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 End of Law: A New Framework for Analyzing Section 15(1) Charter Challenges

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: The End of Law: A New Framework for Analyzing Section 15(1) Charter Challenges

Case Commented On: Ermineskin Indian Band and Nation v Canada, 2009 SCC 9

After the Supreme Court of Canada handed down its decision in R v Kapp, 2008 SCC 41 in June of 2008 there were questions about whether the Court had changed the legal framework for analyzing challenges brought under section 15(1) of the Charter. Kapp had clearly changed the approach to section 15(2), granting it independent status to protect ameliorative laws, programs and activities. However, on the topic of section 15(1), the Court had sent mixed signals about its intended approach. The message sent by the Court’s February 13, 2009 decision in Ermineskin Indian Band and Nation v Canada is much clearer; the legal framework for analyzing section 15(1) claims will be very different than it has been for the past decade.
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A Welcome Primer on Interpreting Covenants in Leases

Cases Considered: Orbus Pharma Inc. v. Kung Man Lee Properties Inc., 2008 ABQB 754.

PDF Version:  A Welcome Primer on Interpreting Covenants in Leases

This case is about the proper interpretation of a term in a commercial lease concerning the ability of the tenant to assign or sublet the premises. The provision appeared to say that when the tenant asked for the landlord’s consent to an assignment or sublease, the landlord could either consent or refuse consent or – and this was the controversial point – cancel the lease altogether. Although this clearly reasoned and well-written decision turns on the exact wording of the relevant provision in the lease, there is nevertheless a great deal of precedential value in this decision because of the principles of law used by Justice Scott Brooker in his approach to the interpretative task. Characterizing the provision as “astute bargaining” on the part of the landlord that allowed it to terminate a lease with a rent substantially below market rates (at para. 68), this judgment is also a marked contrast with the decision in 550 Capital Corp. v. David S. Cheetham Architect Ltd., 2008 ABQB 370. In that earlier case, the tenant’s contorted efforts to evade the consequences of a similar clause in its lease were rewarded: see the critique of this decision written by Nick Rafferty and myself in “What’s Wrong with Landlord’s Rights?”

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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.

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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.

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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.

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