ABLawg

By: Jonnette Watson Hamilton

PDF Version: Capacity to Make and Revoke an Enduring Power of Attorney

Case Commented On: Pirie v Pirie, 2017 ABQB 104 (CanLII)

The issue in this case was whether the applicant had the mental capacity in July 2016 to revoke his 2008 Enduring Power of Attorney and to create a new Enduring Power of Attorney. His 2008 Enduring Power of Attorney appointed his three children and his wife jointly as his attorneys and became effective if and when he became mentally incapable of understanding the nature and effect of that instrument. His 2016 Enduring Power of Attorney appointed his brother, and in the alternative, his long-term assistant, and in the further alternative, his sister-in-law, immediately upon its execution.

In some ways, this was an easy decision for Justice Robert Hall. If the applicant lacked the mental capacity to revoke the 2008 instrument, then three children who owed the applicant money and his now-estranged wife would be his attorneys. If the applicant had the mental capacity to revoke the 2008 instrument and create the 2016 instrument, then his businessman brother would be looking out for his financial interests, no doubt under the watchful eye of the three children and the now-estranged wife. Nevertheless, the case is noteworthy because it involved a challenge to the widely-accepted test for assessing mental capacity to create and revoke a power of attorney. That challenge argued for the inclusion of an evaluation of the rationality and reasonableness of the applicant’s reasons for making the changes. Although Justice Hall stated he did not accept the challenge to the existing test, he did assess the applicant’s reasons and found that the applicant had ample reason to make the changes. By doing so, he might have introduced some uncertainty into this area of the law.

When are Late Payment of Rent Charges in Residential Tenancies Unenforceable?

By Jonnette Watson Hamilton

On May 10, 2017

In Contracts, Landlord/Tenant, Property, Provincial Court, Statutory Interpretation

By: Jonnette Watson Hamilton

PDF Version: When are Late Payment of Rent Charges in Residential Tenancies Unenforceable?

Case Commented On: 416566 Alberta Ltd. v Fothergill, 2017 ABPC 96 (CanLII)

This Provincial Court decision by Judge Jerry LeGrandeur, Associate Chief Judge, is of interest because he considers whether the fee a landlord charged for the late payment of rent was a valid pre-estimate of liquidated damages or an illegal penalty. If it is an estimate of damages, the tenant must pay the fee. If it is a penalty, it is unenforceable and the tenant does not have to pay the fee. Judge LeGrandeur’s decision was made under the Mobile Home Sites Tenancies Act, RSA 2000, c M-20, rather than the more often used Residential Tenancies Act, SA 2004, c R-17.1, but both statutes deal with late payment charges the same way: neither says anything at all about them. As a result, late payment fees can be included in leases and, if tenants agree to pay those fees by signing leases that include them, the tenants have to pay the late payment fees unless those fees are what the common law calls a “penalty.” Judge LeGrandeur’s decision, which is applicable to all types of residential tenancies, is welcome because there is a lack of direction in Alberta about how much can be charged for a late payment fee before it becomes an illegal penalty and unenforceable.

Alberta Amends the Residential Tenancy Dispute Resolution Service Regulation

By Amy Matychuk

On May 9, 2017

In Access to Justice, Landlord/Tenant, Property

By: Amy Matychuk and Jo-Ann Munn Gafuik

PDF Version: Alberta Amends the Residential Tenancy Dispute Resolution Service Regulation

Legislation Commented On: Residential Tenancy Dispute Resolution Service Regulation, Alta Reg 98/2006

In the Fall of 2016 the Public Interest Law Clinic at the University of Calgary recommended changes to the Residential Tenancy Dispute Resolution Service Regulation, which expired on April 30, 2017. The Residential Tenancy Dispute Resolution Service (RTDRS) is established under Part 5.1 of the Residential Tenancies Act, SA 2004, c R-17.1 as an alternative to the Provincial Court for dealing with landlord/tenant disputes under the Act. ABlawg has documented significant problems with the RTDRS and the Regulation in several posts written by Professor Jonnette Watson Hamilton here, here, here, and here. The scheduled expiry of the Regulation was an opportunity for the Alberta government to address these problems through amendments. However, the amendments enacted on April 24, 2017, while including some welcome changes, fall well short of addressing noted problems with the RTDRS.

Claims to Copyright Trumped by Expiration of Statutory Confidentiality Period

By Nigel Bankes

On May 8, 2017

In Intellectual Property, Natural Resources, Statutory Interpretation

By: Nigel Bankes

PDF Version: Claims to Copyright Trumped by Expiration of Statutory Confidentiality Period

Case Commented On: Geophysical Service Incorporated v EnCana Corporation, 2017 ABCA 125

In reserved reasons, a unanimous Court of Appeal has affirmed Justice Eidsvik’s decision at trial (2016 ABQB 230) in this contentious proceeding. This litigation has pitted the seismic company, GSI, against most, if not all, of the major exploration and production companies operating in Canada, as well as the federal regulators, the National Energy Board, and the Canada/Newfoundland Offshore Petroleum Board. GSI claims that seismic data that it generated is protected by copyright for the usual term of the Copyright Act, RSC 1985, c C-45 and that the various (and many) defendants have breached that protection by copying or facilitating the copying of protected materials once the confidentiality period protecting data filed with the regulators has expired.

Update: SCC Grants Appeal on ‘Prompt Return’ Mechanism of the Hague Convention on International Child Abduction

By Rudiger Tscherning

On May 5, 2017

In Family, International Law

By: Rudiger Tscherning

PDF Version: Update: SCC Grants Appeal on ‘Prompt Return’ Mechanism of the Hague Convention on International Child Abduction

Case Commented On: Office of the Children’s Lawyer v John Paul Balev and Catherine-Rose Bagott, Supreme Court of Canada, Leave to Appeal (37250)

Background

In an earlier post, I discussed the decision of Balev v Bagott, 2016 ONCA 680 (CanLII) and concluded that the ONCA was correct in its strict application of the ‘prompt return’ mechanism of the Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980. This meant that a ‘time-limited’ consent by one parent to relocate a child (on the facts, from Germany to Canada) could not amount to a unilateral change of the child’s ‘habitual residence’ during the consent period. As a result, the retention of a child after the expiration of a consent period constituted a wrongful removal or retention in breach of the Convention mechanism.

Update

On April 27, 2017, the Supreme Court of Canada (SCC) granted leave to appeal from the judgment of the Ontario Court of Appeal (ONCA) without reasons. It also granted a motion to admit fresh evidence. Significantly, the SCC ordered the appeal to be expedited. It further directed the parties to advise in writing of any changes that might affect the record, in particular with respect to the current circumstances of the children and the custody proceedings in the courts in Germany.