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.

How to Interpret a Will, or “Motorcycles make a House a Home”

By: Jonnette Watson Hamilton

PDF Version: How to Interpret a Will, or “Motorcycles make a House a Home”

Case Commented On: Hicklin Estate v Hicklin, 2019 ABCA 136 (CanLII)

Hicklin Estate is a judgment interpreting one word in a will – the word “home.” It is also a judgment with 138 paragraphs and 90 footnotes saying, in the end, that the chambers judge committed no palpable or overriding error in using extrinsic evidence to broadly interpret “home” to include the contents of the house and the garage. Not only was the sole issue a relatively narrow one, but the applicable law appears to be uncontroversial. It does not seem to be a case that calls for any more elaboration of the law than that given it by the lower courtin what the Court of Appeal called a “careful review” of the jurisprudence (at para 40). Nevertheless, lawyers seem to love this lengthy Court of Appeal judgment, applauding its “interesting hypotheticals (which heavily feature vintage Rolls-Royce automobiles)” and calling it a “delight to read, for it is an erudite and learned disquisition” and “a model of stylistic clarity.” However, the stylistic clarity seems to have distracted readers’ attention from problems with the substance of the judgment. Continue reading

The Adverse Impact of Mandatory Victim Surcharges and the Continuing Disappearance of Section 15 Equality Rights

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: The Adverse Impact of Mandatory Victim Surcharges and the Continuing Disappearance of Section 15 Equality Rights

Case Commented On: R v Boudreault, 2018 SCC 58 (CanLII)

It was just over one year ago that our former colleague Sheilah Martin was appointed to the Supreme Court of Canada (see our tribute on ABlawg). Justice Martin has now written her first decision for the Court, R v Boudreault, 2018 SCC 58 (CanLII) which was released in December 2018. The case concerns the constitutionality of victim surcharges, which are mandatory for persons who are discharged, plead guilty, or are found guilty of an offence under the Criminal Code, RSC 1985, c C-46, or the Controlled Drugs and Substances Act, SC 1996, c 19. Writing for a majority of the Court, Justice Martin’s judgment holds that these surcharges violate section 12 of the Canadian Charter of Rights and Freedoms, which protects against cruel and unusual punishment.

Our interest in this post is in exploring how equality infuses Justice Martin’s decision. Equality rights were not directly at issue in the case; rather, the constitutional challenge focused on section 12 as well as the guarantee of life, liberty and security of the person in section 7 of the Charter. Equality arguments were made by only two interveners (see here and here) and equality is mentioned explicitly only once in Justice Martin’s ruling (at para 28). Nevertheless, the discriminatory impact of the surcharge animates her entire judgment.

This leads us to reiterate a point we have made in previous writing (see e.g. here): section 15 of the Charter, the equality guarantee, is often overlooked in favour of other rights and freedoms as a result of the courts’ difficulties with and inconsistent treatment of equality rights. This has led to the analysis of other Charter rights – including section 7 and section 12 – that overlaps with equality, which muddies the content of these other rights. In turn, the lack of a robust equality jurisprudence perpetuates the tendency of parties and courts to avoid section 15. This is not necessarily a problem when other rights can be successfully invoked, as in this case, but it can be a problem when a successful claim depends on equality rights.

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Court of Queen’s Bench Requires Vexatious Litigant to Seek Court’s Permission Before Accessing Any Non-Judicial Body

By: Jonnette Watson Hamilton

PDF Version: Court of Queen’s Bench Requires Vexatious Litigant to Seek Court’s Permission Before Accessing Any Non-Judicial Body

