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.

A Rather Quick Response to a Rather Typical Vexatious Litigant

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Case commented on: Onischuk v Alberta, 2013 ABQB 89.

The prominent September 2012 decision of Court of Queen’s Bench Associate Chief Justice John D. Rooke in Meads v Meads, 2012 ABQB 571, established a continuum of litigants, ranging from commonly encountered self-represented litigants, to infrequently encountered and almost always self-represented vexatious litigants, through to the highly unusual organized pseudolegal commercial argument (OPCA) litigant who is usually self-represented. Justice Rooke’s decision in Onischuk v Alberta concerns a litigant who appears to fit in the middle of that continuum, a rather typical vexatious litigant, although perhaps found to be so more quickly than has been the usual case. It is those two matters — typicality and velocity — that I focus on in this post.

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What has Meads v Meads wrought?

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Cases commented on: R v Duncan, 2013 ONCJ 160 (CanLII); R v Tyskerud, 2013 BCPC 27 (CanLII); Cassa v The Queen, 2013 TCC 43 (CanLII); R v Martin, 2012 NSPC 115 (CanLII); R v Lavin, 2013 ONCJ 6 (QL); Scotia Mortgage Corporation v Gutierrez, 2012 ABQB 683 (CanLII); Stancer (Re), 2012 BCSC 1533 (CanLII); Grattan (Re), 2012 NBQB 332, [2012] NBJ No 353 (QL).

I.          Introduction

Associate Chief Justice John D. Rooke’s decision in Meads v Meads, 2012 ABQB 571 (CanLII) — one of CanLII’s Top Ten Cases of 2012 — established a category of vexatious litigants that he called “Organized Pseudolegal Commercial Argument” (OPCA) litigants. OPCA litigants “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” (Meads at para 1). Although those techniques and arguments are varied, the essence of the OPCA litigants’ position is that they deny the authority of the state and the courts. Both of us have commented on the Meads case previously on ABlawg: see “The Organized Pseudolegal Commercial Argument (OPCA) Litigant Case” and “The Top Ten Canadian Legal Ethics Stories – 2012”. What we want to look at in this post is the use that has been made of Meads in the intervening six months. We will also consider the extent to which OPCA and similar litigants may influence judges to embrace styles of judgment that are disrespectful of the parties appearing before them. The post will touch on the ethical problems created when judges embrace “literary flourishes” and “dry wit” in their decisions (Katie Daubs, “Legal Decision with literary flourish and dry wit making the round…” Toronto Star, March 29, 2013).

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Introducing Conditional Immediate Indefeasibility: Section 170(1) of the Land Titles Act

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Legislation commented on: Land Titles Act, RSA 2000, c. L-4, s 170(1), as amended by the Land Titles Amendment Act, 2008, SA 2008, c 22, s 9.

The amendments to the Land Titles Act that were introduced by the Land Titles Amendment Act, 2008 included one substantive amendment and that was an amendment to section 170, a provision about indefeasibility of title. Little attention has been paid to this amendment; although it is now four years old, the changes it effected, and the amendment’s potential consequences for real estate practice, appear to have been overlooked. On its face, the substantive amendment says that the registered title of a bona fide purchaser or mortgagee is only indefeasible if that party used all reasonable efforts to confirm that the person from whom they took their interest was not an identity thief. It appears to implement a theory of conditional immediate indefeasibility, which would be a significant change to basic principles of our Torrens-style land titles system — if it is effective. However, because the 2008 amending statute changed section 170 in isolation and left intact all of the other provisions in the Land Titles Act that confer immediate indefeasibility on purchasers and mortgagees, it is not clear that the amendment will do what it purports to do.

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Represented Adults and Solicitor-Client Privilege

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Case considered: Wayne v Wayne, 2012 ABQB 763.

The Adult Guardianship and Trusteeship Act, SA 2008, c A-4.2 (AGTA), applies to persons over the age of 18 who are unable to make personal or financial decisions for themselves, a person the statute calls a “represented adult.” There has not been much judicial consideration of the statute which came into force on October 30, 2009; there appears to be fewer than a dozen cases interpreting only a relatively small number of the statute’s provisions. That is one reason why Wayne v Wayne is of interest. Another reason is that the issue in Wayne v Wayne is intrinsically interesting, at least to the legal profession, because it is about the ability of a trustee appointed to manage the financial affairs of a represented adult to gain access to information otherwise protected by solicitor-client privilege from the file of a represented adult to whom a lawyer gave legal advice.

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Getting Foreclosure Practice Right: Some Regulatory Suggestions

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Case commented on: AGF Trust Company v Soos, 2012 ABQB 747.

AGF Trust Company v Soos is a decision by Master Lorne Smart, reviewing a Bill of Costs in a standard residential foreclosure action – not the sort of decision that usually attracts our attention at ABlawg. But the Master does two things that make this decision worth commenting on. First, he makes an example of procedural irregularities in the action to reduce the legal fees claimed in the Bill of Costs. Second, he uses his review to comment on some troublesome economic aspects of foreclosure practice.

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