines “highway” as follows: Any thoroughfare, street, road, trail, avenue, parkway, driveway, viaduct, lane, alley, square, bridge, causeway, trestleway or other place or any part of any of them, whether publicly or privately owned, that the public is ordinarily entitled or permitted to use for the passage or parking of vehicles and includes (

i) a sidewalk, including a boulevard adjacent to the sidewalk, (ii) if a ditch lies adjacent to and parallel with the roadway, the ditch, and (iii) if a highway right of way is contained between fences or between a fence and one side of the roadway, all the land between the fences, or all the land between the fence and the edge of the roadway, as the case may be, but does not include a place declared by regulation not to be a highway.

[10] The penalties for individuals that are found guilty of a contravention of the CIDA consist of fines in the amount of $1000 to$10,000 and/or imprisonment for a term not exceeding 6 months for a first offence and fines in the amount of $1000 to $25,000 and/orimprisonment for a term not exceeding 6 months for a second or subsequent offence. Corporate defendants are liable to fines in theamount of $10,000 to $200,000. The test for an application to strike a pleading [11] Rule 3.68(2) provides that a claim can be struck where (

a) the Court has no jurisdiction; (

b) a commencement document or pleading discloses no reasonable claim or defence to a claim; (

c) a commencement document or pleading is frivolous, irrelevant or improper; (

d) a commencement document or pleading constitutes an abuse of process; (

d) an irregularity in a commencement document or pleading is so prejudicial to the claim that it is sufficient to defeat the claim. [12] Pleadings should only be struck where it is “plain and obvious” that the claim cannot succeed. The test is a “stringent one”and requires a Court to assume that facts as pleaded are true: Odhavji Estate v Woodhouse, 2003 SCC 69 at para 15.

Courts have thepower to strike a pleading where the action is “bound to fail.” However, this power must be used sparingly and only where “it is clearthat an action has no reasonable chance of success” Canada (Attorney General) v Confederation des syndicats nationaux, 2014 SCC 49at para 1 (Confederation). See also Reece v Edmonton (City), 2011 ABCA 238, at paras 128-130, leave to appeal dismissed, (SCC). [13] The Defendant claims that this action is an abuse of process because the Plaintiffs do not have standing to bring the claim andbecause the pleadings do not disclose a reasonable cause of action.

No authority was provided for the proposition that a lack of standingon its own equates to an abuse of process. However, if there is no standing to bring the claim, it follows that there is no reasonableprospect that a claim will succeed: Soldier v Canada (Attorney General), 2009 MBCA 12 at paras 36-37. It is therefore appropriate toconsider the issue of standing in an application under Rule 3.68.

Do the Plaintiffs have private interest standing [14] Private interest standing arises “as a matter of right arising from a direct relationship between the person and the state.” Adirect relationship arises where “the state engages a person in a court process.” In such a situation, a person “may challenge theconstitutional validity of the legislation as part of making full answer and defence.”: Downtown Eastside Sex Workers United AgainstViolence Society v Canada (Attorney General), 2010 BCCA 439 at para 23 (Downtown Eastside CA), aff’d 2012 SCC 45 (DowntownEastside SCC). [15] The Plaintiffs have not been charged with any offence under the CIDA.

The Defendant argues that the Plaintiffs therefore donot have a direct relationship with the state such that they can challenge the CIDA. [16] The Plaintiffs’ position in response is that the CIDA “will have a chilling effect on otherwise legal leafletting and picketingactivity.” In addition, the collective agreements of several of the bargaining units have expired and the perceived inability to engage inleafletting and lawful picketing hinders the AUPE’s ability to engage in collective bargaining.

As such, the Plaintiffs argue that theyhave a “direct, personal interest in the impugned provisions:” Downtown Eastside CA at para 29. [17] In an application to strike proceedings, I must accept the pleadings as true. However, I am not required to accept the “legalcharacterization of those facts:” Confederation at para 20. I therefore must accept that the Defendants have experienced a chilling effectas a result of the CIDA. I must also accept the assertion that their collective bargaining is hindered by the legislation.

