Ellery Lew appointed as Justice of the Court of King's Bench of Alberta
December 19, 2024
It is with immense pride that we share that our very own Ellery Lew, a long-standing partner at Witten, has been appointed as a Justice of the Court of King's Bench of Alberta by The Honourable Arif Virani, Minister of Justice and Attorney General of Canada. Please find the full announcement here.
Ellery is a highly regarded member of our firm, the legal community and the wider community, and a role model to many. While we are sad to see him leave Witten, we cannot wait to see the great things he will accomplish in his new role. Please join us in extending heartfelt congratulations to Ellery!
Witten LLP named a Top Western Law Firm by Canadian Lawyer
December 4, 2024
The Canadian Lawyer Magazine has selected this year’s Top Western Law Firms, and we are proud to share that Witten is one of the ten firms honoured: The Best Law Firms in BC, Alberta, and the Northern Territories | Canadian Lawyer. This award celebrates the best full-service law firms in Western Canada, as chosen by our peers. Our firm has been highlighted for having “top legal talent, particularly in commercial real estate” and as a firm with one of the “largest Aboriginal-side law practices in Alberta,” doing “novel and cutting-edge work for Indigenous clients.” We are grateful to our clients, who we have the honour to serve, as well as to everyone who voted for and trusts our team.
Curious about what else makes Witten stand out? Visit our website to learn more about practice areas and meet the exceptional team behind this achievement: www.wittenlaw.com
Junior Achievement of Northern Alberta: James Edgar elected as Director and Legal Counsel
November 26, 2024
Please join us in congratulating Witten lawyer James Edgar for his appointment as a Director and Legal Counsel for Junior Achievement of Northern Alberta (JANorthAB). James previously served as a member of the HR and Governance Committee and will now be a member of the organization’s Board of Directors. Congratulations, James, on this well-deserved achievement!
Justine Mageau receives Top 40 Under 40 recognition
November 22, 2024
Our team had a fantastic time at the Top 40 Under 40 event at Edmonton's Winspear Centre earlier this week. It was an honour to celebrate our very own Justine Mageau, partner with our firm and co-chair of our Litigation & Dispute Resolution practice, who has been named one of Edify magazine’s Top 40 Under 40 in the Class of 2024.
Congratulations again, Justine, on this well-deserved recognition!
Witten honoured in Lexpert Special Edition: Litigation 2024 as a Leading Law Firm
November 21, 2024
We are very proud to share that Witten has been named a Leading Law Firm in Litigation in the Lexpert Special Edition: Litigation 2024. The full report is available here. Please join us in congratulating our entire Litigation & Dispute Resolution team!
To learn more about Witten’s Litigation & Dispute Resolution practice and our exceptional team, visit our website.
Ellery Lew recognized in Lexpert Special Edition: Litigation 2024
November 21, 2024
We are very pleased to share that Witten partner Ellery Lew has been recognized in the prestigious Lexpert Special Edition: Litigation 2024. You can read the full report here. Please join us in congratulating Ellery on this remarkable achievement!
Witten supports United Way Campaign
November 13, 2024
Every November for many years, our firm has proudly supported the United Way of the Alberta Capital Region campaign to raise funds for those in need. We are grateful to be able to contribute to this important initiative and support United Way’s goal to build a resilient, connected and thriving community where no one is left behind.
Witten’s staff and lawyers take great pride in organizing all kinds of fun events to help raise funds, while keeping the seriousness of the cause in mind. We believe that every contribution counts, no matter the size. If you would like to learn more about United Way and join us in supporting this worthy cause, please visit their website.
Lexology Index - Franchising 2024 recognizes Susan Clapp and Ellery Lew
November 7, 2024
Please join us in congratulating Witten partners Susan Clapp and Ellery Lew on their inclusion in the Lexology Index – Franchising 2024 report (formerly Who’s Who Legal). This annual report highlights the best franchise lawyers around the world, and we are proud that Susan and Ellery have been recognized once again.
Navigating the complexities of GST can be particularly challenging for real estate transactions, especially when it comes to the sale of properties used for short-term rentals like those listed on Airbnb. GST is imposed by the Excise Tax Act, RSC 1985, c E-15 (the “Act”). Section 165(1) of the Act imposes GST on any taxable supply made in Canada. There are various exemptions afforded to the sale of real property, but if the property is not GST exempt and there is no agreement for the buyer to remit GST, then the burden will land on the seller to collect and remit GST.
This blog post explores the recent Tax Court of Canada decision in 1351231 Ontario Inc. v. The King, which highlights the significant GST implications for sellers of properties used for short-term rentals like those listed on Airbnb. The court’s analysis determined that the sale of a condo used for short-term rentals is subject to GST, as it does not qualify for the residential complex exemption. This decision underscores the importance for property owners to carefully consider GST rules when selling properties used for short-term rentals to avoid unexpected tax liabilities. Ultimately, understanding these nuances can help sellers better prepare and potentially save significant amounts in taxes.
Recent Case Decision - 1351231 Ontario Inc. v. The King
The Tax Court of Canada (“TCC”) in its recent decision 1351231 Ontario Inc. v. The King, 2024 TCC 37 upheld the Canada Revenue Agency’s (“CRA’s”) GST/HST assessment of over $77,000.00 on the sale of a condo unit. The decision stemmed from the seller’s use of the condo for short-term rentals through the Airbnb platform prior to the sale.
The condo unit in question, located in Ottawa, Ontario, was originally purchased by the corporate owner/seller in 2008 and was rented through a series of long-term leases until February of 2017. From February 2017 until it was sold in April 2018, the seller listed the condo unit on Airbnb and leased it for a series of short-term leases. The Airbnb leases were all less than 60 days and many just one or two days in length. The issue before the Court was whether the sale of the condo unit was subject to GST.
In the first part of its analysis, the Court held that the sale of the condo unit was a supply under the Act since “supply” includes the provision of property or a service in any manner, including sale. However, being a supply does not mean it is a taxable supply. The Act defines a taxable supply as one made during commercial activity. The Court looked at the detailed definition of commercial activity and decided that since the sellers sold real property, this transaction counts as commercial activity. Therefore, the condo is a taxable supply subject to GST unless an exemption applies.
In the second part of its analysis, the Court examined various exemptions in the Act with respect to the sale of real estate. Under the Act, an exemption would apply in this case if (para 20):
the sale of the condo was the sale of a residential complex;
the Appellant was not a builder of the condo; and
the Appellant did not claim an input tax credit in respect of its acquisition of or improvements to the condo.
The sellers were not the builders, and there was no evidence that the sellers claimed any input tax credits. Therefore, the condo sale would be GST exempt if it was a sale of a residential complex.
