Author: Jonnette Watson Hamilton Page 32 of 43

B.A. (Alta.), LL.B. (Dal.), LL.M. (Col.).
Professor Emerita.
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Case considered: Nelson v. 1153696 Alberta Ltd., 2010 ABQB 164

PDF version: Locating Road Boundaries under the Doctrine of Dedication

What is the proper basis for fixing the physical boundaries of a road dedicated to public use under the common law doctrine of dedication? In an earlier decision, Justice Andrea Moen had determined that the road known as the Rabbit Hill Road, which passes through private land owned by the respondents, the Nelsons, and the appellant, 1153696 Alberta Ltd., had been “dedicated” as a public road by a previous owner of the land: see Nelson v.1153696 Alberta Ltd., 2009 ABQB 732. As a result of that 2009 judgment, the Nelsons hired a land surveyor so the precise geographic location and physical dimensions of Rabbit Hill Road could be determined. The surveyor provided for a 66 foot wide road. The appellant took issue with that width and the amount of private property that it thereby lost to the public road. The width of the driving surface of Rabbit Hill Road was usually only 45 feet, which meant that the 66 foot width included more than the road itself. Is a public road dedication confined to the actual driving surface of the road or does it include roadside ditches and slopes? It seems that this issue about the scope of a dedication has never been specifically addressed by a Canadian court. English courts have addressed the issue, but Justice Moen refused to follow those precedents.

A custodian of a lawyer’s practice is not a “mere warehouseman”

By Jonnette Watson Hamilton

On March 3, 2010

In Civil Procedure, Ethics and the Legal Profession

Case considered: Polis v. Edwards, 2010 ABCA 59

PDF version: A custodian of a lawyer’s practice is not a “mere warehouseman”

There are few written decisions on the rights, liberties, powers and immunities of custodians appointed by the court to wind up or manage another lawyer’s practice pursuant to the Legal Profession Act, R.S.A. 2000, c. L 8, section 95. Polis v. Edwards, 2010 ABCA 59 adds to that small body of law, although its ability to do so was limited by the fact the appellants were self-represented – and apparently not very well self-represented at that. The Court of Appeal notes (at para. 4) that there were at least 23 different issues or grounds of appeal set out in the appellants’ joint factum and, although there might have been more, they were incomprehensible in law. Nevertheless, one legal question of interest to more than the parties was squarely before the Court of Appeal and that was the question of whether a custodian is entitled to tax the accounts of the member of the Law Society of Alberta (LSA) whose legal business they were appointed to manage or wind up. That question was, not surprisingly, answered in the affirmative.

The Availability of Relief from Forfeiture for Non-Payment of a Life Insurance Premium

By Jonnette Watson Hamilton

On February 16, 2010

In Insurance Law, Property

Case considered: Community Credit Union Ltd. v. Transamerica Life Canada, 2009 ABQB 704

PDF version: The Availability of Relief from Forfeiture for Non-Payment of a Life Insurance Premium

This is a well-researched and clearly written decision by Justice Keith Yamauchi on an unresolved issue in insurance law. The question is whether relief from forfeiture is available when a life insurance policy lapses for non-payment of premiums. Since 1994, the usual approach of the courts confronted by this question has been to merely assume relief from forfeiture was available and decide on the easier basis that, even if it was available, it was not appropriate to grant it on the facts of the case before them. In this decision, however, Justice Yamauchi decided the legal point and determined that relief from forfeiture was not available. This decision has several points of interest from a property law perspective, which is the perspective I am adopting for these comments. The aspects of this decision that interest me the most are two. The first is the perceived tension between statutorily regulated life insurance contracts and the body of law known as equity, also known as the classic tension between certainty and justice in the individual case. The second is the sharp line drawn, obliterated, and then re-drawn between property and contract.

The Summary Judgment Exception to the Stay of Proceedings in Favour of Arbitration

By Jonnette Watson Hamilton

On January 26, 2010

In Arbitration

Case considered: Balancing Pool v. TransAlta Utilities Corporation, 2009 ABQB 631

PDF version: The Summary Judgment Exception to the Stay of Proceedings in Favour of Arbitration

A recent decision by Chief Justice Neil C. Wittmann resolves two outstanding issues with respect to the summary judgment exception to stays of court proceedings that is found in section 7(2)(e) of the Arbitration Act, R.S.A. 2000, c. A-43. The first question was whether the exception was available in the absence of a motion for summary judgment contemporaneous with the stay application. The second was that of the appropriate test for determining if the dispute was a proper one for summary judgment. The Chief Justice’s answers to these two issues nicely balances public policy in favour of enforcing arbitration agreements with public policy in favour of resolving disputes in the most just and expeditious manner possible. His answer to the first question increases the circumstances under which the summary judgment exception can be considered by a court. His answer to the second proposes a tough standard to meet, thus narrowing the basis on which a court should exercise its discretion to refuse a stay.

The Animal Keepers Act: Perennial Problems of Priority

By Jonnette Watson Hamilton

On January 20, 2010

In Civil Procedure, Property

Case considered: Rachar v. Litvak, 2009 ABQB 441

PDF version: The Animal Keepers Act: Perennial Problems of Priority

This is the first case to consider the Animal Keepers Act, S.A. 2005, c. A-40.5, a piece of legislation which came into force in November of 2005. It replaced a 101-year-old statute, the Livery Stable Keepers Act, R.S.A. 2000, c.L-14, which was originally enacted in 1884 as an ordinance of the North-West Territories and applied to the area that would become Alberta. According to the Alberta Ministry of Agriculture and Rural Development, the Animal Keepers Act “provides a person who boards or cares for an animal a means of collecting outstanding bills owed by the owner of such animals with priority over all other liens, bills of sales, etc. without the use of costly, complicated legal processes.” The new Act seems to live up to this description. While extensively used by the cattle industry and other keepers of livestock, neither this Act nor its predecessor have been the subject of much judicial consideration. Those rare disputes that have been taken to court tend to involve issues of priority among creditors, as does this case.