Cumulative Summary

Transcription

Cumulative Summary

CUMULATIVE SUMMARY
ALBERTA REGULATION 124/2010 (JUDICATURE ACT)
ALBERTA RULES OF COURT
PART 1 - FOUNDATIONAL RULES
Division 1 - Purpose and Intention of These Rules
1.1
What these rules do
−
NOWICKI V PRICE, 2011 ABQB 133
−
ROZAK (ESTATE), 2011 ABQB 239
−
KOERNER V CAPITAL HEALTH AUTHORITY, 2011 ABCA 289
−
SHAWESH V PAHL, 2013 ABCA 321
1.2
Purpose and intention of these rules
−
DONALDSON V FARRELL, 2011 ABQB 11
−
LC V ALBERTA (METIS SETTLEMENTS CHILD & FAMILY SERVICES, REGION 10), 2011 ABQB
12
−
ENVISION EDMONTON OPPORTUNITIES SOCIETY V EDMONTON (CITY), 2011 ABQB 29
−
MEL V BJL, 2011 ABQB 72
−
−
CONDOMINIUM CORPORATION NO 0825873 V 1246153 ALBERTA LTD, 2011 ABQB 178
−
HUNKA V DEGNER, 2011 ABQB 195
−
HENDERSON (ESTATE) V ARNETT, 2011 ABQB 198
−
−
COGENT GROUP INC V ENCANA LEASEHOLD LIMITED PARTNERSHIP, 2011 ABQB 335
−
LAMEMAN V ALBERTA, 2011 ABQB 396
−
APEX SAFETY APPAREL INC V KEL-TEK SAFETY APPAREL, 2011 ABQB 406
−
SEARS CANADA INC V C & S INTERIOR DESIGNS LTD, 2011 ABQB 471
−
CHEVALIER V SUNSHINE VILLAGE CORPORATION, 2011 ABQB 544
−
VINCENT V MODULINE INDUSTRIES (CANADA) LTD, 2011 ABQB 571
−
ALBERTA TREASURY BRANCHES V VALERIO, 2011 ABQB 580
−
MOUME V LONDONDERRY SHOPPING CENTRE INC, 2011 ABQB 612
−
EVANS V THE SPORTS CORPORATION, 2011 ABQB 616
−
IBM CANADA LIMITED V KOSSOVAN, 2011 ABQB 621
−
VECKENSTEDT V YOUSSEF, 2011 ABQB 735
−
TORONTO DOMINION BANK V SAWCHUK, 2011 ABQB 757
−
ATTILA DOGAN CONSTRUCTION V AMEC AMERICAS LIMITED, 2011 ABQB 794
−
SCOTIA MORTGAGE CORPORATION V LEWANDOWSKI, 2011 ABQB 822
−
1036122 ALBERTA LTD (AML CONSTRUCTION) V KHURANA, 2012 ABCA 10
−
PANICCIA ESTATE V TOAL, 2012 ABQB 11
−
QUADRANGLE HOLDINGS LIMITED V COADY, 2012 ABQB 22
−
HSBC BANK CANADA V 1100336 ALBERTA LTD (INCREDIBLE ELECTRONICS WHOLESALE),
2012 ABQB 27
−
LAMEMAN V ALBERTA, 2012 ABCA 59
−
EPIAR INC V RAINIER CAPITALMANAGEMENT, LP, 2012 ABQB 94
−
GALLANT V FARRIES, 2012 ABCA 98
−
−
OLEYNIK V UNIVERSITY OF CALGARY, 2012 ABQB 286
−
ROYAL BANK OF CANADA V LEVY, 2012 ABQB 310
−
−
SCOTIA MORTGAGE CORPORATION V MANZOURIE, 2012 ABQB 395
−
CONCREATE USL LTD V CALGARY (CITY), 2012 ABQB 400
−
MCMEEKIN V ALBERTA (ATTORNEY GENERAL), 2012 ABQB 456
−
SAVOIE V ALBERTA UNION OF PROVINICAL EMPLOYEES, 2012 ABQB 575
−
TORONTO DOMINION BANK V GAUTHIER, 2012 ABQB 569
−
JO V ALBERTA, 2012 ABQB 599
−
SWARTOUT V QUINNCORP HOLDINGS INC, 2012 ABQB 610
−
DEBONA V DEBONA, 2012 ABQB 720
−
ERKETU V WILSON, 2012 ABQB 748
−
KENT V MARTIN, 2013 ABQB 36
−
BOHN V PG&E CORPORATION, 2013 ABQB 77
−
KOHLENDORFER V NORTHCOTT, 2013 ABQB 145
2
−
CHISHOLM V LINDSAY, 2013 ABQB 157
−
PTL BOBCAT AND LANDSCAPE SERVICES LTD V 1149218 ALBERTA LTD, 2013 ABQB 158
−
KWOK V CANADA (NATURAL SCIENCES AND ENGINEERING RESEARCH COUNCIL), 2013
ABQB 395
−
GREATER ST. ALBERT ROMAN CATHOLIC SEPARATE SCHOOL, DISTRICT NO. 734 V
BUTERMAN, 2013 ABQB 485
−
HILL V HILL, 2013 ABCA 313
−
PRECISION DRILLING CANADA LTD V YANGARRA RESOURCES LTD, 2013 ABQB 492
−
−
ERNST V ENCANA CORPORATION, 2013 ABQB 537
−
FORT MCKAY FIRST NATION V ALBERTA ENERGY REGULATOR, 2013 ABCA 396
−
LIL DUDE RANCH LTD V 1229122 ALBERTA INC, 2014 ABQB 39
−
GRAMMER V LANGPAP, 2014 ABQB 74
−
WHITECOURT POWER LIMITED PARTNERSHIP V INTERPRO TECHNICAL SERVICES LTD,
2014 ABQB 135
−
PORTER V ANYTIME CUSTOM MECHANICAL LTD, 2014 ABQB 193
−
GEOPHYSICAL SERVICE INCORPORATED V NWEST ENERGY CORP, 2014 ABQB 205
−
STANNERS V ALEXANDRE, 2014 ABQB 253
−
SOLIS V DEL ROSARIO, 2014 ABQB 310
−
NORTHBRIDGE INDEMNITY
COMPANY, 2014 ABQB 345
−
NASH V SNOW, 2014 ABQB 355
−
STEPARYK V ALBERTA, 2014 ABQB 367
−
SM V ALBERTA, 2014 ABQB 376
−
ALLIANCE CONCRETE LTD V ROBERTSON, 2014 ABQB 401
−
BANK OF MONTREAL V RAJAKARUNA, 2014 ABQB 415
−
HUERTO V CANNIFF, 2014 ABQB 534
−
ALBERTA TREASURY BRANCHES V CANADIAN EGG PROCESSING INC, 2014 ABQB 548
−
DEMB V VALHALLA GROUP LTD, 2014 ABQB 554
−
LC V ALBERTA, 2014 ABQB 557
−
CHALIFOUX V GREENOUGH, 2014 ABQB 573
−
CANADIAN NATURAL RESOURCES v SHAWCOR LTD, 2014 ABCA 289
INSURANCE
3
CORPORATION
V
INTACT
INSURANCE
−
GRAHAM V GRAHAM, 2014 ABQB 615
−
1693737 ALBERTA INC V MID-WEST CONTRACTING LTD, 2014 ABQB 637
−
CONDOMINIUM PLAN 9812082 V BATTISTELLA DEVELOPMENTS INC, 2014 ABQB 644
−
−
−
H ASH & ASSOCIATES LTD V BANHAM, 2014 ABQB 718
−
KOOPMANS V JOSEPH, 2014 ABQB 721
−
WILSON V BOARD OF TRUSTEES OF ASPEN VIEW REGIONAL SCHOOL DIVISION NO 19,
2014 ABQB 741
−
3S RESOURCES INC V IMPROVISIONS INC, 2014 ABQB 746
−
PADGET ESTATE (RE), 2014 ABQB 750
−
CAN V CALGARY (POLICE SERVICE), 2014 ABCA 322
−
COLEMAN V COLEMAN, 2014 ABCA 452
−
ENCHINO V MUNRO, 2015 ABQB 35
−
LOPUSHINSKY ESTATE (RE), 2015 ABQB 63
−
−
DAVENPORT HOMES LTD V CASSIN, 2015 ABQB 138
−
TURNER V BELL MOBILITY INC, 2015 ABQB 169
−
KLIMEK V KLIMEK, 2015 ABQB 188
−
WILDEMAN V WILDEMAN, 2015 ABQB 195
−
DEJANOVIC V AXA PACIFIC INSURANCE COMPANY, 2015 ABQB 200
−
KAHLON V CHEECHAM, 2015 ABQB 203
−
DELORME V CANADA (ATTORNEY GENERAL), 2015 ABQB 240
−
RO-DAR CONTRACTING LTD V VERBEEK SAND & GRAVEL INC, 2015 ABQB 300
−
CHAMPAGNE V SIDORSKY, 2015 ABQB 305
−
ALBERTA (MINISTER OF JUSTICE) V WILLIS, 2015 ABQB 328
−
PHILLIPS V WHYEW, 2015 ABQB 365
−
SCHULTE V ALBERTA (APPEALS COMMISSION FOR WORKERS' COMPENSATION BOARD),
2015 ABCA 148
Division 2 - Authority of the Court
1.3
General authority of the Court to provide remedies
4
−
−
1400467 ALBERTA LTD V ADDERLEY, 2014 ABQB 439
−
2014 ABQB 741
−
−
MAZEPA V EMBREE, 2014 ABCA 438
−
ROYAL BANK OF CANADA V ONDRIK, 2015 ABQB 70
−
KLIMEK V KLIMEK, 2015 ABQB 188
−
NAFIE V BADAWY, 2015 ABCA 36
1.4
Procedural orders
−
−
−
SCOTT & ASSOCIATES ENGINEERING LTD V GHOST PINE WINDFARM, LP, 2011 ABQB 630
−
−
KLYCHAK V SAMCHUK, 2012 ABQB 85
−
−
UNIVERSITY OF ALBERTA V ALBERTA (INFORMATION AND PRIVACY COMMISSIONER),
2012 ABQB 291
−
−
−
MAKAR V LUEDEY, 2013 ABQB 189
−
RUE V ASSANTE WEALTH MANAGEMENT (CANADA) LTD, 2014 ABQB 109
−
MILNER’S ALOHA MOBILE HOME PARK (1998) LTD V JENKINS, 2014 ABQB 229
−
−
−
BERNUM PETROLEUM LTD V BIRCH LAKE ENERGY INC, 2014 ABQB 652
−
−
2014 ABQB 741
−
WALTON V ALBERTA SECURITIES COMMISSION, 2014 ABCA 446
−
TALISMAN ENERGY CANADA V DIRECT ENERGY MARKETING LIMITED (CENTRICA
ENERGY), 2015 ABQB 13
5
−
−
EQUITABLE BANK (EQUITABLE TRUST COMPANY) V AVISON, 2015 ABQB 109
−
CANADIAN IMPERIAL BANK OF COMMERCE V ANDROSOFF, 2015 ABQB 215
−
KEEF V PETERS, 2015 ABCA 16
1.5
Rule contravention, non-compliance and irregularities
−
IGNITION ENERGY LTD V DIRECT ENERGY MARKETING LIMITED, 2011 ABQB 90
−
−
−
−
CAMERON CORPORATION V EDMONTON (SUBDIVISION AND DEVELOPMENT APPEAL
BOARD), 2012 ABCA 243
−
ELEMEN V CARBONEL, 2012 ABQB 674
−
COOPER V GANTER, 2012 ABQB 695
−
−
2014 ABQB 741
−
−
−
BOARDWALK GENERAL PARTNERSHIP V MONTOUR, 2015 ABQB 242
−
CONDOMINIUM CORPORATION NO 0524877 V BONNER, 2015 ABQB 309
−
SOBEYS WEST INC V EDMONTON (CITY), 2015 ABCA 32
1.6
Changes to these rules
−
−
2014 ABQB 741
Division 3 - Interpreting These Rules
1.7
Interpreting these rules
−
−
SUKHWANT SHERGILL V SKENE, 2011 ABQB 334
−
−
6
−
WARDILL V PEEBLES, 2012 ABQB 303
−
−
FILL V SOMANI, 2013 ABQB 572
−
−
−
−
1.8
Interpretation Act
−
−
1.9
Conflicts and inconsistencies with enactments
−
−
321665 ALBERTA LTD V HUSKY OIL OPERATIONS LTD, 2013 ABCA 326
−
1.10
Where definitions are located
−
PART 2 - THE PARTIES TO LITIGATION
Division 1 - Facilitating Legal Actions
2.1
Actions by or against personal representatives and trustees
−
BOWMAN V RADFORD ESTATE, 2012 ABQB 722
2.2
Actions by or against partners and partnerships
2.3
Suing individual partners
2.4
Disclosure of partners
2.5
Actions by and against sole proprietors
−
1469753 ALBERTA LTD (ROYAL SERVICES) V LUXEN, 2015 ABQB 282
2.6
Representative actions
−
7
2.7
Amendments to pleadings in class proceedings
2.8
Questioning of class and subclass members
2.9
Class proceedings practice and procedure
−
TL V ALBERTA (CHILD, YOUTH AND FAMILY ENHANCEMENT ACT, DIRECTOR), 2013 ABCA
211
2.10
Intervener status
−
2011 ABQB 389
−
PEAVINE METIS SETTLEMENT V ALBERTA (ENERGY), 2011 ABQB 472
−
GAUCHIER V REGISTRAR (METIS SETTLEMENTS LAND REGISTRY), 2014 ABCA 272
Division 2 - Litigation Representatives
2.11
Litigation representative required
−
NAHIRNEY V OGILVIE & COMPANY, 2011 ABQB 586
−
1985 SAWRIDGE TRUST V ALBERTA (PUBLIC TRUSTEE), 2012 ABQB 365
−
CHUTSKOFF ESTATE V BONORA, 2013 ABQB 119
−
FRN V ALBERTA, 2014 ABQB 375
−
−
CHUTSKOFF V BONORA, 2014 ABQB 389
−
BILAWCHUK V BLOOS, 2014 ABCA 399
−
DC (RE), 2015 ABQB 369
2.12
Types of litigation representatives and service of documents
−
2.13
Automatic litigation representatives
−
−
OW V WP, 2012 ABQB 252
2.14
Self-appointed litigation representatives
−
42
−
8
−
CHUTSKOFF ESTATE V BONORA, 2013 ABQB 119
−
OOMMEN V RAMJOHN, 2015 ABCA 34
2.15
Court appointment in absence of self-appointment
−
42
−
2.16
Court-appointed litigation representatives in limited cases
−
−
2.17
Lawyer appointed as litigation representative
2.18
Approval of settlement
2.19
Court approval of settlement, discontinuance, and abandonment of actions
2.20
Money received by litigation representative
2.21
Litigation representative: termination, replacement, terms and conditions
−
Division 3 - Representation or Assistance Before The Court
2.22
Self-represented litigants
−
−
908077 ALBERTA LTD (ESCAPE & RELAX) V 1313608 ALBERTA LTD, 2015 ABCA 117
−
LANDMASS DIRTWORX LTD V PRAIRIE MOUNTAIN CONSTRUCTION (2010) INC, 2015
ABQB 362
−
OOMMEN V RAMJOHN, 2015 ABCA 34
2.23
Assistance Before the Court
−
−
−
−
BANK OF MONTREAL V ROGOZINSKY, 2014 ABQB 771
−
CHAPMAN ESTATE V RAMJOHN, 2015 ABCA 58
9
−
ABQB 362
Division 4 – Lawyer of Record
2.24
Lawyer of record
−
FIC REAL ESTATE FUND LTD V LENNIE, 2014 ABQB 105
2.25
Duties of lawyer of record
2.26
Verifying lawyer of record
2.27
Retaining lawyer for limited purposes
2.28
Change in lawyer of record or self-representation
2.29
Withdrawal of lawyer of record
−
FINK V TRALWARE SYSTEMS INC, 2014 ABQB 512
2.30
Service after lawyer ceases to be lawyer of record
2.31
Withdrawal after trial date scheduled
2.32
Automatic termination of lawyer of record and resolving difficulties
PART 3 - COURT ACTIONS
Division 1 – Court Actions and Their Venue
3.1
Rules govern Court actions
3.2
How to start an action
−
LEE V YEUNG, 2012 ABQB 40
−
GATEWAY CHARTERS LTD (SKY SHUTTLE) V EDMONTON (CITY), 2012 ABCA 93
−
TOMPKINS V ALBERTA (APPEALS
COMPENSATION), 2012 ABQB 418
−
GENSTAR DEVELOPMENT COMPANY V PLAINS MIDSTREAM CANADA ULC, 2012 ABQB
457
−
LAASCH V TURENNE, 2012 ABQB 566
−
LAASCH V TURENNE, 2012 ABCA 32
−
−
DASH DISTRIBUTORS INC V POWLIK, 2012 ABQB 770
COMMISSION
10
FOR
ALBERTA
WORKERS’
−
PRAGER V CANADA HOMES 4 RENT.COM INC, 2013 ABQB 3
−
FRYDMAN V PELLETIER, 2013 ABQB 225
−
LUTZ V LUTZ, 2013 ABCA 159
−
UNIVERSITY OF CALGARY V JR, 2013 ABQB 652
−
PATRUS V ALBERTA (WORKER’S COMPENSATION BOARD), 2014 ABCA 117
−
NORTHBRIDGE INDEMNITY
COMPANY, 2014 ABQB 345
−
SHELL CANADA PRODUCTS V SUNTERRA BEEF LTD, 2014 ABCA 243
3.3
Determining the appropriate judicial centre
−
325303 ALBERTA LTD V PRIME PROPERTY MANAGEMENT, 2011 ABQB 817
−
3.4
Claim for possession of land
3.5
Transfer of action
−
3.6
Where an action is carried on
3.7
Post-judgement transfer of action
INSURANCE
CORPORATION
V
INTACT
INSURANCE
Division 2 - Actions Started by Originating Application
Subdivision 1 – General Rules
3.8
Originating applications and associated evidence
−
3.9
Service of originating application and evidence
−
3.10
Application of Part 4 and Part 5
3.11
Service and filing of affidavits and other evidence in reply and response
3.12
Application of Statement of claim rules to originating applications
−
COLD LAKE FIRST NATIONS V ALBERTA (TOURISM, PARKS AND RECREATION), 2013 ABCA
443
−
GEOPHYSICAL SERVICE INCORPORATED V DEVON ARL CORPORATION, 2015 ABQB 137
11
3.13
Questioning on affidavit and questioning witnesses
−
3.14
Originating application evidence (other than judicial review)
Subdivision 2 - Additional Rules Specific to Originating Applications for Judicial Review
−
ALBERTA TEACHERS’ ASSOCIATION V ALBERTA (INFORMATION AND PRIVACY
COMMISSIONER), 2013 ABQB 106
3.15
Originating application for judicial review
−
ANANA V LAKELAND COLLEGE FACULTY ASSOCIATION, 2011 ABQB 313
−
2011 ABQB 699
−
−
GATEWAY CHARTERS LTD (SKY SHUTTLE) V EDMONTON (CITY), 2012 ABCA 93
−
UNLAND V NATURAL RESOURCES CONSERVATION BOARD, 2012 ABQB 501
−
−
SIGGELKOW V CANADA (ATTORNEY GENERAL), 2013 ABQB 116
−
OKOTOKS (TOWN) V FOOTHILLS (MUNICIPAL DISTRICT NO. 31), 2013 ABCA 222
−
−
MAMMOET 13220-33 STREET NE LIMITED V EDMONTON (CITY), 2013 ABQB 663
−
MAMMOET 13220-33 STREET NE LIMITED V EDMONTON (CITY), 2014 ABCA 229
−
−
SKYRIDER HOLDINGS LTD (RE), 2014 ABQB 764
−
AL-GHAMDI V PEACE COUNTRY HEALTH REGION, 2015 ABQB 155
−
F PRINS POTATOES LTD V AGRICULTURE FINANCIAL SERVICES CORPORATION, 2015
ABQB 335
3.16
Originating application for judicial review: habeas corpus
3.17
Attorney General’s right to be heard
3.18
Notice to obtain record of proceedings
−
TRANSALTA GENERATION PARTNERSHIP V BALANCING POOL, 2012 ABQB 2
−
SILVERMAN V ALBERTA (HUMAN RIGHTS COMMISSION), 2012 ABQB 152 (CANLII)
12
−
−
FORT MCKAY FIRST NATION V ALBERTA (ENVIRONMENT AND SUSTAINABLE RESOURCE
DEVELOPMENT), 2014 ABQB 32
3.19
Sending in certified record of proceedings
−
TRANSALTA GENERATION PARTNERSHIP V BALANCING POOL, 2012 ABQB 2
−
−
3.20
Other circumstances when record of proceedings may be required
−
3.21
Limit on questioning
−
AL-GHAMDI V PEACE COUNTRY HEALTH REGION, 2015 ABQB 155
3.22
Evidence on judicial review
−
2011 ABQB 699 (CANLII)
−
UNITED FOOD & COMMERCIAL WORKERS CANADA UNION, LOCAL 401 V NORTH
COUNTRY CATERING LTD, 2012 ABQB 306
−
COLD LAKE FIRST NATION V ALBERTA (TOURISM, PARKS AND RECREATION), 2012 ABQB
579
−
−
ABQB 335
3.23
Stay of decision
−
SOBEYS WEST INC V ALBERTA COLLEGE OF PHARMACISTS, 2014 ABQB 333
3.24
Additional remedies on judicial review
−
−
RP V ALBERTA (DIRECTOR OF CHILD, YOUTH AND FAMILY ENHANCEMENT ACT), 2014
ABQB 767
13
−
RP V ALBERTA (DIRECTOR OF CHILD, YOUTH AND FAMILY ENHANCEMENT), 2015 ABCA
171
Division 3 - Actions Started by Statement of Claim
Subdivision 1 – Statement of claim
3.25
Contents of statement of claim
−
ALBERTA V ALTRIA GROUP, INC, 2015 ABQB 390
Subdivision 2 - Time Limit for Service of Statement of Claim
3.26
Time for service of statement of claim
−
FOSTER V ROBB, 2011 ABQB 776
−
WARDILL V PEEBLES, 2012 ABQB 303
−
NIXON V TIMMS, 2012 ABQB 315
−
SANDERSON ESTATE V POTTER, 2012 ABQB 593
−
FRANSSEN V THULE TOWING SYSTEMS LLC, 2012 ABQB 657
−
MCGOWAN V LANG, 2014 ABQB 403
−
3.27
Extension of time for service
−
FOSTER V ROBB, 2011 ABQB 776 (CANLII)
−
−
VANDEN BRINK V RUSSELL, 2012 ABQB 523
−
−
NIXON V TIMMS, 2013 ABCA 84
−
−
BROUSSEAU V JANZ ESTATE, 2014 ABQB 136
−
−
MARCIL V ELLEFSON, 2014 ABCA 169
−
−
−
ARSENAULT V AUBIN, 2015 ABQB 311
−
MCGOWAN V LANG, 2015 ABCA 217
3.28
Effect of not serving statement of claim in time
14
−
FOSTER V ROBB, 2011 ABQB 776 (CANLII)
−
−
−
3.29
Notice of extension of time for service
Subdivision 3 – Defence to a Statement of Claim, Reply to Defence and Demand of
Notice
3.30
Defendant’s options
−
−
−
3.31
Statement of Defence
−
BARCELLONA V EINERSON, 2012 ABQB 56
−
HAYMOUR V ACIELO, 2015 ABQB 44
−
3.32
Additional options for defendant who files defence
−
CRYSTAL RIDGE FUELS LIMITED V MCINTOSH, 2013 ABQB 618
−
3.33
Reply to Defence
−
3.34
Demand for notice by defendant
3.35
Judgment or order by agreement
−
GINGRICH V GINGRICH, 2012 ABCA 371
Subdivision 4 - Failure to Defend
3.36
Judgment in default of defence and noting in default
−
AGRICULTURE FINANCIAL SERVICES CORPORATION V ZABORSKI, 2013 ABCA 277
−
3.37
Application for judgment against defendant noted in default
15
−
TOERPER V HOARD, 2011 ABQB 85 (CANLII)
−
MCAP SERVICE CORPORATION V CHIANG, 2011 ABQB 477 (CANLII)
−
TLA FOOD SERVICES LTD V 1144707 ALBERTA LTD, 2011 ABQB 550 (CANLII)
−
HERITAGE STATION V SHARIFZADEH, 2012, ABQB 338
−
AGRICULTURE FINANCIAL SERVICES CORPORATION V ZABORSKI, 2013 ABCA 277
−
RODRIGUES V RODRIGUES, 2013 ABQB 718
−
BODKIN LEASING CORPORATION V MIGHTY MOOSE HOLDINGS LTD, 2014 ABQB 280
−
−
STACEY V FOY, 2014 ABCA 394
−
CIBC MORTGAGES INC V FASAMI, 2015 ABQB 286
3.38
Judgment for Recovery of Property
−
TLA FOOD SERVICES LTD V 1144707 ALBERTA LTD, 2011 ABQB 550
3.39
Judgment for debt or liquidated demand
3.40
Continuation of action following judgment
3.41
When no defence is filed in foreclosure action
3.42
Limitation on when judgment or noting in default may occur
Subdivision 5 - Claims Against Co-defendants
3.43
How to make claim against co-defendant
−
HOWALTA ELECTRICAL SERVICES INC V CDI CAREER DEVELOPMENT INSTITUTES LTD,
2011 ABCA 234
Subdivision 6 - Third Party Claims
3.44
When third party claim may be filed
−
2011 ABCA 234
−
BREITKREUZ V HOLST, 2012 ABQB 632
−
O’CONNOR ASSOCIATES ENVIRONMENTAL INC V MEC OP LLC, 2014 ABCA 140
−
2014 ABQB 135
3.45
Form of third party claim
16
−
2011 ABCA 234
−
PAGNUCCO V SEARS CANADA INC, 2011 ABQB 810
−
2014 ABQB 135
−
−
TOLE V LUCKI, 2015 ABQB 231
3.46
Third party defendant becomes party
3.47
Third party defendant’s options
−
HARRISON V XL FOODS INC, 2014 ABQB 431
3.48
Plaintiff’s options
3.49
Third party statement of defence and additional options
3.50
Demand for notice by third party defendant
3.51
Effect of demand for notice
3.52
Consequences of not filing third party statement of defence
3.53
Judgment against third party defendant
3.54
Plaintiff’s reply to third party defence
3.55
Application of rules to third party claims
Subdivision 7 – Counterclaims
3.56
Right to counterclaim
−
−
3.57
Contents of counterclaim
−
−
3.58
Status of counterclaim
−
SOLER & PALAU V MEYER’S SHEET METAL LTD, 2012 ABQB 496
−
OMEGA DEVELOPMENTS INC V CANADA SAFEWAY LIMITED, 2012 ABQB 564
17
−
3.59
Claiming set-off
3.60
Application of rules to counterclaims
−
Division 4 - Request for Admissions, Amendments to Pleadings and Close of Pleadings
3.61
Request for particulars
−
1021018 ALBERTA LTD V BAZINET, 2015 ABQB 151
−
3.62
Amending pleading
−
MANSON INSULATION PRODUCTS LTD V CROSSROADS C & I DISTRIBUTORS, 2011 ABQB
51
−
−
−
DONOGHUE V JOHNSON, 2012 ABQB 295
−
KENT V POSTMEDIA NETWORK INC, 2012 ABQB 559
−
−
ABQB 395
−
−
VACCARO V TWIN CITIES POWER-CANADA, ULC, 2014 ABQB 56
−
ATTILA DOGAN CONSTRUCTION AND INSTALLATION CO INC V AMEC AMERICAS
LIMITED, 2014 ABCA 74
−
OLYMPIA TRUST COMPANY V ODEGARD, 2014 ABQB 204
−
−
RESOURCE WELL COMPLETION TECHNOLOGIES INC V CANUCK COMPLETIONS LTD, 2014
ABQB 209
−
PINO BROS COMMERCIAL INC V SILVER GOLD BULL INC, 2014 ABQB 227
−
JIN V REN, 2014 ABQB 250
−
1356613 ALBERTA LTD V 1313675 ALBERTA LTD, 2014 ABQB 414
−
POFF V GREAT NORTHERN DATA SUPPLIES (AB) LTD, 2015 ABQB 173
−
MICHAEL AWAD PROFESSIONAL CORPORATION V 531845 ALBERTA INC, 2015 ABQB 296
18
−
3.63
Identifying amendments to pleadings
−
3.64
Time limit for application to disallow amendment to pleading
3.65
Permission of Court to amendment before or after close of pleadings
−
51
−
IGNITION ENERGY LTD V DIRECT ENERGY MARKETING LIMITED, 2011 ABQB 90
−
869120 ALBERTA LTD V B & G ENERGY LTD, 2011 ABQB 209
−
−
−
DONOGHUE V JOHNSON, 2012 ABQB 295
−
−
−
CASTLEDOWNS LAW OFFICE MANAGEMENT LTD V FASTTRACK TECHNOLOGIES INC,
2012 ABCA 219
−
−
−
ABQB 395
−
−
ARCELORMITTAL TUBULAR PRODUCTS ROMAN S.A., (MITTAL STEEL ROMAN S.A.) V
CANADIAN NATURAL RESOURCES LIMITED, 2013 ABQB 578
−
−
−
−
−
SPARTEK SYSTEMS INC V BROWN, 2014 ABQB 526
−
−
19
−
−
−
3.66
Costs
−
−
GOSKA NOWAK PROFESSIONAL CORPORATION V ROBINSON, 2011 ABQB 385
−
−
3.67
Close of Pleadings
Division 5 - Significant Deficiencies in Claims
3.68
Court options to deal with significant deficiencies
−
DONALDSON V FARRELL, 2011 ABQB 11
−
FIRST CALGARY SAVINGS & CREDIT UNION LTD V PERERA SHAWNEE LTD, 2011 ABQB 26
−
BARKER V BUDGET RENT-A-CAR OF EDMONTON LTD, 2011 ABQB 123
−
PL V ALBERTA, 2011 ABQB 215
−
MARTIN V GENERAL TEAMSTERS, LOCAL UNION NO 362, 2011 ABQB 412
−
OLCHOWY V ING INSURANCE COMPANY OF CANADA, 2011 ABQB 463
−
−
−
WONG V LEUNG, 2011 ABQB 687
−
−
KINDYLIDES V EDMONTON (CITY), 2011 ABQB 756
−
JAMES V NORTHERN LAKES COLLEGE, 2012 ABQB 6
−
ALBERTA ADOLESCENT RECOVERY CENTRE V CANADIAN BROADCASTING CORPORATION,
2012 ABQB 48
−
−
OLSON LEMONS LLP V KEARL, 2012 ABQB 95
−
−
EDMONTON (CITY) V EDMONTON COMPOSITE ASSESSMENT REVIEW BOARD, 2012
ABQB 154
−
20
−
URBAN LANDMARKS MASTER BUILDER INC V LLOYD’S UNDERWRITERS, 2012 ABQB 224
−
−
−
ENGLER V ENGLER, 2012 ABQB 442
−
STONEY TRIBAL COUNCIL V IMPERIAL OIL RESOURCES LIMITED, 2012 ABQB 557
−
MEADS V MEADS, 2012 ABQB 571
−
FUFA V UNIVERSITY OF ALBERTA, 2012 ABQB 594
−
NEXXTEP RESOURCES LTD V TALISMAN ENERGY INC, 2012 ABQB 708
−
−
DIXON V CANADA (ATTORNEY GENERAL), 2012 ABCA 316
−
KNISS V ELLIOTT, 2012 ABQB 732
−
ORR V ALOOK, 2013 ABQB 86
−
ONISCHUK V ALBERTA, 2013 ABQB 89
−
−
KOWCH V GIBRALTAR MORTGAGE LTD, 2013 ABQB 317
−
VWW V WASYLYSHEN, 2013 ABQB 327
−
JORDAN V ALBERTA LAW ENFORCEMENT RESPONSE TEAMS, 2013 ABQB 330
−
LAFARGE CANADA INC V EDMONTON (CITY), 2013 ABCA 376
−
AG CLARK HOLDINGS LTD V HOOPP REALTY INC, 2013 ABQB 402
−
−
−
CANADIAN NATURAL RESOURCES LIMITED, 2013 ABQB 578
−
ARCELORMITTAL TUBULAR PRODUCTS ROMAN SA V FLUOR CANADA LTD, 2013 ABCA
279
−
−
HOOPP REALTY INC V AG CLARK HOLDINGS LTD, 2014 ABCA 20
−
MURPHY V CAHILL, 2014 ABQB 62
−
SOMJI V WILSON, 2014 ABCA 35
−
KNISS V STENBERG, 2014 ABCA 73
−
HAMILTON V ALBERTA, 2014 ABCA 103
21
−
ASHRAF V SNC LAVALIN ATP INC, 2014 ABQB 220
−
ARABI V ALBERTA, 2014 ABQB 295
−
FRN V ALBERTA, 2014 ABQB 375
−
−
−
BEAULIEU V UNIVERSITY OF ALBERTA, 2014 ABCA 137
−
O’CONNOR ASSOCIATES ENVIRONMENTAL INC V MEC OP LLC, 2014 ABCA 140
−
FISHER V CORAL HILL ENERGY INC, 2013 ABQB 437
−
−
THOMSON V UNIVERSITY OF ALBERTA, 2014 ABQB 434
−
LION CREEK PROPERTIES, LTD, LLP V SOROBEY, 2014 ABQB 495
−
NASCHO ENTERPRISES LTD V EDMONTON (CITY), 2014 ABQB 569
−
CHALIFOUX V GREENOUGH, 2014 ABQB 573
−
JORDAN V CALGARY (CITY), 2014 ABQB 576
−
MCNEIL V DUGGAN, 2014 ABQB 659
−
−
644036 ALBERTA LTD V MORBANK FINANCIAL INC, 2014 ABQB 681
−
−
HONOURABLE PATRICK BURNS ESTATE MEMORIAL TRUST V P BURNS RESOURCES
LIMITED, 2014 ABQB 779
−
−
ANGUS PARTNERSHIP INC V SALVATION ARMY, 2014 ABCA 423
−
JACKSON V JACKSON 3 FARMS LTD, 2015 ABQB 46
−
EDMONTON (CITY) V LAFARGE CANADA INC, 2015 ABQB 56
−
−
JONES V FORT SASKATCHEWAN (CITY), 2015 ABQB 194
−
−
HOOPP REALTY INC V THE GUARANTEE COMPANY OF NORTH AMERICA, 2015 ABQB 270
−
RUSNAK V SHAFIR, 2015 ABQB 290
−
−
RODD V ALBERTA HEALTH SERVICES, 2015 ABQB 320
22
−
STOUT V TRACK, 2015 ABCA 10
−
776826 ALBERTA LTD V OSTROWERCHA, 2015 ABCA 49
Division 6 - Refining Claims and Changing Parties
Subdivision 1 - Joining and Separating Claims and Parties
3.69
Joining claims
−
DOW CHEMICAL CANADA INC V NOVA CHEMICALS CORPORATION, 2015 ABQB 2
−
LAROUCHE V COURT OF QUEEN’S BENCH OF ALBERTA, 2015 ABQB 25
3.70
Parties joining to bring action
−
3.71
Separating claims
3.72
Consolidation or separation of claims and actions
−
MUNRO V MUNRO, 2011 ABCA 279
−
−
−
KLYCHAK V SAMCHUK, 2012 ABQB 85
−
−
FRYDMAN V PELLETIER, 2013 ABQB 225
−
SHERWOOD STEEL LTD V ODYSSEY CONSTRUCTION INC, 2014 ABCA 320
3.73
Incorrect parties not fatal to actions
−
395545 ALBERTA LTD (APPOLLO DRUGS AND HERBS) V TELUS COMMUNICATIONS INC,
2012 ABQB 184
−
−
CHARLESTON V RIC NEW BRUNSWICK INC, 2015 ABQB 306
Subdivision 2 - Changes to Parties
3.74
Adding, removing or substituting parties after close of pleadings
−
51
−
−
23
−
−
−
NETTE V STILES, 2012 ABQB 290
−
CASTLEDOWNS LAW OFFICE MANAGEMENT LTD V FASTTRACK TECHNOLOGIES INC,
2012 ABCA 219
−
−
−
−
−
−
3.75
Adding, removing or substituting parties to originating application
3.76
Action to be taken when defendant or respondent added
3.77
Subsequent encumbrancers not parties in foreclosure action
−
TORONTO DOMINION BANK V LETENDRE, 2012 ABQB 323
−
COMMUNITY FUTURES LESSER SLAVE LAKE REGION V ALBERTA INDIAN INVESTMENT
CORPORATION, 2014 ABCA 232
−
CUMMINGS V STEINKE & COMPANY REALTY LTD, 2015 ABCA 55
PART 4 - MANAGING LITIGATION
Division 1 - Responsibilities of Parties
4.1
Responsibility of parties to manage litigation
−
12
−
4.2
What the responsibility includes
−
−
4.3
Categories of court actions
−
VANDER GRIENDT V CANVEST CAPITAL MANAGEMENT CORP, 2014 ABQB 542
24
4.4
Standard Case Obligations
−
WEINS V DEWALD, 2011 ABQB 400
−
4.5
Complex case obligations
4.6
Settling disputes about complex case litigation plans
4.7
Monitoring and adjusting dates
−
4.8
Court may categorize actions
Division 2 - Court Assistance in Managing Litigation
4.9
Orders to facilitate proceedings
4.10
Assistance by the Court
−
PANICCIA ESTATE V TOAL, 2012 ABCA 397
4.11
Ways the Court may manage action
−
−
4.12
Request for case management
4.13
Appointment of case management judge
−
4.14
Authority of case management judge
−
−
−
−
TL V ALBERTA (CHILD, YOUTH AND FAMILY ENHANCEMENT ACT, DIRECTOR), 2013 ABCA
211
−
4.15
Case management judge presiding at summary trial and trial
−
25
Division 3 - Dispute Resolution by Agreement
Subdivision 2 - Judicial Dispute Resolution
4.16
Dispute resolution processes
−
−
CLIFF V CLIFF, 2012 ABQB 174
−
−
LOZINIK V SUTHERLAND, 2012 ABQB 583
−
RAMPERSAUD V BAUMGARTNER, 2012 ABQB 673
−
−
Subdivision 2 – Judicial Dispute Resolution
4.17
Purpose of judicial dispute resolution
−
4.18
Judicial dispute resolution process
−
4.19
Documents resulting from judicial dispute resolution
−
−
DUECKMAN V DUECKMAN, 2013 ABCA 306
4.20
Confidentiality and use of information
−
4.21
Involvement of judge after process concludes
−
KYLE V KYLE, 2012 ABCA 374
−
<Return to Top>
Division 4 - Security for Payment of Costs Award
4.22
Considerations for security for costs order
−
26
−
AUTOWELD SYSTEMS LIMITED V CRC-EVANS PIPELINE INTERNATIONAL, INC, 2011 ABQB
265
−
SPECTRUM CENTRE FOR PHYSICAL THERAPY AND ATHLETIC REHABILITATION LTD V
FILIPENKO, 2011 ABQB 340
−
XPRESS LUBE & CAR WASH LTD V GILL, 2011 ABQB 457
−
AUTOWELD SYSTEMS LIMITED V CRC-EVANS PIPELINE INTERNATIONAL, INC, 2011 ABCA
243
−
DAGHER V THOMPSON, 2011 ABQB 499
−
TORONTO-DOMINION BANK V SUITEL CANADA EXECUTIVE SUITES, 2011 ABQB 519
−
590863 ALBERTA LTD V DELOITTE AND TOUCHE INC, 2012 ABQB 98
−
−
HAMILL V KUDRYK, 2013 ABCA 37
−
0738827 BC LTD V CPI CROWN PROPERTIES INTERNATIONAL CORPORATION, 2013 ABQB
499
−
BILHETE V WONG, 2013 ABQB 514
−
1251165 ALBERTA LTD V WELLS FARGO EQUIPMENT COMPANY LTD, 2013 ABQB 533
−
−
PORTER V ANYTIME CUSTOM MECHANICAL LTD, 2014 ABQB 193
−
CHALUPA ESTATE V CHALUPA, 2014 ABCA 104
−
−
VACCARO V TWIN CITIES POWER, LLC, 2014 ABCA 146
−
−
−
−
−
WILLARD V COMPTON PETROLEUM CORPORATION, 2015 ABQB 8
−
PARKLAND INDUSTRIES LTD V PARKLAND FUEL CORPORATION, 2015 ABQB 10
−
WARMAN V LAW SOCIETY OF ALBERTA, 2015 ABQB 230
−
OWNERS: CONDOMINIUM PLAN NO 0125764 V AMBER EQUITIES INC, 2015 ABQB 235
−
PM&C SPECIALIST CONTRACTORS INC V HORTON CBI LIMITED, 2015 ABQB 248
4.23
Contents of security for costs order
27
−
FILIPENKO, 2011 ABQB 340
−
−
TORONTO-DOMINION BANK V SUITEL CANADA EXECUTIVE SUITES, 2011 ABQB 519
−
−
MANSON INSULATION PRODUCTS LTD V CROSSROADS C&I DISTRIBUTORS, 2014 ABQB
634
−
<Return to Top>
Division 5 - Settlement Using Court Process
4.24
Formal offers to settle
−
581257 ALBERTA LTD V AUJLA, 2011 ABQB 539
−
LDW V KDM, 2011 ABQB 800
−
ADAMS V ADAMS, 2011 ABQB 812
−
−
−
−
−
−
SHAW V SHAW, 2014 ABQB 165
−
−
OMAR V ALI, 2014 ABQB 599
−
KON CONSTRUCTION LTD V TERRANOVA DEVELOPMENTS LTD, 2014 ABQB 665
−
SNIHUR V GRACE, 2015 ABQB 7
−
CHISHOLM V LINDSAY, 2015 ABCA 179
4.25
Acceptance of formal offer to settle
−
4.26
If costs are not dealt with in formal offer to settle
−
4.27
Status of formal offer to settle and acceptance
28
−
4.28
Confidentiality of formal offer to settle
−
−
4.29
Costs consequences of formal offer to settle
−
RIC NEW BRUNSWICK INC V TELECOMMUNICATIONS RESEARCH LABORATORIES, 2011
ABCA 10
−
RUBIN V GENDEMANN, 2011 ABQB 466
−
MCNULTY V EDMONTON (CITY), 2011 ABQB 481
−
−
CLANCY V GOUGH, 2011 ABQB 778
−
−
−
−
−
ZAHN V TAUBNER, 2012 ABQB 636
−
−
−
TLM V MGH, 2013 ABQB 14
−
−
−
−
DECHANT V REBER, 2014 ABQB 342
−
−
−
−
VALLIERES V VOZNIAK, 2014 ABCA 384
−
−
EQUITABLE TRUST COMPANY V LOUGHEED BLOCK INC, 2015 ABCA 37
4.30
When this division does not apply
29
Division 6 - Delay in an Action
4.31
Application to deal with delay
−
BRAR V PAWA, 2010 ABQB 779
−
−
−
UNIVERSITY OF ALBERTA V CHANG, 2011 ABQB 595 AND 2011 ABQB 596
−
FRANCHUK V SCHICK, 2013 ABQB 532
−
EMPSON V WENZEL DOWNHOLE TOOLS LTD, 2013 ABCA 418
−
CABRERA V STEED, 2013 ABPC 361
−
−
−
2014 ABQB 741
−
−
JDC CONTRACTING LTD V MOOSE MOUNTAIN EQUIPMENT INC, 2015 ABQB 98
−
−
−
−
BARATH V SCHLOSS, 2015 ABQB 332
−
STEPARYK V ALBERTA, 2015 ABCA 125
4.32
Agreement about delay
−
4.33
Dismissal for long delay
−
BRAR V PAWA, 2010 ABQB 779
−
HOODA V HSBC CANADIAN DIRECT INSURANCE, 2011 ABQB 196
−
GOSHULAK V NGUYEN, 2011 ABQB 346
−
−
−
−
CARTER V SEARS CANADA INC, 2011 ABQB 732
30
−
−
WIENS V DEWALD, 2012 ABQB 172
−
SUCKER CREEK FIRST NATION V CANADA (ATTORNEY GENERAL), 2012 ABQB 460
−
−
−
HOSACK V WIEGERS, 2012 ABQB 739
−
BARRETT V ALBERTA (PUBLIC TRUSTEE), 2012 ABCA 212
−
FETHERSTON V HILDERMAN, 2013 ABCA 401
−
CABRERA V STEED, 2013 ABPC 361
−
KRIETER V ALBERTA, 2014 ABQB 349
−
−
−
MILNE V DZIADYK, 2014 ABQB 407
−
CHORNEY V THOMPSON, 2014 ABQB 410
−
−
−
CHARIK CUSTOM HOMES LTD V SARA DEVELOPMENT INC, 2014 ABQB 63
−
TUREK V OLIVER, 2014 ABCA 327
−
−
2014 ABQB 741
−
−
−
−
HUMPHREYS V HANNE, 2015 ABQB 143
−
WEAVER V CHERNIAWSKY, 2015 ABQB 157
−
−
−
−
DELORME V CANADA (ATTORNEY GENERAL), 2015 ABQB 240
−
31
−
BARATH V SCHLOSS, 2015 ABQB 332
−
−
Division 7 – Transfer and Transmission of Interest
4.34
Stay of proceedings on transfer or transmission of interest
−
OLYMPIA TRUST COMPANY V ODEGARD, 2014 ABQB 204
−
SILVERADO OILFIELD VENTURES LTD V DAVIDSON, 2014 ABQB 218
−
4.35
Death has no effect on action after evidence heard
Division 8 - Discontinuance
4.36
Discontinuance of claim
−
SUKHWANT SHERGILL V SKENE, 2011 ABQB 334
−
NEWEL POST DEVELOPMENTS LTD V 1402801 ALBERTA LTD, 2012 ABQB 422
−
LETHBRIDGE INDUSTRIES LTD V ALBERTA (HUMAN RIGHTS COMMISSION), 2015 ABQB
179
4.37
Discontinuance of Defence
PART 5 - DISCLOSURE OF INFORMATION
