Month: November 2008 Page 1 of 3

Courts send message to legislature that the Child, Youth and Family Enhancement Act requires amendment

On November 24, 2008

Cases considered: Alberta (Child, Youth and Family Enhancement, Director) v. Q.F., 2008 ABQB
PDF Version: Courts send message to legislature that the Child, Youth and Family Enhancement Act requires amendment

It is always interesting to see a court sending a message to the government about the difficulties presented by a particular piece of legislation. In constitutional law, the dialogue metaphor has been used (and some would say overused) to describe this process of back and forth between the courts and legislatures (see Peter Hogg and Alison Bushell, “The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights Isn’t Such a Bad Thing After All)” (1997) 35 Osgoode Hall Law Journal 75). Outside the constitutional law context, however, legislatures are not forced to listen and respond, as the remedial implications of striking down a piece of legislation, or severing certain sections as unconstitutional, are absent. Courts might thus need to repeat themselves before the legislature takes notice of non-constitutional problems with a statute, as we see in a recent child welfare case in Alberta.

Is there really any question about the test for part performance in Alberta

By Jonnette Watson Hamilton

On November 21, 2008

In Property

Cases considered: G 400 Holdings Ltd. v. Yeoman Development Company Limited, 2008 ABQB 667

PDF Version: Is there really any question about the test for part performance in Alberta

I apparently spoke too soon. In March 2008, I noted that the Alberta Court of Appeal decision in Booth v. Knibb Developments Ltd., 2002 ABCA 180 had settled any doubts about which test for part performance applies in Alberta: see “The Doctrine of Part Performance: Still Strict After All These Years”. There are two tests for determining what acts of part performance are sufficient to allow enforcement of an oral agreement concerning land, both originally formulated by the House of Lords. The older and stricter test was set out in Maddison v. Alderson (1883), 8 App. Ca. 467 at 478 (H.L.); it requires that the acts relied upon by the claimant as part performance “be unequivocally, and in their own nature, referable to some such agreement as that alleged.” That test was relaxed considerably in England in 1976, with the decision in Steadman v. Steadman, [1976] A.C. 536. In Steadman, the House of Lords held that the acts of part performance need refer only on the balance of probabilities to some contract to which the claimant was a party. Although a number of Alberta courts applied the more relaxed test from Steadman in the 1980s, in 2002 the Alberta Court of Appeal unequivocally adopted the traditional, stricter test from Maddison v. Alderson. That was the end of the influence of Steadman in Alberta – until the October 30, 2008 decision of Madam Justice Barbara Romaine in G 400 Holdings Ltd. v. Yeoman Development Company Limited.

Supreme Court denies leave to appeal to parents in disinterment case

By Jennifer Koshan

On November 20, 2008

In Supreme Court of Canada

Cases Considered: Johnston v. Alberta (Vital Statistics), 2008 ABCA 188, leave to appeal denied by S.C.C.

PDF Version: Supreme Court denies leave to appeal to parents in disinterment case

On November 13, 2008, Justices Louis LeBel, Marie Deschamps and Louise Charron of the Supreme Court of Canada denied leave to appeal to Grace Johnston in a case involving her right to have a say in the disinterment of her son’s remains. No reasons were provided for the Supreme Court’s decision, although it is interesting to note that no costs were awarded against Grace Johnston for pursuing the leave to appeal application. As noted in previous posts on this case, (https://ablawg.ca/2008/01/12/leave-to-intervene-denied-to-metis-nation-in-case-involving-disinterment-of-rcmp/#more-44 and https://ablawg.ca/2008/06/07/disinterment-of-rcmp-officer-may-proceed-despite-parents%E2%80%99-wishes/#more-153), the Alberta Courts upheld the decision of the Director of Vital Statistics under the Cemeteries Act, R.S.A. 2000, c. C-3, to permit disinterment of Constable Leo Johnston’s remains on the application of his widow Kelly Barsness. Constable Johnston was one of four RCMP officers killed in the line of duty near Mayerthorpe, Alberta in March 2005, and was originally buried in his home town of Lac La Biche. Ms. Barsness’s wish to have Constable Johnston’s remains moved to the special RCMP Cemetery in Saskatchewan can now proceed, in spite of the objections of Grace Johnston, her husband Ronald, and members of the Métis community who were denied any standing in the case.

Recent Developments in the Black Bear Crossing Dispute

By Jennifer Koshan

On November 17, 2008

In Aboriginal, Constitutional, Human Rights, Supreme Court of Canada

Cases considered: Tsuu T’ina Nation v. Bearchief, 2008 CanLII 55966 (S.C.C.)

PDF Version: Recent Developments in the Black Bear Crossing Dispute

As noted in my previous post on Tsuu T’ina Nation v. Bearchief, the Tsuu T’ina Nation was effectively prevented from enforcing an eviction notice against residents of Black Bear Crossing (BBC) whose band membership was disputed, until such time as the membership of the residents was resolved. The Tsuu T’ina’s application for leave to appeal to the Supreme Court of Canada was denied by Chief Justice Beverley McLachlin and Justices Morris Fish and Marshall Rothstein on October 30, 2008 (with costs against the Tsuu T’ina Nation).

Can a Court of Queen’s Bench judgment that contains no law be considered law itself?

By Jonnette Watson Hamilton

On November 15, 2008

In Property

Cases Considered: B.H. v. E.J., 2008 ABQB 650

PDF Version: Can a Court of Queen’s Bench judgment that contains no law be considered law itself?

Title to a residential property in Edmonton was registered in the names of the plaintiff, B.H., and the defendant, E.J., as to each an undivided one-half interest as tenants in common. The property seemed to be up for sale and the question before the court was whether or not B.H. was entitled to any of the proceeds of sale. Her name was on the title, but did that mean B.H. had an interest in the Edmonton house which would entitle her to one-half of the sale proceeds? E.J. alleged that B.H.’s name was only placed on the title because she agreed to co-sign a mortgage for E.J. and that B.H. had no right to a portion of the sale proceeds. Mr. Justice James Langston agreed with the defendant, E.J., and ordered that all of the net proceeds of the sale of the property be paid to the defendant or, in the alternative, that the plaintiff transfer her undivided one-half interest to the defendant for $1.00. Remarkably, Justice Langston did so without referring to any legal authority whatsoever.