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.

Time for Buy-Back: Supreme Court Set to Hear Important Adverse Effects Discrimination Case

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: Time for Buy Back: Supreme Court Set to Hear Important Adverse Effects Discrimination Case

Case Commented On: Fraser v Canada (Attorney General), 2018 FCA 223 (CanLII), leave to appeal granted, 2019 CanLII 42345 (SCC)

In December, the Supreme Court of Canada will hear an appeal in an equality rights challenge under section 15(1) of the Canadian Charter of Rights and Freedoms. Several female members of the Royal Canadian Mounted Police argue that their employer’s pension rules – which denied pension buy-back rights to those who were job-sharing – discriminated against them based on their sex and family or parental status. The case is a classic example of adverse effects discrimination, involving a claim that a law or policy that is neutral on its face has an adverse impact on the basis of grounds protected under section 15(1). In this post we will review the Federal Court and Federal Court of Appeal decisions rejecting the women’s claim to set the stage for the upcoming appeal at the Supreme Court. Continue reading →

Three Leaves to Appeal the Claimed Jurisdiction of Court of Queen’s Bench Over Vexatious Litigants

By: Jonnette Watson Hamilton

PDF Version: Three Leaves to Appeal the Claimed Jurisdiction of Court of Queen’s Bench Over Vexatious Litigants

Cases Considered: Lymer (Re), 2018 ABCA 368 (CanLII); Jonsson v Lymer, 2019 ABCA 113 (CanLII); Makis v Alberta Health Services, 2019 ABCA 23 (CanLII); Vuong Van Tai Holding Inc v Alberta (Minister of Justice and Solicitor General), 2019 ABCA 165 (CanLII); Unrau v National Dental Examining Board, 2019 ABQB 283 (CanLII)

The Alberta Court of Appeal has granted leave to appeal three different vexatious litigant orders made by the Court of Queen’s Bench in Edmonton that restricted individual litigant’s access to the courts and, in one case, to administrative tribunals. Hopefully the three appeals will be heard either together or on the same day by the same panel, as suggested by Justice Bielby when she granted leave to appeal in Vuong Van Tai Holding Inc v Alberta (Minister of Justice and Solicitor General), 2019 ABCA 165 (CanLII) (at para 21). The National Self-Represented Litigants Project (NSRLP) has been granted leave to intervene in one of the three appeals – Jonsson v Lymer, 2019 ABCA 113 (CanLII) – bringing its wider perspective on self-represented litigants and its national research on access to justice into the courtroom. The Alberta Minister of Justice and Solicitor General, who was represented on the leave to appeal application in Vuong, has been invited to participate as a party in that appeal. The arguments and outcomes of these three appeals should be very interesting on a number of issues of civil procedure, access to justice and procedural justice, but primarily on the question of the scope of the inherent jurisdiction of the Court of Queen’s Bench. In this post, I will look at what is at stake in these three appeals. Continue reading →

How to Interpret a Will, or “Motorcycles make a House a Home”

By: Jonnette Watson Hamilton

PDF Version: How to Interpret a Will, or “Motorcycles make a House a Home”

Case Commented On: Hicklin Estate v Hicklin, 2019 ABCA 136 (CanLII)

Hicklin Estate is a judgment interpreting one word in a will – the word “home.” It is also a judgment with 138 paragraphs and 90 footnotes saying, in the end, that the chambers judge committed no palpable or overriding error in using extrinsic evidence to broadly interpret “home” to include the contents of the house and the garage. Not only was the sole issue a relatively narrow one, but the applicable law appears to be uncontroversial. It does not seem to be a case that calls for any more elaboration of the law than that given it by the lower courtin what the Court of Appeal called a “careful review” of the jurisprudence (at para 40). Nevertheless, lawyers seem to love this lengthy Court of Appeal judgment, applauding its “interesting hypotheticals (which heavily feature vintage Rolls-Royce automobiles)” and calling it a “delight to read, for it is an erudite and learned disquisition” and “a model of stylistic clarity.” However, the stylistic clarity seems to have distracted readers’ attention from problems with the substance of the judgment. Continue reading →

The Adverse Impact of Mandatory Victim Surcharges and the Continuing Disappearance of Section 15 Equality Rights

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: The Adverse Impact of Mandatory Victim Surcharges and the Continuing Disappearance of Section 15 Equality Rights

Case Commented On: R v Boudreault, 2018 SCC 58 (CanLII)