5.1
Purpose of this Part
−
−
−
ARAAM INC V AMAN BUILDING CORPORATION, 2011 ABQB 631
−
LAY V LAY, 2012 ABCA 303
−
RAINVILLE V PONTIN, 2013 ABQB 256
−
UNIVERSITY OF CALGARY V JR, 2013 ABQB 652
−
−
−
−
32
−
Division 1 - How Information Is Disclosed
Subdivision 1 - Introductory Matters
5.2
When something is relevant and material
−
MAHAMAD V MATTHEWS, 2011 ABQB 187
−
−
−
RICHARDSON V SHELL CANADA LTD, 2012 ABQB 170
−
WEATHERFORD CANADA PARTNERSHIP V ADDIE, 2012 ABQB 215
−
−
TORONTO-DOMINION BANK V SUITEL CANADA EXECUTIVE SUITES CORPORATION, 2012
ABQB 699
−
−
ATTILA DOGAN CONSTRUCTION V AMEC AMERICAS LIMITED, 2012 ABCA 379
−
−
ROYAL BANK OF CANADA V KADDOURA, 2013 ABQB 630
−
JABNEEL CONSTRUCTION INC V LAMONT (TOWN), 2013 ABQB 648
−
−
AMACK V WISHEWAN, 2014 ABQB 242
−
−
CARROLL V ATCO ELECTRIC LTD, 2014 ABCA 364
−
−
AUER V AUER, 2015 ABQB 67
−
−
−
KADDOURA V HANSON, 2015 ABCA 154
5.3
Modification or waiver of this Part
−
−
MEDICINE SHOPPE CANADA INC V DEVCHAND, 2012 ABQB 375
−
33
−
NGUYEN V KOEHN, 2012 ABQB 655
−
−
CARROLL V ATCO ELECTRIC LTD, 2014 ABQB 378
−
−
−
5.4
Appointment of Corporate Representatives
−
−
−
−
CDM DIRECT MAIL V THE CENTRE FOR IMMIGRATION POLICY REFORMS, 2015 ABCA 168
Subdivision 2 - Disclosing and Identifying Relevant and Material Records
5.5
When affidavit of records must be served
−
−
BUDD V MBE JET LTD, 2012 ABQB 714
−
−
−
−
−
−
RVB MANAGEMENTS LTD V ROCKY MOUNTAIN HOUSE (TOWN), 2015 ABCA 188
5.6
Form and contents of affidavit of records
−
−
RHINO LEGAL FINANCE INC V SALMON, 2012 ABQB 169
−
−
CHAN V CALGARY REMAND CENTRE, 2012 ABQB 325
−
−
MCALLISTER V CALGARY (CITY), 2012 ABCA 346
−
34
−
−
JABNEEL CONSTRUCTION INC V LAMONT (TOWN), 2013 ABQB 648
−
−
−
GAW V TRISURA GUARANTEE INSURANCE COMPANY, 2015 ABQB 93
−
−
−
RVB MANAGEMENTS LTD V ROCKY MOUNTAIN HOUSE (TOWN), 2015 ABCA 188
−
5.7
Producible Records
−
−
5.8
Records for which there is an objection to produce
−
−
−
−
−
5.9
Who makes affidavit of records
5.10
Subsequent disclosure of records
−
991656 ALBERTA LTD V ISFELD, 2011 ABQB 469
−
−
CUBBON BUILDING CENTER LTD V CONDOMINIUM CORPORATION NO 1023241, 2014
ABQB 365
−
−
−
5.11
Order for record to be produced
−
35
−
CANADIAN NATURAL RESOURCES v SHAWCOR LTD, 2014 ABCA 289 (FRASER, CONRAD
and WATSON JJA)
−
−
UNIVERSITY OF CALGARY V JR, 2015 ABCA 118
−
5.12
Penalty for not serving affidavit of records
−
−
BUDD V MBE JET LTD, 2012 ABQB 714
−
SUN LIFE ASSURANCE COMPANY OF CANADA V TOM 2003-1 LIMITED PARTNERSHIP #2,
2010 ABQB 815
−
5.13
Obtaining records from others
−
−
−
MCALLISTER V CALGARY (CITY), 2012 ABCA 346
−
AECON INDUSTRIAL WESTERN V INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,
IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS, LOCAL LODGE NO. 146,
2013 ABQB 122
−
−
5.14
Inspection and copying of records
−
5.15
Admissions of authenticity of records
−
CCS CORPORATION V PEMBINA PIPELINE CORPORATION, 2014 ABCA 390
−
FIRST CALGARY HOLDINGS (ALB) CORPORATION V METROPOLITAN VENTURES INC, 2015
ABQB 54
−
−
5.16
Undisclosed records not to be used without permission
−
−
36
Subdivision 3 - Questions to Discover Relevant and Material Records and Relevant and
Material Information
5.17
People who may be questioned
−
−
GOLDEN ESTATE V NEILSON, 2011 ABCA 338
−
−
−
CARROLL V ATCO ELECTRIC LTD, 2014 ABQB 378
−
−
−
−
5.18
Persons providing services to corporation
−
−
HUNKA V WAIWARD STEEL FABRICATORS LTD, 2011 ABCA 142
−
5.19
Limit or cancellation of questioning
−
5.20
When questioning is to take place
5.21
Appointment for questioning
5.22
Questioning options
5.23
Preparation for questioning
5.24
Oral and written questioning limitations
5.25
Appropriate questions and objections
−
−
−
37
−
ABQB 699
−
−
ABQB 395
−
−
−
5.26
Transcript of oral questioning
−
RO V DF, 2015 ABCA 14
5.27
Continuing duty to disclose
−
RBZ CAPITAL CORP V PETROL ALCHEMY, LLC, 2014 ABQB 102
−
634
5.28
Written questions
5.29
Acknowledgment of corporate witness’s evidence
−
SECURE ENERGY SERVICES INC V CCS CORPORATION, 2014 ABQB 107
−
−
5.30
Undertakings
−
991656 ALBERTA LTD V ISFELD, 2011 ABQB 469
−
−
ABQB 699
−
−
PM&C SPECIALIST CONTRACTORS INC V HORTON CBI LIMITED, 2015 ABQB 248
5.31
Use of transcript and answers to written questions
−
634
−
ORLECKI V CHALLENGE INSURANCE GROUP INC, 2014 ABQB 664
−
38
−
5.32
When information may be used
−
−
5.33
Confidentiality and use of information
−
HALL V WILLCOX, 2011 ABQB 78
−
−
−
NOVOTNY V LEPAN, 2011 ABQB 205
−
1199918 ALBERTA LTD V TRL HOLDINGS INC, 2011 ABQB 506
−
−
−
−
MILAVSKY V 353396 ALBERTA INC, 2013 ABCA 253
−
−
SECURE ENERGY SERVICES INC V CCS CORPORATION, 2014 ABQB 107
−
−
ORLECKI V CHALLENGE INSURANCE GROUP INC, 2014 ABQB 664
−
GAW V TRISURA GUARANTEE INSURANCE COMPANY, 2015 ABQB 93
−
Division 2 - Experts and Expert Reports
5.34
Service of expert’s report
−
−
CAMPBELL V BEEKMAN, 2011 ABQB 437
−
WILDE V LANGTON, 2012 ABQB 742
−
GUAY ESTATE, 2013 ABQB 58
−
ALBERTA (MINISTER OF JUSTICE AND ATTORNEY GENERAL) V KOUCH, 2014 ABCA 215
−
CORNELSON V ALLIANCE PIPELINE LTD, 2014 ABQB 436
5.35
Sequence of exchange of experts’ reports
−
39
−
CAMPBELL V BEEKMAN, 2011 ABQB 437
−
STEWART ESTATE V TAQA NORTH LIMITED, 2012 ABQB 87
−
−
−
−
5.36
Objection to expert’s report
−
−
KINGSWAY GENERAL INSURANCE COMPANY V FEKETE CONSTRUCTION CO. LTD, 2011
ABQB 815
−
−
5.37
Questioning experts before trial
−
−
5.38
Continuing obligation on expert
−
5.39
Use of expert’s report at trial without expert
−
−
GUAY ESTATE, 2013 ABQB 58
5.40
Expert’s attendance at trial
−
MEEHAN V HOLT, 2011 ABQB 110
−
Division 3 - Medical Examinations by Health Care Professionals
5.41
Medical examinations
−
NYSTROM V RANSON, 2011 ABQB 116
−
FORTH V MATHER, 2011 ABQB 303
−
VECKENSTEDT V YOUSSEF, 2011 ABQB 735
−
40
−
−
GORDON V TAYLOR, 2014 ABQB 11
−
5.42
Options during medical examination
−
−
−
−
5.43
Payment of costs of medical examinations
−
−
−
5.44
Conduct of examination
−
−
−
ADACSI V ADMIN, 2013 ABCA 315
−
PART 6 – RESOLVING ISSUES AND PRESERVING RIGHTS
Division 1 - Applications to the Court
6.1
What this Division applies to
−
−
MUHAMMAD V CANLANKA VENTURES LTD, 2015 ABQB 145
6.2
Application to the Court to exercise its authority
Subdivision 1 - Application Process Generally
6.3
Applications generally
−
−
41
−
36
−
BAKER V BAKER, 2012 ABQB 296
−
−
HAMILTON V LEACH, 2013 ABCA 423
−
BRANDNER V ALBERTA (JUSTICE & SOLICITOR GENERAL), 2014 ABQB 211
−
−
6.4
Applications without notice
−
BROUSSEAU V FOLEY, 2011 ABQB 813
−
−
Subdivision 2 - Application in Foreclosure Action
6.5
Notice of application in foreclosure action
−
ROYAL BANK OF CANADA V PLACE, 2010 ABQB 733
−
Subdivision 3 – Responses, Replies and Decisions on Applications
6.6
Responses and reply to application
−
HAMILTON V LEACH, 2013 ABCA 423
−
−
KARMALI V DONORWORX INC, 2015 ABQB 105
−
MILAVSKY V MILAVSKY, 2015 ABQB 395
−
NOUSHIN V ADESA AUCTIONS CANADA CORPORATION, 2015 ABQB 411
6.7
Questioning of affidavit in support, response and reply to application
−
−
6.8
Questioning witness before hearing
−
HALL V WILLCOX, 2011 ABQB 78
−
GERRY’S WELL SERVICES V FOUR WINDS ENERGY SERVICES LTD, 2011 ABQB 380
42
−
PRECISION DRILLING CANADA LIMITED PARTNERSHIP V YANGARRA RESOURCES LTD,
2013 ABQB 2
−
−
MUNRO (RE), 2014 ABQB 636
6.9
How the Court considers applications
6.10
Electronic hearing
6.11
Evidence at application hearings
−
36
−
−
−
−
−
WINDSOR V CANADIAN RAILWAY LTD, 2014 ABCA 108
−
−
−
−
−
ABQB 54
−
−
−
−
INDARSINGH (RE), 2015 ABQB 158
−
6.12
If person does not get notice of application
6.13
Recording hearings when only one party present
Subdivision 4 - Appeal from Master’s Judgment or Order
6.14
Appeal from master’s judgment or order
−
ROYAL BANK OF CANADA V PLACE, 2010 ABQB 733
43
−
SHENGLI OILFIELD FREET PETROLEUM EQUIPMENT CO. LTD V ASCENSION VIRTUAL
GROUP LTD, 2010 ABQB 795
−
JANVIER V 834474 ALBERTA LTD, 2010 ABQB 800
−
LINDNER V CHITTICK, 2010 ABQB 819
−
LEE V LEPAGE, 2010 ABQB 829
−
HERITAGE STATION INC V PROFESSIONAL STUCCO INC, 2011 ABQB 18
−
GUDZINSKI ESTATE V ALLIANZ GLOBAL RISKS US INSURANCE COMPANY, 2011 ABQB 283
−
ELBOW RIVER MARKETING LIMITED PARTNERSHIP V CANADA CLEAN FUELS INC, 2011
ABQB 321
−
HOME TRUST V ROBINSON, 2011 ABQB 480
−
−
TURNER V DN DEVELOPMENTS LTD, 2011 ABQB 554
−
ROYAL BANK OF CANADA V SAMRA, 2011 ABQB 556
−
CANADA (NATIONAL REVENUE) V GLAZER, 2011 ABQB 559
−
ALBERTA TREASURY BRANCHES V VALERIO, 2011 ABQB 580
−
KYDD V ABOLARIN, 2011 ABQB 690
−
SCOTIA MORTGAGE CORPORATION V LEWANDOWSKI, 2011 ABQB 822
−
GUDZINSKI ESTATE V ALLIANZ GLOBAL RISKS US INSURANCE COMPANY LIMITED, 2012
ABCA 5
−
TWINN V SAWRIDGE BAND, 2012 ABQB 44
−
DAVID M GOTTLIEB, PROFESSIONAL CORPORATION V CHAMPION HOMES INC, 2012
ABQB 64
−
BAHCHELI V YORKTON SECURITIES INC, 2012 ABCA 166
−
VAN CAMP V CHROME HORSE MOTORCYCLE INC, 2012 ABQB 175
−
VERBEEK V STEWART, 2012 ABQB 415
−
THUNBERG V ZADWORNY, 2012 ABQB 576
−
JAMES V NORTHERNLAKES COLLEGE, 2012 ABQB 588
−
P BURNS RESOURCES LIMITED V LOCKE, STOCK & BARREL COMPANY LTD, 2013 ABQB
129
−
BOYD V COOK, 2013 ABCA 266
−
PARAMOUNT MORTGAGE CORP V AVENUE AH CONSTRUCTION GP CORP, 2014 ABQB 84
−
P BURNS RESOURCES LIMITED V LOCKE, STOCK & BARREL COMPANY LTD, 2014 ABCA 40
−
KULAGA V FIRST NATIONAL FINANCIAL GP CORPORATION, 2014 ABQB 400
44
−
STONEY FIRST NATION V IMPERIAL OIL RESOURCES LIMITED, 2014 ABQB 408
−
−
−
FINK V TRAKWARE SYSTEMS INC, 2015 ABQB 133
−
−
Subdivision 5 – Procedure for Questioning
6.15
Appointment for questioning under this part
6.16
Contents of notice of appointment
6.17
Payment of allowance
−
SAVEVA V FLIGHT CENTRE, 2012 ABQB 477
6.18
Lawyer’s responsibilities
6.19
Interpreter
6.20
Form of questioning and transcript
−
PRECISION DRILLING CANADA LIMITED PARTNERSHIP V YANGARRA RESOURCES LTD,
2013 ABQB 2
−
−
Division 2 – Preserving Evidence and Obtaining Evidence Outside Alberta
6.21
Preserving evidence for future use
−
6.22
Obtaining evidence outside Alberta
6.23
Duties of person authorized to take evidence
6.24
Assistance to judicial authorities outside Alberta
−
RICHARDSON V SHELL CANADA LTD, 2012 ABQB 170
Division 3 – Preserving and Protecting Property or its Value and Inspection of Property
6.25
Preserving or protecting property or its value
45
−
OLYMPIA TRUST COMPANY V TOTTEN, 2012 ABQB 488
6.26
Inspection or examination of property
6.27
Notice before disposing of anything held by the Court
Division 4 – Restriction on Media Reporting and Public Access to Court Proceedings
6.28
Application of this Division
−
EDMONTON POLICE SERVICE
−
6.29
Restricted court access applications and orders
−
6.30
When restricted court access application may be filed
−
6.31
Timing of application and service
−
−
6.32
Notice to media
−
ERDMANN V INSTITUTE OF CHARTERED ACCOUNTANTS OF ALBERTA (COMPLAINTS
INQUIRY COMMITTEE), ), 2012 ABCA 52
−
−
EDMONTON POLICE SERVICE
−
6.33
Judge assigned to application
−
6.34
Application to seal or unseal court files
−
6.35
Persons having standing at application
6.36
Confidentiality of information
V
ALBERTA
V
ALBERTA
46
(INFORMATION
(INFORMATION
AND
AND
PRIVACY
PRIVACY
Division 5 - Facilitating Proceedings
6.37
Notice to admit
−
ANDRIUK V MERRILL LYNCH CANADA INC, 2011 ABQB 59
−
LABOUCAN V RED ROAD HEALING SOCIETY, 2011 ABQB 377
−
TS V STAZENSKI, 2011 ABQB 508
−
RATCH V MACLEOD, 2011 ABQB 820
−
6.38
Requiring attendance for questioning
−
−
6.39
Order to produce prisoner
Division 6 – Resources to Assist the Court
Subdivision 1 – Court Experts
6.40
Appointment of court expert
−
KRAMER’S TECHNICAL SERVICES INC V ECO-INDUSTRIAL BUSINESS PARK INC, 2015 ABQB
383
6.41
Instructions or questions to court expert
−
383
6.42
Application to question court expert
6.43
Costs of court expert
Subdivision 2 - Referees
6.44
Persons who are referees
−
383
6.45
References to referee
−
383
47
6.46
Referee’s report
−
383
Division 7 – Court-appointed Receiver
6.47
Court-appointed receiver
Division 8 - Replevin
6.48
6.49
Application for replevin order
6.50
Replevin order
6.51
Enforcement of replevin order
6.52
Respondent may apply for remedy
6.53
Expiry of replevin order
Division 9 - Interpleader
6.54
Definitions
6.55
Nature of application for interpleader order
6.56
Application for interpleader order
6.57
Interpleader applicant not disentitled
6.58
Interpleader order
6.59
Civil enforcement agency application
6.60
Several claims combined
6.61
Enforcement from different courts
6.62
Claim by third person
6.63
Notice by civil enforcement agency
6.64
Security interest
6.65
Expeditious sale
48
PART 7 – RESOLVING CLAIMS WITHOUT FULL TRIAL
Division 1 - Trial of Particular Questions or Issues
7.1
Application to resolve particular questions or issues
−
PONICH V PONICH ESTATE, 2011 ABQB 33
−
51
−
ENVISION EDMONTON OPPORTUNITIES SOCIETY V EDMONTON (CITY), 2011 ABQB 29
−
−
−
−
MOUME V LONDONDERRY SHOPPING CENTRE INC, 2011 ABQB 612
−
−
GALLANT V FARRIES, 2012 ABCA 98
−
−
EDMONTON FLYING CLUB V EDMONTON REGIONAL AIRPORTS AUTHORITY, 2012 ABQB
563
−
LKD V JB, 2012 ABCA 72
−
EDMONTON FLYING CLUB V EDMONTON REGIONAL AIRPORTS AUTHORITY, 2013 ABCA
91
−
SHREEM HOLDINGS INC V BARR PICARD, 2014 ABQB 112
−
LOFTHAUG V CANADIAN IMMIGRATION SPECIALISTS LTD, 2014 ABQB 115
−
−
ALBERTA RESIDENTIAL CORPORATION V CERTAIN LLOYDS UNDERWRITERS, 2015 ABCA
195
Division 2 - Summary Judgment
7.2
Application for judgment
−
51
−
−
RATCH V MACLEOD, 2011 ABQB 820
49
−
OW V WP, 2012 ABQB 252
−
ROYAL BANK OF CANADA V LEE, 2012 ABQB 320
−
CRAIK V ALBERTA TREASURY BRANCHES, 2012 ABQB 373
−
SCOTT & ASSOCIATES ENGINEERING LTD V FINAVERA RENEWABLES INC, 2012 ABCA 181
−
BLOOD TRIBE V CANADA (ATTORNEY GENERAL), 2012 ABCA 206
−
STATOIL CANADA LTD V CADILLAC FAIRVIEW CORPORATION, 2012 ABQB 618
−
−
GATEWAY MORTGAGE INVESTMENT CORP V 1384125 ALBERTA LTD, 2014 ABQB 45
−
ROYAL BANK OF CANADA V BENCHMARK REAL ESTATE APPRAISALS LTD, 2014 ABQB 297
−
TRUEHOPE INC V STRINGAM, 2014 ABQB 386
−
−
−
CHANDOS CONSTRUCTION LTD V BUILDTECH FRAMING INC, 2014 ABQB 597
−
−
−
WOLFE V SHAWCOR LTD, 2015 ABQB 181
−
−
7.3
Application and decision
−
SHAVER V CO-OPERATORS GENERAL INSURANCE COMPANY, 2011 ABQB 188
−
MANUFACTURERS LIFE INSURANCE COMPANY V EXECUTIVE CENTRE AT MANULIFE
PLACE INC, 2011 ABQB 189
−
MARTIN V GENERAL TEAMSTERS, LOCAL UNION NO 362, 2011 ABQB 412
−
ENCANA CORPORATION V ARC RESOURCES LTD, 2011 ABQB 431
−
KWAN V SUPERFLY INC, 2011 ABQB 343
−
−
1238117 ALBERTA LTD V FARM AIR PROPERTIES INC, 2011 ABQB 527
−
CONDOMINIUM CORPORATION NO. 0425177 V JESSAMINE, 2011 ABQB 644
−
PETERS V WILSON ESTATE, 2011 ABQB 665
−
EXCELSIOR PROPERTIES LTD V COSENTINO DEVELOPMENTS INC, 2011 ABQB 666
−
50
−
−
CHUNARA V JINA, 2011 ABQB 709
−
−
KINGSWAY GENERAL INSURANCE COMPANY V FEKETE CONSTRUCTION CO. LTD, 2011
ABQB 815
−
−
FIRST NATIONAL FINANCIAL GP CORP V KULAGA, 2012 ABQB 8
−
LYONS V BALDWIN, 2012 ABQB 12
−
−
GORSALITZ V BMO BANK OF MONTREAL, 2012 ABQB 24
−
CONDOMINIUM CORPORATION NO 0321365 V MCAP FINANCIAL CORPORATION, 2012
ABCA 26
−
FIRST NATIONAL FINANCIAL GP CORPORATION V MACRO REALTY AND MANAGEMENT
LTD, 2012 ABQB 69
−
SZTUCZKA V KNEBEL, 2012 ABQB 72
−
HALL V HSBC CAPITAL (CANADA) INC, 2012 ABQB 114
−
HALLIBURTON GROUP CANADA INC V BORTH, 2012 ABQB 130
−
ANOTHER LOOK VENTURES INC V 624157 ALBERTA LTD, 2012 ABQB 143
−
BLYDO V ONE EXPLORATION INC, 2012 ABQB 153
−
LYONS V BALDWIN, 2012 ABQB 156
−
GH V ALCOCK, 2012 ABQB 166
−
GAYTON V RINHOLM, 2012 ABQB 232
−
−
ROYAL BANK OF CANADA V LEE, 2012 ABQB 320
−
MORRONE ESTATE V CAPUTO, 2012 ABQB 370
−
CRAIK V ALBERTA TREASURY BRANCHES, 2012 ABQB 373
−
−
CIBC MORTGAGES INC V LUCAS, 2012 ABQB 402
−
MRAICHE INVESTMENT CORPORATION V MCLENNAN ROSS LLP, 2012 ABCA 95
−
BALM V AIKINS MACAULEY & THORVALDSON LLP, 2012 ABCA 96
−
SCOTT & ASSOCIATES ENGINEERING LTD V FINAVERA RENEWABLES INC, 2012 ABCA 181
−
YAWORSKI V GOWLING LAFLEUR HENDERSON LLP, 2012 ABQB 424
51
−
ALBERTA (ADMINISTRATOR, MOTOR VEHICLE ACCIDENT CLAIM ACT) V RIENDEAU, 2012
ABQB 434
−
−
−
SCOTIA MORTGAGE CORPORATION V AAB, 2012 ABQB 464
−
DINGWALL V FOSTER, 2012 ABQB 476
−
BOSSIO V ANDREANA, 2012 ABQB 492
−
SOLER & PALAU V MEYER’S SHEET METAL LTD, 2012 ABQB 496
−
KINDRACHUK V BELSECK, 2012 ABQB 515
−
STONEY TRIBAL COUNCIL V IMPERIAL OIL RESOURCES LIMITED, 2012 ABQB 557
−
−
−
FUFA V UNIVERSITY OF ALBERTA, 2012 ABQB 594
−
TORONTO DOMINION BANK V POON, 2012 ABQB 606
−
INTACT INSURANCE V LEUNG, 2012 ABQB 608
−
STATOIL CANADA LTD V CADILLAC FAIRVIEW CORPORATION, 2012 ABQB 618
−
ARBUTUS CAPITAL LEASING LTD V CSM MEDIA INC, 2012 ABQB 650
−
−
−
WILDE V LANGTON, 2012 ABQB 742
−
ELBOW RIVER MARKETING LIMITED PARTNERSHIP V CANADA CLEAN FUELS INC, 2012
ABCA 328
−
−
ORR V ALOOK, 2013 ABQB 86
−
ONISCHUK V ALBERTA, 2013 ABQB 89
−
P BURNS RESOURCES LIMITED V LOCKE, STOCK & BARREL COMPANY LTD, 2013 ABQB
129
−
−
PARKER V HER MAJESTY THE QUEEN, 2013 ABQB 296
−
KOWCH V GIBRALTAR MORTGAGE LTD, 2013 ABQB 317
−
JORDAN V ALBERTA LAW ENFORCEMENT RESPONSE TEAMS, 2013 ABQB 330
−
ENCANA CORPORATION V ARC RESOURCES LTD, 2013 ABQB 352
52
−
AIRDRIE (CITY) V SILVERCREEK DEVELOPMENT CORPORATION, 2013 ABQB 357
−
−
1301905 ALBERTA LTD V SWORD ENERGY INC, 2013 ABQB 444
−
DEGUIRE V BURNETT, 2013 ABQB 488
−
−
0738827 BC LTD V CPI CROWN PROPERTIES INTERNATIONAL CORPORATION, 2013 ABQB
499
−
−
ROYAL BANK OF CANADA V RAHMANI, 2013 ABQB 565
−
PHOENIX LAND VENTURES LTD V FIC INVESTMENTS USA CORP, 2013 ABQB 614
−
LAKEVIEW DEVELOPMENTS INC V STONY PLAIN (TOWN), 2013 ABQB 619
−
MONCRIEFF V HAYNE, 2013 ABQB 657
−
−
JACKSON V CANADIAN NATIONAL RAILWAY, 2013 ABCA 440
−
CNH CAPITAL CANADA LTD V HIGHWAY EQUIPMENT SALES LTD, 2014 ABQB 6
−
LAIRD V SWORD ENERGY INC, 2014 ABQB 13
−
BARRETT ESTATE V KASHA, 2014 ABQB 12
−
PERREAL V KNIBB, 2014 ABQB 15
−
GATEWAY MORTGAGE INVESTMENT CORP V 1384125 ALBERTA LTD, 2014 ABQB 45
−
−
ORR V FORT MCKAY FIRST NATION, 2014 ABQB 111
−
LOFTHAUG V CANADIAN IMMIGRATION SPECIALISTS LTD, 2014 ABQB 115
−
WHITECOURT POWER LIMITED PARTNERSHIP V INTERPRO TECHNICAL SERVICES LTD
2014 ABQB 135
−
ALLEN V RADEJ, 2014 ABQB 171
−
P BURNS RESOURCES LIMITED V LOCKE, STOCK & BARREL COMPANY LTD, 2014 ABCA 40
−
DINGWALL V DORNAN, 2014 ABCA 89
−
WINDSOR V CANADIAN RAILWAY LTD, 2014 ABCA 108
−
BRANDNER V ALBERTA (JUSTICE & SOLICITOR GENERAL), 2014 ABQB 211
−
−
−
53
−
1214934 ALBERTA LTD V CLEAN CUT LTD, 2014 ABQB 330
−
PRUNKL V TAMMY JEAN’S DINER LTD, 2014 ABQB 338
−
−
KULAGA V FIRST NATIONAL FINANCIAL GP CORPORATION, 2014 ABQB 400
−
−
−
−
AT FILMS INC V AT PLASTICS INC, 2014 ABQB 422
−
−
WOOD BUFFALO HOUSING & DEVELOPMENT CORPORATION V FLETT, 2014 ABQB 537
−
NASCHO ENTERPRISES LTD V EDMONTON (CITY), 2014 ABQB 569
−
AGRICULTURAL FINANCIAL SERVICES CORPORATION V FELKER, 2014 ABQB 587
−
RBC LIFE INSURANCE COMPANY V HERITAGE INSURANCE & CONSULTING LTD, 2014
ABQB 595
−
−
DHILLON V ANDERSON, 2014 ABQB 609
−
−
−
−
−
−
−
ACCESS MORTGAGE CORPORATION (2004) LIMITED V ARRES CAPITAL INC, 2014 ABCA
280
−
SHERWOOD STEEL LTD V ODYSSEY CONSTRUCTION INC, 2014 ABCA 320
−
−
−
MAXWELL V WAL-MART, 2014 ABCA 383
−
−
WP V ALBERTA, 2014 ABCA 404
54
−
−
−
HARDING V HUDSONS CANADIAN HOSPITALITY LTD, 2015 ABQB 38
−
−
JACKSON V JACKSON 3 FARMS LTD, 2015 ABQB 46
−
ABQB 54
−
59
−
KARMALI V DONORWORX INC, 2015 ABQB 105
−
−
SAWYER V CANADIAN LAWYERS INSURANCE ASSOCIATION, 2015 ABQB 132
−
FINK V TRAKWARE SYSTEMS INC, 2015 ABQB 133
−
GEOPHYSICAL SERVICE INCORPORATED V DEVON ARL CORPORATION, 2015 ABQB 137
−
BECKER V CANADIAN URBAN LIMITED, 2015 ABQB 144
−
−
PANNU V URBIA VENTURE CAPITAL LTD, 2015 ABQB 150
−
WOLFE V SHAWCOR LTD, 2015 ABQB 181
−
KLIMP V MEINEMA, 2015 ABQB 204
−
TWOGEE DEVELOPMENTS LTD V FELGER FARMING CO LTD, 2015 ABQB 210
−
SEMCAMS ULC V BLAZE ENERGY LTD, 2015 ABQB 218
−
SOLIS V WORKERS' COMPENSATION BOARD (MILLARD HEALTH), 2015 ABCA 227
−
WARMAN V LAW SOCIETY OF ALBERTA, 2015 ABQB 230
−
OWNERS: CONDOMINIUM PLAN NO 0125764 V AMBER EQUITIES INC, 2015 ABQB 235
−
CALLAN V LORRNEL CONSULTING GROUP LTD, 2015 ABQB 287
−
−
RUSNAK V SHAFIR, 2015 ABQB 290
−
CHARLESTON V RIC NEW BRUNSWICK INC, 2015 ABQB 306
−
FLINT V IRON WILL INNOVATIONS CANADA INC, 2015 ABQB 310
−
MACKEY V SQUAIR, 2015 ABQB 329
−
RAI V 1294477 ALBERTA LTD (VINYL RETRO DANCE LOUNGE), 2015 ABQB 349
55
−
BUSHELL TRANSPORT COMPANY LTD V NOV ENERFLOW ULC, 2015 ABQB 350
−
ROHIT LAND INC V CAMBRIAN STRATHCONA PROPERTIES CORP, 2015 ABQB 375
−
UNION SQUARE APARTMENTS LTD V ACADEMY CONTRACTORS INC (ABALON
CONSTRUCTION), 2015 ABQB 380
−
−
−
STOUT V TRACK, 2015 ABCA 10
−
776826 ALBERTA LTD V OSTROWERCHA, 2015 ABCA 49
−
AMACK V WISHEWAN, 2015 ABCA 147
−
ABBEY LANE HOMES V CHEEMA, 2015 ABCA 173
7.4
Proceedings after summary judgement against party
−
−
Division 3 - Summary Trials
7.5
Application for judgment by way of summary trial
−
BONSMA V TESCO CORPORATION, 2011 ABQB 620
−
SHN GRUNDSTUECKSVERWALTUNGSGESELLSCHAFT MBH & CO SENIORENRESIDENZ
HOPPEGARTEN-NEUENHAGEN KG V HANNE, 2012 ABQB 624
−
−
−
WESTJET V ELS MARKETING INC, 2013 ABQB 666
−
702
−
ORR V FORT MCKAY FIRST NATION, 2014 ABQB 111
−
−
2014 ABQB 135
−
7.6
Response to application
−
−
ENERFLOW INDUSTRIES INC V SUREFIRE INDUSTRIES LTD, 2013 ABQB 196
56
−
−
702
7.7
Application of other rules
−
7.8
Objection to application for judgment by way of summary trial
−
−
−
ENERFLOW INDUSTRIES INC V SUREFIRE INDUSTRIES LTD, 2013 ABQB 196
−
−
−
702
7.9
Decision after summary trial
−
−
−
702
7.10
Judge remains seized of action
−
−
7.11
Order for trial
−
PART 8 - TRIAL
Division 1 – Mode of Trial
8.1
Trial without jury
8.2
Request for jury trial
8.3
Deposit for jury
57
Division 2 - Scheduling of Trial Dates
8.4
Trial date: scheduled by court clerk
−
TU V ZISCHE, 2011 ABQB 443
−
KUMRA V LUTHRA, 2012 ABQB 117
−
−
383
8.5
Trial date: scheduled by the Court
−
−
KUMRA V LUTHRA, 2012 ABQB 117
−
−
8.6
Notice of trial date
−
8.7
Confirmation of trial date
−
GLOBAL FIRST LTD V 1237007 ALBERTA LTD, 2014 ABQB 288
Division 3 – Attendance of Witnesses at Trial
8.8
Notice to attend as witness at trial
8.9
Requiring attendance of witnesses
Division 4 - Procedure at Trial
8.10
Order of presentation
8.11
Absence of witnesses at trial
8.12
Exclusion of witnesses
8.13
No communication with excluded witnesses
8.14
Unavailable or unwilling witness
−
EMPSON V WENZEL DOWNHOLE TOOLS LTD, 2013 ABCA 418
8.15
Notice of persons not intended to be called as witnesses
58
−
8.16
Number of experts
−
8.17
Proving facts
−
TOLIVER V KOEPKE, 2013 ABCA 304
−
8.18
Trial conducted by electronic hearing
8.19
Use of trial evidence in subsequent proceedings
8.20
Application for dismissal at close of plaintiff’s case
−
KULAK V AG CLARK HOLDINGS LTD, 2012 ABQB 672
8.21
Retrials
8.22
Continuing trial without jury
8.23
Judgment after jury trial
8.24
Accidents and mistakes
PART 9 - JUDGMENTS AND ORDERS
Division 1 – Preparation and Entry of Judgments and Orders
9.1
Form of judgments and orders
9.2
Preparation of judgments and orders
−
−
−
ALBERTA (CHILD, YOUTH & FAMILY ENHANCEMENT ACT, DIRECTOR) V AR, 2014 ABCA 38
−
−
NG V FLORENCE, 2014 ABQB 531
9.3
Dispute over contents of judgment or order
−
−
664
59
9.4
Signing judgments and orders
−
−
2012 ABQB 291
−
−
HESTBAK V HESTBAK, 2012 ABQB 633
9.5
Entry of judgments and orders
−
−
9.6
Effective date of judgments and orders
−
−
−
9.7
Certified copies
9.8
Service of judgments and orders
Division 2 - Determination of Damages, Judgment in Counterclaims and Judgment Against
Beneficiaries
9.9
Determining damages
−
9.10
Judgment for balance on counterclaim
9.11
Judgment against beneficiaries
Division 3 - Corrections, Further Orders, Setting Aside, Varying and Discharging Judgments
and Orders
9.12
Correcting mistakes or errors
−
−
SIBANDA V NDLOVU, 2012 ABQB 49
−
JR V UNIVERSITY OF CALGARY, 2012 ABQB 342
−
−
60
−
−
−
9.13
Re-Opening Case
−
−
−
PETERS V WILSON ESTATE, 2011 ABQB 689
−
−
−
MILNER V SOSTAR, 2012 ABCA 128
−
−
−
−
664
−
EQUITABLE TRUST COMPANY V LOUGHEED BLOCK INC, 2013 ABQB 544
−
SAMOILOVA V MAHNIC, 2014 ABCA 65
−
−
−
SETTLEMENT LENDERS INC V BLICHARZ, 2015 ABQB 16
−
−
9.14
Further or other order after judgment or order entered
−
−
AGF TRUST COMPANY V MCLEOD, 2011 ABQB 711
−
−
−
RICHTER V CHEMERINSKI, 2014 ABQB 322
−
9.15
Setting aside, varying and discharging judgments and orders
−
61
−
PALIN V DUXBURY, 2010 ABQB 833
−
MONTES V AL-SHIRAIDA, 2011 ABQB 54
−
WESTGROVE PLUMBING & HEATING LTD V BAYVIEW CONSTRUCTORS INC, 2011 ABCA
298
−
TORONTO DOMINION BANK V HUNIK, 2011 ABQB 610
−
−
1280055 ALBERTA LTD V ZAGHLOUL, 2012 ABQB 10
−
−
BROWN V BROWN, 2012 ABQB 214
−
−
BANK OF MONTREAL V COCHRANE, 2012 ABQB 297
−
−
−
BANK OF MONTREAL V MAZA INVESTMENT GROUP LTD, 2012 ABCA 112
−
VANDEN BRINK V RUSSELL, 2012 ABQB 523
−
TORONTO DOMINION BANK V GAUTHIER, 2012 ABQB 569
−
−
−
−
2014 ABQB 135
−
−
ALBERTA TREASURY BRANCHES V ELABORATE HOMES LTD, 2014 ABQB 350
−
ALLIANCE CONCRETE LTD V ROBERTSON, 2014 ABQB 401
−
MARCIL V ELLEFSON, 2014 ABCA 169
−
−
−
−
−
ABQB 362
−
62
9.16
By whom applications are to be decided
−
MONTES V AL-SHIRAIDA, 2011 ABQB 54
−
−
−
−
−
−
ABQB 362
Division 4 – Enforcement of Judgments and Orders
9.17
Enforcement: orders for payment and judgments for payment into Court
−
9.18
Judgments and orders subject to conditions
9.19
Persons who are not parties
9.20
Time writ remains in force
9.21
Application for new judgment or order
−
9.22
Application that judgment or order has been satisfied
9.23
Enforcement against partners’ and partnership property
9.24
Fraudulent preferences and fraudulent conveyances
9.25
Order of possession of land
9.26
Authority to evict occupants
9.27
Removal, storage and sale of personal property
9.28
Abandoned goods
9.29
Questioning person to assist in enforcement
Division 5 - Foreclosure Actions
9.30
When affidavit of value must be filed
63
9.31
Other material to be filed
−
AGF TRUST COMPANY V SOOS, 2012 ABQB 747
9.32
Offer for sale of secured property
9.33
Sale to plaintiff
−
9.34
Order confirming sale
9.35
Checking calculations: assessment of costs and corrections
−
CAPLINK MORTGAGE INVESTORS CORPORATION V KRETSCHMER, 2012 ABQB 396
−
−
PARADIGM QUEST INC V MOSER, 2014 ABQB 747
−
−
PARADIGM QUEST INC V MCLEOD, 2015 ABQB 212
−
ALBERTA TREASURY BRANCHES V ETHIER, 2015 ABQB 389
9.36
Service of certified bill of costs
Division 6 – Sale and Disposition of Land Other than by Foreclosure Action
9.37
9.38
Sale and disposition of land
9.39
Terms, conditions and limitations on orders
Division 7 – Reciprocal Enforcement of United Kingdom Judgments
9.40
Definitions
9.41
Scope
9.42
Application to Court
9.43
Affidavit in support of application for an order to register convention judgment
9.44
When application may be filed without notice
9.45
Order to register convention judgment
9.46
Convention judgment debtor’s application to set aside
64
9.47
Convention judgment creditor’s appeal
9.48
Appeal when order is made on notice
9.49
Factors to be considered
Division 8 – Registration of Judgments under Reciprocal Enforcement of Judgments Act
9.50
Originating application to register judgment from reciprocating jurisdiction
9.51
Notice of registration
PART 10 - LAWYERS’ CHARGES, RECOVERABLE COSTS OF LITIGATION, AND SANCTIONS
Division 1 - Lawyers’ Charges, Retainer Agreements and Right of Review
10.1
Definitions
−
TANG V MUWAIS, 2014 ABQB 511
−
SAMSON CREE NATION V O’REILLY & ASSOCIÉS, 2014 ABCA 268
−
STUBBARD V HAJDUK GIBBS LLP, 2014 ABQB 632
−
MS V DM, 2014 ABQB 702
−
Subdivision 1 - Lawyers’ Charges
10.2
Payment for lawyer’s services and contents of lawyer’s account
−
ALBERTA TREASURY BRANCH V 14010507 ALBERTA LTD, 2013 ABQB 748
−
THORESON V ALBERTA (INFRASTRUCTURE), 2014 ABCA 31
−
STEINKE V HAJDUK GIBBS LLP, 2014 ABQB 34
10.3
Lawyer acting in representative capacity
10.4
Charging order for payment of lawyer’s charges
−
Subdivision 2 – Retainer Agreements
10.5
Retainer agreements
−
HERITAGE LAW OFFICES V BABICHUK, 2015 ABQB 321
10.6
Void provisions
65
−
Subdivision 3 – Contingency Fee Agreements
10.7
Contingency fee agreement requirements
−
PROPHET RIVER FIRST NATION V RATH & COMPANY, 2011 ABQB 408
−
10.8
Lawyer’s non-compliance with contingency fee agreement
−
−
−
ROYAL BANK OF CANADA V LEARMONTH, 2014 ABQB 756
−
SWEETGRASS FIRST NATION V RATH & COMPANY, 2014 ABCA 426
Subdivision 4 – Right of Review
10.9
Reasonableness of retainer agreements and charges subject to review
−
−
−
−
CIBC MORTGAGES INC (FIRSTLINE MORTGAGES) V TUCHSEN, 2015 ABQB 241
−
ROCKS V IAN SAVAGE PROFESSIONAL CORPORATION, 2015 ABCA 77
10.10 Time limitation on reviewing retainer agreements and charges
−
−
BA CAPITAL INC V FOCUSED MONEY SOLUTIONS INC, 2012 ABQB 379
−
SAMSON CREE NATION V O’REILLY & ASSOCIÉS, 2013 ABQB 350
−
LEWIS ESTATES COMMUNITIES INC V BROWNLEE LLP, 2013 ABQB 508
−
VAN BRABANT ESTATE (RE), 2013 ABQB 547
−
10.11 Who may request review of lawyer’s charges
10.12 Location of review
10.13 Appointment for review
−
66
−
10.14 Client-obtained appointment: lawyer’s responsibility
10.15 Retainer agreement confidentiality
−
10.16 Absence of person at appointment for review
10.17 Review officer’s authority
−
−
−
−
SWEETGRASS FIRST NATION V RATH & COMPANY, 2014 ABCA 426
−
10.18 Reference to Court
−
−
−
MACPHERSON LESLIE & TYERMAN LLP V MOLL, 2014 ABCA 45
−
−
−
10.19 Review officer’s decision
−
−
10.20 Enforcement of review officer’s decision
−
−
−
10.21 Repayment of charges
−
10.22 Action for payment of lawyer’s charges
67
−
BOTAN (BOTAN LAW OFFICE) V ST. AMAND, 2012 ABQB 260
10.23 Costs of review
10.24 Reviewing lawyer’s charges: incomplete services and particular events
10.25 Order to return records
−
−
−
PARADIGM QUEST INC V MOSER, 2014 ABQB 747
−
Subdivision 5 – Appeal from Review Officer’s Decision
10.26 Appeal to judge
−
−
OLEYNIK V UNIVERSITY OF CALGARY, 2013 ABCA 395
−
−
−
−
−
−
−
−
ALBERTA TREASURY BRANCHES V ETHIER, 2015 ABQB 389
10.27 Decision of judge
−
−
−
−
Division 2 - Recoverable Costs of Litigation
Subdivision 1 - General Rule, Considerations and Court Authority
10.28 Definition of “party”
68
−
SHTAIF V VONCINA, 2013 ABCA 397
−
SG V JPB, 2014 ABQB 418
−
CLARKE V SYNCRUDE CANADA LTD, 2014 ABQB 430
−
−
10.29 General rule for payment of litigation costs
−
−
MELANSON V ALBERTA (APPEALS
−
−
−
KENT V KENT (ELLIS), 2011 ABQB 611