As will bediscussed later in these reasons, it is difficult to determine what an unlawful entry onto a public road or sidewalk might include.

I acceptthat the uncertainty is sufficient to ground a claim that the AUPE could be legally affected by the CIDA if its members enter a road orsidewalk, for example, without a lawful right to do so. [18] However, the AUPE is not charged with an offence and it is not a defendant in an action commenced pursuant to the CIDA.The AUPE “cannot attract private interest standing by purporting to act in a representative capacity on behalf of its members:”Downtown Eastside CA at para 15.

I find that the AUPE lacks private interest standing [19] Although the individual Plaintiffs could be charged with an offence under the act, this has not occurred. Private intereststanding “cannot be founded on hypothetical possibilities:” Downtown Eastside Sex Workers United Against Violence Society v.Canada (Attorney General), 2008 BCSC 1726 at para 47. I find that the individual Plaintiffs do not have private interest standing.

Do the Plaintiffs have public interest standing? [20] In determining whether to grant public interest standing, courts must balance access to courts against the need to preservejudicial resources. The limits are placed on standing in order to ensure that courts are not burdened by “marginal or redundant cases:”Downtown Eastside SCC at para 1. [21] Courts consider three factors in determining whether a party has public interest standing:

(1) whether the case raises a serious justiciable issue; (2) whether the party bringing the action has a real stake or a genuine interest in its outcome; and (3) whether, having regard to a number of factors, the proposed suit is a reasonable and effective means to bring the case to court. [22] These three requirements are not “hard and fast” nor are they treated as “free standing, independently operating tests.” Theyare “assessed and weighed cumulatively, in light of the underlying purposes of limiting standing and [are] applied in a flexible andgenerous manner that best serves those underlying purposes:” Downtown Eastside SCC at para 20.

Does this case raise a serious justiciable issue? [23] A justiciable issue is one that is “appropriate for judicial determination:” Downtown Eastside SCC at para 30.

In order todetermine whether an issue is appropriate for judicial determination, the Court must consider “the nature of the issue and the institutionalcapacity of the courts to address it:” Downtown Eastside SCC at para 30. [24] A serious justiciable issue must raise a “substantial constitutional issue” or an “important one”, which is “far from frivolous”.However, this is a preliminary analysis – so long as some aspects of the claim could raise a serious issue of validity, that may besufficient, and it is not necessary to examine every claim on this basis: Downtown Eastside SCC at para 42. [25] The Plaintiffs allege that the CIDA is unconstitutional in that it violates their individual rights under

section 2 of the Charterand it intrudes upon federal jurisdiction. A justiciable issue is not created by merely asserting that

an act is unconstitutional: “There mustbe a substantial constitutional issue, it must be important and far from frivolous. In order to make such an assessment, the evidentiaryrecord will usually be an essential component of any Charter challenge”: CCSAG Naturally Green v Director, Sec. 47.5 EPA, MNRFand OEB, 2018 ONSC 237 at para 31. [26] The Plaintiffs allege that the CIDA prevents them from engaging in lawful picketing and leafleting. This is an important issue.I accept that the constitutionality of the CIDA is a substantial issue that is far from frivolous.

The question of whether the Plaintiffs havepublic interest standing turns largely on whether there is a sufficient evidentiary record to adjudicate the claim. Is there a sufficient evidentiary record? [27] This case lacks an evidentiary record. The only assertion of fact is that the Plaintiffs have experienced a chilling effect onlegal leafletting and picketing activity. The Defendant emphasizes that the CIDA does not restrict legal activities. It prohibits peoplefrom entering or destroying essential infrastructure without lawful right, justification or excuse.

It also prohibits people from interferingwith construction, maintenance or use of essential infrastructure without lawful right, justification or excuse. As such, the Defendantcontends that that the CIDA does not prevent the Plaintiffs from lawfully entering public property nor does it actually prohibit picketing,leafleting or demonstrations in public spaces. [28] Absent a factual foundation, it is not possible to adjudicate a Charter claim: MacKay v Manitoba, (SCC),[1989] 2 SCR 357 at 361-2.

