News

Residential Real Estate: Top-5 Legal Tips for a Seller

April 22, 2024

Witten by Sherry D. Simons

Spring is in the air and the real estate market is hot! If now is the time to sell your house, here are the top-5 things you should know.

1. Find a good real estate team. A good realtor is worth their weight in gold. They will not only help you assess the right time to list, but they will also find stats to help you decide a competitive listing price, and take care of photos and showings. Your realtor is also in charge of your sales agreement, so find one who has experience and knows what they are doing. You will also need a lawyer when you’re selling your house. Your lawyer will prepare the transfer of land, receive your sale funds, pay out and discharge any existing mortgage, and send you the net sale proceeds. Be prepared to meet with your lawyer approximately 4-5 days prior to your closing date to sign your sale paperwork.
   
   
2. Real property report (“RPR”) and compliance. Usually, you need to provide your buyer with proof of compliance or credit for title insurance (more about that later). If you have a previous RPR and compliance certificate from when you bought the property, find it. This can be relied upon as long as no additions of permanent structures have been made to your property (e.g. decks, fences, permanent sheds etc.). Removal of structures from your property will not affect the validity of an RPR. Look at your old RPR to assess if you need a new one or if you don’t have one, get your land surveyed as soon as you can and apply for a compliance review. Unexpected compliance issues after you have accepted an offer can cause a headache and lead to delays and increased costs.
   
   
3. Title insurance. Sellers sometimes offer a credit to a buyer for the cost of a title insurance policy instead of providing a RPR and compliance certificate. The cost of a title insurance policy will depend on the sale price of the property, and generally ranges from $200 - $300. Title insurance will help the buyer recover costs if they encounter an issue with the title that was unknown when they bought the property, such as a lack of a permit or encroachment of structures onto right of way areas.
   
   
4. Closing and key release. Be organized and prepared to move out by noon on your closing date. Your property must be left in the same condition as when you accept an offer and all attached goods, such as appliances, must be in good working condition. On your closing date, your lawyer will let your realtor know once sale funds have been received. Once sale funds are received, your realtor will release the house keys to the buyer or their realtor.
   
   
5. Delays happen. Be prepared for delays. Sometimes lenders cannot fund on time, and a buyer may be late with their payment. Don’t cancel your property insurance until your buyer has fully paid for the property.

Learn more information about Witten's Real Estate practice and our exceptional team on our website.

The Supreme Court’s Role in Upholding Indigenous Rights: Insights from Shot Both Sides v. Canada

April 18, 2024

Written by Keltie Lambert and Justine Mageau

In its unanimous decision in Shot Both Sides v Canada, 2024 SCC 12, the Supreme Court of Canada declared that Canada breached Treaty No. 7 by shortchanging the Blood Tribe’s reserve entitlement by 162.5 square miles compared to what was promised in Treaty No. 7.

Today’s decision is significant because it describes how limitation periods may affect claims against the Crown for breach of treaty promises. The Court concluded limitation periods may prevent claims for damages, but they may not prevent claims for declaratory relief.

Reaffirmation of the Court’s power to make declarations of Indigenous Rights and to acknowledge harms committed by the Crown provides a strong foundation for reconciliation on a Nation-to-Nation basis through negotiations.

Background

The Blood Tribe First Nation, as a party to Treaty No. 7, was entitled to have the size of its reserve determined by a formula set out in the Treaty (the “TLE Formula”), based on the size and number of families in the Nation at that time. In 1971, the Blood Tribe gathered enough historical data to confirm that the actual boundaries of the reserve did not match those owed under the TLE Formula. The Blood Tribe attempted to negotiate with the Crown but was unsuccessful, leading it to start a lawsuit against the Crown in Federal Court in 1980. The Blood Tribe’s claim alleged breach of the Crown’s fiduciary duty, fraudulent concealment, and negligence, seeking declaratory relief and damages for breach of contract flowing from the Crown’s failure to follow its obligations under Treaty No. 7 in relation to the TLE Formula (the “TLE Claim”).

At trial, the judge dismissed all the claims except for the TLE Claim, finding that they were statute-barred by Alberta’s Limitations Act, meaning the lawsuits were started too long after the breaches occurred. The trial judge allowed the TLE Claim, finding that the adoption of the s. 35 of the Constitution Act in 1982 created a new cause of action for treaty breaches, and allowed the TLE Claim. On appeal, the Federal Court of Appeal found the TLE claim was also started too late, since s. 35 did not create new treaty rights.

The Supreme Court’s Decision

The Supreme Court agreed with the Federal Court of Appeal that s. 35 did not create a new cause of action for breach of treaty and found the TLE Claim was statute-barred because the lawsuit was started too late. However, the Court found that it could still exercise its discretion to grant declarations given the longevity and magnitude of the Crown’s dishonourable conduct. The power of declarations is that they can promote reconciliation and help to restore the Nation-to-Nation relationship between the Blood Tribe and the Crown.

