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 Spectre of Personal Liability for Guardians of Dependant Adults

Cases Considered: Smorag v. Nadeau, 2008 ABQB 714

PDF Version: The Spectre of Personal Liability for Guardians of Dependant Adults

The decision in Smorag v. Nadeau is noteworthy because the Workers’ Compensation Board (WCB) argued that the defendant was personally liable for a health care decision she made in her role as the guardian of an adult who lacked the mental capacity to make that decision for herself. Madam Justice June Ross appears to have accepted this novel argument. She found that the Dependant Adults Act, R.S.A. 2000, c. D-11, under which the defendant had been appointed guardian and granted the power to make health care decisions for the dependant adult, did not protect the defendant from personal liability. Although Justice Ross did, in the end, strike down the lawsuit against the defendant personally, she did so only because she was not prepared to find a duty of care owed by the defendant to an employee of the extended care facility where the dependant adult resided. That part of the decision – an Anns analysis – raises some interesting issues in itself. However, I want to focus on the fact that the law suit against the defendant in her personal capacity got as far as the Anns analysis. I will also look at whether Bill 24, the new Adult Guardianship and Trusteeship Act, S.A. 2008 c. A-4.2 that will replace the Dependant Adults Act later this year, removes the spectre of personal liability for guardians.

Continue reading →

An exemplar of reasoning from precedent in a real property law context

Cases considered: Kolias v. Owners: Condomimium Plan 309 CDC, 2008 ABCA 379.

PFD Version:  An exemplar of reasoning from precedent in a real property law context

This reserved judgment written by Mr. Justice Jean Côté of the Alberta Court of Appeal is strong on justifications for the decision reached and an excellent example of stare decisis and the doctrine of precedent at work. It reverses a decision of the Court of Queen’s Bench and discharges a restrictive covenant on the basis that the dominant tenement was not easily ascertainable in the deed creating the restrictive covenant, as required by the Supreme Court of Canada in Galbraith v. Madawaska Club, [1961] S.C.R. 639, 29 D.L.R. (2d) 153. The decision is also a good example of the priority given to certainty and predictability in property law.

Continue reading →

Partition or sale of co-owned property?

Cases considered:  Polanski v. Roth, 2008 ABCA 378

PDF Version: Partition or sale of co-owned property?

This brief Memorandum of Judgment delivered from the bench by the Alberta Court of Appeal is notable for a number of reasons. First, the Court of Queen’s Bench judge did not give any reasons for his order but, aside from noting this fact, the Court of Appeal does not appear to be concerned by the lack of reasons and even applies “reasonableness” as the standard of review. How can a judgment given without reasons be assessed as reasonable? Second, the content of a proposal made by the appellant during settlement negotiations is used against him. Ordinarily, communications made for the purpose and in the course of negotiating a settlement are made on a “without prejudice” basis and cannot be used in court as evidence, whether “without prejudice” is expressly claimed for the communication or not. There might have been a reason why the appellant’s settlement proposal was used against him in this case, but none is offered. Third, the appellant would probably have succeeded had his application been brought between 460 and 30 years ago, when the relevant law was three old Imperial statutes dating from 1539, 1540 and 1868. The law was, however, changed to a made-in-Alberta law in 1979, and the 110 year old provision which would have assured the appellant’s win was dropped, seemingly without discussion.

Continue reading →

Is there really any question about the test for part performance in Alberta

Cases considered: G 400 Holdings Ltd. v. Yeoman Development Company Limited, 2008 ABQB 667

PDF Version: Is there really any question about the test for part performance in Alberta

I apparently spoke too soon. In March 2008, I noted that the Alberta Court of Appeal decision in Booth v. Knibb Developments Ltd., 2002 ABCA 180 had settled any doubts about which test for part performance applies in Alberta: see “The Doctrine of Part Performance: Still Strict After All These Years”. There are two tests for determining what acts of part performance are sufficient to allow enforcement of an oral agreement concerning land, both originally formulated by the House of Lords. The older and stricter test was set out in Maddison v. Alderson (1883), 8 App. Ca. 467 at 478 (H.L.); it requires that the acts relied upon by the claimant as part performance “be unequivocally, and in their own nature, referable to some such agreement as that alleged.” That test was relaxed considerably in England in 1976, with the decision in Steadman v. Steadman, [1976] A.C. 536. In Steadman, the House of Lords held that the acts of part performance need refer only on the balance of probabilities to some contract to which the claimant was a party. Although a number of Alberta courts applied the more relaxed test from Steadman in the 1980s, in 2002 the Alberta Court of Appeal unequivocally adopted the traditional, stricter test from Maddison v. Alderson. That was the end of the influence of Steadman in Alberta – until the October 30, 2008 decision of Madam Justice Barbara Romaine in G 400 Holdings Ltd. v. Yeoman Development Company Limited.
Continue reading →

Can a Court of Queen’s Bench judgment that contains no law be considered law itself?

Cases Considered: B.H. v. E.J., 2008 ABQB 650

PDF Version: Can a Court of Queen’s Bench judgment that contains no law be considered law itself?

Title to a residential property in Edmonton was registered in the names of the plaintiff, B.H., and the defendant, E.J., as to each an undivided one-half interest as tenants in common. The property seemed to be up for sale and the question before the court was whether or not B.H. was entitled to any of the proceeds of sale. Her name was on the title, but did that mean B.H. had an interest in the Edmonton house which would entitle her to one-half of the sale proceeds? E.J. alleged that B.H.’s name was only placed on the title because she agreed to co-sign a mortgage for E.J. and that B.H. had no right to a portion of the sale proceeds. Mr. Justice James Langston agreed with the defendant, E.J., and ordered that all of the net proceeds of the sale of the property be paid to the defendant or, in the alternative, that the plaintiff transfer her undivided one-half interest to the defendant for $1.00. Remarkably, Justice Langston did so without referring to any legal authority whatsoever.

Continue reading →