−
−
−
−
−
−
−
LANE V LANE, 2012 ABQB 21
−
−
−
NORTHLAND MATERIAL HANDLING INC V PARKLAND (COUNTY), 2012 ABQB 586
−
ZAHN V TAUBNER, 2012 ABQB 636
−
−
−
CAG V SG, 2013 ABQB 12
−
DBF V BF, 2013 ABQB 16
−
−
CENTRAL ALBERTA RURAL ELECTRIFICATION ASSOCIATION LTD V FORTISALBERTA INC,
2013 ABQB 191
−
HOGARTH V ROCKY MOUNTAIN SLATE INC, 2013 ABCA 116
69
COMMISSION
FOR
ALBERTA
WORKERS’
−
1985 SAWRIDGE TRUST V ALBERTA (PUBLIC TRUSTEE), 2013 ABCA 226
−
ELFAR V ELFAR, 2013 ABCA 258
−
FORSYTH V FRASER, 2013 ABQB 557
−
−
BYRON V BYRON, 2014 ABQB 240
−
−
−
−
−
ENVIRO TRACE LTD V SHEICHUK, 2015 ABQB 28
−
−
CG V RH, 2015 ABQB 99
−
HAIG V WHITMORE, 2015 ABQB 267
−
LUM V ALBERTA DENTAL ASSOCIATION AND COLLEGE, 2015 ABQB 276
10.30 When costs award may be made
−
−
−
−
−
−
−
ENOCH CREE NATION V PRUE, 2014 ABQB 445
−
−
−
SKREPNEK V KROCHAK, 2014 ABQB 699
−
−
RFG PRIVATE EQUITY LIMITED PARTNERSHIP NO. 1B V VALUE CREATION INC, 2014 ABQB
738
−
IWANYSHYN V CINCIRUK, 2014 ABCA 360
−
−
70
−
10.31 Court-ordered costs award
−
−
−
MELANSON V ALBERTA (APPEALS
−
−
−
−
−
−
−
−
−
LUZIA V BAPTISTA, 2012 ABQB 491
−
−
NORTHLAND MATERIAL HANDLING INC V PARKLAND (COUNTY), 2012 ABQB 586
−
HSBC BANK CANADA V LOURENCO, 2012 ABQB 648
−
−
−
PRAGER V CANADA HOMES 4 RENT.COM INC, 2013 ABQB 3
−
−
−
−
−
2013 ABQB 191
−
HOGARTH V ROCKY MOUNTAIN SLATE INC, 2013 ABCA 116
−
−
1301905 ALBERTA LTD V SWORD ENERGY INC, 2013 ABQB 444
−
71
COMMISSION
FOR
ALBERTA
WORKERS’
−
MCDONALD ESTATE (RE), 2013 ABQB 602
−
−
−
−
−
−
−
−
HYMANYK V HYMANYK, 2015 ABQB 72
−
−
−
−
−
EDWARDS V RESORT VILLA MANAGEMENT LTD, 2015 ABQB 424
−
BOYD V JBS FOODS CANADA INC, 2015 ABCA 191
10.32 Costs in class proceeding
−
GRANT V GRANT, 2010 ABQB 735
−
−
−
ENOCH CREE NATION V PRUE, 2014 ABQB 445
−
CONDOMINIUM PLAN NO 052 6233 V SEEHRA, 2014 ABQB 588
−
−
−
−
SKREPNEK V KROCHAK, 2014 ABQB 699
−
738
−
NELSON ESTATE (RE), 2014 ABQB 765
−
ALBERTA V AUPE, 2014 ABCA 326
−
−
JACKSON V CANADIAN NATIONAL RAILWAY COMPANY, 2015 ABCA 89
72
10.33 Court considerations in making costs award
−
−
ANDRIUK V MERRILL LYNCH CANADA INC, 2011 ABQB 59
−
−
−
−
−
−
−
−
−
FORSBERG V NAIDOO, 2011 ABQB 705
−
−
−
−
WISHEWAN V AMACK, 2011 ABCA 386
−
−
−
HSBC BANK CANADA V 1100336 ALBERTA LTD (INCREDIBLE ELECTRONICS WHOLESALE),
2012 ABQB 27
−
−
−
−
DOVE HOMES (1999) LTD V FOUNTAIN CREEK ESTATES LTD, 2012 ABQB 497
−
ANDERSON ESTATE, 2012 ABQB 517
−
−
−
−
−
−
73
−
−
−
−
2013 ABQB 191
−
−
FORSYTH V FRASER, 2013 ABQB 557
−
−
−
−
−
BEAULIEU V UNIVERSITY OF ALBERTA, 2014 ABCA 137
−
−
CONDOMINIUM PLAN NO 052 6233 V SEEHRA, 2014 ABQB 588
−
738
−
−
−
−
179
−
−
−
−
EDWARDS V RESORT VILLA MANAGEMENT LTD, 2015 ABQB 424
−
−
−
10.34 Court-ordered assessment of costs
Subdivision 2 – Assessment of Costs by Assessment Officer
10.35 Preparation of bill of costs
74
−
10.36 Assessment of bill of costs
−
−
10.37 Appointment for assessment
−
−
10.38 Assessment officer’s authority
−
10.39 Reference to Court
−
−
HORST TYSON DAHLEM PROFESSIONAL CORPORATION V JOHN F SCHNEIDER
PROFESSIONAL CORPORATION (CANMORE LEGAL SERVICES), 2015 ABQB 413
10.40 Absence of person served with notice of appointment for assessment
−
−
10.41 Assessment officer’s decision
−
−
−
−
10.42 Actions within Provincial Court jurisdiction
−
−
10.43 Certification of costs payable
−
−
GENGE V CENTRON RESIDENTIAL CORPORATION, 2014 ABQB 50
75
Subdivision 3 - Appeal from Assessment Officer’s Decision
10.44 Appeal to judge
−
−
PARADIGM QUEST INC V MCLEOD, 2015 ABQB 212
10.45 Decision of the judge
Division 3 – Other Matters Related to Lawyers’ Charges and Litigation Costs
10.46 Review and assessment under enactments
10.47 Liability of litigation representative for costs
−
−
10.48 Recovery of goods and services tax
−
HORIZON RESOURCE MANAGEMENT LTD V BLAZE ENERGY LTD, 2013 ABCA 139
−
Division 4 - Sanctions
Subdivision 1 – Penalty
10.49 Penalty for contravening rules
−
−
−
−
DEMB V VALHALLA GROUP LTD, 2015 ABCA 29
10.50 Costs imposed on lawyer
−
−
LAKHOO V LAKHOO, 2012 ABQB 574
−
Subdivision 2 - Civil Contempt of Court
10.51 Order to appear
−
BILHETE V WONG, 2013 ABQB 514
76
−
−
NG V FLORENCE, 2014 ABQB 531
−
LYMER (RE), 2014 ABQB 674
−
−
10.52 Declaration of civil contempt
−
KOERNER V CAPITAL HEALTH AUTHORITY, 2011 ABQB 191
−
FULLER WESTERN RUBBER LININGS LTD V SPENCE CORROSION SERVICES LTD, 2012
ABQB 163
−
−
SCHMIDT V WOOD, 2012 ABCA 235
−
PRECISION FOREST INDUSTRIES LTD V COX, 2013 ABQB 524
−
−
−
−
−
−
LYMER (RE), 2014 ABQB 674
−
10.53 Punishment for civil contempt of Court
−
KOERNER V CAPITAL HEALTH AUTHORITY, 2011 ABQB 191
−
FULLER WESTERN RUBBER LININGS LTD V SPENCE CORROSION SERVICES LTD, 2012
ABQB 163
−
PRECISION FOREST INDUSTRIES LTD V COX, 2013 ABQB 524
−
−
Division 5 – Medical Examination
10.54 Mental Disorder
Division 6 – Inherent Jurisdiction
10.55 Inherent jurisdiction
77
PART 11 - SERVICE OF DOCUMENTS
Division 1 – General Provisions
11.1
Service of original documents and copies
11.2
Service not invalid
Division 2 – Service of Commencement Documents in Alberta
11.3
Agreement between parties
11.4
Methods of service in Alberta
−
−
11.5
Service on individuals
−
−
NIXON V TIMMS, 2013 ABCA 84
11.6
Service on trustees and personal representatives
11.7
Service on litigation representatives
11.8
Missing persons
11.9
Service on corporations
11.10 Service on limited partnerships
11.11 Service on partnerships other than limited partnerships
11.12 Service on individuals using another name
11.13 Service on a corporation using another name
11.14 Service on statutory and other entities
11.15 Service on person providing an address for service
11.16 Service on lawyer
11.17 Service on lawyer of record
−
78
11.18 Service on self-represented litigants
11.19 Service on business representatives of absent parties
Division 3 – Service of Documents, Other than Commencement Documents, in Alberta
11.20 Service of documents, other than commencement documents, in Alberta
−
−
−
11.21 Service by electronic method
−
−
ALBERTA TREASURY BRANCHES V ELABORATE HOMES LTD, 2014 ABQB 350
−
11.22 Recorded mail service
Division 4 - Service of Documents, Other than Commencement Documents, in Foreclosure
Actions
11.23 Additional service options in foreclosure actions
11.24 Notice of address for service in foreclosure actions
Division 5 - Service of Documents Outside Alberta
11.25 Real and Substantial Connection
−
AYLES V ARSENAULT, 2011 ABQB 493
−
−
SAVEVA V FLIGHT CENTRE, 2012 ABQB 477
−
COURT V DEBAIE, 2012 ABQB 640
−
ELEMEN V CARBONEL, 2012 ABQB 674
−
LIA SOPHIA CANADA, LP V PARKLANE JEWELRY LIMITED, 2013 ABQB 53
−
RODRIGUES V RODRIGUES, 2013 ABQB 718
−
−
−
79
−
−
NORFOLK SOUTHERN RAILWAY COMPANY V CROWSHAW, 2014 ABQB 273
−
GULEVICH V MILLER, 2014 ABQB 377
−
BANSAL V FERRARA PAN CANDY CO INC, 2014 ABQB 384
−
GEOPHYSICAL SERVICE INCORPORATED V ARCIS SEISMIC SOLUTIONS CORP, 2015 ABQB
88
11.26 Methods of service outside Alberta
−
METCALFE V YAMAHA MOTOR CANADA LTD, 2011 ABQB 807
−
METCALF ESTATE V YAMAHA MOTOR POWERED PRODUCTS CO LTD, 2012 ABCA 240
Division 6: Validating, Substituting, Dispensing with and Setting Aside Service
11.27 Validating service
−
METCALFE V YAMAHA MOTOR CANADA LTD, 2011 ABQB 807
−
METCALF ESTATE V YAMAHA MOTOR POWERED PRODUCTS CO LTD, 2012 ABCA 240
−
−
11.28 Substitutional service
−
11.29 Dispensing with service
11.30 Proving service of documents
−
11.31 Setting aside service
−
AYLES V ARSENAULT, 2011 ABQB 493
−
−
−
−
GULEVICH V MILLER, 2014 ABQB 377
−
BANSAL V FERRARA PAN CANDY CO INC, 2014 ABQB 384
−
80
Division 7 - Service of Foreign Process
11.32 Procedure for service
PART 12 - FAMILY LAW RULES
Division 1 - Foundational Rules
12.1
Definitions
12.2
What this Part applies to
12.3
Application of other Parts
−
LKD V JB, 2012 ABCA 72
12.4
Forms
Division 2 - The Parties to Litigation
12.5
Requirement that parties be spouses
12.6
Exception to rule 2.11(a)
−
DC (RE), 2015 ABQB 369
Division 3 - Court Actions
Subdivision 1: Actions Relating to Proceedings Under the Divorce Act (Canada) and
Proceedings Under the Matrimonial Property Act
12.7
Starting proceeding under Divorce Act (Canada)
12.8
Starting proceeding under Matrimonial Property Act
12.9
Starting combined proceeding
−
NOVOTNY V LEPAN, 2011 ABQB 205
12.10 Action for unjust enrichment
12.11 Statement of defence, counterclaim and demand for notice
12.12 Time for service of documents filed under rule 12.11
12.13 Joint proceeding under Divorce Act (Canada)
12.14 Transfer of divorce proceedings under Divorce Act (Canada) from court outside
Alberta
81
12.15 Central Divorce Registry
Subdivision 2: Actions Relating to Proceedings under the Family Law Act
12.16 Starting proceeding under Family Law Act
12.17 Service of documents filed under rule 12.16
12.18 Response to proceeding under Family Law Act
12.20 Response to respondent’s request for additional order
12.22 New evidence
12.23 Questioning on statement, reply statement or affidavit
12.24 Certificate of lawyer
Subdivision 3: Actions Commenced by Originating Application
12.25 Exception to rule 3.13(5)
12.26 Application respecting order made by court outside Alberta under Divorce Act
(Canada)
12.27 Applications under the Extra-provincial Enforcement of Custody Orders Act
Subdivision 4: Actions Relating to Proceedings under the Protection Against Family
Violence Act
12.28 Application of Part 3, Division 2
12.29 Affidavit of evidence for review
12.30 Application for Queen’s Bench protection order
12.31 Alternative to affidavit
12.32 Actual notice of protection order
Subdivision 5: Actions Relating to Restraining Orders
12.33 Application for restraining order
82
Division 4: Managing Litigation
12.34 Application of Part 4
12.35 Operation of rule 4.34 under this Part
12.36 Advance payment of costs
−
DUROCHER V KLEMENTOVICH, 2013 ABCA 115
Division 5: Disclosure of Information
12.37 Application of Part 5
12.38 Affidavit of records
12.39 Oral and written questioning
12.40 Written interrogatories
12.41 Notice to disclose documents
−
AUER V AUER, 2015 ABQB 67
−
ROSEBERRY V ROSEBERRY, 2015 ABQB 75
12.42 Request for financial information
Division 6: Resolving Issues and Preserving Rights
12.43 Application of Part 6, Division 1
12.44 Application within course of proceeding
−
OLSON V OLSON, 2014 ABCA 15
12.45 Application after order or judgment under Divorce Act (Canada)
12.46 Provisional order to vary a support order under Divorce Act (Canada)
12.47 Confirmation hearing
Division 7: Resolving Claims Without Full Trial
12.48 Availability of application for summary judgment
−
MAYOWSKI V MAYOWSKI, 2011 ABQB 31
12.49 Evidence in summary trials
83
12.50 Divorce without appearance by parties or counsel
Division 8: Trial
12.51 Appearance before the Court
−
OLSON V OLSON, 2014 ABCA 15
Division 9: Judgments and Orders
12.52 Enforcement of order made by court outside Alberta under Divorce Act (Canada)
12.53 Form of orders
−
CALVER V CALVER, 2014 ABCA 63
12.54 Certificate of divorce
−
ZAITER V ALATRACHE, 2014 ABCA 72
Division 10: Service of Documents
12.55 Service of documents
12.56 Address for service
12.57 Proof of service
12.58 Rules that do not apply
Division 11 - Appeals
Subdivision 1: Appeal from Divorce Judgment
12.59 Appeal from divorce judgment
−
CALDWELL V CALDWELL, 2013 ABCA 126
Subdivision 2: Appeals under the Family Law Act
12.60 Appeal from decision of Court of Queen’s Bench sitting as original court
−
JOHNSON V JORDAN, 2013 ABCA 55
12.61 Appeal from Provincial Court order to Court of Queen’s Bench
12.62 Duty of court clerks
12.63 Transcript
84
12.64 Filing of affidavits of service
12.65 Non-compliance by appellant
12.66 Speaking to list
12.67 Scheduling appeal
12.68 Evidence
12.69 Appeal memoranda
12.70 Powers of Court on appeal
−
UNRAU V FREAKE, 2011 ABQB 663
12.71 Appeal from decision of Court of Queen’s Bench sitting as appeal court
−
GL AND SL V NAH, 2012 ABCA 247
−
DIROM V FURGESON, 2014 ABCA 261
PART 13 - TECHNICAL RULES
Division 1: Judge Unable to Continue
13.1
When one judge may act in place of or replace another
−
−
KRC V AMT, 2014 ABCA 355
−
Division 2: Calculating Time
13.2
Application of these rules for calculating time
13.3
Counting days
−
13.4
Counting months and years
−
−
13.5
Variation of time periods
−
ANANA V LAKELAND COLLEGE FACULTY ASSOCIATION, 2011 ABQB 313
85
−
−
−
PAGNUCCO V SEARS CANADA INC, 2011 ABQB 810
−
−
−
VAN BRABANT ESTATE (RE), 2013 ABQB 547
−
−
DBD CONSTRUCTION LTD V TENFOLD CONTRACTING LTD, 2014 ABQB 773
−
−
TOLE V LUCKI, 2015 ABQB 231
−
ABQB 335
−
−
Division 3: Pleadings
13.6
Pleadings: general requirements
−
ANDERSON ESTATE, 2012 ABQB 517
−
−
−
−
−
−
ANGUS PARTNERSHIP INC V SALVATION ARMY, 2014 ABCA 423
−
−
−
−
−
13.7
Pleadings: other requirements
86
−
−
−
RODD V ALBERTA HEALTH SERVICES, 2015 ABQB 320
−
13.8
Pleadings: other contents
13.9
Defence of tender
−
13.10 Pleadings: specific requirements for replies
13.11 Pleadings: specific requirements for class proceedings
13.12 Pleadings: denial of facts
−
−
Division 4: Filed Documents
Subdivision 1: Contents and Filing
13.13 Requirements for all filed documents
13.14 Endorsements on documents
13.15 When document is filed
−
13.16 Deviations from and changes to prescribed forms
13.17 Amendments to records other than commencement documents, pleadings or
affidavits
Subdivision 2: Form and Contents of Affidavits and Exhibits
13.18 Types of affidavit
−
BARKER V BUDGET RENT-A-CAR OF EDMONTON LTD, 2011 ABQB 123
−
1199918 ALBERTA LTD V TRL HOLDINGS INC, 2011 ABQB 506
−
SCOTIA MORTGAGE CORPORATION V AAB, 2012 ABQB 464
−
COURT V DEBAIE, 2012 ABQB 640
87
−
−
−
ALBERTA (JUSTICE AND ATTORNEY GENERAL) V ECHERT, 2013 ABQB 314
−
−
DINGWALL V DORNAN, 2014 ABCA 89
−
RESOURCE WELL COMPLETION TECHNOLOGIES INC V CANUCK COMPLETIONS LTD, 2014
ABQB 209
−
−
−
−
−
−
SOLIS V WORKERS' COMPENSATION BOARD (MILLARD HEALTH), 2015 ABCA 227
−
−
−
13.19 Requirements for affidavits
13.20 Changes in affidavits
13.21 Requirements for exhibits to affidavit
13.22 Affidavits by visually impaired or those unable to read
13.23 Understanding affidavit
13.24 More than one individual swearing affidavit
13.25 Use of filed affidavits
13.26 Exhibits: filing and return
Subdivision 3: Lost and Concurrent Documents, Certified Copies, Authenticated
Photographs and Video Recordings
13.27 Lost documents
13.28 Concurrent document
88
13.29 Certified copies of original records
13.30 Authenticated photographs of personal property
13.31 Video recordings in place of transcripts
Division 5: Payment of Fees and Allowances, and Waivers of Fees
13.32 Fees and allowances
−
TORONTO DOMINION BANK V BEATON, 2012 ABQB 125
13.33 Uncertainty of amount of fees and allowances
13.34 Fee accounts
13.35 Fee exemption
13.36 Fee waiver: legal aid
−
13.37 Fee waiver: restraining orders
−
Division 6: Judge’s Fiat, Court Officers and Court Reporters
13.38 Judge’s fiat
−
−
13.39 Court officers
−
13.40 Court officers may delegate authority
13.41 Authority of court clerk
13.42 Absence of court clerk
13.43 Seal
13.44 Duties of court clerk
13.45 Notice to be given to court officers
13.46 Official court reporters
89
13.47 Proof of official court reporter’s signature not required
Division 7: Payment into Court and Payment out of Court
13.48 When money may be paid into Court
13.49 How money is paid into Court
13.50 Tender on judicial sale
13.51 Litigant’s account
13.52 Payments into Court under Trustee Act
13.53 Payments out of Court
13.54 Investments and payment earnings
13.55 Disposition of money in accounts
PART 14 - APPEALS
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WESTGROVE PLUMBING & HEATING LTD V BAYVIEW CONSTRUCTORS INC, 2011 ABCA
298
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DAHMER V DAHMER, 2012 ABCA 120
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Division 1: The Right to Appeal
Subdivision 1: Interpretation and Application
14.1
Definitions
14.2
Application of general rules
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14.3
When these rules apply
90
Subdivision 2: Appeals as of Right
14.4
Right to appeal
Subdivision 3: Appeals with Permission
14.5
Appeals only with permission
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JH DRILLING INC V ALBERTA (NATURAL RESOURCES CONSERVATION BOARD), 2014 ABCA
312
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IWANYSHYN V CINCIRUK, 2014 ABCA 360
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PWM LOSS PREVENTION SERVICES INC V LAY, 2014 ABCA 376
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CHUTSKOFF ESTATE V BONORA, 2014 ABCA 444
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−
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WAYMARKER MANAGEMENT (SILVER CREEK) INC V TIBU, 2015 ABCA 140
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BUN V SENG, 2015 ABCA 165
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CARBONE V WHIDDEN, 2015 ABCA 177
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Subdivision 4: Cross Appeals
14.6
Cross Appeals
Division 2: The Appeal Process
Subdivision 1: Starting an Appeal or Cross Appeal
14.7
How to start an appeal
14.8
Filing a notice of appeal
−
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SCHULTE V ALBERTA (APPEALS COMMISSION FOR WORKERS' COMPENSATION BOARD),
2015 ABCA 148
91
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14.9
Appeals from several decisions
14.10 Notice to Court of Queen’s Bench
14.11 How to start a cross appeal
Subdivision 2: Notice of Appeal and Cross Appeal
14.12 Contents and format of notices of appeal and cross appeal
Subdivision 3: Types of Appeals
14.13 Standard appeals
14.14 Fast Track Appeals
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422252 ALBERTA LTD V MESSENGER, 2015 ABCA 47
Subdivision 4: Appeal Record
14.15 Ordering the Appeal Record
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14.16 Filing the Appeal Record – Standard Appeals
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14.17 Filing the Appeal Record – Fast Track Appeals
14.18 Contents of Appeal Record – Standard Appeals
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14.19 Contents of Appeal Record – Fast Track Appeals
14.20 Contents of Appeal Record – Appeals from Tribunals
14.21 Format of Appeal Recod – Standard Appeals
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14.22 Format of Appeal Record – Fast Track Appeals
92
Division 3: Preparing Written Argument and Scheduling Oral Argument of Appeals
Subdivision 1: Factums
14.23 Filing factums – Standard Appeals
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14.24 Filing factums – Fast Track Appeals
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14.25 Contents of Factums
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14.26 Format of Factums
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EDMONTON (CITY) V EDMONTON (SUBDIVISION AND DEVELOPMENT APPEAL BOARD),
2014 ABCA 340
Subdivision 2: Extracts of Key Evidence
14.27 Filing Extracts of Key Evidence
14.28 Record before the Court
14.29 Format of Extracts of Key Evidence
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Subdivision 3: Books of Authorities
14.30 Filing Books of Authorities
14.31 Format of Books of Authorities
Subdivision 4: Scheduling Oral Argument
14.32 Oral Argument
14.33 Scheduling Standard Appeals
14.34 Scheduling Fast Track appeals
14.35 Rescheduling Appeals
93
Division 4: Applications
Subdivision 1: Deciding Applications
14.36 Case management officers
14.37 Single appeal judges
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INQUIRY COMMITTEE), 2015 ABCA 138
14.38 Court of Appeal panels
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CKS V OSS, 2014 ABCA 416
−
−
INQUIRY COMMITTEE), 2015 ABCA 138
Subdivision 2: How to Apply
14.39 Case amanagement officers
14.40 Applications to single appeal judges
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14.41 Responses to applications to single appeal judges
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14.42 Applications to court of appeal panels
14.43 Responses to applications to court of appeal panels
Subdivision 3: Rules for Specific Applications
14.44 Application for permission to appeal
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−
14.45 Application to admit new evidence
14.46 Application to reconsider a previous decision
14.47 Application to restore an appeal
−
94
−
422252 ALBERTA LTD V MESSENGER, 2015 ABCA 47
14.48 Stay pending appeal
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MODRY V ALBERTA HEALTH SERVICES, 2015 ABCA 31
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RICHCROOKS ENTERPRISES (2000) LTD V ARRES CAPITAL INC, 2015 ABCA 40
Subdivision 4: Deciding Applications
14.49 Failure to respond
14.50 Time limits for oral argument
14.51 Applications without oral argument
14.52 Applications not heard within 3 months
14.53 Format of applications
14.54 Format of memoranda
Division 5: Managing the Appeal Proces
Subdivision 1: Responsibilities of the Parties and Court Assistance
14.55 Responsibilty of parties to manage an appeal
14.56 Orders to facilitate appeal
Subdivision 2: Parties to an Appeal
14.57 Adding, removing or substituting parties to an appeal
14.58 Intervenor status on appeal
Subdivision 3: Settlement Using Court Process
14.59 Formal offers to settle
Subdivision 4: Judicial Dispute Resolution on Appeal
14.60 Judicial dispute resolution of an appeal
14.61 Suspension of time periods
Subdivision 5: Delay in Advancing Appeals
14.62 Dismissal for delay
95
14.63 Powers of a single appeal judge
14.64 Failure to meet deadlines
14.65 Restoring appeals
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Subdivision 6: Discontinuing an Appeal
14.66 Discontinuance
14.67 Security for costs
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Division 6: Deciding Appeals and Applications
Subdivision 1: Effect of Filing an Appeal
14.68 No stay of enforcement
14.69 Intermediate acts valid
Subdivision 2: Basis on Which Appeals are Decided
14.70 No new evidence without order
14.71 Interlocutory decisions
14.72 Binding precedents
Subdivision 3: Powers of the Court
14.73 Procedural powers
−
14.74 Application to dismiss an appeal
14.75 Disposing of appeals
−
−
14.76 Judgment by consent
96
Subdivision 4: Judgments and Orders
14.77 Preparation and signature of judgments and orders
14.78 Entry of judgments and orders
14.79 Supreme Court of Canada judgments
14.80 Interest on judgments
Division 7: General Rules for Appeals
Subdivision 1: Service of Appeal Documents and Representation
14.81 Service of appeal documents
14.82 Lawyer of record and litigation representative
Subdivision 2: Restricted Access Orders
14.83 Orders restricting access to appeal proceedings
Subdivision 3: Rules for All Filed Materials
14.84 Place of filing
14.85 Method of filing
14.86 Non-compliant appeal materials
14.87 Requirements for all documents
Subdivision 4: Costs of Appeals
14.88 Cost awards
−
ALBERTA V AUPE, 2014 ABCA 326
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−
−
Subdivision 5: Fess on Appeals
14.89 Fees and allowances
97
Subdivision 6: Sanctions
14.90 Sanctions
−
Subdivision 7: The Registrar
14.91 Duties of a Registrar
14.92 Authority of the Registrar
PART 15 - TRANSITIONAL PROVISIONS AND COMING INTO FORCE
15.1
Definitions
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−
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15.2
New rules apply to existing proceedings
−
BAHCHELI V YORKTON SECURITIES INC, 2010 ABQB 824
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−
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15.3
Dispute resolution requirements
−
RAMPERSAUD V BAUMGARTNER, 2012 ABQB 673
98
15.4
Dismissal for long delay: bridging provision
−
KOCH V WARKENTIN, 2010 ABQB 505
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GOSHULAK V NGUYEN, 2011 ABQB 346
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LABOUCAN V RED ROAD HEALING SOCIETY, 2011 ABQB 377
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−
−
−
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CARTER V SEARS CANADA INC, 2011 ABQB 732
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CHAN V CALGARY REMAND CENTRE, 2012 ABQB 325
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BRIGGS BROS STUDENT TRANSPORTATION LTD V ALBERTA (ATTORNEY GENERAL), 2012
ABQB 455
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SUCKER CREEK FIRST NATION V CANADA (ATTORNEY GENERAL), 2012 ABQB 460
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BARRETT V ALBERTA (PUBLIC TRUSTEE), 2012 ABCA 212
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GEOPETROL INTERNATIONAL LTD V ALLIANZ INSURANCE COMPANY OF CANADA, 2012
ABQB 613
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PRINCE V EDMONTON (CITY), 2012 ABQB 637
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FRANCHUK V SCHICK, 2013 ABQB 532
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15.5
Contingency fee agreements
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15.6
Resolution of difficulty or doubt
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99
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15.7
Filing of orders or judgments
15.8
Increased or decreased time limits
15.9
Time limit under these rules
15.10 Time runs from different event
15.11 Formal offer to settle
15.12 New test or criteria
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JANVIER V 834474 ALBERTA LTD, 2010 ABQB 800
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SUN LIFE ASSURANCE COMPANY OF CANADA V TOM 2003-1 LIMITED PARTNERSHIP #2,
2010 ABQB 815
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15.13 Place of existing proceeding
15.14 Repeal
15.15 Coming into force
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100
−
15.16 Transitional Provisions – Part 14
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SCHEDULE C – TARIFF OF RECOVERABLE FEES
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RIC NEW BRUNSWICK INC V TELECOMMUNICATIONS RESEARCH LABORATORIES, 2011
ABCA 10
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LOUW V HAMELIN-CHANDLER, 2012 ABQB 52
−
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LUZIA V BAPTISTA, 2012 ABQB 491
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VACCARO V TWIN CITIES POWER-CANADA ULC, 2012 ABCA 193
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2013 ABQB 191
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RB NEW CO LTD V 1331440 ALBERTA LTD, 2013 ABQB 659
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634
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179
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101
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CIVIL PRACTICE NOTE #4
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ALBERTA RULES OF COURT MADE UNDER THE COURT OF APPEAL ACT, COURT OF QUEEN’S
BENCH ACT AND CIVIL ENFORCEMENT ACT - ALTA REG 390/68
PART 39 - APPEALS TO THE COURT OF APPEAL
Rule 501
Definitions
−
WONG V GIANNACOPOULOS, 2011 ABCA 277
Rule 505
When appeal available
−
WONG V GIANNACOPOULOS, 2011 ABCA 277
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KINDYLIDES V KOROL, 2012 ABCA 195
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−
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CHALUPA ESTATE V CHALUPA, 2014 ABCA 104
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JAMES V NORTHERN LAKES COLLEGE, 2014 ABCA 48
Rule 506
Notice
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ALBERTA MEDICAL ASSOCIATION V ALBERTA, 2012 ABCA 391
Rule 508
Stay of Enforcement
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HOGARTH V SIMONSON, 2012 ABCA 101
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664
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COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION, LOCAL 707 V SUNCOR
ENERGY INC, 2012 ABCA 307
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AIRCO AIRCRAFT CHARTERS LTD V EDMONTON REGIONAL AIRPORTS AUTHORITY, 2012
ABCA 388
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CANADIAN NATURAL RESOURCES LIMITED V ARCELORMITTAL TUBULAR PRODUCTS
ROMAN SA, 2013 ABCA 357
Rule 510
Service
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ALBERTA (CHILD, YOUTH & FAMILY ENHANCEMENT ACT, DIRECTOR) V AR, 2014 ABCA 38
Rule 515.1
General Appeal List
102
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DAHMER V DAHMER, 2012 ABCA 120
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ALLEN V UNIVERSITY OF LETHBRIDGE STUDENTS’ UNION, 2013 ABCA 176
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MORBANK FINANCIAL INC V FIELD, 2014 ABCA 3
Rule 516
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MONARCH LAND LIMITED V CIBC MORTGAGES INC, 2014 ABCA 257
Rule 518
Powers of Court
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EQUITABLE TRUST COMPANY V LOUGHEED BLOCK INC, 2012 ABCA 171
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Rule 524
Security for Costs
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MATTY V RAMMASOOT, 2013 ABCA 170
Rule 530.1
Transcripts, Generally
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Rule 530.5
Transcripts of Oral Testimony
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DAGHER V STONE, 2013 ABCA 22
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<Return to Top>
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104
CASE SUMMARIES – COURT OF QUEEN’S BENCH
KOCH V WARKENTIN, 2010 ABQB 505 (CANLII) (GRAESSER J)
The Defendants sought an Order dismissing the Action as 5 years had elapsed since the last
thing was done to significantly advance the Action. The last thing done in respect of the Action
was the filing of one of the Defendant’s Affidavit of Records on October 7, 2005. Between the
filing of the Affidavit of Records on October 7, 2005 and the filing of the Defendants’
Application on October 22, 2010, there had been no communication between the Plaintiff or
anyone acting on his behalf and any of the Defendants or their counsel.
