Category Archives: Property

The Right of a Landlord to Withhold Consent to the Sub-leasing of Residential Premises

By: Jonnette Watson Hamilton

PDF Version: The Right of a Landlord to Withhold Consent to the Sub-leasing of Residential Premises

Case Commented On: Botar v Mainstreet Equity Corp., 2010 ABQB 710

It is unusual for a residential tenancy matter to be heard in the Court of Queens’ Bench of Alberta, as was Botar v. Mainstreet Equity Corp. Residential landlord and tenant law is intended to be accessible; the relationship is regulated by one, fairly comprehensible and comprehensive statute, the Residential Tenancies Act, S.A. 2004, c. R-17.1. Claims under that statute are usually heard in Provincial Court – Civil (also known as Small Claims Court), and that court has a helpful website on the Residential Tenancies Process. Accessible explanations of the process involved in making claims under the Residential Tenancies Act are an indication that Provincial Court – Civil is oriented toward self-represented litigants. Nevertheless, a tenant such as Andrew S. Botar might choose to represent himself in the Court of Queen’s Bench or be required to do so because his claim is for more than $25,000, the upper limit on damages that Provincial Court – Civil can award. In this case, Mr. Botar’s claim was for approximately $75,000. Mr. Botar had also enjoyed some success in the Court of Queen’s Bench against his landlord, Mainstreet, in 2007: see Botar v. Mainstreet Equity Corp., 2007 ABQB 608 and A Tenant’s Right to Withhold Payment of Rent, my comment on that earlier decision. Any preference Mr. Botar might have for the Court of Queen’s Bench, however, might be dissipated by this November 2010 decision by Mr. Justice J.J. Gill. Continue reading →

Clarification of CBM Ownership on Freehold Lands in Alberta

PDF version: Clarification of CBM Ownership on Freehold Lands in Alberta

Legislation commented on: Bill 26, Mines and Minerals (Coalbed Methane) Amendment Act, 2010, Legislative Assembly of Alberta, Third Session, 27th Legislature, 59 Elizabeth II

One of the obstacles to coalbed methane (CBM) development on freehold lands in Alberta has been uncertainty regarding ownership of CBM on split title freehold lands. CBM ownership disputes have arisen when one person holds the title to natural gas and a different person holds the coal rights for the same parcel of land. Ron Liepert, the Minister of Energy, introduced Bill 26 in the Alberta legislature on October 27, 2010. After the first and second readings of the Bill, the Committee of the Whole passed an amended version on November 23, which includes one additional section.

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Are the Creditors Paying Attention?

PDF version: Are the Creditors Paying Attention? 

Case considered: Seguin v Graham and 1356248 Alberta Ltd., 2010 ABQB 582

I find it odd that someone who has failed to file tax returns for the last 14 or so years and who has been pursued by Ontario’s maintenance enforcement program for failing to pay child support for at least 7 years would commence a court action that brings these facts plus details of his annual income and net worth to light in the public forum that is a courtroom. And yet that is exactly what Donald Seguin did when he sued Sandra Graham for unjust enrichment and claimed a constructive trust over her house or, alternatively, a judgment for half of the increase in value of the house over the course of their cohabitation. The subsequent publication of the decision of Mr. Justice R.A. Graesser on the Alberta Courts website and on the Canadian Legal Information Institute‘s (CanLII) website in late September puts the facts out there for anyone to read. Justice Graesser’s consideration of Mr. Seguin’s efforts to avoid the acquisition of assets and his attempts to shelter his assets from his creditors make this rather ordinary case concerning the division of assets on the breakdown of a common law relationship of interest to more than the parties themselves. One has to wonder, however, if the creditors are paying attention?

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The Supreme Court of the United Kingdom (fka the House of Lords) Decides an Oil and Gas Case

By: Nigel Bankes

PDF Version: The Supreme Court of the United Kingdom (fka the House of Lords) Decides an Oil and Gas Case 

Case Commented On: Star Energy Weald Basin Limited v Bocardo SA, [2010] UKSC 35

It is not every day, or even every year, that the highest court in the United Kingdom passes judgement in an oil and gas case. But the Supreme Court of the United Kingdom did so at the end of July and while much of the Court’s reasoning turns on the details of the UK’s petroleum legislation, and in particular on the terms of the Crown vesting legislation in that jurisdiction, the Court also had something to say about the common law ownership rights of the surface owner. These comments merit carefully scrutiny in the context of the ongoing debate in Alberta and elsewhere about ownership rights in relation to pore space, an important issue in the context of carbon capture and storage (CCS).

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Mutatis Mutandis: The ERCB Speaks (in Latin) on the Subject of Carbon Capture and Storage

By: Nigel Bankes

PDF Version: Mutatis Mutandis: The ERCB Speaks (in Latin) on the Subject of Carbon Capture and Storage

Matter Commented On: ERCB Bulletin 2010 – 22, ERCB Processes Related to Carbon Capture and Storage (CCS) Projects, June 29, 2010

After a long period of cogitation the chief energy regulator in the province has finally provided a statement of how it proposes to approach the regulation of carbon capture and storage (CCS) projects. The message is simple: apply the current rules, so far as they are applicable to CCS (the basic idea of mutatis mutandis). The issue is important: several task forces and many commentators have emphasised that the proponents of CCS projects need regulatory certainty if they are to plan and implement commercial scale CCS operations. Whether this ERCB Bulletin provides sufficient guidance to industry and sufficient comfort to the citizens of the province that CCS projects will be handled safely remains to be seen.

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