Author: Jonnette Watson Hamilton Page 28 of 43

B.A. (Alta.), LL.B. (Dal.), LL.M. (Col.).
Professor Emerita.
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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.

The Full Implications of Demonstrable Integration: A Roundtable Discussion on West Moberley

By Jonnette Watson Hamilton

On June 21, 2011

In Aboriginal

PDF version: The Full Implications of Demonstrable Integration: A Roundtable Discussion on West Moberley

Case considered: West Moberly First Nations v. British Columbia, 2011 BCCA 247

Summer at the law school provides faculty members with the opportunity to get on with some research and writing and, in particular, the larger projects that there isn’t the opportunity to tackle during the teaching terms. Law school is also a quieter place at this time with fewer LLB/ JD students around. But there is always a good number of summer students – some employed by Student Legal Assistance (SLA) for clinical duties and others employed by faculty members, the Alberta Law Reform Institute, the Alberta Civil Liberties Research Centre and Canadian Institute of Resources Law on various research projects. One of the other things that we try and do over the summer to enrich the research environment for summer students, graduate students and faculty members alike is to hold a number of roundtable discussions on recent important judicial decisions. Last year, for example, we had a discussion of Supreme Court of Canada freedom of expression decisions (R. v. National Post, 2010 SCC 16; Toronto Star v. Canada, 2010 SCC 21; Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23) and a discussion of the Advisory Opinion of the International Court of Justice on Kosovo. Our first roundtable discussion this year focused on the British Columbia Court of Appeal’s decision in West Moberly First Nations v. British Columbia, 2011 BCCA 247, a recent Treaty 8 consultation case which also deals with a SARA (Species at Risk Act, SC 2002, c 29) listed species (woodland caribou). The Attorney General of Alberta appeared as an intervenor on the appeal, undoubtedly because much of northern Alberta is covered by Treaty 8.

Author: Jonnette Watson Hamilton Page 28 of 43

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

The Full Implications of Demonstrable Integration: A Roundtable Discussion on West Moberley