The Court considered the definition of “residential complex” in the Act and the exclusions that disqualify properties from being residential complexes. An exclusion applies if the following criteria are satisfied (para 31):
The condo is part of a building that functions like a hotel, motel, inn, boarding house, lodging house, or similar place;
the building in which the condo is located does not fall under the specific exclusions mentioned in paragraph (c) of the definition; and
Practically all of the leases, licenses, or similar agreements for the condo were for periods of less than 60 days, or were expected to be for such short periods.
The second criterion applies only to individual owners and not corporate owners and did not apply in this case because the owner was a corporation.
The Court found that the first criterion was met. While the condo unit was on Airbnb (which was the case up until it was sold), it was provided for a fee as a short-term accommodation, it was furnished, and included heat, electricity, air conditioning, Wi-Fi, and perhaps other amenities. The Court decided that a condo unit leased this way is similar to a hotel, motel, an inn, a boarding house, or a lodging house (paras 81-82).
For the last criterion, the Court found that the condo unit had long-term leases of over 60 days for about nine years. It was only leased on Airbnb for periods less than 60 days in the final year of ownership. However, the Court emphasized that the determination is made at the time the condo unit was sold and not based on the duration of ownership (paras 90-94). When the condo unit was sold, all the leases were or were expected to be for periods less than 60 days.
Overall, the Court found that the exclusion criteria applied to this case and that the condo unit is not considered a residential complex. Because of this, an exemption does not apply, and the sale of the condo unit is a taxable supply subject to GST.
Implications
The broader implication from this decision is that using your property as a short-term rental through Airbnb, or other similar platforms, is likely to cause the sale transaction to be subject to GST. Additionally, the Real Estate Council of Alberta’s standard contract used by realtors in Alberta, as well as many other standard real estate agreements, express the purchase price as a total amount that includes any GST. Therefore, an unsuspecting seller could be agreeing to sell their property for significantly less than anticipated if they have not determined and accounted for GST.
GST rules are complicated, and the foregoing is not a comprehensive review of the real estate provisions of the Act. Our real estate lawyers are ready to assist you, including with respect to GST consideration – contact us today. Learn more about Witten’s Real Estate practice and our exceptional team on our website.
Edmonton’s class of 2024: Justine Mageau named to Top 40 Under 40
November 1, 2024
Since 2009, Edify’s November issue honours 40 young Edmontonians for their outstanding contributions to our community every year. We are immensely proud that Witten partner Justine Mageau has been selected as one of Edmonton’s Top 40 Under 40 for 2024.
You can read about why Justine stood out among the many nominations on Edify’s website here.
Please join us in congratulating Justine on this fantastic achievement and prestigious recognition. Congratulations also to all of Justine’s fellow 2024 classmates.
Witten recognized in 2025 Best Law Firms - Canada ranking
October 31, 2024
We are very proud to share that Witten has been recognized as one of the best law firms in Canada. Several of our practice areas have been ranked in the inaugural Best Law Firms – Canada awards. Please join us in congratulating the following practice groups:
National Tier 3 ⭐ Real Estate Law
Regional Tier 1 ⭐ Aboriginal Law / Indigenous Practice ⭐ Administrative and Public Law ⭐ Banking and Finance Law ⭐ Commercial Leasing Law ⭐ Corporate and Commercial Litigation ⭐ Real Estate Law
Regional Tier 2 ⭐ Construction Law ⭐ Corporate Law ⭐ Personal Injury Litigation ⭐ Public Procurement Law
A full list of Witten’s practice areas and our exceptional teams can be found on our website.
Manitoulin Expositor: Hon. Tony Mandamin, IPC, in the News
October 30, 2024
Witten counsel and retired Federal Court Judge, the Honourable L.S. Tony Mandamin, IPC, was recently honoured by Canadian Lawyer Magazine as one of Canada’s Top 25 Most Influential Lawyers for 2024 in the category of Human Rights Advocacy and Criminal Law.
Tony is an Anishinaabe and a proud member of the Wiikwemkoong Unceded Territory on Manitoulin Island, brought up with a deep-seated passion for championing Indigenous causes. The Manitoulin Expositor, the newspaper of Manitoulin Island, published an article celebrating Tony’s achievements and detailing his personal and professional journey. Read the full article about Tony’s impressive life and his inclusion in the list of Canada’s Top 25 Most Influential Lawyers here.
Witten Welcomes 2024/25 Articling Students
October 22, 2024
Please join us in extending a warm welcome to our 2024/25 articling students: Michael Bradley, Nimna Withanachchi, Olivia Brosch and Alexander Akiki. We are excited to have you as part of our team and look forward to seeing all that you will accomplish in the coming year. Welcome to Witten!
So you’ve been in a car accident: Vehicle Damage and Diminished Value Claims
Navigating the aftermath of a car accident can be challenging, especially when it comes to handling vehicle damage. In Alberta, the introduction of the Direct Compensation for Property Damage system on January 1, 2022, has changed the way these claims are processed. Under this system, if you’re not at fault, you now deal directly with your own insurance company for vehicle repairs, intended to simplify and speed up the process. Additionally, the concept of “diminished value” – the reduction in your vehicle’s market value after an accident – has been clarified by a recent court ruling, which states that such claims cannot be made against the at-fault driver under the DCPD. As a relatively new property damage regime, more judicial consideration is to be expected in the coming years.
Direct Compensation for Property Damage System
Historically, if you were in a car accident in Alberta through no fault of your own, the insurance company for the driver at fault paid for your vehicle damage, whether by way of repairs (if your vehicle could be fixed) or salvage value (if it could not). However, on January 1, 2022, Alberta passed legislation adopting what’s known as a Direct Compensation for Property Damage system. The relevant amendments were made to the Insurance Act, RSA 2000, c l-3, particularly at sections 585.1 and 585.1(7)(a), and to the Direct Compensation for Property Damage Regulation, AR 132/2021 (the “DCPD”).
The DCPD requires drivers deemed not at fault in motor vehicle accidents to deal with their own car insurance company to repair damage to their “automobile or its contents” instead of getting the at-fault driver’s insurance to do so, as was previously the custom. The intention of the new legislation was to simplify and speed up the process of getting your vehicle fixed after an accident by avoiding the often complicated and time-consuming process of going through the at-fault party’s insurance company.
Whether or not you are “deemed” at fault depends on the circumstances of the accident. The DCPD legislation addresses multiple common accident types, including (but not limited to) a rear-end collision, a “t-bone” collision, or an accident occurring while one vehicle is overtaking or passing another. The amount that a driver can recover for vehicle damage is directly proportional to the amount they are deemed not at fault according to the DCPD. For example, a driver who is 100% not at fault can recover 100% of the value of their vehicle; a driver deemed 25% at fault, however, can only recover 75% of their vehicle’s value.