In reaching this conclusion, the Court described treaties between the Crown and Indigenous peoples as “sacred”, “integral”, and “fundamental to Canada’s history and constitutional landscape”, noting that the Crown is assumed to have intended to honour the promises and obligations in these treaties “so long as the sun rises and the river flows.” As a result, treaties created active and binding obligations on the Crown which were enforceable beginning on the date they were signed.

The Court confirmed s. 35 did not create treaty rights. Treaty rights are founded in the treaties themselves. S. 35 provides existing treaty rights with constitutional protection and bolsters the Crown’s obligation to uphold these rights.

Since the Court found the TLE Claim was started after the limitation period expired, the Court could not order damages, which is prohibited by limitations legislation. However, the legislature cannot prevent Courts from issuing declarations on the constitutionality of the Crown’s conduct. Declaratory relief can be issued at a court’s discretion, as long as the dispute before the court is real and there is some practical benefit to making a declaration.

In the context of treaty rights, declaratory relief promotes reconciliation by providing a clear statement of the legal rights of Indigenous people, the Crown’s duties, and the Crown’s conduct in relation to its sacred treaty promises. When the Crown has infringed on Indigenous people’s rights, a clear and authoritative statement of the wrongs suffered can help to guide reconciliation and uphold the honour of the Crown.

In the case of the TLE Claim, Canada clearly breached its treaty promises to the Blood Tribe, conduct which the Court described as “deplorable” and inconsistent with reconciliation, which is “the fundamental objective of the modern law of treaty rights.” The Court called the Crown’s breach of its commitments under Treaty No. 7 a failure to uphold and appreciate the sacred nature of its promises. It determined that a formal declaration of the Crown’s failure, as a demonstration of past dishonourable conduct, could guide the parties towards the constitutional imperative of reconciliation by providing clarity on the extent and seriousness of Canada’s breach of its obligations.

Conclusion

This case is a powerful statement on the importance of Canada’s treaty relationship and its continuing obligations to First Nations. It is another acknowledgement from the Supreme Court that treaty rights have existed since long before the Constitution Act, 1982 and that s. 35 protects and affirms these existing rights by enshrining them in the Constitution.

By ensuring Courts are empowered to issue declaratory relief regarding the Crown’s historic and ongoing conduct, the Supreme Court is signaling that Indigenous claims should not go without remedy. Further, we see that the Court is prepared to do its part in guiding the Crown to pursue reconciliation on the basis of Nation-to-Nation negotiations.

Learn more information about our Indigenous Law practice and our exceptional team on our website.

Ronald A. Sorokin honoured as King's Counsel

April 15, 2024

We are pleased to share that Witten partner Ronald Sorokin has been appointed King’s Counsel. This prestigious designation is awarded to lawyers who have made outstanding contributions to both the legal profession and their communities, recognizing exceptional leadership and service. Please join us in congratulating Ron on this well-deserved honour. 

Federal Court Calls for Consultation with Métis Settlements in Métis Nation Self-Government Deal

April 11, 2024

Written by Keltie Lambert and Justine Mageau

As the only land-based Métis community in the country, the eight Métis Settlements of Alberta are unique in Canada. Comprised of approximately 1.3 million acres of land and approximately 5,000 Métis people, the Métis Settlements have long exercised their inherent Métis self-government rights over their land and membership.

What happens when a separate body, the Métis Nation of Alberta (MNA), enters into an agreement with Canada recognizing the MNA as the exclusive Métis government in Alberta, without the Métis Settlements having been consulted on such an agreement? The agreement is effectively gutted and returned to Canada for reconsideration.

Our firm had the privilege of representing one of the applicants, the Métis Settlements General Council (MSGC), in this impactful case. The full decision of Justice Sébastien Grammond of the Federal Court can be accessed here. This case serves as an affirmation of what the Métis Settlements have been saying for nearly 100 years: that it represents its members and its vibrant Métis communities for all purposes, now and into the future.

The MNA/Canada Agreement

In the 2016 case of Daniels v Canada (Indian Affairs and Northern Development), the Supreme Court declared that the Métis are included within Canada’s jurisdiction over “Indians, and Lands reserved for the Indians” in section 91(24) of the Constitution Act, 1982. In the wake of that decision, Canada began negotiating with certain Métis organizations respecting the recognition of Métis rights under federal jurisdiction, including rights to self-government.

The MSGC has been in negotiations with Canada since 2016, which led to a series of agreements in which Canada recognized MSGC’s unique status as a Métis government and aimed at developing a “government to government relationship” between MSGC and Canada.

