ABLawg

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.

Lack v. Alberta: Court Unmuddies and Advances Accretion Law

By Arlene Kwasniak

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.

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

By Linda McKay-Panos

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).

Pleading Fairly

By Alice Woolley

On July 18, 2011

In Criminal, Ethics and the Legal Profession

PDF version: Pleading Fairly

Case considered: R. v. Nixon, 2011 SCC 34

Introduction

In its June 3, 2011 Throne Speech, the Canadian government announced its plan to introduce an omnibus crime bill. Based on the limited information provided in the Speech, it appears that this legislation will increase the sanctions for some crimes, and eliminate judicial discretion on some matters of criminal sentencing:

Our Government will move quickly to reintroduce comprehensive law-and-order legislation to combat crime and terrorism. These measures will protect children from sex offenders. They will eliminate house arrest and pardons for serious crimes. They will give law enforcement officials, courts and victims the legal tools they need to fight criminals and terrorists. Our Government will continue to protect the most vulnerable in society and work to prevent crime. It will propose tougher sentences for those who abuse seniors and will help at?risk youth avoid gangs and criminal activity. It will address the problem of violence against women and girls (Throne Speech, p. 12).

The Throne Speech emphasized that the purpose of this legislation would be to protect “the personal safety of our citizens” and to “place the interests of law-abiding citizens ahead of criminals” (Throne Speech, p. 12).

It’s Difficult to Disinherit Some Adult Children

By Jonnette Watson Hamilton

On July 14, 2011

In Wills and Estates

PDF version: It’s Difficult to Disinherit Some Adult Children

Case considered: Soule v. Johansen Estate, 2011 ABQB 403

Alberta Justice has spent the past few years reviewing provincial succession laws and proposing reforms to consolidate and update the relevant provincial statutes. The result of the Alberta Succession Law Reform project was the passage of the new Wills and Succession Act, SA 2010, c W12.2 by the Alberta legislature in the fall of 2010 (Bill 21). However, because the changes are extensive, the new Wills and Succession Act will not come into force until it is proclaimed and proclamation is not expected until early 2012. It is interesting to consider whether or not the result in Soule v. Johansen Estate would have been any different under new law. In her will, Elsie Carrolle Johansen left all of her $116,000 estate to the Calgary Humane Society. She chose to disinherit her only son, Kim Soule, a 51 year old man suffering from hepatitis C, because she did not want her estate to be spent on drugs and alcohol. He asked the court to re-write his mother’s will under the Dependants Relief Act, RSA 2000, c D-10.5, because he is unable to earn a livelihood. Although Mr. Soule did not appear to be a sympathetic supplicant, he nevertheless prevailed. Justice Sheilah Martin rewrote his mother’s will to give all but $10,000 of his mother’s estate to Mr. Soule. Her main reason for doing so appears to be the predominantly pragmatic one of relieving taxpayers of the burden of Mr. Soule’s support.

How persistent does a vexatious litigant have to be?

Lack v. Alberta: Court Unmuddies and Advances Accretion Law

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

Pleading Fairly

It’s Difficult to Disinherit Some Adult Children