Case Considered: Herman v. Boardwalk Rental Communities, 2011 ABQB 394 

Introduction

Questions often arise about whether a tenant can refuse to pay rent because of something the landlord has or has not done, or because of the condition of the premises. The typical short answer is “no.”.” Why? Because, generally-speaking, “rent is sacrosanct.” And so it was in the recent case of Herman v. Boardwalk Rental Communities, 2011 ABQB 394 (Herman), a case considering the situation of tenants in Alberta under the Residential Tenancies Act, RSA 2000, c 17.1 (RTA). Even in the face of allegations of dog/cat urine and fecal matter leaking onto/into his apartment, the Court held the tenant could not unilaterally withhold rent. The Court also held that procedure can be sacrosanct in landlord/tenant matters. The tenant’s failure to meet the procedural requirements for bringing his appeal resulted in it being dismissed, with costs being awarded to the landlord.

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PDF version: The Issues and Challenges with Public Participation in Energy and Natural Resources Development in Alberta 

Introduction

Public participation is a key feature of energy and natural resources development in Alberta. The provincial government often expresses its desire for participation by Albertans in its policy making and planning processes. At the project approval stage, project proponents regularly conduct public consultation programs and regulatory boards hold public hearings and award costs to interveners.

Yet there are signs that public participation is not all that it seems in the Alberta energy and resources development context. Albertans seem frustrated and dissatisfied with the current level or type of public participation available: see, for example, Dan Woynillowicz & Steve Kennett, “Passage of Bill 46 Perpetuates EUB Shortcomings” (2007). Applications for leave to appeal decisions of energy tribunals on issues of public participation and procedural fairness seem to be on the rise: see, for example, Prince v. Alberta (Energy Resources Conservation Board), 2010 ABCA 214, Cheyne v. Alberta (Utilities Commission), 2009 ABCA 94, and Kelly v. Alberta (Energy and Utilities Board), 2008 ABCA 52.

The Canadian Institute of Resources Law (CIRL) at the University of Calgary is currently engaged in a research project, funded by the Alberta Law Foundation, which is focusing on legal and policy questions in relation to public participation in the Alberta energy and natural resources development context. To obtain input on the issues and challenges facing public participation in this context, CIRL held a Round Table discussion at the University of Calgary on April 16, 2010. There were 20 participants in attendance, all of whom have experience with public participation issues in the energy and natural resources development context. There was representation from landowners, regulators, industry, the regulatory bar, environmental and natural resources organizations, multi-stakeholder consultation groups, policy and energy consultants, and academia.

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PDF version: Still More Questions about Standing before the ERCB 

Case Considered: Prince v. Alberta (Energy Resources Conservation Board), 2010 ABCA 214

Leave to appeal applications from standing decisions of the Energy Resources Conservation Board (ERCB) continue to be heard almost, it seems, regularly. Some cases raise questions about the first part of the standing test, whether a “right” has been established that may be affected by a proposed energy project. Others focus on the second part of the test, whether possible direct and adverse effects have been demonstrated. Sometimes the Court of Appeal grants leave; sometimes it does not. Prince v. Alberta (ERCB) is another case of leave denied. It is also yet another case that raises important questions about the proper interpretation of the test for standing. Isn’t it time for legislative direction?

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Case Considered: Fleet Estate v. Davies, 2009 ABCA 376 

PDF version: Clear and Unequivocal Evidence Required to Prove a Gift of Land

Cases involving gifts of land are not frequently before the Alberta Court of Appeal. This may be because such gifts are uncommon, or it may be because such gifts are difficult to prove. In the recent case of Fleet Estate v. Davies, 2009 ABCA 376, the Court of Appeal reminds us that clear and unequivocal evidence must always be presented to make out a case for a gift of land. Having been allowed to live in the property for a number of years without paying any rent is not sufficient. Proving that a gift of land has been perfected requires more. The Court of Appeal says that evidence of delivery of a transfer of land or a duplicate certificate of title (where those are still available) will do, but it is doubtful that anything less will.

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Cases Considered: Frisgo Development Inc. v. Brower, 2009 ABQB 463

PDF Version: Caveator Beware: Damages for Wrongfully Filing a Caveat Can Be Substantial

There are very few cases dealing with damages for wrongfully filing a caveat under Alberta’s land titles system. While the facts of this case are peculiar, the award of $140,000 sends a clear message. All caveators should ensure that their caveat protects a valid interest in land when it is filed and at all times thereafter. This is particularly so when parties are engaged in negotiations which may have the effect of altering the nature of the initial property interest.

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Case considered: Felske Estate v. Donszelmann, 2009 ABCA 209

PDF version: Court of Appeal Agrees that Severing a Joint Tenancy Requires More than Intention

In a previous post, I concluded that the Court of Queen’s Bench correctly dismissed an application brought by a neighbor of Mrs. Felske for a declaration that he was entitled to half of her farm upon her death. The Court of Appeal has agreed and has dismissed the neighbor’s appeal.

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Case Considered: Kelly v. Alberta (Energy and Utilities Board), 2009 ABCA 161

PDF version: Charter and Oil and Gas Issues to Await Another Day: A Disappointing End to the Kelly Appeal?

In an earlier post, I suggested that a recent development in the Kelly appeal would likely lead the Court of Appeal to declare the appeal moot (see “An Important Development in the Kelly Appeal“). I also suggested that, although this would not be a surprising decision, it would amount to a disappointing end for an appeal which held out promises of elucidating important legal issues. The Court of Appeal has indeed dismissed the Kelly appeal as moot. Although this result is certainly disappointing from a legal point of view, it is perhaps less so from a societal and public participation point of view.

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Cases Considered: Kelly v. Alberta (Energy and Utilities Board), 2008 ABCA 410

PDF Version:  An Important Development in the Kelly Appeal

Last March I posted a blog about a Court of Appeal decision which granted a group of landowners (Kelly et al.) leave to appeal a decision of Alberta’s Energy and Utilities Board (now the Energy Resources Conservation Board). See “What does the Canadian Charter of Rights and Freedoms have to do with Oil and Gas Development in Alberta?”. The grounds for leave in the Kelly appeal indicated that the Court of Appeal might have to address novel and difficult questions in relation to the possible application of section 7 of the Charter in the context of oil and gas development in Alberta. A recent development in the case, however, leaves me wondering whether the merits of the appeal will ultimately be heard or not.

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Cases Considered: Merkl v. Wallburger, 2008 ABPC 264

PDF Version:  Recovering increased rent from a residential tenant after serving a termination notice

In 2007, amendments were made to Alberta’s residential tenancy legislation to give tenants some protection from the challenges of rent increases and the difficulties of finding affordable rental accommodations in a province experiencing an economic boom. Many critics said the amendments did not go far enough. This recent decision of Provincial Court Judge Derek G. Redman highlights the piecemeal nature of these amendments, and the fact that, despite the amendments, Alberta’s Residential Tenancies Act, S.A. 2004, c. 17.1 (RTA) remains a landlord-friendly statute.

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Cases Considered: Provident Energy Ltd. v. Alberta (Utilities Commission), 2008 ABCA 316

PDF Version:  Obtaining Leave to Intervene in a Leave to Appeal Application

This decision deals with a unique and interesting point of civil procedure. It answers the following question: what is the test for obtaining leave to intervene in a leave to appeal application before Alberta’s Court of Appeal?

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