The Defendants argued that Rule 15.4(1)(b) applied, which provides that the Court must dismiss
an Action if 5 years have elapsed since the last thing done to significantly advance the Action,
unless Rule 15.4(2) applies.
The Plaintiff argued that counsel for the Plaintiff misplaced the file and no steps were taken as a
result of counsel’s failure to advance the Action. The Plaintiff also argued that Rule 15.4(2)(c)
applied, which states that the Court must not dismiss the Action if “an application has been
filed or proceedings have been taken since the delay and the applicant has participated in them
for a purpose and to an extent that, in the opinion of the Court, warrants the action
continuing”. Specifically, the Plaintiff argued that Questioning in respect of one of the
Defendants in a second Action, similar to the proceeding before the Court, constituted a step in
this Action for the purposes of Rule 15.4(2)(c).
The Court referred to the decision in 155569 Canada Limited v Clarkson Gordon, 2004 ABQB 17,
which held that a step in another Action, where the two Actions are inextricably linked, may
constitute a thing which material advances the other Action. However, in the case at bar, the
Court held that although the two Actions involved the same Defendants and claims of the same
nature, “the result in one would not dictate the result in the other”.
Further, the Court held that the Defendant’s participation in Questioning in the second Action
was not for the purpose of advancing the Plaintiff’s claim in this Action and, given the privilege
which attaches to Questioning in an Action, the evidence obtained in the second Action could
not be used in this Action.
The Court, in granting the Defendants’ Application, held that none of the exceptions in Rule
15.4(2) applied and that no other exceptions could be considered by the Court. Moreover, the
Court noted that, outside of the exceptions enumerated at Rule 15.4(2), the Court has “no
discretion when an application is made under Rule 15.4(1)”, and “[i]t must dismiss the action”.
HUNKA V DEGNER, 2010 ABQB 716 (CANLII) (GILL J)
The Plaintiffs sought an Order permitting them to interview representatives of the
Respondent’s insurance broker and the Respondent’s accountant, in relation to an Action
alleging breach of contract and oppression against the Defendants. The accountants and broker
each declined the Plaintiffs’ requests for interviews on the basis that they could not participate
105
without the consent of their client, which consent had been withheld. The Plaintiffs submitted
that the information they sought to obtain from the interviews was relevant and material to the
issues in the Action. They also took the position that there is no property in a witness. The
Respondents agreed that there is no property in a witness, but contended that there was no
authority for the Court to compel the Respondent to consent to the interviews. Further, the
Respondents suggested that the proper procedure for Questioning was set out in Rule 5.18 of
the Alberta Rules of Court, which provides that if relevant and material information cannot be
obtained from the examination of officers or employees of a corporation, the parties may
agree, or the Court may direct, that the seeking party Question, under oath, a person who has
provided services for the corporation.
Gill J. found that there is well established law that there is no property in a witness and that a
party should not be able to interfere with another party’s access to potential witnesses.
However, in the circumstances, Gill J. found that the issues were more complex and concluded
that the Application, if granted, would have the effect of circumventing the Respondent’s
refusal to consent and potentially of relieving the accountants and the broker of their perceived
contractual or professional obligations. The Application was dismissed and the Plaintiffs were
permitted to bring an Application under Rule 5.18 when and if deemed necessary.
ROYAL BANK OF CANADA V PLACE, 2010 ABQB 733 (CANLII) (MANDERSCHEID J)
The Defendant appealed a Master’s Decision granting an Order Nisi and Sale of the Defendant’s
house under a mortgage held by the Plaintiff. The Defendant was self-represented and raised a
number of issues which he believed warranted an Appeal. However, the Defendant did not file
a Statement of Defence to RBC’s claim, was noted in default, and did not attempt to set aside
the Default Judgment. The Defendant sought to obtain information from RBC in a “Demand for
Disclosure”, despite the fact that, under both the old and new Rules, the time for Discovery,
Affidavits of Records and Questioning was long past. The Defendant also sought an
adjournment from the Master in order to allow him time to get the requested information from
RBC, which the Master refused.
In addressing the issue of the standard of review for Queen’s Bench Justices reviewing Masters’
Decisions, Manderscheid J. held that, under the old Rules, the standard was “correctness”.
Manderscheid J. further held that the new Rules create a significant change given that an
Appeal of a Master’s decision is now on the record pursuant to Rule 6.14(3). His Lordship
determined that an Appeal on the record suggests that the standard of review should be that of
general appellate review as set out by the Supreme Court of Canada in Housen v Nikkolaisen,
[2002] 2 S.C.R. 235. The standard of review for questions of law is correctness. The standard of
review for findings of fact and inferences of fact is palpable and overriding error. The standard
of review on questions of mixed fact and law is overriding and palpable error, unless a clear
error in principle is made with respect to the characterization or application, in which case the
error may be an error of law subject to the correctness standard. With regard to the exercise of
discretion, Manderscheid J. found that reasonableness is to be applied.
106
Manderscheid J. addressed which issues were properly before the Court, making reference to
new Rule 6.14(3), which states that any Appeal of a Master’s Decision is on the record, and if
the Judge permits, may also be based on new evidence that is significant enough that it could
have affected the Master’s Decision. Citing new Rule 6.14(5), Manderscheid J. stated that any
new evidence sought to be admitted must be filed and served at least one month before the
scheduled hearing date. As a Default Judgment was in place and no steps had been taken to
overturn it, Manderscheid J. found that the Defendant was not permitted to raise allegations
against a non-party, contest the validity of the contracts, or allege fraud in the Appeal. The only
issue the Defendant was permitted to raise afresh related to the amount of damages owed to
RBC.
Between the date of the Appealed Decision and the Appeal, the Defendant filed three
Affidavits. Under Rule 6.14(3), Manderscheid J. found that such evidence could be admitted if it
is significant enough that it could have affected the Master’s decision. However, the subject of
the new Affidavit evidence was the issue of miscalculation and was never raised before the
Master. Although Manderscheid J. found that permitting new evidence under R. 6.14 did not
extend to permitting an Appellant to raise a new issue not before the Court below, given that
the Defendant was a self-represented litigant, Manderscheid J. exercised his discretion in
considering the new issue and some of the new evidence.
Manderscheid J. also addressed whether the Master should have granted the Defendant an
adjournment, concluding that the Master did not err in denying an adjournment. Manderscheid
J. concluded that the Appeal should be dismissed and that Costs should be awarded to RBC on a
solicitor-client basis as provided for in the mortgage.
GRANT V GRANT, 2010 ABQB 735 (CANLII) (VEIT J)
The issue before the Court in this case was the award of Costs in “novel” cases. In response to
the Applicant’s submission that he should be entitled to Costs of a Special Chambers
Application as he was substantially successful, the Respondent proposed that no Costs should
be awarded because the issue before the Court was “novel”.
The new Rules of Court provide that the novelty of a case may be a factor in determining the
appropriate Costs award, in the context of class actions. With respect to all other proceedings,
the new Rules of Court do not expressly state that the general approach to Costs should be
departed from in novel cases. The common law remains the authority in this regard which
provides that the successful party on a matter may not be entitled to Costs if the issue before
the Court is a “novel” one. The common law on this point provides “[i]n order to benefit from
costs protection, a case must involve truly novel issues, not ‘merely’ ones which are
fundamental”.
BRAR V PAWA, 2010 ABQB 779 (CANLII) (MASTER HANEBURY)
The Defendant by Counterclaim applied to strike the Counterclaim under the “drop dead rule”.
107
With regard to Rule 4.33, the Court referred to Morasch v Alberta, 2000 ABCA 24 for the
proposition that a “thing” is usually grounded in the Rules of Court, even if it is not an actual
procedural step, and such a “thing” must “move the law suit closer to Trial in a meaningful
way”. After referring to case-law, Master Hanebury determined that a functional analysis must
be undertaken of the facts in each case in which a party seeks to strike a claim under the “drop
dead rule”. Master Hanebury determined that, in this case, it would have been inequitable to
look only at “things” done in relation to the Counterclaim: there had been responses to
undertakings in the original Action within the relevant 5-year time-frame that had served to
move the Action as a whole forward.
With regard to Rule 4.31, Master Hanebury determined that the test under the former Rules
relating to the formation of a presumption of serious prejudice still applies. The Court stated
the test as follows: a finding of inordinate, inexcusable delay raises a presumption of serious
prejudice, which if rebutted means that all of the facts must be examined. Master Hanebury
determined that there was sufficient evidence to displace the presumption in this case, given
the extensive and detailed records kept by the Applicant. Master Hanebury then examined all
the facts and concluded that the Applicant had not satisfied the Court that significant prejudice
had arisen from the delay. The Court dismissed both the Rule 4.33 and 4.31 Applications.
SHENGLI OILFIELD FREET PETROLEUM EQUIPMENT CO. LTD V ASCENSION VIRTUAL GROUP
LTD, 2010 ABQB 795 (CANLII) (KENNY J)
The issue in this case was the procedure involved in an Appeal to a Justice of a Master’s
Decision. The Appellant sought to introduce fresh evidence on Appeal to the Justice. The
Appellant proposed that the hearing of the Appeal itself should deal with the whether the new
evidence was admissible. The Respondent submitted that the Rules require that the
admissibility of the evidence be determined prior to the hearing of the Appeal.
Kenny J. determined that a literal reading of Rule 6.14 would require a two-step process: new
evidence sought to be filed and relied upon at the Appeal could only be filed after it was
determined whether it complied with the limitation set out in subrule (3). In other words, the
literal reading would require a rather ineffectual process: first, a Judge would have to review all
the material to decide if the new evidence met the test set out in the rule; second, another
Judge would decide the Appeal. Kenny J. determined that this could not have been what was
intended by the Rule: a two-step process was not contemplated by the new Rule. New evidence
is to be filed and served along with the rest of the material and it will be up to a Justice hearing
the Appeal to determine if it meets the test set out in Rule 6.14(3). Kenny J. considered the
dilemma facing the party that receives the fresh evidence prior to the Appeal: should it Cross
Examine on the new evidence prior to Appeal, thereby perhaps conceding that the new
evidence would be relevant or admitted by the Justice at the Appeal? Or should it wait for the
Appeal then seek an adjournment? Her ladyship did not foresee that the obtaining of an
adjournment to address the new evidence would be very difficult.
108
JANVIER V 834474 ALBERTA LTD, 2010 ABQB 800 (CANLII) (MACKLIN J)
The Defendants appealed a Master’s Decision which denied their Application for Summary
Judgment.
Pursuant to Rule 15.12, the Court held that Rule 6.14, which provides for an Appeal from a
Master to a Justice, applied to the Appeal before it. In making this finding, the Court noted that
the law in Alberta for over 90 years had been that Masters’ Decisions were considered de novo
and no deference was given to a Master’s Decision. However, Rule 6.16 “changes the way in
which an Appeal Court is to consider an appeal from a decision of the Master.” In particular “an
appeal from a Master is no longer a hearing de novo. It is now an appeal on the record. As such,
the standard of review of the decision of the Master must be determined before the Appeal
Court considers the appeal on its merits”. Accordingly the Court considered the different
standards of review applicable depending on the issues that arise on Appeal and held:
…the standard of review on a decision from the Master on a question of law is
correctness. The standard of review for facts accepted by the Master or factual
inferences drawn by the Master from the evidence is reasonableness. The
finding must amount to a palpable and overriding error. The imputed error must
be plainly identified and must be shown to have affected the result. On a
question of mixed fact and law, if that principle of law cannot be extricated from
the question, then the standard of review is again one of reasonableness only to
be interfered with if a palpable and overriding error can be shown. If the
principle of law can be extricated from the question, then the standard of review
on the principle of law is correctness.
As with other appellate reviews, the new Rules require the Court to engage in an analysis as to
the appropriate standard of review, prior to considering the substantive merits of the Appeal
itself on an Appeal from a Master.
BANK OF MONTREAL V COCHRANE, 2010 ABQB 808 (CANLII) (KENT J)
During the course of this Action, Kent J., as Case Management Justice, heard a number of
Interlocutory Motions, but declined to address the issue of Costs on each of these Applications
until guidelines were set into place to manage this complex litigation. Kent J. noted that
although the new Rules of Court “do not change the principles that are applicable to a
determination of the appropriate award of costs”, they do require the Court to consider certain
matters in more detail than the former Rules. The Court acknowledged that the general rule
regarding Costs remains that the successful party is entitled to Costs (Rule 10.29) and also
noted that Costs remain in the Court’s discretion (Rule 10.29(1)(a)). The Court then considered
Rules 10.31 and 10.33 which establish various matters that the Court may take into account
when awarding Costs, including “the degree of success, the importance of the issue, the
complexity of the action, the conduct of any party, and whether the application was
unnecessary, improper or a mistake”. Kent J.’s decision suggests that the provision of costs and
the analysis the Court must engage in prior to awarding Costs has not been substantially
109
changed by the Rules, however, the new Rules may require the Court to engage in a more
detailed analysis, where such an analysis is warranted.
SUN LIFE ASSURANCE COMPANY OF CANADA V TOM 2003-1 LIMITED PARTNERSHIP #2, 2010
ABQB 815 (CANLII) (TILLEMAN J)
One of the primary issues dealt with by the Court in this Decision was the interpretation of Rule
5.12, relating to the Plaintiff’s failure to serve its Affidavit of Records in a timely manner. Under
former Rule 190, the double costs penalty for late filing of an Affidavit of Records was
“intended to have a deterrent effect for parties who drag their feet”.
Although Rule 5.12 employs more discretionary language, as opposed to the more mandatory
language of its predecessor, the Court held that “I do not think a late party will find comfort
under the new Rules just because the new 5.12 is now discretionary”. This arises from the
purpose and the intention of the new Rules of Court which is to “include quickness in the
resolution of a claim, timely communication, and efficiency including appropriate remedies and
sanctions to enforce the rules”. Similar to Rule 190, Rule 5.12 still provides that a party may
avoid the costs penalties associated with the late provision of its Affidavit of Records if it is able
to show “sufficient cause” for the delay. The Court held that the judicial interpretation of
“sufficient cause” remains the same under the new Rules as the former Rules and requires
“neglect that is excusable on sufficient grounds based on diligence of the party that has not
been relieved by any other section of the Rules, or a statute, or a related Court ruling that may
otherwise affect the disposition of the matter.” In this context diligence requires that the “filing
party did everything it could but ran into extraordinary circumstances over which it had no
practical control”.
LINDNER V CHITTICK, 2010 ABQB 819 (CANLII) (LUTZ J)
The Applicant sought an Order to discharge an ex parte Order ordering the discharge and
withdrawal of a restrictive covenant. The Application was originally brought under the “old”
Rule 387(3), which allowed for a Master or Justice to vary or discharge an ex parte Order.
However, when the Application was heard, the new Rules of Court were in effect and Rule
9.15(1) was the applicable Rule. The material difference between Rule 387(3) and 9.15(1), is
that Rule 9.15(1) does not require notice to be provided to the other parties in the Action,
whereas its predecessor required notice to “every person affected”.
Prior to engaging in a substantive analysis, the Court considered whether the new Rules applied
to the Application before it and held that an Application to discharge the Order fell within the
description of an “existing proceeding” under Rule 15.1(a) of the new Rules as a “court
proceeding commenced but not concluded under the former rules”. In determining whether
the new Rules should apply, the Court cited Rule 15.2(1) which provides that the “new Rules
apply to every existing proceeding unless otherwise stipulated”. However, Rule 15.6 provides
an exception to this Rule:
…where there is any doubt about whether the former or the new Rules apply, or
any difficulty, injustice, or impossibility arises, the Court may make an order
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suspending the operation of a new Rule and substituting a former rule. In
addition, Rule 15.12 provides that where the new Rule imposes “a new test,
provide a new criteria or provide an additional ground for making an
application”, the new Rules apply in respect of applications made but not heard
prior to the coming into force of the new Rules.
Insofar as the Application before it was concerned, the Court held that the new Rules governing
an Appeal from a Master’s Decision to a Justice did not apply. The Court found that the
variation or discharge of an ex parte Order made by a Master under Rule 9.15(1) is not an
Appeal within the meaning of Rule 6.14(3), since the Application could also be made before a
Master. A finding that Rule 6.14(3) did apply to Rule 9.15(1) “would be to place limits on the
parties’ evidence which would not apply if they had made the application to a Master”.
However, the Court noted that if Rule 6.14(3) did apply it would use its powers of discretion
under that Rule to permit the new evidence which was presented in relation to the Application
to vary and discharge the ex parte Order. The Court held that if the new evidence was not
admissible under Rule 6.14(3) it would have applied Rule 15.6 which allows the Court discretion
to substitute the former Rule for the new Rule, and would have allowed the new evidence to be
heard.
BAHCHELI V YORKTON SECURITIES INC, 2010 ABQB 824 (CANLII) (MASTER LAYCOCK)
This Appeal arose from an order from Master Laycock, granted in April 2010, dismissing the
Plaintiff’s Action pursuant to Rule 244.1, as nothing had been done to materially advance the
Action in the previous five years. The Appeal was heard on November 1, 2010 and the first issue
dealt with by the Court was whether the new Rules of Court applied to the Appeal.
The Court concluded that as a result of Rule 15.2(1) “[t]here can be no doubt that the new rules
apply to the hearing of this appeal”. The Court held that although former Rule 244.1 required
nothing to have occurred that “significantly advanced” the Action, the change in terminology in
the new drop dead rule, Rule 15.4(1), which requires nothing to have occurred which
“materially advances” the Action, does not materially change the effect of the Rule. The Master
stated:
… I find there is no significant or material difference between the two rules
which would affect the determination of this appeal. There can be no different
result if a thing or step is found to have been “significantly advanced” than if that
thing or step is found to be “materially advanced”.
In addition to concluding that there is no significant difference between the old drop dead Rule
and the new drop dead Rule, insofar as a determination of whether a step “significantly
advances” or “materially advances” an Action, the Court also found that in this regard “the
jurisprudence relating to the former ‘drop dead’ rule continues to be applicable to the new
rule”.
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LEE V LEPAGE, 2010 ABQB 829 (CANLII) (TILLEMAN J)
This was an Appeal from a decision of Master Hanebury regarding a reduction of allowed
disbursement amounts for three experts’ reports. Tilleman J. confirmed that an Appeal from a
Master is on the record of proceedings before the Master, stating “the appeal of a Master’s
decision is not meant to be a ‘new hearing’ unless there is significant new evidence caught by
the test in Rule 6.14(3).” Tilleman J. noted that he may have constructed his reasons differently
but that he would have reached a similar costs decision had he exercised his own discretion.
The Master’s Decision was not in error, let alone an overriding and palpable error, and the
Appeal was dismissed. His Lordship stated:
In a record review, our role then is to dismiss unless there is overriding and
palpable error as it relates to the facts determined below, meaning, the Master
made a clear and obvious mistake.
PALIN V DUXBURY, 2010 ABQB 833 (CANLII) (POELMAN J)
The Defendants applied to set aside a Default Judgment issued in favour of the Plaintiff on June
28, 2010. The Default Judgment was for $59,810 related to costs incurred for a course in laser
hair removal and the purchase of three laser machines and related equipment and furniture.
At the time the Application was filed, the “old” Rules applied and when the Application was
heard the new Rules, specifically Rule 9.15 (re: setting aside, varying and discharging Judgments
and Orders), had come into force.
The Plaintiff relied in part upon Rule 9.15(2) which specifies a requirement that the Application
be made within 20 days of when a Judgment came to an Applicant’s attention.
Poelman J. determined that 9.15 (2) does not apply to an Application to set aside a Default
Judgment. First, because a Default Judgment is not made “without notice” and Second,
because:
…the structure of rule 9.15 indicates that sub-rule (1) deals with judgments and
orders where a party did not appear because of lack of or insufficient notice or
an accident or mistake, and sub-rule (2) then requires prompt application when
the party becomes aware of the judgment or order. Sub-rules (3) and (4) deal
with different circumstances: (3), the specific case of default judgment, and (4),
the case of new information or agreement of all parties. Neither of those
situations is contemplated by rule 9.15(1).
This Decision indicates that Default Judgements differ from other Judgments. The Decision also
appears to remove a potential argument that the party knew about the Default Judgment for
more than 20 days. Poelman J. stated:
In my view, the application referred to in rules 9.15(1) and (2) does not include
an application to set aside a default judgment under rule 9.15(3).
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In terms of the test to set aside a Default Judgment, Poelman J. found that the Defendants must
show that:
(a)
They have an arguable defence; and
(b)
They did not deliberately let judgment go by default and have some
excuse for the default, such as illness or a solicitor’s inadvertence; and
(c)
After learning of the default judgment, they moved promptly to open it
up.
DONALDSON V FARRELL, 2011 ABQB 11 (CANLII) (GRAESSER J)
The Defendants sought to strike the Plaintiff’s Statement of Claim pursuant to Rule 3.68, on the
grounds that the claim constituted an abuse of process and that it did not disclose a cause of
action.
The Court held that although Rule 3.68 is similar to former Rule 129, Rule 3.68 must be “viewed
through the lens of the foundational rule, Rule 1.2”. Rule 1.2 provides that the purpose of the
new Rules “is to provide a means by which claims can be fairly and justly resolved in or by a
court process in a timely and cost-effective way”. The Court stated that:
Achieving that objective is a balancing act as “fair and just” is not necessarily
accomplished in a “timely and cost-effective way”.
The possible remedies identified by the Court in an Application to strike the Statement of Claim
in this case were to strike the claim, grant an Order to amend it, or stay the Action until the
outcome of another Action, which dealt with similar issues between similar parties, was
resolved. The Court held that, in determining the appropriate remedy, regard must be given to
Rule 1.2 and proportionality must be applied to the issues. In light of Rule 1.2, the Court held
that the appropriate remedy was to strike particular portions of the claim which constituted an
abuse of process. In regard to the argument that the Statement of Claim failed to disclose a
cause of action, the Court held that the new Rules have not “modified or lessened the test for
striking out pleadings” and the common law on “old” Rule 129 is equally applicable to Rule
3.68.
LC V ALBERTA (METIS SETTLEMENTS CHILD & FAMILY SERVICES, REGION 10), 2011 ABQB 12
(CANLII) (GRAESSER J)
This was an Application to move litigation forward in a number of Actions for which certification
as a Class Action was proposed. The analysis focused on whether a stand-alone Application
could be made under Rule 1.2(3).
Graesser J. remarked that the only precondition to making an Application under Rule 1.2(3)
would appear to be the existence of an Action, although in his view such an Application would
be premature without the parties first having made efforts among themselves to identify the
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issues and to determine the quickest way to resolve the dispute at the least expense: see Rules
1.2(2)(a)-(c). Graesser J. also stated that Rule 1.2(3) contemplates that both substantive and
procedural matters may be addressed. Because the Plaintiff had sought responses from the
Defendant on a number of procedural and substantive matters, and because the Defendant’s
response was essentially non-responsive, the Court determined there was no procedural bar to
bringing this Application. Graesser J. determined that in light of the obligations to comply with
Rule 1.2, the Plaintiff was entitled to a meaningful response. His Lordship stated: “a meaningful
response does not mean total agreement, but it does mean addressing each of the matters
raised in an open and forthright way”. Graesser J. defined “facilitate” in Rule 1.2(3)(a) as
meaning “to render easier; to promote, help forward; to lessen the labour of, assist (a person)”.
His Lordship determined that this provision must be read in the context of Part 4: Managing
Litigation and, in particular, Rule 4.1:
4.1
The parties are responsible for managing their dispute and for planning
its resolution in a timely and cost effective way.
Graesser J. noted that scheduling and moving the matter forward is no longer primarily the
obligation of the Plaintiff; that the Defendant must shoulder some of the responsibility for the
Rule 1.2(1) obligations. Graesser J. concluded that Rule 1.2(3) is intended to facilitate creating
an appropriate task list and moving the timeline towards completion.
HERITAGE STATION INC V PROFESSIONAL STUCCO INC, 2011 ABQB 18 (CANLII) (WILSON J)
The analysis focussed on when it is appropriate for the Court to exercise its discretion to permit
new evidence at an Appeal. Wilson J. concluded that the test for admissibility of new evidence
in Rule 6.14(3) is in essence the same as that in R. v Palmer (1979), 50 CCC (2d) (S.C.C.) – the
test which governs the admissibility of new evidence before the Court of Appeal under Rule
516.2. That test is:
(a)
The evidence should generally not be admitted if, by due diligence, it
could have been adduced at Trial;
(b)
The evidence must be relevant in the sense that it bears upon a decisive
or potentially decisive issue in the Trial;
(c)
The evidence must be credible in the sense that it is reasonably capable
of belief; and
(d)
It must be such that if believed it could reasonably, when taken with the
other evidence adduced at Trial, be expected to have affected the result.
Wilson J. stressed that the word “new” in 6.14(3) was a clear signal that the proffered materials
must truly be “new evidence”, in the sense that they could not by due diligence have been
adduced at the Chambers Application; in other words, they must be “recently discovered” or
“recently made available”.
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FIRST CALGARY SAVINGS & CREDIT UNION LTD V PERERA SHAWNEE LTD, 2011 ABQB 26
(CANLII) (KENT J)
This case dealt with an Application under Rule 3.68 to strike a Counterclaim. Kent J. first noted
that the Parties agreed that the test for striking such a pleading is an onerous one. Her Ladyship
then stated the law that applies to this issue: the Court must find that it is plain and obvious
that the Plaintiff’s claim discloses no reasonable cause of action in law. This determination, as
stated in 3.68(3), is made without Affidavit evidence, which means the Court must assume that
the allegations and facts in the Counterclaim are true. Kent J. noted the tension that exists in
determining whether it is plain and obvious that no cause of action exists. On the one hand, the
Court must give a liberal interpretation to the pleadings because striking them brings an end to
the Action; on the other, the Court must apply the Rule as intended so that, if on the alleged
facts there is no cause of action, the claim should be struck to avoid needless litigation.
ENVISION EDMONTON OPPORTUNITIES SOCIETY V EDMONTON (CITY), 2011 ABQB 29 (CANLII)
(MOEN J)
The City of Edmonton applied to sever one of two questions in a Judicial Review of the City’s
decision to reject a Petition. The subject matter of the Petition was the closure of the
Edmonton City Centre Airport, and the City Clerk reviewed the Petition and rejected it on two
grounds: that it was filed outside the time limits specified by the Municipal Government Act and
that it was not signed by the required number of electors.
The new Rules applied at the date of the severance Application, and the Court considered
whether the new Rules changed the law with respect to severance, such that a new test should
apply to whether severance should be granted or whether the “exceptional case” test
applicable under “old” Rule 221 continued to apply. The Court found that a significant change
between the “old” Rules and the new Rules is that the new Rules add grounds for severance,
while the “old” Rules authorized the Court to grant severance without setting out the specific
grounds. The Court found that the differences between the “old” and new Rules were too stark
to find that new Rule 7.1(1)(a) is a straightforward codification of the “old” Rule 221
“exceptional case” test.
The Court found that what should be considered in a severance application are the grounds and
considerations actually laid out in Rule 7.1(1)(a), interpreted through the lens of Rule 1.2. While
some factors are consistently relevant to the issue of severance, there is no defined list of
which factors must be considered, and factors may be given less or more weight depending on
the context of the case. The Court concluded that the “exceptional case” test is no longer the
test in Alberta. Rather, the Court must view each Application for severance by first analyzing
the three parts to the test in Rule 7.1(1)(a). If one of those tests is answered affirmatively, then
the Court must determine if severance will meet the objectives of Rule 1.2. In carrying out its
analysis, the Court must balance the ultimate goals as expressed in the Foundational Rules and
determine if the remedy of severance is proportional. The Court allowed the Application by the
City of Edmonton to sever the issues before the Court.
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MAYOWSKI V MAYOWSKI, 2011 ABQB 31 (CANLII) (READ J)
This was a divorce Action in which the Plaintiff wife made an Application for Summary
Judgment before the Case Management Judge. The issue before the Court was whether
Summary Judgment was available in the circumstances. The Court concluded that, because this
matter was an active Divorce Action, Rule 12.48 made it clear that Summary Judgment is not
available.
PONICH V PONICH ESTATE, 2011 ABQB 33 (CANLII) (VEIT J)
The Applicant sought the quantification of his claim against his late father’s estate arising from
the fact that he qualified as a “dependant” within the meaning of the Dependants Relief Act.
The Respondents argued, and the Court agreed, that prior to a quantification of his claim, the
Applicant was first required to prove that he was in fact a “dependant” pursuant to the
Dependants Relief Act. In addition to arguing that the Applicant was required to prove that he
was entitled to support from his father’s estate prior to any quantification of his claim, the
Respondents relied on Rule 7.1 in support of their argument that the determination of
entitlement under the Dependants Relief Act should be severed from the issue of
quantification. Pursuant to Rule 7.1, the Court determined that it had jurisdiction to sever the
issue of entitlement from quantification. In reaching this conclusion, Veit J. held that Rule 7.1
“is considerably broader in scope than the Rules it replaces and explicitly authorizes the
granting of orders designed either to dispose of part of a claim or to save expense”. The Court
also stated that consideration must be given to the underlying objectives of the new Rules of
Court and Rule 7.1 “must be interpreted in light of the foundational rules, which themselves
encourage adoption of processes that will allow fair trials to be held more quickly and more
cheaply…”. In light of these considerations, the Court ordered that the issues of entitlement
and quantification should be severed.
LC V ALBERTA (METIS SETTLEMENTS CHILD & FAMILY SERVICES, REGION 10), 2011 ABQB 42
(CANLII) (GRAESSER J)
This Application involved the appointment of a Next Friend/Litigation Representative. The
Application was originally commenced under the “old” Rules. Ms. Lightning, the attorney for
L.C., was an interested person who could have stepped forward and been self-appointed as the
Litigation Representative for E.M.P. pursuant to “old” Rule 58 or “new” Rule 2.14, but as she
wanted to be paid and exempted from liability for costs, the appointment was required to be
made by the Court. The Court noted that, under Rule 2.15, the Court clearly has the power to
appoint a Litigation Representative in circumstances where a party requiring a Litigation
Representative does not have one. The Court went on to state that:
There is no requirement under old Rule 58 or new Rules 2.11(a) or 2.14(1) that
the next friend be a parent or guardian of child. New Rule 2.14(1) dealing with
litigation representatives speaks of an “interested person”, although that term is
not defined in the Rules of Court.
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Interested person is a defined term in the Adult Guardianship and Trustee Act and the Court
used the same definition. Ms. Lightning was clearly an interested person, but was potentially in
a conflict position as she was the attorney of L.C. who was the parent of E.M.P. The Court, with
reliance on case law relating to “old” Rule 58, decided that the appropriate Litigation
Representative would be someone other than the parent/guardian of the child (which included
the attorney of the parent).
MANSON INSULATION PRODUCTS LTD V CROSSROADS C & I DISTRIBUTORS, 2011 ABQB 51
(CANLII) (POELMAN J)
Manson applied for preliminary determination of certain contractual issues, pursuant to Rule
7.1(3). Poelman J. determined that Rule 7.1(3) must be read in conjunction with Rule 7.1 (1)
and that the Rule contemplates a two stage procedure, as under the “old” Rule 221(1). Rule
7.1(1) authorizes the Court to order a question to be heard, to define the question or issue and
to give procedural directions. Rule 7.1(3) is premised upon there having been an Order under
Rule 7.1(1) and an Application pursuant to Rule 7.1(3) alone will not be successful.
Manson also applied for Summary Judgment pursuant to Rule 7.2. Poelman J. stated that there
is no material difference between “new” Rule 7.2(a) and “old” Rule 162 (Summary Judgment
Applications based on admissions). The authorities under the former Rule remain applicable for
Summary Judgment Applications based on admissions.
Crossroads brought an Application to amend its pleadings pursuant to Rules 3.62(1) and 3.65
(amendment not adding parties) and 3.74 (amendments adding parties). Poelman J. noted that,
generally, any pleading can be amended without regard to carelessness or lateness on the part
of the party seeking to amend. The Court stated that the Rule:
… codifies the “classic rule” that “an amendment should be allowed no matter
how careless or late, unless there is prejudice”.
This is subject to four major exceptions: Canadian Deposit Insurance Corp v Canadian
Commercial Bank, 2000 ABQB 440, 269 A.R. 49 at para 11; Foda v Capital Health Region, 2007
ABCA 207 at para 10. Those exceptions are:
(a)
The amendment would cause serious prejudice to the opposing party,
not compensable in costs;
(b)
The amendment requested is “hopeless” (an amendment that, if it were
in the original pleadings, would have been struck);
(c)
Unless permitted by statute, the amendment seeks to add a new party or
a new cause of action after the expiry of a limitation period; and
(d)
There is an element of bad faith associated with the failure to plead the
amendment in the first instance.
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Therefore, if no exception applies, the pleadings can generally be amended. Poelman J. noted
that the principles are not premised on particular words in the old Rules. Rather, they arise
from the function of pleadings before contemporary common law courts. Poelman J. added
that the guidelines established by the authorities under the “old” Rules should inform the
Court’s discretion. In this case, the amendments were granted as the Application was early in
the proceedings and there was no assertion of prejudice.
MONTES V AL-SHIRAIDA, 2011 ABQB 54 (CANLII) (MACKLIN J)
The Defendant applied to set aside two separate Consent Judgments entered into between the
Plaintiff and the Administrator of the Motor Vehicle Accident Claims Act. The Consent
Judgments were granted by Justice Hillier in June of 2006. The requirement, pursuant to Rule
9.16, that the same Justice who heard the original Application hear the Application to set aside,
was dispensed with as a result of a 4 ½ year delay between the date of the original Judgment
and the Application to set aside -- Rule 9.15 allows the Court to set aside a Judgment made
without notice to one of the parties, or following a Hearing at which a party did not appear
because of a mistake.
The first Consent Judgment was not set aside due to the fact that the Defendant knew that he
had been noted in default in 2002 but took no steps to set aside the noting in default for eight
and a half years. The Consent Judgment was obtained in 2006. The Court found that the second
Consent Judgment was not properly obtained. The Defendant had filed a Statement of Defence.
Counsel for the Defendant had subsequently filed a Notice of Ceasing to Act which set out the
address of the Defendant as “unknown”. Neither the Plaintiff, nor the Administrator, took any
steps to attempt to locate the Defendant. As a result, the Defendant did not receive notice of
the Application for the Consent Judgment and it was a mistake by the Plaintiff and the
Administrator not to either serve the Defendant or bring an Application for Substitutional
Service or an Order dispensing with service. The Court stated that “two parties cannot simply
consent to a Judgment striking out another party’s Statement of Defence”. The second Consent
Judgment was set aside pursuant to Rule 9.15.
ANDRIUK V MERRILL LYNCH CANADA INC, 2011 ABQB 59 (CANLII) (MARTIN J)
The Defendant applied to strike a Notice to Admit Facts served after the Plaintiffs filed a
Statement of Claim pursuant to the Class Proceedings Act. The Defendant claimed that the
Notice to Admit was premature and otherwise improper.
Martin J. held that the Application was to be determined under Rule 6.37 which deals with
Notices to Admit and, in particular, Rule 6.37(8) which holds that, on Application, the Court may
set aside a Notice to Admit. Martin J. further held that a failure to admit anything that should
have been admitted is a specific matter that the Court can consider under Rule 10.33(2)(b)
when asked to make a costs award. Unlike “old” Rule 230, Martin J. found that Rule 6.37(8)
does not outline when a Court should set aside a Notice to Admit, leaving it to the discretion of
the presiding Judge. Further, Rule 6.37(8) expressly states that a Notice to Admit can be used in
“applications” as well as “originating applications, summary trial or trial”, and therefore, while a
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Notice to Admit may be useful to crystallize certain facts after Discovery and before Trial
begins, it is also useful at other times.
MEL V BJL, 2011 ABQB 72 (CANLII) (GERMAIN J)
This family law decision dealt with an Application for parenting and custody, along with a
contempt Application by the Applicant. Although the contempt issue would normally have been
severed from the other issues, the Court referred to the Foundational Rules – Rules 1.2(1) and
1.2(2)(b) – which stress that claims should be resolved quickly and in the most cost effective
way. Based on these Foundational Rules, the Court heard all issues together, because this was
the most efficient use of both the parties’ and Court’s time.
HALL V WILLCOX, 2011 ABQB 78 (CANLII) (GRAESSER J)
A Judgment Creditor applied for an Order that the Defendant was in contempt of two previous
Orders to provide a Financial Report and pay $375.30 in costs. Additionally, the Applicant
sought to use the transcripts from an Examination on the Defendant’s Statutory Declaration in
other proceedings. Graesser J. found that the implied undertaking of confidentiality under Rule
5.33 did not apply to a Cross-Examination on an Affidavit or Statutory Declaration. Rather, this
type of questioning was akin to questioning under Rule 6.8 or “old” Rule 266, and CrossExaminations on Affidavits are treated as being akin to testimony in Court to which the open
Court principle applies. Graesser J. further commented that the new Rules did not change the
difference between these types of Questioning. Rule 5.33 and the implied undertaking of
confidentiality applied to the Affidavit of Records, records produced, Examinations for
Discovery, undertakings on examinations and records produced arising out of the Discovery
process. Cross-Examination on an Affidavit or Statutory Declaration is not subject to this
implied undertaking. Graesser J. held that the Applicant did not need Court approval or an
Order under Rule 5.33 to allow the use of the transcripts in other proceedings.
TOERPER V HOARD, 2011 ABQB 85 (CANLII) (STREKAF J)
The Plaintiff commenced an Action against the Defendants seeking damages for breach of
contract and breach of trust or fiduciary duty. A number of the Defendants were Noted in
Default and the Statement of Defence filed on behalf of one of the Defendants was struck out
pursuant to a prior Order of the Court, which also directed that the matter be set down for a
Summary Trial for an assessment of damages.
Strekaf J. noted that Rule 3.37, which combines “old” Rules 142, 144, 147 and 152, allows for an
Application to the Court for Judgment where a Defendant has been Noted in Default or where
the Defendant’s Statement of Defence is struck out. The Court held that Rule 3.37 allows for an
assessment of damages to determine the quantum of damages, rather than liability for the
damages which is deemed to have been admitted by the Defendant when it was Noted in
Default or had its Statement of Defence struck. The Court stated:
A defendant who is noted in default is deemed to have admitted the allegations
of fact contained in the Statement of Claim.
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The Court also noted that Rule 3.37 has the same application as its predecessors and case law
which interpreted the former Rules of Court would apply to this Rule.
IGNITION ENERGY LTD V DIRECT ENERGY MARKETING LIMITED, 2011 ABQB 90 (CANLII)
(MACLEOD J)
The Applicant sought leave to amend its Statement of Defence and Counterclaim to include a
claim for repudiation. The Respondent argued that the Applicant had made an irrevocable
election to pursue specific performance or damages and could not now amend to add
repudiation.
