Responsibility for Undisclosed Defects in Pre-Owned Real Property

By: Jonnette Watson Hamilton

PDF Version: Responsibility for Undisclosed Defects in Pre-Owned Real Property

Case Commented On: Smiley v Salat, 2018 ABPC 178 (CanLII)

The freely available “virtual library of Canadian legal information” that is CanLII does not allow Google or other internet search engines to index its text or case names and display them in search results (except for Supreme Court of Canada decisions). As a result, CanLII’s million-plus Canadian court decisions and other documents usually do not turn up on a web search, which provides individuals with some privacy, as explained in the CanLII Privacy Policy. However, when a third party links to a CanLII decision, as I have done in this post, the text can be indexed by search engines. Some decisions should be widely available through a Google or similar search. I think this decision by Provincial Court Judge Don Higa is a good example of a decision that should be easily accessible to both lawyers and non-lawyers. It is a good summary of the law that determines when a seller is liable for defects in a just-purchased home and other properties, when those defects were not disclosed by the seller or were not noticed during an inspection. Accessible, understandable law is important to purchasers, especially first-time home owners, faced with unexpected problems and their potential financial and emotional consequences. It is also important to sellers who need to know whether or not settling is their best option.

Judge Higa conveniently divided the issue in this case of who was liable for the 2016 repairs to the sewer line into six questions. It is these six questions – adapted below to be more generic – that sellers or buyers experiencing a dispute about a defect need to consider. The facts of this particular case – the fairly common problem of a sewer backing-up due to intrusive tree roots –illustrate the type of evidence required in order to answer the six questions.

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The 2017/2018 Year in Access to Justice Issues on ABlawg

By: Drew Yewchuk

PDF Version: The 2017/2018 Year in Access to Justice Issues on ABlawg

Planning is underway to hold Alberta’s first ever Access to Justice week from September 29-October 5, 2019. Alberta will join Ontario, Saskatchewan and British Columbia, who each have a week in October dedicated to Access to Justice. In anticipation, this year the Access to Justice Committee of the Canadian Bar Association (Alberta Branch) is taking a week to highlight some of the important initiatives already underway in Alberta. Every day this week they will be posting information about different justice sector organizations in Alberta and the important work they are doing to make access to justice a reality in this province.  We would encourage you to check out their website: here.

To mark the occasion, this is a summary of some of ABlawg’s posts from September 2017 to September 2018, that covered important issues on access to justice issues.

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City of Toronto v Ontario and Fixing the Problem with Section 3 of the Charter

By: Colin Feasby

PDF Version: City of Toronto v Ontario and Fixing the Problem with Section 3 of the Charter

Case Commented On: Toronto (City) v Ontario (Attorney General), 2018 ONCA 761

Introduction

Ontario Premier Doug Ford’s recent restructuring of Toronto City Council in the midst of an election and the ensuing court battle shone a light on a significant gap in the constitutional protection of democratic rights in Canada. Elections for municipal government – arguably the most important level of government in the daily lives of Canadians – need not be conducted in accordance with the fundamental democratic norms found by the Supreme Court of Canada to reside within section 3 of the Charter. The Ontario Court of Appeal in Toronto (City) v Ontario (Attorney General), 2018 ONCA 761 following numerous appellate authorities, succinctly stated the law: “Section 3 does not apply to municipal elections and has no bearing on the issues raised in this case” [citations omitted] (City of Toronto, at para. 12).

This blog post is predicated on what I believe are two uncontroversial normative claims. First, the Supreme Court of Canada’s Charter section 3 jurisprudence, though not without its critics, has made federal and provincial elections more fair and democratic. The corollary of this normative claim is that democratic processes outside the aegis of section 3 are vulnerable to those who would impose unfair or undemocratic rules. Second, democratic processes that are not protected by section 3 of the Charter – referenda, band council elections, municipal elections, school board elections – are important to Canadians; perhaps more important in some respects than provincial and federal elections. This blog post contends that the lack of constitutional protection for important democratic processes is an unnecessary defect in our constitutional arrangement and proposes a way that the Supreme Court of Canada can remedy this defect.

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What Precisely Is A Regulatory Offence?

By: Lisa Silver

PDF Version: What Precisely Is A Regulatory Offence?

Case Commented On: R v Precision Diversified Oilfield Services Corp, 2018 ABCA 273

This semester, I will start teaching 1Ls the first principles of criminal law. The main components of a crime, consisting of the familiar terms of actus reus or prohibited act and mens rea or fault element, will be the focus. These concepts, that every lawyer becomes intimately familiar with in law school, are figments of the common law imagination as actus reus and mens rea do not figure in the Criminal Code. The terms are derived from the Latin maxim, “actus non facit reum nisi mens sit rea,” which translates as “there is no guilty act without a guilty mind.”  This stands for the proposition that the actus reus or prohibited act must coincide or happen at the same time as the mens rea or fault element. That maxim, however, fails to shed light on what those terms mean in law. Indeed, what exactly is a prohibited act or actus reus depends on the crime as described in the Criminal Code, and what exactly is the fault element or mens rea depends on a combination of common law presumptions, statutory interpretation, and case law. In other words, it’s complicated. Even more complex is the vision of these terms when applied to the regulatory or quasi-criminal context. In the recent decision of R v Precision Diversified Oilfield Services Corp, 2018 ABCA 273 [Precision], the Alberta Court of Appeal attempts to provide clarity to these terms but in doing so may be creating more uncertainty.

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How does a coffee shop conversation become a binding contract?

By: Shaun Fluker

PDF Version: How does a coffee shop conversation become a binding contract?

Case Commented On: Schluessel v Margiotta, 2018 ABQB 615 (CanLII)

How many times have you walked into a Starbucks looking forward to a coffee break only to find all seats occupied by people working on a laptop? Their cup is empty, and has been for hours. Starbucks revolutionized the industry in many ways, certainly one of which was that the coffee shop became a social destination and later a business office. Free wifi and highly caffeinated beverages will do that. The contractual dispute which is the focus of this ABlawg post arose out of a conversation at one of these tables at a Starbucks. Schluessel v Margiotta is a cautionary tale to take care in what you say to others in coffee shops – it may cost you a lot of money! The case is also an illustration of the difficulties in legal reasoning which face a trial judge presented with a dispute over whether an oral contract has formed.

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