Author: Jonnette Watson Hamilton Page 12 of 42

B.A. (Alta.), LL.B. (Dal.), LL.M. (Col.).
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By: Jonnette Watson Hamilton

PDF Version: Abatement of Rent for Landlord’s Breach of the Minimum Housing and Health Standards

Case Commented On: C.V. Benefits Inc. v Angus, 2017 ABPC 118 (CanLII)

This decision is important for two reasons. First, Assistant Chief Judge Jerry LeGrandeur awarded the tenant an abatement of her rent based on her landlord’s breach of section 16(c) of the Residential Tenancies Act, SA 2004, c R-17.1 (RTA). Section 16(c) requires landlords to ensure that rented premises “meet at least the minimum standards prescribed for housing premises under the Public Health Act and regulations.” Usually abatement of rent is granted for a landlord’s breach of section 16(b) of the RTA, which is the landlord’s promise that it will not “in any significant manner disturb the tenant’s possession or peaceful enjoyment of the premises.” Relying on section 16(b) suggests that a tenant must be unable to use or possess all or a part of the rented premises. Indeed, the landlord in this case argued that there needed to be an actual loss of physical use of all or part of the premises before a court could grant an abatement of rent. Tying the abatement of rent remedy to tenants’ inability to physically occupy the premises might seem appropriate if a tenant is forced out of possession by flooding or a bedbug infestation. However, tenants need to be able to be awarded an abatement of their rent when the problems are persistent but less serious breaches of minimum housing standards that do not drive them out of possession or entitle them to terminate their lease. Judge LeGrandeur’s decision made it clear that tenants can rely on section 16(c) when seeking abatement of their rent. Second, rather than calculating the amount of the abatement based on what percentage of the square footage of the rented premises the tenant could not use, Judge LeGrandeur adopted a more contextualized approach that seems much more appropriate.

Interim Measures in a Classic Church Property Dispute

By Jonnette Watson Hamilton

On June 28, 2017

In Constitutional, Property

By: Jonnette Watson Hamilton

PDF Version: Interim Measures in a Classic Church Property Dispute

Case Commented On: Bruderheim Community Church v Moravian Church in America (Canadian District), 2017 ABQB 355 (CanLII)

In this brief judgment, Justice Brian Burrows granted an interim injunction restraining the Board of Elders of the Moravian Church in America from interfering with the use of church land and buildings located in Bruderheim, Alberta by the local congregation, formerly known as the Bruderheim Moravian Church and now known as the Bruderheim Community Church. The application of the standard three-part test for an interim injunction is of interest for the “serious issue to be tried” that it discloses, as well as for the understanding of “irreparable harm” applied in the situation of a local congregation being evicted from its place of worship. In addition, this particular dispute appears to have all the elements of a classic church property dispute brought to the civil courts as a last resort as a result of an irreparable rift within a church over a matter of doctrine. The reason for the Bruderheim congregation’s disassociation was a decision by the Moravian Church, Northern Province that individuals were eligible to be clergy regardless of their sexual orientation or marital status.

“Abandoned Goods” Require Abandoned Premises or Expired/Terminated Tenancies Plus Vacated Premises

By Jonnette Watson Hamilton

On May 26, 2017

In Landlord/Tenant

By: Jonnette Watson Hamilton

PDF Version: “Abandoned Goods” Require Abandoned Premises or Expired/Terminated Tenancies Plus Vacated Premises

Cases Commented On: Wilderdijk-Streutker v Zhao, 2017 ABPC 24 (CanLII) and Shearer v Shields, 2017 ABPC 108 (CanLII)

A landlord can dispose of the belongings that a residential tenant has left behind at the rented premises if those belongings meet the definition of “abandoned goods” in section 31(1) of the Residential Tenancies Act, SA 2004, c R-17.1. That section says “abandoned goods” are goods left at residential premises by a tenant who has either abandoned the premises or has vacated the premises after their tenancy has expired or been terminated. Two recent Provincial Court judgments discuss whether a tenant’s belongings were “abandoned goods” or not. In both judgments, the landlords were found to have acted rashly and the tenants were found to have not abandoned their belongings. However, only one of the judgments considers whether the belongings were “abandoned goods” by paying attention to the definition in section 31(1) of the Act. That definition requires that the focus be on the premises and the tenant’s legal relationship to those premises, and not on the belongings themselves.

For Golfers: A Classic Bailment Case with an Exclusion Clause Issue

By Jonnette Watson Hamilton

On May 18, 2017

In Contracts, Property, Provincial Court

By: Jonnette Watson Hamilton

PDF Version: For Golfers: A Classic Bailment Case with an Exclusion Clause Issue

Case Commented On: Bloomer v Connaught Golf Club, 2017 ABPC 105 (CanLII)

Bailment is an interesting legal concept because it is ubiquitous and because it is at the overlap of contract, property and tort law and yet is its own distinct area of law. However, because the issue in Bloomer v Connaught Golf Club involved an exclusion clause, the exclusive focus of Judge Derek G. Redman’s decision was on contract law (rather than the far more fascinating property law). This case is also factually simple, but those facts might disturb some readers. The Connaught Golf Club — which Mr. Bloomer was a member of — had agreed to store Mr. Bloomer’s golf clubs for him but was unable to find his golf clubs when he came in to play his daily golf game with his wife on June 24, 2016. In other words, the case is about a pro shop in Medicine Hat that lost a club member’s golf bag and its contents.

Vexatious Habeas Corpus Applications Contribute to Delayed Access to the Courts

By Jonnette Watson Hamilton

On May 16, 2017

In Constitutional, Vexatious Litigants

By: Jonnette Watson Hamilton

PDF Version: Vexatious Habeas Corpus Applications Contribute to Delayed Access to the Courts

Case Commented On: Ewanchuk v Canada (Attorney General), 2017 ABQB 237 (CanLII)

This vexatious litigant case is interesting for five reasons. First, it was tied to an application for habeas corpus and in the process of the decision we learn something about the Court of Queen’s Bench’s procedure for hearing such applications. Second, there is an emphasis on vexatious litigation’s cost to other litigants. Third, Justice D.R.G. Thomas’ order explicitly followed Hok v Alberta, 2016 ABQB 651 (CanLII) by making the vexatious litigant order under the court’s inherent jurisdiction, rather than under the Judicature Act. Fourth, this order also follows Hok in extending the protection of the order to the Provincial Court of Alberta but omitting the Alberta Court of Appeal from its scope. And finally, yes, the Stephen Brian Ewanchuk who is the applicant in this case is that Ewanchuk. He is the individual who was convicted of sexually assaulting a 17-year-old female by the Supreme Court of Canada in R v Ewanchuk, [1999] 1 SCR 330, 1999 CanLII 711 (SCC), in a case made infamous by the exchange between Justice McClung of the Alberta Court of Appeal and Justice L’Heureux-Dubé of the Supreme Court of Canada – the “bonnet and crinolines” case. These days Ewanchuk is a prisoner at the Bowden Institution, serving a 16.5-year sentence for sexually assaulting an 8-9 year old female, his fifth conviction for sexual assault. His habeas corpus application essentially complained about the conditions of his detention at the Bowden Institution and some readers might experience schadenfreude in reading about his complaints (i.e. pleasure derived from the misfortune of others when the other person is perceived to deserve the misfortune, the misfortune is relatively minor, and we ourselves did not generate the other’s misfortune).