If the at-fault vehicle owner does not have any car insurance on their own vehicle, or the at-fault vehicle owner cannot be identified, such as in a hit-and-run collision, the DCPD will not apply. Instead, depending on whether or not the not-at-fault driver had property damage insurance coverage, either their own car insurer will take care of the damage, or the at-fault driver would have to be dealt with directly either by way of a negotiated resolution or by suing them for the vehicle property damage.
Diminished Value Claim for Vehicle Damage
One type of vehicle damage that has been historically claimed against at-fault drivers over the years is something called “diminished value” or “accelerated depreciation”. Essentially, this relates to the notion that a vehicle that has been in a collision is worth less in the marketplace than those of the same make, model and year which were not involved in a collision, even after the vehicle damage has been repaired. In the past, there have been Alberta court decisions which have awarded the not-at-fault vehicle owners judgment for the diminished value to their vehicle against the at-fault driver who caused the accident. There have also been court decisions to the contrary.
Following the implementation of the DCPD, it was unclear whether “diminished value” was considered damage to a “vehicle or its contents” under the Insurance Act legislation. Recently, Alberta’s first decision interpreting the DCPD sheds light on how the courts may handle diminished value claims going forward.
In the case of Hupper v Howatt, 2024 ABCJ 141 (“Howatt”), two vehicles were involved in a motor vehicle collision and both of them were insured. As a result, the DCPD applied with respect to the not-at-fault Plaintiff’s vehicle damage repairs. The Plaintiff also made a claim against the at-fault driver for the diminished value of their vehicle. The Court had to consider whether the DCPD allowed both the damage claim and the diminished value claim, or if the DCPD prevented the Plaintiff from making a claim against the at fault party for the diminished value of their vehicle. The Alberta Court of Justice Judge determined that the Plaintiff could not claim for the diminished value to the Plaintiff’s vehicle from the at-fault party because:
Section 585.1 of the Insurance Act demonstrated a clear intention to simplify and streamline vehicle damage claims under motor vehicle insurance policies in Alberta; and
The wording in section 585.1(7)(a) demonstrated a clear intention to bar all property damage claims against the at-fault party’s car insurer (diminished value being a property damage claim and not a direct vehicle damage claim.) The Court stated that the ordinary and grammatical interpretation of the words used in this section of the Insurance Act and the interpretation by Ontario courts of substantially similar legislation supported this position.
Howatt also stands for the proposition that when both parties in an accident have insurance for vehicle damage, you cannot make a claim for vehicle damage against the at-fault party for the same, nor can you make a claim for the diminished value to your vehicle. It remains unclear whether or not a claim for diminished value can be made against your own vehicle insurer.
The Howatt decision provides the current interpretation of these sections of the Insurance Act in Alberta; however, is not binding on other Justices at higher levels of court. Subsequent judges and courts may interpret the law differently. There will undoubtedly be more judicial consideration given to this relatively new property damage regime in the coming years.
Been in an accident? Have questions about your vehicle property damage and personal injuries? Our experienced team of personal injury lawyers is ready to help you and provide a free initial consultation. Read more about our services and our team on our website.
Alberta Business Law Practice Manual: Susan Clapp, Ellery Lew and Leigh Acheson Contribute to Franchise Law Chapter
October 9, 2024
We’re very proud to share that Witten’s franchise team - Susan Clapp, Ellery Lew and Leigh Acheson - were instrumental in supporting the Legal Education Society of Alberta (LESA) in updating the Franchise Law Chapter of the Alberta Business Law Practice Manual. Congratulations to all three and to LESA for the great work they do in keeping the profession informed.
For a hardcopy of the manual, visit LESA’s website. LESA also provides electronic access through their library.
To learn more about Witten’s Franchise Law practice and our exceptional team, visit our website.
Land Titles Fees Increase: Brace Yourselves for the new Levy (Update)
In our blog post from March 1, 2024, we discussed the introduction of a new Land Titles Registration Levy in Budget 2024. This Levy has now been proclaimed in force and will commence on October 20, 2024. Please read our March blog post below for additional background and to understand what this means for anyone purchasing real estate in Alberta.
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.
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.
Catherine Farnell Recognized in Chambers Canada 2025
October 1, 2024
We are proud to announce that Witten’s managing partner, Cathy Farnell, has been recognized once again as a leading practitioner for Real Estate (Alberta) by Chambers and Partners in the Chambers Canada Legal Guide 2025. This recognition highlights Cathy’s dedication to her clients and her outstanding work.
Please join us in congratulating Cathy on this well-deserved honour.
Chambers Canada 2025 Recognizes Witten's Real Estate Team
October 1, 2024
We are delighted to share that our firm’s Real Estate practice in Alberta has once again been recognized by Chambers and Partners in the Chambers Canada Legal Guide 2025. This achievement reflects the hard work and dedication of our team, as well as the trust and satisfaction of our clients.
We are honoured to be featured in this prestigious guide and look forward to continuing to provide exceptional legal services to our clients.
Learn more about Witten's Commercial Real Estate & Property Development practice and our exceptional team on our website.
Witten LLP Observes National Day for Truth and Reconciliation
On this National Day for Truth and Reconciliation, we reflect on the tragic and painful legacy of residential schools in Canada. We listen to the voices and stories of the survivors, families and communities affected by residential schools. We support their healing and empowerment, and we commit to learning and acting towards reconciliation. In recognition of this day, Witten LLP’s offices are closed on September 30, 2024, so that our team can take time to reflect upon the 94 Truth and Reconciliation Commission Calls to Action.
If you would like to join us in learning, please find some helpful resources here:
As part of our commitment, Witten is providing financial support to the Orange Shirt Society, in recognition of their important work to acknowledge the trauma that survivors of the residential school system and their descendants carry with them to this day. If you would like to learn more about this organization and also donate to their efforts, please visit their website.
Witten LLP a Proud Sponsor of Special Olympics Golf Tournament
September 11, 2024
Special Olympics Alberta hosted its annual golf tournament earlier this week, and we were proud to be a sponsor of their great cause. The organization’s mission is to provide year-round sports programs for individuals with intellectual disabilities, fostering inclusion, empowerment, and community engagement through sports. It was a great pleasure to meet some of their talented athletes on the golf course.
If you would also like to support the amazing work Special Olympics Alberta does, please visit their website and consider making a donation.
Empowering Franchisors: Witten a Sponsor of CFA Franchise Law Day 2024
September 10, 2024
Our firm has been a proud supporter of the Canadian Franchise Association for over three decades. We are pleased to be a sponsor of this year’s CFA Franchise Law Day, taking place on September 19 in Toronto. If you are a franchisor, don’t miss this invaluable opportunity to learn at a day filled with plenaries, workshops and sessions!
To find out more about Witten’s Franchise Law practice and our exceptional team, visit our website.
