Category Archives: Property

Expiration of Confidentiality also gives Boards the Liberty to Copy and Distribute

By: Nigel Bankes

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Case Commented On: Geophysical Services Incorporated v Encana Corporation, 2016 ABQB 230

This decision involves rights to seismic data. Under Canadian law (and here specifically the rules established for federal lands in the north and the east coast offshore) seismic data filed with government is treated as privileged or confidential for a period of years. The principal issue in this case was the question of what rules apply once that protection comes to an end. Is it open season or do the creators of the seismic data retain some rights and in particular their copyright entitlements? In her decision Justice Kristine Eidsvik has decided that it is open season.

The decision is part of complex case-managed litigation commenced by Geophysical Services Inc (GSI) in 25 actions against the National Energy Board (NEB), the Canada-Newfoundland Offshore Petroleum Board (CNOPB) (the Boards) and numerous oil and gas companies, seismic companies and companies providing copying services. GSI claims that copyright subsists in seismic data and that its copyright protection survives the confidentiality period. Furthermore, it claims that access to the seismic information after the loss of confidentiality is governed by the Access to Information Act, RSC 1985, c A-1 (AIA) and that there is no open season on access or copying.

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Calculating Damages for a Trespass to Land, Actionable Per Se

By: Jonnette Watson Hamilton

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Case Commented On: Corlis v Blue Grass Sod Farms Ltd., 2016 ABPC 55 (CanLII)

Frank Corlis, the plaintiff in this action, was awarded the precise sum of $5,500.80 in damages for Blue Grass Sod Farms’ trespass to his land. As an old-fashioned trespass to land case, this decision’s most interesting points are about the calculation of damages. Cases explaining damages for these torts that are “actionable per se” are not that common.

The facts were a little unusual. Glen Armitage owned a quarter section of land that produced sod and he sold a portion of it in 2005 to Corlis. Corlis’ land was undeveloped, except for its production of sod. Although Corlis planned to build a home on the land, he never took any steps to do so.

Blue Grass Sod Farms leased the Armitage land for $85 per acre in 2009. The company had some discussions with Corlis about looking after his land and harvesting the sod, but the two never reached an agreement then. By 2009, Corlis had stopped visiting his land very often. He did not look after it himself and he had not hired hire anyone to do so either. He apparently thought that Blue Grass was caring for his land as “the neighborly thing to do” (at para 10), but Judge James Glass, sitting in Red Deer, found that there was no agreement about harvesting sod between Blue Grass and Corlis.

When Blue Grass harvested the Armitage land in 2013, they also harvested sod from Corlis’ land, sold that sod and made a profit from that sale. When Cortis visited his land in 2013 with a prospective purchaser, he noticed that his sod was gone. When he phoned Blue Grass, he was told that if they were cutting the sod, then they were taking the sod. The company admitted that it harvested the sod from about 80,000 square feet of Corlis’ land.

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Can a Co-owner Acquire Title to Their Co-owner’s Share through Adverse Possession?

By: Nickie Nikolaou

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Case Commented On: Denesik v Verhulst Estate, 2016 ABQB 36

Acquiring title through adverse possession in Alberta is difficult and successful cases are rare. For co-owners seeking to acquire shares of their fellow co-owners, making out a claim will be even more difficult and success even rarer. This is the message from the recent case of Denesik v Verhulst Estate, 2016 ABQB 36.

Facts

This case concerned an application for a declaration for title to three parcels of land through the doctrine of adverse possession (also known as “prescriptive title” or “squatter’s rights” in other jurisdictions). The land consisted of a 159 acre “home quarter” and two river lots totalling 96 acres. The home quarter and river lots were approximately 6 km apart.

The land had been acquired as part of a joint venture between the applicant, Mr. Denesik, and the late Mr. Verhulst. They had bought the land to harvest the timber on it and divide the profits. By 1995, operations had ceased. In 1996, Mr. Denesik moved on to the home quarter and lived there until the date of his application in late 2015. He lived in a trailer with a home-made water system and no electricity or gas. Mr. Denesik argued that his occupation of the land continuously over this time period had “ripened into ownership” (at para 5).

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Can We Keep the Horses in the Barn? Investigation Report on Alberta Environment’s Destruction of Records after the 2015 Provincial Election

By: Linda McKay-Panos

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Report Commented On: Information and Privacy Commissioner, Public Interest Commissioner, Investigation Report on Alleged improper destruction of records by Alberta Environment and Sustainable Resource Development

On January 7, 2016, the Office of the Information and Privacy Commissioner of Alberta (OIPC) and the Public Interest Commissioner (PIC) released their Investigation Report on alleged improper destruction of records by Alberta Environment and Sustainable Resource Development after the 2015 Provincial Election (Investigation Report). When reading the highlights of the Investigation Report’s recommendations, one hopes that the current government might implement and retain some rules and practices that deter future events of this nature.

After the Alberta provincial election in May, 2015, there were a number of media reports about destruction of records during the transition to a new government (Investigation Report, at para 2). The OIPC issued a news release on May 7, 2015 to inform and remind Albertans of the provisions of the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 (FOIP Act) dealing with record destruction, while noting that some of the records were not subject to the same rules (Investigation Report, at para 6). On May 12, 2015, a disclosure of wrongdoing was made to the PIC under the Public Interest Disclosure (Whistleblower Protection) Act, SA 2012, C P-39.5, alleging that staff members of the Department of Sustainable Resource Development (ESRD) were instructed to move all briefing material into the Action Request Tracking System (ARTS), and all records would then be deleted (Investigation Report, at para 3). On May 13, 2015, the OIPC and the PIC announced that they would jointly investigate allegations that records within ESRD may have been destroyed in an unauthorized manner (Investigation Report, at para 9).

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The Residential Tenancies Act and Domestic Violence: Facilitating Flight?

By: Jennifer Koshan and Jonnette Watson Hamilton

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Legislation Commented On: Bill 204: Residential Tenancies (Safer Spaces for Victims of Domestic Violence) Amendment Act, 2015

Bill 204, the Residential Tenancies (Safer Spaces for Victims of Domestic Violence) Amendment Act, 2015, was introduced by Deborah Drever, Independent MLA for Calgary-Bow, to mark Family Violence Prevention Month on November 15, 2015. At that time, MLA Drever stated that “This bill seeks to empower and support survivors of violence by removing some of the barriers to leaving an unsafe home environment.” (Hansard, November 15, 2015). At Second Reading on November 16, 2015, MLAs from all parties expressed support for the Bill, which passed unanimously. Perhaps most powerful was the statement of the MLA for Lethbridge-East, Maria Fitzpatrick, who told her own story of domestic violence and the barriers to leaving her former spouse (Hansard, November 16, 2015). Amendments to the Bill were agreed to and introduced by the Committee of the Whole on November 30, 2015. This post will describe the ways in which Bill 204, as amended, proposes to revise the Residential Tenancies Act, SA 2004 cR-17.1, and will raise a number of issues that the Legislature may wish to consider before it passes the Bill in final form.

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