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.

Constraining a Landlord’s Ability to Terminate a Residential Tenancy by Raising the Rent

By: Jonnette Watson Hamilton

PDF Version: Constraining a Landlord’s Ability to Terminate a Residential Tenancy by Raising the Rent

Case commented on: Milner’s Aloha Mobile Home Park (1998) Ltd v Jenkins, 2014 ABQB 229 (CanLII)

This is an important decision for residential tenants, with potentially far-reaching impact. If a residential tenant is not in breach of his or her tenancy agreement, a landlord is unable to evict them except for a small number of reasons prescribed by the applicable legislation, either the Residential Tenancies Act, SA 2004, c R-17.1 or the Mobile Home Sites Tenancies Act, RSA 2000, c M-20. But because Alberta has no law limiting the amount by which landlords can increase rent, everyone knows that landlords can force tenants out by raising their rent beyond what they can afford or are willing to pay. This decision by Master Andrew Robertson calls into question that received wisdom. Indeed, by finding that the increase in rent in Milner’s Aloha Mobile Home Park (1998) Ltd v Jenkins was really a notice to terminate a periodic tenancy and of no effect as either a notice to terminate or a notice of a rent increase, Master Robertson’s decision potentially signals a significant shift in the power balance between landlords and residential tenants in Alberta. Continue reading →

The Abatement of Rent Remedy under Alberta’s Residential Tenancies Act

By: Jonnette Watson Hamilton

PDF Version: The Abatement of Rent Remedy under Alberta’s Residential Tenancies Act

Case Commented On: Perpelitz v Manor Management Ltd., 2014 ABPC 63

There are few enough written decisions considering the landlord’s duties under Alberta’s 10-year-old Residential Tenancies Act, SA 2004, c R-17.1, that almost any decision considering the statute is worth bringing to the notice of the province’s landlords and tenants. But this decision by Judge Gordon Yake is interesting on its own merits for a few reasons.

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What is the Legal Effect of an Unenforceable Agreement in an Unjust Enrichment Claim?

By: Jonnette Watson Hamilton

PDF Version: What is the Legal Effect of an Unenforceable Agreement in an Unjust Enrichment Claim?

Case commented on: Lemoine v Griffith, 2014 ABCA 46

The recent decision of the Alberta Court of Appeal in Lemoine v Griffith is interesting for what it tells us, in the context of a claim of unjust enrichment, about the legal effects of a prenuptial agreement that was both found and admitted to be unenforceable because of undue influence and a lack of independent legal advice. According to the majority, Justices Ronald Berger and Clifton O’Brien, once the trial judge found the agreement unenforceable for those reasons — and the appellant abandoned his challenge to that finding — the prenuptial agreement was not a factor in either supplying a juristic reason for any enrichment or evidence of the parties’ intentions. However, despite the fact that the unenforceability of the prenuptial agreement was not an issue, in his dissent Justice Frans Slatter would have overturned the finding of undue influence, holding (at para 103) that the “trial judgment cannot stand.”  While that is not the only point of disagreement between the majority and the dissent, it is the point that I will focus on in this comment.

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U of C and U of A Law Profs’ Submission to the Law Society of Alberta on Trinity Western University Law School

By Jennifer Koshan, Jonnette Watson Hamilton and Alice Woolley

 PDF Version: U of C and U of A Law Profs’ Submission to the Law Society of Alberta on Trinity Western University Law School

Commented on: Letter from members of the Faculties of Law at U of C and U of A to the Law Society of Alberta

On January 28, 2014, over 30 law professors and members of affiliated institutes and centres from the University of Calgary and University of Alberta submitted a letter to the president and president-elect of the Law Society of Alberta.  The purpose of the letter was “to express our concerns on the decision making process taken to date for the approval of Trinity Western University School of Law’s program and the eligibility of TWU’s graduates to become students-at-law in Alberta.”  Trinity Western University (TWU) received approval from the British Columbia government on December 18, 2013 to open a law school. The school is anticipated to commence operations with its first class of 60 law students in September 2015. TWU is a private, Christian university which requires its students and staff to abide by a Community Covenant Agreement (available here). It is in this context that these concerned legal academics submitted the following letter:

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Arbitrators Have the Last Word on Procedural or Interlocutory Matters

By Jonnette Watson Hamilton

 PDF Version: Arbitrators Have the Last Word on Procedural or Interlocutory Matters

Case commented on: Suncor Energy Inc v Alberta, 2013 ABQB 728

Suncor Energy Inc v Alberta is a decision by Chief Justice Neil Wittmann on an appeal by the provincial Crown from an arbitration tribunal’s order on a procedural point. Suncor Energy Inc. began arbitration proceedings in January 2011 to resolve a dispute over royalties to be paid on the production of mined bitumen to the province. The issue before the Chief Justice was a narrow one, namely, whether the refusal of the arbitrators to refer a question of law to the court, concerning the application of section 50 of the Mines and Minerals Act, RSA 2000, c M-17, to the production of records that the Crown received from oil sands producers other than Suncor, was a decision that could be appealed. The Chief Justice decided that the court did not have jurisdiction to hear the Crown’s appeal under either section 17(9) or section 44 of Alberta’s domestic arbitration statute, the Arbitration Act, RSA 2000, c A-3. In doing so he confirmed that the competence-competence principle, which allows an arbitral tribunal to determine its own jurisdiction, underlies sections 17 and 44. While not as explicit on this point as was the recent decision of the Ontario Court of Appeal in Ontario Medical Association v Willis Canada Inc, 2013 ONCA 745 at paras 19-37, the Chief Justice’s decision gives effect to the statutory grant of authority to the arbitration tribunal to have the last word on procedural or interlocutory matters that arise during the course of arbitration.

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