By: Arlene Blake
PDF Version: Avoiding Probate Does Not Eliminate Problems
Case Commented On: Dobransky v. Roteliuk, 2018 ABQB 660
Putting property in joint names is an oft used method of estate planning to avoid probate. While it is unclear if Dobranksy is such a case, it can serve as a cautionary tale for those contemplating using joint tenancy as a method of avoiding probate.
By: Jennifer Koshan
PDF Version: “Marriage is not a rugby match”: Choking, Consent and Domestic Violence
Case Commented On: R. v Gardiner, 2018 ABCA 298 (CanLII)
Sexual violence – how it is perpetrated and how allegations are handled by those in power – is at the forefront of public consciousness at the moment as a result of #MeToo and, most recently, the Brett Kavanaugh confirmation hearings. But discussions about the legal definition of consent have been happening in Canada for a long time. The current definition of consent dates back to 1992 and was the result of a law reform process that included consultations with groups representing the interests of survivors as well as accused persons. Consent is defined in s 273.1 of the Criminal Code, RSC 1985, c C-46, as “the voluntary agreement of the complainant to engage in the sexual activity in question” and it is to be assessed from the complainant’s subjective perspective (R v Ewanchuk, [1999] 1 SCR 330, 1999 CanLII 711 (SCC)). Among several important principles that are well accepted in the case law (even if they are not always properly applied), consent cannot be implied or given in advance, can always be revoked, and must be present for each sexual activity in a particular encounter as well as the degree of force used for each activity (see e.g. Ewanchuk, R. v. J.A., [2011] 2 SCR 440, 2011 SCC 28 (CanLII); R v Barton, 2017 ABCA 216 (CanLII); leave to appeal granted, 2018 CanLII 11543 (SCC)).
How does this approach to consent change when the offence is one of domestic violence rather than sexual violence? For a majority of the Alberta Court of Appeal in a recent case, R. v Gardiner, 2018 ABCA 298 (CanLII), the answer is – wrongly, in my view – quite a lot.
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.
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.
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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