The Court first considered Rule 3.65, which gives the Court broad discretion to amend
pleadings. Such broad discretion is subject to the Court’s duty not to cure non-compliance
when to do so would result in irreparable harm to a party under Rule 1.5(4). The Court noted
that its discretion to amend pleadings recognizes the importance of accurate pleadings. In
determining that the threshold required to allow an amendment is very low, the Court referred
to Balm v 3512061 Canada Ltd, 2003 ABCA 98 for the proposition that: “[an] amendment
should be allowed, no matter how careless or late, unless there is prejudice to the other side”.
The Court also referred to Oregon Jack Creek Indian Band v Canadian National Railway Co
(Motion), [1990] 1 S.C.R. 117 for the principle that, absent prejudice, only a “clearly and
obviously invalid” amendment should be rejected. The Court allowed the amendments,
reasoning that they were not “clearly and obviously invalid”, since it could not be said for
certain (with the incomplete evidence in front of the Court at that time) that the Applicant had
made an irrevocable election to pursue specific performance and damages instead of
repudiation.
MEEHAN V HOLT, 2011 ABQB 110 (CANLII) (SULLIVAN J)
Following Trial, the Plaintiff sought Costs, disbursements and pre-judgment interest from the
Defendants. The Plaintiff and Defendants were unable to agree on Costs and therefore reattended before Sullivan J. for direction.
Sullivan J. held that, in accordance with Rule 15.2(1), unless an enactment or other Rule
provides otherwise, the new Rules apply to every existing proceeding. Further, where the Rules
impose a new test, provide new criteria or an additional ground, the Rules apply in respect of
Applications not heard prior to the coming into force of the Rules. Sullivan J. held that, if there
was a difference between the old Rules and the new Rules, Rule 15.6 allowed the Court to
substitute the old Rules for the new Rules, particularly where it would be in the interests of
fairness, timeliness and cost effectiveness to decide under the old Rules. In the circumstances
before the Court, no difficulty or injustice arose as between the old Rules and the new Rules,
and the Court considered the matter under both sets of Rules. This approach differed from the
approach in Broers v Real Estate Council of Alberta, 2010 ABQB 774, where only the old Rules
were considered.
Sullivan J. found that both the old and new Rules use the wording “reasonable and proper” to
define a costs award. With respect to disbursements, Sullivan J. held that both the old and new
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Rules give the Court discretion to include in “costs” the charges of experts who testify at a Trial,
as well as those who assist counsel in preparation. Sullivan J. noted that new Rule 8.16(1)
provides that “[u]nless the Court otherwise permits, no more than one expert is permitted to
give opinion evidence on any one subject on behalf of a party”. However, Sullivan J. did not
impose this test on the parties as the matter was argued at Trial under the old Rules. Taking
into consideration both the new Rules and the old Rules, Sullivan J. disallowed some of the
disbursements claimed by the Plaintiff for Experts’ Reports.
Sullivan J. also addressed the issue of “Notices to Admit and Not to Call”, finding that both the
old and the new Rules give the Court discretion to penalize Parties who refused to admit facts
or objected to a Notice Not to Call an Expert. The new Rules on this issue are Rules 10.33(2),
5.40(3) and 8.15(5). The Expert’s Report in question included evidence that was contrary to
other evidence and it was reasonable for the Defendants to refuse to admit the report. Under
the circumstances, Sullivan J. refused to penalize the Defendants for not admitting the report.
NYSTROM V RANSON, 2011 ABQB 116 (CANLII) (MASTER SCHLOSSER)
The Defendant sought to have the Plaintiff examined by two health care professionals pursuant
to Rule 5.41. The Plaintiff agreed to the examinations, but sought to limit their length and
scope. The Court had both the power and discretion to limit or restrict an examination of the
Plaintiff based on existing cases. In this instance, the Court determined that the proposed tests
were not overly intrusive or inappropriate and the examinations were allowed to proceed.
BARKER V BUDGET RENT-A-CAR OF EDMONTON LTD, 2011 ABQB 123 (CANLII) (LEE J)
The Applicant sought to strike a paragraph from an Affidavit on the basis that it contained
hearsay and a legal conclusion. The Affidavit was used in support of an Application to amend
the Statement of Claim.
The Applicant relied on Rule 3.68(4)(a), which allows the Court to strike an Affidavit that
contains frivolous, irrelevant or improper information. The Respondent relied on Rule 13.18,
which provides for the inclusion of information in an Affidavit that is not based on the personal
knowledge of the Affiant.
The Court considered Alberta case law that permits, in an interlocutory matter, evidence in an
Affidavit that is based on information and belief. The Court also determined that the
Application to amend the Statement of Claim was an interlocutory matter that would not finally
dispose of the rights of the parties. The Court concluded that there was nothing in the
impugned paragraph of the Affidavit that was frivolous, irrelevant or improper information. The
Court allowed the paragraph to stand, but the weight that the paragraph was to be given by the
Court was still to be determined.
NOWICKI V PRICE, 2011 ABQB 133 (CANLII) (MOEN J)
This was an Application to sever liability related to three Actions, all arising out of the same
collision, as well as an Application to have the liability portion of all three Actions heard
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together. The Applicant argued that Rule 7.1 does away with the old “exceptional case” test
from the former Rules of Court, in favour of a more lenient analysis. Moen J. addressed the
application of Rule 7.1 and referred to Envision Edmonton Opportunities Society v Edmonton
(City), 2011 ABQB 29. Moen J. followed the analysis set out in Envision, which provides that the
Court must first look to Rule 7.1 and determine if the threshold is met for severance and then
subsequently look at the case as a whole to determine whether the Foundational Rules for cost
effectiveness and timeliness, among other things, would be met by the severance. Moen J.
stipulated that, as in Envision, the test set out in Rule 7.1 is in three parts and those parts are
disjunctive, meaning that there is a requirement that the Court find only one of them to move
on to considering the impact of the Foundational Rules on a severance Application.
Moen J. found that severing the liability issue would save expense, would dispose of all or part
of the claim and would substantially shorten the Trial. Her Ladyship determined that the test
for severance had been met. Moen J. then turned to the Foundational Rules, finding that
severance of the liability portion of the three Actions would lead to the quickest means of
resolving the claim and would encourage settlement of the damages portions of the Actions.
KENT V MARTIN, 2011 ABQB 163 (CANLII) (BELZIL J)
The issue before the Court was the appropriate costs award in light of a breach of the Implied
Undertaking. Belzil J. held that Rules 10.30, 10.31 and 10.33 "are broadly drafted to provide for
ample latitude in awarding costs". The Court relied on prior decisions which interpreted the old
Rules, including the Court’s decision in LSI Logic Corp of Canada Inc v Logani, 2001 ABQB 968,
which provided that "Schedule C costs are not to be applied mechanically in every case." The
Court also cited Jackson v Trimac Industries Ltd, [1993] AJ No 218, which held "an award of
solicitor client costs requires rare and exceptional circumstances". Belzil J. held that the costs to
be awarded must be influenced by the breach of the Implied Undertaking, while at the same
time recognizing that the situation did not warrant solicitor client costs as there was no
"egregious, ongoing conduct by a litigant". His Lordship stated:
Costs are always in the discretion of the Court but in the normal course, costs
are awarded to the successful litigant on a party party basis absent rare and
exceptional circumstances.
ATTILA DOGAN CONSTRUCTION V AMEC AMERICAS LIMITED, 2011 ABQB 175 (CANLII)
(WITTMAN CJ)
The Court approached an Application for Security for Costs in two steps. First, it undertook an
evaluation of each of the Rule 4.22 factors. “The Court is … required to take into account the
five factors itemised in rule 4.22.” With specific reference to Paragraph 4.22(e) (“…any other
matters the Court considers appropriate”), Wittmann C.J. considered case law surrounding the
Counterclaim of the Defendant: specifically, how and in what situations the existence of a
Counterclaim affects the outcome of a Security for Costs Application. The Court stated:
It is neither possible, nor desirable, for the Court at this stage to determine
which party’s case is stronger.
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Second, the Court considered whether it was just and reasonable to grant the Application after
it had taken all of the Rule 4.22 factors into account. The Security for Costs award was granted
because, among other things, the Action involved a foreign Plaintiff that did not call evidence
with respect to its ability to pay a potential costs award against it.
(CANLII) (MASTER BREITKREUZ)
After Reasons for Decision in a Summary Judgment Application were issued (2010 ABQB 718),
the Defendant challenged the Master’s jurisdiction to grant condominium fee arrears which
had accrued since the issuance of the Statement of Claim.
Master Breitkreuz determined, based on the cases presented by counsel, that the Court had
discretion to grant or refuse the Application. However, Master Breitkreuz went on to state that
Rule 1.2, which provides that the purpose of the Rules is to provide a means by which claims
can be fairly and justly resolved in or by a Court process in a timely and cost-effective way, and
Rule 9.9, which provides that the Court must determine damages for a continuing claim to the
time the Court makes its determination of the amount, favoured the Respondent. The Court
was aware that a claim for condominium arrears was not a damages claim, but that it would be
unreasonable to interpret Rule 9.9 as being restricted to a damages claim, as the quantification
of a liquidated claim is almost always far simpler than a damages claim. In determining what
constituted a continuing cause of action, Master Breitkreuz cited case law pre-dating the new
Rules, including Wild Rose School Division No. 66 v Bert Pratch Const Co, 1998 ABQB 831.
Master Breitkreuz distinguished Wild Rose on two grounds, one of which was the Master’s
speculation that counsel might not have referred the Court in that case to Rule 250, the
predecessor of new Rule 9.9. In the end result, Master Breitkreuz dismissed the Application.
MAHAMAD V MATTHEWS, 2011 ABQB 187 (CANLII) (VEIT J)
One of the Defendants applied for disclosure of the contents of a Settlement Agreement made
between the Plaintiff and another Defendant. In determining whether or not the Settlement
Agreement was relevant and material the Court applied Rule 5.2(1). Veit J. stated that the Rule
was much narrower than its predecessor and that it excluded tertiary evidence. Further, the
Court stated that the materiality or weight of evidence must be addressed with a view to
determining whether the record will significantly help to determine one of the issues raised in
the Pleadings. The Court held that the existence of a Settlement Agreement was relevant and
material, but that the content of the Agreement was not material.
SHAVER V CO-OPERATORS GENERAL INSURANCE COMPANY, 2011 ABQB 188 (CANLII) (VEIT J)
The Applicant sought Summary Judgment pursuant to Rule 7.3, dismissing the Action on the
basis that it was commenced beyond the 10 year “ultimate” limitation period set out in
s.3(1)(b) of the Limitations Act. The Applicant was injured in a motor vehicle accident in 2000
and issued a claim in 2002, suing the Administrator of the Motor Vehicle Accident Claims Act,
among other parties. Eventually, the Motor Vehicle Accident Claims Fund consented to partial
judgment in the Applicant’s favour, which was entered in January 2010. The Claim against the
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Respondent was issued in July 2010, and was based on the SEF 44 endorsement found in the
Respondent’s policy. In seeking Summary Judgment, the Applicant cited case law which
referenced former Rule 159, however, Veit J. offered no comment with respect to its
applicability to the matter before the Court. Veit J. denied the Application for Summary
Judgment, stating that, given the ambiguity of the SEF 44 clause, the interpretation most
favourable to the Applicant was applicable.
MANUFACTURERS LIFE INSURANCE COMPANY V EXECUTIVE CENTRE AT MANULIFE PLACE INC,
2011 ABQB 189 (CANLII) (VEIT J)
Manufacturers Life Insurance Company sought Summary Judgment against Executive Centre on
the basis of a default on a lease agreement for non-payment of rent. The parties agreed, and
Veit J. accepted, that Rule 7.3 has not amended the test developed in Alberta jurisprudence
with regard to Summary Judgment. Where there is no factual dispute, the onus is on the
Respondent to establish that it has some arguable defence to the claim. Further, where there is
no factual dispute, the rights of the parties can be fairly determined without a Trial during a
Special Chambers Hearing. Her Ladyship stated:
Where, as here, there is no factual dispute, there is no purpose to a trial.
KOERNER V CAPITAL HEALTH AUTHORITY, 2011 ABQB 191 (CANLII) (SHELLEY J)
The Defendants applied for a Declaration that the Plaintiff was in contempt of Court and an
Order dismissing her Action. The basis of the Defendants’ Application for civil contempt was
that the Plaintiff failed to complete Questioning by the deadline set by the Court and extended
by consent of the Parties. Further, it was alleged that the Plaintiff failed to comply with a Court
Order directing her to produce copies of various medical records.
Shelley J. noted that Rule 10.52 provides the Court with the authority to declare a person in civil
contempt of Court and that there is no “appreciable difference between the new and old Rules
dealing with civil contempt, at least as it relates to the failure to obey a Court Order.” The Court
also held that the purpose of civil contempt remains the same, namely “to achieve compliance
with court orders and to uphold the court’s authority”.
Shelley J. stated that the requirements for a finding of civil contempt remain the same under
the new and old Rules. There must be:
1.
An existing requirement of the Court;
2.
Notice of the requirement to the person alleged to be in contempt; and
3.
An intentional act (or failure to act), without adequate excuse, that
constitutes a breach of the requirement.
The Court must be satisfied beyond a reasonable doubt that each of these elements has been
met. Moreover, the exercise of this power remains within the Court’s discretion. Rule 10.53
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sets out the penalties available if a person is found in civil contempt of Court. The penalties
under Rule 10.53 are “essentially the same penalties set out in Rule 704 of the old Rules”.
Shelley J. applied Rules 10.52, 10.53 and the common law in relation to former Rules 703 and
704 and held that, based on the facts before the Court, it was appropriate for the Court to
exercise its power to strike the Plaintiff’s Action as against all of the Defendants.
HUNKA V DEGNER, 2011 ABQB 195 (CANLII) (GILL J)
Two Applications were before the Court: one by the Defendants to sever the issue of share
value from the remaining issues before the Court for the purposes of discovery, and another by
the Plaintiffs for the production of certain documents.
In addressing whether the issue of share value should be severed, Gill J. reviewed the discretion
provided to the Court by Rule 7.1(1), stating that the Court must be guided in exercising such
discretion by the purpose and intention of the Rules as set out in Rule 1.2(1). As the issue of
share value was found to be inextricably intertwined with other issues in the Action, Gill J. held
that severing the issue would not be practical or useful and that, applying Rule 7.1(1),
severance would not help to dispose of all or part of the Claims, substantially shorten the Trial
or save expense. Gill J. further held that this conclusion was reinforced when the purpose and
intention of the Rules, as set out in Rules 1.2(1), 1.2(2)(c) and 1.2(2)(d), was considered.
In addressing disclosure of documents, Gill J. indicated that the Plaintiff had requested
disclosure of a number of financial records, which the Defendants objected to producing. Gill J.
stated that the relevant Rules are Rules 5.1(1) and 5.2(1), and held that the principles outlined
in Mustard v Brache, 2006 ABCA 265, in regard to old Rule 186.1, were still applicable, as was
the approach outlined by the Court in Weatherill (Estate of) v Weatherill, 2003 ABQB 69. Gill J.
held that the documents requested by the Plaintiffs appeared to be relevant and material and
disclosure would be in accordance with the purposes outlined in Rule 5.1(1). With respect to
the issue of confidentiality of the document production, Gill J. held that, taking into account the
fact that a Consent Order was in place imposing the requirement of confidentiality, as well as
the required confidentiality imposed by Rule 5.33(1), no further steps were required.
HOODA V HSBC CANADIAN DIRECT INSURANCE, 2011 ABQB 196 (CANLII) (MASTER
BREITKREUZ)
This was an Application to dismiss an Action based on an alleged failure to do a thing that
materially advanced the Action within a period of time. Although the 5-year drop-dead period
under Rule 244.1 of the old Rules applied to this Application, reference was made to the new
Rules. Master Breitkreuz stated that the only difference [apart from the time periods involved]
between old Rule 244.1 and new Rule 4.33(1) is the difference between the wording:
“materially advanced the action” and “significantly advanced the action”. In Master Breitkreuz’s
view, this change in wording is “a difference without a difference”.
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HENDERSON (ESTATE) V ARNETT, 2011 ABQB 198 (CANLII) (BINDER J)
The issue before the Court was whether it was improper for a Party to an Action to file an
Expert’s Report with the Court without first obtaining the consent of the opposing Party.
Binder J. held that Rule 1.2 sets out the purposes of the Rules of Court, including the need to
“identify the real issues in dispute, facilitate the quickest means of resolving a claim at the least
expense, encourage the Parties to resolve the claim themselves as early in the process as
practicable, and oblige the Parties to communicate honestly, openly and in a timely way”. One
intention of the Foundational Rules is to encourage Parties “to refrain from filing applications or
taking proceedings that do not further the purpose and intention of these rules” and “to use
publically funded court resources effectively”.
Binder J. reviewed Rules 5.34 to 5.40, regarding the proper procedure for Experts’ Reports, and
noted that, although the Rules contemplate service of Experts’ Reports as between the Parties,
they do not address whether the Reports should be filed with the Court.
Applying the Foundational Rules, in conjunction with Rule 5.32, Binder J. determined that an
Expert’s Report only becomes part of the Court record if both Parties consent to its addition or
upon Court Order. In reaching this Decision, Binder J. held that the new Rules reflect a policy of
efficiency and economy. Restricting filing to essentials promotes those goals. Unnecessary filing
wastes Court resources in terms of clerks’ time and storage space. Counsel should
communicate honestly, openly and in a timely way amongst themselves. The Experts’ reports
should only become part of the Court record by consent or with the approval of the Court.
NOVOTNY V LEPAN, 2011 ABQB 205 (CANLII) (JEFFREY J)
This matter dealt with a matrimonial property Action and a divorce Action combined together
under one proceeding. The Plaintiff in this matter applied for an Order preventing Counsel,
representing all three Defendants, from continuing to act for all three Defendants on the basis
that Counsel would be forced to breach either the confidentiality undertaking, outlined in Rule
5.33, or the professional obligation to disclose information received for one client to all other
clients, outlined in the Law Society of Alberta’s Code of Professional Conduct.
The Court stated that the obligation in Rule 5.33 is triggered when information for the purpose
of carrying on an Action is received. In determining the scope of Rule 5.33, the Court
interpreted Rule 12.9 in order to decide whether or not a combined proceeding was considered
to be one Action or multiple Actions. Jeffrey J. relied on the heading immediately before Rule
12.9 and the decision in Lord v Bell-Lord, 2007 ABQB 274, to find that Rule 12.9 was similar to
its predecessor, old Rule 563, in that it is a procedural rule which permits two Actions to be
commenced together, but this does not result in those two Actions becoming one. Therefore, in
applying Rule 5.33, the Court held that a combined proceeding was considered to be two
separate Actions.
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869120 ALBERTA LTD V B & G ENERGY LTD, 2011 ABQB 209 (CANLII) (EIDSVIK J)
The Plaintiff applied to amend a Statement of Claim to allow new Parties to be added and for
substantial amendments to the Statement of Claim.
Eidsvik J. addressed the Rules of Court dealing with amendments, including Rules 3.62 through
to 3.76, holding that the most applicable Rules were 3.65, which gives the Court the right to
permit an Applicant to amend a pleading, and 3.74, which applies when an Applicant seeks to
add parties to an Action. Rule 3.74(2)(b) allows the Court to Order that a person be added if the
Court is “satisfied that the order should be made”. However, Rule 3.74(3) stipulates that “[t]he
Court may not make an order under this rule if prejudice would result for a party that could not
be remedied by a costs award, an adjournment or the imposition of terms”.
Eidsvik J. held that former Rules 132 and 133, although somewhat differently worded, were
similarly broad, and that Rule 3.74(3) basically codifies the “classic rule” that “an amendment
should be allowed no matter how careless or late, unless there is prejudice”, as outlined in
Balm v 3512061 Canada Ltd, 2003 ABCA 98 and Milfive Investments Ltd v Sefel, 1998 ABCA 161.
Citing additional case law arising from the former Rules relating to amendments, Eidsvik J.
noted that other generally accepted criteria include that the amendment must raise a triable
issue (must not be “hopeless”), and that there must be a “modest degree of evidence” if the
amendment is beyond trivial or of a clarifying nature, unless the claim to be added is fraud, in
which case a “stiffer test” is to be used. Finally, Eidsvik J. held that, if the Claim against a person
to be added or the cause of action is outside the limitation period, then reference is to be made
to s. 6 of the Limitations Act, RSA 2000, c L-12, to determine if it should be allowed.
Eidsvik J. allowed several of the requested amendments, and allowed the addition of some of
the additional Parties. With respect to costs, Eidsvik J. held that, pursuant to Rule 3.66, the
Party filing the pleading is subject to costs. Eidsvik J. noted that although the “result ha[d] been
mixed” in the Application, the Plaintiff should bear the costs of the Application because the
Application was unduly complicated by several revisions of the Claims and Affidavits being filed
on the eve of the Applications.
PL V ALBERTA, 2011 ABQB 215 (CANLII) (GRAESSER J)
The Defendant sought an Order for a Stay of the Action or an indefinite extension of the time in
which to file a Statement of Defence on the basis that the allegations in the Statement of Claim
duplicated and overlapped with two existing Class Action Proceedings. One of the Class Action
Proceedings had been certified, while the other Class Action was pending Certification.
Graesser J. stated that the Court has the jurisdiction to extend the time limit for filing a
Statement of Defence under the appropriate circumstances. Graesser J. referred to Rule 3.68(2)
and determined that the applicable provisions were either that the Pleadings did not disclose a
reasonable Claim, or that the Claim constituted an abuse of process. Graesser J. determined
that the Defendant was not entitled to a stay as it had other methods to deal with these
concerns. The Defendant could have demanded Particulars, or applied to strike portions or the
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entire Statement of Claim, although neither of these types of Applications stay the obligation to
file a Statement of Defence.
Graesser J. also considered the fact that the Defendant was resisting the second Class
Proceedings Application, presumably on the basis that all such Claims should proceed on their
own merits. As the Plaintiff was seeking to advance the Claim on its own merits, Graesser J.
determined that there was no good reason to Stay the Action or provide an indefinite extension
to the time for filing a Statement of Defence.
ROZAK (ESTATE), 2011 ABQB 239 (CANLII) (GRAESSER J)
The Defendant doctors appealed the Decision of a Master, who had dismissed their Application
to compel the Plaintiff to answer certain Undertakings from the Cross-Examination on the
Plaintiff’s Affidavit. The Appeal involved the scope of Questioning on an Affidavit (under the old
Rules). As part of his analysis, Graesser J. made a broad reference to the Foundational Rules,
indicating that the scope of permissible Questioning on an Affidavit has not changed under the
new Rules:
Having regard to the foundational rules, I see no purpose or basis to change the
scope of questioning on an affidavit in support of an application: questions
relevant and material to the underlying application will be permitted and if
refused, will be ordered to be answered…
AUTOWELD SYSTEMS LIMITED V CRC-EVANS PIPELINE INTERNATIONAL, INC, 2011 ABQB 265
(CANLII) (MCMAHON J)
The Defendant applied for Security for Costs against a foreign corporation with no assets or
business operations in Alberta. The Court’s discussion of Rule 4.22 began by referring to
comments from Ritter v Hoag (2003), 25 Alta LR (4th) 267 (QB), regarding what constituted “just
and reasonable” under the old Rules for Security for Costs.
McMahon J. addressed Rule 4.22(b) and noted that the Court need not determine that the
Plaintiff would be unable to pay the Security in order to grant such an Application; rather, the
Court’s mandate, when determining what is just and reasonable, is merely to consider the
ability of the Plaintiff to pay. Under Rule 4.22(c), McMahon J. determined that a balanced
consideration of the merits of the entire Action is required, rather than a focus merely on the
merits of the defence as under the old Rules. McMahon J. explained that “an order for security
for costs is discretionary”. Under Rule 4.22(d), McMahon J. referred to case law that makes a
distinction between an impecunious individual Plaintiff, who may be shut out of the Court
process with the granting of an Order for Security for Costs, versus a limited liability corporation
as Plaintiff - an impecunious company with a cause of action which is a one-way valve, in which
money can flow from the company to its shareholders but not in the opposite direction.
Security for Costs is more likely to be granted in the latter situation.
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McMahon J. granted an Order for Security for Costs because of the unchallenged description of
the Plaintiff’s net asset position and the absence of evidence from the Plaintiff that it could not
raise significant Security.
(CANLII) (BROWNE J)
This was an Appeal from a Decision of Master Smart regarding the interpretation of an
insurance policy covering an airplane. Browne J. confirmed that an Appeal from a Master’s
Decision has “changed from being a hearing de novo under the Former Rules to a hearing ‘on
the record of proceedings before the Master’ under the New Rules”. Pursuant to the
transitional provisions, including Rule 15.1 and following, the Rules apply to an existing
proceeding commenced but not concluded under the former Rules, if the new Rules impose a
new test, new criteria, or additional ground for an Application. Browne J. noted that both the
former Rules and new Rules are silent as to the standard of review applicable to Masters’
Decisions. However, the existing common law has established that the applicable standard of
review is correctness. 2
Rule 6.14(3) allows for the admissibility of new evidence if it is “significant enough that it could
have affected the Master’s decision”. Browne J. adopted the reasoning of Wilson J. in Heritage
Station Inc v Professional Stucco Inc, 2011 ABQB 18, that Rule 6.14 incorporates the test for
new evidence set out by the Supreme Court in R v Palmer, (1979) 50 CCC (2d) 193 (SCC), at p.
205:
(a)
The evidence should generally not be admitted if, by due diligence, it
could have been adduced at trial;
(b)
The evidence must be relevant in the sense that it bears upon a decisive
or potentially decisive issue in the trial;
(c)
The evidence must be credible in the sense that it is reasonably capable
of belief; and
(d)
It must be such that if believed it could reasonably, when taken with the
other evidence adduced at trial, be expected to have affected the result.
Browne J. reiterated the importance that the evidence be new, in keeping with the language of
the new Rules and the Decision in Heritage Station.
CHEVALIER V SUNSHINE VILLAGE CORPORATION, 2011 ABQB 295 (CANLII) (MASTER LAYCOCK)
The Defendants applied for an Order extending the deadline to file the Defendants’ Affidavits of
Records. The Defendants were an individual and a corporate Defendant. The individual
Defendant had also made an Application for an Order that the Action against him be struck. The
Court recognized that the purpose of Part 5 of the Rules is to, amongst other things, encourage
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early disclosure. Rules 5.5(1) and (3) achieve this by fixing the time in which the Defendants
must file their Affidavits.
Master Laycock held that there was sufficient cause for the individual Defendant to extend the
time to file his Affidavit under Rule 5.12. The Court found that the individual Defendant’s
upcoming Application to have the Action struck did not appear to be frivolous and in order to
satisfy the efficiencies of time and expense the time for filing the individual Defendant’s
Affidavit of Records should be extended to 30 days after the hearing of his Application to strike
the Action against him. The Court did not award an extension to the corporate Defendant
because the corporate Defendant had not brought an Application to have the Action against it
struck. The Court found that the corporate Defendant had not demonstrated sufficient cause to
extend the time for filing its Affidavit of Records under Rule 5.12.
KENT V MARTIN, 2011 ABQB 298 (CANLII) (MILLER J)
The Plaintiff sought an Order to amend an existing Amended Statement of Claim, including the
addition of a Defendant. The information which formed the basis for the Application and the
Amendments was obtained through the pre-trial Discovery Process and was protected by the
Implied Undertaking Rule.
Miller J. considered whether the Court’s discretion under Rule 3.74 was sufficient to set aside
the protection provided by the Implied Undertaking. Miller J. rejected the argument that
information obtained at pre-trial Discovery cannot be used to amend a Pleading or add parties.
In granting leave to amend the Pleadings, Miller J. decided that the information sought to be
used involved the “same or similar parties” and the “same or similar issues” and there was no
prejudice.
FORTH V MATHER, 2011 ABQB 303 (CANLII) (GERMAIN J)
One of the issues before the Court was whether obtaining a Medical Examination (“ME”) by a
Health Care Professional of the Defendant’s choice (“Defendant’s Medical Examination”)
pursuant to the Rules of Court precluded the Defendant from obtaining a Certified Examiner’s
Medical Opinion (“CEMO”) in accordance with the Minor Injury Regulation, Alta Reg 123/2004.
The Court held that a Defendant’s Medical Examination and CEMO’s are not mutually exclusive
and the Defendant had recourse to both during the course of the litigation. In particular,
Germain J. noted that there are no provisions in the Rules of Court or the Insurance Act, RSA
2000, c I-3, the governing statute for the Minor Injury Regulation, that place “any type of an
elective burden on litigants to use one process or the other”.
Moreover, the Court held that there are important distinctions between Defendant’s Medical
Examinations and CEMO’s. For example, pursuant to the Rules of Court, only Defendants may
request a Defendant’s Medical Examination, while either party to the litigation can request a
CEMO. In addition, a CEMO is admissible in Court as prima facie evidence, whereas a
Defendant’s Medical Examination is not admissible unless the parties agree or the procedure
set out in the Rules of Court is followed.
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ANANA V LAKELAND COLLEGE FACULTY ASSOCIATION, 2011 ABQB 313 (CANLII) (MACKLIN J)
One of the issues in this Decision concerned the 6-month limitation period to file and serve an
Originating Notice for Judicial Review, as required by Rule 3.15(2). The Court reinforced the
plain wording of Rule 3.15(2): the 6-month limitation period is inflexible and is not affected by
Rule 13.5 (the Rule that allows for a variation of a time period). Macklin J. also noted that an
Administrative Board’s denial of an Applicant’s request for an Appeal of an original
Administrative Decision is itself considered a “decision or act” that is subject to Judicial Review
and the corresponding 6-month limitation period.
ELBOW RIVER MARKETING LIMITED PARTNERSHIP V CANADA CLEAN FUELS INC, 2011 ABQB
321 (CANLII) (TILLEMAN J)
The Applicant appealed the Master’s Decision granting Summary Judgment. Pursuant to Rule
6.14, an Appeal from a Master’s Decision is on the record and the standard of review is
“overriding and palpable error” in respect of factual determinations, and “correctness” in
regard to questions of law.
During the course of the Appeal, the Applicant sought to introduce new evidence in accordance
with Rule 6.14(3). In reaching its Decision to allow the Appeal, the Court did not consider the
new evidence, holding that new evidence which a party purports to advance on Appeal must be
“new and significant”. Further, Tilleman J. found that in order for new evidence to be significant
“it would have to be prominent and noteworthy enough that it would have influenced or
affected the Master’s decision”.
SUKHWANT SHERGILL V SKENE, 2011 ABQB 334 (CANLII) (MASTER PROWSE)
At the scheduled Application in an Originating Notice Action, the Applicant sought to withdraw
its Application. In response, the Respondent argued that the Court should dismiss the entire
Action to prevent the Applicant from reviving the matter in the future. The Respondent
submitted that Rule 4.36(2)(b), which refers to the “discontinuance” of an Action (but not to a
“withdrawal” of an Originating Notice Application), should apply by analogy under Rule 1.7(2)
to this particular instance. The Court agreed: the withdrawal in this matter was an analogous
situation because the Application was on the verge of being heard when it was withdrawn by
the Applicant. The Court stated:
The rules may be applied by analogy to any matter arising that is not dealt with
in the rules.
Master Prowse then determined that the reason that a Court’s permission is required for a
Discontinuance under Rule 4.36(2)(b) is to prevent a Plaintiff, who has caused a Defendant to
expend time and resources in defending an Action, from unilaterally Discontinuing an Action,
which would leave a Plaintiff free (subject to limitations issues) to re-litigate the same issues at
a time of his or her choosing in the future.
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Because the Respondent in this case had expended much time and expense in preparing for the
Application, and because the Applicant had unilaterally decided to withdraw its Application
because of unfavourable evidence it had acquired since the Originating Notice Action had been
filed, the Court allowed the Applicant to withdraw its Application but on the basis that it could
not revive the Originating Application. The Applicant could bring proceedings against the
Respondent in the future, but only on grounds not presently available to it.
COGENT GROUP INC V ENCANA LEASEHOLD LIMITED PARTNERSHIP, 2011 ABQB 335 (CANLII)
(MASTER MASON)
The Applicant sought an Order allowing it to Question an employee of a company related to the
Defendant pursuant to Rule 5.18, which allows a person to be Questioned where that person
has provided services for the Defendant and can provide the best evidence on the issue.
Both parties conceded that, although the individual sought to be Questioned had provided
services to the Defendant corporation, those services were not related to the information
which he possessed which was relevant to the Action. Nevertheless, counsel for the Applicant
argued that Rule 5.18 applied so long as the individual provided services to the Defendant at
some point and he could provide the best evidence on the issues in dispute.
In reaching its Decision the Court referred to former Rule 200 and the jurisprudence
surrounding that Rule. Master Mason noted that Alberta case law in respect of Rule 200
permitted Questioning of an individual who did not meet the strict legal definitions of an
“officer” or an “employee”, so long as the individual had relevant and material evidence by
virtue of the services he or she provided to the party. However, relevant jurisprudence also
made it clear that non-party witnesses cannot be subject to Questioning simply because they
“may have something to say”.
The Court held that Rules 5.17 and 5.18 codify former Rule 200 and the relevant case law
interpreting that Rule. The purpose of Rule 5.18, as identified by the Court, is to:
… allow questioning of persons akin to employees who have gained relevant and
material knowledge as a result of providing services to a party corporation. The
required connection is implicit in the rule and fundamental to the Alberta
approach to questioning non-parties prior to trial.
In denying the Applicant’s request, the Court found that it would be inconsistent with Rules
5.17 and 5.18 to “conclude that service providers who may have acquired relevant and material
knowledge outside of the service relationship, can be questioned prior to trial in the same
fashion as an employee of a party”. The Court added that it “is the provision of services in
relation to the matters at issue in the action that transforms a mere witness into a service
provider within the meaning of Rule 5.18”.
The Court also denied the Applicant’s request to obtain the same relief pursuant to
Foundational Rules 1.2 and 1.4, holding that Rules 1.2 and 1.4 are “not intended to provide a
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platform to subvert other rules. Rather, they augment specific rules and allow the court to craft
remedies appropriate to particular circumstances as needed”.
FILIPENKO, 2011 ABQB 340 (CANLII) (MASTER LAYCOCK)
The Defendant sought an Order for Security for Costs pursuant to Rules 4.22 and 4.23. In
granting the Application, Master Laycock considered the decision of Wittmann C.J. in Attila
Dogan Construction v AMEC Americas Ltd, [2011] AJ No 308, 2011 ABQB 175, which, at paras 24
and 25, sets out a two-step test for Security for Costs Applications pursuant to Rule 4.22.
The first step is to review the five factors set out in Rule 4.22 (a-e), being the likelihood of
enforcing an Order or Judgment against assets in Alberta, the ability to pay costs, the merits of
the Action, undue prejudice, and any other matters the Court considers appropriate. If, based
on these factors the Court is in favour of granting the Application, then the Court must consider
the second step of the test. The second step is to ask whether it is just and reasonable to grant
the Order for Security having taken into account the factors in Rule 4.22.
KWAN V SUPERFLY INC, 2011 ABQB 343 (CANLII) (MARCEAU J)
The Defendants applied for Summary Judgment. Marceau J. referred to Manufacturers Life
Insurance Company v Executive Centre at Manulife Place Inc, 2011 ABQB 189, as authority that
Rule 7.3 operates in the same manner and follows the same legal principles as its precursor,
“old” Rule 159. The Court then noted that “the general test for summary dismissal is that it
must be ‘plain and obvious that the action cannot succeed’, the action is ‘bound to fail’ or the
action has ‘no prospect of success.’” His Lordship proceeded to identify the relevant principles,
as approved by the Court of Appeal in Murphy Oil Co v Predator Corp, 2006 ABCA 69, relating to
the burden of proof required in a Rule 7.3 Application:
(a)
A party bringing a Motion for Summary Judgment bears the legal onus of
showing no genuine issue for Trial.
(b)
There is no onus on the responding party to prove a genuine issue for
Trial.
(c)
If the Applicant for Summary Judgment discharges his/her onus on the
material filed, a Respondent who does not resist the Application through
admissible evidence risks Judgment against him/her. This is an
evidentiary burden.
(d)
There is no obligation on the Respondent to file material. He/she can
accept the risk described above. If the Applicant fails to discharge his/her
legal onus, the Application will fail.
(e)
More commonly a Respondent will provide admissible evidence opposing
the Motion. In that event, the Court will consider all of the evidence to
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determine whether the Applicant has shown that there is no genuine
issue for Trial.
All but one of the issues in the Action against the Applicants were struck pursuant to Rule 7.3,
on the basis of issue estoppel and for the absence of a factual foundation.
GOSHULAK V NGUYEN, 2011 ABQB 346 (CANLII) (MASTER MASON)
The Defendants applied to have the Action dismissed on the basis of long delay, pursuant to
Rules 4.33 and 15.4. The Statement of Claim was filed and served on the Defendants on March
17, 2005. The Plaintiffs claimed that the Action had been significantly advanced between March
17, 2005 and March 17, 2010 by the gathering of medical records and preparation of damage
assessments. The Court relied on the reasoning in Top Grade Solutions Inc v Flying Pizza 73 Inc,
2009 ABQB 492, and held that the gathering of medical records and preparation of damage
assessments had not significantly advanced the Action because the Defendants were unaware
that these steps were being taken. Further, Master Mason held that Rule 4.33 did not apply
because the Application was governed by the transitional provisions of Rule 15.4.
MELANSON V ALBERTA (APPEALS COMMISSION FOR ALBERTA WORKERS’ COMPENSATION),
2011 ABQB 367 (CANLII) (LEE J)
After dismissal of Melanson’s Application for Judicial Appeal, the Respondent, Workers’
Compensation Board (“WCB”) sought Costs for the Application pursuant to Rules 10.29 and
10.31. The Applicant argued that the Respondents, the Appeals Commission and the WCB were
effectively self-represented, so were not entitled to Costs pursuant to Rule 10.31(5). Lee J.
reviewed Rule 10.31(5), and disagreed with the Applicant’s position. Rule 10.31(5)
contemplates individual persons who are parties to an Action and representing themselves
without the services of legal counsel. Both the WCB and the Appeals Commission are creatures
of statute, and were represented by legal counsel. Lee J. could find no justification to deny the
WCB costs as a result of the fact that it was represented by a salaried lawyer that works with
the WCB.
LABOUCAN V RED ROAD HEALING SOCIETY, 2011 ABQB 377 (CANLII) (MASTER SCHLOSSER)
This was an Application to strike an Action for long delay, which required the Court to consider
the circumstances surrounding a Notice to Admit being a “thing” that may have “significantly
advanced” the Action.
Although Rule 15.4(1)(b) – the transitional provision between old Rule 244.1 and new Rule
4.33(1) – was not specifically mentioned, its presence as the bridging provision that currently
governs the dismissal of actions for delay is worthy of note. Master Schlosser indicated that the
test relating to Rule 244.1 from Trout Lake Store Inc v Canadian Imperial Bank of Commerce,
2003 ABCA 259, which summarized in what situations a Rule 244.1 Application to dismiss an
Action may or may not have been successful, applied to this Decision. In other words, the Court
appeared to tie the test that applied under the old Rule 244.1 (which used the words
“materially advance”) to Rule 15.4(1)(b) (which uses the wording “significantly advance”).
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With respect to Rule 6.37(6), the Court permitted a withdrawal of a deemed admission relating
to a Notice to Admit (such deemed admission resulting from the Defendant’s decision not to
respond to the Plaintiff’s Notice to Admit). The Notice to Admit had sought admissions of fact
that were refuted in the Statement of Defence and specifically denied in Examinations for
Discovery. Master Schlosser noted that withdrawal of the deemed admissions would not result
in any prejudice that was not compensable in costs. The Master referred to authorities under
the old Rules relating to such withdrawals and concluded that he had difficulty imagining that
the test for withdrawal as found in those authorities would not be satisfied in this case.
Master Schlosser allowed the Application, deciding that it would be inappropriate to justify
allowing the Action to continue on the basis of deemed admissions that would surely be
withdrawn.
GERRY’S WELL SERVICES V FOUR WINDS ENERGY SERVICES LTD, 2011 ABQB 380 (CANLII)
(MASTER SMART)
The Plaintiff sought Summary Judgment with respect to a debt owed for a construction project.
The Defendant disputed the authority of the President of the company at the time, Mr. Roy, to
enter into the arrangement with the Plaintiff, and commenced third party proceedings against
Mr. Roy.
