Author: Jonnette Watson Hamilton Page 15 of 42

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

PDF Version: You Can’t Rely on a Motor Vehicle’s Mechanical Fitness Assessment

Case Commented On: R v 954355 Alberta Inc (The Fast Lane), 2016 ABPC 229 (CanLII)

The Fast Lane, a used car dealership in Calgary, was charged with three offences under the Fair Trading Act, RSA 2000, c F-2. It was found guilty of misleading and deceiving the customer by representing that the 2006 Mazda she bought was in roadworthy condition, but not guilty of the other two offences. The Fast Lane had argued in its defence that it had relied upon the Mechanical Fitness Assessment required by the province’s Vehicle Inspection Regulation, Alta Reg 111/2006. Judge Heather Lamoureux concluded The Fast Lane’s representation of roadworthiness was not intentionally misleading. However, she held that the used car dealer could not rely on the Mechanical Fitness Assessment for its opinion on roadworthiness because that Assessment did not speak to roadworthiness. A car buyer should not rely on that Assessment either. The Mechanical Fitness Assessment is yet another disappointment in the operation of the troubled Alberta Motor Vehicle Industry Council (AMVIC), which regulates motor vehicles, including their sale and repair, as well as the licensing of dealer and repair facilities in Alberta.

No Priority for a Matrimonial Property Certificate of Lis Pendens Sandwiched Between Writs of Enforcement

By Jonnette Watson Hamilton

On November 9, 2016

In Family, Property, Statutory Interpretation

By: Jonnette Watson Hamilton

PDF Version: No Priority for a Matrimonial Property Certificate of Lis Pendens Sandwiched Between Writs of Enforcement

Case Commented On: Singh v Mangat, 2016 ABQB 349 (CanLII)

The issue in Singh v Mangat was one of priority: in what order were different groups entitled to sale proceeds. There were three types of claimants to the proceeds of the sale of a husband’s interest in the matrimonial home: the wife, who had brought a matrimonial property action and registered a certificate of lis pendens on the title to those lands; those of the husband’s judgment creditors who registered their writs of enforcement on the title to the home before the wife’s certificate of lis pendens; and those of the husband’s judgment creditors who registered their writs of enforcement on the title to the home after the wife’s certificate of lis pendens. The relative timing of the registrations created what Master A. R. Robertson, QC, called a “CLP sandwich” (at para 2). This case appears to be the first time an issue of priority in circumstances involving a “CLP sandwich” has come before the Alberta courts. Master Robertson analyzed a complex statutory interpretation issue in order to resolve the priorities issue in this decision (handed down in June 2016 but only added to the CanLII database in October). In a result that might surprise those accustomed to priorities under a Torrens land title system, he resolved the issue in favour of all of the judgment creditors, those registered before the certificate of lis pendens and those registered after.

Putting the Negative in Restrictive Covenants

By Jonnette Watson Hamilton

On October 24, 2016

In Property

By: Jonnette Watson Hamilton

PDF Version: Putting the Negative in Restrictive Covenants

Case Commented On: Russell v Ryan, 2016 ABQB 526 (CanLII)

This is a restrictive covenant case involving a planned golf course and an adjacent residential subdivision. It does not offer any new law on the requirements for a valid restrictive covenant in equity or on the specific requirement that a restrictive covenant must be negative in substance. Nevertheless, by distinguishing the wording of the restrictive covenant in this case from the wording of the restrictive covenant in Aquadel Golf Course Limited v Lindell Beach Holiday Resort Ltd, 2009 BCCA 5 (CanLII), reversing 2008 BCSC 284 (CanLII), it usefully contributes to an understanding of when a covenant will be considered negative in substance. Russell v Ryan also raises the issue of whether covenants in a development agreement are severable from one another for the purposes of determining if one of them, or a portion of one of them, is negative in substance but, unlike the BC Court of Appeal decision in Aquadel, Alberta Court of Queens Bench Justice Joanne Goss does not decide this issue.

The ‘Colourless Green Ideas Sleep Furiously’ Problem with Organized Pseudo-Legal Commercial Arguments

By Jonnette Watson Hamilton

On October 11, 2016

In Access to Justice

By: Jonnette Watson Hamilton

PDF Version: The ‘Colourless Green Ideas Sleep Furiously’ Problem with Organized Pseudo-Legal Commercial Arguments

Case Commented On: Dove v Canada, 2016 FCA 231 (CanLII)

The Federal Court of Appeal decision in Dove v The Queen is an unusual decision dealing with Organized Pseudo-Legal Commercial Arguments (OPCA). It’s short, for one thing— only six paragraphs in total compared to the 736 paragraph decision in Meads v Meads, 2012 ABQB 571 (CanLII), the judgment in which Associate Chief Justice John D. Rooke coined the OPCA label. He defined OPCA litigants as “persons [who] employ a collection of techniques and arguments promoted and sold by ‘gurus’ … to disrupt court operations and to attempt to frustrate the legal rights of governments, corporations, and individuals.” (at para 1). Second, it uses Noam Chomsky’s most famous sentence to help explain what is wrong with the appellants’ claims, rather than the usual words of legal censure. And third, it asserts that OPCA litigation is not a problem for the Federal Court of Appeal, in contrast to the more common judicial hand-wringing.

Oral Promises of Land and Controversial Issues in the Doctrine of Part Performance

By Jonnette Watson Hamilton

On July 29, 2016

In Contracts, Property

By: Jonnette Watson Hamilton

PDF Version: Oral Promises of Land and Controversial Issues in the Doctrine of Part Performance

Case Commented On: Jordan v Skwarek, 2016 ABQB 380 (CanLII)

As Master John T. Prowse noted, the facts of this case are not unusual: “A family member, often a son, works on a family farm on the understanding that he will inherit it when the owner, typically his father or grandfather, dies. If he does not inherit the farm the son brings a claim for the farm, or in the alternative a claim for compensation based on the doctrine of unjust enrichment” (at para 2). As in similar cases, the understanding in this case appeared to be unenforceable because it was an unwritten one and therefore did not meet the requirements of section 4 of the Statute of Frauds. The decision is interesting because it points to disagreements among the Canadian courts of appeal about the correct test for part performance, what that test demands, and what evidence may be relied upon to prove acts of part performance to get around the requirements of section 4 of the Statute of Frauds.