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.

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

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.

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Arbitration is not Administrative Law

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.

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What’s Wrong with Landlords’ Rights?

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.

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Another stay of judgment denied in the challenge to Alberta’s cap on damages for soft tissue injuries

Cases Considered:  Morrow v. Insurance Bureau of Canada, 2008 ABCA 248

PDF Version: Another stay of judgment denied in the challenge to Alberta’s cap on damages for soft tissue injuries

The latest judgment in the constitutional challenge to Alberta’s $4,000 cap on non-pecuniary damages for soft tissue injuries incurred in motor vehicle accidents was handed down on June 27, 2008 by Madam Justice Patricia Rowbotham of the Alberta Court of Appeal. State Farm Insurance Company, the insurer of the defendant in the personal injury action, had applied for a stay of the February 8, 2008 judgment of Associate Chief Justice Neil Wittmann. He had declared the Minor Injury Regulation, Alta. Reg. 124/2004 (MIR) unconstitutional, thus ending the $4,000 cap. See Morrow v. Zhang, 2008 ABQB 98 and the previous post on this judgment by Jennifer Koshan, “Not on Their Backs: Cap on Damages for Soft Tissue Injuries Struck Down; Court Denies Stay of Remedy Pending Appeal.” Justice Rowbotham denied State Farm’s application.

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A Textbook First Year Property Law Case on the Fraud Exception to Indefeasibility

Cases Considered: 1198952 Alberta Ltd. v. 1356472 Alberta Ltd., 2008 ABQB 386

PDF Version: A Textbook First Year Property Law Case on the Fraud Exception to Indefeasibility

ALM Holdings Ltd. owned the Jasper Block, which is part of the Edmonton Historic Resource Management Program . It is a three storey Edwardian-era brick building on the north side of Jasper Avenue in central downtown Edmonton. 651730 Alberta Ltd. rented a part of the Jasper Block for a restaurant, the Fantasia Noodle House Restaurant. 1198952 Alberta Ltd. rented another part of the Jasper Block for a store, called Raleigh Foods. ALM sold the Jasper Block to 135647 Alberta Ltd. The question in this case was whether or not the purchaser, 135647 Alberta Ltd., was bound by ALM’s leases to the Noodle House and Raleigh Foods. The tenants sought a declaration from the court that the purchaser’s title to the Jasper Block was subject to their leases. The purchaser sought an order forcing the Noodle House and Raleigh Foods to vacate their premises in the Jasper Block.

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