Without an adequate factual record, the Court might create “impractical rules or enunciate[e] too wide arule:” Law Society of Alberta v Sidhu, 2016 ABCA 405 at para 4. [29] I agree with the Plaintiffs that there is no requirement that they be charged under the CIDA in order to satisfy the test forpublic interest standing. If a hypothetical scenario can be formulated, this will satisfy the need for context within which to consider theconstitutionality of the CIDA.

This consistent with the approach of the Supreme Court of Canada in R v Nur, 2015 SCC 15. [30] In Nur, the Court considered the constitutionality of the mandatory three-year minimum sentence of imprisonment for afirearms offence under

section 95 of the Criminal Code.

In that case, the mandatory minimum did not violate the constitutional rights ofthe two accused then before the Court because their offences attracted sentences greater than three years. [31] The Supreme Court of Canada nonetheless considered the constitutionality of the mandatory minimum on the grounds that itwas the “nature of the law, not the status of the accused, that [was] in issue.” Further, “[i]f the only way to challenge an unconstitutionallaw were on the basis of the precise facts before the court, bad laws might remain on the books indefinitely:” Nur at para 51. [32] In so doing, the Court considered the “reasonably foreseeable situations where the impugned law may apply” and concludedthat, for example, the mandatory minimum would apply if a person stored their properly licensed firearm at a different location (i.e. theircottage) than what was otherwise permitted by the license (i.e. their home): Nur at paras 58 and 79. [33] In order to come up with a reasonable hypothetical, the Court must consider, “What is the reach of the law?

What kind ofconduct may the law reasonably be expected to catch? What is the law’s reasonably foreseeable impact?”: Nur at para 61. Is there a reasonable hypothetical fact pattern in this case? [34] The CIDA has a broad reach and catches a wide range of conduct. Section 2(1) of the CIDA prohibits a person from enteringon any essential infrastructure without lawful right, justification or excuse.

As such, the CIDA purports to limit individuals from enteringstreets, sidewalks, or ditches, unless they have a lawful right to do so. [35] The CIDA does not define the term “without lawful right.” As such, it is not clear from the Act when a person might not havea lawful right to enter a road or sidewalk. Conduct in these spaces is governed by the TSA and its regulations. [36] The Use of Highway and Rules of the Road Regulation, Alta Reg 304/2002 is a regulation made pursuant to the Highway

Traffic Act .

Section 91 of the regulation prohibits a pedestrian from impeding the “free movement of vehicles on the highway.” It also requires that a pedestrian not “proceed onto a roadway or proceed along a roadway into the path of any vehicle that is so close that it is impractical for the driver of the vehicle to yield the right of way.” [ 37 ] As such, the Use of Highway and Rules of the Road Regulation prohibits an individual from walking on a street. At one end of the spectrum, it is easy to conclude therefore that a child might be prohibited from playing road hockey on a street if it interferes with vehicular traffic. Because this activity could be unlawful, it might well be captured by

section 2 of the CIDA . [ 38 ] At the other end of the spectrum, it is not difficult to conceive of a situation where a spontaneous demonstration or parade might be captured by the CIDA . As such, the Plaintiffs’ assertion that they are prevented from leafleting and picketing is not unreasonable. It is very difficult to determine the circumstances in which an individual might unlawfully be on essential infrastructure. [ 39 ] Does entering a sidewalk while disregarding the provisions of a collective agreement and engaging in an illegal “wildcat strike” engage the provisions of the CIDA ?

While the Plaintiffs have not been charged with an offence under the CIDA , this type of conduct could theoretically be captured by the CIDA . Certainly, there is nothing in the CIDA to indicate that this conduct would not be captured. It is therefore possible for a Court to consider a reasonably foreseeable situation where the CIDA might apply. I find that the issues raised in the claim are justiciable. Do the Plaintiffs have a real stake or a genuine interest in the outcome? [ 40 ] The Defendant does not challenge the Plaintiffs’ genuine interest in the outcome of this litigation.

