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.

Perennial Problem of Section 8 of the Interest Act

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Case considered: Equitable Trust Co. v. Lougheed Block Inc., 2011 ABQB 193

This is one of several recent cases concerning the Lougheed Building at 604 – 1st Street SW in Calgary. The issue in this particular case was whether section 8 of the Interest Act, R.S.C. 1985, c. I-15, rendered mortgage terms providing for interest rate increases and administrative fees on default and in the final month of the mortgage unenforceable. Section 8 prohibits penalties for non-performance on loans secured by mortgages and is a statutory version of a long-standing equitable rule. This decision is of interest because the Master in Chambers, Judith Hanebury, adopts a limiting approach to section 8 which was rejected by the British Columbia Court of Appeal and because the mortgaged building, the Lougheed Building, is of historic interest. (The Lougheed Building has been designated a Historic Resource at both the municipal and provincial levels and was recently restored. Its heritage value lies in its representation of Calgary’s tremendous commercial growth prior to World War One; it is also an excellent example of the imposing Chicago Style of commercial architecture. For photos and details of the restoration, see the Canada’s Historic Places web site).

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Vindication of a Residential Tenant’s Rights – At Least Temporarily

By: Jonnette Watson Hamilton

PDF Version: Vindication of a Residential Tenant’s Rights – At Least Temporarily

Case Commented On: Lautner v Searle, 2011 ABQB 263

This very short decision by Master Walter H. Breitkreuz, Q.C., is about an unjustified and unsuccessful attempt by a landlord to quickly evict an elderly and ill tenant from rental premises that had been his home for more than 10 years. Memorandums of Decision – even 8 paragraph ones – are not often written about residential tenancy matters. But this is a victory by a tenant that deserves publicizing, even if the only apparent result of the victory is to extend the time that the tenant has to vacate the premises from 14 days to 3 months. Without publicity, there is no possibility of discouraging other landlords from acting in an equally heavy-handed manner.

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Leave to Appeal an Arbitration Award: Is There a Public Interest Requirement?

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Case considered: Milner Power Inc. v. Coal Valley Resources Inc., 2011 ABQB 118

This brief judgment raises an interesting question. Is it possible to interpret section 44(2) of Alberta’s Arbitration Act, R.S.A. 2000, c. A-43 to require that leave to appeal be in the public interest, as so many Alberta decisions have done? At the end of his judgment, Mr. Justice M.A. (Mel) Binder suggested to counsel that they raise this question with the appropriate government department or legislative counsel. This is not a new issue but it has been surprisingly seldom raised during the twenty years that the provision has been in effect considering that the test for leave to appeal in section 44(2) speaks only of the “the importance to the parties” and “the rights of the parties.”

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Tracing Original Property to Replacement Property: What Evidence is Required?

PDF version: Tracing Original Property to Replacement Property: What Evidence is Required? 

Case considered: Scheffelmeier v. Krassman, 2011 ABCA 64

In Scheffelmeier v. Krassman the Alberta Court of Appeal once again dealt with tracing exempt property under the Matrimonial Property Act, R.S.A. 2000, c. M-8 (MPA). Tracing is one of the more contentious matters in matrimonial property litigation, as is the matter of non-disclosure of financial information, also a factor in this case. Scheffelmeier is of interest because it includes a dissenting opinion on the application of the long-standing principle that “[t]racing can be inferred, implied, or presumed” (Harrower v. Harrower (1989), 97 A.R. 141; 21 R.F.L. (3d) 369 at 376 (C.A.)). The point of contention between the majority opinion of Mr. Justice Ronald L. Berger and Madam Justice Patricia Rowbotham and the dissenting opinion of Mr. Justice J.D. Bruce McDonald also illustrates the problem caused by the lack of enforcement mechanisms for the disclosure requirements in the MPA.

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Interpreting Section 15(2) of the Charter: LEAF’s Intervention in Alberta (Minister of Aboriginal Affairs and Northern Development) v Cunningham

By: Jonnette Watson Hamilton

PDF Version: Interpreting Section 15(2) of the Charter: LEAF’s Intervention in Alberta (Minister of Aboriginal Affairs and Northern Development) v Cunningham 

Cases Commented On: Her Majesty the Queen in Right of Alberta (Minister of Aboriginal Affairs and Northern Development), et al. v Barbara Cunningham, et al. (Alberta) (Civil) (By Leave) Case number 33340, on appeal from Cunningham v Alberta (Aboriginal Affairs and Northern Development), 2009 ABCA 239

The Supreme Court of Canada is scheduled to hear the appeal of the Alberta government in Alberta (Minister of Aboriginal Affairs and Northern Development) v Cunningham on Thursday, December 16, 2010. Cunningham will be the first case in which the Supreme Court considers the application of section 15(2) of the Charter since that Court gave independent meaning to section 15(2) in R v Kapp, 2008 SCC 41 and the first case in which the Court must consider the possible application of section 15(2) when the challenge is on the basis of under-inclusiveness. This comment is based on my experience serving on the Women’s Legal Education and Action Fund (LEAF) case subcommittee in Cunningham, the factum filed by LEAF, and, to a much lesser extent and only to offer a contrast, the facta of the Appellants and the Attorney General of Ontario.

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