In the 180 page decision decided in 2012 in Meads v. Meads, 2012 ABQB 571 the Honourable Associate Chief Justice J.D. Rooke elucidates the history of what Justice Rooke describes as Organized Pseudolegal Commercial Argument Litigants. Justice Rooke starts his decision by quoting from Thomas Hobbes Leviathan:
"Where there is no common power, there is no law, where no law, no injustice.
Force, and fraud, are in war the two cardinal virtues.
...
The laws are of no power to protect them, without a sword in the hands of a man, or men, to
cause those laws to be put in execution.
...
And law was brought into the world for nothing else but to limit the natural liberty of particular
men in such manner as they might not hurt, but assist one another, and join together against a
common enemy."
Thomas Hobbes, Leviathan (Forgotten Books, 2008), at pp. 87, 147, 184
Justice Rooke then articulates clearly in the first paragraph the difficulty posed by OPCA litigants:
[1] This Court has developed a new awareness and understanding of a category of vexatious
litigant. As we shall see, while there is often a lack of homogeneity, and some individuals or
groups have no name or special identity, they (by their own admission or by descriptions given by
others) often fall into the following descriptions: Detaxers; Freemen or Freemen-on-the-Land;
Sovereign Men or Sovereign Citizens; Church of the Ecumenical Redemption International
(CERI); Moorish Law; and other labels - there is no closed list. In the absence of a better moniker,
I have collectively labelled them as Organized Pseudolegal Commercial Argument litigants
["OPCA litigants"], to functionally define them collectively for what they literally are. These
persons employ a collection of techniques and arguments promoted and sold by'gurus' to disrupt court operations and to attempt to frustrate the legal rights of
governments, corporations, and individuals.
The submissions made by one of the litigants inspired Justice Rooke to do a global review of the sociology and law relating to OPCA; Justice Rooke stated:
[53] There is a third reason for a broad-based decision and analysis. It so happens that Mr.
Meads has provided a remarkable and well developed assortment of OPCA documents, concepts,
materials, and strategies. These materials also illustrate particular idiosyncrasies that this and
other Courts have identified as associated with the OPCA community and OPCA litigation.
Phrased differently, Mr. Meads= materials and approach provide an ideal type specimen for
examination and commentary, which should be instructive to other OPCA litigants who have
been taken in by these ideas, opposing parties and their counsel, as well as gurus.
[54] Mr. Meads' submissions also make an excellent subject for a global review of the law
concerning OPCA, the OPCA community and its gurus, and how the court, lawyers, and litigants
should respond to these vexatious practices and the persons who advance and advocate these
techniques and ideas. In this sense, the present case management allows the litigation between Mr.
and Ms. Meads to explore the OPCA community and its concepts, for the benefit of this and other
Canadian Courts, and litigants appearing before the courts.
[55] I will use Mr. Meads' materials and arguments to illustrate many points in this review.
Those materials will be supplemented from several sources. First, I review judgments from this
and other Courts that report on OPCA strategies and court responses to OPCA litigants.
The balance of the case is good reading for those interesting in informing themselves about:
"The OPCA Phenomenon";
"Indicia of OPCA Litigants, Litigation, and Strategies"; and
"Judicial Response to OPCA Concepts and Arguments".
Justice Rooke concludes under the heading Summary and Direction and encourages litigants to review his comments and hope that in doing so this "will lead them to more productive and successful interaction with the courts, government and their fellow citizens:
[66] There is no place in Canadian courts for anyone who advances OPCA concepts. The last
part of these Reasons suggests how judges, lawyers, and litigants may respond to persons who
adopt and advance these concepts. I also comment directly to those in the OPCA community -
both gurus and their followers - with the hope that these Reasons will lead them to more productive
and successful interaction with the courts, government, and their fellow citizens.
Showing posts with label Alberta. Show all posts
Showing posts with label Alberta. Show all posts
Tuesday, June 23, 2015
Monday, June 22, 2015
Securities Act (Alberta) - Exempt Market Securities Exemption
A few years back I had a few clients who used the Exempt Market Securities Exemption to raise private placement capital for various business ventures. The market "crashed" in 2008-2009 and this lead to many investors not seeing their monies returned. Notwithstanding the clear warning that the investment was a "risky" investment and an investor could "loss all of their money", the Securities Commission has pursued many of these fundraisers. I think the manner in which they attack this is that the fundraiser made a misrepresentation which is actionable pursuant to the Securities Act (Alberta).
While searching the web the other day for an update on the various exemptions which are available I came across the website of Venture Law Corp. which I thought was impressive enough to blog about; there are three links to three separate topics:
Notwithstanding that Bridgeland Law can assist you in protecting yourself either as a fundraiser or investor in respect of these types of private placements of capital, it is instructive to read these excellent summaries by Venture Law Corp. Please remember that these articles are NOT legal advice and that you should hire a lawyer to seek legal advice specific to your circumstances and particular fact situation.
While searching the web the other day for an update on the various exemptions which are available I came across the website of Venture Law Corp. which I thought was impressive enough to blog about; there are three links to three separate topics:
Notwithstanding that Bridgeland Law can assist you in protecting yourself either as a fundraiser or investor in respect of these types of private placements of capital, it is instructive to read these excellent summaries by Venture Law Corp. Please remember that these articles are NOT legal advice and that you should hire a lawyer to seek legal advice specific to your circumstances and particular fact situation.
Monday, July 28, 2014
An excellent assessment of when the Alberta Rules of Court will apply to Provincial Court Civil Division Action
In Alberta the lowest civil Court is our Provincial Court Civil Division; affectionately referred to as "Smalls Claims Court" or "PCCD". This Court serves a very important purpose in allowing parties to "have their day in Court" without the formalities required by our Court of Queens Bench. Systemically the PCCD promotes a civil resolution of disputes and its existence bolsters our democratic system; that is citizens of Alberta are able to resolve their disputes without resort to extra-judicial conduct.
The current monetary limit which parties may bring before the PCCD is $25,000.00. Currently, this can be increased by our Provincial Government by Regulation to as much as $50,000.00 if approved by our Lieutenant Governor in Council. The Provincial Court Act governs all actions commences in PCCD. Notwithstanding this, the Judges in the PCCD are adept at navigating litigants to a conclusion without the process becoming to onerous; that is, becoming mired in the formalities found in the Rules of Court used in the Court of Queen's Bench. However, there are instances which occur in PCCD when the Rules of Court need to be applied.
