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.

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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The Supreme Court’s Latest Equality Rights Decision: An Emphasis on Arbitrariness

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: The Supreme Court’s Latest Equality Rights Decision: An Emphasis on Arbitrariness

Case Commented On: Kahkewistahaw First Nation v Taypotat, 2015 SCC 30 (CanLII)

The Supreme Court released its decision in Kahkewistahaw First Nation v Taypotat, 2015 SCC 30 yesterday. We commented on the Federal Court of Appeal decision in the case here. Taypotat was one of two appeals concerning adverse effects discrimination under section 15(1) of the Charter heard by the Supreme Court in October 2014, the other being Carter v Canada (Attorney General), 2015 SCC 5. The Supreme Court declined to rule on the section 15(1) issue in Carter (see here; see also the Court’s decision not to address section 15 in last week’s ruling in R v Kokopenace, 2015 SCC 28 (CanLII), a case involving the representativeness of juries for Aboriginal accused persons). However, the Court did not have the option of avoiding section 15 in Taypotat. In a unanimous judgment written by Justice Abella, the Court held that the adverse effects claim in Taypotat was not established by the evidence.

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A Cautionary Tale for Step-Parents and Step-Children

By: Jonnette Watson Hamilton

PDF Version: A Cautionary Tale for Step-Parents and Step-Children

Case Commented On: Peters Estate (Re), 2015 ABQB 168 CanLII

People have many different ways of defining “family” and what being part of a family means to them. The idea that “a family is what you make it” or “families are who you love” is true enough when it comes to inheritance if you make a will. But the assumption that each of us can define family for ourselves is not true if we die without a will. If we die intestate (i.e., without a will), then the law will define our family for us — and the law’s categories are not flexible ones. They are not even twenty-first century categories. While the percentage of Canadian families who correspond to the nuclear-family model has declined, the laws of intestate succession still depend on that model. As a result, for those who die without a will, there is the possibility that the people they considered family will not inherit from them. The Peters Estate case is a cautionary tale about the need for wills or adoption in a modern world where “family” is a constantly changing concept.

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