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.

A Vexatious Litigant After Only Two Applications

By: Jonnette Watson Hamilton

PDF Version: A Vexatious Litigant After Only Two Applications in One Proceeding

Case Commented On: Re FJR (Dependent Adult), 2015 ABQB 112 (CanLII)

Although the Alberta law giving the courts more power to deal with “vexatious litigants” in a simplified process has only been in effect a little more than five years — since October 30, 2009 — the law is quite well settled. Under section 23.1(1) of the Judicature Act, RSA 2000, c J-2, on application or the court’s own motion, and with notice to the Minister of Justice and Solicitor General, if a Court is satisfied that a person is instituting vexatious proceedings or is conducting a proceeding in a vexatious manner, then the court may order that the person not commence or continue proceedings without the court’s permission. Section 23(2) provides a non-exclusive list of examples of vexatious proceedings and conduct. These provisions have been considered in approximately 70 cases over the past five years. Recently and helpfully, in Chutskoff v Bonora, 2014 ABQB 389 (CanLII) at paras 80-93, Justice Michalyshyn undertook a comprehensive review of this case law. As a result of all of this consideration, most vexatious litigant proceedings now simply involve application of the established principles to the particular facts of each case. Nonetheless, the occasional new legal issue arises, as it does in Re FJR. This post considers a case in which the person found to be a vexatious litigant had only made two applications, and both of them were made in only one court proceeding.

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The Website of the Alberta Courts

By: Nigel Bankes, Jennifer Koshan, and Jonnette Watson Hamilton

PDF Version: The Website of the Alberta Courts

Matter Commented On: The Alberta Courts’ website

This post deals with Court websites. We are posting it now because all three Alberta Courts have just made a significant change in their practice. At the beginning of this week (January 5, 2015) they announced that they will no longer post judgments on their own website. Instead, users are referred to CanLII for copies of recent judgments. Here is the notice that you will find on the ABQB and ABPC websites:

A collection of the judgments of the Court of Queen’s Bench of Alberta is available from CanLII. The official version of the reasons for judgment is the signed original or handwritten endorsement in the court file. If there is a question about the content of a judgment, the original court file takes precedence. Copies of the original judgment may be obtained on payment of the applicable fee, by contacting the relevant court location.

You are about to leave the Court of Queen’s Bench of Alberta website. The Court of Queen’s Bench of Alberta is not responsible for the content of any external website.

Queen’s Bench judgments on CanLII

The Court of Appeal has yet to implement this decision but anticipates doing so in the near future.

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The Supreme Court’s Other Opportunity to Revisit Adverse Effects Discrimination under the Charter: Taypotat v Taypotat

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: The Supreme Court’s Other Opportunity to Revisit Adverse Effects Discrimination under the Charter: Taypotat v Taypotat

Case Commented On: Taypotat v Taypotat, 2012 FC 1036; rev’d 2013 FCA 192; leave to appeal to SCC granted 2013 CanLII 83791 (SCC)

A few weeks ago we wrote a post on Carter v Canada (Attorney General), 2012 BCSC 886, rev’d 2013 BCCA 435, leave to appeal to SCC granted 2014 CanLII 1206 (SCC), predicting what the Supreme Court might decide on the issue of whether the prohibition against assisted suicide amounts to adverse effects discrimination against people with disabilities, contrary to section 15(1) of the Charter. We mentioned that Carter is one of two adverse effects cases currently before the Supreme Court. This post will consider the second case, Taypotat v Taypotat.

Taypotat concerns a community election code adopted by the Kahkewistahaw First Nation in Saskatchewan to govern elections for the positions of Chief and Band Councillor. The adoption of the code was controversial and took a number of ratification votes, stemming in part from the fact that it restricted eligibility for these elected positions to persons who had at least a Grade 12 education or the equivalent. Although he had previously served as Chief for a total of 27 years, the Kahkewistahaw election code excluded 74 year old Louis Taypotat from standing for election because he did not have a Grade 12 education. He had attended residential school until the age of 14 and had been assessed at a Grade 10 level. His nephew, Sheldon Taypotat, was the only eligible candidate for Chief, and he won the election by acclamation. In an application for judicial review, Louis Taypotat challenged the eligibility provision and the election results under section 15(1) of the Charter.

