ABLawg

By: Shaun Fluker

PDF Version: The Public Interest Exception to the Normal Costs Rule in Litigation

Case Commented On: Gendre v Fort Macleod, 2016 ABQB 111

This judgment by Madam Justice K.D. Nixon touches on the public interest exception to the normal rule in Canadian law that the unsuccessful party in litigation is liable to the successful party for either a portion of or all the successful party’s legal costs (commonly known as ‘costs follow the event’). The substantive matter in this case involved an application by the Mayor of Fort Macleod seeking to have the Court set aside bylaws and resolutions passed by the Council of the Town of Fort Macleod which removed the Mayor’s powers. The Mayor argued the passage of such bylaws and resolutions amounted to an abuse of process by the Council. Justice Nixon dismissed this judicial review application in Gendre v Fort Macleod, 2015 ABQB 623, and the media reported that the Council sought approximately $100,000 in legal costs against the Mayor. One of the arguments put forward by the Mayor in an attempt to shield himself from costs was that his action constituted public interest litigation.

Constitutional Exemptions for Physician Assisted Dying: The First Case of Judicial Authorization in Alberta

By Jennifer Koshan

On March 3, 2016

In Constitutional, Remedies

By: Jennifer Koshan

PDF Version: Constitutional Exemptions for Physician Assisted Dying: The First Case of Judicial Authorization in Alberta

Case Commented On: HS (Re), 2016 ABQB 121 (CanLII)

On February 29, 2016, Justice Sheilah Martin of the Alberta Court of Queen’s Bench released a decision providing authorization for physician assisted death to HS, an adult woman with amyotrophic lateral sclerosis (ALS). This is thought to be the first case outside of Quebec where a court has confirmed the eligibility of a claimant for a constitutional exemption following the Supreme Court of Canada’s decision in Carter v Canada (Attorney General), 2016 SCC 4 (CanLII) (Carter II). As I noted in a previous post, in Carter I (Carter v Canada (Attorney General), 2015 SCC 5) the Supreme Court struck down the criminal prohibition against physician assisted death (PAD) on the basis that it unjustifiably violated the rights to life, liberty and security of the person in section 7 of the Charter. That remedy was suspended for a year to allow the federal government time to enact a new law without leaving a gap in the legislative scheme that might be used to induce vulnerable persons to take their own lives. The Court declined to grant exemptions from the suspension in Carter I given that none of the claimants were in need of immediate relief; Gloria Taylor, the only Carter claimant who had originally sought an exemption, had died before the Supreme Court hearing (2015 SCC 5 at para 129). In Carter II, the Supreme Court extended the suspension of its remedy by 4 months to account for the change in federal government (see Elliot Holzman’s post on Carter II here). In light of the extraordinary nature of the extension — which permitted an unconstitutional law to remain in effect for an extended time — the Court granted a constitutional exemption to competent adults when they met certain criteria: (1) they clearly consent to the termination of life and (2) they have “a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition and that cannot be alleviated by any treatment acceptable to the individual.” (2016 ABQB 121 at para 2). This post will focus on the role of courts that are called upon to assess claimants’ eligibility for constitutional exemptions, as discussed by Justice Martin in the HS case.

Don’t Think Twice: The Residential Tenancies Dispute Resolution Board’s Power to Correct for Procedural Unfairness

By Jonnette Watson Hamilton

On March 1, 2016

In Access to Justice, Landlord/Tenant

By: Jonnette Watson Hamilton

PDF Version: Don’t Think Twice: The Residential Tenancies Dispute Resolution Board’s Power to Correct for Procedural Unfairness

Case Commented On: Hewitt v Barlow, 2016 ABQB 81 (CanLII)

It may be a good idea to accord the Residential Tenancies Dispute Resolution Board (RTDRS) the power to set aside its own orders and re-hear a dispute when it recognizes that one of its orders is the result of a procedurally unfair process. However, I am not certain that the RTDRS has the power to do so under the current legislation: the Residential Tenancies Act, SA 2004, c R-17.1 (the Act) and the Residential Tenancies Dispute Resolution Service Regulation, Alta Reg 98/2006 (the Regulation). I am almost certain that the RTDRS does not have the power to do so for the reasons set out by Master in Chambers, A. R. Robertson, in Hewitt v Barlow. The best remedy for the currently intolerable position that too many tenants have been put in by procedurally unfair RTDRS orders would be amendments to the Regulation. Helpfully, that Regulation expires on April 30, 2016. Although section 35 of the Regulation states that the purpose for its expiration is to ensure that it is reviewed for relevancy and necessity, rather than for fairness, its expiration is still an opportunity. Given the number of recent cases that have come before various Masters of the Court of Queen’s Bench requiring judicial review of RTDRS orders on procedural unfairness grounds, it is to be hoped that the legislature takes this review seriously and remedies the demonstrated flaws in the Regulation in order to ensure better access to justice for tenants and greater certainty about the powers of the RTDRS for all.

Costs Not Appropriate in Protection Against Family Violence Act Litigation

By Jennifer Koshan

On February 26, 2016

In Access to Justice, Costs, State Responses to Violence

By: Jennifer Koshan

PDF Version: Costs Not Appropriate in Protection Against Family Violence Act Litigation

Case Commented On: Denis v Palmer, 2016 ABQB 54 (CanLII)

This is a short comment on a short decision by the Court of Queen’s Bench on whether costs are appropriate in reviews of emergency protection orders (EPOs) under the Protection Against Family Violence Act, RSA 2000, c P-27 (PAFVA). The case is rather notorious, as the party seeking costs was Jonathan Denis, former Justice Minister and Solicitor General for Alberta, against whom an EPO was made right before the provincial election last spring. Breanna Palmer, Denis’s former wife, obtained an ex parte EPO from the Provincial Court against Denis and his mother Marguerite on April 25, 2015. Following the review hearing that must be held for all EPOs (see PAFVA s 3), Justice C.M. Jones gave an oral decision on May 4, 2015 in which he rejected the Denises’ request for an order setting aside Palmer’s application before the Provincial Court for an EPO nunc pro tunc (i.e. retroactively); granted their request to abridge the time for service, and revoked the EPO. He left it to the parties to reach an agreement regarding costs, but when they were unable to do so, the Denises brought the costs issue back before Justice Jones.

Can a Co-owner Acquire Title to Their Co-owner’s Share through Adverse Possession?

By Nickie Nikolaou

On February 22, 2016

In Property

By: Nickie Nikolaou

PDF Version: Can a Co-owner Acquire Title to Their Co-owner’s Share through Adverse Possession?

Case Commented On: Denesik v Verhulst Estate, 2016 ABQB 36

Acquiring title through adverse possession in Alberta is difficult and successful cases are rare. For co-owners seeking to acquire shares of their fellow co-owners, making out a claim will be even more difficult and success even rarer. This is the message from the recent case of Denesik v Verhulst Estate, 2016 ABQB 36.

Facts

This case concerned an application for a declaration for title to three parcels of land through the doctrine of adverse possession (also known as “prescriptive title” or “squatter’s rights” in other jurisdictions). The land consisted of a 159 acre “home quarter” and two river lots totalling 96 acres. The home quarter and river lots were approximately 6 km apart.

The land had been acquired as part of a joint venture between the applicant, Mr. Denesik, and the late Mr. Verhulst. They had bought the land to harvest the timber on it and divide the profits. By 1995, operations had ceased. In 1996, Mr. Denesik moved on to the home quarter and lived there until the date of his application in late 2015. He lived in a trailer with a home-made water system and no electricity or gas. Mr. Denesik argued that his occupation of the land continuously over this time period had “ripened into ownership” (at para 5).