Author: Jonnette Watson Hamilton Page 34 of 37

B.A. (Alta.), LL.B. (Dal.), LL.M. (Col.).
Professor Emerita.
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Section 51 of the Provincial Court Act, R.S.A. 2000 Ch. P-31, provides that an appeal of a Provincial Court decision is to be heard as an appeal on the record unless a party applies and the Court of Queen’s Bench orders that the appeal to be heard as a trial de novo. The default position is therefore an appeal on the record that was created at trial, usually a transcript of what was said and any exhibits that were entered.

Do Common-Law Spouses have Dower Rights?

By Jonnette Watson Hamilton

On May 24, 2008

In Family, Property

Cases Considered: Nielson v. Paumier Estate, 2008 ABCA 159

PDF Version: Do Common-Law Spouses have Dower Rights?

Strictly speaking, Mr. Justice Jack Watson’s decision in Nielsen v. Paumier Estate is simply a decision denying an application to restore an appeal to the Court of Appeal’s hearing list. However, the factual and legal context of the application is both tragic and complex. It includes at least twelve court orders since 2003 dealing with the sale of one house in Edmonton. The real legal issue in the last few judgments, including this one by Mr. Justice Watson, was said to be whether or not Paul Nielsen’s consent to the sale of the house owned by Michele Paumier could be dispensed with under the provisions of the Dower Act, R.S.A. 2000, c. D-15. However, given that Nielsen is described as Paumier’s “common-law spouse,” is it not questionable whether Nielsen even has dower rights?

The Guarantees Acknowledgement Act and Equity

By Jonnette Watson Hamilton

On May 16, 2008

In Property

Cases Considered: Bharwani v. Chengkalath, 2008 ABCA 148

PDF Version: The Guarantees Acknowledgement Act and Equity

Sometimes it becomes apparent when reading a decision that the court would have preferred to reach a different result. Usually this is because the law seems to compel the result the court reaches, but fairness demands another. The decisions of the Court of Queen’s Bench and the Court of Appeal in Bharwani v. Chengkalath are examples of the constraints the law occasionally puts on a court’s ability to do what seems right. The defendant in this case won, but it did not seem fair that she did.

International Commercial Arbitration: Too Costly Private Justice?

By Jonnette Watson Hamilton

On April 14, 2008

In Arbitration

Cases Considered: Resin Systems Inc. v. Industrial Service & Machine Inc., 2008 ABCA 104

PDF Version: International Commercial Arbitration: Too Costly Private Justice?

The Court of Appeal’s Memorandum of Judgment in Resin Systems Inc. v. Industrial Service & Machine Inc. offers a rare, albeit small, glimpse into the arena of international commercial arbitration. It tells us something about the cost of this type of private justice; one of the major differences between courts and arbitration is that contractual arbitrators are not paid for by taxpayers, but are privately paid for. The judgment also illustrates an unusual lack of deference to arbitration on the part of the Court of Appeal and a lack of faith in an arbitrator’s ability to control the fairness and efficiency of arbitration proceedings through the allocation of costs.

The Shotgun Approach to Judicial Review

By Jonnette Watson Hamilton

On March 10, 2008

In Administrative Law, Provincial Court

Cases Considered: Weir v. Canada (Registrar of Firearms), 2008 ABPC 18, Woodcock v. Canada (Registrar of Firearms), 2008 ABPC 19

PDF Version: The Shotgun Approach to Judicial Review

These two almost identical judgments of Provincial Court Judge Bruce R. Fraser confirmed refusals by the Registrar to issue registration certificates for prohibited weapons. They were both references made pursuant to section 74 of the Firearms Act, S.C. 1995, c. 39. The standard of the review to be conducted by a provincial court judge in such a reference has been a controversial matter. Various methods for selecting the appropriate standard of review in a section 74 reference have been proposed and implemented by Alberta courts. The jurisprudence thus far suggests this shotgun approach is missing the mark when it comes to standard of review.

Author: Jonnette Watson Hamilton Page 34 of 37

Provincial Court Small Claims Appeals: When is an appeal by way of trial de novo appropriate?

Do Common-Law Spouses have Dower Rights?

The Guarantees Acknowledgement Act and Equity

International Commercial Arbitration: Too Costly Private Justice?

The Shotgun Approach to Judicial Review