The Plaintiff relied on former Rule 266 (now Rule 6.8) to examine Mr. Roy. There was a dispute
as to the nature of the Examination evidence. Rule 6.8 states that the transcript of the
Examination must be filed. Master Smart determined that the Examination transcript is
evidence for the purposes of a Summary Judgment Application and “it matters not whose
evidence it is, if the transcripts establish a conflict in the evidence then the Summary Judgment
must be dismissed”.
GOSKA NOWAK PROFESSIONAL CORPORATION V ROBINSON, 2011 ABQB 385 (CANLII)
(MCMAHON J)
This was an Appeal of a Master’s Order permitting amendments to a Statement of Claim. The
Master awarded Costs of the Amendment Application to the Parties who had been successful in
their Application to Amend their Pleadings. McMahon J. reviewed Rule 3.66 and determined
that the intention of the Rule is to encourage litigants to get their Pleadings right the first time.
As such, McMahon awarded Costs against the successful amending Party.
UNIVERSITY OF ALBERTA V ALBERTA (INFORMATION AND PRIVACY COMMISSIONER), 2011
ABQB 389 (CANLII) (LEE J)
The Association of Academic Staff University of Alberta (“AASUA”) applied for Intervener status.
The Application was not opposed. Lee J. noted that the Court has the discretion to grant or
refuse such an Application. Lee J. reviewed the Rules and determined that “[t]here is nothing in
the language of the rule that suggests that the common law principles that have developed in
regards to intervener status are not applicable”. Lee J. reviewed the common law principles as
set out by Wittmann C.J. in R v Hirsekorn, 2011 ABQB 156:
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1) An intervention may be allowed where the proposed Intervener is specially
affected by the decision facing the Court or the proposed Intervener has some
special expertise or insight to bring to bear on the issues facing the Court
(Papaschase Indian Band v Canada (Attorney General), 2005 ABCA 320;
2) An Intervener in an appellate court must take the case as they find it and
cannot, to the prejudice of the parties, argue new issues which require the
introduction of fresh evidence (Batchewana Indian Band v Canada (Minister of
Indian and Northern Affairs) (1996), 199 N.R. 1 (F.C.A.));
3) Intervener status may also be granted where the proposed Intervener’s
interest in the proceedings may not be fully protected or argued by a party
(United Taxi Drivers' Fellowship of Southern Alberta v Calgary (City)), 2002 ABCA
243); and
4) The Court should take a two-step approach to determine an Intervener
application: first determine the subject matter of the proceeding, and second
determine the proposed Intervener’s interest in the subject matter
(Papaschase).
Lee J. granted Intervener status to the AASUA on the basis that it brought a different
perspective which may be of assistance to the Court.
LAMEMAN V ALBERTA, 2011 ABQB 396 (CANLII) (YAMAUCHI J)
The Plaintiffs applied to allow foreign lawyers a right of audience to assist them in their case
against the Defendants. The Plaintiffs claimed to be impecunious and unable to prosecute the
case without substantial pro bono help, which was offered by the foreign lawyers. The Plaintiffs
had counsel of record, but they requested that the foreign lawyers be permitted to, amongst
other forms of assistance, question witnesses in the absence of counsel of record.
A preliminary issue in the Application was whether the Defendants, the Governments of Alberta
and Canada, had standing to make submissions. It was the Applicants’ position that: (1) the
Intervener, the Law Society of Alberta, ably represented the interests of the Defendants, (2)
there was a massive asymmetry in resources favouring the Defendants, and (3) the Defendants’
participation in the Application would only interfere with the Plaintiffs’ right to choose their
own counsel. Yamauchi J. rejected these arguments given that the Defendants were “parties”
to the Proceeding and each would be a “person affected”, pursuant to Rule 6.3(3). He held that
“[t]he purpose of New Rules r. 6.3(3) is to provide the Defendants, as parties and affected
parties, an opportunity to respond. The Court determined that any Order made by the Court
(relating to the main issue of the Application) would either impact the Defendants or the way in
which the Defendants managed their cases. The Court also noted that excluding the Defendants
could, contrary to Rule 1.2, result in further delay to an Action that had already faced significant
delay.
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With respect to the main issue, Yamauchi J. determined that, “despite the apparent broadness
of New Rules r. 2.23(1), a court has no discretion to permit assistance where the court’s ruling
would contravene LPA s. 106(1)” (Legal Profession Act, RSA 2000, c. L-8 (the “LPA”)). The Court
referred to obiter dictum in Professional Sign Crafters (1988) Ltd v Wedekind, [1994] 7 WWR
137, which distinguished between a right of audience under “old” Rule 5.4 and the right to
practice law under the then equivalent of Section 106(1) of the LPA. Yamauchi J. stated that
there was no suggestion that the Court in that case intended its comments to extend so as to
allow trained lawyers to circumvent the regime of self-regulation established by the Alberta
Legislature, particularly where the party seeking this relief was already represented by counsel
of record. In concluding that the Rules and the LPA prohibited the foreign lawyers from the
expanded participation that they sought, Yamauchi J. noted that the Information Note to Rule
2.23 emphasizes that “assistance” must fall short of “acting as a barrister or solicitor”.
Yamauchi J. found no need to make a determination with respect to whether Rule 2.23 was
limited to self-represented litigants, nor did His Lordship specifically determine the breadth of
Rule 2.23. His Lordship did indicate that the foreign lawyers were not prohibited from providing
support to counsel of record through research and drafting, provided that counsel assumed
ultimate responsibility for the work product.
WEINS V DEWALD, 2011 ABQB 400 (CANLII) (MASTER LAYCOCK)
The Plaintiffs applied for a Procedural Order to set timelines in the Action. The Defendant
counter-applied for an Order striking the Action due to long delay, pursuant to Rules 4.31, 4.33,
and 15.4. The last step that had materially advanced the Action was an April 26, 2006
Examination for Discovery. The Parties had agreed to adjourn the date for the present
Application to a date in May 2011, which was outside 5 years from April 26, 2006, but it was
agreed that such adjournment “would not be used to dismiss the Action pursuant to Rule
4.33…”.
Master Laycock indicted that the prerequisites of Rule 4.33 [and, necessarily, Rule 15.4] had not
been met because, had the Application been heard as originally scheduled (on April 21, 2011),
the Court would have ordered a Rule 4.4(2) Procedural Order within the permissible time
period, and such Order would have been a “thing” that materially advanced the Action:
The completion of a litigation plan pursuant to rule 4.4(2) would be a permitted
step in a proceeding and the completion of such a plan may have the effect of
materially advancing an action, particularly an action that has stalled.
The Court rejected the Defendant’s Rule 4.31 argument, suggesting that the Defendant had
provided the Court with insufficient evidence to prove that the Defendant had suffered
prejudice by delay in the Action. Master Laycock granted the Rule 4.4(2) Procedural Order,
which required subsequent steps in the Action to be completed within a compressed timeline.
APEX SAFETY APPAREL INC V KEL-TEK SAFETY APPAREL, 2011 ABQB 406 (TILLEMAN J)
In a Case Management dispute, the Defendants argued that the individual who swore the
Plaintiff’s Affidavit of Records should also be appointed as the Plaintiff’s corporate
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representative for Questioning. The Plaintiff argued that an appropriate corporate
representative for Questioning had been chosen.
Tilleman J. held that the Plaintiff had the right to appoint a representative pursuant to Rule 5.4.
His Lordship stated that the appointment of the Plaintiff’s corporate representative achieved
the goals of proceeding with the Action in a timely and cost effective way pursuant to Rule
1.2(1) and (2) as well as Rules 5.1(1) and 5.3(1). Further, Tilleman J. observed that it was
important that the Court be satisfied that the corporate representative be “fully informed and
prepared for questioning”.
Justice Tilleman also stated that, if there was any “doubt” or “difficulty” as to whether the new
Rules applied to an existing proceeding, such as this one, then the Court could rely on its
discretion under Rule 15.6 to confirm its decision to allow the Plaintiff’s selection of corporate
representative. His Lordship was clear that the overriding consideration in determining whether
the former or new Rules applied under Rule 15.6 was to advance the goal of moving the
litigation forward. Justice Tilleman held that the Plaintiff’s selection of a corporate
representative was both reasonable and bona fide, and the selection achieved the goals of
proceeding in a timely and cost effective manner.
PROPHET RIVER FIRST NATION V RATH & COMPANY, 2011 ABQB 408 (CANLII) (MACLEOD J)
The Applicant sought an Order permitting the Taxation of the Bill of Costs issued by the
Respondent. Pursuant to former Rule 647, the Taxation was out of time, unless the Court
directed that it proceed. Although neither Party argued that the matter should be heard under
the new Rules of Court, Macleod J. found that, pursuant to Rule 15.2, the new Rules should
apply to existing proceedings.
However, despite Rule 15.2, the Court held that Rule 15.6 affords the Court discretion to apply
the old Rules to a matter which should otherwise proceed under the new Rules. In reaching this
Decision, the Court noted that the history of this matter proceeded under the old Rules and
that the application of former Rule 647 and the combination of new Rules 10.7 and 13.5 results
in the same test to be applied with respect to the issue of Taxation. In light of these factors, the
Court proceeded to apply the former Rules to the Application.
MARTIN V GENERAL TEAMSTERS, LOCAL UNION NO 362, 2011 ABQB 412 (CANLII) (HALL J)
The Defendant applied to strike portions of the Statement of Claim, pursuant to Rule 3.68, and
to dismiss the remaining parts of the Statement of Claim, pursuant to Rule 7.3.
The Court referred with approval to the Donaldson v Farrell, 2011 ABQB 11, which confirmed
that that the Rule 3.68 test for striking out pleadings is, as it was in “old” Rule 129:
The test [for striking out pleadings] is whether it is plain and obvious or beyond
reasonable doubt that the claim cannot succeed.
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As authority for Summary Judgment under Rule 7.3, Hall J. referred to two Court of Appeal
decisions relating to “old” Rule 159: Pioneer Exploration Inc (Trustee of) v Euro-Am Pacific
Enterprises Ltd, [2003] AJ No 1305, and Tottrup v Clearwater (Municipal District No 99), [2006]
AJ No 1532. These cases stand for the proposition that a Defendant can avoid a Summary
Judgment in favour of a Plaintiff by proving that there is no genuine issue for trial, and that such
an Application will granted if it is “plain and obvious”, “clear”, or “beyond real doubt” that the
Action should be dismissed. Through reference to Tottrup, Hall J. indicated that the facts
alleged (supporting a duty at law) in the pleadings are critical, and must be examined in a
Motion to Strike to determine whether a Cause of Action exists.
KENT V MARTIN, 2011 ABQB 416 (CANLII) (TILLEMAN J)
After receiving the Defendants’ records production the Plaintiff was able to determine the
identity of four of the John Does included in the Statement of Claim. The Plaintiff then brought
an Application to amend the Pleadings to add the parties to the Action. The Court applied Rules
3.74(2) and 3.74(3) in determining whether or not to grant the Application. In doing so, the
Court relied on the recent decisions in Manson Insulation Products Ltd v Crossroads C&I
Distributors, 2011 ABQB 51 and 869120 Alberta Ltd v B&G Energy Ltd, 2011 ABQB 209. The
Court stated that in order to be satisfied that the Order should be made, the Court would want
to see a link between the new Defendants and the facts and incidents originally alleged against
the extant Defendants. It noted that “[t]he requirement in Rule 3.74(2)(b) that the Court must
be ‘satisfied the order should be made’ means justice must require the addition of the parties”.
Furthermore, the new Defendants should be added as soon as is reasonable in the
circumstances, and there should be no prejudice that would result that could not be remedied
by a costs award, an adjournment or the imposition of terms. The Court granted the Plaintiff’s
Application stating that the Plaintiff had provided at least “some evidence” to convince the
Court to add the parties, and that no prejudice had been claimed by the Defendants.
ENCANA CORPORATION V ARC RESOURCES LTD, 2011 ABQB 431 (CANLII) (KENT J)
The Court referred to Manufacturers Life Insurance Co v Executive Centre at Manulife Place Inc,
2011 ABQB 189, in which it was determined that the test for Summary Judgment is the same as
under the “old” Rules. Kent J. proceeded to draw from Tottrup v Clearwater No 99 (Municipal
District), 2006 ABCA 380, where an expression of the rule for Summary Judgment is given. Her
Ladyship made reference to an Ontario Court of Appeal decision for the proposition that
Summary Judgment is inappropriate to decide a significant question of law involving the
definitive interpretation of a legislative provision. The Court further noted that Summary
Judgment is denied where a determination of the issue requires a careful analysis of a complex
legal test. Kent J. granted the Application, noting that: (1) no findings of fact were made so
there could be no inconsistent factual findings, and (2) the interpretation of the legislative
provision in question would be the same at Trial.
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CAMPBELL V BEEKMAN, 2011 ABQB 437 (CANLII) (LEE J)
This matter involved an uncontested Application to “unfile” an Expert Report. Lee J. relied on
Binder J.’s decision in Henderson (Estate) v Arnett, 2011 ABQB 198, wherein the Court stated
that Rules 5.34 to 5.40 contemplate service of Experts’ Reports, but are silent with regard to
the filing of such reports. Binder J. stated that the new Rules reflect a policy of efficiency and
economy, and that restricting filing to essentials promotes those goals. In relying on this
Decision, Lee J. held that the Court has the general discretion to “unfile”, which it may exercise
in appropriate circumstances, and granted the Application.
TU V ZISCHE, 2011 ABQB 443 (CANLII) (LEE J)
The Defendants applied to set a Trial date, notwithstanding that the Parties had not complied
with the Rules of Court Pre-Trial requirements. In order to secure a Trial date, the Defendants
sought an Order from the Court setting down various deadlines in respect of Experts’ Reports
and also sought an Order waiving the requirement for the Plaintiff to file an Affidavit of
Records.
The Court noted that the new Rules of Court do not allow for a Conditional Certificate of
Readiness; however, Rule 8.5(1)(c)(iii) provides the Court with discretion to set a Trial date or
direct the Court Clerk to set a Trial date, if the Court is “satisfied that a trial date should be set”.
The Court exercised its discretion pursuant to Rule 8.5 to make a procedural Order and to allow
for the Action to be set down for Trial, despite the parties’ inability to certify that no further
Pre-Trial steps were required.
XPRESS LUBE & CAR WASH LTD V GILL, 2011 ABQB 457 (CANLII) (HALL J)
The Defendants applied for Security for Costs against the Plaintiff corporation (which had assets
in Alberta and carried on business there). The Court determined that different considerations
apply to a Security for Costs Application when the Plaintiff is a corporation as opposed to an
individual. In cases involving a corporate Plaintiff, the requirements of Rule 4.22 are less
stringent than those of Section 254 of the Alberta Business Corporations Act, RSA 2000, c B-9,
which envisions a situation where a corporation “will be” unable to pay costs. Rule 4.22, on the
other hand, permits such an Order when it is “unlikely” that a Plaintiff can pay costs. Hall J.
chose to apply Rule 4.22 because it was less onerous on the Applicant, and remarked that in
considering such an Application, the Court should be mindful that a limited corporation can be
a “one-way valve”, against which there may be no recourse for a Defendant should a Costs
award be made against a Plaintiff. The Court granted the Application. Hall J. was persuaded in
the circumstances that it was not likely that the Plaintiff had sufficient exigible assets or the
ability to pay a Costs Order.
OLCHOWY V ING INSURANCE COMPANY OF CANADA, 2011 ABQB 463 (CANLII) (STREKAF J)
The Parties agreed that two related Actions should be consolidated pursuant to Rule 3.72 and
to have some issues determined in advance of Trial pursuant to Rule 7.1. The issues to be
determined in advance of the Trial related to the proper interpretation of two separate
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insurance contracts. The Defendant, ING Insurance Company of Canada, applied pursuant to
Rule 3.68(4) to strike out sections of an Affidavit on the basis that it contained inadmissible
parole evidence. Strekaf J. agreed that the information constituted “inadmissible extrinsic
evidence” which was not relevant to the issues on the Application. While Rule 3.68(4) would
permit this evidence to be struck out, Strekaf J. decided that it was sufficient to find that the
evidence would be disregarded.
RUBIN V GENDEMANN, 2011 ABQB 466 (CANLII) (MOEN J)
Moen J. provided her Reasons for Decision regarding a number of issues including the
determination of Double Costs under Rule 4.29. The Plaintiff claimed that special circumstances
existed because she was close to poverty and would have to start over if Double Costs were
awarded. The Court stated that the Plaintiff had initiated the Action and maintained it to the
bitter end despite multiple offers to settle by the Defendant. In determining whether or not
Double Costs should be awarded, Moen J. interpreted Rule 4.29(4)(e) and held that there were
no special circumstances that would prevent the Court from awarding Double Costs.
991656 ALBERTA LTD V ISFELD, 2011 ABQB 469 (CANLII) (GRAESSER J)
The Defendant applied for an Order requiring the Plaintiffs to provide information and
documents objected to during Questioning.
In reaching its Decision, the Court applied Rule 5.30 and the Decision in Trimay Ware Plate Ltd v
Way, 2009 ABQB 47, wherein the Court, applying former Rule 200(1.2), held that a person
being Examined “is required to answer only relevant and material questions”. The Court found
that the Decision in Trimay Ware Plate Ltd v Way emphasized the narrowing of the scope of
oral Questioning as a result of the 1999 Rules of Court amendments.
In addition, the Court held that certain of the Undertakings objected to were properly refused
as they fell under the category of Rule 5.10 which provides for a continuing obligation on
parties to produce relevant and material records as parties become aware of such documents
and if they have not already been produced during the course of the litigation.
Relying on the Decision in Trimay Ware Plate Ltd v Way and the Rules, the Court held that the
information and records sought did not meet the “relevance and materiality” threshold.
SEARS CANADA INC V C & S INTERIOR DESIGNS LTD, 2011 ABQB 471 (CANLII) (MASTER
HANEBURY)
The Defendants applied to have the Action struck or stayed in light of the existence of an
identical action in Ontario. In its Rule 3.68 analysis, the Court first determined, after its review
of the case law, that parallel proceedings will not result in an automatic stay granted in this
jurisdiction. Master Hanebury then applied a two-step test: first, whether the Alberta Court has
jurisdiction simpliciter, and second, whether Alberta was the forum conveniens. The Court,
referring to Donaldson v Farrell, 2011 ABQB 11, noted that Rule 3.68 is to be considered
through the lens of Rule 1.2. In particular, Master Hanebury remarked that the Rule 1.2 factors
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of “timeliness” and “cost-effectiveness” should be considered when applying Rule 3.68. The
Court concluded, given the specifics of the case and the circumstances surrounding it, which
included an ongoing, interrelated class action involving the same parties in Ontario, that it
would be more beneficial if the Action proceeded in that jurisdiction. Under the circumstances,
Master Hanebury ordered the Alberta Action to be stayed.
PEAVINE METIS SETTLEMENT V ALBERTA (ENERGY), 2011 ABQB 472 (CANLII) (BROWNE J)
This Application was for Intervener status in a Judicial Review proceeding. Prior to the new
Rules, the granting of Intervener status was guided by common law principles, the relevance of
which remains due to the considerable discretion provided by Rule 2.10. With reference to
existing case law, Browne J. stated “[t]he granting of Intervener status is discretionary and
should be exercised sparingly. Courts should be cautious not to allow Interveners to expand
the lawsuit, delay proceedings or prejudice a party”. Her Ladyship also referred to decisions
espousing the proposition that intervention may be allowed where the proposed Intervener is
specially affected by the decision facing the Court. Because of the nature of this particular case,
the Court referred to case law indicating that when there is a “constitutional dimension”, a
Court is generally more lenient in granting Intervener status. Browne J. granted Intervener
status to the Applicant, subject to terms and conditions that limited participation which would
have delayed or expanded the Judicial Review into a Trial.
MCAP SERVICE CORPORATION V CHIANG, 2011 ABQB 477 (CANLII) (SHELLEY J)
The Plaintiff sued the Defendants for the tort of waste. The Defendants were noted in Default.
Shelley J. reviewed Rule 3.37, and determined that the Plaintiff had provided sufficient
evidence as to the cost of the repairs to the property. On that basis Shelley J. granted Default
Judgment in favour of the Plaintiff.
EVANS V THE SPORTS CORPORATION, 2011 ABQB 478 (GRAESSER J)
The Application was to settle terms of the previous Trial Judgment: Evans v The Sports
Corporation, 2011 ABQB 244. In the Trial Judgment, the Court reserved the right to correct any
mathematical or calculation errors in the damage assessment. However, the Court made
changes other than just the correction of mathematical or calculation errors. The Court held
that it had previously interpreted the contract incorrectly, the damages assessment was overly
simplistic and the damages should have been confined to a two year period. The Court held
that the new Rules significantly expanded the Court’s authority to amend Judgments and
Orders, and Rule 9.13 gives the Court an extremely broad authority to do what is correct in the
circumstances. The Court amended its damages analysis accordingly.
KENT V POSTMEDIA NETWORK INC, 2011 ABQB 479 (CANLII) (TILLEMAN J)
Pursuant to Rule 3.74(2)(b), the Defendants applied to remove one of the individual
Defendants, Paul Godfrey, from the Action. In the alternative, the Defendants relied on Rule 7.3
for Summary Judgment to dismiss the claim against Godfrey.
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The Court Dismissed the Defendants’ Application in its entirety. In respect of the Application
pursuant to Rule 3.74(2)(b), the Court noted that the Rule expressly requires that the Court
must be “satisfied the order should be made”. Tilleman J. held that this “means to me that
justice requires that the application be granted”. The test to be applied in an Application under
Rule 3.74(2)(b) contains an “overarching concern about fairness”.
With regard to Rule 7.3, the Court held that the evidence presented by the Defendants was
insufficient as the Affidavit evidence presented did not positively swear to the facts that were
required in order to illustrate that it was plain and obvious that the Plaintiff’s allegations
against Godfrey could not succeed.
HOME TRUST V ROBINSON, 2011 ABQB 480 (CANLII) (LEE J)
The Plaintiff appealed from the Master’s Decision to continue a property listing for additional
days at a certain price in a residential foreclosure Action. During the Appeal, pursuant to Rule
6.14(3) and (7), Lee J. directed that a further Affidavit be submitted by the listing realtor to
allow the Court to determine whether the alleged inaccuracies which the Plaintiff argued
existed in the Defendant’s evidence did in fact exist.
The Court held that the applicable test under the new Rules for an Appeal from Masters to
Justice was as set out in Lee v Le Page, 2010 ABQB 829. In applying the test set out in Lee v Le
Page, and reviewing the additional Affidavit evidence admitted pursuant to Rule 6.14(3) and
(7), the Court held that the Appeal should be granted and directed that the listing price be
reduced as sought by the Plaintiff.
MCNULTY V EDMONTON (CITY), 2011 ABQB 481 (CANLII) (LEE J)
This Application related to Costs payable when the Plaintiff succeeded against one of multiple
Defendants. The first issue was whether the Plaintiff was entitled to Double Costs pursuant to
Rule 4.29. The Plaintiff had issued a Formal Offer against all of the Defendants. At Trial, the
Plaintiff was successful against only one of the Defendants, however the Judgment against that
Defendant had exceeded the amount of the Formal Offer. The Defendant argued that the
Formal Offer could not have been accepted by one of the Defendants alone.
Lee J. indicated that the intention of the Double Costs Rule is to reduce claims and increase the
possibility of settlement. Lee J. decided that the Defendant who was found liable in this case
had a legal obligation to indemnify the other Defendants pursuant to a contract. Since only one
Defendant was financially at risk, and the Formal Offer was less than the amount awarded
against that Defendant, it was required to pay Double Costs to the Plaintiff. It did not make a
difference that the Offer was addressed to all of the Defendants.
The second issue was whether the successful Defendants were entitled to Costs from the
Plaintiff or whether the unsuccessful Defendant was required to pay those Costs. Lee J.
determined that the Plaintiff was responsible for the Costs of the successful Defendants for
those days on which the successful Defendants testified in addition to all Pre-Trial matters
calculated at 50% of the party and party amount.
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AYLES V ARSENAULT, 2011 ABQB 493 (CANLII) (BROWNE J)
The Defendant sought an Order staying or dismissing the Action on the basis that there was no
real and substantial connection between the Action and Alberta and, in the alternative, that
Alberta is forum non conveniens and that Newfoundland was the appropriate forum.
Rule 11.25 provides for the Service Ex Juris procedure. Conversely, Rule 11.31 allows an out-ofprovince Defendant to bring an Application to set aside service. Rule 11.25(3) enumerates a
number of situations in which a real and substantial connection to Alberta is presumed to exist.
“[W]here no connecting factors from Rule 11.25(3) are present, the burden lies on the
Plaintiff”. The Court noted that regardless of whether one of the circumstances provided in
Rule 11.25(3) exists, the Court cannot take jurisdiction over an out-of-province Defendant
unless the test for real and substantial connection is met in accordance with the two-stage test
that was set out by the Court in Royal & Sun Alliance Insurance Co of Canada v Wainoco Oil &
Gas Co, 2004 ABQB 643. The onus of proving a real and substantial connection rests with the
Plaintiff.
After considering the principles set out in Royal & Sun Alliance Insurance Co of Canada v
Wainoco Oil & Gas Co, and other leading decisions including Muscutt v Courcelles (2002), 60 OR
(3d) 20 and Van Breda v Village Resorts Ltd, 2010 ONCA 84, the Court held that there was no
real and substantial connection between the Action and Alberta, and accordingly the Alberta
Courts lacked jurisdiction over the matter.
DAGHER V THOMPSON, 2011 ABQB 499 (CANLII) (PARK J)
This Application was an Appeal from a Master’s Order requiring the Plaintiff to pay Security for
Costs. Park J. determined that the Standard of Review was reasonableness and the Decision of
the Master was only to be interfered with if a palpable and overriding error could be shown.
Park J. noted that the wording of Rule 4.22 is different than the old Rule 593 under which the
Master proceeded. Rule 4.22 specifically sets out factors to be considered, including, the ability
of the Respondent to pay the costs award and whether an Order for Security would unduly
prejudice the Respondent’s ability to continue the Action. “[T]he purpose of security for costs is
to ‘ensure the Plaintiffs are able to answer the costs at the end of the proceedings’”. In this
instance, the Plaintiff failed to adduce sufficient evidence that the claim would be stifled if
security was required. Park J. then considered that the portion of the Master’s Order which
dealt with disbursements and determined that the Costs attributable to the required experts
was premature. Park J. therefore reduced the amount of security for disbursements.
There was an argument advanced by the Respondent that, pursuant to Rule 9.6(a), the Master’s
Order took effect when it was pronounced and that it was binding unless stayed or varied. As
the Master’s Order was neither stayed nor varied, the Action was therefore dismissed as a
result of the Plaintiff’s failure to post security in the time allowed. Park J. exercised his
discretion, pursuant to Rules 13.5(2) and 13.5(3), to set aside the Master’s Order in part and
provided a new deadline for the Security to be posted.
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1199918 ALBERTA LTD V TRL HOLDINGS INC, 2011 ABQB 506 (CANLII) (GRAESSER J)
The Plaintiffs sought leave to commence a Derivative Action. The Defendants opposed the
Application and relied upon an Affidavit. The Plaintiffs sought to have certain portions of the
Defendants’ Affidavit struck pursuant to Rule 13.18(1), which requires that an Affidavit be
sworn on personal knowledge or on information and belief disclosing the source of the
information and if the Application may dispose of all or part of a claim, the Affidavit is to
contain only personal knowledge of the Deponent.
Graesser J. determined that the Affidavit did not comply with Rule 13.18 as certain information
presented in the Affidavit was based on information and belief and the Affiant had failed to
indicate the source of that information. Graesser J. determined that the source of the
information was determined when the Affiant was Questioned on the content of the Affidavit.
Graesser J. decided not to strike the Affidavit, as requiring the Affiant to swear a replacement
Affidavit correcting the irregularities would be overly academic and unnecessarily formalistic,
which is contrary to the objectives of the Rules.
The Defendants objected to some of the information within the Plaintiffs’ Affidavit on the basis
that it had been produced in a separate Action and therefore breached the implied
undertaking, which is codified by Rule 5.33, and therefore the Affiant was in contempt.
Graesser J. determined that there may be theoretical non-compliance with the implied
undertaking rule, but there was no prejudice to the Defendants and there was no contempt.
The Plaintiffs could have amended the Originating Notice in the original Action, but instead filed
a new Originating Notice. Had the new Originating Notice sought leave to use the information
from the earlier Application in support of this new Application there would have been no issue
about contempt. As such, to the extent that leave to use the information for the purposes of
this new Application was necessary, Graesser J. granted such leave.
TS V STAZENSKI, 2011 ABQB 508 (CANLII) (BURROWS J)
The Defendant sought an Order setting aside a Notice to Admit Facts filed by the Plaintiff.
Burrows J. stated that the following should not be included in a Notice to Admit Facts:
(a)
Matters of opinion that it is not reasonable to expect a Defendant to
admit;
(b)
Facts that would circumvent the Rules relating to expert evidence; and
(c)
Facts that relate to points that would not normally be the subject of
evidence.
TORONTO-DOMINION BANK V SUITEL CANADA EXECUTIVE SUITES, 2011 ABQB 519 (CANLII)
(YAMAUCHI J)
The Plaintiff applied for Security for Costs against a Defendant individual. Yamauchi J. first
determined that the wording of Rule 4.22, which speaks of “a party” rather than “a Plaintiff”,
showed the Legislature’s intent to make some Defendants give security. Yamauchi J. also noted
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that the Plaintiff bore the onus of establishing its case under Rule 4.22. If the Plaintiff met that
onus, the onus would shift to the Defendant, since the Defendant was the only person who
knew whether there was any reason why the Court should not order him to post Security for
Costs. Yamauchi J. then considered the relevant Rule 4.22 factors, which, in this case, included
‘delay’ under Rule 4.22(e). Before making a decision, Yamauchi J. noted that an Order for
Security for Costs is not a final Order. Rule 4.23(4) permits the Court to increase or decrease the
security required and to vary the nature of the security. In the circumstances, Yamauchi J.
granted the Plaintiff’s Application by permitting Certificates of Lis Pendens to be registered
against Alberta properties in which the Defendant held an interest.
1238117 ALBERTA LTD V FARM AIR PROPERTIES INC, 2011 ABQB 527 (CANLII) (MASTER
SMART)
The Defendant applied for Summary Dismissal of the Action on the basis that the Plaintiff’s
claim was meritless. Master Smart referred to Kwan v Superfly Inc, 2011 ABQB 343, for the
proposition that Rule 7.3(1)(b) operates in the same manner and follows the same legal
principles as Rule 159 of the “old” Rules. Master Smart then indicated that the test for
Summary Judgment may be expressed as “an action is bound to fail” or that the Action has “no
prospect for success”. The Master determined that the Applicant satisfied its onus to show that
there was no merit to the claim, and that the materials filed and the argument made by the
Respondent failed to adequately refute the Applicant’s evidence. Master Smart, in granting the
Application, remarked that speculation and supposition from the Respondent as to what might
be proved in the future were not sufficient to resist the Application.
The Defendants sought Costs arising from the Adjournment of Applications brought by the
Defendants to Strike the Plaintiff’s Statement of Claim. Specifically, the Defendants argued that
they were entitled to “thrown-away” Costs for preparing and filing written briefs in respect of
the Applications to Strike and Costs in respect of the Plaintiff’s Adjournment Application.
The Court held that Rules 10.29, 10.30, 10.30 and 10.33 provide the Court with discretion when
deciding to award Costs in favour of a party. However, the Court’s discretion is not absolute and
the Court “must exercise its discretion judicially and in accordance with established principles”.
Based on the principles arising from prior decisions in cases such as Freyberg v Fletcher
Challenge Oil and Gas Inc, 2006 ABCA 260 and D’Amico v Weimkin, 2008 ABQB 129, the Court
held that the Defendants were entitled to Costs on an enhanced scale of Schedule C in respect
of the Costs incurred in preparing for the Application to Strike and the Adjournment
Application, payable immediately.
581257 ALBERTA LTD V AUJLA, 2011 ABQB 539 (CANLII) (TOPOLNISKI J)
The Application before the Court was a reconsideration of a Costs Award made after the Trial of
the Action. The reconsideration included the Plaintiff’s request for solicitor-client Costs and
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Costs consequences arising from the Parties’ Notices to Admit Facts and a Formal Offer issued
during the course of the litigation.
The first issue considered by the Court was whether the New Rules of Court or the former Rules
governed the Application for reconsiderations of the Costs Award. The Court held that Rule
15.2 directs that the new Rules apply to every existing proceeding unless otherwise provided.
Rule 15.1 defines existing proceeding as a “court proceeding commenced but not concluded
under the Former Rules”. The Court also stated that Rule 15.6 allows the Court to “suspend or
modify operation of the New Rules if there is doubt about their application, or if their
application would result in difficulty, injustice or impossibility”. Applying the direction arising
from Rules 15.1, 15.2 and 15.6, the Court held that the Applications before it were governed by
the new Rules.
The Court also addressed whether the Action should be re-opened to reconsider the Costs
Award. The Court held that Rule 9.13 permits the Court to vary a Judgment at any time before it
is entered if there is a good reason to do so. In this case, the Court exercised its discretion
pursuant to Rule 9.13 and allowed the case to be re-opened since the Formal Offer had not
been disclosed prior to the issuance of the Court’s Reasons for Decision in accordance with Rule
4.28.
Since the Court ruled that the case could be re-opened, it turned its mind to whether the Offer
at issue was a Formal Offer under the former Rules or the new Rules. “Formal offers to settle
under the Rules of Court must be certain and genuine.” The Formal Offer had been advanced
under the former Rules of Court. The requirements for a Formal Offer under the new Rules are
significantly different from those which were contained in the former Rule 169. Topolniski J.
applied Rule 15.6 and held that the facts of the case before the Court “exemplify the raison
d’être for Rule 15.6”, exercised “discretion to suspend the operation of Rule 4.24” and
determined the validity and effect of the Formal Offer pursuant to Rules 169 and 174(1) of the
former Rules.
The Court also considered which Column of Schedule C applied to the Costs Award granted by
the Court. The Court noted that although Rule 10.42 was triggered because the Judgment
awarded fell within the monetary jurisdiction of the Provincial Court, in this case, since the
Action alleged conversion, the proceeding did not fall within the Provincial Court’s jurisdiction
and Rule 10.42 did not apply. The Court considered the factors set out in Rule 10.33 and
awarded the Plaintiff Schedule C, Column 1 Taxable Costs.
CHEVALIER V SUNSHINE VILLAGE CORPORATION, 2011 ABQB 544 (CANLII) (MASTER LAYCOCK)
The Defendants applied to strike the Plaintiffs’ pleadings on the basis that they did not disclose
a reasonable claim of inducing a breach of contract, pursuant to Rule 3.68(2)(b). Citing Hunt v
Carey Inc, [1990] 2 SCR 959, Master Laycock noted that the test for an Application to strike
pleadings is “whether it is plain and obvious that the claim cannot succeed”. “[T]he court
should be generous in assessing the pleadings. It is not always necessary to plead specific
words provided that the essence of the action is outlined”. Master Laycock considered the
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allegation contained in the Statement of Claim to determine whether the required elements
were pleaded. “The problem for the plaintiffs is that the pleadings in their current form do not
allege what their counsel argues they allege”. Master Laycock determined that the deficiencies
in the pleadings could result in the Action being dismissed as against certain Defendants. “An
action may be struck if no amount of amendment could save the action. A pleading will not be
struck if the flaws in it are capable of amendment”. The Plaintiffs then asked for leave to amend
the pleadings. Master Laycock further noted that, pursuant to Rule 1.2, it would have been
more timely and cost effective for the Plaintiffs to file a Cross Application for leave to amend,
but decided to grant the Plaintiffs an Adjournment to amend the pleadings. “Applying for leave
to amend during an application to strike is the least timely and cost-effective approach”. It was
determined that any prejudice to the Defendant could be dealt with through a Costs Order.
The Defendants also applied to strike the Plaintiffs’ Statement of Claim on the basis that it was
frivolous, pursuant to Rule 3.68(2)(c). The Defendant filed no evidence - as a result the
argument was the same as that considered pursuant to Rule 3.68(2)(b) and the Court
determined that the remedy was the same.
The Defendants also argued that the Plaintiffs had joined four separate causes of Action into
the proceeding which resulted in misjoinder, pursuant to Rule 3.70. The Defendants argued
that each claim was unique and that the calculation of damages for each party would be
different. As such, trying the claims separately would meet the goals of Rule 1.2(2)(b) and (c).
Master Laycock determined that the claims would be a misjoinder, except for the common
claim of inducing breach of contract which resulted in a common question of fact with the same
legal issues. Given that the Plaintiffs had been granted an opportunity to amend their
pleadings, the Court was unable to grant the misjoinder Application until after the pleadings
were Amended.
TLA FOOD SERVICES LTD V 1144707 ALBERTA LTD, 2011 ABQB 550 (CANLII) (SHELLEY J)
The Plaintiff relied on Rules 3.37 and 3.38 to bring an Application, without notice, for an Order
for Judgment that would: (1) rectify a contract of purchase and sale, and (2) direct Land Titles to
register a title in the name of the Plaintiff. The Defendant had been noted in default pursuant
to Rule 3.36(1) for not responding to an Amended Statement of Claim.
The Court noted that neither Rule 3.38, nor its predecessor (Rule 149) under the “old” Rules,
had been subject to judicial commentary or discussion. After setting out dictionary definitions
of “recovery”, Shelley J. found that “recovery of property” in Rule 3.38 references the
restoration or regaining of property or title, as opposed to a general usage of “recovery” that
would include, for instance, a Plaintiff in a lawsuit seeking “recovery” through damages of what
that Plaintiff had lost. Under Rule 3.38, Her Ladyship determined that Default Judgment for the
recovery of property should only be available when the property is easily ascertainable, without
the need for a Court Application. An example provided by the Court was a foreclosure Action
where the Plaintiff has a mortgage identifying its interest, or in a bailment Action where the
Plaintiff has an agreement describing the personal property sued for.
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Turning to Rule 3.37, the Court indicated that the Plaintiff’s Amended Statement of Claim had
sought three remedies: damages, rectification of a contract, and specific performance. Shelley
J., in denying the Plaintiff’s Application, referred to Fenske v Schneider, 2007 ABQB 164, for the
proposition that notice must be given to a Defendant of the Plaintiff’s choice of remedy so that
the Defendant can advance a position in regards to the appropriate equitable remedy. An
additional reason for denying the Rule 3.37 Application was that the facts deemed admitted by
the Defendant in the Amended Statement of Claim (as a result of the Defendant having been
noted in default) were not sufficient to permit the Court to make an Order of rectification.
TURNER V DN DEVELOPMENTS LTD, 2011 ABQB 554 (CANLII) (BROWNE J)
The Defendants appealed the Decision of Master Wacowich discharging their caveat and
certificate of lis pendens filed against property owned by the Plaintiffs.
In its analysis, the Court noted that an Appeal from a Master’s Judgment or Order is now an
Appeal on the record. Further, in accordance with Rule 15.1, the new Rules apply to an existing
proceeding commenced, but not concluded under the former Rules. Moreover, if the new Rules
“impose a new test, provide new criteria, or provide an additional ground for an application in
an existing proceeding, the New Rules apply…”.
Although the former Rules and the new Rules do not dictate the standard of review to be
applied, the Court noted that cases decided under the former Rules held that the applicable
standard of review was one of correctness. However, under the new Rules, since Appeals from
a Master are no longer hearings de novo, but rather on the record, recent Decisions have
concluded that this change results in an “appellate standard of review”. Browne J. agreed that
the appropriate standard of review is an appellate standard of review.
There was no dispute over the Master’s finding of facts; instead the issue was in respect of the
correct interpretation of an insurance contract, an issue of law. Therefore, the appropriate
standard of review was correctness. On that basis, the Court granted the Defendants’ Appeal.
ROYAL BANK OF CANADA V SAMRA, 2011 ABQB 556 (CANLII) (BENSLER J)
In this Appeal of a Master’s Decision, the Court referred with approval to Janvier v 834474
Alberta Ltd, 2010 ABQB 800 with regard to determining the appropriate standard of review.
Bensler J. noted that, because an Appeal from a Master’s Decision is no longer conducted as a
hearing de novo, the Master’s Decision is now accorded a greater degree of deference.