Separately from MSGC, Canada and the MNA also negotiated self-government rights and on February 24, 2023, entered into a Métis Nation Within Alberta Self-Government Recognition and Implementation Agreement. Of particular concern to MSGC in this agreement was the novel definition of “Métis Nation within Alberta” which expanded beyond Métis individuals who chose to register with the MNA to also include individuals entitled to be registered and all Métis communities within the Province of Alberta.

Canada Breached its Duty to Consult and Accommodate MSGC

MSGC argued that the definition of “Métis Nation within Alberta” in the MNA Agreement was overbroad as it included many Settlement members and the Settlements without their consent. Further, given the legal and political implications of Canada’s exclusive recognition of the MNA in the Agreement, Canada owed a duty to consult with MSGC about the potential impacts of MNA Agreement on MSGC’s self-government rights, which Canada failed to do.

Justice Grammond concluded that by signing the MNA Agreement, Canada granted the MNA a “monopoly” over Métis rights, which deprived MSGC of the most promising avenue towards reconciliation, which is negotiating with Canada.

Conclusion

We are pleased that the Federal Court has recognized that Canada owed MSGC a duty to consult on the MNA Agreement. As the MSGC has explained on their website, the intention in challenging the MNA Agreement was to defend the rights and interests of Métis Settlement members and MSGC’s established rights to govern itself and speak on its own behalf, which now includes working with Canada and the MNA to determine the best way forward from this decision.

Learn more information about our Indigenous Law practice and our exceptional team on our website.

Confirming the Status Quo: How an Alberta Court of Appeal Decision Preserved the Existing Legislated Priority Schemes and the Commercial Certainty They Provide

April 9, 2024

Written by Coralie Mohr and Bren Cargill

In a recent Alberta Court of Appeal decision, Qualex-Landmark Towers Inc v 12-10 Capital Corp, 2024 ABCA 115, the court examined the legal question of priority entitlements and whether the reasoning in Orphan Well Association v Grant Thornton Ltd, 2019 SCC 5 (Redwater) extends to a private dispute between neighbouring landowners outside formal insolvency proceedings. The chambers judge ruled that environmental remediation obligations could potentially take precedence over secured creditors in certain circumstances. That ruling could have disrupted established priority schemes under the Land Titles Act and Personal Property Securities Act if it had been upheld, potentially reshaping both environmental law and secured lending. Read on to understand the details of this case and its far-reaching implications.

The appeal centered on whether the chambers judge erred in allowing Qualex to amend its statement of claim to add 12-10 Capital’s secured mortgage lenders as defendants and whether there was a reasonable likelihood “the appellate direction in Redwater” would be applied to a private litigant with the result that the private litigant would enjoy a super priority over the mortgagees. Qualex sought a declaration that any judgment for damages and what it defined as the “Defendants’ Remediation Obligations” be paid using the money from the proceeds of any sale of the 12-10 Capital Lands in priority of all creditors, debts or obligations, including secured creditors and registered mortgagees.

The Court of Appeal confirmed that the priority declaration Qualex sought is unsupported by any statutory or existing court authority. Current legislation underpins millions of mortgage loans in Canada and provides certainty for both lenders and borrowers.

As a result, the Court of Appeal held the amended claim against 12-10 Capital’s secured mortgage lenders to be “hopeless” and stated that the amendment application should have been dismissed.

The ruling in Redwater gave the Alberta Energy Regulator a “super priority” over secured creditors in a formal bankruptcy proceeding but did not create a common law priority entitlement untethered from the applicable legislation and its objectives. The court stated that there is no statutory authority that supports Qualex obtaining any elevated priority. Even if it was, the Redwater application of the Abitibi test would not assist Qualex; as a private litigant, it is not statutorily authorized to enforce 12-10 Capital’s public duties and thereby obtain priority over secured creditors.

Upon obtaining a judgment against 12-10 Capital, Qualex is entitled to a writ of enforcement under the Civil Enforcement Act. Once registered, the writ secures a right to payment from potential sale proceeds. The legislature restricted the availability of a limited priority charge for environmental remediation costs incurred by the regulator under the Environmental Protection and Enhancement Act, RSA 2000, c E-12 (EPEA) to the government, making clear that the priority scheme under the Land Titles Act must otherwise prevail.

The Court of Appeal emphasized that a private litigant, acting in its own interests, is under no obligation to act for the benefit of others. Private litigation is not equivalent to regulation in the public interest. Disrupting legislated priority schemes and the commercial certainty they provide by granting common law “super priorities” to private litigants for environmental remediation claims brings no assurance that money recovered will be used other than to serve the litigant’s interests.

The court concluded that if a change in the law regarding priority entitlements is required to achieve environmental policy objectives in this context, that change must be addressed by the legislature and/or parliament within their respective spheres of constitutional authority. Unless and until such a change is made, a “super priority” claim like the one Qualex seeks cannot succeed.

