Cases Considered: Real Estate Council of Alberta v. Henderson, 2007 ABCA 303

Keywords: administrative law, real estate, regulation of professions

PDF Version: Standing to Seek Judicial Review or Simply a Matter of Legislative Drafting?

The Real Estate Council of Alberta (RECA), a self-regulatory organization established by section 3 of the Real Estate Act, R.S.A. 2000, c. R-5, administers the licensing of real estate agents, appraisers and mortgage brokers in Alberta and governs the competence and conduct of such industry members via authority granted by the Act. RECA is comprised of eleven (11) council members appointed by various industry associations, and one additional appointee selected by the Minister.

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Cases Considered: Signalta Resources Limited v. Dominion Exploration Canada Limited, 2007 ABQB 636

Keywords: oil and gas law, expert witnesses, unit agreements, limitations, damages

PDF Version: What Zones Were the Subject of a Unitization Agreement?

The question of what substances are the subject of a unitization has been before the courts on at least one other occasion in Prism Petroleum Ltd v. Omega Hydrocarbons Ltd, [1994] 6 WWR 585 (Alta. C.A.). The issue in that case involved a split petroleum and natural gas title. Signalta v. Dominion does not involve a split title in that sense. Rather the issue was whether the title that had been committed to a unitization agreement was confined to the Viking or whether it also included the Glauconite. Put in these terms the issue seems relatively simple but the paper trail was very complex. Combine a complex set of facts with competing expert opinions from well known legal (Ballem and Thackray) and land (O’Byrne) experts and the result is a very lengthy 74 page judgement from Justice A.G. Park in which he concluded that the Glauconite for the relevant tract was never included in the original unitization.

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Cases Considered:  Karaha Bodas Company, L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 2007 ABQB 616

Keywords: arbitration, international commercial arbitration, enforcement of foreign awards, moot case, costs

PDF Version: Moot Case Continues to Wind Its Way Through Alberta Courts

This October 2007 decision by Mr. Justice Robert A. Graesser is one very small part of a long and complex tale that is all too well known in international commercial arbitration circles. The parties’ dispute has been litigated extensively in several countries over the past nine years. With Mr. Justice Graesser’s decision, it will continue to be litigated in this province even though the parties and their dispute have no connection to Alberta and a decision in Alberta would have no effect on the rights of the parties, would not create a useful precedent, and would not put an end to the adversarial relationship between the parties. (more…)

Cases Considered: Flock v. Flock, 2007 ABCA 287, Flock v. Flock, 2007 ABQB 307

Keywords: arbitration, matrimonial property division, leave to appeal

PDF Version: Private Justice Delayed

In September 2007, Mr. Justice Peter Martin denied leave to appeal of a May 2007 decision by Madam Justice K.M. Horner setting aside an arbitrator’s award dividing matrimonial property. The couple embroiled in this dispute had married in 1982, separated in 1994 and divorced in 1999. The couple had a considerable amount of real property and thorny issues related to property owned prior to the marriage and the value of those properties that should be exempted from the matrimonial property regime. A 6-day arbitration hearing was held before one arbitrator, Alan Beattie, Q.,C., in Calgary in 2003 and he rendered an award 33 months later, in July 2006. Article IX of the arbitration agreement between the couple and Mr. Beattie required the arbitrator to communicate his award to the parties within 60 days of the end of the hearing. The past year of litigation has been devoted to the husband’s application to set aside the July 2006 award.

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Cases Considered: Botar v. Mainstreet Equity Corp., 2007 ABQB 608

PDF Version: A Tenant’s Right to Withhold Payment of Rent

This appeal illustrates how difficult it can be to evict a residential tenant who has not paid rent for the better part of a year. It also illustrates how well a self-represented litigant can do in the superior courts, the Alberta Court of Queen’s Bench in this case.

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Cases Considered: 581834 Alberta Ltd. v. Alberta (Gaming and Liquor Commission), 2007 ABCA 332, 581834 Alberta Ltd. v. Alberta (Gaming and Liquor Commission), 2006 ABQB 47

PDF Version: Sub-Tenant Woes When a Head Lease Disappears

This case illustrates the dangers for lawyers and their clients in changing the wording used in lawyers’ old precedents. Instead of using the standard formula of “by, from, or under” in a landlord’s covenant of quiet enjoyment, the innovative phrasing of “by, through, or under” was inserted. This allowed the lawyers for the tenant to make the first part of their argument in this appeal. It is cases such as this one that stymie the plain language movement in law.

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PDF Version: Alberta’s Royalty Review and the Law of Grandparenting

The Royalty Review Panel made it quite clear in its Report that existing projects should not be protected from the proposed changes. In other words it recommended in very strong terms that there should be “no grandparenting”. In recent days this position has been the subject of considerable comment and reaction. Some (e.g. Murray Edwards of Canadian Natural Resources) seem to suggest that the refusal to grandparent constitutes an interference with vested rights and have further suggested that, if implemented, the decision not to grandparent will be open to challenge in the courts. Deborah Yedlin, a columnist, offered comments on CBC Radio on September 26 which seemed to concur and suggested that the panel’s refusal to grandparent is a “non-starter” and “has to be taken off the table”. Others have suggested that this may be a matter on which the government might indeed seek to “pick and choose” i.e. to accept the panel’s recommendation on a go-forward basis but not to apply the recommendations to existing projects. And finally we are told that the American Embassy has been warning us that Alberta should not seek to change arrangements for existing projects.

In sum, the grandparenting issue is emerging as one of the critical issues in the debate on the implementation of the recommendations of the Review Panel. In this comment I propose to examine: (1) the reasons that the panel gave for not grandparenting, (2) the law on grandparenting, and (3) the (potentially) unique position of the Syncrude and Suncor projects.

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