Author: Jonnette Watson Hamilton Page 28 of 43

B.A. (Alta.), LL.B. (Dal.), LL.M. (Col.).
Professor Emerita.
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Case considered: IBM Canada Limited v Kossovan, 2011 ABQB 621.

In IBM Canada Limited v Kossovan, Mr. Justice Bryan E. Mahoney provided the first judicial interpretation of an important new provision in the Alberta Rules of Court, Alta Reg 124/2010 (New Rules). The provision in question – Rule 4.16(2) — governs applications to waive the dispute resolution processes mandated by Rule 4.02(e) of the New Rules. As Justice Mahoney notes (at para 4), “[w]hile the New Rules contemplate circumstances wherein the requirement might be waived, as yet, there is little guidance from our Court as to how this Rule is to be interpreted.” Using case law from other jurisdictions that have adopted similar mandatory dispute resolution procedures, this decision begins to provide that guidance. However, as much of that guidance is based on anecdotal evidence and intuitions about the effectiveness of dispute resolution, it is to be hoped that the mandatory dispute resolution provisions of the New Rules will be empirically evaluated for both costs and benefits in the near future.

Is this the end of an “endless repetition of failed litigation” – at least in Alberta?

By Jonnette Watson Hamilton

On November 15, 2011

In Arbitration, Vexatious Litigants

PDF version: Is this the end of an “endless repetition of failed litigation” – at least in Alberta?

Case considered: Karaha Bodas Company, L.L.C. v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 2011 ABCA 291

The Court of Appeal waxes eloquent in this short judgment that considers the latest episode in what the Court characterized (at para 8 ) as an “endless repetition of failed litigation.” The Court of Appeal – composed of Mr. Justice Jean Côté, Madam Justice Elizabeth McFadyen and Mr. Justice Clifton O’Brien – heard an appeal from an April 1, 2010 order by Mr. Justice T.D. Clackson (Karaha Bodas Company, L.L.C. v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 2010 ABQB 172), an order that I commented on in “Arbitration for the Quick and Final Resolution of Disputes? Hardly.” The subject matter of that order is a procedural morass, the details of which are rather mind-numbing. What is interesting about the latest decision is the Court of Appeal’s characterization of Pertamina’s continuing world-wide litigation as “vexatious”. Will that characterization finally bring a halt to these proceedings, at least in this province?

How persistent does a vexatious litigant have to be?

By Jonnette Watson Hamilton

On July 27, 2011

In Civil Procedure, Vexatious Litigants

PDF version: How persistent does a vexatious litigant have to be?

Case considered: Wong v Giannacopoulos, 2011 ABCA 206

Are the 2007 vexatious litigant provisions in the Judicature Act, RSA 2000, c J-2, being overused? Is it too easy to have a person declared a “vexatious litigant and barred from bringing or continuing court actions without leave of a court? I am sure that every person who has had a vexatious litigant order made against them would answer “yes” to both questions, but what might a more detached assessment reveal? These questions demand empirical answers that I cannot give. However, the recent decision of Justice Frans Slatter in Wong v Giannacopoulos suggests that vexatious litigant orders are only being granted in rather extreme cases. It seems to take a lot of improper behaviour against a variety of long-suffering defendants before a person is denied unmediated access to a court.

It’s Difficult to Disinherit Some Adult Children

By Jonnette Watson Hamilton

On July 14, 2011

In Wills and Estates

PDF version: It’s Difficult to Disinherit Some Adult Children

Case considered: Soule v. Johansen Estate, 2011 ABQB 403

Alberta Justice has spent the past few years reviewing provincial succession laws and proposing reforms to consolidate and update the relevant provincial statutes. The result of the Alberta Succession Law Reform project was the passage of the new Wills and Succession Act, SA 2010, c W12.2 by the Alberta legislature in the fall of 2010 (Bill 21). However, because the changes are extensive, the new Wills and Succession Act will not come into force until it is proclaimed and proclamation is not expected until early 2012. It is interesting to consider whether or not the result in Soule v. Johansen Estate would have been any different under new law. In her will, Elsie Carrolle Johansen left all of her $116,000 estate to the Calgary Humane Society. She chose to disinherit her only son, Kim Soule, a 51 year old man suffering from hepatitis C, because she did not want her estate to be spent on drugs and alcohol. He asked the court to re-write his mother’s will under the Dependants Relief Act, RSA 2000, c D-10.5, because he is unable to earn a livelihood. Although Mr. Soule did not appear to be a sympathetic supplicant, he nevertheless prevailed. Justice Sheilah Martin rewrote his mother’s will to give all but $10,000 of his mother’s estate to Mr. Soule. Her main reason for doing so appears to be the predominantly pragmatic one of relieving taxpayers of the burden of Mr. Soule’s support.

The Effect of Non-compliance with the Dower Act – Yet Again

By Jonnette Watson Hamilton

On June 24, 2011

In Property

PDF version: The Effect of Non-compliance with the Dower Act – Yet Again

Case considered: Webb (Re), 2011 ABQB 89

The context of this dower case is somewhat unusual. The Registrar in Bankruptcy had directed a trial to determine whether a caveat registered by a Mr. Karafiat, which claimed a secured interest in a homestead, was invalid because it did not comply with the Dower Act. The parties’ concession that non-compliance with the requirements of the Dower Act, RSA 2000, c D-15 did not render the disposition of the homestead void is also somewhat unusual. This is the first case that I am aware of in which the parties conceded that non-compliance rendered the transaction voidable, and not void. It is true there has been a trend in Alberta towards finding that the effect of a disposition of a homestead without the consent of a spouse is to render the disposition voidable, and not void. However, the matter is not free from doubt because the Supreme Court of Canada’s last word on the issue held such a disposition was void ab initio.

Author: Jonnette Watson Hamilton Page 28 of 43

Waiver of Dispute Resolution under the New Rules

Is this the end of an “endless repetition of failed litigation” – at least in Alberta?

How persistent does a vexatious litigant have to be?

It’s Difficult to Disinherit Some Adult Children

The Effect of Non-compliance with the Dower Act – Yet Again