Court of Appeal Confirms that Summary Judgement Not Available in a Factually Complex Oil and Gas Case

By: Nigel Bankes

PDF Version: Court of Appeal Confirms that Summary Judgement Not Available in a Factually Complex Oil and Gas Case

Case Commented On: Talisman Energy Inc v Questerre Energy Corporation, 2017 ABCA 218 (CanLII)

The Court of Appeal has concluded that summary judgement will not be available for monies owing based upon the liquidated demand clause in the 1990 CAPL Operating Agreement where the matter involves the existence of an alleged additional or collateral agreement that, if proven, may vary the terms or application of the Operating Agreement on which the claim depends. Continue reading →

Abatement of Rent for Landlord’s Breach of the Minimum Housing and Health Standards

By: Jonnette Watson Hamilton

PDF Version: Abatement of Rent for Landlord’s Breach of the Minimum Housing and Health Standards

Case Commented On: C.V. Benefits Inc. v Angus, 2017 ABPC 118 (CanLII)

This decision is important for two reasons. First, Assistant Chief Judge Jerry LeGrandeur awarded the tenant an abatement of her rent based on her landlord’s breach of section 16(c) of the Residential Tenancies Act, SA 2004, c R-17.1 (RTA). Section 16(c) requires landlords to ensure that rented premises “meet at least the minimum standards prescribed for housing premises under the Public Health Act and regulations.” Usually abatement of rent is granted for a landlord’s breach of section 16(b) of the RTA, which is the landlord’s promise that it will not “in any significant manner disturb the tenant’s possession or peaceful enjoyment of the premises.” Relying on section 16(b) suggests that a tenant must be unable to use or possess all or a part of the rented premises. Indeed, the landlord in this case argued that there needed to be an actual loss of physical use of all or part of the premises before a court could grant an abatement of rent. Tying the abatement of rent remedy to tenants’ inability to physically occupy the premises might seem appropriate if a tenant is forced out of possession by flooding or a bedbug infestation. However, tenants need to be able to be awarded an abatement of their rent when the problems are persistent but less serious breaches of minimum housing standards that do not drive them out of possession or entitle them to terminate their lease. Judge LeGrandeur’s decision made it clear that tenants can rely on section 16(c) when seeking abatement of their rent. Second, rather than calculating the amount of the abatement based on what percentage of the square footage of the rented premises the tenant could not use, Judge LeGrandeur adopted a more contextualized approach that seems much more appropriate. Continue reading →

Sexual Assault, Starting Points, and Court of Appeal Panel Composition: A Chilling Effect on Individualized Sentencing?

By: Jennifer Koshan

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Case Commented On: R v Gashikanyi, 2017 ABCA 194 (CanLII)

On the first day of summer, the Alberta Court of Appeal released a decision that has turned up the heat on the approach to sentencing in this province. R v Gashikanyi, 2017 ABCA 194 (CanLII), was the hottest case on CanLII this past week, the Court of Appeal Decision of the Week in Eugene Meehan’s Supreme Advocacy newsletter, and the subject of several media stories (see e.g. Alberta Court of Appeal justice issues scathing critique of his own court; Judge slams Alberta Court of Appeal for potential appearance of bias; Alberta court of appeal judge calls for random assignment of judges to panels). Gashikanyi deals with the propriety of a starting point approach to sentencing, an approach that Justice Ronald Berger has previously critiqued and further critiques here, receiving some support from Justice Brian O’Ferrall. But Justice Berger did not stop there — he called into question whether Court of Appeal justices are bound by horizontal precedent (i.e. decisions of their own court), and criticized the way that Alberta judges are assigned to appellate hearings, suggesting a possible lack of impartiality that Justice O’Ferrall and Justice Patricia Rowbotham (dissenting) clearly distanced themselves from. The fact that this discussion took place in the context of a sentence appeal for sexual interference contributes to the heat caused by this decision in light of the intense public scrutiny surrounding sexual assault law recently.

In this post, I review the Court of Appeal’s approach to sentencing starting points generally and in the area of sexual offences as background to the decision in Gashikanyi. I also explore the ramifications of Justice Berger’s statements about horizontal precedent and appellate panel assignments, bringing into the discussion the recent calls for judicial education on sexual assault law and social context. Continue reading →

R v Cody: The Supreme Court Stands Their Ground on Unreasonable Delay

By: Drew Yewchuk

PDF Version: R v Cody: The Supreme Court Stands Their Ground on Unreasonable Delay

Case Commented On: R v Cody, 2017 SCC 31 (CanLII)

Just a little under a year after the Supreme Court released R v Jordan, 2016 SCC 27 (CanLII) and established a new framework for the Charter section 11(b) right to a criminal trial within a reasonable time, the Court has released a new decision on the issue. (For my earlier post on Jordan, see here, and for a post discussing interpretation of Jordan by some Alberta courts see here.) R v Cody, 2017 SCC 31 (CanLII) clarifies the Jordan framework, but more importantly it affirms the Supreme Court’s commitment to ending the “culture of complacency towards delay in the criminal justice system” (at para 1) despite the pressure Jordan has placed on Crown prosecutors. Continue reading →

Interim Measures in a Classic Church Property Dispute

By: Jonnette Watson Hamilton

PDF Version: Interim Measures in a Classic Church Property Dispute

Case Commented On: Bruderheim Community Church v Moravian Church in America (Canadian District), 2017 ABQB 355 (CanLII)

In this brief judgment, Justice Brian Burrows granted an interim injunction restraining the Board of Elders of the Moravian Church in America from interfering with the use of church land and buildings located in Bruderheim, Alberta by the local congregation, formerly known as the Bruderheim Moravian Church and now known as the Bruderheim Community Church. The application of the standard three-part test for an interim injunction is of interest for the “serious issue to be tried” that it discloses, as well as for the understanding of “irreparable harm” applied in the situation of a local congregation being evicted from its place of worship. In addition, this particular dispute appears to have all the elements of a classic church property dispute brought to the civil courts as a last resort as a result of an irreparable rift within a church over a matter of doctrine. The reason for the Bruderheim congregation’s disassociation was a decision by the Moravian Church, Northern Province that individuals were eligible to be clergy regardless of their sexual orientation or marital status.  Continue reading →