It was just over one year ago that our former colleague Sheilah Martin was appointed to the Supreme Court of Canada (see our tribute on ABlawg). Justice Martin has now written her first decision for the Court, R v Boudreault, 2018 SCC 58 (CanLII) which was released in December 2018. The case concerns the constitutionality of victim surcharges, which are mandatory for persons who are discharged, plead guilty, or are found guilty of an offence under the Criminal Code, RSC 1985, c C-46, or the Controlled Drugs and Substances Act, SC 1996, c 19. Writing for a majority of the Court, Justice Martin’s judgment holds that these surcharges violate section 12 of the Canadian Charter of Rights and Freedoms, which protects against cruel and unusual punishment.

Our interest in this post is in exploring how equality infuses Justice Martin’s decision. Equality rights were not directly at issue in the case; rather, the constitutional challenge focused on section 12 as well as the guarantee of life, liberty and security of the person in section 7 of the Charter. Equality arguments were made by only two interveners (see here and here) and equality is mentioned explicitly only once in Justice Martin’s ruling (at para 28). Nevertheless, the discriminatory impact of the surcharge animates her entire judgment.

This leads us to reiterate a point we have made in previous writing (see e.g. here): section 15 of the Charter, the equality guarantee, is often overlooked in favour of other rights and freedoms as a result of the courts’ difficulties with and inconsistent treatment of equality rights. This has led to the analysis of other Charter rights – including section 7 and section 12 – that overlaps with equality, which muddies the content of these other rights. In turn, the lack of a robust equality jurisprudence perpetuates the tendency of parties and courts to avoid section 15. This is not necessarily a problem when other rights can be successfully invoked, as in this case, but it can be a problem when a successful claim depends on equality rights.

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Court of Queen’s Bench Requires Vexatious Litigant to Seek Court’s Permission Before Accessing Any Non-Judicial Body

By: Jonnette Watson Hamilton

PDF Version: Court of Queen’s Bench Requires Vexatious Litigant to Seek Court’s Permission Before Accessing Any Non-Judicial Body

Case Commented On: Makis v Alberta Health Services, 2018 ABQB 976

In many written decisions rendered over the past two years, some judges of the Court of Queen’s Bench of Alberta have been rather disdainful of the vexatious litigant procedures added to the Judicature Act, RSA 2000, c J-2 in 2007, referring to them, for example, as “obsolete and inferior” (Gagnon v Shoppers Drug Mart, 2018 ABQB 888 at para 14). Although the Judicature Act procedures continue to be used in rare cases (e.g. HRMT v SNS, 2018 ABQB 843 at para 102), the Court usually makes it clear that it prefers its own two-step “modern” process – introduced in Hok v Alberta, 2016 ABQB 651 – which they justify as an exercise of a superior court’s inherent jurisdiction. The use of their inherent jurisdiction is said to provide “a more robust, functional, and efficient response to control of problematic litigants” (Templanza v Ford, 2018 ABQB 168 at para 103; Hill v Bundon, 2018 ABQB 506 at para 53). The Judicature Act procedure requires “persistent” bad behavior by a litigant before that litigant’s access to the courts can be restricted (s 23(2)), usually by requiring the litigant to obtain the court’s permission before starting a new court action. The Court of Queen’s Bench does not want to wait for persistent vexatious conduct (Templanza at para 101; 1985 Sawridge Trust v Alberta (Public Trustee), 2017 ABQB 548 at paras 49-50). The legislated procedure also requires notice to the Minister of Justice and Solicitor General (s 23.1(1)), who has a right to appear and be heard in person (s. 23.1(3)), a requirement that suggests how seriously our elected representatives saw restrictions on court access when they added the vexatious litigant procedures to the Act in 2007. The court-fashioned process does not usually require notice to anyone except the person about to be found to be a vexatious litigant, and it has become a written-submissions-only process – no one has the right to appear and be heard in person. The usual restrictions on court access are now characterized as a “very modest imposition” (Knutson (Re), 2018 ABQB 858 at para 42). As this brief summary suggests, the changes made to this area of the law over the past two years have been fairly dramatic. But the Court of Queens’ Bench has now pushed the envelope, extending their inherent jurisdiction even further. In Makis v Alberta Health Services, their inherent jurisdiction is used to control access by a litigant found to be vexatious to non-judicial bodies, i.e. administrative tribunals and other statutory decision-makers.

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