B.A. (Alta.), LL.B. (Dal.), LL.M. (Col.)
Associate Professor, University of Calgary.
Member of the Alberta Bar.
Professor Watson Hamilton was called to the Alberta Bar in 1979 and practiced law in Wetaskiwin, Alberta until 1991. She was also a member of the Alberta Farm Debt Review Board from 1986 to 1991 and mediated disputes between insolvent farmers and their creditors.
After attending Columbia Law School in New York City in 1991/92 for her LL.M., Professor Watson Hamilton began teaching in the Faculty of Law at the University of Calgary in the fall of 1992.
Professor Watson Hamilton has taught the following subjects: commercial transactions, personal property security, banking, bills of exchange, sale of goods, dispute resolution, legal profession and ethics, legal process, legal communication, legal research, legal theory, feminist legal theory, and property law. Her research interests are in the areas of dispute resolution, legal theory, legal reasoning, and negotiable instruments.
There are few written decisions on the rights, liberties, powers and immunities of custodians appointed by the court to wind up or manage another lawyer’s practice pursuant to the Legal Profession Act, R.S.A. 2000, c. L 8, section 95. Polis v. Edwards, 2010 ABCA 59 adds to that small body of law, although its ability to do so was limited by the fact the appellants were self-represented - and apparently not very well self-represented at that. The Court of Appeal notes (at para. 4) that there were at least 23 different issues or grounds of appeal set out in the appellants’ joint factum and, although there might have been more, they were incomprehensible in law. Nevertheless, one legal question of interest to more than the parties was squarely before the Court of Appeal and that was the question of whether a custodian is entitled to tax the accounts of the member of the Law Society of Alberta (LSA) whose legal business they were appointed to manage or wind up. That question was, not surprisingly, answered in the affirmative.
This is a well-researched and clearly written decision by Justice Keith Yamauchi on an unresolved issue in insurance law. The question is whether relief from forfeiture is available when a life insurance policy lapses for non-payment of premiums. Since 1994, the usual approach of the courts confronted by this question has been to merely assume relief from forfeiture was available and decide on the easier basis that, even if it was available, it was not appropriate to grant it on the facts of the case before them. In this decision, however, Justice Yamauchi decided the legal point and determined that relief from forfeiture was not available. This decision has several points of interest from a property law perspective, which is the perspective I am adopting for these comments. The aspects of this decision that interest me the most are two. The first is the perceived tension between statutorily regulated life insurance contracts and the body of law known as equity, also known as the classic tension between certainty and justice in the individual case. The second is the sharp line drawn, obliterated, and then re-drawn between property and contract.
A recent decision by Chief Justice Neil C. Wittmann resolves two outstanding issues with respect to the summary judgment exception to stays of court proceedings that is found in section 7(2)(e) of the Arbitration Act, R.S.A. 2000, c. A-43. The first question was whether the exception was available in the absence of a motion for summary judgment contemporaneous with the stay application. The second was that of the appropriate test for determining if the dispute was a proper one for summary judgment. The Chief Justice’s answers to these two issues nicely balances public policy in favour of enforcing arbitration agreements with public policy in favour of resolving disputes in the most just and expeditious manner possible. His answer to the first question increases the circumstances under which the summary judgment exception can be considered by a court. His answer to the second proposes a tough standard to meet, thus narrowing the basis on which a court should exercise its discretion to refuse a stay.
This is the first case to consider the Animal Keepers Act, S.A. 2005, c. A-40.5, a piece of legislation which came into force in November of 2005. It replaced a 101-year-old statute, the Livery Stable Keepers Act, R.S.A. 2000, c.L-14, which was originally enacted in 1884 as an ordinance of the North-West Territories and applied to the area that would become Alberta. According to the Alberta Ministry of Agriculture and Rural Development, the Animal Keepers Act “provides a person who boards or cares for an animal a means of collecting outstanding bills owed by the owner of such animals with priority over all other liens, bills of sales, etc. without the use of costly, complicated legal processes.” The new Act seems to live up to this description. While extensively used by the cattle industry and other keepers of livestock, neither this Act nor its predecessor have been the subject of much judicial consideration. Those rare disputes that have been taken to court tend to involve issues of priority among creditors, as does this case.
R. v. Kapp, 2008 SCC 41 is my nominee for the most significant case of the Aughts decade in the equality rights area. Kapp was destined to be a landmark case, if only because it involved the first direct challenge on the enumerated ground of race under the Charter’s equality guarantee that was heard by the Supreme Court of Canada. However, because the Court used Kapp as a vehicle to substantially and substantively revise its approach to section 15 claims, the decision is even more significant.
