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.

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.

Continue reading →

Rights of First Refusal and Options to Purchase: What’s the Difference?

Cases Considered: Koppe v. Garneau Lofts Inc., 2008 ABQB 354

PDF Version: Rights of First Refusal and Options to Purchase: What’s the Difference?

Garneau Lofts Inc. had redeveloped commercial property in an historical structure which had been St. Joseph’s Hospital on Whyte Avenue, in the City of Edmonton. The redeveloped property, with shops on the main floor, became known as the Garneau Lofts, combining unique, luxurious suites with a popular Whyte Avenue location. Dr. Sandy Koppe, an optometrist, had leased a portion of the Garneau Lofts for an upscale boutique eye wear store. He had leased it on behalf of his employer, Eye Care Optometric Group Ltd., a company in which his daughters were the only directors and shareholders.

Continue reading →

Challenging Purchasers’ Ability to Obtain Specific Performance of Agreements for the Purchase and Sale of Land

Cases Considered: 365733 Alberta Ltd. v. Tiberio, 2008 ABQB 328

PDF Version: Challenging Purchasers’ Ability to Obtain Specific Performance of Agreements for the Purchase and Sale of Land

365733 Alberta Ltd. v. Tiberio illustrates how commonplace challenges to purchasers’ ability to claim interests in land under purchase and sale agreements have become. Before the 1996 decision of the Supreme Court of Canada in Semelhago v. Paramadevan, [1996] 2 S.C.R. 415, courts granted specific performance of agreements for the purchase and sale of land, forcing reluctant vendors to live up to bargains. Performance of the agreement was mandated because land was seen as unique, something whose loss could not be compensated for in monetary damages. Land was not like mass produced consumer goods. However, after Semelhago, purchasers had to produce evidence that the land they wanted to buy was unique and without a ready substitute in the market.

Continue reading →

Something Happened (with apologies to Joseph Heller)

Case Considered: Brentech Services Ltd. v. Sunray Manufacturing Inc., 2008 ABQB 301

PDF Version:  Something Happened (with apologies to Joseph Heller)

“Want of prosecution” is a curious and old-fashioned phrase. It refers to an absence of steps taken in a court action by the person who started the lawsuit. It is an allegation and finding of indefensible and excessive delay in carrying a lawsuit through to its conclusion.

Continue reading →

Provincial Court Small Claims Appeals: When is an appeal by way of trial de novo appropriate?

Cases Considered: Rezources Inc. v. Gift Lake Development Corp., 2008 ABQB 254

PDF Version:  Provincial Court Small Claims Appeals: When is an appeal by way of trial de novo appropriate? 

Section 51 of the Provincial Court Act, R.S.A. 2000 Ch. P-31, provides that an appeal of a Provincial Court decision is to be heard as an appeal on the record unless a party applies and the Court of Queen’s Bench orders that the appeal to be heard as a trial de novo. The default position is therefore an appeal on the record that was created at trial, usually a transcript of what was said and any exhibits that were entered.

Continue reading →