Tag Archives: Court of Queen’s Bench of Alberta

Morris v. Condominium Corporation No. 074 0215, 2012 ABQB 265

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Condominium Property Act, R.S.A. 2000 c. C-22, s. 67 – Court ordered remedy – Improper behaviour under the Act – Investigator appointed

A successful application for a court ordered remedy under s. 67(2)(a) of the Condominium Property Act, appointment of an investigator.

“[8] … In my view, there appears to be ample evidence of “improper conduct” as defined by section 67 (1) (a) arising from the noncompliance of the Act, and bylaws by the Condo Corp. In making this determination, I have not determined nor must I determine that the misconduct is otherwise malafides but only that the actions caused the result constituting improper conduct as defined by the Act.

[9] Under the circumstances, I conclude that this is not only appropriate but a classic case for the appointment of an investigator. Despite arguments of counsel for the Condo Corp., I am of the view that litigation of the concerns expressed by Morris is both a costly and inefficient manner in which to achieve the ultimate goal of a properly functioning Condo Corp.”

Morris v. Condominium Corporation No. 074 0215, 2012 ABQB 265

Condominium Corporation No. 082 6970 v 1117398 Alberta Ltd., 2012 ABQB 233

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This recent ABQB decision provides a clear, succinct discussion of the doctrine of marshalling.

“… if a senior creditor has recourse to two funds, ‘A’ and ‘B’, for satisfaction of its debt, and a junior creditor ranking below has recourse to only fund ‘B’, then equity directs that the senior creditor recover first from fund ‘A’ as far as possible, so as to avoid needlessly extinguishing the junior creditor’s recourse to fund ‘B’.” (para 42)

“Marshalling applies where the funds belong to the same debtor, or to two or more debtors with respect to the same debt.” (para 43)

“…the fact that marshalling requires the senior creditor to look to one fund versus the other is not prejudice: its only interest is in being repaid and it is immaterial which fund it is repaid from.” (para 44)

Condominium Corporation No. 082 6970 v 1117398 Alberta Ltd., 2012 ABQB 233

Gateway Charters Ltd. (Sky Shuttle) v Edmonton (City), 2012 ABCA 93

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The City of Edmonton was seeking to have reinstated an order for the Sky Shuttle to cease operations of its airport shuttle service until it obtains the proper license as per the Edmonton Vehicle for Hire Bylaw. The order was overturned when the respondant made an application for judicial review under the Rules of Court. The City challenged the ABQB’s jurisdiction to grant judicial review, claiming that because of a privative clause in the Community Standards and Licence Appeal Committee Bylaw, the only recourse of appeal available to Sky Shuttle was the appeal process set out in the Municipal Government Act.

The Court held that the City does not have the jurisdiction to enact a bylaw limiting the jurisdiction of the Court of Queen’s Bench to grant judicial review:

[12] In Alberta, the substantive right to judicial review is found in Part 3, Div. 2, Subdiv. 2, of the Rules of Court. These Rules are regulations authorized by s. 28.1(1)(b)(ii) and (2) of the Judicature Act, RSA 2000, c. J-2. The City is not able to enact bylaws that conflict with enactments: Municipal Government Act, ss. 1(1)(j), 13. It follows that the City is unable to limit the jurisdiction of the Court of Queen’s Bench to grant judicial review. Exceptionally clear wording in the statute would be required to authorize that.”

Gateway Charters Ltd. (Sky Shuttle) v Edmonton (City), 2012 ABCA 93

R. v. Walters, 2012 ABQB 83

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14-year-prison sentence for three counts of sexual assault with a weapon, one count of robbery, one count of unlawful confinement and one count of theft reduced by 7 years. Credit given for pre-sentence custody, mistreatment by police and poor conditions in the Edmonton Remand Centre.

The Honourable Mr. Justice R.A. Graesser:

“[130] By my calculation, Mr. Walters has been in custody for 909 days to February 1, 2012. 45 days of that should be treated as time served for the immigration offences. The pre-sentence custody period Mr. Walters is entitled to credit for is thus 864 days. Mr. Walters is thus entitled to a credit against his sentence in the amount of 2045 days, based on 2.25 to 1.

[131] I have already determined that Mr. Walters should receive a reduction of 9 months on account of the triple bunking, and 3 months for the lack of clean underwear. He is also entitled to a credit of 4 months (16 weeks) for the initial s.7 breach. The total credits are therefore 1 year (52 weeks) plus 292 weeks plus 16 weeks for a total of 360 weeks.

[132] Mr. Walters global sentence of 14 years (728 weeks) is reduced to a remaining sentence of 368 weeks (7.08 years)”.

R. v. Walters, 2012 ABQB 83