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.

Critical Infrastructure Defence Act Charter Challenge Survives Alberta Government’s Motion to Strike

By: Jennifer Koshan, Lisa Silver and Jonnette Watson Hamilton

PDF Version: Critical Infrastructure Defence Act Charter Challenge Survives Alberta Government’s Motion to Strike

Case Commented On: Alberta Union of Public Employees v Her Majesty the Queen (Alberta), 2021 ABQB 371 (CanLII)

Last summer we posted a critical analysis of Alberta’s Bill 1, the Critical Infrastructure Defence Act, SA 2020, c C-32.7 (CIDA). We argued that CIDA, which prohibits unlawfully entering onto, damaging, or obstructing any “essential infrastructure” in the province, violates several sections of the Canadian Charter of Rights and Freedoms, including freedom of expression (s 2(b)), freedom of peaceful assembly (s 2(c)), freedom of association (s 2(d)), the right to liberty (s 7) and the right to equality (s 15). Shortly after CIDA took effect on June 7, 2020, the Alberta Union of Provincial Employees (AUPE) and three individual plaintiffs brought a constitutional challenge against the law, arguing that it violates those Charter rights and freedoms (with the exception of s 15, which was not raised), as well as sections 1(a), (c), and (d) of the Alberta Bill of Rights, RSA 2000, c A-14 (which protect similar rights as well as the right to enjoyment of property). The plaintiffs also contended that CIDA encroaches on federal jurisdiction under The Constitution Act, 1867, namely, s 91(27) (federal jurisdiction over criminal law) and s 92(10)(a) (federal jurisdiction over interprovincial works and undertakings). In a decision released in June, Justice Shaina Leonard of the Alberta Court of Queen’s Bench dismissed the government’s motion to strike the challenge. Continue reading →

Saskatchewan Court of Appeal Confirms that a Registrar’s Caveat Is Not a Magic Wand

By: Nigel Bankes and Jonnette Watson Hamilton

PDF Version: Saskatchewan Court of Appeal Confirms that a Registrar’s Caveat Is Not a Magic Wand

Decision Commented On: Primrose Drilling Ventures v Registrar of Titles, 2021 SKCA 15

This case involves the rights acquired by a party (Primrose Drilling) who took a title that was encumbered by a registrar’s caveat. The caveat was filed to warn purchasers of a potential registrar’s error made back in the chain of title, but it was filed after a purchaser for value had got on the register relying on the flawed title.

The case came before the courts on the basis of a reference from the registrar relying on section 108 of The Land Titles Act, 2000, SS 2000, c L-5.1. The trial judge (Registrar of Titles and Great West Life Assurance Company and Primrose Drilling Ventures Ltd, 2018 SKQB 290 (CanLII)) concluded that Primrose’s title was subject to whatever interest the Registrar was seeking to protect (in this case the interests of GWL, the successor in interest to a party wrongly deprived of the mineral title to the lands in question). We commented on the trial judgment at some length in “Saskatchewan Land Titles Decision Calls Out for Appellate Review.” We took the position that the registrar had no authority to file a caveat once a purchaser for value had got on title on the faith of the register and that Primrose (the last purchaser for value in the chain of purchasers for value) was entitled to a title free of the blemish represented by the registrar’s claim. We refer the reader to that post for a detailed analysis and discussion of relevant authorities from both Saskatchewan and Alberta.

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Tugging at the Strands: Adverse Effects Discrimination and the Supreme Court Decision in Fraser

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: Tugging at the Strands: Adverse Effects Discrimination and the Supreme Court Decision in Fraser

Case Commented On: Fraser v Canada (Attorney General), 2020 SCC 28 (CanLII)

On October 16, 2020, the Supreme Court of Canada released its long-awaited decision in Fraser v Canada (Attorney General), 2020 SCC 28 (CanLII). Fraser involved a claim of adverse effects discrimination by female RCMP members who lost their entitlement to full pension benefits when they entered temporary job-sharing arrangements. We blogged on the Federal Court of Appeal decision in Fraser here, and – in the interests of disclosure – also participated in the Supreme Court intervention in Fraser by the Women’s Legal Education and Action Fund (LEAF) (for LEAF’s news release following the Fraser decision, see here).