The Plaintiffs are engaged with the issues and have a genuine interest in the issues that they have advanced: see Downtown Eastside SCC at para 43 . Is the proposed suit a reasonable and effective means to bring the case to court? [ 41 ] This factor must be assessed in the context of the “flexible, discretionary and purposive approach to public interest standing:” Downtown Eastside SCC at para 44 .

It requires the Court to consider: ...whether the proposed action is an economical use of judicial resources, whether the issues are presented in a context suitable for judicial determination in an adversarial setting and whether permitting the proposed action to go forward will serve the purpose of upholding the principle of legality: Downtown Eastside SCC at para 50 . [ 42 ] In Downtown Eastside SCC at para 51 , the Supreme Court of Canada provided a non-exhaustive list of factors that Courts can consider in assessing this factor.

These include: ...the plaintiff’s capacity to bring the claim; ...whether the issue will be presented in a sufficiently concrete and well-developed factual setting. ...whether the case is of public interest in the sense that it transcends the interests of those most directly affected by the challenged law... ...whether there are realistic alternative means which would favour a more efficient and effective use of judicial resources...

The potential impact of the proceedings on the rights of others who are equally or more directly affected... whether the failure of a diffuse challenge could prejudice subsequent challenges to the impugned rules by parties with specific and factually established complaints. [ 43 ] There is no doubt that the Plaintiffs have the capacity to bring the claim and that there is a public interest in having a Court consider the constitutionality of the CIDA .

Further, while others could bring this claim, this is not determinative and “should be considered in light of practical realities: Downtown Eastside SCC at para 67 . While a person that is charged under the CIDA could mount a constitutional challenge, it is not necessarily the case that he or she would challenge the CIDA in the comprehensive way that is proposed in this case. [ 44 ] This claim “provides an opportunity to assess through the constitutional lens the overall effect of the scheme”: Downtown Eastside SCC at para 73 .

Further, there is no basis upon which to conclude that these proceedings might prejudice subsequent challenges to the legislation by those that are charged under the CIDA . [ 45 ] Consideration of the third factor turns largely on whether a suitable hypothetical factual scenario exists.

The Plaintiffs allege the following in support of their claim: • The CIDA effectively prohibits public demonstrations including leafleting and picketing; • The CIDA effectively prohibits associational activities on all “essential infrastructure”; • The CIDA will have a chilling effect on legitimate public demonstration; • The CIDA creates an environment where unions are unable to put forward their collective bargaining positions to the public; • The CIDA creates an environment where unions are unable to exert pressure on employers during collective bargaining; and • The CIDA undermines the ability of AUPE to perform its functions as a bargaining agent. [ 46 ] Do the provisions of the CIDA prevent lawful demonstrations or associational activities on roadways, sidewalks and ditches?

I

am unable to answer this question without a more fulsome understanding of what is meant by “without lawful right” a term that is notdefined in the CIDA. While the Plaintiffs have not been charged under the CIDA, leafleting and picketing activities might well becaptured if the Plaintiffs enter a road or sidewalk without a lawful right to do so. As stated above, it is not hard to come up withhypothetical factual scenarios within which the CIDA can be assessed. I am satisfied that a Court is capable of proposing a suitablehypothetical fact situation in which to adjudicate this claim.

Conclusions regarding public interest standing [47] I am satisfied that the Plaintiffs have public interest standing. This claim is justiciable, the Plaintiffs have a genuine interest inits outcome, and the proposed suit is a reasonable and effective means of bringing this case to court. Do the pleadings disclose a reasonable claim? [48] The pleadings disclose a reasonable claim that is justiciable. The Plaintiffs allege that the CIDA infringes their Charter-protected freedoms of expression, association and assembly.

