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.

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

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. Continue reading →

Vexatious Habeas Corpus Applications Contribute to Delayed Access to the Courts

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). Continue reading →

Capacity to Make and Revoke an Enduring Power of Attorney

By: Jonnette Watson Hamilton

PDF Version: Capacity to Make and Revoke an Enduring Power of Attorney

Case Commented On: Pirie v Pirie, 2017 ABQB 104 (CanLII)

The issue in this case was whether the applicant had the mental capacity in July 2016 to revoke his 2008 Enduring Power of Attorney and to create a new Enduring Power of Attorney. His 2008 Enduring Power of Attorney appointed his three children and his wife jointly as his attorneys and became effective if and when he became mentally incapable of understanding the nature and effect of that instrument. His 2016 Enduring Power of Attorney appointed his brother, and in the alternative, his long-term assistant, and in the further alternative, his sister-in-law, immediately upon its execution.

In some ways, this was an easy decision for Justice Robert Hall. If the applicant lacked the mental capacity to revoke the 2008 instrument, then three children who owed the applicant money and his now-estranged wife would be his attorneys. If the applicant had the mental capacity to revoke the 2008 instrument and create the 2016 instrument, then his businessman brother would be looking out for his financial interests, no doubt under the watchful eye of the three children and the now-estranged wife. Nevertheless, the case is noteworthy because it involved a challenge to the widely-accepted test for assessing mental capacity to create and revoke a power of attorney. That challenge argued for the inclusion of an evaluation of the rationality and reasonableness of the applicant’s reasons for making the changes. Although Justice Hall stated he did not accept the challenge to the existing test, he did assess the applicant’s reasons and found that the applicant had ample reason to make the changes. By doing so, he might have introduced some uncertainty into this area of the law.   Continue reading →

When are Late Payment of Rent Charges in Residential Tenancies Unenforceable?

By: Jonnette Watson Hamilton

PDF Version: When are Late Payment of Rent Charges in Residential Tenancies Unenforceable?

Case Commented On: 416566 Alberta Ltd. v Fothergill, 2017 ABPC 96 (CanLII)

This Provincial Court decision by Judge Jerry LeGrandeur, Associate Chief Judge, is of interest because he considers whether the fee a landlord charged for the late payment of rent was a valid pre-estimate of liquidated damages or an illegal penalty. If it is an estimate of damages, the tenant must pay the fee. If it is a penalty, it is unenforceable and the tenant does not have to pay the fee. Judge LeGrandeur’s decision was made under the Mobile Home Sites Tenancies Act, RSA 2000, c M-20, rather than the more often used Residential Tenancies Act, SA 2004, c R-17.1, but both statutes deal with late payment charges the same way: neither says anything at all about them. As a result, late payment fees can be included in leases and, if tenants agree to pay those fees by signing leases that include them, the tenants have to pay the late payment fees unless those fees are what the common law calls a “penalty.” Judge LeGrandeur’s decision, which is applicable to all types of residential tenancies, is welcome because there is a lack of direction in Alberta about how much can be charged for a late payment fee before it becomes an illegal penalty and unenforceable. Continue reading →

Granting a Vexatious Litigant’s Application for Leave to Appeal

By: Jonnette Watson Hamilton

PDF Version: Granting a Vexatious Litigant’s Application for Leave to Appeal

Case Commented On: Belway v Lalande-Weber, 2017 ABCA 108 (CanLII)

In the case law on vexatious litigation, it is occasionally noted that a vexatious litigant order does not bar that litigant’s access to the courts. Instead, a vexatious litigant must apply for and obtain leave from the court before starting or continuing a proceeding. In other words, access to the courts is regulated, not prohibited. But the distinction between regulated access and no access depends to a large extent on what the test is for granting leave. This decision by Justice Sheilah Martin is a rare example of an application for leave being granted. As such, it is interesting to see how high or low it sets the bar for obtaining leave. And because the self-represented applicant in this case had vexatious litigant orders made against him under both the Family Law Act, SA 2003, c F-4.5 and the Judicature Act, RSA 2000, c J-2, it is also interesting to note the contrast between the two regimes on this issue and how Justice Martin deals with the two tests by combining them into one. Continue reading →