Fraser is the first successful adverse effects claim under section 15 of the Canadian Charter of Rights and Freedoms in over 20 years and it is the first ever successful adverse effects claim under section 15 in a sex discrimination context. This post will focus on the typical challenges that have been faced in adverse effects claims and review how Justice Rosalie Abella’s majority decision in Fraser responded to these problem areas, which were also apparent in the lower court decisions in Fraser. Although Justice Abella wrote for the majority of the Court (Chief Justice Richard Wagner and Justices Michael Moldaver, Andromache Karakatsanis, Sheilah Martin and Nicholas Kasirer, as well as herself), we will refer to the judgment as hers because it appears to be the culmination of her life-long work on equality rights and may be her last judgment on this subject before her retirement in 2021.

We also review the two dissenting judgments in Fraser, written by Justices Russell Brown / Malcolm Rowe and Justice Suzanne Côté. Our title is inspired by Justice Abella’s allegation that the dissent “tug[s] at the strands of a prior decision they disagree with … [to] unravel the precedent” (at para 133, referring to Alliance, one of the Court’s two 2018 pay equity decisions that we cite below). Interestingly, the same could be said of the majority judgement, which unravels the knots of a large body of section 15 jurisprudence that has made it difficult to prove adverse effects discrimination claims. It is these problem areas that we turn to next.

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Tenant’s Insurance, Ministerial Order No SA:005/2020 and Evictions of Residential Tenants

By: Jonnette Watson Hamilton

PDF Version: Tenant’s Insurance, Ministerial Order No SA:005/2020 and Evictions of Residential Tenants

Case Commented On: 20005321 (Re), 2020 ABRTDRS 20 (CanLII)

This decision by a Tenancy Dispute Officer (TDO), J. Lambert, of Alberta’s Residential Tenancy Dispute Resolution Service (RTDRS) is notable for three reasons. The first – and probably the most helpful to the widest range of landlords and tenants – is the discussion about whether or not a tenant’s failure to produce evidence of tenant’s insurance as required by their residential tenancy agreement is a “substantial breach” that entitles the landlord to evict the tenant. It seems that many residential tenancy agreements require tenants to obtain insurance for their own property – contents insurance – and many tenants do not bother to do so. The second reason is its consideration of Ministerial Order No SA:005/2020, which was intended to offer some help to tenants who could not pay their rent due to COVID-19. That Ministerial Order lapsed on August 14, 2020, so whatever impact it had should be apparent by now. But because of structural problems such as the small percentage of RTDRS decisions made public and the closure of courts to eviction cases at the beginning of the pandemic, we will probably never know whether or what kind of difference that Ministerial Order made. We do have a hint of its impact in the decision in 20005321 (Re), but it is only a hint. The third reason this decision is notable is that it is one of only 24 RTDRS decisions made public so far in 2020. The publication of some RTDRS decisions was a recent and deliberate commitment to “improved access to justice by publishing written RTDRS decisions through the CanLII database”, according to the Service Alberta Annual Report 2019/2020 (at 19). This decision contributes toward that goal, but more is needed.

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Exercising the Discretion to Allow Late Family Maintenance and Support Applications

By: Jonnette Watson Hamilton

 PDF Version: Exercising the Discretion to Allow Late Family Maintenance and Support Applications

Case Commented On: Lamont Estate, 2020 ABQB 449 (CanLII)

A family member has a limited amount of time in which to apply to the Court of Queen’s Bench of Alberta when seeking a greater share of a deceased person’s estate than the share given to them in that person’s will or on intestacy. Under section 89(1) of the Wills and Succession Act, SA 2010, c W-12.2 (WSA), the family member must apply within six months after the grant of probate or administration. Nevertheless, a court may allow a late application for a greater share of any part of the estate not yet distributed: section 89(2). This decision of Justice Nicholas Devlin appears to be the first time that a court has looked at what factors it should consider when exercising its discretion to allow or disallow a late application.

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