Author: Jonnette Watson Hamilton Page 32 of 37

B.A. (Alta.), LL.B. (Dal.), LL.M. (Col.).
Professor Emerita.
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Is Proof of Irreparable Harm to the Plaintiff or Proof of Wilful Delay by the Defendant Required to Defeat an Application to Set Aside Default Judgment?

On October 6, 2008

Cases Considered: Alberta v. Fjeld, 2008 ABQB 558

PDF Version: Is Proof of Irreparable Harm to the Plaintiff or Proof of Wilful Delay by the Defendant Required to Defeat an Application to Set Aside Default Judgment?

Some debtors seem to think they can avoid being held accountable for money they owe if they refuse to answer the phone, or pick up registered mail, or accept documents being served upon them. They act as if, by mimicking the proverbial ostrich and hiding their head in the sand at the first hint of collection efforts, they will be able to make their debts go away. The taxpayers of Alberta should be pleased to know that the ostrich approach did not work in the case of Alberta v. Fjeld. Ignoring collection efforts merely resulted in the provincial government obtaining an easy default judgment against Rhonda Fjeld, which was upheld by a Master in Chambers, Rod Wacowich, and then, on appeal, by Mr. Justice Keith Yamauchi of the Court of Queen’s Bench.

Leisurely Pace, Standstill and Drop Dead: A Lawsuit’s Journey

By Jonnette Watson Hamilton

On September 20, 2008

In Civil Procedure

Cases Considered: Hein v. Barrett, 2008 ABQB 548

PDF Version: Leisurely Pace, Standstill and Drop Dead: A Lawsuit’s Journey

An application by a party for an extension of time is a very common application in a lawsuit. There is nothing especially note-worthy about this particular application by two Defendants, David Barrett and Chinook Accounting and Tax Services Ltd., for an order extending the time to file and serve a third party notice on two other Defendants, William Herman and Ross Todd and Company, save and except that seven years had gone by since Barrett and Chinook should have filed and served their third party notice. Nevertheless, the judgment by Master Judith Hanebury of the Alberta Court of Queen’s Bench includes a nice summary of the relevant principles to be applied to applications such as this. It also includes a striking trio of metaphors used to refer to the progress or lack of progress of a lawsuit, the “leisurely pace,” “standstill,” and “drop dead” used in the heading for this post.

“Not Just Pious Passages”: The Disclosure Requirements of the Franchises Act

By Jonnette Watson Hamilton

On September 14, 2008

In Corporate / Commercial

Cases Considered: Hi Hotel Limited Partnership v. Holiday Hospitality Franchising Inc., 2008 ABCA 276

PDF Version: “Not Just Pious Passages”: The Disclosure Requirements of the Franchises Act

In this Court of Appeal decision, three of Alberta’s most experienced justices determined that the disclosure requirements of the Franchises Act, R.S.A. 2000, c. F-23 were indeed required and that “must” meant “must.” The Franchises Act gives franchisees a right to accurate and complete information about franchisors and franchises and backs up that right with the remedy of rescission. The reserved reasons for judgment of Madam Justice Elizabeth McFadyen, concurred in by Madam Justice Carole Conrad, are a restrained seventeen paragraphs long (including statements of the relevant facts and applicable statutory provisions). The much lengthier reserved reasons for judgment of Mr. Justice Jean Côté are a tour de force, providing a thorough review of the policies behind the laws requiring disclosure in the franchising context and thus much fodder for arguments by counsel in future cases. In the end, both sets of reasons recognize the exclusively statutory nature of franchisors’ obligations and franchisees’ remedies.

Arbitration is not Administrative Law

By Jonnette Watson Hamilton

On August 16, 2008

In Administrative Law, Arbitration

Cases Considered: Jamani v. Subway Franchise Systems of Canada Ltd., 2008 ABQB 438

PDF Version: Arbitration is not Administrative Law

The reasons that arbitration is a legitimate way to resolve a dispute are not the same reasons that administrative decision-making is legitimate. Arbitration is normally a process voluntarily chosen by parties who want a dispute decided by an impartial judge of their own choosing, whose decision on the merits of the dispute will be final and binding. It is a private alternative to the courts (albeit governed by legislation and even mandated by legislation in some cases). The justification for legislative and judicial deference to arbitration rests on the principle of freedom of contract and the norm of party autonomy. Administrative law, on the other hand, is public law. Administrative agencies and tribunals are created by federal and provincial legislative bodies and given tasks to do on behalf of the citizens of the country or province. Administrative decision-makers do not just resolve disputes between parties; they are also responsible for fulfilling the goals of their agency. Judicial review of administrative decisions exists, in part, to control the exercise of power by the executive and administrative branches of the state. Nevertheless, courts have recently been conflating the two areas of law and the decision in Jamani v. Subway Franchise Systems of Canada Ltd. is an example of this trend.

What’s Wrong with Landlords’ Rights?

By Jonnette Watson Hamilton

On July 22, 2008

In Property, Remedies

Cases Considered: 550 Capital Corp. v. David S. Cheetham Architect Ltd., 2008 ABQB 370

PDF Version: What’s Wrong with Landlords’ Rights?

Is it wrong for a landlord to insist on compliance with a term of a commercial lease? The recent judgment of Mr. Justice Sandy Park in 550 Capital Corp. v. David S. Cheetham Architect Ltd. certainly seems to indicate that it is inequitable for a landlord to require a tenant to do what it should have done, namely, to request the landlord’s consent to an assignment of the lease. The unidentified type of estoppel found to prevent the landlord from terminating the lease and the unnecessary relief from forfeiture granted so that the tenant could undo its assignment both appear, with all due respect, to be unjustified both on the facts and the law.