They also allege that the CIDA infringes their right to life, liberty andsecurity of the person because it imposes jail time for an offence under the CIDA and it restricts the ability of individuals to move freely.They assert that the Charter infringements under sections 2 and 7 of the Charter are equally breaches of sections 1(a), (d), and (

e) of theAlberta Bill of Rights, RSA 2000, c A-14. [49] For the reasons already stated, it is possible for a Court to formulate a reasonable hypothetical scenario within which to assessthe constitutionality of the CIDA. The protections contained in

section 2 of the Charter allow people to engage in peacefuldemonstrations protests and picketing. It is generally accepted that lawful demonstrations are permitted on public streets. “The interestsof free speech have the greatest weight on a public street because our streets constitute a forum of last resort for citizens not having readyaccess to other modes of communication:” Ontario (Attorney General) v Dieleman (1994), (ON SC), 20 OR (3d)229, 1994 CarswellOnt 151 at para 668 (Gen Div). [50] However, public streets are “essential infrastructure” pursuant to the provisions of the CIDA.

Although the CIDA onlyprohibits activities on streets where a person enters without lawful right, justification or excuse, it is difficult to determine what specificconduct might be captured by the CIDA. There might well be circumstances in which a protest or demonstration is captured. [51] Similarly, with respect to the Plaintiffs’ claim that the CIDA violates

section 7 of the Charter, this claim can be assessedthrough the lens of a reasonable hypothetical. The Plaintiffs allege the deprivations of liberty are not in accordance with the principles offundamental justice in that it is vague, arbitrary, overly board, and grossly disproportionate. [52] The Defendant characterizes the Plaintiffs’ claim as an assertion the province cannot restrict the use of public places. Theyrely on the decision in R v SA, 2012 ABQB 311 (SA) to argue that the CIDA is not a violation of

section 7 of the Charter. SA dealt witha challenge to the Trespass to Premises Act. The Court in that case found that the Trespass to Premises Act is not overly broad. TheDefendant argues that that the reasoning in that case applies with equal force to this case. [53] However, the provisions of the Trespass to Premises Act are not the same as the CIDA. Whereas the Trespass to Premises Actcontains a notice provision, the CIDA does not. Section 2(1) of the Trespass to Premises Act provides that a person shall not “trespass onpremises with respect to which that person has had notice not to trespass”.

The CIDA contains no similar provision. The absence of anotice provision is potentially significant and could enable a Court to come to a different conclusion regarding the nature of the CIDAand whether it is overly broad. [54] The Defendant claims that the purpose of the CIDA is to protect critical infrastructure. Certainly, if one considers the CIDA inthe context of protecting a gas plant or a public utility, there appears to be a rational connection between the objectives of the Act and thelimits imposed.

However, if the purpose of the CIDA is to protect critical infrastructure, it is more difficult to conclude that there is arational connection in the context of protecting a sidewalk or a ditch. What is the government seeking to protect that cannot be dealt withthrough the provisions of the TSA, a municipal bylaw, or through trespass legislation?

If I accept the assertions in the claim as true, it isevident that the Plaintiff’s claim is justiciable. [55] Finally, the Plaintiffs allege that the CIDA, in pith and substance relates to matters under the Federal heads of power, inparticular, the criminal law power under section 91(27) of the Constitution Act, 1867 and inter-provincial pipelines under section92(10)(

a) of the Constitution Act, 1867. It is not necessary for me to assess the merits of the jurisdictional question at this preliminarystage of the proceedings and I decline to do so. [56] I am satisfied that some aspects of the Plaintiffs’ claim raise a serious issue of the validity of the CIDA. It is not plain andobvious that the Plaintiffs’ claim will fail. Conclusion [57] The Defendants application to strike the Plaintiffs’ claim pursuant to Rule 3.68 is dismissed. [58] The Plaintiffs are entitled to costs of this application.

If the parties are not able to agree on the quantum of costs, they are tocontact my assistant within thirty days to arrange a time and manner in which that issue may be addressed. Heard on the 19th day of January, 2021.

Dated at the City of Edmonton, Alberta this 1 st day of June 2021. S. Leonard J.C.Q.B.A. Appearances: Patrick Nugent and Holly McEwan for the Plaintiffs/Respondents David Kamal and Leah McDaniel for the Defendant/Applicant _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Justice S. Leonard _______________________________________________________ The Style of Cause was corrected – Alberta Union of Provincial Employees.