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Author: Jonnette Watson Hamilton Page 30 of 42

B.A. (Alta.), LL.B. (Dal.), LL.M. (Col.).
Professor Emerita.
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Are the Creditors Paying Attention?

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On October 15, 2010

In Family, Property

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

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On August 23, 2010

In Arbitration

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

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On July 2, 2010

In Arbitration

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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Much Ado about Little: The Supreme Court’s Decision in Yugraneft Corp. v. Rexx Management Corp.

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On June 4, 2010

In Arbitration, Corporate / Commercial, Supreme Court of Canada

PDF version: Much Ado about Little: The Supreme Court’s Decision in Yugraneft Corp. v. Rexx Management Corp.

Case considered: Yugraneft Corporation v. Rexx Management Corporation, 2010 SCC 19

An Alberta company, Rexx Management Corporation, was ordered to pay an almost $1 million US arbitration award in favour of a Russian company, Yugraneft Corporation. Yugraneft waited more than three years before applying to the Alberta Court of Queen’s Bench for recognition and enforcement of that arbitration award. When Yugraneft failed to gain recognition from the Court of Queen’s Bench, it appealed to the Alberta Court of Appeal and, when unsuccessful again, was granted leave to appeal and did appeal to the Supreme Court of Canada. Thirteen judges have now heard the case and all thirteen judges have agreed: the two-year limitation period in section 3 of Alberta’s Limitations Act applied to Yugraneft’s application for recognition and enforcement and thus Yugraneft acted too late. With that degree of unanimity, one has to wonder what all the fuss in the international commercial arbitration community has been about. The case was monitored closely as it wound its way through the courts and several arbitration institutions intervened at the Supreme Court of Canada.

In this post, after briefly setting out the facts and procedural history, I will focus on one of the issues dealt with by the Supreme Court, the threshold issue. The key decision by all the levels of court that considered the matter was the decision that domestic legislation imposing any kind of limitation period was applicable. I will then deal with the question of which limitation period: ten years, six years or two years? After this discussion of the case itself, I will comment on two matters. The first is the question of whether this case really is a case of public importance. The second is speculation about what action proponents of international commercial arbitration might take now, following their loss in the Supreme Court.

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No Dower Act Consent? Is the Transaction Void or Voidable?

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On May 27, 2010

In Property

PDF version: No Dower Act Consent? Is the Transaction Void or Voidable?

Case considered: Charanek v. Khosla, 2010 ABQB 202

The question of whether failure to comply with the Dower Act’s requirements results in the transaction being void or voidable occurs with some frequency in Alberta (and not simply on our December Property Law examinations). This is odd because the relevant provisions of the Act have not changed since 1948 and the courts have addressed the consequences of the failure to comply with its requirements for consent quite often. Nevertheless, when Master in Chambers Jody L. Mason conducted a thorough review of the relevant legislation and case law in Charanek v. Khosla and concluded (at para. 61) that “the consequence of noncompliance with the consent requirements of the Dower Act remains an open question,” she was correct. She was also echoing a conclusion reached 50 years ago by Wilber Fee Bowker (former U of A Faculty of Law Dean and first Director of the Alberta Law Reform Institute), in “Reform of the Law of Dower in Alberta” (1960) 1 Alta. Law Rev. 501 at 502 where he observed:

From 1917 until today the courts and legislature and the legal profession too have wrestled with the question – what is the effect of the disposition of the homestead made without consent, properly given and executed?

Thirty-four years later, that very question continues to be with us. . . .

The crux of the problem is that the Supreme Court of Canada said in Meduk and Meduk v. Soja and Soja, [1958] S.C.R. 167 that the transaction was void and the Alberta Court of Appeal, in Schwormstede v. Green Drop Ltd. (1994), 22 Alta. L.R. (3d) 89, 116 D.L.R. (4th) 622, held that the transaction was voidable, but without mentioning the Supreme Court of Canada case.

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