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Tenant Cannot Unilaterally Withhold Rent Because of Unsanitary Living Conditions

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On August 2, 2011

In Property

Case Considered: Herman v. Boardwalk Rental Communities, 2011 ABQB 394 

Introduction

Questions often arise about whether a tenant can refuse to pay rent because of something the landlord has or has not done, or because of the condition of the premises. The typical short answer is “no.”.” Why? Because, generally-speaking, “rent is sacrosanct.” And so it was in the recent case of Herman v. Boardwalk Rental Communities, 2011 ABQB 394 (Herman), a case considering the situation of tenants in Alberta under the Residential Tenancies Act, RSA 2000, c 17.1 (RTA). Even in the face of allegations of dog/cat urine and fecal matter leaking onto/into his apartment, the Court held the tenant could not unilaterally withhold rent. The Court also held that procedure can be sacrosanct in landlord/tenant matters. The tenant’s failure to meet the procedural requirements for bringing his appeal resulted in it being dismissed, with costs being awarded to the landlord.

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Aboriginal title, reserve rights to groundwater and (possibly) a right to an instream flow

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On July 29, 2011

In Aboriginal

Case considered: Helalt First Nation v British Columbia, 2011 BCSC 945

In this case the Helalt First Nation (HFN) sought judicial review of an environmental assessment certificate issued under the terms of BC’s Environmental Assessment Act, SBC 2002, c 43 with respect to a project known as the Chemainus Wells Project on the grounds that the Crown had failed to discharge its constitutional obligations to consult and accommodate the HFN. The First Nation succeeded in its application. Justice Wedge held that the Crown failed to engage in adequate consultation and failed in its duty to accommodate. As a remedy, Justice Wedge ordered (in addition to granting relevant declarations) that the implementation of any actions or decisions pursuant to the certificate should be stayed pending adequate consultation and reasonable accommodation.

This post focuses on the Court’s treatment of aboriginal title and reserve rights in relation to groundwater.

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How persistent does a vexatious litigant have to be?

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On July 27, 2011

In Civil Procedure, Vexatious Litigants

PDF version:  How persistent does a vexatious litigant have to be?

Case considered: Wong v Giannacopoulos, 2011 ABCA 206

Are the 2007 vexatious litigant provisions in the Judicature Act, RSA 2000, c J-2, being overused? Is it too easy to have a person declared a “vexatious litigant and barred from bringing or continuing court actions without leave of a court? I am sure that every person who has had a vexatious litigant order made against them would answer “yes” to both questions, but what might a more detached assessment reveal? These questions demand empirical answers that I cannot give. However, the recent decision of Justice Frans Slatter in Wong v Giannacopoulos suggests that vexatious litigant orders are only being granted in rather extreme cases. It seems to take a lot of improper behaviour against a variety of long-suffering defendants before a person is denied unmediated access to a court.

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Lack v. Alberta: Court Unmuddies and Advances Accretion Law

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On July 25, 2011

In Property

PDF version: Lack v. Alberta: Court Unmuddies and Advances Accretion Law 

Case considered: Lack v. Alberta (Sustainable Resource Development), 2011 ABQB 379

Courts typically find the facts, ascertain the applicable law, and apply the law to the facts. When asked to apply common law of accretion to a natural world overlaid with complex situations of land ownership and statutory rules and rights under the Alberta Land Titles Act, RSA, c L-4, this straightforward approach cannot always easily be adopted. Over the last few years accretion challenges have invited creative judicial activity and problem solving in order to reconcile classic accretion at common law, the natural world, and the Alberta Torrens system as manifested in the Land Titles Act. My earlier blog Andriet v. County of Strathcona No. 20: Court of Appeal Conjures a Creative Accretion Approach discussed some of the accretion issues that lead to questions regarding what is the applicable law in Alberta. Is it the old common law concerning accretion Is it an evolving common law to account for a changing physical and social world? Is it the common law mixed or modified by the application of the Land Titles Act, and rights under that Act? Justice Yamuchi’s decision in Lack v. Alberta takes us a fair distance in clearing up some of these recently exposed murky areas.

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“Amended Amended Redacted Document” Ordered Released to the Press and Public Fifteen Days after Judgment

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On July 20, 2011

In Civil Procedure, Privacy

 PDF version: “Amended Amended Redacted Document” Ordered Released to the Press and Public Fifteen Days after Judgment

Case considered: Globe & Mail v Alberta, 2011 ABQB 363 (“Globe and Mail“)

When the police want to obtain a search warrant, they file a document with a justice of the peace or judge called an “Information to Obtain a Search Warrant” or “ITO”. In this case, Judge J.D. Bascom had sealed the contents of an ITO filed on a case with respect to an “Unnamed Company”. The Globe and Mail applied to the Court of Queen’s Bench for access to the ITO (subject to some redactions).

Justice William Tilleman dealt with the application for access to the ITO, and noted that he had to “face the difficult task of balancing the sometimes competing rights to freedom of expression and the press, with the administration of justice, the protection of innocent persons, and the right to a fair trial” (Globe and Mail at para 2).

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