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.

Is every vendor of land an “unpaid vendor”?

Case considered: 1279017 Alberta Ltd. v. 1257613 Alberta Ltd., 2009 ABCA 364

PDF version: Is every vendor of land an “unpaid vendor”?

In 1279017 Alberta Ltd. v. 1257613 Alberta Ltd., the Alberta Court of Appeal split 2:1 on the question of whether 1257613 Alberta Ltd. had an interest in land that would support the caveat and certificate of lis pendens that it had filed against an 80 acre parcel of land registered in the name of 1279017 Alberta Ltd. The vendor’s interest in land was said to be an unpaid vendor’s lien that arose as a result of a real estate purchase contract between 1257613 and 1279017. Had the dissenting opinion of Mr. Justice J.D. Bruce McDonald prevailed in this case, virtually every vendor of land, paid in full or not, would be an unpaid vendor and entitled to caveat another’s land. Fortunately, the majority position of Madam Justice Constance Hunt and Mr. Justice Keith Ritter won through. The unpaid vendor’s lien only continued until payment by the purchaser.

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Staying Arbitration Proceedings under Section 7(5) of the Arbitration Act

Case considered: Lamb v. AlanRidge Homes Ltd., 2009 ABCA 343

PDF version: Staying Arbitration Proceedings under Section 7(5) of the Arbitration Act

Lamb v. AlanRidge Homes Ltd. is an interesting case, in part because the Alberta Court of Appeal calls upon the Alberta legislature to review and amend section 7 of the Arbitration Act, R.S.A. 2000, c. A-43, a section the court criticizes (at para. 16) as “far from a model of clarity.” Calls for legislative action by the courts are not that common. The case is also interesting because section 7 is perhaps the provision most often used by the courts, as it is the provision that requires a court to stay a court action when asked to do so by a party to an agreement to arbitrate.It is, however, a section rarely considered by the Court of Appeal because subsection 7(6) provides that there is no appeal from an order of the Court of Queens’ Bench staying an action or refusing a stay under section 7. The case is also interesting because Alberta’s Arbitration Act is based upon the Uniform Arbitration Act which was prepared by the Uniform Law Conference of Canada in 1989, as were the arbitration statutes in six other provinces. Section 7 was carefully drafted and debated by the Commissioners. It seems somewhat odd to think that, twenty years later, there are basic problems with interpreting and applying that provision.

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A Custodian of a lawyer’s practice is like a . . . [what?]

Case considered: Polis v. Edwards, 2009 ABQB 520

PDF version: A Custodian of a lawyer’s practice is like a . . . [what?]

There are very few written decisions on the powers, rights and duties of custodians appointed by the Court of Queen’s Bench at the request of the Law Society of Alberta (LSA) pursuant to the Legal Profession Act, R.S.A. 2000, c. L 8, section 95. Unfortunately, this decision does not add to that small body of precedents. Although the question of whether a custodian is entitled to tax the accounts of the member of the LSA whose legal business they were appointed to manage or wind up was squarely before the court, Madam Justice Jo’Anne Strekaf declined to answer the question, deciding it instead on a more factual basis. This is to be regretted, not only because there is so little law in the area, but also because, in answering these types of questions, the courts have tended to rely on interesting analogies with others in roles that require them to stand in the shoes of another person and because the answer to the question about taxation seems like an easy one.
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Not Your Usual Self-Represented Litigant?

Case considered: Conway v. Zinkhofer, 2009 ABQB 417

PDF version: Not Your Usual Self-Represented Litigant?

The perception within the justice system is that self-represented litigants have below average literacy and comprehension levels: see the Alberta Self-Represented Litigants Mapping Project, Final Report, January 12, 2007 at 10. However, according to recent research, members of any social group may become self-represented litigants and between 60 and 65% had at least some post secondary education. One group of self-represented litigants is the group who could access representation but prefer to self-represent (Final Report at 15). Although a small percentage of the self-represented litigants (5% or less), the group includes those often referred to as “vexatious litigants” and judges report that this group of self-represented litigants are particularly time consuming and difficult to deal with (Final Report at 16). This appears to be an apt summary of the male respondent in this case, Fred Zinkhofer.

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Controlling Entry into the Marketplace in Order to Exercise of Freedom of Religion

Cases Considered: Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37

PDF Version: Controlling Entry into the Marketplace in Order to Exercise of Freedom of Religion

In “Minority-Majority Relations and Economic Interdependence” (1960) 27(4) Phylon 367, Calvin Redekop and John A. Hostetler predicted that the Hutterian Brethren would survive because they controlled their entry into the marketplace. In this post I will briefly describe the nature of the religious beliefs of the Hutterian Brethren, but only to the extent necessary to understand the impact the Supreme Court of Canada decision in Alberta v. Hutterian Brethren of Wilson Colony might have. Next, I will set out the arguments of Redekop and Hostetler and then I will use their points to explain how the Supreme Court’s decision takes away this control from the more conservative colonies within the Hutterian Brethren Church and thus jeopardizes the sect’s survival.

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