Case Commented On: Makis v Alberta Health Services, 2018 ABQB 976

In many written decisions rendered over the past two years, some judges of the Court of Queen’s Bench of Alberta have been rather disdainful of the vexatious litigant procedures added to the Judicature Act, RSA 2000, c J-2 in 2007, referring to them, for example, as “obsolete and inferior” (Gagnon v Shoppers Drug Mart, 2018 ABQB 888 at para 14). Although the Judicature Act procedures continue to be used in rare cases (e.g. HRMT v SNS, 2018 ABQB 843 at para 102), the Court usually makes it clear that it prefers its own two-step “modern” process – introduced in Hok v Alberta, 2016 ABQB 651 – which they justify as an exercise of a superior court’s inherent jurisdiction. The use of their inherent jurisdiction is said to provide “a more robust, functional, and efficient response to control of problematic litigants” (Templanza v Ford, 2018 ABQB 168 at para 103; Hill v Bundon, 2018 ABQB 506 at para 53). The Judicature Act procedure requires “persistent” bad behavior by a litigant before that litigant’s access to the courts can be restricted (s 23(2)), usually by requiring the litigant to obtain the court’s permission before starting a new court action. The Court of Queen’s Bench does not want to wait for persistent vexatious conduct (Templanza at para 101; 1985 Sawridge Trust v Alberta (Public Trustee), 2017 ABQB 548 at paras 49-50). The legislated procedure also requires notice to the Minister of Justice and Solicitor General (s 23.1(1)), who has a right to appear and be heard in person (s. 23.1(3)), a requirement that suggests how seriously our elected representatives saw restrictions on court access when they added the vexatious litigant procedures to the Act in 2007. The court-fashioned process does not usually require notice to anyone except the person about to be found to be a vexatious litigant, and it has become a written-submissions-only process – no one has the right to appear and be heard in person. The usual restrictions on court access are now characterized as a “very modest imposition” (Knutson (Re), 2018 ABQB 858 at para 42). As this brief summary suggests, the changes made to this area of the law over the past two years have been fairly dramatic. But the Court of Queens’ Bench has now pushed the envelope, extending their inherent jurisdiction even further. In Makis v Alberta Health Services, their inherent jurisdiction is used to control access by a litigant found to be vexatious to non-judicial bodies, i.e. administrative tribunals and other statutory decision-makers.

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Challenge to the Queen’s Bench Vexatious Litigant Procedure

Posted on December 5, 2018; revised June 10, 2019.

By: Jonnette Watson Hamilton

PDF Version: Challenge to the Queen’s Bench Vexatious Litigant Procedure

Case Commented On: Lymer (Re), 2018 ABCA 368, Lymer (Re), 2018 ABQB 859

On November 16, in Lymer (Re), 2018 ABCA 368 (Lymer CA), Justice Frederica Schutz granted Neil Alan Lymer permission to appeal two orders, one declaring him to be a vexatious litigant, and a second imposing 30 days’ imprisonment as the sanction for an earlier finding of contempt. Both of those orders were granted by Lymer’s case management judge, Justice Donald Lee, on October 22, 2018 in Lymer (Re), 2018 ABQB 859 (Lymer QB). It is unusual for the Court of Appeal to grant permission to appeal a finding that a litigant’s access to the courts must be restricted because they have abused court processes (although it happened with an earlier vexatious litigant order imposed by Justice Lee on Mr. Lymer: see Lymer v Jonsson, 2016 ABCA 32). However, the relative scarcity of successful applications for leave to appeal is not the sole reason why Justice Schutz’s decision is of interest. More important to the Court of Queen’s Bench current approach to vexatious litigants are the first three of the four issues Justice Schutz identified as the grounds of appeal (at para 9):

(1) Did the case management judge err in finding that the applicant was a vexatious litigant?

(2) Did the case management judge err in failing to ensure a full and fair hearing in respect of the vexatious litigant motion, in breach of natural justice?

(3) Did the case management judge err in imposing an overly broad vexatious litigant order?

(4) Did the case management judge err in imposing as a sanction for contempt a period of incarceration, without conducting a full and fair viva voce hearing, and in breach of the requirements of s 7 of the Charter and the principles of natural justice?

Leave to appeal was granted on the basis that Mr. Lymer met the general test for permission to appeal, as well as the additional burden imposed on a litigant found to be vexatious (Lymer CA, at para 8). The general test requires an important question of law or precedent, a reasonable chance of success on appeal, and no undue prejudice due to the delay caused by an appeal (Lymer CA, at para 6). The additional element requires someone like Mr. Lymer to show his case does not amount to an abuse of process (Lymer CA, at para 7). The only indication of what the important questions of law are in this case are the four issues Justice Schutz set out as the grounds of appeal. She did not discuss them any further. Nor did she say anything about why or how the “reasonable chance of success on appeal” element was fulfilled.

In the balance of her order, Justice Schutz stayed the custodial sentence of imprisonment which Mr. Lymer had been serving at the Edmonton Remand Centre since Justice Lee’s October 22 order (Lymer CA, paras 10-12).

First Issue

The scope of the first question – whether the case management judge erred in finding that the applicant was a vexatious litigant – is unclear. Is it the law cited and applied by Justice Lee that is being called into question, or merely whether that law was properly applied in Mr. Lymer’s case? Given the apparent breadth of the challenges to the Queen’s Bench procedure in questions 2 and 3, it seems more likely than not that it is the law that was cited and applied that is to be scrutinized.

