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.

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

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. Continue reading →

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

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. Continue reading →

Ordinary Self-Represented Litigant or Organized Pseudolegal Commercial Argument Litigant?

By: Jonnette Watson Hamilton

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Case commented on: Alberta v Greter, 2016 ABQB 293 (CanLII)

The September 2012 decision of Meads v Meads, 2012 ABQB 571, established a continuum of litigants, ranging from very commonly encountered self-represented litigants, to infrequently encountered vexatious litigants, through to the highly unusual sub-set of vexatious litigants that Associate Chief Justice J.D. Rooke labelled “organized pseudo-legal commercial argument” or OPCA litigants. For a number of reasons, it can sometimes be easy to conflate these categories. Vexatious and OPCA litigants are almost always also self-represented. And a few of the OPCA concepts and strategies that Justice Rooke described in Meads might the part of the ordinary self-represented litigant’s way of coping with unfamiliar legal processes, documents and jargon. In addition, the rising tide of self-represented litigants can be overwhelming for judges, trying their tolerance and patience. All of this has been documented in the research reports of the National Self-Represented Litigants Project (NSRLP). But whatever the reasons, conflating these categories is almost always detrimental to the ordinary individual who represents him- or herself in court simply because they have no choice. Although there are not enough facts set out in the judgment of the Master in Chambers, Sandra Schulz, to be sure, I wonder if Angela Greter, the defendant in Alberta v Greter, is simply an ordinary self-represented litigant and not the OPCA litigant questioning the authority and legitimacy of the courts that Master portrayed her to be. Continue reading →

Vexatious Proceedings Distinguished from Vexatious Litigants

By: Jonnette Watson Hamilton

PDF Version: Vexatious Proceedings Distinguished from Vexatious Litigants

Case commented on: R.O. v D.F., 2016 ABCA 170 (CanLII)

This Court of Appeal decision is useful in drawing a distinction between litigation that is vexatious and a litigant who is vexatious. A vexatious court proceeding may be challenged under various provisions in the Alberta Rules of Court, Alta Reg 124/2010. Typically, the vexatious proceeding is brought to an end and costs are awarded against the person responsible. The scope of the relief is confined to the one particular case. A vexatious litigant order, on the other hand, is made under section 23.1 of the Judicature Act, RSA 2000, c J-2, and typically forbids the person against whom it is made from commencing or continuing any proceedings in any court in Alberta against any person. Declaring someone to be a vexatious litigant is a much broader and more serious matter. The issue in this appeal was whether R.O. was a vexatious litigant, as the Court of Queen’s Bench judge had declared her to be, when all of her allegedly vexatious behaviour was confined to this one case. Continue reading →

Calculating Damages for a Trespass to Land, Actionable Per Se

By: Jonnette Watson Hamilton

PDF Version: Calculating Damages for a Trespass to Land, Actionable Per Se

Case Commented On: Corlis v Blue Grass Sod Farms Ltd., 2016 ABPC 55 (CanLII)

Frank Corlis, the plaintiff in this action, was awarded the precise sum of $5,500.80 in damages for Blue Grass Sod Farms’ trespass to his land. As an old-fashioned trespass to land case, this decision’s most interesting points are about the calculation of damages. Cases explaining damages for these torts that are “actionable per se” are not that common.

The facts were a little unusual. Glen Armitage owned a quarter section of land that produced sod and he sold a portion of it in 2005 to Corlis. Corlis’ land was undeveloped, except for its production of sod. Although Corlis planned to build a home on the land, he never took any steps to do so.

Blue Grass Sod Farms leased the Armitage land for $85 per acre in 2009. The company had some discussions with Corlis about looking after his land and harvesting the sod, but the two never reached an agreement then. By 2009, Corlis had stopped visiting his land very often. He did not look after it himself and he had not hired hire anyone to do so either. He apparently thought that Blue Grass was caring for his land as “the neighborly thing to do” (at para 10), but Judge James Glass, sitting in Red Deer, found that there was no agreement about harvesting sod between Blue Grass and Corlis.

When Blue Grass harvested the Armitage land in 2013, they also harvested sod from Corlis’ land, sold that sod and made a profit from that sale. When Cortis visited his land in 2013 with a prospective purchaser, he noticed that his sod was gone. When he phoned Blue Grass, he was told that if they were cutting the sod, then they were taking the sod. The company admitted that it harvested the sod from about 80,000 square feet of Corlis’ land.

Continue reading →