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Author: Jonnette Watson Hamilton Page 7 of 42

B.A. (Alta.), LL.B. (Dal.), LL.M. (Col.).
Professor Emerita.
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Keeping an Eye on Foreclosing Banks

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On January 22, 2020

In Uncategorized

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.

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

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On January 17, 2020

In Uncategorized

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”.

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

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On November 8, 2019

In Landlord/Tenant, Property

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).

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Discrimination Justified in Elder Advocates of Alberta Society Class Action

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On October 3, 2019

In Constitutional, Equality

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.

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Time for Buy-Back: Supreme Court Set to Hear Important Adverse Effects Discrimination Case

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On September 5, 2019

In Constitutional, Equality

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: Time for Buy Back: Supreme Court Set to Hear Important Adverse Effects Discrimination Case

Case Commented On: Fraser v Canada (Attorney General), 2018 FCA 223 (CanLII), leave to appeal granted, 2019 CanLII 42345 (SCC)

In December, the Supreme Court of Canada will hear an appeal in an equality rights challenge under section 15(1) of the Canadian Charter of Rights and Freedoms. Several female members of the Royal Canadian Mounted Police argue that their employer’s pension rules – which denied pension buy-back rights to those who were job-sharing – discriminated against them based on their sex and family or parental status. The case is a classic example of adverse effects discrimination, involving a claim that a law or policy that is neutral on its face has an adverse impact on the basis of grounds protected under section 15(1). In this post we will review the Federal Court and Federal Court of Appeal decisions rejecting the women’s claim to set the stage for the upcoming appeal at the Supreme Court.

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