Author: Jonnette Watson Hamilton Page 22 of 42

B.A. (Alta.), LL.B. (Dal.), LL.M. (Col.).
Professor Emerita.
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By Jonnette Watson Hamilton

PDF Version: Arbitrators Have the Last Word on Procedural or Interlocutory Matters

Case commented on: Suncor Energy Inc v Alberta, 2013 ABQB 728

Suncor Energy Inc v Alberta is a decision by Chief Justice Neil Wittmann on an appeal by the provincial Crown from an arbitration tribunal’s order on a procedural point. Suncor Energy Inc. began arbitration proceedings in January 2011 to resolve a dispute over royalties to be paid on the production of mined bitumen to the province. The issue before the Chief Justice was a narrow one, namely, whether the refusal of the arbitrators to refer a question of law to the court, concerning the application of section 50 of the Mines and Minerals Act, RSA 2000, c M-17, to the production of records that the Crown received from oil sands producers other than Suncor, was a decision that could be appealed. The Chief Justice decided that the court did not have jurisdiction to hear the Crown’s appeal under either section 17(9) or section 44 of Alberta’s domestic arbitration statute, the Arbitration Act, RSA 2000, c A-3. In doing so he confirmed that the competence-competence principle, which allows an arbitral tribunal to determine its own jurisdiction, underlies sections 17 and 44. While not as explicit on this point as was the recent decision of the Ontario Court of Appeal in Ontario Medical Association v Willis Canada Inc, 2013 ONCA 745 at paras 19-37, the Chief Justice’s decision gives effect to the statutory grant of authority to the arbitration tribunal to have the last word on procedural or interlocutory matters that arise during the course of arbitration.

The Difference Between a Duplex and a Semi-Detached House

By Jonnette Watson Hamilton

On December 18, 2013

In Property

PDF Version: The Difference Between a Duplex and a Semi-Detached House

Case commented on: Deagle v 1678452 Alberta Ltd., 2013 ABQB 708

Does permission to construct a semi-detached dwelling allow the building of a secondary suite? That was the essence of the controversy in Deagle v 1678452 Alberta Ltd., which involved the interpretation of a 1911 restrictive covenant registered against the title to homes in the Glenora community in Edmonton. In deciding the matter, Justice Donald Lee reviewed a large number of cases concerning restrictive covenants that, in one way or another, limited construction to one dwelling house per lot. While each of those many cases ultimately depended on the exact wording in each restrictive covenant, the distinction that Justice Lee made between a “duplex” and a “semi-detached” house goes beyond the particularities of each case in the absence of evidence as to what the parties to any one restrictive covenant intended by their use of those terms at the time the covenant was entered into.

Disclosure of Foreign Assets in Matrimonial Property Actions

By Jonnette Watson Hamilton

On October 22, 2013

In Property

PDF Version: Disclosure of Foreign Assets in Matrimonial Property Actions

Case commented on: Chikonyora v Chikonyora, 2013 ABCA 320

Had the decision of the Court of Queen’s Bench been allowed to stand in this case, the division of matrimonial property could have become much more difficult for many divorcing spouses in Alberta. They might have had to sue in every jurisdiction in which they held property, whether that was in a province other than Alberta or a country other than Canada. The lower court decision had held that spouses did not have to disclose information about their assets held outside Alberta because the Alberta superior courts had no jurisdiction over those assets. Fortunately an appeal was taken to the Alberta Court of Appeal, which applied the relevant provisions of the Matrimonial Property Act, RSA 2000 c M-8 (MPA), and required disclosure of assets held outside Alberta. In addition to the “potential crisis averted” aspect of this case, it is also an example of how frustrating access to justice can be for self-represented litigants.

Enforcing and Extending Vexatious Litigant Orders

By Jonnette Watson Hamilton

On September 18, 2013

In Civil Procedure: New Rules of Court, Vexatious Litigants

PDF Version: Enforcing and Extending Vexatious Litigant Orders

Case commented on: 1158997 Alberta Inc v Maple Trust Company, 2013 ABQB 483

This decision is interesting for two reasons. First, it illustrates a problem with the vexatious litigant provisions in Part 2.1 of the Judicature Act, RSA 2000, c J-2 or their administration namely, the absence of a list of those declared to be vexatious litigants that is easily and widely available both to those within and those outside the legal profession. As it stands now, it appears that even the clerks of the court do not have a list of who these orders have been made against, even though those orders state that the persons named vexatious litigants cannot commence or continue actions in the specified court without leave of that court. In this case, a company with two such orders made against it (in 2010 and 2011) was able to begin proceedings in 2012 and 2013 without the required leave of the court. Second, it illustrates the application of the seldom used subsection 23.1(4) of the Judicature Act. That subsection allows the court to make an order declaring someone who is not a party to an action to be a vexatious litigant as long as they are someone who, in the opinion of the court, is associated with the person against whom a vexatious litigant order is made. In this decision, five corporate plaintiffs in three different actions were declared to be vexatious litigants, and six individuals, who were not parties to any of the three actions but who were found to be associated with the corporate parties, were also declared to be vexatious litigants. One such individual was twice removed from the parties declared to be vexatious litigants. (The decision might also be noteworthy for a third reason: the number of persons — eleven — declared to be vexatious litigants by one order.)

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Roundtable on Ontario v Criminal Lawyers’ Association of Ontario

By Jonnette Watson Hamilton

On August 30, 2013

In Access to Justice, Criminal

PDF Version: Roundtable on Ontario v Criminal Lawyers’ Association of Ontario

Cases Considered: Ontario v Criminal Lawyers’ Association of Ontario, 2013 SCC 43

On August 13, 2013, Faculty of Law hosted its last Roundtable discussion of the summer. That discussion focused on the Supreme Court of Canada’s August 1^st decision in Ontario v Criminal Lawyers’ Association of Ontario, 2013 SCC 43 concerning the compensation to be paid to a lawyer appointed to act as a “friend of the court”, known as an amicus curiae. Participants included faculty members, researchers from the Alberta Civil Liberties Research Centre, JD and graduate students, and a post-doc fellow. What participants found most controversial about the decision was not the court’s 5:4 split on the compensation issue, but rather the court’s unanimity on the inappropriateness — and henceforth, presumably, inability — of courts to appoint amicus curiae to act as de facto defence counsel.

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