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 Guarantees Acknowledgement Act and Equity

Cases Considered: Bharwani v. Chengkalath, 2008 ABCA 148

PDF Version: The Guarantees Acknowledgement Act and Equity

Sometimes it becomes apparent when reading a decision that the court would have preferred to reach a different result. Usually this is because the law seems to compel the result the court reaches, but fairness demands another. The decisions of the Court of Queen’s Bench and the Court of Appeal in Bharwani v. Chengkalath are examples of the constraints the law occasionally puts on a court’s ability to do what seems right. The defendant in this case won, but it did not seem fair that she did.

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International Commercial Arbitration: Too Costly Private Justice?

Cases Considered: Resin Systems Inc. v. Industrial Service & Machine Inc., 2008 ABCA 104

PDF Version: International Commercial Arbitration: Too Costly Private Justice?

The Court of Appeal’s Memorandum of Judgment in Resin Systems Inc. v. Industrial Service & Machine Inc. offers a rare, albeit small, glimpse into the arena of international commercial arbitration. It tells us something about the cost of this type of private justice; one of the major differences between courts and arbitration is that contractual arbitrators are not paid for by taxpayers, but are privately paid for. The judgment also illustrates an unusual lack of deference to arbitration on the part of the Court of Appeal and a lack of faith in an arbitrator’s ability to control the fairness and efficiency of arbitration proceedings through the allocation of costs.

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Andriet v. County of Strathcona No. 20: Court of Appeal Conjures a Creative Accretion Approach

Cases Considered: Andriet v. County of Strathcona No. 20, 2008 ABCA 27

PDF Version: Andriet v. County of Strathcona No. 20: Court of Appeal Conjures a Creative Accretion Approach

In this important reserved judgment, the Alberta Court of Appeal applied a creative approach to attempt to reconcile uncertainties relating to common law accretion with a Torrens Land Titles system, and in doing so once again found for private ownership of accreted lands over Crown ownership of exposed beds and shores.

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The Shotgun Approach to Judicial Review

Cases Considered: Weir v. Canada (Registrar of Firearms), 2008 ABPC 18, Woodcock v. Canada (Registrar of Firearms), 2008 ABPC 19

PDF Version: The Shotgun Approach to Judicial Review

These two almost identical judgments of Provincial Court Judge Bruce R. Fraser confirmed refusals by the Registrar to issue registration certificates for prohibited weapons. They were both references made pursuant to section 74 of the Firearms Act, S.C. 1995, c. 39. The standard of the review to be conducted by a provincial court judge in such a reference has been a controversial matter. Various methods for selecting the appropriate standard of review in a section 74 reference have been proposed and implemented by Alberta courts. The jurisprudence thus far suggests this shotgun approach is missing the mark when it comes to standard of review.

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The Doctrine of Part Performance: Still Strict After All These Years

Cases Considered: Varma v. Donaldson, 2008 ABQB 106

PDF Version: The Doctrine of Part Performance: Still Strict After All These Years

This was an application under section 141 of the Land Titles Act, R.S.A. 2000, c. L-4 for the discharge of a caveat registered against a rental property in Calgary. The owners of the property in this case were Mr. and Mrs. Varma. The caveator was their daughter, Ms. Donaldson. She claimed she had an interest in the rental property under an agreement for its purchase and sale made between herself and her parents. Master K.R. Laycock disagreed and ordered that her caveat be discharged.

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