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 Fraud Exception to Indefeasibility of Title: Applying Section 203 of the Land Titles Act

Cases Considered: Hall v. Tieken Estate, 2008 ABQB 646

PDF Version: The Fraud Exception to Indefeasibility of Title: Applying Section 203 of the Land Titles Act

The land registration system used in Alberta is established by the Land Titles Act, R.S.A. 2000, c. L-4 and based on the Torrens system. Under this system, the provincial government has custody of all titles, plans and other documents related to interests in land and responsibility for the accuracy of all land titles information registered or filed with it. In a jurisdiction with a Torrens system, the government guarantees that a person named as the owner in the register established and maintained by the government has a title that is subject only to encumbrances and exceptions registered against that title and to enumerated statutory exceptions. Basically, a person’s title is free of adverse claims unless those claims are mentioned on their title. Their title is “indefeasible.” There are, of course, exceptions to indefeasible title in a Torrens system. Fraud is one of those exceptions, and it was the exception in issue in this case. In general, if you participate or collude in fraud, you do not have an indefeasible title.

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A Windfall Inheritance from a Distant Relative: Daydreams Only Come True for Some

Cases Considered: Hilstad Estate, 2008 ABQB 570

PDF Version: A Windfall Inheritance from a Distant Relative: Daydreams Only Come True for Some

Who hasn’t daydreamed about inheriting a fortune from some distant and unheard of relative? I suppose one of the reasons it is a fairly common reverie is because, occasionally, it really does happen. This case is about one of those occasions. In September 2008, the maternal second cousins of Mary Hilstad who were alive in her death in 1963 inherited over $900,000 in royalty payments from mines and minerals. Those second cousins are probably deceased themselves by now, but some unsuspecting child or grandchild of theirs is probably about to become more comfortable financially. Their daydreams will come true thanks to the original owner of the mines and minerals, Olaf Christian Hilstad, who died in 1915 in the Judicial District of Red Deer, Alberta, without a will, spouse or children.

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Valuing the Value of Land, Not the Land: Affirming the Unavailability of Specific Performance of Agreements for the Purchase and Sale of Land

Cases Considered: 365733 Alberta Ltd. v. Tiberio, 2008 ABCA 341

PDF Version:  Valuing the Value of Land, Not the Land: Affirming the Unavailability of Specific Performance of Agreements for the Purchase and Sale of Land

The Alberta Court of Appeal issued a brief memorandum of judgment unanimously affirming the June 2008 judgment of Madam Justice Adele Kent in 365733 Alberta Ltd. v. Tiberio, 2008 ABQB 328. I previously commented on this case in my post on Justice Kent’s decision, “Challenging Purchasers’ Ability to Obtain Specific Performance of Agreements for the Purchase and Sale of Land.”

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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?

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

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.

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