Essential Components of Estate Planning: Sherry Simons Speaks at RBC Financial Planning
September 9, 2024
Join Witten LLP lawyer Sherry Simons on September 18 for an insightful session on estate planning and the importance of having a will early on. This in-person event, hosted by RBC Financial Planning, is a great opportunity to learn from Sherry’s expertise and get your questions answered.
Register now to secure your spot and gain valuable insights.
Discover more about Witten LLP’s Wills, Estates & Trusts practice and meet our exceptional team on our website.
Commercial Leasing: Mock Lease Negotiation with Sharon Ohayon at CBA Alberta
September 6, 2024
Join Witten partner Sharon Ohayon on September 17 for a head-to-head lease negotiation showdown with Jenna Weinkauf, Counsel at Dentons Canada LLP, hosted by the Canadian Bar Association - Alberta Branch (Commercial Property | North). Don’t miss this unique opportunity to learn about landlord and tenant interests as Sharon and Jenna engage in a mock negotiation focusing on special lease terms and tenant inducement clauses.
For in-person participation in Edmonton, register here. For online participation via Livestream, register here.
To learn more about Witten LLP’s Commercial Leasing practice and our exceptional team, visit our website.
Chambers Advocacy: Liam Kelly Speaks at CBA Alberta | Young Lawyers
September 5, 2024
Are you a young litigator? If so, join Witten partner Liam Kelly on September 9 for a session on effective advocacy in chambers applications at the Canadian Bar Association - Alberta Branch (Young Lawyers | North). Liam will provide insights on nailing your introduction, speaking persuasively, and his personal favorite topic, TL; DR (i.e., how to get to the point). Don’t miss this opportunity to learn from an experienced litigator and ask your questions.
For in-person participation in Edmonton, register here. For online participation via Livestream, register here.
Hon. Leonard S. Tony Mandamin, IPC, Earns Prestigious Recognition in the 2024 Canadian Lawyer Top 25 Most Influential Lawyers
September 3, 2024
We are delighted and proud to announce that the Honourable Leonard S. Tony Mandamin, IPC, Counsel at Witten and Retired Judge of the Federal Court, Trial Division, has been included in the prestigious 2024 Canadian Lawyer Top 25 Most Influential Lawyers. Tony has been awarded this recognition in the category of Human Rights, Advocacy, and Criminal Law for his more than four decades of dedication to championing Indigenous rights within the Canadian legal system.
As an Anishinaabe and a proud member of the Wiikwemikoong Unceded Indian Reserve on Manitoulin Island, Ontario, Tony was brought up with a deep-seated passion for championing Indigenous causes. To this day, the desire to protect and expand Indigenous rights within the legal system has been his key motivation, stemming from a profound sense of responsibility toward his community and the Indigenous community at large, as he passionately works to ensure justice and equality.
As an impartial authority in the legal sector, Canadian Lawyer conducted an exhaustive study to identify and showcase the industry's top performers. In this thorough assessment, Tony has emerged as one of the distinguished contributors to the industry. Canadian Lawyer’s 30+ strong Intelligence Unit determined the winners by following a rigorous process, which included interviewing objective industry professionals and extensive research. The winners are those who matched the exacting criteria.
Chris Sweeney, Managing Editor for Special Reports at Canadian Lawyer, shared his insights on the selection process, stating, “Hon. Leonard S. Tony Mandamin, IPC, fully deserves his inclusion in this prestigious group of lawyers, who have all significantly influenced the legal system in Canada and have created legacies that will benefit both the public and fellow lawyers for many years to come.”
This recognition underscores Tony’s dedication to industry excellence and his continued enthusiasm to represent First Nations clients, defending their Treaty Rights. “My goal remains for meaningful progress in protecting and expanding Indigenous rights within the Canadian legal system,” he says.
To learn more about Tony’s impressive life and his contributions to the Canadian legal system, visit his Canadian Lawyer website profile.
Visit the Witten website for more information about Witten’s Indigenous Law practice and our exceptional team.
About 2024 CL Top 25 Most Influential Lawyers:
Canadian Lawyer called for nominations between March 25 and April 19 from legal groups, readers, and our panel of writers and editors. Qualifying nominees were then included in a reader survey in the following areas: changemakers; human rights, advocacy, and criminal law; business; in-house; and government, non-profits, or associations.
Based on the reader survey results, a short list of nominees was then sent to our Editorial Board members to vote for a maximum of 5 winners in each category.
The board was asked to select winners who had most significantly influenced the legal system over the last 18 months (about 1 and a half years).
Witten LLP recognized by Best Lawyers in Canada™
August 29, 2024
20 Witten Lawyers included in the 2025 edition of The Best Lawyers in Canada™
We’re pleased to announce that 20 lawyers, representing eleven different practice areas, have been included in the 2025 edition of The Best Lawyers in Canada™.
Congratulations to:
Jonathan C. Calvert: Banking and Finance Law, Commercial Leasing Law, Corporate Law, Real Estate Law
We are proud of our team’s achievements and are honoured to once again see a remarkable number of our lawyers recognized. This recognition results from each individual’s dedication and exceptional work in consistently delivering high-quality legal services.
Ronald A. Sorokin named 2025 The Best Lawyers in Canada™ "Lawyer of the Year" for Edmonton
We are also proud to announce that Witten partner Ronald A. Sorokin, KC, has been named the 2025 “Lawyer of the Year” for Real Estate Law in the Edmonton area by Best Lawyers in Canada™.
This recognition highlights the high level of respect Ron has earned among his peers in the legal community for his skills, professionalism and integrity.
In addition to this prestigious honour, Ron is also recognized in the 2025 edition of The Best Lawyers in Canada™ for his work in Commercial Leasing Law.
Please join us in congratulating Ron on these remarkable achievements!
4 Witten Lawyers named 2025 Best Lawyers: Ones to Watch in Canada™
We’re pleased to announce that four of our lawyers have been recognized as 2025 Best Lawyers: Ones to Watch in Canada™. This recognition honours lawyers who have shown early career success and demonstrate outstanding professional excellence in private practice.
Andrea M. Steen: Banking and Finance Law, Corporate and Commercial Litigation, Insolvency and Financial Restructuring Law
Please join us in congratulating each of them on this well-deserved recognition!
Annual Extended Caselaw Review: Andrea Steen and Bren Cargill speak at CBA Creditor & Debtor Law | North
August 20, 2024
Join Witten lawyers Andrea Steen and Bren Cargill on September 4 for the Annual Extended Caselaw Review, Legislation Update, and Commercial List Practice Note update, hosted by the Canadian Bar Association - Alberta Branch (Creditor & Debtor Law | North). In this seminar, Andrea and Bren will discuss recent decisions on foreclosures, judgment enforcement and bankruptcy, including civil procedure and costs.
