Cases Considered: Leoppky v. Meston, 2008 ABQB 45, Wasylyshyn v. Wasylyshyn, 2008 ABQB 39

PDF Version: Two cases concerning the Statute of Frauds (1677, U.K.)

A statute enacted over 350 years ago by a Parliament sitting in London, England was the basis of two decisions of the Alberta Court of Queen’s Bench handed down the week of January 21, 2008. The decision of Madam Justice D.C. Read in Leoppky v. Meston, 2008 ABQB 45, was released January 17. The decision of Mr. Justice E.A. Marshall in Wasylyshyn v. Wasylyshyn, 2008 ABQB 39, was released January 18.

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Cases Considered: Canada (Attorney General) v. Chak, 2008 ABQB 103

PDF Version: The Standard of Review on Appeals of Masters’ Decisions to the Court of Queen’s Bench

Canada (Attorney General) v. Chak appears to be the first written decision by our former colleague, Keith Yamauchi, who was appointed to the Court of Queen’s Bench of Alberta on December 14, 2007. That fact alone might make it worthy of a comment here. However, within his decision concerning a rather mundane student loan collection matter, the Honourable Mr. Justice K.D. Yamauchi also raises one interesting point.

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Cases Considered: Airport Self Storage and R.V. Centre Ltd. v. Leduc (City), 2008 ABQB 12

PDF Version: City Amends Land Use Bylaw in Bad Faith

Although municipal councils in Alberta are generally entitled to amend land use bylaws by following procedures set out in the Municipal Government Act (the “MGA”), R.S.A. 2000, c. M-26, this decision tells us that sometimes a council will have to go further in order to ensure procedural fairness. There are circumstances where personalized written notice of a hearing to consider a proposed land use amendment will be required. As always, the content of the duty of fairness varies according to the particular facts of each case. The facts here are lengthy, but they are critical.

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Cases Considered: Canada Safeway Limited v. Shineton, 2007 ABQB 773

PDF Version: Canada Safeway’s Charter Right to Freedom of Expression Not Violated by Privacy Legislation When it Reported Co-op Employee’s Unique Shopping Methods

In a judicial review of a decision of Alberta’s Privacy Commissioner, Canada Safeway put forward a very interesting (yet ultimately unsuccessful) argument as a defence to a complaint that it breached a person’s privacy; Safeway argued that s. 7 (1)(d) of the Personal Information Protection Act (“PIPA”), S.A. 2003, c. P-6.5 violated its right to freedom of expression under the Canadian Charter of Rights and Freedoms (“Charter”) s. 2(b).

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Cases Considered: Opal v. White, 2008 ABCA 25

PDF Version: Security for Costs on Appeals by Impecunious and Vexatious Litigants

The very short judgment of Mr. Justice Frans Slatter in Opal v. White is an unlikely candidate for a comment. It is barely more than a page - a scant seven paragraphs - and it cites neither rules nor precedents in deciding three applications for security for costs. Nevertheless, the judgment’s treatment of the issue of security for costs on an appeal of an order declaring the appellant to be a vexatious litigant is noteworthy.

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Cases Considered: Cargill Gas Marketing Ltd. v. Alberta Northeast Gas Limited, 2008 ABQB 59

PDF Version: Calculating the Price of Gas: Wet or Dry?

When gas is sold on the basis of its thermal or heating value it is necessary to provide a formula for converting delivered volumes (Mcf) into British thermal units or equivalent. And it makes a difference whether the formula uses an assumption of wet gas or dry gas. Wet gas will have a lower heating content than dry. But what happens if the formula prescribes the use of wet gas but in fact actual deliveries under the contract have always been dry gas? This was the issue before Justice T.F. McMahon in the present case.

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Cases Considered: Felske (Estate of) v. Donszelmann, 2007 ABQB 682

PDF Version: Severing a Joint Tenancy Without Adequate Notice to the Other Joint Tenant

This is one of those estates cases where the facts cry out for a particular result. It is also one of those cases where the law provided the right result. This was a fight between the Public Trustee of Alberta, on behalf of an 80 year old mentally incompetent widower who, for 42 years, owned a farm with his wife as joint tenants, and a neighbour who, while the wife lay dying in hospital, had his lawyer prepare a will and transfer of land giving him the wife’s interest in the farm. There is no question that Mr. Justice D.A. Sirrs decided correctly when he chose the Public Trustee over the neighbour on these facts. (more…)

Cases Considered: Re Foote (Estate Of), 2007 ABQB 654

Keywords: conflict of laws, jurisdiction, estates, poison pill clause, family relief

PDF Version: A Fight Over Estate Jurisdiction

Introduction

Conflicts scholars tend to be fascinated with choice of law problems and the methods for their resolution. Most theoretical work has been directed towards the choice of law question and the basis on which foreign law is applied by local courts. In his classic Conflict of Laws (2nd ed. 1954), Falconbridge spoke barely a word on issues of jurisdiction. Indeed, he stated that the “scope of the subject of the conflict of laws . . . does not cover the topic of jurisdiction of courts and the related topic of the enforcement of foreign judgments” (p. 6).

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