This much anticipated decision by the Alberta Court of Appeal provides commercial certainty for both lenders and borrowers that the decision of the chambers judge had previously upset. Witten lawyers Coralie Mohr and Bren Cargill represented one of the appellants and worked together with all appellants’ counsel to obtain a successful result.

For more information on Witten’s Debt Recovery and Realization practice and our exceptional team, please visit our website.

Expropriation and Ownership: How a Franchisor Became an Owner

March 28, 2024

Written by Susan Clapp and Ellery Lew

In a recent case (Edmonton (City) v AW Holdings Corp, 2024 ABCA 92), the Alberta Court of Appeal confirmed a decision by the Land and Property Rights Tribunal. The Tribunal found that the franchisor was an owner of land that was to be expropriated. This gave the franchisor the right to seek compensation for its losses due to the expropriation. The Tribunal relied on the terms of the franchise agreement to make the connection between the franchisor and the land despite the fact that the franchisor was not a party to the lease and the business was run by its franchisee.

The Alberta Court of Appeal confirmed that decision.

The key point was that the franchisor had a sufficient control over the land because of its contracts with the franchisee. This control was enough to tip the balance in its favor. This provides franchisors with another reason to take care in drafting its franchise agreements.

Learn more information about our Litigation practice and our exceptional team on our website.

Canadian Law Awards 2024: Witten LLP honoured as an Excellence Awardee

We are delighted to share that we have been shortlisted as an Excellence Awardee at this year's Canadian Law Awards in the category of Regional Law Firm of the Year - Western Canada. This nomination is a significant acknowledgment of our work. We extend our congratulations to all other finalists!

James B. Edgar joins Witten LLP

March 25, 2024

We are delighted to announce that James B. Edgar has become a part of Witten’s Corporate/Commercial Department. James brings with him a wealth of experience in representing a diverse clientele, including financial institutions, land developers, individuals, First Nations, condominium corporations and businesses of all sizes. His expertise lies in handling real estate and business acquisitions or dispositions, land development and other transactions.

Please join us in extending a warm welcome to James!

Tenant Beware: Navigating Potential Tax Liabilities with Non-Resident Landlords

March 21, 2024

Written by Emma-Lee Kramer, Becky Ma and Sharon Ohayon

In a recent Tax Court of Canada decision (3792391 Canada Inc. v The King, 2023 TCC 37), the Court determined that both residential and commercial tenants may be liable for unexpected tax obligations if their landlord is a non-resident of Canada. In this decision, a tenant was held liable for failure to withhold taxes on rental payments made to its non-resident landlord, despite the taxpayer having no knowledge that its landlord was factually a non-resident for Canadian tax purposes.

This decision highlights the importance for residential and commercial tenants alike to conduct their own due diligence with respect to their landlord's residency status and ensure there are protections in their lease to avoid being liable for an unexpected tax bill.

Tenants may want to take the following steps to protect themselves from these potential tax liabilities:

• Do not rely solely on verbal statements from a landlord with respect to their residency status. Ask for evidence from the landlord that it is a Canadian resident for tax purposes. If the landlord is a corporate entity, conduct a corporate search. This due diligence is required throughout the term of the lease, as a landlord’s residency status can change during the term.
• Ensure your lease contains protective covenants and representations from your landlord relating to tax treatment, landlord residency, and notification of residency changes.
• Negotiate indemnity clauses in the lease to shield against potential tax liabilities and penalties.

This decision should serve as a wake-up call for all tenants and highlights the importance of understanding and mitigating tax risks in both residential and commercial lease agreements.

Should you require assistance with lease negotiations or have concerns about your tax obligations, please do not hesitate to reach out. Our Leasing Team is here to assist you.

Clicking into the Future: The End of Edmonton’s Occupancy Permit Stickers

March 19, 2024

Written by Landon Haynes and Sharon Ohayon

Effective March 25, 2024, Edmonton's approach to commercial property occupancy permits will undergo a significant change, eliminating the use of white occupancy stickers for all construction. This update is important for businesses and property developers to understand, as it impacts the way properties are officially deemed ready for occupation and may also affect how developers describe proof of occupancy in purchase agreements, leases, or other agreements.

Here’s what you need to know about these changes and how they may affect you:

• Shift from Physical Stickers to Digital Permits: Previously, a white occupancy sticker placed on site indicated that a property was ready for occupation. As of March 25, 2024, the City will issue an Occupancy Permit via email after all mandatory inspections are successfully completed for commercial properties as well. This permit is the new confirmation that you are allowed to occupy the property.
• Applicability Across Various Building Types: The change affects several types of constructions, including stacked row houses, multi-unit residential, commercial, industrial, institutional, and mixed-use projects. Note that similar modifications for low-density residential construction were previously implemented in 2022.
• Accessibility of the New Commercial Occupancy Permit: The new permit serves as the official record. Authorized parties, such as lessees, tenants, or new owners, can easily obtain copies of the permit in the documents section of the relevant job on selfserve.edmonton.ca.
• Improved Scheduling for Final Building Inspection: Permit holders can now request a final building inspection independently of other final inspections. This change is designed to improve scheduling opportunities and reduce wait times, streamlining the process further.