Referring to Janvier, Her Ladyship noted the following: (1) Masters continue to be limited in
their jurisdiction to determine questions of fact - such a finding made within a Master’s
jurisdiction is entitled to deference and is not to be interfered with unless there is “palpable or
overriding error”; (2) a review of a Master’s Decision on a question of law is assessed on a
standard of correctness; and (3) the standard of review for questions of mixed law and fact
depends upon the characterization of the question and of the error: where the error arises in
identifying the legal standard, the standard is correctness, but where the error arises in
applying the correct legal standard to a given set of facts, the standard is reasonableness and
the Decision should not be interfered with unless there is a palpable and overriding error.
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Two of the issues were questions of law and therefore assessed on the standard of correctness.
The third issue involved mixed law and fact, and was not a situation in which the error, if any,
was in identifying the correct legal test to be applied. The appropriate standard of review for
that issue was reasonableness.
CHEVALIER V SUNSHINE VILLAGE CORPORATION, 2011 ABQB 557 (STREKAF J)
This was an Application, by consent of the parties, for a restricted Court access Order to seal an
Affidavit. The Affidavit had been prepared by the Plaintiff in response to an Application brought
by the Defendant. The documents attached to that Affidavit had been listed in the Defendant’s
Affidavit of Records and made available to the Plaintiff. The Defendant expressed concerns that
that documents attached to the Affidavit could affect the reputation of the Defendant if
obtained by the public. The Defendant pointed out that these documents had been made
available to the Plaintiff pursuant to Rule 5.33, as a requirement of the litigation process and
subject to the confidentiality protection of Rule 5.33.
The Court indicated that Rule 5.33 codifies the common law implied undertaking that prohibits
the use of Discovery evidence except for the purposes for which it was produced. Strekaf J.
highlighted, however, that once documents are filed on the Court record, they are, absent any
restricted Court access Order, available to the public. In other words, the filing of an Affidavit
outside the scope of Rule 5.33 may remove the confidentiality that otherwise attached to the
contents of that Affidavit.
Because Rule 5.33 does not protect documents outside the scope of Rule 5.33, a separate legal
test known as the Dagenais/Mentuk test (Dagenais v Canadian Broadcasting Corp, [1994] 3 SCR
835; R v Mentuck, 2001 SCC 76) had to be satisfied before Strekaf J. would grant the
confidentiality Order. That test is the following:
A confidentiality order … should only be granted when:
(a) such an order is necessary in order to prevent a serious risk to an important
interest, including a commercial interest, in the contest of litigation because
reasonably alternative measures will not prevent the risk; and
(b) the salutary effects of the confidentiality order, including the effects on the
right of civil litigants to a fair trial, outweigh its deleterious effects, including the
effects on the right to free expression, which in this contest includes the public
interest in open and accessible court proceedings.
The Dagenais/Mentuk test was not satisfied in this case, and the Application was rejected.
CANADA (NATIONAL REVENUE) V GLAZER, 2011 ABQB 559 (CANLII) (MANDERSCHEID J)
The Applicant appealed a Decision of Master Wacowich dismissing a Motion to set aside the exparte registration of a British Columbia Supreme Court Judgment pursuant to the Reciprocal
Enforcement of Judgments Act R.S.A. 2000, c. R-6. Manderscheid J. reviewed the cases which
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have interpreted Rule 6.14 and referred to Janvier v 834474 for its summary of the Standard of
Review. Manderscheid J. determined that the record in its totality allowed for a meaningful
review of the Decision’s correctness. Manderscheid J. determined that there was no reason to
upset the Order of Master Wacowich as the conclusions reached were correct.
VINCENT V MODULINE INDUSTRIES (CANADA) LTD, 2011 ABQB 571 (CANLII) (FOSTER J)
The Defendant applied to have the Action dismissed on the grounds that more than five years
had elapsed since the last thing was done that materially advanced the Action; or in the
alternative, pursuant to Rule 4.31, there had been an inordinate, inexcusable delay by the
Plaintiffs in pursuing the Action, resulting in significant prejudice to the Defendants.
In assessing whether Rule 15.4 applied to the circumstances before it, the Court noted the
impact of Rules 1.7(1) and (3), which require that the meaning of the Rules should be
“ascertained from the text, in light of the purpose and intention of these rules” and that
reference can be made to the headings of the Rules in determining their purpose. Rule 1.2 also
details the purpose and intention of the Rules.
The Court noted that the language in Rule 15.4 is mandatory and the Court “must dismiss” the
Action if the time prescribed in Rule 15.4(1) has elapsed since the last thing that was done to
significantly advance the Action and none of the exceptions in Rule 15.4(2) apply.
The Plaintiff argued that a Praecipe to Note In Default and a Consent Order setting the Noting
in Default aside significantly advanced the Action for the purposes of Rule 15.4. The Court
engaged in a thorough analysis as to whether those steps constitute things which significantly
advanced the Action and relied on cases decided under former Rule 244.1 in determining
whether to dismiss the Action.
The Court disagreed with the Plaintiff and held that, in the circumstances, neither the Noting in
Default nor the subsequent Consent Order setting aside the Noting in Default, significantly
advanced the Action. Accordingly, the Court dismissed the Action against the Defendant.
ALBERTA TREASURY BRANCHES V VALERIO, 2011 ABQB 580 (CANLII) (ROSS J)
This was an Application to set aside an award of solicitor-client costs. Ross J. found the
Master’s decision to award costs was reasonable, but that the amount of the costs awarded
was unreasonable. In determining whether Her Ladyship could substitute Her Ladyship’s
discretion for the Master’s, Ross J. stated that Appeals from a Master’s decision are now on the
record in Alberta, and a review of the experience of other jurisdictions was warranted to help
determine the issue. Following Her Ladyship’s review, Ross J. held that it is appropriate for a
superior court judge to substitute his/her discretion for that of a Master, if the findings of the
Master are wrong in law or not supported by the evidence. Ross J. further held that, apart from
precedent, it was appropriate under Rule 1.2(2) to substitute Her Ladyship’s discretion for the
Master’s, as it was more cost effective and timely than to send the parties back to Masters’
Chambers for another hearing on the same issue.
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NAHIRNEY V OGILVIE & COMPANY, 2011 ABQB 586 (CANLII) (LEE J)
The Defendants applied for an Order prohibiting the Plaintiff’s father from representing her.
The Plaintiff was not suffering from any incapacity and there was no evidence presented that
she required a Litigation Representative due to lack of capacity. The Plaintiff’s father put
forward an Affidavit in support of his position that he be appointed the Plaintiff’s Litigation
Representative based on Rule 2.14, Rule 2.13 and by virtue of a Power of Attorney he had for
his daughter.
Lee J. decided that self-represented litigants have an audience before the Court by virtue of
Rule 2.22. The Plaintiff’s father may provide assistance to the Plaintiff in the manner set out by
Rule 2.23 but that does not permit him to represent his daughter in the proceedings. There was
no basis for the Appointment of a Litigation Representative as the Plaintiff was not a minor and
had no capacity issues.
UNIVERSITY OF ALBERTA V CHANG, 2011 ABQB 595 (CANLII) AND 2011 ABQB 596 (CANLII)
(LEE J)
Applications to dismiss two Actions for long delay resulted in a dismissal of both Actions
pursuant to both Rules 4.31 and the “five-year drop dead” rule.
The Court in both Decisions referred to Brar v Pawa, 2010 ABQB 779 as authority for the
proposition that the presumption of serious prejudice caused by inordinate and inexcusable
delay is preserved under Rule 4.31 and that such prejudice is sufficient in and of itself to have
the Action dismissed without evidence from the Respondent to rebut the presumption.
Referring to Kuziw v Kucheran Estate, 2000 ABCA 226, the Court determined that “inordinate” is
determined in light of all the circumstances of a particular case, and that the burden to show
such delay is on the Applicant. Once “inordinate” has been made out, the natural inference is
that such delay is inexcusable, and a finding of inordinate delay shifts the onus to the
Respondent to provide an excuse (to rebut the presumption). Referring to Ravvin Holdings Ltd v
Ghitter, 2008 ABCA 208, Lee J. asserted that if and when a presumption of serious prejudice has
been rebutted, actual prejudice must be found, such prejudice needing to occur during the
period of inordinate delay. His Lordship added that actual prejudice can take two forms: (1)
prejudice that affects the ability of the Applicant to defend himself at Trial, such as lost
witnesses, destroyed documents or faded memory, or (2) prejudice found collaterally in the
difficulty a litigant has in conducting his affairs with an Action hanging over his head. The
Respondents in both Applications failed to put forward evidence to rebut the presumption of
serious prejudice.
In University of Alberta v Chang, 2011 ABQB 596, Lee J. (subsequent to discussing the above
law) suggested that Rule 4.31 requires the Applicant, at the first instance, to show inordinate
and inexcusable delay, as well as to provide evidence of prejudice. The Court referred to Weins
v Dewald, 2011 ABQB 400 for this proposition. [Editor’s Note: this approach appears to be
inconsistent with the earlier decision in University of Alberta v Chang, 2011 ABQB 595. Further,
it is unclear what portion of Weins supports this proposition.]
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In the Court’s analysis of Rules 4.33 and 15.4 in both Decisions, Lee J. referred to Hooda v HSBC
Canadian Direct Insurance Incorporated, 2011 ABQB 196 and Bahcheli v Yorkton Securities Inc,
2010 ABQB 824 as authority that the former “five-year drop-dead” rule remains applicable. The
Court referred to Morasch v Alberta, 2000 ABCA 24 for the proposition that a functional
approach should be taken to measure whether a “thing” during the relevant time period has
genuinely furthered the litigation in a meaningful way. Lee J. pointed out that the mere setting
of dates for Examinations for Discovery is not a “thing” that significantly advances an action in
any material way. His Lordship determined that the Court must dismiss an action for long delay
upon finding that five years has expired since the last “thing” done that significantly advanced
an Action. Further, the question of prejudice to the party applying for such dismissal is
irrelevant when there has been such a five-year delay.
TORONTO DOMINION BANK V HUNIK, 2011 ABQB 610 (CANLII) (MASTER PROWSE)
This was an Application to set aside a Default Judgment. Master Prowse stated that the Court’s
authority to set aside, vary or discharge a Judgment in Default of Defence under Rule 9.15(3)
applies only to Judgments granted by the clerk on praecipe, and not to Judgments granted by a
Master or Judge. Since this Judgment was granted by a Master, section 9.15(3) did not apply.
Additionally, the Court held that section 9.15(1) did not apply as the Applicant had received
notice of the Hearing and never intended to appear.
KENT V KENT (ELLIS), 2011 ABQB 611 (CANLII) (ERB J)
In this Decision the issue before the Court was which party was entitled to Costs arising from
the Action. The Plaintiff argued that he was entitled to Costs as a result of delays that the
Defendant caused. Conversely, the Defendant argued that she was entitled to Costs because
she was substantially the successful party.
With regard to the Defendant’s argument, the Court considered Rule 10.29(1) which provides
that the successful party is entitled to Costs from the unsuccessful party. The Court noted that
it is not necessary that the successful party succeed on every point, but that there must be
“substantial success” which is assessed on a “balanced assessment of the outcome and the
nature of the final judgment”.
The Court disagreed with the Defendant’s assessment that she was substantially the successful
party and instead found that the Plaintiff was substantially successful on all major aspects of
the Action.
The Defendant also sought increased compensation as a result of the Plaintiff’s conduct at Trial.
The Court held that Rule 10.31(2)(c) provides that “reasonable and proper costs do not include
costs related to dispute resolution or judicial dispute resolution processes unless a party
engages in serious misconduct in the course of the resolution process”. The Court found that
the Plaintiff did not engage in serious misconduct and accordingly the Defendant was not
entitled to Costs on that basis.
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The Court then considered the Plaintiff’s argument that he was entitled to Costs in addition to
party-party Costs as a result of delays caused by the Defendant. The Court applied Rule
10.33(2)(a), which provides that in making a Costs Award the Court can consider whether the
conduct of a party “unnecessarily lengthened or delayed the action or any stage or step of the
action”. The Court agreed with the Plaintiff that the Defendant’s conduct resulted in a delay
and that the Plaintiff was entitled to reasonable compensation for such a delay.
In assessing the quantum of Costs, the Court noted that Rule 10.31(1)(b) allows the Court to
Award Costs in any amount that it considers appropriate in the circumstances. The Court also
found that although the former Rules of Court designated Column 1 as the default column for
divorce and corollary relief matters, the new Rules of Court do not provide that same limitation.
However, some courts have continued to apply the procedure used under the former Rules of
Court and limit Costs to Column 1. The Court in this case held that given the circumstances, it
was appropriate to assess Costs under Column 4.
MOUME V LONDONDERRY SHOPPING CENTRE INC, 2011 ABQB 612 (CANLII) (MASTER
SCHLOSSER)
The Plaintiff brought an Application for Summary Judgment and an Application that the Third
Party insurer was obliged to defend the Defendant. The Defendant brought an Application for
Summary Judgment as well as an Application under Rule 7.1 to have an issue brought before
the Court to determine the existing insurance coverage. The Court dismissed the other
Applications and held that it was appropriate to invoke Rule 7.1 and order a determination of a
question or issue. The Court stated that a determination of a question or issue could dispose of
the bulk of the issues in the lawsuit and as such it satisfied some of the goals set out in Rule 1.2.
EVANS V THE SPORTS CORPORATION, 2011 ABQB 616 (CANLII) (GRAESSER J)
This Application dealt with an Award of Costs following Trial. Graesser J. stated that “Costs are
governed generally by Rule 10.29 and in more detail by R. 10.33”. The Court determined that
there are no significant differences between the old Rules and the new Rules in relation to
Costs. The Court’s powers and the parties’ entitlement to Costs have not changed as a result of
the new Rules. Graesser J. awarded Costs to the successful Defendant/Plaintiff by Counterclaim,
but refused to award an increase to the tariff amounts. Graesser J. added that Solicitor and
Client Costs are routinely sought after Trial, often without any proper basis or foundation. This
could result in a Trial after the Trial consisting of a review of every step in the Action looking for
misconduct. This potential outcome is contrary to Rule 1.2 relating to proportionality, economy
and efficiency.
BONSMA V TESCO CORPORATION, 2011 ABQB 620 (CANLII) (GRAESSER J)
The Defendant applied for an Order directing that the matter be heard by way of a Summary
Trial pursuant to Rule 7.5.
The Court noted that after a party brings a Motion to have a matter heard by way of Summary
Trial, the responding party can either agree with the process and file the appropriate materials
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pursuant to Rule 7.6, or, if the party disagrees, it can object pursuant to Rule 7.8. In this case,
the Plaintiff objected to the Application.
Pursuant to Rule 7.8, an objection to a Summary Trial must be dismissed if the Court is of the
opinion that the matter “is suitable for summary trial” and “the summary trial will facilitate
resolution of the claim or a part of it”. The Court held that the new Rules have not changed the
test to determine whether a Summary Trial is appropriate. However, as noted by the Court, the
Foundational Rules, which emphasize “proportionality, efficiency, economy and expedience”,
encourage processes such as Summary Trials.
In reaching its decision, the Court reviewed relevant cases decided under the former Rules,
including Duff v Oshust, (2005), 381 AR 386. In that case, the Court held that factors to be
considered on an Application for a Summary Trial included: the monetary amount in dispute;
the complexity of the matter; its urgency; any prejudice likely to arise by reason of delay; the
cost of taking the case forward to a conventional Trial in relation to the amount involved; the
course of proceedings; whether all of the witness or only some were or will be cross-examined
in Court; where there is a real possibility that the Defence can bolster its evidence by Discovery
of the Plaintiff’s documents and witnesses; and whether the resolution will depend on findings
of credibility.
The Court held that the case before it did not have the “factual matrix within which a judge can
prefer one set of facts over the other and come to factual findings”, and as a result denied the
Defendant’s Application and directed that the matter proceed to Trial.
IBM CANADA LIMITED V KOSSOVAN, 2011 ABQB 621 (CANLII) (MAHONEY J)
The Plaintiff sought an Order to have the mandatory Dispute Resolution Process waived
pursuant to Rule 4.16(2). Pursuant to Rule 4.16, barring certain circumstances, parties must
engage in a form of alternative Dispute Resolution prior to proceeding to Trial.
In this case, the Plaintiff argued that the Dispute Resolution requirement should be waived
since the Plaintiff had a very strong case against the Defendants. The Plaintiff was confident it
would obtain a Judgment granting full recovery following the Trial of the Action. Further, the
Plaintiff advised that its corporate policy required that it could not accept anything less than full
or near-full indemnity in fraud cases such as this one. The Plaintiff also argued that it was
unlikely that the Defendants were in a financial position to agree to a settlement of a full or
near-full indemnity resolution. The Plaintiff argued that there was “no realistic chance of the
matter settling at JDR”. Further, the Plaintiff submitted that proceeding to a JDR would be a
waste of resources and time – both for the parties and for the Court. The Defendants argued
that the matter was appropriate for a JDR and that the reasons provided by the Plaintiff in
support of waiving the Dispute Resolution Process were insufficient.
The Court noted that Rule 4.16 is a new Rule and did not have a predecessor in the former
Rules. Accordingly, there is no Alberta case law which is instructive. In determining whether to
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waive the mandatory alternative Dispute Resolution Process the Court considered Rule 4.16,
Rule 1.2, and Rules 4.1 and 4.2 in respect of the Parties’ responsibility to manage the litigation.
With regard to Rule 1.2, the Court noted that this foundational Rule “highlights the importance
of identifying those issues in dispute and of effective communication between parties…”. The
Court added that the “rule stresses resolution of the claim in issue as early in the litigation
process as possible and at the least expense”. The Court held that the same principles apply to
the mandatory alternative Dispute Resolution Process and that Rule 4.16 must be read in a
manner which gives effect to the purpose statement contained in the Foundational Rule.
In addition to examining the new Rules, the Court looked at judicial consideration of similar
Rules in other jurisdictions. In considering relevant and applicable jurisprudence, the Court
noted that, before the new Rules of Court, the:
…traditional view was that although dispute resolution was a useful process, the
court would not ordinarily order it over the objections of a party. The thinking
was that a mandatory dispute resolution process is an oxymoron, because a
party who believes that this it is a waste of time and money will not engage in
good faith negotiations.
The Court added that such thinking is “not the new millennium view nor the view of the
legislature when enacting the New Rules”. Instead, the Court held that experience has shown
that participation in alternative Dispute Resolution has resulted in many settlements that would
otherwise not have occurred. Moreover, the alternative Dispute Resolution Process is valuable
in identifying the real issues in dispute, reducing the costs of final resolution and, in some
instances, improving the relationship between the Parties.
In its analysis, the Court also noted that, in addition to benefits, there are some disadvantages
to mandatory Dispute Resolution, including expenditures of time, money and resources;
nevertheless, absent the presence of compelling reasons “the court should not use its
discretion to bypass the legislated objectives of the Rule”. The Court then turned its attention
to the specific instances where an exemption may be appropriate. The Court reviewed Rules
4.16(2) (a) – (e) and case law from other jurisdictions to examine situations where a waiver of
the Dispute Resolution requirement is appropriate, noting that each case must be assessed on
an individual basis and that the threshold for obtaining such exemptions is high.
Based on its interpretation of the Rules, its review of the purpose of the Rules, and its review of
case law in other jurisdictions, the Court denied the Plaintiff’s Application to waive the
alternative Dispute Resolution requirement.
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(WITTMANN CJQB)
An out-of-country Defendant applied to set aside Orders for Service Ex Juris. The Application
was filed when the former Rules were still in force, but was made after the new Rules became
effective.
At the heart of the Application was whether the “good arguable case” standard of proof
requirement for Service Ex Juris under the former Rules was carried forward by the new Rules.
The Court indicated that it was keenly aware of its obligation to prevent difficulty or injustice to
either party stemming from the transition to the new Rules. Wittmann, CJQB noted that if
applying the new Rules would benefit one party to the detriment of another, the difficulty or
injustice referred to in Rule 15.6 had to be resolved. His Lordship pointed out, however, that if
the requirement of a “good arguable case” continued and persisted under the new Rules, it
would be unnecessary to determine which set of Rules applied.
The Court, in referring to Rules 1.4 and 1.7, and relying on case-law under the former Rules
(including Nova v Grove Estate, 1982 ABCA 279 and Vikpovice Horni a Hunti Tezirstro v Korner,
[1951] AC 869), determined that the standard of proof continues to be a “good arguable case”
under the new Rules. Wittmann, CJQB defined “good arguable case” as that which is not
fanciful or speculative but is grounded upon some evidence upon which an objective trier
would say: “well, on the basis of the facts presented, the case is arguable and certainly is not to
be dismissed out of hand”. His Lordship had the following to say with respect to the suggestion
by the Respondent that the “good arguable case” requirement no longer applied to the new
Rules (paragraphs 39 and 40):
For this court to do away with the good arguable case criterion and have no
standard whatsoever, which is what [the Respondent] asserts, would in my view
require that under the [new Rules] there should be express or implied a
provision that a "good arguable case" is not required to be made out to support
valid service outside of Canada pursuant to Rule 11.25(2). It is common ground
that there is no express exclusion of the requirement in the [new Rules]. Nor is
anything to be implied from the [new Rules] which would do away with this
requirement.
Logic and common sense dictate some standard of proof in addition to mere
allegations in a statement of claim in order to support service of an originating
document outside of the jurisdiction. … Thus, to resolve the issue in this case,
namely whether the ex-juris orders ought to be set aside, I continue the
requirement of a good arguable case, which requires some evidence. …
Chief Justice Wittmann also indicated that the requirement of a “good arguable case” is
subsumed within the wording of Rule 11.25, namely, that the commencement document is
"accompanied with a document that sets out the grounds for service of the document outside
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Canada, or ... the Court, on application supported by an affidavit satisfactory to the Court,
permits service outside Canada”.
The Court found that there was insufficient evidence presented by the Respondent to meet the
threshold for a “good and arguable case” as against the foreign Defendant. As a result, the
Orders for Service Ex Juris were set aside pursuant to Rule 11.31.
ARAAM INC V AMAN BUILDING CORPORATION, 2011 ABQB 631 (CANLII) (VERVILLE J)
The Plaintiff sought to compel Answers to Undertakings given by the Defendant during
Questioning. Verville J. considered Rules 5.1(1), 5.2(1) and 5.25(1)(a), as well as the existing
common law. Verville J. noted that in Mahamed v Matthews, 2011 ABQB 187, Veit J. reviewed
Rule 5.2 and stated that the Rule is “much narrower than its predecessor”. Verville J. reviewed
each undertaking to determine whether it was relevant and material to the issues in dispute
and considered whether the Undertaking could reasonably be expected to significantly help
determine the answer to an issue in dispute.
CONDOMINIUM CORPORATION NO. 0425177 V JESSAMINE, 2011 ABQB 644 (CANLII)
(MASTER SMART)
The Plaintiff sought Summary Judgment for outstanding condominium fees, plus interest and
Costs. Master Smart considered Rule 7.3 and accepted that the authorities adjudicated
pursuant to old Rule 159 apply to Applications for Summary Judgment pursuant to the new
Rules. Master Smart applied the two step procedure set out in 732311 Alberta Ltd v Paradise
Bay Spa & Tub Warehouse Inc, 2003 ABCA 362.
The Defendant relied on defects in the Plaintiff’s Affidavit. Master Smart agreed that the
Plaintiff’s Affidavit was defective and without more would not satisfy the fundamental
evidentiary requirements under Rule 7.3. Master Smart decided that the defects were not
determinative, and the fact that the Defendant chose to Question the Plaintiff’s officer under
Oath cured the defect as the “oath extends to the documentary undertakings delivered…the
“true” nature of the documents provided is implicit”.
UNRAU V FREAKE, 2011 ABQB 663 (CANLII) (ROSS J)
This Appeal related to a decision of the Provincial Court on a parenting-time claim. The grounds
of the Appeal related to errors of law, reviewable on a standard of correctness. Ross J. allowed
the Appeal and determined that, pursuant to Rule 12.70, the appropriate remedy was not to
return the matter to Provincial Court for a new hearing (pursuant to Rule 12.70(d)) since such
remedy could involve a significant delay. The Court instead exercised its jurisdiction under Rule
12.70(c), which permits the Court to make an Order that the Provincial Court could have made.
Ross J. indicated that the decision to invoke Rule 12.70(c) would be in the best interests of the
child and it would allow the allocation of a parenting time accordingly.
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PETERS V WILSON ESTATE, 2011 ABQB 665 (CANLII) (HALL J)
The Defendant sought Summary Dismissal of the Plaintiff’s Action and Summary Judgment on
its Counterclaim.
In its assessment the Court noted that, in the context of an Application for Summary Dismissal,
the Court “must accept as true, the facts averred by the party opposing the application, unless
those facts have been disturbed in cross examination of the witnesses giving evidence on behalf
of the respondent”. The Court held that where the evidence in the Applicant’s Affidavits
contradicted the evidence advanced by the Respondent in its Affidavits, the evidence of the
Applicant must be disregarded, as conflicts in evidence can only be resolved at Trial. However,
the Court went on to hold that where the evidence adduced, whether it is through Affidavits,
Cross Examination on Affidavits or in Questioning in the overall Action, is of assistance to the
Respondent, the Court may consider it in determining the Application. Stated another way, the
Court assumes that the facts deposed to or elicited by the Respondents are true, and then
determines whether, on that assumption, a Summary Dismissal of the Claim and/or Summary
Judgment on the Counterclaim should be granted. The only exception to that general rule is
where “the Applicant has cross examined the Respondent and has obtained an admission
contrary to the facts alleged by the Respondent in opposing the Application”.
Based on the evidence advanced, both on behalf of the Applicant and the Respondent, the
Court granted the Applications, dismissing the Plaintiff’s Claim and granting Summary Judgment
on the Defendant’s Counterclaim.
EXCELSIOR PROPERTIES LTD V COSENTINO DEVELOPMENTS INC, 2011 ABQB 666 (CANLII)
(ROSS J)
A group of Defendants sought Summary Judgment dismissing the Plaintiff’s Claim and a Third
Party Claim of another Defendant. Ross J. reviewed the test for Summary Judgment set out in
Rule 7.3 as well as the analysis provided by Kent J. in Encana Corp v ARC Resources Ltd, 2011
ABQB 431. Ross J. noted that “despite the new Rules’ focus on avoiding costly litigation, the test
for summary judgment remains the same and continues to carry a ‘stringent and high
threshold’ for the moving party”. Ross J. decided that Summary Judgment would not be
appropriate based on the existing record and that the positions of the Respondents were
arguable.
KENT V MARTIN, 2011 ABQB 675 (CANLII) (MILLER J)
This Application dealt with determining the appropriate Costs award. The Plaintiff had been
successful in an Application to amend its Statement of Claim as well as for relief from his
obligation under the Implied Undertaking Rule.
Miller J. stated that Rule 3.66 deviates from the standard Rule that if you win an Application
you are entitled to Costs and referred to Koppe v Garneau Crafts Ltd, 2005 ABQB 727 wherein
the Court stated, with respect to the predecessor to Rule 3.66, that:
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Rule 141 does not say that the applicant must pay the costs of the fight over
whether it has the right to amend, even if it wins that fight. That would be a
most undesirable result, because it would mean that the respondents on
motions like that could defend them with impunity, knowing that win or lose
they would receive costs.
In this case, the amendment was opposed on the basis that the Implied Undertaking Rule
applied and the Plaintiff was not able to use that information in these proceedings. Miller J.
determined that Rule 3.66 applied to the amendment Application only and Rule 10.29 applied
to the portion of the Application regarding the Implied Undertaking Rule. Miller J. stated that
Rules 10.30, 10.31 and 10.33 are drafted in such a way as to provide a great deal of latitude to
the Court. As such, Miller J. awarded Costs to the Plaintiff under the appropriate Schedule C
Column for the Application for relief from the Implied Undertaking Rule. The amendment
Application arose as a result of a surprise disclosure during Questioning. As such, the Plaintiff
could have had no knowledge of this information prior to the Questioning. Miller J. awarded
party-party costs to the Plaintiff for the amendment Application.
WONG V LEUNG, 2011 ABQB 687 (CANLII) (MASTER SMART)
The Defendant applied to strike the Plaintiff’s Statement of Claim on the grounds that it
disclosed no reasonable claim and was frivolous, irrelevant, improper, or otherwise constituted
an abuse of process. In the alternative, the Defendant sought Summary Judgment dismissing
the Action.
The Court found that because the Application was made prior to the commencement of the
new Rules, but was heard after November 1, 2010, the new Rules applied (pursuant to Rule
15.12). With regard to Rule 3.68, Master Smart referred to Tottrup v Alberta (Minister of
Environment), 2000 ABCA 121, as authority that: (1) the Court must assume that the allegations
of fact made by the Plaintiff are true, at which point the Court then determines whether those
facts disclose a cause of action, (2) the Plaintiff is entitled to a broad reading of the pleadings,
and (3) if the alleged facts, examined in light of the existing law, do not disclose a cause of
action, the claim should be struck. Master Smart also noted that pleading deficiencies will not
necessarily result in an Action being struck, when, for example, flaws in a pleading are capable
of amendment. The Court referred to Donaldson v Farrell, 2011 ABQB 11 for the proposition
that a pleading that is frivolous is one that is indicative of bad faith or is hopeless factually.
Turning to Rule 7.3, Master Smart, citing Manufacturers Life Insurance Co v Executive Centre at
Manulife Place Inc, 2011 ABQB 189 and BA Capital Inc v Stream Oil & Gas Ltd, 2011 ABQB 91,
stated that the test for Summary Judgment is the same as it was under the “old” Rules. The
Court granted Summary Judgement in addition to striking the Statement of Claim as being
frivolous and not disclosing a reasonable cause of action.
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WONG V LEUNG, 2011 ABQB 688 (MASTER SMART)
The Applicants sought to strike the Plaintiff’s Statement of Claim on the grounds that it
disclosed no reasonable cause of action and was scandalous, frivolous, or vexatious, or
otherwise constituted an abuse of process.
A preliminary issue arose regarding whether new Rule 3.68 or former Rule 129 ought to apply,
given that the Application was filed prior to the new Rules coming into force, but was heard
after they had come into force. After reviewing Rule 15.12, Master Smart determined that it
was clear that new Rule 3.68 applied. Further, Master Smart found that the circumstances did
not warrant exercising the discretionary power under Rule 15.6, since there was no injustice
here.
With respect to the test for striking out pleadings, the Court reviewed Rule 3.68, and cited
Tottrup v Alberta (Minister of Environment), 2000 ABCA 121 for the propositions that:
1.) the Court must assume that the allegations of fact made by the plaintiff are
true. The Court then determines whether those facts disclose a cause of action in
law; and
2.) if the alleged facts, examined in light of the existing law, do not disclose a
cause of action the claim should be struck.
After reviewing the pleadings in question, Master Smart determined that they did not disclose a
reasonable cause of action. Although this would have been sufficient to grant the Application,
the Court also looked at whether the proceedings were vexatious; and after reviewing the
relevant case law and the impugned Statement of Claim, determined that they were.
In the result, Master Smart allowed the Application and the claim against the Applicants was
struck.
PETERS V WILSON ESTATE, 2011 ABQB 689 (CANLII) (HALL, J)
The Defendant previously applied for Summary Dismissal of the Plaintiff’s claim and also for
Summary Judgment of the Defendant’s Counterclaim. Hall J. granted both Applications in the
Defendant’s favour and the Plaintiff subsequently applied to re-open the case before the Order
was entered, and to change or modify the Order in favour of the Plaintiff. In deciding the
Application, Hall J. stated that Rule 9.13(a) gives the Court discretion to vary a Judgment or
Order, but that the circumstances contemplated by the Rule are those where the Judge, on his
or her own, has rethought the matter or wishes to clarify it. Rule 9.13(b) on the other hand
contemplates an Application being made by a party to the proceeding to change or modify the
Judgment or Order or Reasons for it.
With regard to Rule 9.13(b), Hall J. agreed with the decision in Evans v Sport Corp, [2011] AJ No
687 (Grasser J.), and stated that the Rule can be applied without the allowance or introduction
of new evidence. The Plaintiff in this instance did not provide any new evidence. Hall J. noted
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that there was no good reason to modify or change the Decision, and that there was nothing
new that was misunderstood by him or not brought to his attention. The Application was
denied, however, Hall J. varied the original Order in regard to the time the Plaintiff had to
vacate the premises as well as the Costs between Parties, because his original Order was made
without hearing from counsel on those two issues.
KYDD V ABOLARIN, 2011 ABQB 690 (CANLII) (MACKLIN J)
This was an Appeal from a Master’s Decision to grant an Application by the Plaintiff to Amend
the Statement of Claim. In determining the proper standard of review, Macklin J. stated that
Rule 6.14 provides that an Appeal from a Master’s Decision is on the record. Macklin J. further
stated that the standard for review of a question of law is correctness, whereas the standard
for facts or factual inferences is reasonableness. In instances of a mixed question of fact and
law where the principle of law can be extricated from the question, the standard of review on
the principle of law is correctness. Macklin J. relied on the case of Janvier v 834474 Alberta Ltd,
2010 ABQB 800. The Appeal was dismissed.
ABQB 699 (CANLII) (LEE J)
The Respondent sought to file an Affidavit with Exhibits containing additional new documents
before for the Court, in the context of a Judicial Review. The Respondent relied on two Federal
Court decisions decided under Rule 312 of the Federal Court Rules SOR/98-106. It was noted
that the new Rules do not have a similar provision. The cases relied on by the Respondent were
distinguished and Rule 3.22 was applied. Lee J. noted that “Alberta jurisprudence has clearly set
out a more restrictive approach” than the Federal Court.
Lee J. referred to the general rule cited in para 40 of Alberta Liquor Store Assn v Alberta
(Gaming and Liquor Commission), 2006 ABQB 904 (“Alberta Liquor Store Assn”): judicial review
is conducted based on the return filed by the tribunal. Both Alberta Liquor Store Assn and Dodd
v Alberta (Registrar of Motor Vehicle Services), 2010 ABQB 184, were identified as authorities
that outline the limited exceptions to the general rule, where supplementary evidence may be
allowed. The exceptions were: a) to show bias, or a reasonable apprehension of bias, if the facts
in support of the allegation do not appear on the record; b) to demonstrate a breach of the
rules of natural justice not apparent from the record; c) to address issues like standing; and d)
where the tribunal makes no, or an inadequate, record of its proceedings, affidavits are
permissible to show what evidence was actually placed before the tribunal.
ROYAL BANK OF CANADA V LEVY, 2011 ABQB 700 (ROMAINE J)
A Defendant in a mortgage fraud Action applied for Summary Judgment against the Plaintiff on
the basis of the defence of ex turpi causa non oritur action (the Court may deny recovery on the
basis of participation in an immoral or illegal scheme). The Defendant argued that the ex turpi
defence applied because an employee of the Plaintiff was the primary organizing participant in
the alleged fraud. The Plaintiff argued that the ex turpi defence was not available on the facts,
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because the acts of a rogue employee acting outside the scope of his employment and without
the Plaintiff’s knowledge could not be attributed to the Plaintiff.
Romaine J. held that a Court may give Summary Judgment where it is satisfied that there is no
genuine issue for Trial. However, where there are triable issues of fact or law, the matter is not
suitable for Summary Judgment.
Romaine J. held that the ex turpi defence only applies where it is appropriate to deny recovery
to a Plaintiff. To do otherwise would undermine the integrity of the justice system, either by
permitting a Plaintiff to profit from an illegal act or to evade criminal penalty. However, in the
present circumstances, the Plaintiff did not profit from the actions of the rogue employee who
allegedly participated in the fraud. Romaine J. further held that the ex turpi defence may apply
where one wrongdoer claims against another for financial loss arising from a joint illegal
venture. However, that was not the case on the facts before the Court, and the Defendant
failed to adduce evidence to demonstrate that the employee’s actions were authorized by the
Plaintiff.
Romaine J. further held that in an Application for Summary Judgment, the Defendant had the
burden of proving that the ex turpi defence applied. However, the Defendant failed to
discharge this burden. There was no evidence that the Plaintiff was compliant in the
employee’s alleged fraudulent activities. As such, there was insufficient evidence to warrant
Summary Judgment on the basis of the ex turpi defence.
FORSBERG V NAIDOO, 2011 ABQB 705 (CANLII) (THOMAS J)
The Parties were unable to agree on Costs following Trial. Thomas J. referred to Rule 10.33
which identifies a range of considerations that are relevant when considering the applicable
Costs. The Plaintiffs initially named several other Defendants, however, the Claims against all
but two of the Defendants were removed from the Action prior to Trial. The Plaintiffs then
Discontinued the Action against one of the two remaining Defendants with consent. Following
Trial, the remaining Defendant argued that he should not be responsible for those costs flowing
from Questioning the other Defendants, court reporter fees related to the other Defendants,
Costs to review the other Defendants’ documents and the disbursements related to service on
the other Defendants.
Thomas J. determined that the Plaintiff acted reasonably and was justified in including the
other Defendants in the Action. As such, the costs associated with Questioning the other
Defendants were reasonable and necessary under the circumstances. Thomas J. did reduce the
Cost associated with reviewing the other Defendants’ documents as the evidence was that the
remaining Defendant did not produce much documentation.
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CHUNARA V JINA, 2011 ABQB 709 (CANLII) (LEE J)
The Plaintiff applied for Summary Judgment. Lee J. stated that when applying for Summary
Judgment as a Plaintiff, the Plaintiff bears the ultimate onus of meeting the requirements of
Rule 7.3. The Court determined that the Plaintiff bears the evidentiary burden of proving its
Cause of Action on a balance of probabilities such that every fact necessary to support the claim
must be proven. His Lordship then determined that the Defendant can avoid Summary
Judgment in favour of the Plaintiff by proving that there is a genuine issue for trial. The Court
noted that it must be beyond doubt that no genuine issue for trial exists. Lee J. granted the
Application: the Plaintiff had established his Cause of Action, and the Respondent had failed to
prove that there was any genuine issue for trial.
AGF TRUST COMPANY V MCLEOD, 2011 ABQB 711 (CANLII) (MASTER HANEBURY)
The Applicant, a second mortgagee, sought to vary an Order Nisi/Order for Sale in a Foreclosure
proceeding with respect to the amount of mortgage indebtedness owed to the Respondent, the
first mortgagee. The Respondent argued, amongst other things, that Rule 9.14 was inapplicable,
and that the Order was a Judgment and the Court could not entertain a motion to adjust the
amount outstanding. In considering Rule 9.14, Master Hanebury noted a narrow exception, that
further directions are allowed by a Court, provided they do not vary the Judgment, but merely
supplement it, or work it out, or allow the Court to clarify the effect of its earlier Judgment.
Master Hanebury determined that Rule 9.14 supports the Court’s ability to determine the
amount required to pay out the first mortgage pursuant to the Order. The reason for this is that
the Court would not be varying its Judgment, but would merely be deciding its effect.
WONG V LEUNG, 2011 ABQB 722 (CANLII) (MASTER SMART)
The Defendant applied to dismiss the Plaintiff’s Action for want of prosecution. The Plaintiff
cross-applied for, amongst other things, consolidation of the Action with another Action that
had been commenced in 2009.
Master Smart referred to Munro v Munro, 2011 ABCA 279 as authority that the Court must
weigh several factors when considering consolidation under Rule 3.72. These factors include:
the possibility of saving time, saving resources, and the potential prejudice to the parties. The
Court rejected the Rule 3.72 request, noting that the two Actions had no common questions of
law or fact, and they did not arise from the same transaction.
The Court then considered, under Rule 4.33, whether a “thing” had been done that significantly
advanced the Action. Master Smart referred to Hooda v HSBC Canadian Direct Insurance
Incorporated, 2011 ABQB 196 for the proposition that there is no material difference between
“significantly” and “materially” (“materially” being the word used in the equivalent test under
the old Rules). The Court, referring to cases decided prior to the new Rules, noted:
1.
Rule 4.33 is written in absolute terms and is mandatory;
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2.
A procedural step that is required by the Rules will always be a “thing”
that significantly advances the Action, regardless of whether it actually
did so; however, the step must be completed, not just commenced;
3.
A procedural step contemplated (but not required) by the Rules may also
be enough, in and of itself, to materially advance an Action; nevertheless,
to be a “thing” under Rule 4.33, the step must move a lawsuit closer to
Trial in a meaningful way. Further, advancing the Action is not sufficient;
the Action must be “significantly” advanced; and
4.
An ordinary Appeal from a Queen’s Bench Judgment/Decision is not a
mandatory step; rather, it is the unsuccessful party’s choice to Appeal a
Decision.
