Preservation of Human Dignity as the Justification for Excluding Personal Rights of Action in Bankruptcy

By: Jassmine Girgis

PDF Version: Preservation of Human Dignity as the Justification for Excluding Personal Rights of Action in Bankruptcy

Case Commented On: Cooke (Re), 2018 ABQB 628

This case considers whether a contractual “critical illness” benefit forms part of the property of the bankrupt’s estate. Personal rights of action arising out of tort claims have traditionally not formed part of the bankrupt’s estate, meaning the bankrupt gets to keep the money from these claims. Prior to this case, however, courts do not appear to have addressed the bankrupt’s entitlement to personal rights arising from contract. In this case, the court drew an analogy between the two types of claims. It found that both compensate for the pain and suffering of the bankrupt and consequently concluded that a contractual critical illness claim should also be excluded from the distribution to creditors.

The bigger question raised by this case is why these types of claims are not included in the distribution to creditors. This is not a statutory exemption, but courts have been excluding personal rights of action in bankruptcy distributions for more than a century. This blog explores one possible reason for the exemption. Rather than seeing the debtor as a financial problem that must be solved without requiring state assistance, which has been the pattern of bankruptcy law, this may be the courts seeing and treating the debtor as a human being.

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Avoiding Probate Does Not Eliminate Problems

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.

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“Marriage is not a rugby match”: Choking, Consent and Domestic Violence

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.

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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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