Why Danielle Smith's government is not withstanding many court challenges

It’s been hard to keep track of how many legal challenges and active court proceedings the United Conservative government has tried to quash or pre-emptively block in the last six weeks, but let’s try to tally:

One could argue there’s an eighth case the UCP government’s legislation would nullify if passed — one filed by the United Conservative Party itself. That would be the governing party’s lawsuit against two of its former MLAs who had applied with Elections Alberta to rebrand the Alberta Party as the Progressive Conservative Party.

Rather than his party trying to persuade a judge or jury that taking the old PC name was illegal under current laws, Justice Minister Mickey Amery drafted a new law to make it illegal to adopt that party name, or for any other party to use the word “conservative” in its moniker.

For all the talk of managing hearing backlogs in various jurisdictions, wielding legislation like this is technically one way to reduce court caseloads — it’s just unlikely that anybody has ever proposed this unorthodox means to that end. 

But Premier Danielle Smith’s government has shown it’s willing to go farther and to use more tools to achieve its aims than others.

The notwithstanding clause, in its four decades of existence, has never been used as frequently by any government outside of Quebec.

There are some instances of government laws banning lawsuits — the Ontario government, for example, did so last year for cyclists injured on bike lanes the province removes. But that was to pre-empt wholly hypothetical cases; Alberta public sector pensions had already received a Court of King’s Bench ruling that the province and Alberta Investment Management Co. could be held liable for losses if ongoing arbitration failed.

Finance Minister Nate Horner justified that specific lawsuit ban in the name of protecting taxpayers from covering those losses. Safeguarding taxpayers from costs also emerged this week as a key rationale for imposing a four-year deal on Alberta teachers rather than risk higher pay increases through an arbitrated settlement.

The given reasons for the triple application of the notwithstanding clause in Alberta’s transgender laws was to protect children, athletes and parental rights — the Smith government’s same arguments for applying the laws in the first place, but with the added spectre of legal processes forestalling those protections.

In creating a list of words in party names that could not be copied by another party, Amery insisted “this is not a partisan issue.” Rather, it was because all parties “deserve to have their goodwill protected,” Amery said — even though this new ban is specifically backdated to early July, right before independent MLA Peter Guthrie spearheaded the Progressive Conservative rebrand application.

Guthrie didn’t see this as non-partisan, but a bid to “legislate away their competition,” he posted online.

“Alberta: Strong and Free — just not for anyone challenging the UCP,” he added, in a riff on the party’s slogan (and the new licence plate motto the Smith government adopted this fall).

Another denunciation of the Alberta government’s legal manoeuvres came this week from a higher office — Court of King’s Bench Justice Colin Feasby.

He did not take kindly to legislation to discontinue the hearing he was just wrapping up, into the constitutionality of the Alberta Prosperity Project’s petition to force a separatism referendum.