Monthly Archives: May 2011

Saskatchewan oil and gas land titles case confirms the basic principles: a volunteer cannot take the benefit of a registrar’s error

PDF version: Saskatchewan oil and gas land titles case confirms the basic principles: a volunteer cannot take the benefit of a registrar’s error 

Case commented on: Ronald Olney (Executor of the estate of Kenneth Olney) v Great-West Life Assurance Company and the Registrar of Land Titles, 2011 SKQB 186

This case applies basic Torrens title law to resolve the competing claims of a mineral owner whose title was cancelled by the Registrar’s error and the claim of the current registered owner. It would have been a nice problem for a first year property exam except that it is a tad too easy – just a straightforward application of Canadian Pacific Railway Co. v Turta, [1954] SCR 427 that any first year property law student should have nailed!

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Perennial Problem of Section 8 of the Interest Act

PDF version: Perennial Problem of Section 8 of the Interest Act 

Case considered: Equitable Trust Co. v. Lougheed Block Inc., 2011 ABQB 193

This is one of several recent cases concerning the Lougheed Building at 604 – 1st Street SW in Calgary. The issue in this particular case was whether section 8 of the Interest Act, R.S.C. 1985, c. I-15, rendered mortgage terms providing for interest rate increases and administrative fees on default and in the final month of the mortgage unenforceable. Section 8 prohibits penalties for non-performance on loans secured by mortgages and is a statutory version of a long-standing equitable rule. This decision is of interest because the Master in Chambers, Judith Hanebury, adopts a limiting approach to section 8 which was rejected by the British Columbia Court of Appeal and because the mortgaged building, the Lougheed Building, is of historic interest. (The Lougheed Building has been designated a Historic Resource at both the municipal and provincial levels and was recently restored. Its heritage value lies in its representation of Calgary’s tremendous commercial growth prior to World War One; it is also an excellent example of the imposing Chicago Style of commercial architecture. For photos and details of the restoration, see the Canada’s Historic Places web site).

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The Alberta Law Reform Institute (ALRI) launches its new website: a valuable source for researching the law of Alberta

PDF version: The Alberta Law Reform Institute (ALRI) launches its new website: a valuable source for researching the law of Alberta 

Website commented on: The Alberta Law Reform Institute (ALRI), http://www.alri.ualberta.ca/

The Alberta Law Reform Institute (ALRI) is the official law reform agency of the province of Alberta. It provides independent comprehensive advice to the Government of Alberta and other agencies. Lawyers and researchers will be interested to learn that ALRI has launched its new website. You might want to take a moment to click on the http://http://www.alri.ualberta.ca/ site and familiarize yourself with the wealth of information that is available here including all of ALRI’s reports going back to its formation in 1967. Out of print reports are available in pdf format. The reports are organized on the website by subject matter and by report type: issues paper, consultation memoranda, reports for discussion and final reports. All of the material is fully searchable. ALRI will also provide hard copies of in print reports on request.

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The Practice (not theory) of Avoiding Conflicts of Interest

PDF version: The Practice (not theory) of Avoiding Conflicts of Interest

Cases commented on: Novotny v. LePan, 2011 ABQB 205, R. v. Lewis, 2011 ABQB 227

As I have written about previously on this blog (e.g., here), the question of how disqualifying conflicts of interest should be identified has divided the profession and caused tension between it and the judiciary. The result has been not only dissensus, but also on occasion increasingly complicated ways of articulating when a conflict should be disqualifying, and when it should not be. The Canadian Bar Association’s Model Code of Professional Conduct, for example, has conflict of interest rules and commentaries that extend for some 27 pages (CBA Model Code).

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There’s no right to absolute privacy when you want to build something in a city

PDF version: There’s no right to absolute privacy when you want to build something in a city 

Case commented on: Edmonton (City) v. Alberta (Information and Privacy Commissioner), 2011 ABQB 226

There is no absolute right to privacy in the context of planning and development within a municipality. In a contest between the right to privacy and the right to enjoy one’s own property without interference from a neighbour, a balance must be struck. Otherwise, we’d be constantly in each other’s faces over actions such as one neighbour arbitrarily chopping down trees straddling the line between two homes or mowing down a line of bushes running between two houses. One person’s pleasure is another person’s annoyance – the source of such annoyance could be something as seemingly innocuous as an outdoor hot tub on a second floor balcony.

When an Edmonton property owner named Kim Mah read details about her application for a development permit in a community newsletter, she complained to the Office of the Information and Privacy Commissioner that her privacy was breached. Rather oddly, in light of the fact that neighbouring property owners do have the right to know about such matters, a Commission adjudicator agreed. Even stranger, the Commissioner found that an appeal board with the independent power to review development proposals was instead a City of Edmonton department. Rather appropriately, the City’s legal department applied for a judicial review. Quite rightly, a Queen’s Bench judge read the relevant legislation against the facts, found that the Commissioner had erred, and sent Mah’s complaint back to the Privacy Commissioner to reconsider.

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