University of Calgary Faculty of Law ABLawg.ca logo over mountains

Costs Denied in Elder Advocates of Alberta Society Case

By

On January 24, 2020

In Access to Justice, Costs

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: Costs Denied in Elder Advocates of Alberta Society Case

Case Commented On: Elder Advocates of Alberta Society v Alberta, 2020 ABQB 54 (CanLII)

In February 2018 and October 2019, we posted comments on the class action litigation in Elder Advocates of Alberta Society v Alberta, where a class of long-term care residents unsuccessfully challenged the Alberta government’s ability to charge accommodation fees in long-term care facilities. The case involved claims of unjust enrichment, negligence and contract – addressed by our colleague Lorian Hardcastle here – and discrimination based on age and mental / physical disability, which we dealt with in our posts. None of the claims were ultimately successful. The plaintiffs’ most persuasive argument was that the imposition of accommodation fees was discriminatory, which was accepted by the Alberta Court of Appeal. However, the Court found the discrimination to be justified (see Elder Advocates of Alberta Society v Alberta, 2019 ABCA 342 (Can LII) and our post on that decision here).

In spite of the lack of success of this class action, Justice June Ross, the trial judge in the case, recently denied the Province of Alberta and Alberta Health Services costs against the plaintiffs and their lawyers (see Elder Advocates of Alberta Society v Alberta, 2020 ABQB 54 (CanLII)).

Read More

Keeping an Eye on Foreclosing Banks

By

On January 22, 2020

In Uncategorized

By: Jonnette Watson Hamilton

PDF Version: Keeping an Eye on Foreclosing Banks

Case Commented On: Canadian Imperial Bank of Commerce v Strihavka, 2019 ABQB 835

Who is keeping an eye on the conduct and claims of banks and other financial institutions that are foreclosing on people’s homes in Alberta? In at least one case – this case of Canadian Imperial Bank of Commerce v Strihavka – it was a Master of the Court of Queen’s Bench who discovered a bank was providing false or, at least, misleading evidence and the bank’s lawyer was not living up to their professional responsibilities, all for the purpose of taking a person’s home away from them more quickly than allowed at law. Whether this one case is an aberration due to an isolated act of carelessness, negligence or malice, or whether this case is one of many is unclear. The facts suggest there might be systemic issues in foreclosure proceedings in this province.

Read More

Whose Sovereignty is it Anyway? The Borders of Aboriginal Rights along the Sovereign Borders of Canada

By

On January 20, 2020

In Aboriginal, Constitutional

By: Scott Carrière

PDF Version: Whose Sovereignty is it Anyway? The Borders of Aboriginal Rights along the Sovereign Borders of Canada

Case Commented On: R v Desautel, 2019 BCCA 151 (CanLII)

On October 24, 2019, the Supreme Court of Canada agreed to hear the Crown’s appeal from the British Columbia Court of Appeal’s decision in R v Desautel, 2019 BCCA 151 (CanLII) (Desautel). The Crown characterized the case as one of national significance, and the country’s highest court has decided to hearthe case despite Desautel’s unanimous three-judge decision. It is difficult to disagree; the case raises issues surrounding the role of Canadian sovereignty in the application of Aboriginal rights and the guarantees of section 35 of The Constitution Act, 1982. Sovereignty inherently implicates all Canadians, thus the Court of Appeal’s reasoning deserves careful scrutiny on this matter.

In Desautel, the Court of Appeal upheld the acquittal of Richard Desautel for hunting without a licence contrary to the Wildlife Act, RSBC 1996, c 488. It did so by affirming his section 35 Aboriginal right to hunt in an area in southeastern British Columbia, having satisfied the test for such rights set down by the Supreme Court of Canada in R v Van der Peet, 1996 CanLII 216 (SCC). Desautel, however, is an American; he has never lived in British Columbia, nor is he a Canadian citizen. He is a member of the Lakes Tribe of the Colville Confederated Tribes (CCT) living on the Colville Indian Reserve in Washington (Desautel at paras 4 – 5). The basis for the rights claim was CCT’s status as successor to the Sinixt, a people whose traditional territory straddled the Canada-US border and who crossed the border frequently even into the 20th century. The case therefore turned on whether section 35 could apply to non-Canadians and how to reconcile the assertion of sovereignty in the context of modern borders (Desautel at para 3).

