Author Archives: Jonnette Watson Hamilton

About Jonnette Watson Hamilton

B.A. (Alta.), LL.B. (Dal.), LL.M. (Col.). Professor Emerita. Please click here for more information.

Granting a Vexatious Litigant’s Application for Leave to Appeal

By: Jonnette Watson Hamilton

PDF Version: Granting a Vexatious Litigant’s Application for Leave to Appeal

Case Commented On: Belway v Lalande-Weber, 2017 ABCA 108 (CanLII)

In the case law on vexatious litigation, it is occasionally noted that a vexatious litigant order does not bar that litigant’s access to the courts. Instead, a vexatious litigant must apply for and obtain leave from the court before starting or continuing a proceeding. In other words, access to the courts is regulated, not prohibited. But the distinction between regulated access and no access depends to a large extent on what the test is for granting leave. This decision by Justice Sheilah Martin is a rare example of an application for leave being granted. As such, it is interesting to see how high or low it sets the bar for obtaining leave. And because the self-represented applicant in this case had vexatious litigant orders made against him under both the Family Law Act, SA 2003, c F-4.5 and the Judicature Act, RSA 2000, c J-2, it is also interesting to note the contrast between the two regimes on this issue and how Justice Martin deals with the two tests by combining them into one. Continue reading →

Vexatious Litigants: An Interpretation of Section 40 of the Federal Courts Act

By: Jonnette Watson Hamilton

PDF Version: Vexatious Litigants: An Interpretation of Section 40 of the Federal Courts Act

Case Commented On: Canada v Olumide, 2017 FCA 42 (CanLII)

In this March 2017 decision, Justice David Stratas encouraged Federal Court of Appeal litigants who find themselves up against litigants engaged in vexatious proceedings to apply more quickly and with less evidence for vexatious litigant orders under section 40 of the Federal Courts Act, RSC 1985, c F-7. Believing that uncertainty over what is required by section 40 to bring such an application has been holding these parties back, this decision is intended to take away that uncertainty. Because that was the focus of the judgment, it will be the focus of this post. However, there are some rhetorical flourishes in the judgment that are worth mentioning. In describing his understanding of the purpose of section 40, Justice Stratas relies on a metaphor analogizing courts to scarce natural resources, as well as the moralizing language of desert. Continue reading →

Punitive Damages and the Residential Tenancies Act

By: Jonnette Watson Hamilton

PDF Version: Punitive Damages and the Residential Tenancies Act

Case Commented On: Wilderdijk-Streutker v Zhao, 2017 ABPC 24 (CanLII)

Punitive damages are rarely awarded in residential tenancy disputes, but Wilderdijk-Streutker v Zhao is one of those rare cases. And although an award of punitive damages is very fact-dependent, there are some principles and rules of law which residential landlords and tenants who are contemplating claiming punitive damages should be aware of. They should also be aware that there are a few unsettled issues concerning the awarding of punitive damages in this context. Those unsettled issues are the focus of this post. Continue reading →

When is a Lease an Improper Subdivision of Land?

By: Jonnette Watson Hamilton

PDF Version: When is a Lease an Improper Subdivision of Land?

Case Commented On: Paskal Holdings Inc v Loedeman, 2017 ABCA 29 (CanLII)

An instrument or a caveat related to an instrument “that has the effect or may have the effect of subdividing a parcel of land” cannot be registered at a Land Titles Office unless a subdivision has been approved by the appropriate planning authority, according to subsections 652(1) and (5) of the Municipal Government Act, RSA 2000, c M-26. Section 94(1) of the Land Titles Act, RSA 2000, c L-4 provides that “[n]o lots shall be sold under agreement for sale or otherwise according to any townsite or subdivision plan until a plan creating the lots has been registered.” Both of these prohibitions have much broader scope than might be apparent on first reading. Neither is restricted to sales of fee simple title. In fact, over the years the most difficult applications of this prohibition have involved leases of portions of parcels of land, such as leases of farmsteads on quarter sections, stand-alone stores in mall developments, and RV or mobile home lots. The most recent decision of the Alberta Court of Appeal in this area ? Paskal Holdings Inc v Loedeman ? might settle some issues. Continue reading →

The Harsh Consequences of Ignoring the Dower Act

By: Jonnette Watson Hamilton

PDF Version: The Harsh Consequences of Ignoring the Dower Act

Case Commented On: Joncas v Joncas, 2017 ABCA 50 (CanLII)

If you are a married Albertan with a piece of real property registered in your name alone, and you have resided on that property since the date of your marriage, then you cannot sell, mortgage, lease for more than three years, or otherwise dispose of that property without the written and acknowledged consent of your spouse. The Dower Act, RSA 2000, c D-15, sections 1(d), 2, 4 and 5 say the property is a “homestead” and you need consent to dispose of it. The purpose of the 100-year-old Dower Act is to provide a home for a widow/er — a right to a life estate on the death of the married person who owned the homestead (Senstad v Makus, [1978] 2 SCR 44 at 51, 1977 CanLII 201 (SCC)). And there would not necessarily be a home for the widow/er if the married person could unilaterally sell or otherwise dispose of the homestead, and so they cannot. The purpose of the Dower Act and the way it achieves its purpose was commendable one hundred years ago, when married women could not acquire land by homesteading, there was no social welfare safety net, divorce was far less common, life expectancies were much shorter, and families were far less complex. Today, however, things are different and the Dower Act can come into conflict with the Matrimonial Property Act, RSA 2000, c M-8 on the breakdown of a marriage. The Matrimonial Property Act is all about the fair distribution of matrimonial property between spouses or ex-spouses, but its fairness considerations are absent from the Dower Act. The potential for financially disastrous consequences is high when a married person with a homestead, whose marriage has broken down, is unaware of the requirements of the Dower Act and the harshness of the consequences of ignoring those requirements. Joncas v Joncas is an excellent example of the conflict and a cautionary tale. Continue reading →