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.

Security for Costs on Appeals by Impecunious and Vexatious Litigants

Cases Considered: Opal v. White, 2008 ABCA 25

PDF Version: Security for Costs on Appeals by Impecunious and Vexatious Litigants

The very short judgment of Mr. Justice Frans Slatter in Opal v. White is an unlikely candidate for a comment. It is barely more than a page – a scant seven paragraphs – and it cites neither rules nor precedents in deciding three applications for security for costs. Nevertheless, the judgment’s treatment of the issue of security for costs on an appeal of an order declaring the appellant to be a vexatious litigant is noteworthy.

Continue reading →

Leave to Appeal Arbitration Awards and the Addition of the Public Interest

Cases Considered: Lion’s Gate Homes Ltd. v. Shand, 2008 ABQB 15

PDF Version: Leave to Appeal Arbitration Awards and the Addition of the Public Interest

This brief decision by Mr. Justice D.K. Miller provides an opportunity to look at how the courts in Alberta have interpreted subsection 44(2) of the Arbitration Act, R.S.A. 2000, c. A-43. This is the provision that usually governs the ability of the parties to appeal an arbitrator’s award. Although subsection 44(2) does not, on the face of it, require that there be any public interest in the parties’ dispute or the award resolving that dispute or an appeal from the award, judges of the Court of Queen’s Bench of Alberta have fairly consistently read in that extra element.

Continue reading →

Restraining Disinheritance

Cases Considered: Re Boychuk (Estate), 2008 ABQB 38

PDF Version: Restraining Disinheritance

The idea that a deceased person’s estate should be available to those who were dependent upon the deceased during his or her lifetime is an idea recognized by many legal systems. Sometimes it finds expression in the forced distribution of shares of a deceased’s estate; in other cases, a maintenance principle is adopted. Alberta originally adopted the forced share approach. The Married Women’s Relief Act, enacted in 1910, authorized a court to grant a widow who had been left less in her husband’s will than she would have been entitled to as her intestate share “such allowance … as may be just and equitable in the circumstances.” The courts interpreted that provision to me an the widow was entitled to an amount equivalent to her intestate share: McBratney v. McBratney (1919), 50 D.L.R. 132. However, within a generation, Alberta shifted to the more flexible maintenance approach and extended protection to children. In Alberta’s current statute, the Dependants Relief Act, the deceased’s dependants are entitled to adequate maintenance from his or her estate. Continue reading →

Alberta’s New Vexatious Litigant Law Applied

Cases Considered: O’Neill v. Deacons, 2007 ABQB 754

PDF Version: Alberta’s New Vexatious Litigant Law Applied

The Alberta government passed new legislation in June of 2007 to give courts in the province more power to deal more effectively with “vexatious litigants.” These individuals were described by the Honourable Minister of Justice and Attorney General, Ron Stevens, in the Legislative Assembly on second reading of the amendments, in the following terms:

Continue reading →

Ascertaining a Dominant Tenement With a Right to a View

Cases Considered: Kolias v. Owners Condominium Plan 309 CDC, 2007 ABQB 714

PDF Version: Ascertaining a Dominant Tenement With a Right to a View

The small community known as Eagle Ridge occupies the eastern shore of the Glenmore Reservoir in Calgary. In 1971, a restrictive covenant was registered against Lot 10 in the Eagle Ridge community, a lot now owned by the appellants, Ike and Lisa Kolias. In the restrictive covenant, Lot 10 was divided into three areas and height restrictions were imposed on two of those three areas. No structure or hedge over six feet in height could be built or placed in the first of those areas. Nothing over fourteen feet in height (except chimneys or radio or T.V. antenna) was allowed in the second area. Although not specified in the restrictive covenant itself, its purpose arguably was to protect the sight lines of the units in the six storey condominium on the adjacent lot. These units had views in three directions, including views of downtown to the north and, to the west across Lot 10, views of Heritage Park, the Glenmore Reservoir and the mountains to the west.

Continue reading →