Category Archives: Property

Who is Responsible for Damage to Rental Premises Caused by Mouse Infestations – and Why?

By: Jonnette Watson Hamilton

Case Considered: Hometime Property Services Ltd v Girumnesh, 2022 ABPC 172 (CanLII)

PDF Version: Who is Responsible for Damage to Rental Premises Caused by Mouse Infestations – and Why?

The plaintiff, a corporate landlord, sued the defendant, their former residential tenant, for almost $8,000 in damages plus costs, claiming the rental premises were infested with mice when the tenant vacated. The damages were for exterminating the mice and restoring the premises to their pre-infestation condition. The tenant, who was served personally with the landlord’s civil claim, did not file a dispute note and was noted in default. Because they were noted in default and the claim was heard in Provincial Court, the tenant was deemed to have admitted the facts that were alleged in the landlord’s civil claim. Nevertheless, the landlord lost; their claim was dismissed in its entirety. Why that happened is worth taking note of. Continue reading →

Novel Form of Agreement to Reserve Surface Rights Payments

By: Nigel Bankes

Case commented on: Schnell v Stene (Heidinger Estate), 2022 SKQB 146 (CanLII)

PDF version: Novel Form of Agreement to Reserve Surface Rights Payments

It is not uncommon for a vendor of agricultural lands in western Canada to seek to ensure that the vendor will continue to receive the benefit of surface rights payments payable under the terms of surface rights leases or right of entry orders. Perhaps the most common technique to achieve this result is by way of an agreement to assign rents. This will be effective so long as one is confident that such an agreement creates an interest in land that can be protected by way of caveat. In some jurisdictions legislation deems such an agreement to give rise to an interest in land, (see, for example, Law of Property Act, RSA 2000, c L-7 at s 63(1)(b)) whereas in other jurisdictions the point may be more debatable: (e.g. Alberta  prior to the 1985 amendment to the Law of Property Act: see Webster v Brown, 2004 ABQB 321 (CanLII) and Canadian Crude Separators Inc. v Mychaluk, 1997 CanLII 14841 (AB QB), [1998] 1 WWR 545. Continue reading →

The Rhetoric of Property and Immunity in the Majority Opinion in the Impact Assessment Reference

By: Nigel Bankes & Andrew Leach

Opinion Commented On: Reference re Impact Assessment Act, 2022 ABCA 165 (CanLII).

PDF Version: The Rhetoric of Property and Immunity in the Majority Opinion in the Impact Assessment Reference

The Alberta Court of Appeal recently released its opinion in Reference re Impact Assessment Act, 2022 ABCA 165 (CanLII). A majority of the Court found the Impact Assessment Act, SC 2019, c. 28, s 1 [IAA] to be unconstitutional. Our colleague Martin Olszynski has already summarized the majority’s approach and some of the doctrinal difficulties therein.

In this post, we consider in more detail the majority’s lengthy discussion of the historical evolution of the resource rights of the prairie provinces from the creation of Alberta and Saskatchewan as provinces in 1905, through to the Natural Resources Transfer Agreements (NRTAs) of 1930, culminating with the adoption of s 92A (the Resources Amendment) in 1982. Continue reading →

Access to Digital Assets by Fiduciaries

By: Stella Varvis

PDF Version: Access to Digital Assets by Fiduciaries

Matter Commented On: the Uniform Access to Digital Assets by Fiduciaries Act

The email from your brother about spring break. Photos from prospective online dates stored on your phone. Restaurant reviews posted on your WordPress blog. Your Airmiles travel points. Your Venmo payment account. Your Bitcoin wallet.

You may own more digital assets than you realize. In fact, estimates suggest that the average Canadian has digital assets with a stored electronic value of approximately $10,000 (See Noor Ibrahim, “Does your social media profile belong in your will? Why Canadians should plan their ‘digital inheritance’ now” (26 Nov 2021)). But what happens to your digital assets if you die or become incapacitated? Who has the right to access your digital assets? And what can be done if an online service provider in another jurisdiction denies access? Continue reading →