In the case Cabrera v. Steed, 2013 ABPC 361 Judge Higa adroitly reviewed section 8 of the Provincial Court Act and provided some direction as to when the PCCD should have recourse to the Rules of Court:
In the Cabrera case Judge Higa concluded that in respect of an application to strike an action based on long delay that the Rules of Court should be applied. Judge Higa applied the rules from the Rules of Court which were applicable and concluded that the action should be struck due to a delay of 3 years. This decision sheds light on when a Judge in the PCCD will embrace the formalities of the Court of Queen's Bench and is a welcome addition to the PCCD jurisprudence.
The current monetary limit which parties may bring before the PCCD is $25,000.00. Currently, this can be increased by our Provincial Government by Regulation to as much as $50,000.00 if approved by our Lieutenant Governor in Council. The Provincial Court Act governs all actions commences in PCCD. Notwithstanding this, the Judges in the PCCD are adept at navigating litigants to a conclusion without the process becoming to onerous; that is, becoming mired in the formalities found in the Rules of Court used in the Court of Queen's Bench. However, there are instances which occur in PCCD when the Rules of Court need to be applied.
In the case Cabrera v. Steed, 2013 ABPC 361 Judge Higa adroitly reviewed section 8 of the Provincial Court Act and provided some direction as to when the PCCD should have recourse to the Rules of Court:
[7] The Applicants in support of their application rely on specific rules of the Rules of Court of Alberta. The Applicants state there are no legislative provisions contained in the Provincial Court Act, RSA 2000, c. P-31 (“Act”) that addresses the relief sought in this application. Accordingly, the Applicants submit that pursuant to Section 8 of the Act, the Court may apply the Rules of Court. Section 8(2) states,
Where the Act or the regulations do not provide for a specific practice or procedure of the Court that is necessary to ensure an expeditious and inexpensive resolution of a matter before the Court, the Court may
(a) apply the Alberta Rules of Court, and
(b) modify the Alberta Rules of Court as needed.
In the Cabrera case Judge Higa concluded that in respect of an application to strike an action based on long delay that the Rules of Court should be applied. Judge Higa applied the rules from the Rules of Court which were applicable and concluded that the action should be struck due to a delay of 3 years. This decision sheds light on when a Judge in the PCCD will embrace the formalities of the Court of Queen's Bench and is a welcome addition to the PCCD jurisprudence.
Do I have to fill those pot holes? The duty of Alberta municipalities under the Municipal Government Act (Alberta)
This year (2014) in Calgary residents were delighted that we did not have to experience another flood. Concerns of flooding was replaced with Calgarian's concerns about the enormous number of pot holes which have appeared over our very long winter. While reviewing the Municipal Government Act (Alberta) ["MGA"] for other reasons I stumbled across paragraph 532 which appeared to create a mandatory obligation on Municipalities to maintain the roads; the section is repeated below:
Municipal Government Act, RSA 2000, c M-26
Municipal Government Act, RSA 2000, c M-26
Part 13
Liability of Municipalities, Enforcement of Municipal Law and Other Legal Matters
Division 1
Liability of Municipalities
532(1) Every road or other public place that is subject to the direction, control and management of the municipality, including all public works in, on or above the roads or public place put there by the municipality or by any other person with the permission of the municipality, must be kept in a reasonable state of repair by the municipality, having regard to
(a) the character of the road, public place or public work, and
(b) the area of the municipality in which it is located.
(2) The municipality is liable for damage caused by the municipality failing to perform its duty under subsection (1).
(3) This section does not apply to any road made or laid out by a private person or any work made or done on a road or place by a private person until the road or work is subject to the direction, control and management of the municipality.
(4) A municipality is not liable under this section unless the claimant has suffered by reason of the default of the municipality a particular loss or damage beyond what is suffered by the claimant in common with all other persons affected by the state of repair.
(5) A municipality is not liable under this section in respect of acts done or omitted to be done by persons exercising powers or authorities conferred on them by law, and over which the municipality has no control, if the municipality is not a party to those acts or omissions.
(6) A municipality is liable under this section only if the municipality knew or should have known of the state of repair.
(7) A municipality is not liable under this section if the municipality proves that it took reasonable steps to prevent the disrepair from arising.
(8) When a traffic control device has been defaced, removed or destroyed by someone other than a designated officer or employee or agent of the municipality, the municipality is liable under this section only if the municipality
(a) had actual notice of the defacement, removal or destruction, and
(b) failed to restore, repair or replace the traffic control device in a reasonable period of time.
(9) A person who brings an action under this section must notify the municipality of the event that gives rise to the action within 30 days after the occurrence of the event.
(a) there is a reasonable excuse for the lack of notice, and the municipality is not prejudiced by the lack of notice,
(b) death is the result of the event complained of, or
(c) the municipality waives in writing the requirement for notice.
I noted up (looked for cases which considered this section) and located the Kuz v. Calgary (City), 2008 ABPC 340 case. In Kuz, Judge McCarthy (at that time a Provincial Court Judge and now of our Court of Appeal) considered this section. Justice McCarthy explicates the nature of the duty imposed by section 532 of the MGA and then applies the “Policy” Versus “Operational” Dichotomy which must be applied in respect of claims of negligence against municipalities; negligence will only lie if the conduct alleged was negligence in operation.
The Duty of Care Owed by the City:
[18] If I am correctly interpreting the decisions of the Supreme Court of Canada in Just v. British Columbia 1989 CanLII 16 (SCC), [1989] 2 S.C.R. 1228 and Brown v. British Columbia 1994 CanLII 121 (SCC), [1994] 1 S.C.R. 420, the City, as the road authority, owes a duty of care to those using its roads. Furthermore, I interpret those cases to hold that the duty of care extends to taking reasonable steps to prevent injury to users of its roads. In other words, the duty of care extends beyond the City’s statutory duties set out in Section 532(1) and (7) of the Municipal Government Act, namely to keep roads in a reasonable state of repair and to repair malfunctioning traffic control devices in a reasonable period of time. The City, of course, had a duty to fix the traffic lights in a reasonable period of time and it discharged that duty in this case; but that does not end the matter because there is also the duty to take reasonable steps to prevent injury to motorists.
The “Policy” Versus “Operational” Dichotomy:
[22] And before this court can even embark on an inquiry into the adequacy of that precaution, it must decide whether its traffic signal lights re-setting practices are the product of a policy decision by the road authority or are simply an operational decision. The standard of negligence applied by the courts in determining whether a duty of care has been breached cannot ordinarily be applied to a policy decision, but it can be applied to an operational decision: Sutherland Shire Council v. Heyman (1985) 60 A.L.R. (Australian High Court-Mason, J) cited with approval in Brown v. British Columbia, supra, (although it should be noted that Sopinka, J., in dissenting in Brown, expressed grave reservations about the use of the “policy/operational” test as the touchstone of liability).
