Street v Mountford Applied to Decide: A Residential Tenancy Agreement or a Licence?

By: Jonnette Watson Hamilton

PDF Version: Street v Mountford Applied to Decide: A Residential Tenancy Agreement or a Licence?

Case Commented On: Singh v RJB Developments Inc., 2016 ABPC 305 (CanLII)

This Provincial Court decision by Judge Jerry LeGrandeur, Associate Chief Judge, is of interest primarily because he used the common law in order to determine whether the Residential Tenancies Act, SA 2004, c R-17.1 (RTA) applied to Jaspreet Singh’s occupation of a portion of a building owned by RJB Developments Inc (RJB). While this resort to the common law in this context is rarely seen, we can expect to encounter it more often, given the increasing variety in short- and long-term residential accommodations. The courts usually do rely on the common law in those few borderline cases, such as this one, where the question is whether the RTA applies, even though the statute appears to answer all questions about its scope. However, when resorting to the common law, the courts — including Judge LeGrandeur in this case — do not always indicate why they believe it is both necessary and possible to do so. This is unfortunate because the RTA is usually used by non-lawyers who often rely on explanations of the statute that are provided by Service Alberta (e.g., RTA Handbook and Quick Reference Guide) or non-profit organizations such as the Centre for Public Legal Education Alberta (e.g., Renting 101: A Guide to Renting in Alberta). None of those explanations indicate that landlords and tenants need to look outside the RTA to find out if it applies; they all simply paraphrase the statute. Continue reading

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Posted in Landlord/Tenant, Property, Provincial Court, Statutory Interpretation | Leave a comment

Supreme Court to Render Judgment in Ernst on Friday

PDF Version: Supreme Court to Render Judgment in Ernst on Friday

Case Commented On: Ernst v Alberta Energy Regulator, 2013 ABQB 537, aff’d 2014 ABCA 285, leave to appeal granted April 30, 2015 (SCC)

On Friday, January 13, 2017, the Supreme Court of Canada will deliver its long-awaited judgment in Jessica Ernst v. Alberta Energy Regulator. As Jessica Ernst notes on her blog, the appeal was heard on January 12, 2016, making it the only case from the 2016 spring session in which the Court has not yet rendered judgment.

The case involves the issue of whether a statutory immunity clause (in this case, s 43 of the Energy Resources Conservation Act, RSA 2000, c E-10) can bar a Charter claim for a remedy under s 24(1) of the Charter (in this case, a claim for damages for an alleged violation of Ernst’s freedom of expression by the respondent regulator). Earlier decisions in the case involved broader issues related to administrative law and negligence as against the regulator, the provincial government, and Encana for the contamination of Ms. Ernst’s groundwater allegedly caused by Encana’s hydraulic fracturing operations in the Rosebud area. ABlawg has posted several comments on this litigation, which are available here (from most recent to oldest):

Jennifer Koshan, Leave to Appeal granted in Ernst v Alberta Energy Regulator

Shaun Fluker, Ernst v Alberta Environment: The Gatekeeper Refuses to Strike or Grant Summary Judgment

Martin Olszynski, Regulatory Negligence Redux: Alberta Environment’s Motion to Strike in Fracking Litigation Denied

Jennifer Koshan, The Charter Issue(s) in Ernst: Awaiting Another Day

Shaun Fluker, Ernst v Alberta (Energy Resources Conservation Board): The Gatekeeper is Alive and Well

Martin Olszynski, Revisiting Regulatory Negligence: The Ernst Fracking Litigation

Watch for commentary on the forthcoming SCC decision on ABlawg.

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Posted in Constitutional, Supreme Court of Canada | Leave a comment

Board Cannot Ignore Injurious Affection Losses

By: Nigel Bankes

PDF Version: Board Cannot Ignore Injurious Affection Losses

Case Commented On: Koch v Altalink Management Ltd, 2016 ABQB 678 (CanLII)

This case involves WATL (the Western Alberta Transmission Line) and parcels of land owned by the Kochs that will be bisected by the line. The principal point of law involved relates to the injurious affection suffered by the lands retained by the Kochs (i.e. these are Koch lands which lie outside the area of the right of way acquired by Altalink). It is a standard principle of compensation law that such losses should be recoverable. However, in this case, Altalink, in an argument accepted by the majority of the Surface Rights Board panel hearing the case, took the position that the Kochs had bought the lands at a price that was already discounted from its original market value by the prospect of WATL being constructed. Accordingly, the Kochs had suffered no injurious affection losses and were therefore not entitled to any compensation under this head of damages. On this theory the party that had suffered the loss was the vendor to the Kochs and to compensate the Kochs for injurious affection would to award them a windfall. The minority would have awarded injurious affection damages of $125,780. The Kochs appealed. Continue reading

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Posted in Administrative Law, Energy, Property, Utility Regulation | Leave a comment

International Child Abduction: Safeguarding against Grave Risks of Harm in ‘Prompt Return’ Applications

By: Rudiger Tscherning

PDF Version: International Child Abduction: Safeguarding against Grave Risks of Harm in ‘Prompt Return’ Applications

Case Comment On: JP v TNP, 2016 ABQB 613 (CanLII)

Introduction

In an earlier post, I discuss in detail the objective and mechanism of the Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, 19 ILM 1501, to discourage the wrongful removal of a child from his or her habitual residence and the mechanism of ‘prompt return’ of the child to his or her habitual residence. In this post, I revisit the topic of international child abduction to discuss the decision of JP v TNP, 2016 ABQB 613 (CanLII) and the “grave risk” exception in Article 13(b) of the Convention. This exception can be invoked in ‘prompt return’ applications where a parent alleges that the child would be exposed to an “unreasonable and grave risk of physical and psychological harm” if the court ordered the child’s return to his or her habitual residence. In JP v TNP, the Court of Queen’s Bench of Alberta struck a fair balance between the competing interest of the child and the overall objective of discouraging international child abductions. Continue reading

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Posted in Conflict of Laws, Family | Leave a comment

Defending Rapists

By: Alice Woolley

PDF Version: Defending Rapists

Lawyers who defend people accused of sexual assault tend to be subject to one of two narratives in popular conversations, particularly on social media:

The critical narrative: Sexual assault is a violent and under reported crime. Our criminal justice system further victimizes complainants by treating their claims with unwarranted skepticism, and by degrading them both during the investigation of the crime and during the trial of the accused. Lawyers who represent an accused in sexual assault cases engage in morally suspect conduct, except in those (rare) cases where the accused is factually innocent. They directly participate in the victimization of complainants through cross-examination and the arguments they make in court.

The defending narrative: Everyone is entitled to the presumption of innocence. A lawyer who represents a criminal accused ensures the presumption of innocence is a reality, and that lawyer is entitled to be a zealous advocate on behalf of his or her client. Zeal requires doing whatever it takes to secure an acquittal, and the consequences of that for complainants are irrelevant, especially since many accused are innocent.

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Posted in Ethics and the Legal Profession | 4 Comments