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.

Section 6 of the Federal Interest Act is Obsolete

By: Jonnette Watson Hamilton

PDF Version: Section 6 of the Federal Interest Act is Obsolete

Case Commented On: David v Premiere Canadian Mortgage Corporation, 2015 ABQB 505 (CanLII)

In this decision, Justice Robert A. Graesser makes an interesting policy argument about section 6 the Interest Act, R.S.C. 1985, c. I-15, using it to bolster his conclusions about the application of the doctrine of precedent. As a result, this decision is useful for teaching about precedents, the principle of stare decisis, and how to use policy in making legal arguments. This decision also illustrates the need for reform of the 135 year old federal Interest Act.

Section 6 of the federal Interest Act provides that if a mortgage is repayable in one of three ways — on a “sinking fund plan”, by blended payments of principal and interest, or involving “an allowance of interest on stipulated repayments” — then the mortgage must contain a statement of the interest payable calculated annually or semi-annually and not in advance. If the mortgage does not contain that statement, then “no interest whatever shall be chargeable, payable or recoverable”. The consequences of not complying with section 6, if it applies, are therefore significant. In this particular case, the interest paid by the Davids, which they were seeking to have returned to them, amounted to more than $83,000. (This was not a mortgage foreclosure case. The Davids had satisfied all of their obligations under the mortgage and were suing the mortgagee for non-compliance with section 6 of the Interest Act.)

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“Champagne Wishes and Caviar Dreams”

By: Jonnette Watson Hamilton

PDF Version: “Champagne Wishes and Caviar Dreams”

Case Commented On: Hood v Skauge, 2015 ABQB 476 (CanLII)

Those who are old enough to remember — and who liked — the 1984-1995 TV show, “Lifestyles of the Rich and Famous”, which featured the extravagant lifestyles of wealthy entertainers, athletes and business moguls, might be thrilled to know that NBC is reviving the series. They might also be delighted to read the 97-paragraph Parts V and VI in this decision by Justice Craig M. Jones interpreting a Cohabitation Agreement entered into by Cheryl Hood and Richard Skauge (see “Q&A w/ Olympia Trust Founder Rick Skauge”, Exempt Edge). The TV show was said to give special attention “to the prices paid for the various luxuries with which the rich enhanced their daily lives, ranging from spacious seaside villas, to classic cars, to gold-plated bathroom fixtures” (plot summary here). Justice Jones engages in an account of the lifestyle led by Ms. Hood and Mr. Skauge for a little over four years, between December 2004 and May 2009 — a lifestyle that included a yacht, three homes in Calgary, Mercedes automobiles, a cabin near Penticton, trips to Italy, Paris, New York, Thailand, St. Thomas, Disneyland, Fiji, and Hawaii (as well as Vancouver, Banff, Toronto, Quebec City and North Battleford), a $100,000 ring and various sexual relationships outside the relationship that is scrutinized in this case.

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Sources of Superior Courts’ Jurisdiction to Declare Litigants to be Vexatious

By: Jonnette Watson Hamilton

PDF Version: Sources of Superior Courts’ Jurisdiction to Declare Litigants to be Vexatious

Case Commented On: Sikora Estate (Re), 2015 ABQB 467 (CanLII)

This decision indirectly raises a question about the jurisdiction of Alberta’s Court of Queen’s Bench and Court of Appeal to declare that a person cannot start or continue court proceedings without first obtaining the court’s permission, i.e., to declare that a person is a vexatious litigant. Section 23.1 of the Judicature Act, RSA 2000, c J-2 grants the courts that authority, whether on their own motion or on an application by a party to the proceedings, if notice is given to the Minister of Justice and Solicitor General. But what if notice has not been given to the Minister of Justice and Solicitor General? Does the court have inherent jurisdiction to make such a declaration? If they do, how far does it extend? Can the court enjoin only further applications without its permission in the case before it, or can the court prohibit any and all future court actions in the province without its leave? This issue was explicitly raised, but not decided, by the Alberta Court of Appeal in Pawlus v Pope, 2004 ABCA 396 (CanLII), and the issue does not appear to have been resolved in the intervening ten years. The decision in Re Sikora Estate suggests it needs to be.

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Expensive, Complex Appeals from Residential Tenancy Dispute Resolution Service Orders

By: Jonnette Watson Hamilton     

PDF Version: Expensive, Complex Appeals from Residential Tenancy Dispute Resolution Service Orders

Case Commented On: Nee v Ayre & Oxford Inc, 2015 ABQB 402 (CanLII)

The decision by Justice Donald Lee in Nee v Ayre & Oxford Inc is one of several decisions that he has made dismissing tenants’ appeals of Residential Tenancies Dispute Resolution Service (RTDRS) orders because the tenant failed to file a transcript of the oral hearing that took place before an RTDRS officer. This decision builds on Justice Lee’s prior judgment in Herman v Boardwalk Rental Communities, 2011 ABQB 394 (CanLII), as it reproduces twelve paragraphs of his Herman decision to provide the reasons for dismissing Ms. Nee’s appeal. It is also very similar to Justice Lee’s decisions in Zibrowski v Nicolis, 2012 ABQB 236 (CanLII). Although Nee v Ayre & Oxford Inc does not make any new legal points, it is worth a post because it once again highlights how complex and expensive appeals from RTDRS orders are, especially for many self-represented litigants who are, after all, the people for whom the RTDRS process was designed.

What exactly does that complex and expensive appeal process entail?

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A Trap for the Unwary: Assuming High Ratio Mortgages

By: Jonnette Watson Hamilton

PDF Version: A Trap for the Unwary: Assuming High Ratio Mortgages

Case Commented On: CIBC Mortgages Inc v Abdallah, 2015 ABQB 363 (CanLII); Bank of Montreal v Hoehn, 2010 ABQB 405 (CanLII)

Five years ago, in Bank of Montreal v Hoehn, Master Jodi L. Mason decided that one small piece of consumer protection legislation was not properly created by Alberta lawmakers in 2003. As a result, a law that should have required a prominent warning to borrowers on high ratio residential mortgages was not available to protect individuals who unknowingly assumed these types of mortgages. The problem Master Mason identified could have been easily remedied by the legislature — but it was not. One of the consequences of the legislature’s failure to act can be seen in CIBC Mortgages Inc v Abdallah. As Madam Justice Barbara Romaine notes in this decision, the absence of mandatory warnings about assuming high ratio mortgages “creates a high-risk scenario for unwary transferees and creates hard cases like this one” (at para 33).

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