[23] The principles to be applied in determining whether a decision of government, or in this case of a municipality, is one of policy or operations are set out in Just v. British Columbia, supra. In Just v. B.C., Justice Cory of the Supreme Court of Canada cited the Australian High Court decision in Sutherland Shire Council v. Heyman as providing “helpful guidelines”. In the Australian case, the court said at p.35:
“The distinction between policy and operational factors is not easy to formulate, but the dividing line between them will be observed if we recognize that a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints. Thus budgetary allocations and the constraints which they entail in terms of allocation of resources cannot be made the subject of a duty of care. But it may be otherwise when the courts are called upon to apply a standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness.”
[34] Furthermore, on the authorities cited to me, this was not a new problem. In a scathing judgment in 1990, Mr. Justice Dixon of the Alberta Court of Queens Bench in Kozina v. Lajoie, 1990 CanLII 5857 (AB QB), (1990) 103 A.R. 55, found the City to be negligent in not providing adequate and timely signage in the case of malfunctioning traffic signal lights at Deerfoot Trail and Memorial Drive, the next interchange south of that intersection which is the subject of the within litigation. Admittedly, much of Justice Dixon’s judicial reproach was reserved for the police department and the facts were different Kozina in that the traffic light outages involved more intersections, lasted longer and the response times were nowhere near as quick as in the case at bar; but on the question of traffic control, Mr. Justice Dixon had this to say:
“Before leaving the issue of liability, I must record that I am astounded that the three intersections in question were not controlled by peace officers long before the time of the accident....Had the City of Calgary Police Commission been or remained a party in these proceedings, I would have found them liable for neglect of duty. I concur with the submissions of Mr. Abougoush that the effect of Section 3 of the City of Calgary By-law 40M80 and of the Judgment of Master Quinn in Caratozzolo v. Murdock, Eqatski and City of Edmonton, 47 A.R. 394, are that peace officers have the responsibility for the direction of traffic at uncontrolled intersections within the City of Calgary...”
This section and the application of the legal reasoning of Justice McCarthy could very well form the basis of a judgment against municipalities for failing to repair pot holes in a timely manner.
Saturday, March 1, 2014
Reblog: "The Common Law Relationship Mystery: Are you an Adult Interdependent Partner in a Joint Family Venture and don't even know it" by Erique Dubon-Roberts
Though I do not at this time practice family law, I do assist sensible and cooperative clients who are are either preparing for marriage or entry into an adult interdependent partnership or leaving one. That is I assist client with prenuptial and nuptial agreements, matrimonial property agreements, adult interdependent partnership agreements and separation agreements. I hope to at some point bring into Bridgeland Law a lawyer who practices in the area of matrimonial law.
In the winter issue of "Law Matters" published by the Canadian Bar Association, Enrique Dubon-Roberts has written an excellent summary of the law related to common law partnerships and adult interdependent partnerships. It is repeated below in its entirety:
The Common Law Relationship Mystery: Are you an AIP in a JFV and don’t even know it? by Enrique Dubon-Roberts
As a family law lawyer, I often find that couples, especially young ones, often ask: “as we considered common-law,
yet?” This question is often followed by an awkward silence. The silence is due to the current state of the law in Alberta
for unmarried couples, and because I know how difficult it is to give a simple answer to this question. Statistics
Canada’s 2011 Census, as summarized in its Portrait of Families and Living Arrangements in Canada, showed that
common-law couples have increased by 13.9% since 2006, making common-law couple families account for 16.7% of census families. Therefore, I smile, and try to answer the questions; what follows is a shorter version of my basic overview of a very complex area of law.
The rights of unmarried partners in Alberta can be better explained by dividing them in two categories: (1) the rights conferred on unmarried couples by legislation; and (2) the property rights that may arise due to the parties’ contributions to the relationship.
Firstly, in Alberta, Section 3 of the Adult Interdependent Relationship Act, SA 2002, c. A-4.5 defines an Adult Interdependent Partner (“AIP”) as a person who (a) has lived with another person in a relationship of interdependence (i) for a period of not less than 3 years, or (ii) of some permanence, if there is a child of the relationship by birth or adoption. The act outlines the indicia of an AIP relationship and it allows AIPs to enter into an agreement to be AIPs. Once this definition is met, unmarried partners may access rights and remedies under Part 3 of the Family Law Act, SA 2003, c. F-4.5, and Part 3 of the Wills and Successions Act SA 2010M c. W-12.2. Part 3 of the Family Law Act mostly deals with child support and AIP Support Rights. The Family Law Act outlines the factors that a court is to consider if/when an AIP makes a partner support application. The Wills and Successions Act deals with
the distribution of intestate estates and gives an AIP, whose
partner has passed away without a will, the potential ability
to inherit from the deceased partner’s estate. By no means
are any of these rights guaranteed, but the potential claim is
only available to those who meet the definition of an AIP. The Income Tax Act and pension legislation also prescribe further rights and obligations to unmarried partners.
There are no statutory property rights for unmarried couples
(married couples enjoy a presumption of equal division of
matrimonial property). The property rights and obligations
of unmarried couples are dictated by the same rules that apply to other non-romantic relationships where unjust enrichment claims arise, as our Supreme Court outlines in its Kerr v. Baranow, 2011 SCC 10, decision. In short, when (1) one party receives a benefit/enrichment, (2) while the second party suffers a corresponding deprivation, and (3) there is no juristic reason for the same, the second party may have claim against the first.
Once the case for an unjust enrichment has been met, our
Supreme Court in Kerr gave our courts a bit of flexibility in
relation to the remedies available to unmarried partners by
introducing the idea of a Joint Family Venture (“JFV”). The
direction from the SCC is that we are to consider the unmarried partners’: (1) mutual effort, (2) economic integration, (3) actual intent, and (4) priority of the family in establishing the existence of a JFV. The Supreme Court supplied us with some details of what evidence is needed to decide if a JFV exists by exploring the habits, behaviours and arrangements between unmarried partners.
At this point, I usually stop and check to see if anyone is still
listening, and I am often met with blank stares. I then assure
my audience, who usually had no idea that moving in together could give rise to all these issues, that family law lawyers are eagerly reading up on reported decisions interpreting Kerr, in order to get a better grasp on this very difficult area of law.
In the winter issue of "Law Matters" published by the Canadian Bar Association, Enrique Dubon-Roberts has written an excellent summary of the law related to common law partnerships and adult interdependent partnerships. It is repeated below in its entirety:
The Common Law Relationship Mystery: Are you an AIP in a JFV and don’t even know it? by Enrique Dubon-Roberts
As a family law lawyer, I often find that couples, especially young ones, often ask: “as we considered common-law,
yet?” This question is often followed by an awkward silence. The silence is due to the current state of the law in Alberta
for unmarried couples, and because I know how difficult it is to give a simple answer to this question. Statistics
Canada’s 2011 Census, as summarized in its Portrait of Families and Living Arrangements in Canada, showed that
common-law couples have increased by 13.9% since 2006, making common-law couple families account for 16.7% of census families. Therefore, I smile, and try to answer the questions; what follows is a shorter version of my basic overview of a very complex area of law.
