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.

Costs Denied in Elder Advocates of Alberta Society Case

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: Costs Denied in Elder Advocates of Alberta Society Case

Case Commented On: Elder Advocates of Alberta Society v Alberta, 2020 ABQB 54 (CanLII)

In February 2018 and October 2019, we posted comments on the class action litigation in Elder Advocates of Alberta Society v Alberta, where a class of long-term care residents unsuccessfully challenged the Alberta government’s ability to charge accommodation fees in long-term care facilities. The case involved claims of unjust enrichment, negligence and contract – addressed by our colleague Lorian Hardcastle here – and discrimination based on age and mental / physical disability, which we dealt with in our posts. None of the claims were ultimately successful. The plaintiffs’ most persuasive argument was that the imposition of accommodation fees was discriminatory, which was accepted by the Alberta Court of Appeal. However, the Court found the discrimination to be justified (see Elder Advocates of Alberta Society v Alberta, 2019 ABCA 342 (Can LII) and our post on that decision here).

In spite of the lack of success of this class action, Justice June Ross, the trial judge in the case, recently denied the Province of Alberta and Alberta Health Services costs against the plaintiffs and their lawyers (see Elder Advocates of Alberta Society v Alberta, 2020 ABQB 54 (CanLII)). Continue reading →

Keeping an Eye on Foreclosing Banks

By: Jonnette Watson Hamilton

PDF Version: Keeping an Eye on Foreclosing Banks

Case Commented On: Canadian Imperial Bank of Commerce v Strihavka, 2019 ABQB 835

Who is keeping an eye on the conduct and claims of banks and other financial institutions that are foreclosing on people’s homes in Alberta? In at least one case – this case of Canadian Imperial Bank of Commerce v Strihavka – it was a Master of the Court of Queen’s Bench who discovered a bank was providing false or, at least, misleading evidence and the bank’s lawyer was not living up to their professional responsibilities, all for the purpose of taking a person’s home away from them more quickly than allowed at law. Whether this one case is an aberration due to an isolated act of carelessness, negligence or malice, or whether this case is one of many is unclear. The facts suggest there might be systemic issues in foreclosure proceedings in this province. Continue reading →

A Cautionary Tale about Suing in the Name of the Correct Legal Entity

By: Jonnette Watson Hamilton

PDF Version: A Cautionary Tale about Suing in the Name of the Correct Legal Entity

Case Commented On: 2040497 Alberta Ltd v Samateh, 2019 ABPC 321 (CanLII)

In 2017, Abdoulie Samateh was sued by his landlord for rent in arrears – or was he? He was sued by William Masri, and Masri was the sole owner of 2040497 Alberta Ltd, as well as its president, secretary and treasurer. And it was 2040497 that was the landlord of the apartment rented to Samateh, not Masri. And so when the 2017 action went to trial on April 23, 2019, Assistant Chief Judge Gordon W. Sharek dismissed the landlord’s claim because the party suing – Masri – was not the landlord. He also dismissed a counter-claim by the tenant because the tenant called no evidence to support his claimed loss of personal property. One month later 2040497 sued its former tenant, Samateh, for the same rental arrears, as well as for damages. But 2040497 also lost, this time following a trial in December 2019. Judge Sandra L. Corbett decided that 2040497’s action was res judicata and also an abuse of process, and she awarded enhanced costs of $1,825 to the tenant. She held that 2040497 was wrong to sue because it tried to relitigate matters that had already been decided by ACJ Sharek in the first action. Many landlords who run their business through a corporation (and others operating small businesses) might be shocked to learn that they might have only one chance, when suing, to name the correct legal entity. If they get it wrong, there might be no “do over.” In addition, there might be a monetary penalty for what Judge Corbett called “litigation misconduct”. Continue reading →

Wear and Tear, Cleanliness, Repair, Replacement and Betterment: A Landlord’s Claims for Compensation at the End of a Residential Tenancy

By: Jonnette Watson Hamilton

PDF Version: Wear and Tear, Cleanliness, Repair, Replacement and Betterment: A Landlord’s Claims for Compensation at the End of a Residential Tenancy

Case Commented On: Barry v Navratil, 2019 ABPC 229 (CanLII)

This decision by Judge Jerry LeGrandeur deals with several claims by a landlord for compensation for damages allegedly done to residential premises by former tenants. The landlord claimed for the cost of replacing the carpet in the living room, master bedroom and a closet, based on what the landlord said was damage due to pet urine and, in one specific spot, due to cigarette burns. She also claimed for the cost of replacing the kitchen countertops and backsplash due to a burn from a hot cooking pot. These two claims for replacement rather than repair raised the issue of “betterment,” because the landlord ended up in a better position than she would have been in had the carpet and countertop not been damaged. The landlord also claimed for the cost of materials to sand and paint the garage floor which had been stained by the tenant. That claim raised the issue of wear and tear, although it was resolved as a cleaning issue. Judge LeGrandeur’s written decision provides some helpful clarity for both landlords and tenants on the issues of repairing versus replacing, betterment, wear and tear, and cleaning, as well as the burden of proof, standard of proof, and the need for evidence. It also reinforces the rule that a landlord cannot demand more of a tenant than do the statutory obligations in the Residential Tenancies Act, SA 2004, s R-17 (RTA). Continue reading →

Discrimination Justified in Elder Advocates of Alberta Society Class Action

By: Jonnette Watson Hamilton and Jennifer Koshan

PDF Version: Discrimination Justified in Elder Advocates of Alberta Society Class Action

Case Commented On: Elder Advocates of Alberta Society v Alberta, 2019 ABCA 342 (Can LII)

The Alberta Court of Appeal has dismissed the appeal of the Elder Advocates of Alberta Society from the January 2018 judgment of Justice June Ross, which had dismissed their class-action challenging accommodation fees charged to long-term care residents by the province. Accommodation fees cover expenses such as meals, housekeeping, and building maintenance, and currently range from $55.90 per day for a standard shared room to $68.00 per day for a private room. The essence of the class action claim was that long-term care residents are subsidizing their health care costs, something no other users of the Alberta health care system are required to do. Continue reading →