Recent News

The New Alberta Rules of Court are scheduled to come into force on November 1, 2010.

Click  here to view the latest version of the new Rules of Court on the Alberta Courts website. 

H.J. Lyndon Irwin, Q.C. 

New Publications 

 Contracts for the Sale and Purchase of Land: Purchasers' Remedies

In Final Report No. 97 ALRI recommends statutory reform in order to preserve two long-standing protections for purchasers of land:

• A purchaser of land should be entitled to an order of specific performance to force transfer of the land if the owner backs out of the deal, and
• The purchaser should be able to register a caveat in the Land Titles Office to protect the purchaser's contract to buy the land.

Recent decisions of the Supreme Court of Canada and the Alberta Court of Appeal have held that these protections are available only if the land is unique in the sense that no substitute is available for it. This renders it almost impossible to obtain an order of specific performance since damages will be considered an adequate substitute. Without the ability to obtain specific performance, a purchaser no longer has an interest in land sufficient to file a caveat, leaving the purchaser vulnerable to subsequently registered competing interests.

After public consultation, ALRI determined that the previous law should be restored. Therefore, ALRI recommends that legislation be enacted to provide that any land which is the subject of a contract for sale and purchase is conclusively deemed to be unique at all material times. This will enable the purchaser to obtain an order of specific performance, if needed. It will also restore the purchaser's ability to file a caveat. ALRI also recommends that the phrase "contract for the sale and purchase of land" be broadly defined in the legislation to include all the different forms such a contract can take, including an agreement to grant a lease.

The Creation of Wills

• A court should be able to validate a will if a person makes a reasonable but imperfect attempt to meet the requirements for creating a will.
• The age of testamentary capacity should remain at 18 years, subject to the current statutory exceptions allowing a minor to make a will if the minor is married, partnered, a parent or serving in the Canadian Forces. In addition, a court should be able to validate a will for any minor who applies for approval of the terms of a specific will.
• A court should not be able to create a will for a person who has lost their mental capacity to make or change a will.
• There should continue to be special rules for military wills.
• A will must still be signed at its end or foot, subject to the current statutory saving provision.
• Where an inheritance is lost because the beneficiary was also a witness to the will, a court should be able to validate the gift if there was no improper or undue influence on the will-maker.

Criminal Jury Trials: Challenge for Cause Procedures, Report on Consultation Memorandum 12.20

The report on Consultation Memorandum No. 12.20 concerning Criminal Jury Trials: Challenge for Cause Procedures suggests that a consistent process be followed when a trial participant exercises the statutory right to challenge one or more prospective jurors for cause.

In particular, the report proposes that:

- Notices of intention to challenge and opposition to a challenge be given in timely manner,

- Challenge materials be as complete and informative as possible,and

- The roles of the trial judge, counsel and panel of triers be clearly defined.

The report is the fourth in a series of interim publications on criminal procedures. It is anticipated that a consolidated final report containing all proposals in respect of criminal procedural rules will be published at the conclusion of the consultation effort.

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