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.

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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“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

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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.

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The Organized Pseudolegal Commercial Argument (OPCA) Litigant Case

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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.

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