The rights of unmarried partners in Alberta can be better explained by dividing them in two categories: (1) the rights conferred on unmarried couples by legislation; and (2) the property rights that may arise due to the parties’ contributions to the relationship.
Firstly, in Alberta, Section 3 of the Adult Interdependent Relationship Act, SA 2002, c. A-4.5 defines an Adult Interdependent Partner (“AIP”) as a person who (a) has lived with another person in a relationship of interdependence (i) for a period of not less than 3 years, or (ii) of some permanence, if there is a child of the relationship by birth or adoption. The act outlines the indicia of an AIP relationship and it allows AIPs to enter into an agreement to be AIPs. Once this definition is met, unmarried partners may access rights and remedies under Part 3 of the Family Law Act, SA 2003, c. F-4.5, and Part 3 of the Wills and Successions Act SA 2010M c. W-12.2. Part 3 of the Family Law Act mostly deals with child support and AIP Support Rights. The Family Law Act outlines the factors that a court is to consider if/when an AIP makes a partner support application. The Wills and Successions Act deals with
the distribution of intestate estates and gives an AIP, whose
partner has passed away without a will, the potential ability
to inherit from the deceased partner’s estate. By no means
are any of these rights guaranteed, but the potential claim is
only available to those who meet the definition of an AIP. The Income Tax Act and pension legislation also prescribe further rights and obligations to unmarried partners.
There are no statutory property rights for unmarried couples
(married couples enjoy a presumption of equal division of
matrimonial property). The property rights and obligations
of unmarried couples are dictated by the same rules that apply to other non-romantic relationships where unjust enrichment claims arise, as our Supreme Court outlines in its Kerr v. Baranow, 2011 SCC 10, decision. In short, when (1) one party receives a benefit/enrichment, (2) while the second party suffers a corresponding deprivation, and (3) there is no juristic reason for the same, the second party may have claim against the first.
Once the case for an unjust enrichment has been met, our
Supreme Court in Kerr gave our courts a bit of flexibility in
relation to the remedies available to unmarried partners by
introducing the idea of a Joint Family Venture (“JFV”). The
direction from the SCC is that we are to consider the unmarried partners’: (1) mutual effort, (2) economic integration, (3) actual intent, and (4) priority of the family in establishing the existence of a JFV. The Supreme Court supplied us with some details of what evidence is needed to decide if a JFV exists by exploring the habits, behaviours and arrangements between unmarried partners.
At this point, I usually stop and check to see if anyone is still
listening, and I am often met with blank stares. I then assure
my audience, who usually had no idea that moving in together could give rise to all these issues, that family law lawyers are eagerly reading up on reported decisions interpreting Kerr, in order to get a better grasp on this very difficult area of law.
Friday, February 7, 2014
Purchaser's Liens - A Summary
In a recent case out of
the Supreme Court of BC, Pan Canadian Mortgage Group Inc. v. 679972 B.C. Ltd.,2013 BCSC 1078, the Honourable Madam Justice M. Koenigsberg provided an
excellent summary of the nature of a Purchaser's Lien in dismissing the
assertion of Judgment Creditors that they had priority. The following text from pages 19 to 22; I
have highlighted what I consider a few salient points:
"What
are the Essential Features or Requirements for a Purchaser’s Lien?
[90] A purchaser’s lien is a well-established equitable charge over property that
arises at the time a purchaser of property provides a deposit or funds to the
vendor or their agent in part or whole payment of the purchase price. A
purchaser’s lien is created by equity not
by contract. The law establishing a purchaser’s lien has a long history stretching from at least the mid-1800’s to today. A case similar to the one at bar is
Whitbread & Co., Limited v. Watt, [1902] 1 Ch. 835 at 838. In this case the
purchaser was purchasing a freehold public-house plot on a building estate. The
purchase was to complete as soon as 300 houses had been built on the estate.
The 300 houses were not built. The purchaser sued for a return of their monies
based upon a purchaser’s lien. Lord Justice Vaughan
Williams stated at 838:
...
The lien
which a purchaser has for his deposit is not the result of any express
contract; it is a right which may be said to have been invented for the purpose
of doing justice. ...
[91] One of the first cases to discuss
purchaser's liens is the oft cited case of Rose v. Watson, [1864] 10 H.L.C.
672. The House of Lords found that when a portion of the purchase price for
property was paid the payor obtained a security interest, similar to that of a
mortgagee, equivalent to the funds paid. Lord Westbury stated at 682:
...
.... It
was money advanced upon the faith that the land, the subject of the contract,
would become the property of the Respondent; and being so paid as part of the
purchase-money under the contract, and being paid in advance, on the faith of
the vendor’s performance of the contract, I think that your Lordships will have
little difficulty in coming to the conclusion that those sums of money thus
paid formed principal sums, in respect of which there became a lien from the
time of the payment of them; ... [Emphasis added]
[92] As stated by Di Castri in the Law of Vendor
and Purchaser, 3rd edition, Volume 3 at para. 913, p. 18-20:
...
... The
lien is decreed independently of the contract, which does not give it, but
furnishes the reason for the decree. ...
[93] At the time any payment on account of the
purchase price is made, a purchaser obtains an equitable right to security in
the land to the extent of their payments. This right is immediately vested to
secure repayment of the purchase monies so paid in the event the contract is
not completed through no fault of the purchaser. (Whitbread; Rose; Capital
Plaza Developments Ltd. v. Counterpoint Enterprises Ltd., [1985] B.C.J. No. 321
(S.C.) at paras. 9-11).
[94] Put another way, the courts have found that
the payment on account of the purchase price (whether as a deposit or
otherwise) is not just a partial payment but is security for the completion of
the purchase. If the purchaser fails to perform their part of the contract, the
vendor has security against the funds; if the vendor fails to perform, the
purchaser can recover the funds and is entitled to a lien on the subject matter
of the contract. By virtue of the lien the purchaser is a secured creditor.
(Levy v. Stogdon, [1898] 1 Ch. 478 (C.A.) at 486; J.A.R. Leaseholds Ltd. v.
Tormet Ltd. and Kaye (1965), 48 D.L.R. (2d) 97 (Ont. C.A.))
[95] Di Castri has described the nature of a
purchaser's lien at (Law of Vendor and Purchaser, 3rd edition, Volume 3, at
para. 913, pp. 18-20):
...