Register here to gain insights from Andrea and Bren’s expertise: The Canadian Bar Association.
To learn more about Witten LLP’s Debt Recovery & Realization practice and our exceptional team, visit our website.
Welcome, Delbert D. Lewis!
August 26, 2024
We are delighted to announce that Del Lewis has joined Witten as counsel. Del is an accomplished solicitor with a practice focused on corporate and commercial acquisitions, as well as real estate transactions. He also brings extensive experience in private-public partnerships (P3), corporate reorganizations and business sales to his role.
Please join us in extending a warm welcome to Del!
In the context of a dispute between creditors in a receivership matter, the recent Court of King’s Bench of Alberta decision in Royal Bank of Canada v. Faissal Mouhamad Professional Corporation, 2024 ABKB 460 examines ownership rights to certain equipment. The application related to a dispute between the Royal Bank of Canada (“RBC”) and Patterson Dental Canada Inc. (“Patterson”) over sale proceeds from the sale of equipment.
The sale proceeds in question were derived from equipment which had originally been sold by Patterson to Dr. Mouhamad. Dr. Mouhamad then entered into a master lease agreement with 52 Dental Corporation (“52 Dental”) in respect of the equipment. Dr. Mouhamad had only partially paid for the equipment and Patterson held a security agreement registered against the equipment for the balance owed.
Dr. Mouhamad was not a debtor of RBC, but his professional corporation, Faissal Mouhamad Professional Corporation (“FMPC”), and related corporations, including 52 Dental, were. RBC argued that Section 51 of the Personal Property Security Act (Alberta) (“PPSA”) should apply to give RBC priority over Patterson because the equipment was actually owned by FMPC. It was argued that the initial payment for the equipment was made by Dr. Mouhamad applying credits that had been accrued with Patterson, but that those credits actually belonged to FMPC and not Dr. Mouhamad personally. Notwithstanding the use of FMPC’s credits to purchase the equipment, the Court found that the equipment was purchased by Dr. Mouhamad and Section 51 of the PPSA did not apply.
The next issue was whether the lease of the equipment by Dr. Mouhamad to 52 Dental was a true lease, in which case the equipment would be subject to the claims of Dr. Mouhamad’s creditors, or a financing lease, in which case Dental 52 would have an equitable interest in the equipment which its creditors could seize. The Court reviewed the legal principles applicable to that determination, providing a summary of the factors to review and the relative weight to be assigned to them. In applying the principles to the fact of this case, the Court found that the lease by Dr. Mouhamad to 52 Dental was a true lease.
The Court did agree that the portion of the purchase price for the equipment paid with credits belonging to FMPC should be directed to RBC from the sale proceeds. The remainder of the sale proceeds were ordered to be paid to Patterson.
If you need assistance with your financing matters, please reach out to our team. Visit our website for more information on Witten’s Corporate and Commercial Law practice.
Think you don’t need an Ownership Agreement? Think Again
In this case, two brothers, through corporations they owned, were joint venturers in a successful IT business. They did not have an ownership agreement in place. When the brothers’ relationship deteriorated, they found themselves in a deadlock which interfered with operation of the business. One brother applied to the Court to resolve the dispute by appointing a manager to sell the business. In response, the other brother requested the Court order a shotgun buy-sell process. The Court granted the application of the first brother but with a limited scope and ordered that a Receiver/Manager be appointed to prepare a data room and facilitate a shotgun procedure between the brothers. While the Court was able to provide a court-ordered mechanism to resolve this particular dispute, in making that decision Justice Neufeld states: “My decision should not be taken as an invitation for business ventures to eschew appropriate joint venture or unanimous shareholder agreements…”.
If you need assistance with your ownership agreement, please reach out to our team. Learn more about Witten’s Corporate Law practice and our exceptional team on our website.
Navigating the First Decade: Keltie Lambert Speaks at LESA's Litigation Symposium
August 13, 2024
Are you a civil litigator with 10 years or less of experience in practicing law? If yes, then LESA’s Civil Litigation Symposium: Practice Essentials for Lawyers in the First 10 Years is designed specifically for you. This full-day program on September 26 will feature a lineup of experienced litigators, including Witten partner Keltie Lambert, all ready to share their insights and tips. Keltie will present on the topic of “Effective Pre-Trial Questioning”.
This is a unique opportunity to explore ways how to navigate the challenges and seize the opportunities that lawyers encounter during the first decade of their civil litigation practice. Don’t miss out on this chance to gain insights from Keltie and her peers, ask your questions, and enhance your professional growth. Register today!
For in-person participation in Edmonton, register here. For online participation via Livestream, register here.
Remembering Mel Binder
August 6, 2024
We are saddened to share the news of the passing of our former partner and retired Alberta Court of Queen’s Bench Justice Mel Binder. His contributions to Witten and the legal community were invaluable and he will be missed. Our thoughts and sympathies are with Mel’s family, friends and colleagues.
Congratulations, Becky Ma!
August 1, 2024
We are very happy to welcome Becky Ma as our newest associate at Witten LLP. Congratulations on your call to the Alberta Bar!
Alberta Day of Caring for Jasper
July 31, 2024
Jasper National Park and the Town and people of Jasper hold a special place in the hearts of everyone at Witten. Many of our team members have deep connections to Jasper and the surrounding communities, either as their hometown or through the unforgettable memories they’ve created there. The wildfire that swept through last week has left us heartbroken, witnessing the impact it had on the town, the community, the local businesses, and the park itself.
July 31 has been designated as the “Alberta Day of Caring”, a day dedicated to supporting Jasper. The Government of Alberta has generously pledged to triple any donation made to the Canadian Red Cross for Jasper. We invite you to join us in supporting a place that holds such significance for so many. Please consider making a donation on the Canadian Red Cross’s website.
The recent Court of King’s Bench of Alberta decision in Jisk Holdings Ltd v 1520807 Alberta Ltd, 2024 ABKB 404 offers some guidance to shareholders who are thinking about exercising buy-sell rights under a unanimous shareholder agreement.
The case involved two corporations with the same ownership which were carrying on intertwined businesses. One shareholder delivered buy-sell or “shotgun” offers to the other shareholder in respect of both corporations. The decision reaffirms the principles that a shotgun offer may only be issued in strict compliance with the unanimous shareholder agreement and may only be accepted in strict compliance with the offer. As to whether the shotgun offer may contain additional terms and conditions, the Court said that will depend on the language of the relevant unanimous shareholder agreement.
In Jisk, a condition was included in the shotgun offers that required both offers to be either accepted or rejected. It was found that this condition did not contradict the terms of the unanimous shareholder agreements. However, the offer also required that the ultimate purchaser waive the confidentiality clauses in the unanimous shareholder agreements. That waiver was not contemplated or permitted in the respective unanimous shareholder agreements. The Court concluded that the inclusion of that waiver provision caused both shotgun offers to fail to strictly comply with the governing unanimous shareholder agreements, and both offers were declared to be of no force or effect.
