No Priority for a Matrimonial Property Certificate of Lis Pendens Sandwiched Between Writs of Enforcement

By: Jonnette Watson Hamilton

PDF Version: No Priority for a Matrimonial Property Certificate of Lis Pendens Sandwiched Between Writs of Enforcement

Case Commented On: Singh v Mangat, 2016 ABQB 349 (CanLII)

The issue in Singh v Mangat was one of priority: in what order were different groups entitled to sale proceeds. There were three types of claimants to the proceeds of the sale of a husband’s interest in the matrimonial home: the wife, who had brought a matrimonial property action and registered a certificate of lis pendens on the title to those lands; those of the husband’s judgment creditors who registered their writs of enforcement on the title to the home before the wife’s certificate of lis pendens; and those of the husband’s judgment creditors who registered their writs of enforcement on the title to the home after the wife’s certificate of lis pendens. The relative timing of the registrations created what Master A. R. Robertson, QC, called a “CLP sandwich” (at para 2). This case appears to be the first time an issue of priority in circumstances involving a “CLP sandwich” has come before the Alberta courts. Master Robertson analyzed a complex statutory interpretation issue in order to resolve the priorities issue in this decision (handed down in June 2016 but only added to the CanLII database in October). In a result that might surprise those accustomed to priorities under a Torrens land title system, he resolved the issue in favour of all of the judgment creditors, those registered before the certificate of lis pendens and those registered after. Continue reading →

The Supreme Court of Canada (By a Slim Majority) Confirms the Presumption of Deference in Alberta

By: Shaun Fluker

PDF Version: The Supreme Court of Canada (By a Slim Majority) Confirms the Presumption of Deference in Alberta

Case Commented On: Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd,  2016 SCC 47

In 2015 the Alberta Court of Appeal issued two decisions which suggested the Court is attempting to curtail the presumption of deference in the judicial review (or statutory appeal) of statutory tribunal decisions in this province: see Edmonton (East) Capilano Shopping Centres Ltd v Edmonton (City), 2015 ABCA 85 (CanLII) (Capilano, ABCA) which I commented on in Where Are We Going on Standard of Review in Alberta? and Stewart v Elk Valley Coal Corporation, 2015 ABCA 225 (CanLII) which I commented on in Fundamental Legal Questions and Standard of Review in Alberta. The Supreme Court of Canada granted leave to appeal on both decisions, and on November 4 the Supreme Court issued its decision in Capilano: Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47 (Capilano) . The slim majority judgment (5-4) written by Justice Andromache Karakatsanis reverses the Court of Appeal on both its standard of review analysis and on the merits of the case by restoring the assessment review board decision. The result for standard of review analysis is that the presumption of deference to substantive decisions made by statutory tribunals should be alive and well in Alberta, but it should be noted there is a growing resistance to the presumption not only at the Alberta Court of Appeal but also within the Supreme Court of Canada. Continue reading →

The Saga of the Intoxication Defence Continues: Desjarlais and its Application to Uttering Threats

By: Dylan Finlay

PDF Version: The Saga of the Intoxication Defence Continues: Desjarlais and its Application to Uttering Threats

Case Commented On: R v Desjarlais, 2016 ABPC 182 (CanLII)

The defence of voluntary intoxication holds an awkward place in Canadian criminal law. Everyone who commits a crime must both do a guilty act (actus reus) and possess a guilty mind (mens rea) – even if that guilty mind is mere recklessness. But what if someone gets so drunk they commit a criminal act? What is the difference between someone who is sleepwalking and someone who is in a drunken stupor so severe they do not have the mental capacity comprehend their actions? Technically, neither hypothetical offender possesses a guilty mind.

True, voluntary intoxication is voluntary, sleepwalking is not. But legally, this distinction is irrelevant. The relevant mens rea is the mental state possessed at the time of the offence. Thus, public policy steps in. While sleepwalking is a defence to murder (see R v Parks, [1992] 2 SCR 871 (CanLII)), voluntary intoxication is not. However, the public policy argument against the intoxication defence does not strike such a chord if the offence becomes causing a disturbance.

Where does the law stand on the intoxication defence for uttering threats? (s. 264.1(1) of the Criminal Code). In July, Judge Allen of the Alberta Provincial Court in Edmonton produced a lengthy decision on this subject. The case is R v Desjarlais, 2016 ABPC 182 (CanLII). It involves a messy situation with multiple witnesses and plenty of credibility analysis; what is important for our purposes is that it involved a situation where the accused threatened to kill the complainant (para 88) while the accused was intoxicated to the point of being, in the words of different witnesses: “eight and one half to nine on a scale of ten,” or “temporarily insane” (para 97). Continue reading →

Oil Sands Emission Limit Legislation: A Real Commitment or Kicking It Down the Road?

By: Nigel Bankes

PDF Version: Oil Sands Emission Limit Legislation: A Real Commitment or Kicking It Down the Road?

Legislation Commented On: Bill 25: The Oil Sands Emission Limit Act

Alberta’s Climate Leadership Plan has four key planks:

  1. Phasing out emissions from coal-generated electricity and developing more renewable energy
  2. Implementing a new carbon price on greenhouse gas emissions
  3. A legislated oil sands emission limit
  4. Employing a new methane emission reduction plan

The province introduced legislation to implement an economy-wide carbon price in June (the Climate Leadership Implementation Act) and in the resumed session this fall (2016) it has introduced Bill 25: The Oil Sands Emission Limit Act to implement the third objective, a legislated oil sands emission limit. This was not something that the Leach Report had recommended but here is what the Government said in making this commitment: Continue reading →

Age Discrimination in Long Term Disability Plans: Reasonableness Not Required in Alberta

By: Linda McKay-Panos

PDF Version: Age Discrimination in Long Term Disability Plans: Reasonableness Not Required in Alberta

Case Commented On: International Brotherhood of Electrical Workers, Local 1007 v Epcor Utilities Inc, 2016 ABQB 574 (CanLII) (IBEW ABQB)

This case demonstrates grievance arbitration panels’ shared jurisdiction with the Alberta Human Rights Commission on human rights issues. It also shows one of the fairly rare circumstances when individuals (or their employers) can effectively contract out of human rights protection. The International Brotherhood of Electrical Workers (IBEW) Local 1007 represented Darrell McGowan in a grievance wherein he asserted that he was forced to resign and access his pension instead of being able to access his long term disability (LTD) benefits. The LTD Policy negotiated between McGowan’s employer (Epcor) and its third party benefits provider (Sun Life) expressly excluded access to LTD benefits for people “who retire or those who are eligible to retire with a full pension” (Re Epcor Utilities Inc. and IBEW, Local 1007 (McGowan), 2015 CarswellAlta 1657 (IBEW Arbitration) at 2).

McGowan had worked for Epcor for 36 years and had been receiving LTD payments for about a year when his payments ceased as he reached pensionable age. McGowan’s Union argued that the provision in the LTD Policy constituted discrimination against McGowan on the basis of age and/or disability. The Union reasoned that the policy was discriminatory because those who are disabled and thus eligible for LTD benefits, but who intend to and are potentially able to return to work, or who may recover from a disability and be accommodated by the employer, are not eligible to receive LTD benefits (IBEW Arbitration at 2). Continue reading →