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.

The Right of a Landlord to Withhold Consent to the Sub-leasing of Residential Premises

By: Jonnette Watson Hamilton

PDF Version: The Right of a Landlord to Withhold Consent to the Sub-leasing of Residential Premises

Case Commented On: Botar v Mainstreet Equity Corp., 2010 ABQB 710

It is unusual for a residential tenancy matter to be heard in the Court of Queens’ Bench of Alberta, as was Botar v. Mainstreet Equity Corp. Residential landlord and tenant law is intended to be accessible; the relationship is regulated by one, fairly comprehensible and comprehensive statute, the Residential Tenancies Act, S.A. 2004, c. R-17.1. Claims under that statute are usually heard in Provincial Court – Civil (also known as Small Claims Court), and that court has a helpful website on the Residential Tenancies Process. Accessible explanations of the process involved in making claims under the Residential Tenancies Act are an indication that Provincial Court – Civil is oriented toward self-represented litigants. Nevertheless, a tenant such as Andrew S. Botar might choose to represent himself in the Court of Queen’s Bench or be required to do so because his claim is for more than $25,000, the upper limit on damages that Provincial Court – Civil can award. In this case, Mr. Botar’s claim was for approximately $75,000. Mr. Botar had also enjoyed some success in the Court of Queen’s Bench against his landlord, Mainstreet, in 2007: see Botar v. Mainstreet Equity Corp., 2007 ABQB 608 and A Tenant’s Right to Withhold Payment of Rent, my comment on that earlier decision. Any preference Mr. Botar might have for the Court of Queen’s Bench, however, might be dissipated by this November 2010 decision by Mr. Justice J.J. Gill. Continue reading →

When is Delay “Undue” under Section 7(2)(d) of the Arbitration Act?

PDF version: When is Delay “Undue” under Section 7(2)(d) of the Arbitration Act 

Case considered: Eiffel Developments Ltd. v. Paskuski, 2010 ABQB 619

In June of 2007, Eiffel Developments Ltd. sued Geoffrey and Lisa Paskuski for $46,667, alleging non-payment under a contract for the construction of the Paskuskis’ home. Three years later, Eiffel asked Jodi L. Mason, Master in Chambers, to deem service of Eiffel’s Statement of Claim on the Paskuskis to be good and sufficient. The Paskuskis made three arguments opposing this simple application: (1) that there was no evidence of service of the Statement of Claim and an absence of service cannot be cured; (2) that even if an absence of service could be cured, there was no evidence to support the relief sought by Eiffel, and (3) that Eiffels’ claim should be stayed on the basis of an arbitration clause in the home construction agreement. The Paskuskis lost all three arguments. This comment will focus on the third argument seeking enforcement of an arbitration agreement.

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Are the Creditors Paying Attention?

PDF version: Are the Creditors Paying Attention? 

Case considered: Seguin v Graham and 1356248 Alberta Ltd., 2010 ABQB 582

I find it odd that someone who has failed to file tax returns for the last 14 or so years and who has been pursued by Ontario’s maintenance enforcement program for failing to pay child support for at least 7 years would commence a court action that brings these facts plus details of his annual income and net worth to light in the public forum that is a courtroom. And yet that is exactly what Donald Seguin did when he sued Sandra Graham for unjust enrichment and claimed a constructive trust over her house or, alternatively, a judgment for half of the increase in value of the house over the course of their cohabitation. The subsequent publication of the decision of Mr. Justice R.A. Graesser on the Alberta Courts website and on the Canadian Legal Information Institute‘s (CanLII) website in late September puts the facts out there for anyone to read. Justice Graesser’s consideration of Mr. Seguin’s efforts to avoid the acquisition of assets and his attempts to shelter his assets from his creditors make this rather ordinary case concerning the division of assets on the breakdown of a common law relationship of interest to more than the parties themselves. One has to wonder, however, if the creditors are paying attention?

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Appealing the Remedy Granted by an Arbitration Award

PDF version: Appealing the Remedy Granted by an Arbitration Award

Case considered: Fuhr Estate v. Husky Oil Marketing Company, 2010 ABQB 495

This decision by Mr. Justice Don J. Manderscheid answers a novel question: whether section 49(7) of the Arbitration Act, R.S.A. 2000, c. A-43 allows an applicant to appeal the remedy awarded by an arbitrator without raising a question of law or seeking leave to appeal under section 44? Section 49(7) provides, in part, that “[i]f the award gives a remedy that the court . . . would not grant in a proceeding based on similar circumstances, the court may . . . grant a different remedy requested by the applicant. . .”. In Fuhr Estate v. Husky Oil Marketing Company, the applicant, Mrs. Fuhr, did not want the damages awarded her; she wanted specific performance. She argued she could by-pass the appeal provisions of the Arbitration Act and rely on section 49(7) alone for the remedy she wanted. It seems that section 49(7) has not previously been subjected to judicial scrutiny, even though an identical provision appears in the domestic arbitration legislation of Manitoba, New Brunswick, Ontario and Saskatchewan. Neither does the section appear to have been considered in the literature; the standard texts usually merely repeat what section 49(7) states. While the decision is also noteworthy because Justice Manderscheid adopts a rather unorthodox interpretation of section 44, this comment will focus on the section 49(7) issues.

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Pre-emptive attack on arbitration succeeds

PDF version: Pre-emptive attack on arbitration succeeds

Case considered: Suncor Energy Products Inc. v. Howe-Baker Engineers, Ltd., 2010 ABQB 310

Instead of asserting an ordinary limitation period defence in the ordinary course of an arbitration proceeding, Suncor chose to attempt a pre-emptive attack in the Court of Queen’s Bench, asking the court to assume jurisdiction and strike the arbitration proceedings that were barely underway. The court did so, rather than dismissing Suncor’s application or requiring Suncor to respond to the request for arbitration so that the parties’ arbitrator could decide the limitation period issue. It is this aspect of the judgment -the “who decides?” aspect – that I will focus on in this comment. The court’s decision appears to undermine the legitimacy of domestic arbitration.

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