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.

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

By: Jonnette Watson Hamilton

PDF Version: Ordinary Self-Represented Litigant or Organized Pseudolegal Commercial Argument Litigant?

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 →

Don’t Think Twice: The Residential Tenancies Dispute Resolution Board’s Power to Correct for Procedural Unfairness

By: Jonnette Watson Hamilton

PDF Version: Don’t Think Twice: The Residential Tenancies Dispute Resolution Board’s Power to Correct for Procedural Unfairness

Case Commented On: Hewitt v Barlow, 2016 ABQB 81 (CanLII)

It may be a good idea to accord the Residential Tenancies Dispute Resolution Board (RTDRS) the power to set aside its own orders and re-hear a dispute when it recognizes that one of its orders is the result of a procedurally unfair process. However, I am not certain that the RTDRS has the power to do so under the current legislation: the Residential Tenancies Act, SA 2004, c R-17.1 (the Act) and the Residential Tenancies Dispute Resolution Service Regulation, Alta Reg 98/2006 (the Regulation). I am almost certain that the RTDRS does not have the power to do so for the reasons set out by Master in Chambers, A. R. Robertson, in Hewitt v Barlow. The best remedy for the currently intolerable position that too many tenants have been put in by procedurally unfair RTDRS orders would be amendments to the Regulation. Helpfully, that Regulation expires on April 30, 2016. Although section 35 of the Regulation states that the purpose for its expiration is to ensure that it is reviewed for relevancy and necessity, rather than for fairness, its expiration is still an opportunity. Given the number of recent cases that have come before various Masters of the Court of Queen’s Bench requiring judicial review of RTDRS orders on procedural unfairness grounds, it is to be hoped that the legislature takes this review seriously and remedies the demonstrated flaws in the Regulation in order to ensure better access to justice for tenants and greater certainty about the powers of the RTDRS for all.

Continue reading →

“On Its Own Motion”: Section 23.1(1) Judicature Act

By: Jonnette Watson Hamilton

PDF Version: “On Its Own Motion”: Section 23.1(1) Judicature Act

Case Commented On: Lymer v Jonsson, 2016 ABCA 32 (CanLII)

This very short decision by the Alberta Court of Appeal made an easy, but very important, point in the process of allowing an appeal. Pursuant to section 23.1(1) of the Judicature Act, RSA 2000, c J-2, a judge can make an order that prohibits a litigant from commencing or continuing court proceedings without first obtaining the permission of the court. Such an order is commonly known as a “vexatious litigant order.” The judge can make such an order “on application or on its own motion, with notice to the Minister of Justice and Solicitor General.” The question on this appeal concerned the scope of the phrase “on its own motion” in section 23.1(1). The specific issue was whether litigants have the right to receive notice and be heard before vexatious litigant orders are made against them on the court’s own motion. Justices Peter Costigan, Marina Paperny and Thomas W. Wakeling determined that potential vexatious litigants did indeed have that right.

Continue reading →