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.

Responsibility for Undisclosed Defects in Pre-Owned Real Property

By: Jonnette Watson Hamilton

PDF Version: Responsibility for Undisclosed Defects in Pre-Owned Real Property

Case Commented On: Smiley v Salat, 2018 ABPC 178 (CanLII)

The freely available “virtual library of Canadian legal information” that is CanLII does not allow Google or other internet search engines to index its text or case names and display them in search results (except for Supreme Court of Canada decisions). As a result, CanLII’s million-plus Canadian court decisions and other documents usually do not turn up on a web search, which provides individuals with some privacy, as explained in the CanLII Privacy Policy. However, when a third party links to a CanLII decision, as I have done in this post, the text can be indexed by search engines. Some decisions should be widely available through a Google or similar search. I think this decision by Provincial Court Judge Don Higa is a good example of a decision that should be easily accessible to both lawyers and non-lawyers. It is a good summary of the law that determines when a seller is liable for defects in a just-purchased home and other properties, when those defects were not disclosed by the seller or were not noticed during an inspection. Accessible, understandable law is important to purchasers, especially first-time home owners, faced with unexpected problems and their potential financial and emotional consequences. It is also important to sellers who need to know whether or not settling is their best option.

Judge Higa conveniently divided the issue in this case of who was liable for the 2016 repairs to the sewer line into six questions. It is these six questions – adapted below to be more generic – that sellers or buyers experiencing a dispute about a defect need to consider. The facts of this particular case – the fairly common problem of a sewer backing-up due to intrusive tree roots –illustrate the type of evidence required in order to answer the six questions.

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When is a Registered Owner of Land not an “Owner” under Alberta’s Builders’ Lien Act?

By: Jonnette Watson Hamilton

PDF Version: When is a Registered Owner of Land not an “Owner” under Alberta’s Builders’ Lien Act?

Case Commented On: Georgetown Townhouse GP Ltd v Crystal Waters Plumbing Company Inc, 2018 ABQB 617

As Master Prowse explains, this case involves an often-litigated issue: when can an owner of land, who knows that work is being done on the land, defeat the liens of unpaid contractors because the owner is not within the definition of “owner” in section 1(j) of the Builders’ Lien Act, RSA 2000, c B-7? Master Prowse’s decision offers a succinct and up-to-date answer to that question in one of three common contexts, and advice on where to begin researching the answer in the other two contexts.

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The Increasing Risk of Conflating Self-Represented and Vexatious Litigants

By: Jonnette Watson Hamilton

PDF Version: The Increasing Risk of Conflating Self-Represented and Vexatious Litigants

Case Commented On: Alberta Treasury Branches v Hawrysh, 2018 ABQB 475 (CanLII) (Hawrysh #1) and Alberta Treasury Branches v Hawrysh, 2018 ABQB 618 (CanLII) (Hawrysh #2)

The August 20th decision of Justice Peter Michalyshyn in Hawrysh #2 was step two of the now usual two-step process adopted by the Alberta Court of Queen’s Bench in Hok v Alberta, 2016 ABQB 651 (CanLII) to deal with vexatious litigants. Step one was taken two months earlier in Hawrysh #1. The two decisions are interesting for at least three reasons. First, they show just how quickly the Court of Queen’s Bench of Alberta now acts to restrict access to the courts by someone whose litigation behaviour is judged to be vexatious. Second, very little of the behaviour found to be abusive in these cases occurred in the courtroom or in documents filed with the court. Third, and most importantly, the litigant’s use of Pintea v Johns, 2017 SCC 23 (CanLII), [2017] 1 SCR 470 and the Canadian Judicial Council “Statement of Principles on Self-represented Litigants and Accused Persons (2006)” was held to be an independent indicia of abusive litigation justifying the imposition of court access restrictions.

These cases also appear to provide further examples of what Dr. Julie Macfarlane of the National Self-Represented Litigants Project (NSRLP) wrote about in her September 6th blog post, “Inequality and Discrimination in the Justice System” – that, in her words, “SRLs are “the other” in the justice system.” Specifically, Dr. Macfarlane noted that the NSRLP Research Reports show that most self-represented litigants “[a]re penalized for errors that are seen as intentional mischief-making,” and “[p]ushback is regarded as bad behaviour that must be punished.”

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The Supreme Court of Canada’s Approach to the Charter’s Equality Guarantee in its Pay Equity Decisions

By: Jonnette Watson Hamilton and Jennifer Koshan

PDF Version: The Supreme Court of Canada’s Approach to the Charter’s Equality Guarantee in its Pay Equity Decisions

Case Commented On: Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 (CanLII); Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18 (CanLII)

The latest decisions of the Supreme Court of Canada on s 15 of the Canadian Charter of Rights and Freedoms are the two companion pay equity decisions rendered May 24, 2018 in Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 (CanLII) (APP) and Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18 (CanLII) (CSQ). The analysis of the Charter’s s 15(1) prohibition of discrimination on the ground of sex and s 15(2) protection of ameliorative programs from charges of reverse discrimination – the two-case, five-judgment spanning focus of this post – reveals a seriously fractured court reminiscent of the court that decided the so-called “equality trilogy” of the mid-1990s. It reveals the lack of consensus at the end of Beverley McLachlin’s term as Chief Justice and after a significant turnover in members in the past four years, with the three most recently appointed judges who heard these appeals dissenting. The issues this post addresses – and we address them only briefly in this forum – are: (1) What is the current legal test for discerning a breach of s 15? (2) What are the contentious points on which the current justices disagree? And (3) What might these pay equity decisions mean for the future of equality law in general? Unfortunately, there is enough disagreement about the answers to the first two questions that this lengthy post will only discuss the relevant law and not go into detail on its application to the facts in this case (except in the use of comparators).

An earlier ABlawg post by Jennifer Koshan, The Supreme Court of Canada’s Pay Equity Decisions: A Call to Action for Alberta?, explores the implications of these two decisions for the Alberta government’s pay equity obligations. The context and facts of both decisions are detailed in that post, but a brief recap to set the stage for the s 15 analysis is in order.

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Foreclosing Mortgagees’ Liability for Tenants’ Security Deposits

By: Jonnette Watson Hamilton and Shaun Fluker

PDF Version: Foreclosing Mortgagees’ Liability for Tenants’ Security Deposits

Case Commented On: CIBC Mortgages Inc v Bello, 2018 ABQB 176 (CanLII)

This appeal from an order of a Tenancy Dispute Officer of the Residential Tenancy Dispute Resolution Service (RTDRS) is worth noting for several reasons. First, it appears that the question of whether a mortgagee becomes a “landlord” under the Residential Tenancies Act, SA 2003, c R-17.1 (RTA) upon foreclosing on leased residential premises had not been addressed before. This is an important question for tenants looking to recover their security deposits and for foreclosing mortgagees who have not received those security deposits from their mortgagor. Second, the standard of review to be applied on an appeal from a Tenancy Dispute Officer’s order has been controversial within the Court of Queen’s Bench of Alberta. Some decisions have held that correctness is the standard, whereas others, including this one, hold that the standard is one of reasonableness. Third, the court’s clear statement and elaboration of the purpose of the RTA–to address the power imbalance between landlords and tenants–should be helpful to tenants in future cases. Fourth, the decision is a good example of statutory interpretation and eminently suitable for a first year law school course on legislation. Finally, insofar as Tenancy Dispute Officers are not required to give reasons as part of their written orders, the occasional appeals of those orders (which must be accompanied by a transcript of the Tenancy Dispute Officer’s oral reasons) offer rare glimpses into the legitimacy of the dispute resolution services provided by the RTDRS. Continue reading →