For more information, read the City’s newsletter respecting Commercial Occupancy Permit Changes here.

Do not hesitate to reach out to Witten LLP’s commercial Real Estate Financing and Real Estate Transactions teams for personalized advice on how you can the most of the improved efficiencies the City of Edmonton will offer for occupancy permitting.

Re-Z(owned): A Lesson In Municipal Bylaw Authority

March 14, 2024

Written by Leigh Acheson, Sharon Ohayon and Brendon Shabani

The Alberta Court of Appeal (Howse v Calgary (City), 2023 ABCA 379) has recently upheld a decision granting the removal of a restrictive covenant on several parcels in the Banff Trail neighborhood in Calgary paving the way for construction of multi-use buildings and row housing. The case highlights private contractual rights and development visions found in restrictive covenants are important but are not absolute and may be subject to challenge when in opposition to broader policy objectives, such as answering the growing demand for housing in Canadian cities.

In pursuit of densification efforts, the City of Calgary identified the established neighborhood of single and two-family dwellings (Banff Trail) as an opportune location to introduce updated statutory plans and land use bylaws allowing for a greater number of land uses within the neighborhood and a greater number of homes for the City’s residents. These efforts were hampered by the restrictive covenant which, among other things, limited development within the community to single and two-family dwelling houses.

Following a lengthy planning and consultation process with the public, the City passed various land use bylaws for portions of the neighborhood requiring a minimum density in excess of the maximum density set out in the restrictive covenant. As a result, a complete conflict was created between the municipality’s bylaws and the local neighbourhood’s restrictive covenant.

Several developers owned parcels of land within the neighborhood and sought to have the restrictive covenant removed from their lands so they could proceed with development pursuant to the land use bylaws; the developers argued that failure to remove the restrictive covenant would sterilize use of their lands because it was impossible to develop in a manner that would comply with both the restrictive covenant and the land use bylaws.  Various landowners in the area, who benefitted from the enforcement of the restrictive covenant, objected to the developers’ attempts to remove the restrictive covenant and a series of actions arose where local residents sought to enforce the rights secured by the restrictive covenant.

At issue was whether the City acted within their authority in passing land use bylaws they knew were at odds with the restrictive covenant and whether the restrictive covenant should be removed from title to the various developer owned parcels.

The Court of Appeal upheld the Court of King’s Bench decision granting the removal of the restrictive covenant over the various developer owned parcels, finding the City acted within their authority in passing the land use bylaws and the removal of the restrictive covenant met the requirements of Section 48(4) of the Land Titles Act (Alberta). In other words, the City’s authority to manage the direction of development within the municipal limits was not blocked by the community’s restrictive covenant.

Does this mean all restrictive covenants are in danger of falling to the first challenge? No – so don’t go putting that rooftop café on your home just yet. But it does mean that when public policy goals, such as providing an answer to the rising demand for Canadian housing is at the forefront of a City’s agenda, that the shield of a restrictive covenant may not protect established communities from having to grow and evolve with the rest of the City.

If you have any questions about restrictive covenants, changing bylaws, or their potential impacts on land use or development, please contact our Real Estate Team.

Jurisdiction, Defamation and Justice: Insights from Durand v Higgins

Written by Ellery C. Lew

March 7, 2024

In a world where social media has become a powerful platform for expression, it also poses significant legal challenges. In the recent decision, Durand v Higgins, 2024 ABKB 108, the Alberta Court of King’s Bench decided in favour of the plaintiff, a Quebec-based musician. The defendant, a California resident, specifically created an Instagram account to repost allegations of serious sexual impropriety against the plaintiff, leading to a defamation lawsuit. Our firm had the privilege of representing the plaintiff in this compelling case. This case serves as a stark reminder of the potential consequences of online defamation and the importance of jurisdiction in such cases.

A Question of Jurisdiction

The case was heard in Alberta, despite the plaintiff hailing from Quebec and the defendant residing in California. This raised an intriguing question of jurisdiction. The Alberta Court of King’s Bench ruled that defamation through social media is deemed to occur where the defamatory statements are read. The plaintiff was able to establish that a concert was cancelled in Alberta following a review of the posts, thus affirming Alberta’s jurisdiction over the case.