Justice Lee’s court access restriction order was issued under the Court’s claimed inherent jurisdiction, rather than under the vexatious litigant provisions of the Judicature Act, RSA 2000, c J-2 Part 2.1. Justice Lee had adopted and applied what the Court of Queen’s Bench calls the “modern” approach to “court access restriction orders,” introduced two years ago in Hok v Alberta, 2016 ABQB 651 and applied in more than thirty subsequent cases.

I first discussed the unusual nature of the two-step process adopted in Hok in “The Vexing Question of Authority to Grant Vexatious Litigant Orders.” Interestingly, the two-step process was the Court of Queen’s Bench’s response to the Court of Appeal decision in Lymer v Jonsson– the same Neil Alan Lymer.

Second Issue

The second question on the Lymer appeal is whether the rules of natural justice have been complied with, specifically in ensuring a full and fair hearing on the vexatious litigant motion brought by the court on its own motion. The issue of a full and fair hearing was the issue on which the Court of Queen’s Bench pre-pre-Hok process had faltered in Lymer v Jonsson.

In response to Lymer v Jonsson, the Court of Queen’s Bench adopted a two-step process when dealing with persons against whom court access restrictions are being considered (Hok at para 10). A judge who observes problematic conduct by a litigant is to first assess that conduct to determine if it is an abuse of court process or a sign of vexatious conduct that might require restrictions on court access. If the judge does decide that restrictions are potentially required, the judge makes an order that sets a deadline for the litigant whose conduct is called into question to make written submissions. Only this written submission is allowed. At the same time, the court issues an interim order that immediately prohibits the litigant from continuing or commencing further court proceedings in any court in Alberta without leave. These interim orders are prepared by the court, without the need of approval by any party. In the second step, the same judge reviews the written submission, if there is one, and assesses the litigant’s conduct against the still-expanding list of the indicia of abusive litigation, before determining whether court access restrictions are appropriate and, if so, how broad they should be. If a court access restriction order is granted, it is prepared and filed by the court.

The two-step, Alberta-specific process is discussed in more detail in my September 2018 post, “The Increasing Risk of Conflating Self-Represented and Vexatious Litigants.”

Third Issue

The question about whether the order in this case was overly broad is a question that has been raised about vexatious litigant orders before, by both the Minister of Justice and the Court of Appeal.

In Hok, the Minister of Justice had raised concerns about the proper scope or breadth of vexatious litigant orders. The Minister submitted that such orders should be narrowed to a defined group of targets where that group can be identified by the litigant’s history. The Minister also argued that these orders should normally be restricted to future actions brought before the court making the order, unless there is evidence that the litigant has acted or would likely act in a vexatious manner in some other court.

The Court of Appeal previously expressed its reservations about the breadth of vexatious litigant orders granted under the Judicature Act in RO v DF, 2016 ABCA 170. That case held that vexatious behaviour confined to one case or one respondent will not justify the broad response of a typical vexatious litigant order under section 23.1 of the Judicature Act, which requires “persistent” improper conduct.

The Court of Queen’s Bench’s current approach is to focus on anticipated future abuses when determining the scope of their orders. The future is predicted based on the litigant’s past conduct.

For example, in this particular case, Justice Lee’s order required Mr. Lymer be represented by a lawyer if he sought permission from a court to bring a new or continue an old court action (at paras 48-50, and 138).

Conclusion

As is evident from the fact that the Minister of Justice raised the same three issues in Hok as the first three issues in justice Schutz’s order, these questions have lingered for the past two years. This is the first time that the two-step Hok process will be scrutinized by the Court of Appeal.

This post was revised on June 10, 2019 to delete all reference to the Court of Queen’s Bench Civil Procedure Note 7.  


This post may be cited as: Jonnette Watson Hamilton, “Challenge to the Queen’s Bench Vexatious Litigant Procedure” (June 10, 2019), online: ABlawg, http://ablawg.ca/wp-content/uploads/2019/06/Blog_JWH_Lymer.pdf

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Saskatchewan Land Titles Decision Calls Out for Appellate Review

By: Nigel Bankes and Jonnette Watson Hamilton

PDF Version: Saskatchewan Land Titles Decision Calls Out for Appellate Review

Case Commented On: Registrar of Titles and Great West Life Assurance Company and Primrose Drilling Ventures Ltd, 2018 SKQB 290.

This decision deals with the power of the registrar to correct an error made back in the chain of title, the effect of a registrar’s caveat, and the status of a purchaser where a title is encumbered by a registrar’s caveat. Unfortunately, Justice Kovach has, in our view, reached incorrect conclusions on each of these issues. We hope that the Saskatchewan Court of Appeal has the opportunity to correct these errors.

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