Where a
contract goes off without any misconduct or default on the part of the
purchaser, he acquires an equitable lien, on the subject land, in general
commensurate with the purchase money paid. To put this another way, in order to
do justice between a vendor and a purchaser under a contract for the sale of
land, equity gives the latter a lien on the estate by way of an equitable
charge in respect of all payments made on account of the price, interest, and
costs.
While
there is no doubt that an action to enforce a purchaser’s lien is based on an affirmance
of the contract, there appears to be some technical legal question as to the
affirmative right of a purchaser to claim his lien, where he has rescinded the
contract. It is submitted, however, that whether the transaction falls through
by reason of the inability of the vendor to convey as agreed or whether the
contract is rescinded before completion by reason of the vendor’s misrepresentation of a
material fact, in either event, the purchaser’s right to a lien cannot be
affected. The objection is urged that, assuming the right of a purchaser to a
lien, it is abandoned where the contract is rescinded. The argument is that
...
In order
to ascertain the real nature of the exercise of equitable power, it may be
considered in relation to its basis and to the result of its operation. The
basis is the promise of the vendor to convey the land, as and when agreed, and
that meanwhile he is a trustee of the legal title for the purchaser to the
extent of the purchase moneys paid. The extent of its operation is to subject
the land to the execution of a trust, either to convey, where there has been
full performance by the purchaser or to return him his moneys, where the
contract has failed and ceases to be binding through no fault of the latter.
It supplies a remedy where the law falls short of accomplishing full justice.
If equity lays hold of a pretext, or adopts a fiction, in such a case it is not
more than it does in many other cases, in order to enforce a natural right and
to affect a just result.
...
[96] The enforcement of a purchaser’s lien can be sought when there is no ability to
enforce specific performance or where the purchaser does not want specific
performance. If specific performance is available to a purchaser title can be
transferred or the purchaser can elect to claim under the purchaser's lien. In
the circumstances where specific performance is not possible, the purchaser’s equitable interest in the land remains which is
enforceable through the lien. (Rose; Levy; Cornwall
v. Henson, [1899] 2 Ch. 710 at 714; Law of Vendor and Purchaser,
3rd edition, Volume 3, at para. 919, pp.18-26;
J.A.R. Leaseholds Ltd. at para. 28).
[97] The court found that upon paying the monies
the purchaser obtained a purchaser’s lien over the property as a
whole (Whitbread). The principle that the lien will apply to the property as a
whole rather than to the particular portion of the property for which the funds
were advanced was reiterated in the British Columbia case of Lehmann v. B.R.M.
Enterprises Ltd. (1978), 88 D.L.R. (3d) 87 (B.C.S.C.). In this case the
plaintiff was the purchaser of a strata unit in a planned strata development.
He had paid the entire purchase price for the unit to the vendor. The vendor
went bankrupt and did not complete the development and did not file a strata
plan. The court found that the right to the purchaser’s lien was not affected by the fact that the strata plan had not
been registered. The right to the lien was not dependent upon the ability of
the vendor to convey title and the purchaser was entitled to a lien over the
entire development property for the amount paid notwithstanding that the lands
that were the subject of the contract did not exist and specific performance
could not be ordered."
Justice Koenigsberg
applied this equitable principal to find in favour of the parties who
registered purchaser’s liens.
It is a powerful remedy which arises in any circumstance when a purchaser
pays money on a condominium project which is not completed. Developer’s often try to control this dynamic by providing in the purchase and
sale agreement that a purchaser may not register a Caveat/Lien to protect money
which has been paid to the Developer prior to the development occurring. This failure to register can be fatal and it
is suggested that purchasers should not agree to such limitation.
The purchaser’s lien also arises under what is referred to as an Agreement for Sale
(this is distinct from an Agreement to Sell).
In this circumstance a purchaser provides money against the purchase
price and continues to make payments until the full purchaser price is
paid. The title to the property subject
of the sale remains in the name of the vendor and the vendor is not obliged to
transfer the property to the purchaser until all payments are made. In Alberta our Law of Property Act imposes upon vendors the obligation to commence
a foreclosure in the even that a purchaser breaches an Agreement for Sale. This statutory requirement prohibits vendors
from being unjustly enriched. The
property subject of the sale will as part of the foreclosure be required to be
sold and the monies paid by the purchaser are contemplated by the Court in
establishing the redemption period which proceeds the Court ordered sale. The money paid by the purchaser forms an equitable
interest in the subject property and is only forfeited to the vendor and the Agreement for Sale extinguished upon completion of the
foreclosure action.
Saturday, May 4, 2013
Condominium Complexes are Private; a Defense Against the creeping expansion of the Alberta Human Rights Commission
The distinction in law between "public" and "private" is a dynamic thing. It is among many other legal concepts open to interpretation and some would say manipulation. Where the line is drawn is significant for many reasons least of all the extent to which government can impose itself on the ordinary and private lives of our country's denizens.
Even if one does not critique the history and political philosophy of human rights legislation the incessant expansion of Human Rights Commissions in Canada is worthy of comment. Particularly in this regard, it is important for those in condominium communities in Alberta to recognize that the Alberta Human Rights Commission (the "Commission") and many who support the shrinking of any societal space considered historically to be "private" hold the view that condominium corporations are bound by the Alberta Human Rights Act (the "AHRA"). The position articulated by the Commission is, notwithstanding the absence of any Court of Queen's Bench authority which supports the Commission's position, that section 4 of the AHRA applies to condominium corporations and prohibits discrimination against any person or class of person in respect of "accommodation or facilities" that are "customarily available to the public".
This position of the Commission is without support in law in Alberta; in this regard reference should be made to Condominium Plan No. 931 0520 v. Smith and the more recent Condominium Plan No. 9910225 v. Davis, both Court of Queen's Bench decisions. Notwithstanding this clear enunciation of the law, an academic lawyer at the University of Calgary, Jennifer Koshan, has recently suggested that these decisions are wrongly decided. The basis upon which Ms Koshan asserts this position is imaginative but is unfortunately illogical and lacks grounding in reality. Ms Koshan's argument is based on a 1993 decision of the Supreme Court of Canada (the "SCC") in University of British Columbia v. Berg.
Without wallowing in the details, the facts in Berg dealt with the failure of a student to receive a rating sheet and key from the University. The SCC indicated that the focus of their legal inquiry at pages 373-74 would be in respect of the scope of the terms "accommodations, services or facilities" and "public" (my emphasis):
"The courts below assumed, and the School conceded, that the key and rating sheet were "services" within the meaning of the Act. The real issue between the parties was whether such services were, on the correct interpretation of s. 3 and the evidence, customarily available to the public. This in turn entails two inquiries: first, whether the student body of a university (or a faculty within the university) is the "public", and if so, second, whether the services in this case were, as a matter of law and fact, customarily available to that public."