Summary Judgment and Defamation

The court granted summary judgment to the plaintiff, who presented compelling evidence refuting the allegations of serious sexual impropriety. The defendant, found liable for reposting these allegations, had no firsthand knowledge of the events and failed to verify the truth of the statements before sharing them on social media. The court confirmed that the party that reposts defamatory statements is just as liable as the original poster, unless it is clear that the statement is not adopted by the re-poster. This ruling sends a clear message about the risks of reposting defamatory material on social media and underscores the importance of due diligence before sharing such serious allegations.

Damages

The court ordered the defendant to pay defamation damages aggregating $1,500,000. This included damages for actual loss of income in the amount of $1 million, general damages in the amount of $350,000, and aggravated damages of $150,000. The court found that the defendant’s campaign of defamation became high-handed, spiteful, or malicious when she ignored obvious information to the contrary.

This case serves as a stark reminder of the potential consequences of online defamation and the importance of jurisdiction in such cases. It is a significant victory for our client and a noteworthy development in the evolving landscape of internet law.

Learn more information about our Litigation practice and our exceptional team on our website.

Screenshot courtesy of the Court of King’s Bench of Alberta’s X account (@KingsBench_AB).

Celebrating 30 Years of Legal Service: Honouring Gillian Clarke

March 6, 2024

This week, we are celebrating Witten partner Gillian Clarke for her remarkable 30-year service in the legal profession, an achievement recognized by the Law Society of Alberta. This significant milestone underscores Gillian's commitment to her personal injury practice, her dedication to her clients and her invaluable contributions to our firm. Please join us in congratulating Gillian on this achievement. Here’s to many more years of excellence and success!

6 Witten Lawyers Named Leading Practitioners in 2024 Canadian Lexpert® Directory

March 5, 2024

We are pleased to announce that six of our lawyers have been recognized as Leading Practitioners in the 2024 Canadian Legal Lexpert® Directory. This recognition speaks volumes about their dedication to their clients and their practice. Please join us in congratulating our team:

• Cathy Farnell, recognized for Property Development
• Keltie Lambert, recognized for Aboriginal Law
• Ellery Lew, recognized for Franchise Law
• L.S. Tony Manadamin, IPC, recognized for Aboriginal Law
• Howard Sniderman, KC, recognized for Property Leasing
• Ronald Sorokin, recognized for Property Development and Property Leasing

Inclusion in Lexpert’s directory is based on an extensive research and peer survey process. The directory includes profiles of leading practitioners across Canada, who are acknowledged as leaders in their respective fields, lawyers prominent in their practice areas and professional organizations, and lawyers otherwise enjoying significant recognition from their colleagues.

Sharon Ohayon a Lawyer to Watch in 2024 Canadian Legal Lexpert® Directory

March 5, 2024

We are proud to announce that Witten partner Sharon Ohayon has been recognized as a Lawyer to Watch in the area of Property Leasing in the 2024 Canadian Legal Lexpert® Directory. This recognition is a testament to Sharon’s commitment to her clients and her practice. Sharon was a finalist in last year’s “Lexpert Rising Stars: Leading Lawyers Under 40” Awards program.

Please join us in congratulating Sharon on this significant achievement.

Land Titles Fees Increase: Brace Yourselves for the new Levy

Written by Landon Haynes and Sharon Ohayon

March 1, 2024

The Alberta government has just unveiled its 2024-2027 Fiscal Plan, and while the main features are focused on health care, education and other social supports, there is a nugget of change that will impact all upcoming real estate transactions in Alberta: the Land Titles Registration Levy.

As of the announcement, Alberta stands out among the provinces with a modest base fee of $50 for registration of property transfers and mortgages plus variable charges of $2.00 per $5,000 of property value for transfers and $1.50 per $5,000 of mortgage value for mortgages.

Budget 2024 introduces a new Land Titles Registration Levy, set at $5.00 per $5,000 of value for property transfers and mortgage registrations.

Now, let's put this into perspective with some real numbers. Imagine you’re purchasing a new $600K home and financing it with a $480K mortgage. Under the old regime, you'd be looking at a levy of $434.00. With the new Land Titles Registration Levy, the Land Titles registration fees increased to $1,130.00, an extra $696.00.

Or, if you have a bit more money to spend, say you are buying a $10,000,000.00 apartment complex, and financing it with a commercial loan of $6,000,000.00. The old Land Titles registration fees would be $5,850.00 and the new fees will be $16,050.00.

While the increase in costs will take some adjustment for Albertans, Alberta still maintains its reputation for offering some of the lowest charges among comparator provinces. In addition, the Government of Alberta anticipates that the Land Titles Registration Levy will add an additional revenue stream of $45 million in 2024-25 and $91 million in 2025-26.

Legislation implementing these changes is expected in spring 2024.

Whether you're a seasoned investor or a first-time homebuyer, navigating the intricacies of property transactions can be daunting. The real estate team at Witten LLP is here to guide you every step of the way. Keep us in mind for your next real estate project and learn more about our practice and our exceptional team on our website.

