Author: Jonnette Watson Hamilton Page 25 of 42

B.A. (Alta.), LL.B. (Dal.), LL.M. (Col.).
Professor Emerita.
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“Judges of first instance are not mere scribes, collators of evidence, collage artists, or way stations on the road to justice”: The Problems with Copy-and-Paste Judgments

On December 18, 2012

PDF version: “Judges of first instance are not mere scribes, collators of evidence, collage artists, or way stations on the road to justice”: The Problems with Copy-and-Paste Judgments

Cases commented on: University of Alberta v Chang, 2012 ABCA 324 (CanLII) and Cojocaru (Guardian Ad Litem) v British Columbia Women’s Hospital and Health Center (Supreme Court of Canada Case number 34304)

The Alberta Court of Appeal decision in University of Alberta v Chang – from which the quote in the title of this post was taken (para 18) – was released November 13. The judgments appealed from consisted of cut-and-pasted excerpts taken verbatim from the written arguments of counsel for both parties and raised (in)sufficiency of reasons issues. The Court of Appeal decided the matters would have to be re-argued and re-heard in order to receive “a proper adjudication.” Coincidently, the Supreme Court of Canada heard an appeal from a different copy-and-paste judgment on November 13, although it reserved its judgment and it will probably be months before a decision in Cojocaru (Guardian Ad Litem) v British Columbia Women’s Hospital and Health Center is handed down. Although both are copy-and-paste judgments, Cojocaru is quite different from Chang on its facts. The trial decision in Cojocaru was almost totally copied-and-pasted, but exclusively from the plaintiff’s written arguments. The Cojocaru case therefore raised issues of bias not raised by Chang. It will be interesting to see whether the approach adopted by the Supreme Court to decide Cojocaru will define the law for all copy-and-paste judgments. It could if the court decided the source of a judge’s reasons is irrelevant to determining their sufficiency.

The Organized Pseudolegal Commercial Argument (OPCA) Litigant Case

By Jonnette Watson Hamilton

On October 30, 2012

In Civil Procedure, Family, Vexatious Litigants

PDF version: The Organized Pseudolegal Commercial Argument (OPCA) Litigant Case

Case Commented on: Meads v Meads, 2012 ABQB 571

This decision by Associate Chief Justice John D. Rooke was the subject of much media attention when it was released. That attention was well deserved. The lengthy and well-researched decision fills a gap in the jurisprudence and scholarship on vexatious litigants by shining a spotlight on and systematically examining a category of litigants for whom Justice Rooke coined the collective term “Organized Pseudolegal Commercial Argument” (OPCA) litigants. These litigants are distinguishable from the more usual types of vexatious litigants because they use a collection of techniques and arguments sold by people Justice Rooke called “gurus.” His decision is valuable for several reasons: it collects all of the reported Canadian decisions dealing with OPCA litigants, it describes the indicia by which OPCA litigants can be recognized, it describes the concepts they have relied upon and the arguments they have made and why those arguments have all failed in every Canadian court, and it discusses what judges, lawyers, and litigants can do when faced with OPCA litigants.

Discuss: Stay and Appeal Issues in the Alberta Arbitration Act

By Jonnette Watson Hamilton

On September 6, 2012

In Arbitration

PDF version: Discuss: Stay and Appeal Issues in the Alberta Arbitration Act

Report commented on: Arbitration Act: Stay and Appeal Issues (Report for Discussion 24)

The Alberta Law Reform Institute (ALRI) has just published Arbitration Act: Stay and Appeal Issues (Report for Discussion 24). In this 44-page Report, ALRI explores procedural issues arising out of the Arbitration Act, RSA 2000, c A-43, concerning partial stays of court proceedings under section 7(5) and appeals to the Queen’s Bench under section 44, and very important questions about the role of arbitral appeals more generally. The Report explains the issues, describes their context and asks for input about how best to fix the difficulties identified.

The Pleasures and Perils of Holograph Wills

By Jonnette Watson Hamilton

On August 28, 2012

In Family, Property, Wills and Estates

PDF version: The Pleasures and Perils of Holograph Wills

Case Considered: Lubberts Estate, 2012 ABQB 506

This Court of Queen’s Bench decision interprets a provision in a holograph will. The case is an example of the not-uncommon human tendency to try to use property to control family members’ behaviour, both before death by way of gift and after death by way of inheritance. Like many such efforts, this deceased’s handwritten codicils to her lawyer-drawn will and her subsequent holograph will did not do what she wanted them to do. Instead of the deceased determining who would inherit her property and on what conditions, her family members inherited under generic, unconditional intestate laws. It is ironic; the more control the deceased tried to exert over what happened to her property on her death, the less say she had in the disposition of her property in the end.

Non-Fatal Exclusion: The Fatal Accidents Act, Stepchildren, and Equality Rights

By Jonnette Watson Hamilton

On July 3, 2012

In Constitutional, Family

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF version: Non-Fatal Exclusion: The Fatal Accidents Act, Stepchildren, and Equality Rights

Case Commented On: Dares v Newman, 2012 ABQB 328

A father died in a motor vehicle accident. For his grief and the loss of his father’s guidance, care and companionship, his biological child received $45,000 in bereavement damages from the at-fault driver’s insurance company under section 8(2)(c) of the Fatal Accidents Act, RSA 2000, c F-8. His two adopted children, who had not spoken to him for twenty years, also received $45,000 each under the same provision. His two stepchildren, to whom he had stood in the place of a parent for twenty years – and who had received his guidance, care and companionship over two decades and who suffered grief on his death – received nothing. This case raises the issue of the extent to which government is entitled to deny benefits to certain claimants for the purpose of restricting legal action against private parties for tortious conduct causing death.