The SCC concluded that the term public means more than its ordinary meaning. The unusual conclusion made by the SCC in Berg is found at page 383:
"Therefore, I would reject any definition of "public" which refuses to recognize that any accommodation, service or facility will only ever be available to a subset of the public. Students admitted to a university or school within the university, or people who enter into contracts of insurance with a public insurer, or people who open accounts with financial institutions, become the "public" for that service. Every service has its own public, and once that "public" has been defined through the use of eligibility criteria, the Act prohibits discrimination within that public."
The idead of "a public" (rather than "the public") within a "private" setting and the application of the principal of "eligibility criteria" in this regard may make sense in context of large institutions like universities, insurance companies and financial institutions frequented by many persons in society. However, this principal of "a public" and the application of "eligibility criteria" cannot be applied to all circumstances; curiously the SCC was silent on the issue of limitation. Moreover, and I suggest critical in this regard, the SCC's conclusion and Ms. Koshan's reliance on this conclusion from the Berg decision overlooks the limitations based on ordinary meaning which had been determined by the SCC in respect of the scope of these same terms in the Gay Alliance Toward Equality v. Vancouver Sun decision. With all due respect, this earlier decision does not strain the ordinary meaning of these terms. It is worthy to note that this case was referred to by the SCC in the Berg decision; the SCC quoted from the Gay Alliance case at page 374:
"After briefly discussing the nature of freedom of the press in Canada, Martland J. wrote (at pp. 454-55):
In my opinion the general purpose of s. 3 was to prevent discrimination against individuals or groups of individuals in respect of the provision of certain things available generally to the public. The items dealt with are similar to those covered by legislation in the United States, both federal and state. "Accommodation" refers to such matters as accommodation in hotels, inns and motels. "Service" refers to such matters as restaurants, bars, taverns, service stations, public transportation and public utilities. "Facility" refers to such matters as public parks and recreational facilities. These are all items "customarily available to the public". It is matters such as these which have been dealt with in American case law on the subject of civil rights."
The SCC had also earlier in the decision at page 366 made reference to an important comment in the decision of the Honourable Justice Legg of the British Columbia Court of Appeal and which was subject of the Appeal to the SCC (my emphasis):
"Legg J.A. assumed, in his decision for the court, that the provision of a rating sheet or a key to the building was an "accommodation, service or facility", noting that the word "service" was to be interpreted broadly, he did not agree that it constituted a service "customarily available to the public" within the meaning of s. 3 of the Act. In reaching that conclusion, he referred to decisions of this Court stating that human rights legislation should be interpreted so as to advance the broad policy consideration underlying it, but he also argued that this did not mean that the ordinary meaning of words should be strained."
I suggest, with all due respect, that the decision of the SCC does "strain" the ordinary meaning of these terms. Ms. Koshan is now attempting to suggest that the AHRA should apply to a private condominium communities based on the unusual principal of "eligibility criteria". Universities are facilities created by statute and funded partly via public funds. All students with sufficiently high grades and the financial wherewithal may attend at a university. Perhaps in this context the determination of the SCC that the failure to provide a rating form and a key was discriminatory. However, condominium corporations are created by registration of a Plan of Subdivision at the Land Titles Office and are simply a means of dividing a parcel of land into smaller parcels all which are capable of being owned privately. There is nothing public about a condominium corporation. Only invitees are permitted to come onto either the common property or any particular unit. It embraces incredulity to suggest that a condominium corporation in this regard is anything remotely like a university or in any manner is public. Moreover, a condominium corporation does not provide services nor accommodation or facilities.
Those who support the shrinking of societal spaces historically considered to be "private" will suggest that the availability for sale of a condominium units in a particular condominium project is the "eligibility criteria" and upon units being purchased the owners in a condominium become the "public" which the AHRA would apply to. This is nonsense and illogical. This faulty logic is revealed by applying the "eligibility criteria" to single detached residences on individual lots. It is nonsensical to suggest that once an owner purchases a single detached residence they now belong to the "public". Moving across the continuum it is also nonsensical to apply this to bare land condominiums with single detached residences on it. It is equally as nonsensical to apply the principal of "eligibility criteria" to duplexes and townhouses not part of condominium projects; by extension this should also make it nonsensical to duplexes and townhouses in condominium complexes. Though novel and imaginative the application of the principal of "eligibility criteria" to condominiums fails by reductio ad absurdum. Regardless of the unusual and in some ways illogical conclusion of the SCC in Berg it is suggested that the AHRA will continue to not apply to condominium corporations in Alberta.
Even if one does not critique the history and political philosophy of human rights legislation the incessant expansion of Human Rights Commissions in Canada is worthy of comment. Particularly in this regard, it is important for those in condominium communities in Alberta to recognize that the Alberta Human Rights Commission (the "Commission") and many who support the shrinking of any societal space considered historically to be "private" hold the view that condominium corporations are bound by the Alberta Human Rights Act (the "AHRA"). The position articulated by the Commission is, notwithstanding the absence of any Court of Queen's Bench authority which supports the Commission's position, that section 4 of the AHRA applies to condominium corporations and prohibits discrimination against any person or class of person in respect of "accommodation or facilities" that are "customarily available to the public".
This position of the Commission is without support in law in Alberta; in this regard reference should be made to Condominium Plan No. 931 0520 v. Smith and the more recent Condominium Plan No. 9910225 v. Davis, both Court of Queen's Bench decisions. Notwithstanding this clear enunciation of the law, an academic lawyer at the University of Calgary, Jennifer Koshan, has recently suggested that these decisions are wrongly decided. The basis upon which Ms Koshan asserts this position is imaginative but is unfortunately illogical and lacks grounding in reality. Ms Koshan's argument is based on a 1993 decision of the Supreme Court of Canada (the "SCC") in University of British Columbia v. Berg.
Without wallowing in the details, the facts in Berg dealt with the failure of a student to receive a rating sheet and key from the University. The SCC indicated that the focus of their legal inquiry at pages 373-74 would be in respect of the scope of the terms "accommodations, services or facilities" and "public" (my emphasis):
"The courts below assumed, and the School conceded, that the key and rating sheet were "services" within the meaning of the Act. The real issue between the parties was whether such services were, on the correct interpretation of s. 3 and the evidence, customarily available to the public. This in turn entails two inquiries: first, whether the student body of a university (or a faculty within the university) is the "public", and if so, second, whether the services in this case were, as a matter of law and fact, customarily available to that public."