Do I need a Lawyer to make a Will? Sherry Simons writes in LawNow

February 22, 2024

Do you need a lawyer to make a will? In her latest publication for LawNow, Witten lawyer Sherry Simons explores this question in depth. Sherry uncovers the unique insights that lawyers bring to the table, insights that may not be readily apparent to those in need of a will. She discusses how engaging a lawyer can help clients maximize their options and legal protections. Moreover, she highlights the unexpected yet essential role of a lawyer’s creativity in the process of drafting a will. Curious to know more? Read Sherry’s full article on LawNow's website. 

Discover more about Witten’s Wills, Estates, and Estate Planning practice and our exceptional team on our website.

Interest on Residential Tenancy Security Deposits Reawakens from 14-Year Nap

Written by Landon Haynes, Emma-Lee Kramer and Sharon Ohayon

January 24, 2024

2024 marks the first time in 14 years that landlords are obliged to pay interest to their tenants on their security deposits. Under the Residential Tenancies Act, Landlords are required to pay interest on the tenant’s security deposit calculated at the prescribed rate. The prescribed interest rate is determined by subtracting 3.00% from ATB Financial’s interest rate for its cashable one-year Guaranteed Investment Certificates (GICs) as of November 1st of the previous year.

For years, the prescribed rate ended up being 0%, however in 2024, ATB Financial’s interest rate for its cashable one-year GICs as of November 1st of the previous year is 4.6%, and landlords are now required to pay tenants 1.6% annual interest on their security deposits. Landlords are permitted to retain any extra interest earned beyond the 1.6%, but they must pay the interest owed at the end of each tenancy year, unless both parties agree in writing to a different arrangement, in which case the interest must be compounded annually.

Security deposits serve as a safety net for landlords in case of property damage or rent arrears, with the amount capped at one month's rent. Given the 14-year hiatus, it is important for landlords and tenants to make sure they understand their rights and obligations.

If you have any questions about your legal obligations regarding security deposits and interest, whether you are a landlord or a tenant, please contact our Leasing Team.

Andrea Luft and Andrea Steen Admitted to Partnership at Witten LLP

January 1, 2024

We are very pleased to announce that Andrea Luft and
Andrea Steen have joined the partnership at Witten LLP, effective January 1, 2024.

Andrea Luft joined Witten’s Commercial Litigation team in 2018, after spending the first years of her career at another regional law firm. Andrea Steen, a lawyer with Witten’s Debt Recovery & Realization team, has been with the firm since her articles.

Join us in celebrating the achievements of these talented lawyers at Witten. We look forward to following their journey of continued growth and success!

Celebrating Audrey Wakeling, KC: A Look Back at a Remarkable Career

December 12, 2023

At the end of this month, we will bid farewell to our esteemed colleague, Audrey Wakeling, KC. A solicitor focusing on corporate and business structures, reorganization and succession matters, and estate planning, Audrey’s career spans more than four decades and has been marked by excellence and leadership: Audrey graduated from the University of Saskatchewan as a gold medalist in 1975. Her expertise has been recognized nationwide, including Audrey’s book “Corroboration in Canadian Law” cited by the Supreme Court of Canada and her name appearing repeatedly on the ‘Best Lawyers in Canada’ list.

Beyond her professional achievements, Audrey has been a trailblazer for women in law and specifically for our firm, balancing family and work in an era when it was uncommon. Her drafting skills are unparalleled, and she has been a guiding light for many of us at Witten.

Outside of work, Audrey is a fitness enthusiast, a world traveler, an avid reader, and a loving grandmother. As she embarks on this new journey of retirement, we celebrate her remarkable career and the legacy she leaves behind. Thank you, Audrey, for your invaluable contributions. You will be greatly missed, but we are very happy to see how excited you are for the next phase of your life.

Ellery Lew Recognized in Lexpert® Special Edition: Litigation 2023

November 23, 2023

We are thrilled to announce that Witten partner Ellery Lew has been recognized in the prestigious Lexpert Special Edition: Litigation 2023. This recognition is a testament to Ellery’s unwavering commitment to his civil litigation practice, with a focus on franchise law, licensing, intellectual property, fraud claims and construction disputes. His relentless dedication to his clients and his exceptional expertise have earned him this well-deserved accolade.

Please join us in congratulating Ellery on this remarkable achievement! 

Witten LLP Celebrates Receiving the Prestigious WILL Law Firm Award at Women In Law Leadership Gala

November 24, 2023

Several members of our firm had the pleasure of attending the Women in Law Leadership gala last night, where we had a fantastic time celebrating with our team and all attendees. We were deeply honoured to receive the prestigious WILL Law Firm Award, reflecting our continuous efforts to uplift women in law within our firm and the wider legal community.