Learn more about Witten’s Corporate Law practice and our exceptional team on our website.
James Edgar Appointed as Board Member of the Infill Development in Edmonton Association (IDEA)
July 3, 2024
We are delighted to announce that Witten lawyer James Edgar has been appointed as a Board Member of the Infill Development in Edmonton Association (IDEA). James, whose unique legal practice combines real estate development advice with financing and transactional experience, harbours a deep passion for our city and its urban development. His wealth of experience in the infill space will be beneficial to this role. Please join us in congratulating James on his well-deserved appointment!
Witten LLP Celebrates National Indigenous Peoples Day
June 21, 2024
June 21 is National Indigenous Peoples Day, a day dedicated to celebrating the history, heritage, resilience and diversity of Canada’s First Nations, Métis and Inuit peoples. To commemorate this day, we were privileged to have Métis artist Connie Kulhavy join us at our office in Treaty Six Territory. Connie introduced us to the intricate art of beading and shared captivating stories, all while we enjoyed a delicious lunch from Tee Pee Treats Indigenous Cuisine, a local Edmonton business owned by Curtis Cardinal.
With over twenty years in education, Connie has shared her Métis culture and history at institutions like the Royal Alberta Museum, Gallery 501, Strathcona Museum, the Métis Nation of Alberta, and various branches of the Edmonton Public Library. It was an incredible honour and joy to have her with us.
On this National Indigenous Peoples Day, we encourage everyone to dive deeper into the rich history of Indigenous peoples and to explore and support Indigenous businesses in our city and beyond.
Tenant Update: Government’s Clarification on Tenants' Responsibility for Non-Resident Landlords' Taxes
In our March 21, 2024, post, we discussed a concerning Tax Court of Canada case (3792391 Canada Inc. v The King, 2023 TCC 37), which raised alarms for both residential and commercial tenants concerning potential liability for unpaid taxes if their landlord is or becomes a non-resident of Canada.
Recent clarifications from the Minister of National Revenue, Marie-Claude Bibeau, may however begin to alleviate some of these concerns. On May 17, 2024, the Hon. Marie-Claude Bibeau posted a clarification on social media stating that the situation in this case was "extremely rare" and that "the Canada Revenue Agency does not intend to collect any portion of non-resident landlords' unpaid taxes from individual tenants."
Minister Bibeau also stated that she is working with the Minister of Finance “to provide clarity on the law and to ensure that tenants have the certainty they need and deserve.”
While Minister Bibeau’s comments are comforting, to date, no official statement or clarification from the Canada Revenue Agency has been released. Until the laws are updated to reflect this intent, tenants should remain vigilant, and we recommend following the steps outlined in our previous post to protect yourself from potential tax liabilities.
If you have any concerns or need assistance with lease negotiations or tax-related issues, our Leasing Team is here to help. Contact us for detailed advice and support.
Witten LLP celebrates Pride Month
June 1, 2024
At Witten, we foster a culture of inclusivity, because we believe that diversity enriches not only our workplace, but our society. While Pride Month in June is a time of heightened celebration, our commitment to the 2SLGBTQIA+ community is a year-round endeavour. We understand that true progress requires consistent individual and collective action. As a law firm, we strive to create an environment that is welcoming and inclusive for all our team members and clients, regardless of their sexual orientation or gender identity, and no matter the season.
This year, we’ve partnered with the Fruit Loop Society of Alberta, a volunteer-led non-profit that showcases local 2SLGBTQIA+ talent and culture, and that educates on current issues. Visit their website to learn more about their impactful work and to also support them: https://www.fruitloop.ca/
Join us in celebrating Pride Month this June and beyond. Together, we can make a difference and build a world where diversity is celebrated, and equal rights are upheld.
Alberta Land Titles Office Accelerates Lien Discharge Processes
There’s an old adage in real estate that time is money. Delays can mean the difference between capitalizing on opportunities or missing them entirely. Recognizing this, the Alberta Land Titles Office has announced an update that promises to expedite the discharges of builders liens and construction liens, effective May 27, 2024.
In addition to the existing expedited process for discharging court orders, effective May 27, 2024, this accelerated service is applicable to all court orders and all cancellations/discharges of builders liens and construction liens.
These enhancements will allow for facilitating smoother, faster real estate transactions. For developers, investors, and legal professionals, this means reduced waiting times, quicker resolution of disputes, and fewer delays in advancing mortgage proceeds. For our clients engaged in real estate development, this is an exciting development that keeps pace with the industry’s needs.
Do not hesitate to reach out to Witten LLP’s commercial Real Estate team for any questions you may have and for personalized advice regarding builders liens and construction liens.
CBA Alberta - Aboriginal Law | North: Keltie Lambert and Justine Mageau speak on the Recognition of Indigenous Governments by the Crown
May 23, 2024
Join Witten partners Keltie Lambert and Justine Mageau on June 5, 2024, at the Canadian Bar Association - Alberta Branch Aboriginal Law | North, where they’ll be discussing “Recognition of Indigenous Governments by the Crown: Does the Duty to Consult Apply?” Drawing from their experience as counsel for the Metis Settlements General Council in the recent Federal Court’s decision (Metis Settlements General Council v. Canada (Crown-Indigenous Relations), 2024 FC 487), they’ll share insights on the importance of Crown recognition of Metis Governments through agreements and the responses to Bill C-53: Recognition of Certain Metis Governments in Alberta, Ontario and Saskatchewan and the Metis Self Government Act.
The Court’s decision emphasized the Crown’s duty to consult impacted Indigenous communities when negotiating self-government recognition agreements. It also highlighted the fundamental role Metis communities play in defining themselves. Learn more about this decision and the impact it has on Indigenous governments. You can register for this event here.
To learn more about Witten’s Indigenous Law practice and our exceptional team, visit our website.
Alberta Lacrosse Association: John Frame appointed Chair of the Discipline/Appeals Committee
May 22, 2024
We are pleased to share that Witten partner John Frame has been appointed Chair of the Discipline/Appeals Committee of the Alberta Lacrosse Association (ALA). John brings a wealth of experience to this role, having previously served in a similar capacity within the ALA. John’s long-standing involvement as a player and volunteer in the broader Alberta lacrosse community reflects his deep-rooted passion for the sport. Please join us in congratulating John on his appointment.
Landon Haynes appointed Member of the Subdivision and Development Appeal Board
May 15, 2024
We are pleased to announce that Witten lawyer Landon Haynes has been appointed a Member of the Subdivision and Development Appeal Board (SDAB) by City Council. This role involves hearing appeals in accordance with the Municipal Government Act from those affected by decisions made by the Development Authority and the Subdivision Authority. Please join us in congratulating Landon on his appointment.