The SCC concluded that the term public means more than its ordinary meaning. The unusual conclusion made by the SCC in Berg is found at page 383:
"Therefore, I would reject any definition of "public" which refuses to recognize that any accommodation, service or facility will only ever be available to a subset of the public. Students admitted to a university or school within the university, or people who enter into contracts of insurance with a public insurer, or people who open accounts with financial institutions, become the "public" for that service. Every service has its own public, and once that "public" has been defined through the use of eligibility criteria, the Act prohibits discrimination within that public."
The idead of "a public" (rather than "the public") within a "private" setting and the application of the principal of "eligibility criteria" in this regard may make sense in context of large institutions like universities, insurance companies and financial institutions frequented by many persons in society. However, this principal of "a public" and the application of "eligibility criteria" cannot be applied to all circumstances; curiously the SCC was silent on the issue of limitation. Moreover, and I suggest critical in this regard, the SCC's conclusion and Ms. Koshan's reliance on this conclusion from the Berg decision overlooks the limitations based on ordinary meaning which had been determined by the SCC in respect of the scope of these same terms in the Gay Alliance Toward Equality v. Vancouver Sun decision. With all due respect, this earlier decision does not strain the ordinary meaning of these terms. It is worthy to note that this case was referred to by the SCC in the Berg decision; the SCC quoted from the Gay Alliance case at page 374:
"After briefly discussing the nature of freedom of the press in Canada, Martland J. wrote (at pp. 454-55):
In my opinion the general purpose of s. 3 was to prevent discrimination against individuals or groups of individuals in respect of the provision of certain things available generally to the public. The items dealt with are similar to those covered by legislation in the United States, both federal and state. "Accommodation" refers to such matters as accommodation in hotels, inns and motels. "Service" refers to such matters as restaurants, bars, taverns, service stations, public transportation and public utilities. "Facility" refers to such matters as public parks and recreational facilities. These are all items "customarily available to the public". It is matters such as these which have been dealt with in American case law on the subject of civil rights."
The SCC had also earlier in the decision at page 366 made reference to an important comment in the decision of the Honourable Justice Legg of the British Columbia Court of Appeal and which was subject of the Appeal to the SCC (my emphasis):
"Legg J.A. assumed, in his decision for the court, that the provision of a rating sheet or a key to the building was an "accommodation, service or facility", noting that the word "service" was to be interpreted broadly, he did not agree that it constituted a service "customarily available to the public" within the meaning of s. 3 of the Act. In reaching that conclusion, he referred to decisions of this Court stating that human rights legislation should be interpreted so as to advance the broad policy consideration underlying it, but he also argued that this did not mean that the ordinary meaning of words should be strained."
I suggest, with all due respect, that the decision of the SCC does "strain" the ordinary meaning of these terms. Ms. Koshan is now attempting to suggest that the AHRA should apply to a private condominium communities based on the unusual principal of "eligibility criteria". Universities are facilities created by statute and funded partly via public funds. All students with sufficiently high grades and the financial wherewithal may attend at a university. Perhaps in this context the determination of the SCC that the failure to provide a rating form and a key was discriminatory. However, condominium corporations are created by registration of a Plan of Subdivision at the Land Titles Office and are simply a means of dividing a parcel of land into smaller parcels all which are capable of being owned privately. There is nothing public about a condominium corporation. Only invitees are permitted to come onto either the common property or any particular unit. It embraces incredulity to suggest that a condominium corporation in this regard is anything remotely like a university or in any manner is public. Moreover, a condominium corporation does not provide services nor accommodation or facilities.
Those who support the shrinking of societal spaces historically considered to be "private" will suggest that the availability for sale of a condominium units in a particular condominium project is the "eligibility criteria" and upon units being purchased the owners in a condominium become the "public" which the AHRA would apply to. This is nonsense and illogical. This faulty logic is revealed by applying the "eligibility criteria" to single detached residences on individual lots. It is nonsensical to suggest that once an owner purchases a single detached residence they now belong to the "public". Moving across the continuum it is also nonsensical to apply this to bare land condominiums with single detached residences on it. It is equally as nonsensical to apply the principal of "eligibility criteria" to duplexes and townhouses not part of condominium projects; by extension this should also make it nonsensical to duplexes and townhouses in condominium complexes. Though novel and imaginative the application of the principal of "eligibility criteria" to condominiums fails by reductio ad absurdum. Regardless of the unusual and in some ways illogical conclusion of the SCC in Berg it is suggested that the AHRA will continue to not apply to condominium corporations in Alberta.
Friday, April 5, 2013
New Home Buyer Protection Act; Government: If you think the problems we create are bad, just wait until you see our solutions
I came across this "demotivational" poster from despair.com some time ago. In my practice as a lawyer I am often exposed to Alberta government departments which were created to solve a problem. The problem subject of this blog entry is the shoddy work being done by some builders in the construction of houses and condominiums in the Province of Alberta which leads to deficiencies in the construction. This was and is a real problem but I am surprised at the cumbersome solution created by the Government of Alberta to try and solve this problem.
The solution to this problem proposed by the Government of Alberta is the New Home Buyer Protection Act, SA 2012, c N-3.2 which has now received passage in the Alberta Legislative Assembly and will soon be in force on proclamation. Among other things, this act creates a new Registry to be staffed by a Registrar and other soon to be pensioned Alberta employees and an Appeal Board which will deal with appeal of decisions and enforcement by the Registrar. Among other things, this new Government of Alberta Registry will be responsible to keep track of the construction of new homes:
1(s) “new home” means a building, or a portion of a building, that is newly constructed or that is being constructed and is intended for residential occupancy and in respect of which the purchase period has not expired, and includes
(i) a self‑contained dwelling unit that
(A) is detached,
(B) is attached to one or more other self‑contained dwelling units, or
(C) includes a secondary suite,
(ii) common property, common facilities and other assets of a condominium corporation,
(iii) any building or portion of a building that is of a class prescribed as a class of new home to which this Act applies,
(iv) a building that is intended for residential occupancy and that is a reconstruction, and
(v) a manufactured home,
but does not include a hotel, motel, dormitory, care facility, relocatable work camp or any building exempted by the regulations from the definition of new home;
which are build by persons other than an owner builder and also by owner builders. It is important to note that owner builders are not required to obtain warranty insurance.
Mandatory home warranty
3(1) A person other than an owner builder shall not build a new home unless the new home
(a) is covered by a home warranty insurance contract that complies with subsections (6) and (7), and
(b) is registered with the Registrar.
Authorizations for owner builders
5(1) Subject to section 6, the Registrar shall issue an authorization, subject to any terms and conditions the Registrar considers appropriate, to an individual who intends to build a new home for personal use if the individual
(a) registers the new home with the Registrar,
(b) meets the prescribed criteria, and
(c) pays the required fees, if any.
