Author Archives: Nickie Nikolaou

About Nickie Nikolaou

Nickie Nikolaou, B.A. (Sask.), LL.B. (Alberta), LL.M. (Calgary). Associate Professor. Member of the Alberta Bar. Please click here for more information.

Clear and Unequivocal Evidence Required to Prove a Gift of Land

Case Considered: Fleet Estate v. Davies, 2009 ABCA 376 

PDF version: Clear and Unequivocal Evidence Required to Prove a Gift of Land

Cases involving gifts of land are not frequently before the Alberta Court of Appeal. This may be because such gifts are uncommon, or it may be because such gifts are difficult to prove. In the recent case of Fleet Estate v. Davies, 2009 ABCA 376, the Court of Appeal reminds us that clear and unequivocal evidence must always be presented to make out a case for a gift of land. Having been allowed to live in the property for a number of years without paying any rent is not sufficient. Proving that a gift of land has been perfected requires more. The Court of Appeal says that evidence of delivery of a transfer of land or a duplicate certificate of title (where those are still available) will do, but it is doubtful that anything less will.

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Caveator Beware: Damages for Wrongfully Filing a Caveat Can Be Substantial

Cases Considered: Frisgo Development Inc. v. Brower, 2009 ABQB 463

PDF Version: Caveator Beware: Damages for Wrongfully Filing a Caveat Can Be Substantial

There are very few cases dealing with damages for wrongfully filing a caveat under Alberta’s land titles system. While the facts of this case are peculiar, the award of $140,000 sends a clear message. All caveators should ensure that their caveat protects a valid interest in land when it is filed and at all times thereafter. This is particularly so when parties are engaged in negotiations which may have the effect of altering the nature of the initial property interest.

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Court of Appeal Agrees that Severing a Joint Tenancy Requires More than Intention

Case considered: Felske Estate v. Donszelmann, 2009 ABCA 209

PDF version: Court of Appeal Agrees that Severing a Joint Tenancy Requires More than Intention

In a previous post, I concluded that the Court of Queen’s Bench correctly dismissed an application brought by a neighbor of Mrs. Felske for a declaration that he was entitled to half of her farm upon her death. The Court of Appeal has agreed and has dismissed the neighbor’s appeal.

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Charter and Oil and Gas Issues to Await Another Day: A Disappointing End to the Kelly Appeal?

Case Considered: Kelly v. Alberta (Energy and Utilities Board), 2009 ABCA 161

PDF version: Charter and Oil and Gas Issues to Await Another Day: A Disappointing End to the Kelly Appeal?

In an earlier post, I suggested that a recent development in the Kelly appeal would likely lead the Court of Appeal to declare the appeal moot (see “An Important Development in the Kelly Appeal“). I also suggested that, although this would not be a surprising decision, it would amount to a disappointing end for an appeal which held out promises of elucidating important legal issues. The Court of Appeal has indeed dismissed the Kelly appeal as moot. Although this result is certainly disappointing from a legal point of view, it is perhaps less so from a societal and public participation point of view.

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An Important Development in the Kelly Appeal

Cases Considered: Kelly v. Alberta (Energy and Utilities Board), 2008 ABCA 410

PDF Version:  An Important Development in the Kelly Appeal

Last March I posted a blog about a Court of Appeal decision which granted a group of landowners (Kelly et al.) leave to appeal a decision of Alberta’s Energy and Utilities Board (now the Energy Resources Conservation Board). See “What does the Canadian Charter of Rights and Freedoms have to do with Oil and Gas Development in Alberta?”. The grounds for leave in the Kelly appeal indicated that the Court of Appeal might have to address novel and difficult questions in relation to the possible application of section 7 of the Charter in the context of oil and gas development in Alberta. A recent development in the case, however, leaves me wondering whether the merits of the appeal will ultimately be heard or not.

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