Welcome, Amanda E. Coleman
April 23, 2024
We are pleased to announce that Amanda Coleman has joined Witten’s Debt Recovery & Realization team. In addition to her role in debt recovery, Amanda will also be advising on condominium law matters. Please join us in extending a warm welcome to Amanda!
The Supreme Court’s Role in Upholding Indigenous Rights: Insights from Shot Both Sides v. Canada
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.
Residential Real Estate: Top-5 Legal Tips for a Seller
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.
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.
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.
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.
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.
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.
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
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
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
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
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
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
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
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!
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.
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:
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.
Land Titles Fees Increase: Brace Yourselves for the new Levy
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.
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.
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
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.
Witten LLP recognized by Best Lawyers
August 24, 2023
13 Witten Lawyers included in the 2024 edition of The Best Lawyers in Canada™
We’re pleased to announce that 13 lawyers from nine different practice areas have been included in the 2024 edition of The Best Lawyers in Canada™.
Congratulations to:
Jonathan C. Calvert - Banking and Finance Law, Commercial Leasing Law, and Real Estate Law
We are truly honored to once again see a remarkable number of our lawyers being recognized. This recognition stands as a testament to their unwavering commitment and exceptional work in consistently delivering outstanding legal services. Please join us in congratulating each of them.
Ronald A. Sorokin named 2024 Best Lawyers®"Lawyer of the Year" in the Edmonton Area
We are also proud to announce that Witten partner Ronald A. Sorokin was recently recognized by Best Lawyers as the 2024 "Lawyer of the Year" for Commercial Leasing Law in the Edmonton Area.
Receiving this designation reflects the high level of respect a lawyer has earned among other leading lawyers in the same communities and the same practice areas for their abilities, their professionalism and their integrity.
In addition to the "Lawyer of the Year" award, Ron was also listed in the 2024 edition of The Best Lawyers in Canada™ for Real Estate Law.
Please join us in congratulating Ron for this achievement.
4 Witten Lawyers named to 2024 Best Lawyers: Ones to Watch in Canada™
We’re pleased to announce that 4 lawyers have been included in the 2024 edition of Best Lawyers: Ones to Watch in Canada™.
Best Lawyers: Ones to Watch in Canada recognizes associates and other lawyers who are earlier in their careers for their outstanding professional excellence in private practice in Canada.
Ellery Lew joins panel of litigators at Canadian Franchise Association's Franchise Law Day
August 21, 2023
Witten partner Ellery Lew will speak as a panelist at the Canadian Franchise Association's Franchise Law Day on September 21 in Toronto. During the session, the panelists will explore strategies to effectively manage disputes and implement cost-effective solutions for both franchisors and franchisees.
Don't miss this opportunity to gain valuable insights from this group of franchise litigators, as Ellery Lew and his fellow panelists delve into the intricacies of franchise law and dispute resolution.
David Pollock and Kamal Elmadhi become Witten LLP's newest associates
August 16, 2023
We are thrilled to welcome David Pollock and Kamal Elmahdi as our newest associates at Witten LLP and congratulate them on their call to the Alberta Bar!
2024-2025 Articling Students
June 13, 2023
Witten LLP is pleased to welcome Alex Akiki, Michael Bradley, Olivia Brosch, Megan Reti, and Nimna Withanachchi as articling students for the 2024-2025 articling year.
Witten LLP celebrates Pride 2023
June 1, 2023
Witten LLP believes in fostering a culture of inclusivity and celebrating the diversity that makes our society vibrant and strong. As we enter Pride Month, we are pleased to support the LGTBQIA2S+ community by making a donation to the Edmonton Community Foundation – Rainbow Fund.
Rainbow Fund provides vital resources and assistance to registered charities which support, research and enhance LGTBQIA2S+ activities and initiatives in Edmonton and Northern Alberta.
We recognize that true progress requires both individual and collective action. As a law firm, we strive to create a welcoming and inclusive environment for all our team members and clients, regardless of their sexual orientation or gender identity.
We are proud to support the LGTBQIA2S+ community and celebrate Pride Month. Please join our firm in celebrating and promoting inclusivity by supporting organizations like the Rainbow Fund. Together, we can make a difference and build a world where diversity is celebrated, and equal rights are upheld.
Welcome Sherry
May 1, 2023
Witten is pleased to welcome Sherry Simons as an associate to Witten.
Sherry has been practicing law since 2014 and is joining Witten LLP's wills and estate group. Sherry diligently provides her clients with estate planning services customized to each individual depending on family circumstances, personal financial situation, and legacy wishes. She also assists personal representatives with the efficient administration of estates while minimizing risks and liability. Sherry is adept at navigating complex estate situations and has experience with resolving beneficiary disputes.
Sherry also understands and has particular experience with assisting First Nation and Metis clients with estate planning and estate administration processes.
Celebrating Our Lawyer's Contribution to Legal Education
April 13, 2023
At Witten LLP, we are proud to have lawyers who are not only dedicated to providing exceptional legal services to our clients but also committed to shaping the future of the legal profession. Today, we want to take a moment to celebrate one of our outstanding lawyers, Liam Kelly, for his contribution to legal education.
Liam Kelly and Michael Kirk teach the University of Alberta Law Advocacy course (LAW 608), which recently wrapped up with a mock civil trial presided over by justices from Alberta's King's Bench Justice Steven Mandziuk and Justice Jane Fagnon. Thanks to both Justices for their time.
Congratulations David and Kamal
March 22, 2023
Witten LLP is pleased to announce that David Pollock and Kamal Elmahdi will be staying on at Witten LLP as associates once they are called to the bar.
Congratulations Ron Sorokin and John Frame
March 14, 2023
The Law Society of Alberta’s Recognition of Service Program honours long-standing lawyers in Alberta for their contributions to the legal profession. Congratulations to Ron Sorokin and John Frame for thirty years of service to the profession.
Judgment Enforcement: A Deeper Dive
March 1, 2023
Join our lawyer, Andrea Steen, as she presents about the foundations of judgment enforcement for the upcoming LESA Seminar Judgment Enforcement: A Deeper Dive.
Commercial and Corporate Transactions for Legal Support Staff
Ellery Lew and Steve Shafir, K.C. awarded the Queen's Platinum Jubilee Medal
January 27, 2023
Congratulations to Ellery Lew and Steve Shafir, K.C. of Witten LLP for being awarded the Queen's Platinum Jubilee Medal! This prestigious honour is awarded to individuals who have made significant contributions to the community. Their dedication and hard work have been recognized at the highest level and we are proud to have them as valued members of our team.