It is worthy of being noted that the definition of a new home includes dwelling units attached to one ormore other self‑contained dwelling units (this sounds like multi-unit and town house condominiums) and common property, common facilities and other assets of a condominium corporation. The act will also apply to any building or portion of a building that is prescribed as a class of new home; this allows additional classes of new homes to be added by regulation. Curiously, though I am unclear at this time why, the Minister may make the following exemptions:
28(2) The Minister may make regulations
(a) exempting
(i) persons or categories of persons from all or any portion of this Act, including providing differently for different categories of persons,
(ii) a building, a class of buildings, a portion of a building or the common property, common facilities and other assets of a condominium corporation from the definition of new home in section 1(1)(s), or
(iii) a category of persons from the definition of residential builder in section 1(1)(dd);
(a) the date an accredited agency, accredited municipality or accredited regional services commission grants permission to occupy the multiple family dwelling, and
(b) the date that the transfer of title to the multiple family dwelling is registered.
Please do not misunderstand my criticism as the overarching purpose of the act is a good one. The act provides that non-owner builders, without warranty insurance, must obtain insurance to cover the following:
3(6) A home warranty insurance contract must provide coverage in accordance with the Insurance Act for
(a) defects in materials and labour for a period of at least one year starting on the date on which the coverage begins,
(b) defects in materials and labour related to delivery and distribution systems for a period of at least 2 years starting on the date on which the coverage begins,
(c) defects in the building envelope for a period of at least 5 years starting on the date on which the coverage begins, and
(d) structural defects for a period of at least 10 years starting on the date on which the coverage begins.
3(7) A warranty provider must offer the option to purchase, at an additional premium, additional coverage covering
(a) defects in the building envelope for a prescribed period, and
(b) defects in other prescribed components of the new home for a prescribed period.
This is a great improvement over the existing warranty insurance available (1 year for all issues but structural which are 5 years) and which has not been mandatory. Moreover, the act will function somewhat like the Sales of Goods Act by creating implied warranties for sales of all new homes built without insurance:
Statutory protection
4(1) This section applies only to a new home that does not have home warranty coverage as required by this Act.
(2) A residential builder or an owner builder of a new home is deemed to have agreed with the prospective owner of the new home and subsequent owners of that home, to the extent of labour, materials and design supplied, used or arranged by the residential builder or owner builder, that, except to the extent prescribed, the new home, as it exists at the date an accredited agency, accredited municipality or accredited regional services commission grants permission to occupy the new home, or if permission is not granted, at the date the new home is first occupied,
(a) is free from defects in materials and labour and will remain so for a period of at least one year after
(i) the date an accredited agency, accredited municipality or accredited regional services commission grants permission to occupy the new home, or
(ii) if permission described in subclause (i) is not granted, the date the new home is first occupied,
(b) is free from defects in materials and labour related to delivery and distribution systems and will remain so for a period of at least 2 years after
(i) the date an accredited agency, accredited municipality or accredited regional services commission grants permission to occupy the new home, or
(ii) if permission described in subclause (i) is not granted, the date the new home is first occupied,
(c) is free from defects in the building envelope and will remain so for a period of at least 5 years after
(i) the date an accredited agency, accredited municipality or accredited regional services commission grants permission to occupy the new home, or
(ii) if permission described in subclause (i) is not granted, the date the new home is first occupied,
and
(d) is free from structural defects and will remain so for a period of at least 10 years after
(i) the date an accredited agency, accredited municipality or accredited regional services commission grants permission to occupy the new home, or
(ii) if permission described in subclause (i) is not granted, the date the new home is first occupied.
(3) Any term of an agreement that purports to waive, exclude, limit or qualify the protection under subsection (2) is of no effect.
(4) The protection under subsection (2) applies for the benefit of the person who owns the new home at any time during the periods specified in subsection (2).
(5) The person who owns the new home when there is a breach of the protection under subsection (2) is deemed
(a) to have given good consideration for the benefit of the protection, and
(b) to be the only person entitled to recover damages for a breach of the protection.
(6) Despite subsection (5), if the ownership of the new home changes during the course of an action for a breach of the protection under subsection (2), the new owner is entitled to be substituted as plaintiff and to enforce all rights that the former owner could have enforced.
(a) excludes, qualifies or limits any other term, express or implied, or
(b) relieves any person of liability to which the person would otherwise be subject.
So you are probably asking why am I so critical; let me tell you. The demotivational poster captures the thinking of many Albertans'. We do not want another branch of government every time a problem appears to be in need of a solution. This begs the question of was there an easier solution? Was there a mechanism that could have bolstered the required insurance for townhouse and multi-unit condominium construction where the larger problem lies without creating another government registry? After mandating robust warranty insurance for town house and multi-unit condominiums, the Government of Alberta could have drawn a distinction between construction of new homes with and without warranty insurance. If a builder elects to build without the more robust warranty insurance outlined in the act then the Government could have provided that Directors of any builder which is a corporation shall be personally liable for any deficiencies. This concept is ofter referred to as piercing the corporate veil. As with many areas of our economy the Government of Alberta has seen fit to pierce the corporate veil; that is, to make Directors of corporations responsible for some of the actions of a corporation. This is done in both employment contexts and environmental contexts where Directors are not allowed to hide behind the corporate veil and are responsible for payment of employees wages (among other things) and responsible for remediation of environmental contamination. Given the need in the new home construction industry for purchasers to have recourse in the event of deficiencies it would have been a simple mechanism to provide a remedy to affected purchasers. This would have been a much simpler system and be less intrusive and not have required another regulatory body be created.
A couple of other points merit being identified. The municipalities in the Province of Alberta have planning and permit departments established. Builders, Architects and Engineers are all very familiar with the requirement to obtain Building Permits. Additionally, the municipalities have inspectors whose responsibility it is to ensure that the terms of the Building Permit have been met. Without broad brushing all of these persons involved in new home construction, I must comment that I find it interesting to note that the existing professional duties and obligations to inspect have not been highlighted in this solution. I will say no more than to query why existing mechanisms were not emphasized as a means of ensuring compliance with the Alberta Building Code's minimum standard by builders of new homes.
So why did the Government of Alberta not simply make Directors of corporations in the business of building new homes without insurance responsible for deficient construction? In doing so this would have had a large chilling effect on shoddy builders many of whom have historically hid behind the veil of a corporation. With all due respect to the drafters of the New Home Buyer Protection Act, the proposed solution offered by the New Home Buyer Protection Act is cumbersome and creates one more regulatory body that was not really needed.
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