If the recommendations in the October 2009 Alberta Law Reform Institute (ALRI) Final Report No. 97, entitled “Contracts for the Sale and Purchase of Land: Purchasers’ Remedies,” are implemented, cases like Covlin v. Minhas will disappear from Alberta court dockets. ALRI recommended that the law governing remedies for breaches of such contracts be restored to what it was prior to the 1996 Supreme Court of Canada decision in Semelhago v. Paramadevan, [1996] 2 S.C.R. 415. The only issue in Covlin v. Minhas was whether the plaintiff, Verna Covlin, who was the purchaser under a contract for the sale and purchase of land, was entitled to the remedy of specific performance. Prior to Semelhago, specific performance for breach of a real estate contract was granted as a matter of course. Post-Semelhago, however, Covlin had to prove the land she offered to purchase was “unique” in the sense that no substitute is available for it. ALRI’s Final Report No. 97 recommends that legislation be enacted to provide that any land which is the subject of a contract for sale and purchase is conclusively deemed to be unique at all material times.
In 1279017 Alberta Ltd. v. 1257613 Alberta Ltd., the Alberta Court of Appeal split 2:1 on the question of whether 1257613 Alberta Ltd. had an interest in land that would support the caveat and certificate of lis pendens that it had filed against an 80 acre parcel of land registered in the name of 1279017 Alberta Ltd. The vendor’s interest in land was said to be an unpaid vendor’s lien that arose as a result of a real estate purchase contract between 1257613 and 1279017. Had the dissenting opinion of Mr. Justice J.D. Bruce McDonald prevailed in this case, virtually every vendor of land, paid in full or not, would be an unpaid vendor and entitled to caveat another’s land. Fortunately, the majority position of Madam Justice Constance Hunt and Mr. Justice Keith Ritter won through. The unpaid vendor’s lien only continued until payment by the purchaser.
Lamb v. AlanRidge Homes Ltd. is an interesting case, in part because the Alberta Court of Appeal calls upon the Alberta legislature to review and amend section 7 of the Arbitration Act, R.S.A. 2000, c. A-43, a section the court criticizes (at para. 16) as “far from a model of clarity.” Calls for legislative action by the courts are not that common. The case is also interesting because section 7 is perhaps the provision most often used by the courts, as it is the provision that requires a court to stay a court action when asked to do so by a party to an agreement to arbitrate.It is, however, a section rarely considered by the Court of Appeal because subsection 7(6) provides that there is no appeal from an order of the Court of Queens’ Bench staying an action or refusing a stay under section 7. The case is also interesting because Alberta’s Arbitration Act is based upon the Uniform Arbitration Actwhich was prepared by the Uniform Law Conference of Canada in 1989, as were the arbitration statutes in six other provinces. Section 7 was carefully drafted and debated by the Commissioners. It seems somewhat odd to think that, twenty years later, there are basic problems with interpreting and applying that provision.
There are very few written decisions on the powers, rights and duties of custodians appointed by the Court of Queen’s Bench at the request of the Law Society of Alberta (LSA) pursuant to the Legal Profession Act, R.S.A. 2000, c. L 8, section 95. Unfortunately, this decision does not add to that small body of precedents. Although the question of whether a custodian is entitled to tax the accounts of the member of the LSA whose legal business they were appointed to manage or wind up was squarely before the court, Madam Justice Jo’Anne Strekaf declined to answer the question, deciding it instead on a more factual basis. This is to be regretted, not only because there is so little law in the area, but also because, in answering these types of questions, the courts have tended to rely on interesting analogies with others in roles that require them to stand in the shoes of another person and because the answer to the question about taxation seems like an easy one. Read the rest of this entry »
The perception within the justice system is that self-represented litigants have below average literacy and comprehension levels: see the Alberta Self-Represented Litigants Mapping Project, Final Report, January 12, 2007 at 10. However, according to recent research, members of any social group may become self-represented litigants and between 60 and 65% had at least some post secondary education. One group of self-represented litigants is the group who could access representation but prefer to self-represent (Final Report at 15). Although a small percentage of the self-represented litigants (5% or less), the group includes those often referred to as “vexatious litigants” and judges report that this group of self-represented litigants are particularly time consuming and difficult to deal with (Final Report at 16). This appears to be an apt summary of the male respondent in this case, Fred Zinkhofer.