One of the highlights of the evening was sharing the spotlight with the Honourable Judge Mary T. Moreau of the Supreme Court of Canada (SCC), who was the deserving recipient of the Lifetime Achievement Award. This award is a recognition of her remarkable contributions to the field of law over her illustrious career.

We extend our heartfelt thanks to the organizers for hosting such a wonderful event. Congratulations to all the award recipients - your achievements continue to inspire us and underscore the importance of our mission.

Ronald A. Sorokin re-elected as a Bencher of the Law Society of Alberta

November 22, 2023

We are thrilled to share that Witten partner Ronald Sorokin has been re-elected as a Bencher of the Law Society of Alberta. His upcoming term, set to commence in February 2024, will continue for three years. This re-election stands as a testament to Ron’s steadfast dedication and commitment to the legal profession, and the remarkable work he has already accomplished as a Bencher. As a firm, we are incredibly proud of his accomplishment and look forward to his continued contributions in this role.

Please join us in extending congratulations to Ron and all the newly elected and re-elected Benchers!

Witten Named One of Canada's Best Law Firms for Aboriginal Law and/or Indigenous Law

November 16, 2023

We’re thrilled to announce that Witten has been named one of Canada’s Best Law Firms for Aboriginal Law and/or Indigenous Law by the The Globe and Mail. This honour is a testament to the dedication and expertise of our team. We are deeply grateful to the communities and people we have the honour of serving and for this recognition from our peers.
 
Discover more about our Indigenous Law practice and get to know the exceptional team behind this achievement: Indigenous Law at Witten LLP.

Roger Smith receives ICD.D Designation

October 11, 2023

We are proud to announce that Witten partner Roger Smith has received his ICD.D designation from the Institute of Corporate Directors and the University of Toronto - Rotman School of Management, in collaboration with the Alberta School of Business, University of Alberta.

Congratulations to Roger and to all other of the 16th Edmonton DEP Graduates! 

Witten LLP Honoured with Prestigious 2023 WILL Law Firm Award by Women in Law Leadership

October 2, 2023

We are delighted to share that Witten has been selected as this year’s winner of the prestigious WILL Law Firm Award by Women in Law Leadership. This award recognizes our firm’s culture and commitment to advancing and promoting women lawyers in the legal profession and the community.

The WILL Law Firm Award is given annually to a law firm operating in Alberta that best fosters the inclusion of women lawyers, demonstrates an intention to support their career development, and engages with women in legal and business communities. We are honoured and grateful that Women in Law Leadership has chosen our firm for this distinguished award.

We are also very proud that our partner Ada Tang is a finalist in the category of Tomorrow’s Leader. Ada is an exceptional lawyer and a role model for many. Congratulations, Ada!

We would like to thank Women in Law Leadership and everyone who has supported us in this recognition. We look forward to celebrating this achievement at the awards dinner on November 23rd, 2023. 

Navigating Commercial Lease Agreements: The Effect of Relocation Clauses on Commercial Tenants

Written by Susan Clapp, Cathy Farnell, David Hiebert, KC,
Sharon Ohayon and Ron Sorokin

September 18, 2023

An Edmonton business owner with a store in West Edmonton Mall recently called for more protection of small businesses and clearer rules when it comes to commercial lease agreements and tenant relocation clauses, according to an article published by CBC. In the article, the owner speaks about how she received notice to move her store to make room for a larger retailer and her frustration with having a clause in her lease that provides for that possibility.

A relocation clause is a provision in a commercial lease that allows the landlord to move the tenant from the original leased premises to a different location, usually for reasons such as accommodating new tenants, renovating, or demolishing the property. A relocation clause can be a major inconvenience and disruption for a tenant, affecting their business operations, costs, and customer relationships. Therefore, a tenant should be aware of the implications of such a clause and try to negotiate some protections or limitations before signing a commercial lease.

Some possible ways that a tenant can protect their interests when dealing with a relocation clause are to attempt to negotiate some of the following terms in relation to the relocation clause before the lease is signed:

• Asking for the right to consent to a relocation, so that the landlord cannot relocate the tenant without their agreement.
• Limiting the circumstances under which the landlord can relocate the tenant, such as specifying the reasons, frequency, and timing of the relocation.
• Ensuring that the new premises are similar or better than the original premises in terms of location, size, finish, and visibility.
• Requesting that the landlord cover all or part of the costs associated with the relocation, such as moving expenses, fit-up costs, signage, and marketing.
• Having the option to terminate the lease without penalty if the tenant is not satisfied with the new premises or the relocation process.

As a relocation clause can have significant impacts on a tenant's business, it should not be taken lightly, and it is recommended for a tenant to seek legal advice before signing a commercial lease that contains a relocation clause. The Leasing team here at Witten LLP is highly experienced in these matters and would be pleased to assist tenants with their leases and negotiations with landlords.