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Judicial Economy, Judicial Extravagance and Pension Splitting under a Matrimonial Property Order

By: Jonnette Watson Hamilton

PDF Version: Judicial Economy, Judicial Extravagance and Pension Splitting under a Matrimonial Property Order

Case Commented On: McMorran v Alberta Pension Services Corporation, 2014 ABCA 387

The Court of Appeal decision in McMorran v Alberta Pension Services Corporation determines an instrumentally important question in the pension and matrimonial property law areas. In addition, it is procedurally unusual for two reasons. First, although it is a matrimonial property action, the dispute is really between Justice Robert Graesser, the Court of Queen’s Bench judge who rendered the decision appealed from (McMorran v McMorran, 2013 ABQB 610) and the administrator of the Alberta public service pensions plans, the “appellant” by court order in the Court of Appeal — i.e., not between the former husband and wife who are both “respondents”. Second, the concurring judgment of Justice Thomas Wakeling disagrees with the majority judgment of Justices Ronald Berger and Frans Slatter on one statutory interpretation point, but no consequences appear to flow from that disagreement and the two judgments do not engage with each other on the point. The reasons for two separate judgments are not made explicit, but they appear to be a result of different perspectives on the value of judicial economy. And in these days of legal and public focus on access to justice issues and the need for a “culture shift” in the current legal system, I think it is important to consider whether we can afford judicial extravagance.

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Assisted Suicide and Adverse Effects Discrimination: Where Will the Supreme Court Go in Carter?

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: Assisted Suicide and Adverse Effects Discrimination: Where Will the Supreme Court Go in Carter?

Case Commented On: Carter v Canada (Attorney General), 2012 BCSC 886, rev’d 2013 BCCA 435, leave to appeal to SCC granted 2014 CanLII 1206 (SCC)

We recently posted a paper on SSRN that is forthcoming in the Review of Constitutional Studies, dealing with the Supreme Court of Canada’s approach to adverse effects discrimination under section 15(1) of the Charter. Adverse effects discrimination occurs when laws that are neutral on their face have a disproportionate and negative impact on members of a group identified by a prohibited ground of discrimination. Although the Court has recognized adverse effects discrimination as key to the Charter’s guarantee of substantive equality, it has decided only 8 such cases out of a total of 66 section 15(1) decisions released since 1989, none since 2009. Only 2 of the 8 claims were successful (see Appendix I in our paper). Our analysis shows several obstacles for adverse effects discrimination claims, including burdensome evidentiary and causation requirements, courts’ acceptance of government arguments about the “neutrality” of policy choices, narrow focusing on prejudice and stereotyping as the only harms of discrimination, and failing to “see” adverse effects discrimination, often because of the size or relative vulnerability of the group making the claim.

In light of the very small number of successful adverse effects claims and the problems in the case law, it is interesting to note that in October 2014 the Supreme Court heard 2 section 15(1) appeals involving adverse effects discrimination: Carter v Canada (Attorney General) and Taypotat v Taypotat, 2012 FC 1036, 2013 FCA 192; leave to appeal to SCC granted 2013 CanLII 83791 (SCC). This post will focus on Carter, a challenge to the ban on assisted suicide under the Criminal Code, RSC 1985, c C-46, and the adverse effects discrimination arguments the Supreme Court is considering in that case. We acknowledge that the Court is far more likely to decide Carter on section 7 grounds—much of the Court’s focus during oral arguments was on whether the ban violates the rights to life and security of the person in ways that are arbitrary, overbroad or grossly disproportionate, contrary to the principles of fundamental justice (see Webcast of the Carter Hearing, October 15, 2014). Nevertheless, Carter raises important equality issues as well.

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