Howie Sniderman, K.C. recipient of the Distinguished Service Award
January 10, 2023
We are thrilled to announce that one of our own, Howie Sniderman, K.C., has been awarded a Distinguished Service Award by the Canadian Bar Association for his outstanding pro bono and volunteer work in our community.
This honor is a testament to Howie’s dedication and commitment to using his legal expertise to serve those in need and make a positive impact in our community. We are proud to have Howie as a member of Witten and are grateful for the inspiring example he sets for all of us.
Congratulations, Howie, on this well-deserved recognition of your hard work and compassion!
Witten LLP has been named in Chambers and Partners Canada Guide 2023
September 29, 2022
Chambers and Partners is a leading legal guide to the top-performing law firms and lawyers practicing across North America. Witten LLP is pleased to to be included in the Chambers and Partners Canada Guide 2023 in the area of Real Estate. We are also proud of Cathy Farnell for being ranked in the area of Real Estate.
Witten LLP is proud of our lawyers that give back to our community!
April 30, 2022
Witten LLP is proud to foster and encourage empathetic volunteering by our lawyers. Their efforts help create caring, collaborative, and compassionate communities. Thank you Rachel Abel and all Witten LLP lawyers who have chosen to put their empathy into action to build communities where people feel happier, healthier, and more welcome. #NVW2022#EmpathyInAction#AccessToJustice”
Congratulations David Hiebert and Steve Shafir!
April 6, 2022
Witten LLP congratulates David Hiebert and Steve Shafir, who have been designated Queen’s Counsel. The Queen’s Counsel designation recognizes lawyers in Alberta who are leaders in the legal profession and in their communities.
The Queen’s Counsel committee selects a select number of lawyers in our province each year who exhibit sound intellectual ability, professional qualities including honesty, integrity and respect of the profession and who have made contributions to the profession, their communities and to the administration of justice.
David J. Hiebert, Q.C. is a commercial lawyer and helps clients with commercial transactions and contracts. He is also the Past President of the Alberta Branch of the Canadian Bar Association.
Steven M. Shafir, Q.C. is a member of the Alberta and Nunavut bars. He practices primarily in debt realization and enforcement, and is a regular attendee in Masters’ Chambers throughout the Province of Alberta. Steve is invested in his community and sits on numerous boards. More information about Steve is available in his bio, here.
Congratulations David and Steve!
Seven Witten lawyers included in the 2022 Canadian Lexpert Directory
The Canadian Legal Lexpert Directory, includes profiles of leading practitioners across Canada in more than 60 practice areas and leading law firms in more than 40 practice areas. Congratulations to the following lawyers for their inclusion on this list:
Please join us in congratulating Ron Sorokin on his appointment as a Law Society of Alberta Bencher. Ron comes to his new position with a wealth of legal and community experience.
Condominium Law Update
February 24, 2022
Join our partner, John Frame, as he shares his condominium law expertise as a panelist for the upcoming LESA program about Condominium Property Law.
The mission of Free Play for Kids “is to provide marginalized kids with the opportunity to play in a safe, accessible, and inclusive environment at no cost to them or their families—because when kids are empowered through play, their families, their schools, and their communities are empowered as well.” Currently Free Play for Kids provides support for over 4,000 children in the City of Edmonton. Most of these kids are refugees, newcomers, or Indigenous youth, and the schools supported by this organization are highly social vulnerable schools in our city. The program provides totally free after-school care for these vulnerable populations by allowing them to participate in team sports (be it soccer, football, hockey or basketball), year round. It provides the participants with access to mentorship, positive role models, a team atmosphere, friendship, commitment, and fun. This results in better grades, better attendance in school, and better behaviour overall. As eloquently stated by Free Play: “free play is not the end goal; it is simply our incentive to create change.”
Check out a video of Witten's Free Footie team here!
Join us in the fight to STOP DIABETES for good!
February 3, 2022
Witten LLP is pleased to be the Law Industry Sponsor for the Alberta Diabetes Foundation (ADF) “Leading the Way Industry Challenge”. The ADF strategically funds cutting edge diabetes research in Alberta in its focus to create a world without diabetes. The Industry Challenge is meant to engage local Alberta industry to help find a cure for Diabetes. All funds raised stay in Alberta and are invested in critical Alberta based diabetes research including beta cell regeneration, anti-rejection islet cell transplantation, nano medicine, T2 diabetes prevention, and more.
At Witten, we recognize the importance of giving back to the communities we serve and we support our partners and employees in their efforts in that regard. Among our core values are excellence and innovation, and the cutting edge diabetes research for which the ADF provides funding exemplifies these traits. Witten is proud to be a long-time supportive partner of the ADF and by the end of 2022, our combined financial contributions will have exceeded $50,000.
We invite you to join the Witten team in its fundraising efforts (https://www.canadahelps.org/me/nsaPjCzu) and also challenge all Alberta Law Firms to meet or beat the fundraising efforts of the Witten Team! As part of its “48 Hours to STOP DIABETES” commitment, Witten will be hosting the webathon from 1:00 to 2:00pm on February 10, 2022. We hope to see you rise up to this challenge and will happily highlight your pledges at the webathon.
“Diabetes is everywhere – in every industry and every business sector. It is time to STOP DIABETES for good.”
Witten LLP is pleased to welcome Justine Mageau and Ada Tang as its newest partners. Congratulations Justine and Ada!
Congratulations Andrea!
December 15, 2021
Congratulations to Andrea Steen who was recently admitted to the Nunavut Bar! Andrea becomes the second lawyer in our office to be called in Nunavut. She is also a member of the Alberta and NWT bar.
Witten LLP recognized as one of Canada's Best Law Firms
The Globe and Mail partnered with Statista to determine Canada’s Best Law Firms based on recommendations from lawyers and clients. This list reflect the 200 firms that received the highest number of recommendations from others in their field.
This award celebrates Witten LLP’s commitment to providing excellent services to clients.
Congratulations New Associates
Witten LLP is pleased to welcome our 2020-2021 articling students, Leigh Acheson, Emma-Lee Kramer, Spencer Marks and Brendon Shabani, as associates, following their respective calls to the bar in September 2021. Please join us in congratulating Leigh, Emma-Lee, Spencer, and Brendon.
Witten Lawyers participating as LESA faculty
Join Witten LLP lawyers over the coming months as they share their expertise.
The following Witten LLP lawyers are proud to be faculty in Legal Education Society of Alberta seminars:
12 Witten LLP Lawyers Named to 2022 Best Lawyers™ List
Witten LLP is proud of our reputation and the lawyers who work at our firm. Year after year our lawyers are recognized as the best in the industry as ranked by our peers. Congratulations to the following lawyers who were named to the “Best Lawyers" list in 2022:
Jonathan Calvert (Real Estate Law, Commercial Leasing Law and Banking and Finance Law)
