ABLawg

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).

“On Its Own Motion”: Section 23.1(1) Judicature Act

By Jonnette Watson Hamilton

On February 19, 2016

In Civil Procedure, Vexatious Litigants

By: Jonnette Watson Hamilton

PDF Version: “On Its Own Motion”: Section 23.1(1) Judicature Act

Case Commented On: Lymer v Jonsson, 2016 ABCA 32 (CanLII)

This very short decision by the Alberta Court of Appeal made an easy, but very important, point in the process of allowing an appeal. Pursuant to section 23.1(1) of the Judicature Act, RSA 2000, c J-2, a judge can make an order that prohibits a litigant from commencing or continuing court proceedings without first obtaining the permission of the court. Such an order is commonly known as a “vexatious litigant order.” The judge can make such an order “on application or on its own motion, with notice to the Minister of Justice and Solicitor General.” The question on this appeal concerned the scope of the phrase “on its own motion” in section 23.1(1). The specific issue was whether litigants have the right to receive notice and be heard before vexatious litigant orders are made against them on the court’s own motion. Justices Peter Costigan, Marina Paperny and Thomas W. Wakeling determined that potential vexatious litigants did indeed have that right.

Chronicles of the Canadian High Court of Environmental Justice: Canadian Parks and Wilderness Society v Maligne Tours

By Shaun Fluker

On February 16, 2016

In Environmental

By: Shaun Fluker

PDF Version: Chronicles of the Canadian High Court of Environmental Justice: Canadian Parks and Wilderness Society v Maligne Tours

Case Commented On: Canadian Parks and Wilderness Society v Maligne Tours, 2016 FC 148

In a decision issued February 8, 2016, the Honourable Mr Justice James Russell denied an application by the Canadian Parks and Wilderness Society and the Jasper Environmental Association for judicial review of a decision made by the Superintendent of Jasper National Park to approve in concept a new accommodation facility for the shores of Maligne Lake. The Applicants argued that the Superintendent acted unlawfully by making this decision outside of his authority and in contravention of the park management plan, and moreover that the decision is contrary to the overall first priority of maintaining or restoring ecological integrity in Canada’s national parks. The legality of the Superintendent’s decision in this matter rests on two determinations: (1) the legal status of the 2010 Jasper National Park Management Plan; and (2) whether the decision is in accordance with the legislated first priority of ecological integrity for the park.

This comment reviews the decision by Justice Russell in an imagined space. In a stunning political move, the Trudeau government has amended the Federal Courts Act, RSC 1985, c F-7 to establish the High Court of Environmental Justice. The mandate of this new Court is to hear de novo appeals from decisions by the Federal Court of Canada on environmental law issues. The Supreme Court Act, RSC 1985, c S-26 was also amended to remove any appellate jurisdiction by the Supreme Court of Canada over the High Court of Environmental Justice, with the exception of environmental cases where a constitutional issue is raised by a party. In announcing the creation of this new Court, the Minister of Justice and the Minister of Environment and Climate Change stated that ABlawg has been selected as the Court’s official reporter.

Can We Keep the Horses in the Barn? Investigation Report on Alberta Environment’s Destruction of Records after the 2015 Provincial Election

By Admin

On February 12, 2016

In Property

By: Linda McKay-Panos

PDF Version: Can We Keep the Horses in the Barn? Investigation Report on Alberta Environment’s Destruction of Records after the 2015 Provincial Election

Report Commented On: Information and Privacy Commissioner, Public Interest Commissioner, Investigation Report on Alleged improper destruction of records by Alberta Environment and Sustainable Resource Development

On January 7, 2016, the Office of the Information and Privacy Commissioner of Alberta (OIPC) and the Public Interest Commissioner (PIC) released their Investigation Report on alleged improper destruction of records by Alberta Environment and Sustainable Resource Development after the 2015 Provincial Election (Investigation Report). When reading the highlights of the Investigation Report’s recommendations, one hopes that the current government might implement and retain some rules and practices that deter future events of this nature.

After the Alberta provincial election in May, 2015, there were a number of media reports about destruction of records during the transition to a new government (Investigation Report, at para 2). The OIPC issued a news release on May 7, 2015 to inform and remind Albertans of the provisions of the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 (FOIP Act) dealing with record destruction, while noting that some of the records were not subject to the same rules (Investigation Report, at para 6). On May 12, 2015, a disclosure of wrongdoing was made to the PIC under the Public Interest Disclosure (Whistleblower Protection) Act, SA 2012, C P-39.5, alleging that staff members of the Department of Sustainable Resource Development (ESRD) were instructed to move all briefing material into the Action Request Tracking System (ARTS), and all records would then be deleted (Investigation Report, at para 3). On May 13, 2015, the OIPC and the PIC announced that they would jointly investigate allegations that records within ESRD may have been destroyed in an unauthorized manner (Investigation Report, at para 9).

Access to Legal Services in Women’s Shelters

By Alysia Wright

On February 10, 2016

In Access to Justice, State Responses to Violence

By: Alysia Wright

PDF Version: Access to Legal Services in Women’s Shelters

Report Commented On: Canadian Research Institute for Law and the Family, Access to Legal Services in Women’s Shelters

In December 2015, the Canadian Research Institute for Law and the Family (CRILF) published a new report, Access to Legal Services in Women’s Shelters, authored by myself and Dr. Lorne Bertrand, examining access to legal services among clients of women’s domestic violence shelters. The study sampled the views of staff and clients at three domestic violence shelters with the goals of improving understanding of clients’ legal service needs; examining the challenges clients attempting to access legal services encounter; and making recommendations for improvement. Although domestic violence affects both men and women, women are disproportionally victims of domestic violence compared to men and there are no shelters for male victims of domestic violence in Alberta.

We conclude that clients’ service needs are complex and often involve legal problems, yet shelters face specific organizational barriers to coordinating legal services. We recommend that a further Alberta-wide study be undertaken to examine the legal access patterns of women experiencing domestic violence, to assess the prevalence of the barriers identified in the study and to determine whether further barriers are present in other shelters.