Author Archives: Admin

New Rules of Court Interpreted: Rule 12.48 and Summary Judgment in Divorce Proceedings

Case commented on: Maykowski v. Maykowski, 2011 ABQB 31

This case is described by Justice D.C. Read as “high-conflict divorce proceedings” commenced by the husband in combination with a claim for matrimonial property division, and in which the wife counterclaimed for divorce and distribution of matrimonial property. The wife sought summary judgment based on an alleged settlement agreement between the parties concerning the divorce and matrimonial property. Justice Read held that summary judgment was not available, based on an interpretation of Rule 12.48 of the new Alberta Rules of Court, Alta. Reg. 124/2010. According to Justice Read, “It is patently clear from R. 12.48 that summary judgment is not available in any action under the Divorce Act. Although summary judgment is available in proceedings under the Matrimonial Property Act, if the action was commenced as a combined proceeding with the Divorce Act, because of R. 12.48(b), a summary judgment application under the Matrimonial Property Act can be made only after that action has been severed from the Divorce Act proceedings.” (at para. 16). Because the alleged settlement agreement dealt with claims made under the Divorce Act related to child custody, child and spousal support in addition to matrimonial property claims, summary judgment was not available (at para. 19). Justice Read noted that this would also have been the outcome under the old Alberta Rules of Court, Alta. Reg. 390/1968, Rule 159, but noted that the exclusion has been outlined in more detail in the New Rules (at para. 15). Justice Read ordered the parties to proceed immediately to alternative dispute resolution, and if unsuccessful there, to trial (at para. 31).

New Rules of Court Interpreted: Rule 7.1(1)(a) and the Test for Severance

Case commented on: Envision Edmonton Opportunities Society v. Edmonton (City), 2011 ABQB 29

This case involved an application by the City of Edmonton to sever a question from a judicial review of the City’s decision to reject a petition by Envision, which demanded that the Edmonton City Centre Airport remain open and that the City actively promote the use of the airport. The petition was rejected by the City Clerk on the basis that it was filed outside of the time limits established in the Municipal Government Act, R.S.A. 2000, c. M-26, and that the required number of electors did not sign the petition. Envision sought mandamus to require the City to introduce a bylaw on the matter and to fix an election date to vote on the bylaw. The City sought to have the question regarding the time limit severed and heard first on the grounds that the second question (compliance with the Municipal Government Act) would require significant expense that could be avoided based on the outcome of the first question. Continue reading →

ABlawg turns 3

This month we are celebrating the third anniversary of the launch of ABlawg. In response to our call for new subscribers, we have tripled the number of people receiving notice by email and RSS feed of new ABlawg posts. Readers may have noticed that we have started to include shorter posts on things like leave to appeal decisions and appeal hearings in addition to our longer comments on developments in Alberta case law, legislation and policy. On Friday, we will be launching a new feature on ABlawg called “New Rules of Court Interpreted”. This feature will briefly highlight judicial interpretations of the new Alberta Rules of Court, Alta. Reg. 124/2010. We are always open to new ideas from our readers, so please let us know if you have suggestions for other features on ABlawg. Thanks for reading.

Supreme Court of Canada hears appeal in Alberta v. Elder Advocates of Alberta Society

Case Commented On: Her Majesty the Queen in Right of the Province of Alberta v. Elder Advocates of Alberta Society et al., 2009 ABCA 403, appeal heard January 27, 2011

On January 27, 2011, the Supreme Court of Canada heard arguments in the case of Alberta v. Elder Advocates of Alberta Society et al. The case arose after the provincial Health Minister issued a directive in August 1991 indicating that the operators of long term care facilities in Alberta were to charge and collect the maximum accommodation charge permitted by s. 3(1) of the Nursing Homes Operation Regulation, A.R. 258/85. The plaintiffs sought to certify class action proceedings under the Class Proceedings Act, R.S.A. 2000, c. C-16.5, on behalf of approximately 14,000 long term care facility residents. The plaintiffs argued that the residents had been overcharged because the Crown and Regional Health Authorities did not ensure that the monies paid by them for the “accommodation charge” were used solely for accommodation and meals. The class proceedings were certified by Justice Sheila Greckol of the Alberta Court of Queen’s Bench (see 2008 ABQB 490) and this decision was upheld by the Alberta Court of Appeal (2009 ABCA 403, per Justices Conrad, Berger and Rowbotham). The overall issue in the case is whether class proceedings were properly certified, which in turn raises issues related to the underlying cause of action. The Supreme Court described those issues as follows: What is the test for imposing a fiduciary duty upon the Crown outside the Aboriginal context? Does the province owe a private law duty to “exercise all reasonable care, skill and diligence with respect to the administration, monitoring and auditing of the public funding provided to operators and the accommodation charges paid to operators by residents”? If the province does not owe a fiduciary duty or duty of care with respect to setting the maximum accommodation charge, can dismissal of the common law claims against the province be avoided by pleading unjust enrichment? Do the pleadings support a Charter damages claim? Should a class action be certified based on any surviving cause of action? The Supreme Court reserved its decision in the case.

Introducing LawNet Alberta, formerly known as ACJNet Alberta

Thanks to the Alberta Law Foundation, the Access to Justice Network, ACJNet, a well-known Canadian public legal information and education site, has been comprehensively restructured and re-launched as three attractive web portals: LawNet Alberta, LawNet Canada, and LawNet Français. The new LawNet Alberta portal has some interesting new features, including a Special Topics section that features items related to issues of interest to Albertans. That section currently includes information on topics such as “Full Body Scanners in Airports”, “Grandparents’ Rights” and “Privacy and Facebook.”