This post will examine the British Columbia Court of Appeal’s analysis of the interplay of Canadian sovereignty and Aboriginal rights that arose in Desautel. It will not attempt to predict how the Supreme Court of Canada may approach the Crown’s appeal, but will reflect on ambiguities not addressed by British Columbia’s top court and how they might play out in Alberta and elsewhere in Canada.

Read More

A Cautionary Tale about Suing in the Name of the Correct Legal Entity

By

On January 17, 2020

In Uncategorized

By: Jonnette Watson Hamilton

PDF Version: A Cautionary Tale about Suing in the Name of the Correct Legal Entity

Case Commented On: 2040497 Alberta Ltd v Samateh, 2019 ABPC 321 (CanLII)

In 2017, Abdoulie Samateh was sued by his landlord for rent in arrears – or was he? He was sued by William Masri, and Masri was the sole owner of 2040497 Alberta Ltd, as well as its president, secretary and treasurer. And it was 2040497 that was the landlord of the apartment rented to Samateh, not Masri. And so when the 2017 action went to trial on April 23, 2019, Assistant Chief Judge Gordon W. Sharek dismissed the landlord’s claim because the party suing – Masri – was not the landlord. He also dismissed a counter-claim by the tenant because the tenant called no evidence to support his claimed loss of personal property. One month later 2040497 sued its former tenant, Samateh, for the same rental arrears, as well as for damages. But 2040497 also lost, this time following a trial in December 2019. Judge Sandra L. Corbett decided that 2040497’s action was res judicata and also an abuse of process, and she awarded enhanced costs of $1,825 to the tenant. She held that 2040497 was wrong to sue because it tried to relitigate matters that had already been decided by ACJ Sharek in the first action. Many landlords who run their business through a corporation (and others operating small businesses) might be shocked to learn that they might have only one chance, when suing, to name the correct legal entity. If they get it wrong, there might be no “do over.” In addition, there might be a monetary penalty for what Judge Corbett called “litigation misconduct”.

Read More

AUC Announces a Second Round of Consultations on Self-Supply and Export

By

On January 15, 2020

In Energy

By: Nigel Bankes

PDF Version: AUC Announces a Second Round of Consultations on Self-Supply and Export

Matters Commented On: AUC Bulletin 2020-01, Exploring market concerns and tariff issues related to self-supply and export reform, January 9, 2020; and AUC Decision 24979-D01-2020, International Paper Canada Pulp Holdings ULC, Industrial System Designation and Permanent Connection Order for the Grande Prairie Pulp Mill Complex, January 10, 2020.

The Electric Utilities Act, SA 2003, c E-5.1, (EUA; and regulations) and the Hydro and Electric Energy Act, RSA 2000, c H-16, (HEEA) oblige generators in Alberta to offer their generation to the power pool and to exchange energy through the pool. There are a number of exceptions to these requirements but in a series of decisions during 2019 the AUC concluded that these exceptions are narrowly framed. These decisions are EPCOR Water Services Inc., EL Smith Solar Power Plant, February 20, 2019, Decision 23418-D01-2019; AUC Decision 23756-DOI-2019, Advantage Oil and Gas Ltd. Glacier Power Plant Alteration, April 26, 2019; AUC Decision 24393-D01-2019, International Paper Canada Pulp Holdings ULC Request for Permanent Connection for 48-Megawatt Power Plant, June 6, 2019; and AUC Decision 24126-D01-2019, Keyera Energy Ltd, Cynthia Gas Plant Power Plant Application, June 25, 2019. I commented on those decisions in Opening a Can of Worms and here and here.

Read More

Page 94 of 420

Previous

Next

Powered by WordPress & Theme by Anders Norén