The Defendant’s Application was allowed, since there had been no “thing” done by the Plaintiff
to significantly advance the Action in 5 years.
The Plaintiffs sought leave to Appeal an Order of Costs made in relation to an adjournment
Application, as required under the old Rule 505(3) which states:
No … order made … as to costs only shall be subject to any appeal, except by
leave of the court … making the order.
While the Plaintiffs were successful in their adjournment Application, the Court stated that it
was troubled by the approach the Plaintiffs and their legal counsel had taken with respect to
the litigation, and invited the Parties to address the issue of Costs. The Court reviewed the
Parties’ filed submissions on Costs and ruled that the Plaintiffs, despite being successful in the
Application, were to immediately pay to the Respondents the Costs of the adjournment
Application on the basis of Schedule C, Column 3.
In determining whether or not to grant the Plaintiffs leave to Appeal the Costs Decision, the
Court found that the standard of review that the Alberta Court of Appeal would apply when
considering an Appeal from a Costs Decision was a clear, palpable and overriding error.
Yamauchi J. went on to state that the Applicants failed to demonstrate that the Court made a
clear, palpable and overriding error as Rules 10.31 and 10.33 give the “Court the ability to
depart from the general rule that a successful party to an application will be awarded costs”.
Further, “an applicant for an adjournment may be required to pay the costs of an application,
even if successful, if the adjournment results from some fault of the applicant”. The Court
found that the Applicants did not meet the timelines imposed by the Court and as a result the
Respondents incurred significant costs. Therefore, the Court’s Decision to award Costs against
the successful Applicant was not in error and the Application for leave to Appeal was denied.
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CARTER V SEARS CANADA INC, 2011 ABQB 732 (CANLII) (HALL J)
The Defendant applied to dismiss the Action for long delay. The Plaintiff attempted to rely on a
prior Stay of the Action to stop the clock from running. However, the Court held that where an
Action has been Stayed until the Plaintiff takes an identifiable step (in this case it was providing
an address for service) the Plaintiff cannot hide behind that Stay to stop the clock from running.
VECKENSTEDT V YOUSSEF, 2011 ABQB 735 (MASTER PROWSE)
The Defendant requested that the Plaintiff attend a defence medical examination (“DME”)
pursuant to Rule 5.41. The physician conducting the DME required the Plaintiff to sign a
consent form. The Plaintiff argued that the Rules of Court did not require him to sign a consent
form and therefore declined to do so. He further argued that any Order compelling him to
attend for a DME should state that he was not required to sign or execute any authorization,
consent or release.
Master Prowse questioned whether the parties were failing to fulfil their responsibilities under
Rule 1.2(3), to identify the real issues in dispute and facilitate the quickest means of resolving
the Plaintiff’s claim at the least expense. If a reasonable request from a member of the medical
profession can be accommodated in a way that is not contrary to the Rules of Court, that
accommodation should be provided. Indeed, medical examiners should be left to conduct
examinations as they see fit unless there is a compelling reason for the Court to interfere. The
Court cannot compel a doctor to conduct an examination under circumstances that the doctor
objects to. If the Court constrains how particular plaintiffs are examined, the number of doctors
willing to perform medical examinations will decline, raising both the price and length of time
to complete the Discovery process in personal injury Actions.
Master Prowse held that this was not a circumstance in which an independent physician was
seeking to conduct a DME in a manner contrary to the express provisions of the Rules of Court.
When a DME is sought, counsel may agree, pursuant to Rule 5.41, that the Plaintiff will attend.
Master Prowse held that it was appropriate for the Plaintiff, when attending for a DME, to sign
a consent form. Alternatively, the DME may take place under a Court Order issued pursuant to
Rule 5.41(2). Such a Court Order should expressly state that the physician is entitled to touch
the Plaintiff for the purpose of conducting the examination. However, the examination will
ordinarily take place weeks or months after the Court Order has been issued, and as such, it is
reasonable for the physician conducting the DME to obtain consent on the day of the
examination.
KINDYLIDES V EDMONTON (CITY), 2011 ABQB 756 (CANLII) (MASTER SMART)
One of the Defendants applied to have the Action struck as against all of the Defendants in the
Action. The claim was for pain and suffering caused by physical and mental torture. In applying
Rule 3.68(1), Master Smart stated that “I am to assume that the facts pled in the Statement of
Claim are true”. Further, Master Smart stated that the claim should not be struck simply
because the liability to the Plaintiff would be novel or dubious. Instead, it should only be struck
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if it is plain and obvious that the claim discloses no cause of action. However, Master Smart also
clarified that:
…[while] material facts must be taken as true, the court is not obliged to assume
the correctness of patently ridiculous allegations, those based on wild
speculation and assumptions or are “only language, not reality”.
The Application was granted and the Action was dismissed as against all Defendants.
TORONTO DOMINION BANK V SAWCHUK, 2011 ABQB 757 (CANLII) (MASTER SCHLOSSER)
This case dealt with the question of whether or not it is “appropriate to order a first mortgagee
to provide a mortgage payout statement - or at least the payout figure - to a foreclosing second
mortgagee”. The first mortgagee was reluctant to provide the information because of concerns
that doing so may violate privacy legislation.
Master Schlosser noted that “Rule 9.33(2)(e) requires the court to consider (amongst other
things) the amount owed for prior charges” and that the “Foundational Rules require
facilitating the quickest means of resolving claims at the least expense”.
Master Schlosser noted that in Alberta prior encumbrancers are not made parties to
Foreclosure Actions and including prior encumbrancers simply to impose disclosure obligations
on them would increase costs and decrease efficiency.
It was indicated that compelling records of a non-party in a lawsuit usually requires notice
under Rule 5.13. In deciding that no notice was required, the Court took into consideration that
the first mortgagee was not a “true outsider” to the proceedings, the first mortgagee had no
objection to producing the records other than wanting the Court’s protection with respect to
privacy legislation and that all the usual requirements under new Rule 5.13 and old Rule 209
were satisfied.
It was decided that the required information was to be produced. In coming to this conclusion,
the Court specifically considered Rule 6.4 (which allows for ‘ex parte’ applications if a Court
decides no notice is necessary), Foundational Rules 1.2(2)(b) and (e) and that if the first
Mortgagee takes issue with the Order it can return to Court under Rule 9.15 to challenge the
result.
This case dealt with a preliminary Application to determine whether a Summary Judgment
Application was a nullity because it was in essence a Severance Application, where leave was
not sought or granted to sever the issues to be heard at the proposed Summary Judgment
Application.
In allowing the Application to proceed, Graesser J. noted that certain wording in Rule
7.1(1)(a)(i) (having to do with severance) is substantially the same as in Rule 7.3(1) (having to
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do with Summary Judgment) and that these Rules are to be read together. Both Rules permit
the Court to deal with the entirety of a claim or merely part of it, thus broadening the instances
where severance is available (relative to the old Rules). Graesser J. conveyed that this is done to
offer litigants the choice to use the appropriate Rule that will best promote the objectives of
the Foundational Rules. Severance “hives off” an issue from the Action, but the determination
of the issue is still subject to disclosure procedures and mandatory Alternate Dispute
Resolution. Summary Judgment Applications do not require either the disclosure process or
mandatory Alternate Dispute Resolution.
It was also argued that the Summary Judgment Application should not proceed because the
Respondent had not amended its pleadings in accordance with established case law which
addressed Striking portions of a Plaintiff’s Statement of Claim. However, Graesser J.
distinguished this case from Elbow River Marketing v Canada Clean Fuels Inc, 2011 ABCA 258
(“Elbow”) stating that Elbow was “not a determination that in no case can summary judgment
proceed in the face of a motion to amend the pleadings, or if the pleadings are not settled.”
Rather, “[e]ach case should be dealt with on its merits.”
The Court acknowledged that, unlike the old Rules, pursuant to Rule 7.2 a Summary Judgment
Application can be brought any time after the Action is commenced, one does not have to wait
until a Statement of Defence is filed. With respect to Rule 7.3(1)(c), Graesser J. indicated that it
is contemplated that in some cases quantification of the claim will remain after liability is
decided.
TU V ZISCHE, 2011 ABQB 775 (LEE J)
The Court had previously exercised its discretion pursuant to Rule 8.5 to make a procedural
Order and to allow for the Action to be set down for Trial, despite the Parties’ inability to certify
that no further Pre-Trial steps were required. Following that Decision, the Plaintiff requested
additional time to allow for an expert’s report to be completed. The Defendant objected to any
further delay, and argued that the Plaintiff’s proposed expert’s report may not even be
admissible. Justice Lee agreed that the matter had already endured a lengthy delay and
confirmed his previous Order that the matter be set down for Trial. However, Justice Lee
further directed that the Defendant had 60 days from receipt of the expert’s report to formally
object to its admissibility.
FOSTER V ROBB, 2011 ABQB 776 (CanLII) (TILLEMAN J)
The Plaintiff filed his Statement of Claim in September 2009. Two of the Defendants were not
served with the Statement of Claim and applied to dismiss the Claim against them. Tilleman J.
held that “Rules 3.26-3.28 are similar to old Rule 11 and impose a strict mandatory limit on
service of a Statement of Claim”. As none of the rare jurisprudential exceptions applied to the
facts of this case, the Court held that the Statement of Claim was dead as against the two
Defendants in question.
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CLANCY V GOUGH, 2011 ABQB 778 (CANLII) (BENSLER J)
After Trial, Bensler J., declined to award Double Costs in relation to a Settlement Offer, declined
to award second counsel fees and adjusted disbursements to accord with what was reasonable
and proper in the circumstances.
Both Rule 4.29, and its substantive equivalent under the former Rules, Rule 174, contain strong
language entitling a party who betters a Formal Offer at Trial to Double Costs. However, Bensler
J. noted that “the operation of the rule on double costs is only triggered following a threshold
inquiry where a Court determines the settlement offer was, in fact, genuine…”. After reviewing
relevant jurisprudence, Bensler J. found that the Defendants’ Offer was not genuine as it lacked
an element of compromise reflecting the relative strength of the Parties’ positions at the time
the offer was served. The terms of the Defendants’ Offer failed to acknowledge the potentially
meritorious Claim and triable issues raised by the Plaintiff. The Offer was at most a little over
1% of the Plaintiff’s Claim. Bensler J. held that is was not 99% likely that the Defendants were
bound to win at any point prior to Trial. The Defendants had also offered to forego their
Counterclaim. However, the Counterclaim lacked substance. Accordingly, Bensler J. concluded
that the Defendants’ Settlement Offer did not contain a genuine element of compromise.
The Court also specifically declined to compare the value of the Settlement Offer to the final
Judgment. Bensler J. found that the final Judgment at Trial in this case was an all or nothing
proposition. Consequently, the Court held that a relative assessment in this regard would be
inappropriate since “the judgment in an all or nothing trial is an erroneous standard from a
comparative perspective”. Bensler J. also found that, even if genuine, the Defendants’ Offer
could not reasonably be expected to induce settlement and allowing Double Costs in the
circumstances would “aggravate the already formidable economic barriers that impede access
to justice”. Bensler J. held that the negative impact on access to justice qualified as a special
circumstance favouring the exercise of the Court’s discretion to order that the Double Costs
rule not apply.
Generally “courts should be reluctant to award costs for second counsel in the absence of an
established need based on the complexity of the issues or law...”. Relevant factors to be
considered are:
(i)
The general importance of the issue or issues to the parties or to others;
(ii)
The value of the case;
(iii)
The complexity and scope of the issues;
(iv)
The size of the trial record;
(v)
The manner in which opposing counsel conducts the case; and
(vi)
Whether second counsel addressed the court.
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Bensler J. held that the issues in this case were narrow, straightforward, and determined largely
based on several key findings of fact. Second counsel fees were not warranted.
Although the Plaintiffs did not dispute the disbursements in the Bill of Costs, Bensler J. chose to
exercise the Court’s discretion to adjust certain disbursements to ensure a reasonable and
proper Costs award. The Court disallowed disbursements for computer research, fax charges,
laser printing, and photocopy charges. Bensler J. held that computer research and fax charges
fall within the tariffs described in Schedule C as implied activities and necessary services. Her
Ladyship held that a disbursement at 30 cents per page for laser printing and photocopying was
excessive in light of the costs for such work at commercial printers, and that such
disbursements should only apply to final documents. Bensler J. awarded a disbursement for
laser printing and photocopying of final documents only, at 10 cents per page.
ATTILA DOGAN CONSTRUCTION V AMEC AMERICAS LIMITED, 2011 ABQB 794 (CANLII)
(WITTMANN CJ)
The Defendant, AMEC Americas Limited (“AMEC”), applied for direction and assistance in
regards to approximately 25,000 records it claimed were privileged. As well, AMEC applied to
require the Plaintiff, Attila Dogan Construction and Installation Co. Inc. (“AD”) to pay for the
translation of approximately 20,000 to 25,000 records produced by AD in the Turkish language.
AD cross-applied for an Order compelling AMEC to provide a detailed description of the records
over which AMEC claimed privilege, and further production of other records.
AD argued that Rule 5.8 sets out only the minimum requirements for listing privileged records,
and that it would be inconsistent with the Foundational Rules to prohibit a more detailed
description. AD argued further that Rules 1.4 and 4.14 allow the Court to fashion a method of
detailing the alleged privileged documents that would allow the Parties to narrow which
documents should be challenged. The Court disagreed and held that Dorchak v Krupka (1997),
196 AR 81 (ABCA) applies to the new Rules. The Court held “[t]here is nothing in Rule 5.8 that
would suggest that privileged documents should be identified in a manner that would allow the
opposing party to assess the claim of privilege.”
The Court held that it was reasonable for AMEC to translate the foreign language documents as
AD had already deemed the documents to be relevant and material. Wittmann C.J. reasoned
that as Calgary counsel for AD could not read in Turkish, counsel must have already translated
the documents to be in compliance with Rule 5.6(1)(b). In furtherance of the purpose of Rule
1.2, AD could forward the translated records to AMEC.
The Court also ordered that a previous Security for Costs Order against AD would be increased
to reflect the amount of AMEC’s disbursement for potential translation of the documents. If AD
forwarded the translated documents, and if no issues arose regarding the accuracy of the
translation, then AD could avoid increased Security for Costs and there would be no duplication
of translation efforts and costs.
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LDW V KDM, 2011 ABQB 800 (CANLII) (JEFFREY J)
The Parties were involved in high conflict family litigation that spanned over six and a half years,
culminating in a four week Trial. The Applicant, KDM, who was largely successful at Trial, sought
Costs for, inter alia, a number of failed Judicial Dispute Resolutions, a Case Management
intervention and Double Costs on the basis of a Pre-Trial Settlement Offer.
Jeffrey J. rejected KDM’s claim for Costs for the failed Judicial Dispute Resolutions and Case
Management intervention. Rule 10.31(2)(c) provides that unless a Party engages in serious
misconduct in such a proceeding, no Costs shall be recovered. Jeffrey J. held that unreasonably
declining to settle a matter during Settlement Conferences and Judicial Dispute Resolutions did
not equate to serious misconduct under the Rules.
Jeffrey J. also rejected KDM’s application for Double Costs, holding that the Pre-Trial Settlement
Offer did not satisfy the requirements of Rule 4.24(2). The Settlement Offer was not in Form 22
and it did not state that it was to be treated as a “formal offer” proffered for the purposes of
arguing for greater Costs after Trial. Moreover, the Settlement Offer did not notify LDW of the
Costs consequences specified in Rule 4.29. Not only was such notice mandatory, it was crucial
because LDW was representing herself and could not be expected to understand the
significance of a Formal Settlement Offer prior to Trial for Costs purposes.
METCALFE V YAMAHA MOTOR CANADA LTD, 2011 ABQB 807 (CANLII) (CLARK J)
In 2010, the Plaintiffs successfully applied for an Order permitting Service Ex Juris of their
Statement of Claim on non-resident Defendants. English and Japanese copies of the Statement
of Claim and the Order for Service Ex Juris were served on the Japanese Defendants by
registered mail with the assistance of a Tokyo law firm. The Applicants argued that the
Japanese Defendants were not properly served. They claimed that service was not strictly in
accordance with the Hague Convention referenced in the Order for Service Ex Juris and that the
Court should not exercise its discretion to validate service.
There was no dispute that the documents were brought to the attention of the Japanese
Defendants. Clark J. found that Rule 11.27 gives the Court the discretion to validate service
outside of Alberta even if service “was not done in a manner that is specified by the Rules”. The
Court may validate service if it is satisfied that the method of service used was likely to bring
the document to the attention of the person being served.
PAGNUCCO V SEARS CANADA INC, 2011 ABQB 810 (CANLII) (MASTER SCHLOSSER)
The Defendant applied for leave to file a late Third Party Notice. The Plaintiff opposed the
Application.
To support its Application, the Defendant relied on Rule 13.5, which allows the Court to extend
time. Master Schlosser indicated that three factors: (1) length of delay, (2) explanation for the
delay, and (3) relative prejudice to the parties, are to be considered under Rule 13.5. The Court
noted that the test is flexible, and that the absence of an explanation for the delay may not, in
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and of itself, be fatal to the Application. The Court also pointed out that the most important
factors are serious prejudice or inexcusable delay, and that if the delay is significant, evidence is
required to explain it. Master Schlosser remarked that a late Third Party claim must have an “air
of reality”, so that the Court does not act without purpose.
Master Schlosser indicated that the first hurdle for the Defendant was whether a statutory
limitation had expired, since if it were plain and obvious that such limitation had expired, there
would be no point in allowing the Third Party Notice to be filed, as it would just be struck out.
On the other hand, if there was reasonable doubt that the limitation had expired, and all of the
other elements were satisfied, the Third Party Claim could proceed while preserving the Third
Party’s rights to raise a limitations defence. Master Schlosser noted that Rule 3.45 allows a
Third Party Claim to be made for contribution even when the primary limitation has run against
the Plaintiff; a limitation is but one of the factors to be considered in determining the relative
prejudice to the parties. In addition, the Court stated, referring to existing case law, that the
ability to start a new claim is apparently a reason for not allowing a Third Party Action;
conversely, the loss of a right to start a new Action can weigh in favour of a late Third Party
Notice.
The Court determined that it was plain and obvious that limitations had passed. The Master
suggested that, even if he were wrong about this, the relative prejudice to the Plaintiff and the
Third Party would be significant, since the original Action between the Plaintiff and Defendant
had been settled, and many steps in that lawsuit would be unwound, contrary to the
Foundational Rules, should the Third Party Claim proceed.
ADAMS V ADAMS, 2011 ABQB 812 (CANLII) (ERB J)
This case dealt with the Costs consequences of a family Trial. The Defendant contended that,
pursuant to Rule 10.29, a party must “succeed entirely” in order to be entitled to Costs.
Referring to case law that predates the new Rules, the Court determined that “a party that is
largely or substantially successful can successfully claim costs”. Costs in matrimonial Actions
should not be treated any differently than in other litigation. This is true with respect to
matrimonial Actions involving division of property, support and custody.
With respect to Rule 10.31, on Court-Ordered Costs awards, the Court stated that the
“unsuccessful party may have to pay the reasonable costs of experts’ reports”. Citing the
Alberta Court of Appeal in Seidel v Kerr, 2004 ABCA 157, the Court elaborated that “the primary
factor in allowing expert witness costs is whether, at the time it was incurred, the expenditure
was reasonable”.
Rule 10.33(2)(g) was also considered. This Rule allows the Court to consider misconduct when
making a Costs award. Her Ladyship noted that “courts have often visited heavy costs on
parties making serious allegations of improprieties which are not proven”. With reference to
when it may be appropriate to make a Costs award directly against counsel, it was noted that
the “conduct of the barrister must demonstrate or approach bad faith, or deliberate
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misconduct, or patently unjustified actions, although a formal finding of contempt is not
needed”.
With respect to Rules 4.24 to 4.29, Erb J. stated that “[t]he law is clear that proposals set forth
in an offer must be unequivocal”. In addition, the Court noted, citing Laframboise v Billett
(1991), 81 Alta LR (2d) 285 (QB), that the consequences of the Rules as to Costs are punitive
and require “a very high degree of certainty and exactness”. It was decided that the Formal
Offer submitted by the Plaintiff was a “genuine compromise”, offered with the intention of
bringing litigation to a close and that the minor typographical errors were of no import. The
Plaintiff was awarded double Costs from the date of the Formal Offer. Citing Purich v Purich,
1999 ABQB 212, the Court noted that, in “the absence of exceptional circumstances, a court
should not hesitate to award appropriate costs even if the result of the costs award would be to
deprive a litigant of the financial benefit of the substantive litigation”.
BROUSSEAU V FOLEY, 2011 ABQB 813 (CANLII) (VEIT J)
The Applicant, Brousseau, applied for a Restraining Order that would prevent one of the
Respondents, Dakota Foley, from continuing his employment with his employer who was also
Brousseau’s employer. In addition, Brousseau applied to restrain Devon Foley, the other
Respondent and the father of Dakota Foley, from driving Dakota Foley to Dakota Foley’s place
of employment. The Application was made without notice to either Dakota Foley or Devon
Foley.
The Application was denied. Veit J. held that only in exceptional circumstances would notice be
waived for a Party who would be affected by the Order. Veit J. went on to hold that Brousseau
would not suffer undue prejudice by giving notice, and the Order would have long lasting
effects on Dakota Foley.
KINGSWAY GENERAL INSURANCE COMPANY V FEKETE CONSTRUCTION CO. LTD, 2011 ABQB
815 (CANLII) (BROWNE J)
This Action involved two lawsuits regarding foundational repairs to a residence. The Plaintiff, an
insurance company for the owners of the residence, brought Actions against the construction
and engineering companies involved in the construction of the residence. The Plaintiff hired
experts to establish its claims of negligence and breach of contract against the Defendants. The
Defendants responded by filing Third and Fourth Party Notices against the experts, who then
Applied for Summary Judgment to have the Third and Fourth Party Notices struck.
In deciding this matter, Browne J. was unable to find any relationship between the Defendants
and the Third and Fourth Party Defendants that could form the basis for a Cause of Action.
Browne J. relied on the Supreme Court of Canada’s decision in Cooper v Hobart, 2001 SCC 79,
and applied the reformulated two-stage analysis in Anns v Merton London Borough Council,
[1978] AC 728 (HL) that applies in establishing a duty of care. Browne J. stated “in my view and
based on the reformulated Anns test, the required elements of foreseeability and proximity are
not established at the first stage and consequently, a prima facie duty of care does not arise”.
Further, Browne J. stated that allowing the experts “to be added as parties would change the
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nature of litigation involving expert witnesses, potentially, creating a duty or legal relationship
between opposing experts and allowing them to be added as parties”. The Application was
allowed and the Third and Fourth Party Notices were struck.
325303 ALBERTA LTD V PRIME PROPERTY MANAGEMENT, 2011 ABQB 817 (CANLII)
(MICHALYSHYN J)
The Applicant successfully applied to transfer the Action from Edmonton to the Judicial Centre
of Grande Prairie. Michalyshyn J. held that “the balance of changes from the previous rules to
the whole of Rule 3.3 … are of no consequence”. Accordingly, jurisprudence decided under the
old rules is relevant to the determination of an Application under Rule 3.3.
The Court determined that Grande Prairie was the appropriate Judicial Centre. Although the
Plaintiffs had offices in St. Albert, the evidence established that both parties had offices in
Grande Prairie and High Prairie, which was where the disputed contracts were signed and
where they were to be performed. Michalyshyn J. held that the issues raised by the Action and
the relationship between the parties in respect of those issues favoured the Judicial Centre of
Grande Prairie. Although the Plaintiff carried on business in other locations, the place of
business nearest to the location at which the matters in issue arose or were transacted was
Grande Prairie.
RATCH V MACLEOD, 2011 ABQB 820 (CANLII) (GRAESSER J)
The Plaintiffs sought Summary Judgment against one Defendant, Mr. MacLeod, in relation to
the Plaintiff’s purchase of a home from Mr. MacLeod, and his former spouse, Mrs. MacLeod.
Mrs. MacLeod was also a Defendant in the Action. As a result of non-attendance at an
Examination for Discovery, Mr. MacLeod was ordered to pay the Costs of both the Plaintiffs and
Mrs. MacLeod by a specified date, failing which his Statement of Defence would be struck. Mr.
MacLeod failed to make the payments in the specified period, and was subsequently Noted in
Default. Mr. MacLeod argued that Mrs. MacLeod, by virtue of the fact that she was also a
Defendant in the Action, should bear some share of any Damages awarded to the Plaintiffs.
Graesser J. held that Rule 7.2 provides that a party can apply for Summary Judgment at any
time. There is no impediment to a plaintiff seeking Summary Judgment, or an Assessment of
Damages, against one Defendant, while leaving Claims against another Defendant unresolved.
When one Defendant has been Noted in Default, a Plaintiff is free to proceed swiftly against the
party in Default and proceed against the Defending Party at a later date (if at all). Mr. MacLeod
was free to seek contribution and indemnity from Mrs. MacLeod, however, because the
Defendants were jointly and severally liable to the Plaintiffs, the Plaintiffs were entitled to
proceed against either or both of the Defendants.
On the issue of damages, the Plaintiffs had served Mr. MacLeod with a Notice to Admit Written
Opinions, to which Mr. Macleod did not respond. Graesser J. held that because Mr. MacLeod
failed to respond to the Notice in the time permitted by Rule 6.37 (20 days), he was deemed to
have accepted the Opinion.
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The Plaintiff brought an Action against a number of Parties, including the Crown, claiming that
she was sexually assaulted while under a Temporary Guardianship Order (“TGO”) in favour of
the Director of Child Welfare. The Plaintiff sought Summary Judgment of her claim against the
Crown as it related to trespass and unlawful confinement. The Plaintiff relied on the Director’s
failure to file a care plan with the Court within the 30 days following the granting of the TGO,
which rendered the TGO void.
The Plaintiff relied on Rule 7.3(1), which provides that a party may apply to the Court for
Summary Judgment if there is no defence to a Claim or part of a Claim. Citing Manufacturers’
Life Insurance Co v Executive Centre at Manulife Place Inc, 2011 ABQB 189, Encana Corporation
v ARC Resources Limited, 2011 ABQB 431 and Tottrup et al v Clearwater No 99 (Municipal
District), 2006 ABCA 380, Graesser J. held that the test for Summary Judgment under the new
Rules is the same as that applied under the former Rules. Specifically, the moving party must
establish on a balance of probabilities there is no genuine issue for Trial. The burden then shifts
to the responding party to show that there is a genuine issue for Trial. In short, for Summary
Judgment to be granted, it must be beyond doubt that no genuine issue for Trial exists. This
standard is not met if the Judge must assess the quality or weight of evidence, decide a
significant question of law or conduct a careful analysis of a complex legal test.
Graesser J. held that Summary Judgment was not available to the Plaintiff because she failed to
prove that the Crown had no defence to the Claims against it. Moreover, Graesser J. held that
the Plaintiff’s Claim was without support in Canadian law, and that the issues raised by the
Statement of Claim required a strong evidentiary foundation before the Court could make a
determination as to their veracity.
SCOTIA MORTGAGE CORPORATION V LEWANDOWSKI, 2011 ABQB 822 (CANLII) (MASTER
HANEBURY)
The Plaintiff applied for Summary Judgment. Master Hanebury determined that there was
certain evidence that was not before the Court at the time of the Application. It was decided
that the missing evidence had the potential to raise a genuine issue for Trial.
It was noted that, given the facts that were actually before the Court at the time of the
Application, the Court could have granted the Application along with leave for the Defendant to
consider his Appeal rights. However, Master Hanebury determined that there was another
option available.
On Appeal, Rule 6.14 would allow for the introduction of new evidence that was, in the opinion
of the Judge hearing the Appeal, relevant and material. Master Hanebury also noted that Rules
1.2 (1) and (2) provide:
… that the purpose of the rules “is to provide a means by which claims can be
fairly and justly resolved in or by a court process in a timely and cost effective
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way” and should be used “to identify the real issues in dispute...[and] to
facilitate the quickest means of resolving a claim at the least expense”.
Reading these Rules together, Master Hanebury decided that the better option was to adjourn
the Application “while the parties further ascertain the facts, and, if necessary, amend the
pleadings”. It was ordered that the matter could be brought back before Master Hanebury
within the next six months. If this was done, a determination would then be made as to
whether there was a genuine issue for Trial. If this was not done within the specified
timeframe, the Plaintiff’s Application would be allowed and it would be awarded Costs.
TRANSALTA GENERATION PARTNERSHIP v BALANCING POOL, 2012 ABQB 2 (STEVENS J)
The Applicant was an owner of a power plant that was regulated in part through regulation;
whereas the Respondent, Balancing Pool, was a public body that performed certain statutory
duties that impacted the Applicant. The other Respondent, ASTC Power Partnership, was a
purchaser of power from the Applicant.
The Applicant filed an Originating Notice for Judicial Review of a Decision of the Balancing Pool
and served on the Balance Pool, pursuant to Rule 3.18, a Notice to Obtain a Record of
Proceedings. The Balancing Pool, pursuant to Rule 3.19, objected to producing a Record of
Proceedings and further claimed that it was not subject to Judicial Review.
In deciding this Application, Stevens J. stated that the determination of whether or not the
Balancing Pool was required to produce a Record of Proceedings was dependant on whether
the Balancing Pool’s Decision was subject to Judicial Review. Stevens J. held that the Balancing
Pool’s Decision was not subject to Judicial Review and dismissed the Application to produce a
Record of Proceedings.
JAMES V NORTHERN LAKES COLLEGE, 2012 ABQB 6 (CANLII) (MASTER SMART)
The Defendants applied to strike the Statement of Claim pursuant to Rule 3.68(2)(a), on the
basis that the Court had no jurisdiction. After determining that a union grievance process had
exclusive jurisdiction over the allegations pleaded In the Statement of Claim, Master Smart
ordered that the Statement of Claim be struck in its entirety.
FIRST NATIONAL FINANCIAL GP CORP V KULAGA, 2012 ABQB 8 (MASTER HANEBURY)
The Plaintiff sought Summary Judgment against one of the Defendants, Kulaga, for the amount
outstanding on an insured mortgage. Kulaga alleged that the subject property was flipped to
inflate the price just before it was transferred to him, and that the Plaintiff knew or ought to
have known that the transaction was fraudulent.
Kulaga learned of an investment in which he would hold a mortgage on a house for two to four
months until the buyer could acquire the property. He would be paid a fee for providing the
financing during that period. Kulaga claimed that he was advised by an alleged Mortgage
Specialist from the Royal Bank of Canada and a Mortgage Broker that the transaction was legal.
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Kulaga argued that Summary Judgment could not be granted as the mortgage contract was
tainted by illegality by way of participation in the fraud by the Lender. Indeed, two other Real
Estate Purchase Contracts had been forwarded to the Lender in respect of the same property.
In this context, Kulaga claimed that the Plaintiff knew or ought to have known of the fraud and
chose to lend the funds regardless. Kulaga further argued that the lawyer, as agent for the
Plaintiff, failed to disclose the true transaction to him and thereby committed a
misrepresentation upon which he relied.
Master Hanebury held that Summary Judgment may only be granted if there is no genuine issue
for Trial. The evidentiary burden is initially on the Applicant to prove its cause of action on a
balance of probabilities. The evidentiary burden then shifts to the Respondent to show that
there is no genuine issue for Trial.
Master Hanebury held that participants in a fraudulent or illegal scheme cannot ask the Court
to refuse to enforce the contract they signed on the basis of its illegality. However, Master
Hanebury further held that this legal principle cuts both ways. If the lender was involved in the
fraud, it too may have difficulty enforcing the contract due to its illegality.
Master Hanebury held that the Plaintiff provided no response to Kulaga’s claims that it knew or
ought to have known of the fraud. Further, the Plaintiff did not deny that it received notice of
the back-to-back offers showing a significant increase in the value of the property in a short
period of time. Although Kulaga was not an innocent party, it was not obvious that the Plaintiff
came to Court with clean hands. As such, Master Hanebury held that Summary Judgment was
not a remedy available on the facts as presented, and dismissed the Application.
1280055 ALBERTA LTD V ZAGHLOUL, 2012 ABQB 10 (CANLII) (MASTER HANEBURY)
The Defendant brought an Application to set aside Default Judgment on a Promissory Note and
a Noting in Default in a fraudulent conveyances Action. Master Hanebury held that Rule 9.15(3)
has the same effect as former Rule 158 and is to be applied in the same fashion. Specifically,
when determining whether to set aside Default Judgment, the Court has the discretion to
decide in accordance with what is fair. Three factors are relevant to this assessment: whether
the Applicant has a defence on the merits, whether the Applicant acted promptly to set aside
the Judgment, and whether the Applicant deliberately chose not to file a Defence. All three
elements of the test should be met before Default Judgment is set aside.
In determining the existence of a defence on the merits, Master Hanebury held that an
allegation of a defence is insufficient. Rather, the Court must evaluate whether an arguable
defence exists or whether the Defendant is trying to delay or defeat a valid claim. Master
Hanebury held that the Defendant had not raised an arguable defence to the Claim against him
relating to the Promissory Note and, as such, the Default Judgment would stand.
In the fraudulent conveyances Action, the Defendant was found to have an arguable defence,
because there was a lack of clarity in the law on this issue. Further, the delay between when the
Defendant learned of the Claim and when he brought the Application to set aside Default
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Judgment was insufficient to deny his Application. On the third element of the test, whether
the Applicant deliberately chose not to file a Defence, the general rule is that if a Defendant
deliberately allows a Judgment to go by default, he is not allowed to set it aside. The Plaintiff
had obtained a Substitutional Service Order which allowed the Defendant to be served via
Facebook. Although the Defendant admitted that he had seen the Facebook messages, he
claimed that he refused to open them because they were not from anyone he knew personally
and he was concerned about computer viruses. Master Hanebury held that although it was
clear that the Facebook messages contained legal documents, the circumstances were
insufficient to find that the Defendant deliberately let the Judgment go by default. As such,
Master Hanebury set aside the Default Judgment in the fraudulent conveyances Action.
PANICCIA ESTATE V TOAL, 2012 ABQB 11 (CANLII) (SHELLEY J)
At Trial, the Defendant’s negligence was found to have caused the Plaintiff to die of cancer six
months earlier than if he had received proper treatment. The Defendant then refused to pay
the Plaintiff’s bereavement damages pursuant to the Fatal Accidents Act, RSA 2000 c F-8
(“FAA”), and other special damages that related to “alternative therapies”. In determining
whether the Defendant was required to pay these damages, Shelley J. considered whether the
Trial Decision required revision pursuant to Rule 9.13, which provides that at any time before a
Judgment is entered the Court may vary, change or modify it.
At para. 47 of the written Judgment, Shelley J. indicated that the FAA does not operate where
there is negligence and, as a result of the negligence, a person dies from a certain cause but at
an earlier date than they would otherwise have died. The Defendant refused to pay the
Plaintiff’s bereavement damages on the basis that para. 47 of the Judgment indicated that the
Defendant had no legal obligation to do so.
Shelley J. held that Rule 9.13 provides broader authority to vary a Judgment or Order than
existed under the former Rules. Rule 9.13(a) gives the Court broad discretion to vary the
Judgment or Order where the Judge has determined variation is necessary. Rule 9.13(a)
contemplates circumstances in which a Judge has re-thought a matter or wishes to clarify it.
While Rule 9.13(a) provides authority to make any change the Judge considers appropriate, the
authority should only be exercised after the Judge has: (1) indicated to the Parties that a
Judgment or Order may be varied via Rule 9.13(a); (2) identified the nature of the proposed
variation; and (3) allowed the parties to make submissions on the proposed variation. Shelley J.
further held that Rule 9.13(a) must be considered in the context of the Foundational Rule, Rule
1.2. In order to be fair and just, a result must also be timely and cost effective.
Shelley J. held that the potential benefits of judicial intervention pursuant to Rule 9.13(a)
include averting an unnecessary and costly Appeal. Further, if an Appeal is warranted after an
Order or Judgment has been modified, the Appeal Court has the benefit of a more fully
developed Trial Decision. Moreover, Rule 9.13(a) ensures that an incorrect statement of law
can be corrected that might otherwise confuse future judicial analysis and inappropriately bind
lower Courts.
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Shelley J. held that the statement in para. 47 of the Judgment was incorrect and required
correction pursuant to Rule 9.13(a). Shelley J. held that para. 47 was obiter, had no effect on
the Trial’s outcome, and should be eliminated from the Judgment.
Shelley J. also addressed an issue regarding Rule 9.13(b), which provides that a litigant may ask
the Court to address a question that was not asked at Trial. Shelley J. held that an application
pursuant to Rule 9.13(b) would have been the proper mechanism by which the Defendant could
have asked the Court to consider whether special damages relating to alternative treatments
were appropriate. The Defendant did not make an Application pursuant to Rule 9.13(b). In any
event, the Application would have been rejected. As such, Shelley J. refused to entertain the
special damages issue raised by the Defendant during the Application.
The Defendant was ordered to pay Solicitor-Client Costs on the basis that the nature of the
Defendant’s special damages claim was contrary to Rules 1.23(a) (Obligation to Identify the
Real Issues in Dispute and Facilitate the Quickest Means of Resolving the Claim at the Least
Expense), 10.33(2)(a) (Conduct That Unnecessarily Lengthened the Proceeding), 10.33(2)(d)
(Improper Step), and 10.33(2)(g) (Serious Form of Litigation Misconduct).
LYONS V BALDWIN, 2012 ABQB 12 (CANLII) (MASTER SMART)
A Defendant successfully applied to have the Action struck on the grounds that there was no
merit to the Claim or to any portion of it as against that Defendant. The Court, referring to
Kwan v Superfly Inc, 2011 ABQB 343, stated that Rule 7.3 operates in the same manner and
follows the same legal principles as Rule 159 of the old Rules. Master Smart noted that
Summary Judgment may be granted to a Defendant if the Court is satisfied there is no merit to
the Claim. Master Smart pointed out that the test for Summary Judgment is also expressed as:
(1) the Action is bound to fail, (2) the Claim does not raise a genuine issue for Trial, or (3) the
Claim has no reasonable prospect of success.
LANE V LANE, 2012 ABQB 21 (CANLII) (SULLIVAN J)
This Costs Application followed a three-day viva voce Special Hearing relating to spousal
support.
To interpret Rule 10.29(1), Sullivan J. referred to Canada Deposit Insurance Corporation v
Canadian Commercial Bank, [1989] AJ No 29, which summarizes the general Costs rule in the
following way: in the absence of special circumstances, the successful party is entitled to Costs.
Canada Deposit highlighted four exceptions to this general rule: (1) misconduct of the parties
(2) miscarriage in the procedure; (3) oppressive and vexatious conduct of proceedings; and (4)
novelty or uncertainty of the issue to be decided. The Court referred to case law specifying that
although the Court has discretion with respect to Costs, the discretion is not arbitrary; it must
be exercised judicially and there must always be some reason to deprive a successful litigant of
Costs. His Lordship indicated that a Court’s discretion to deprive a successful litigant of costs is
a discretion that must be exercised judicially and upon proper material connected with the
case, or having relation to the subject-matter of the Action.
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QUADRANGLE HOLDINGS LIMITED V COADY, 2012 ABQB 22 (CANLII) (MCCARTHY J)
The Plaintiff brought a claim against three individual Defendants and one corporate Defendant
for misappropriation of shares. One of the individual Defendants brought an Application to
amend his pleadings in order to plead the provisions of the Limitations Act, RSA 2000, c L-12. At
the same time, three of the four Defendants brought Applications for Summary Judgment to
dismiss the Plaintiff’s claim on the basis that it was statute barred under the Limitations Act.
McCarthy J. dealt with the Application to amend the pleadings first. The Applicant did not file
an Affidavit in support of the Application and instead relied on an Affidavit that had been filed
earlier in the matter. The Respondent argued that Rule 6.3(3)(b) required the Application to be
supported by an Affidavit, however, McCarthy J. stated that only a modest amount of evidence
was needed to support an Application for an amendment, and held that the reliance on an
earlier Affidavit was sufficient. Therefore, an Affidavit filed in conjunction with the Application
was not necessary.
McCarthy J. found that when Rule 3.65 is read in conjunction with Rule 1.2(2)(a), the result is
very similar to former Rule 132, as was decided in the case of Manson Insulation Products Ltd v
Crossroads C & I Distributors, 2011 ABQB 51. After reviewing case law regarding former Rule
132, McCarthy J. stated:
… it appears that under the new rules pleadings can be amended no matter how
careless or late the party seeking to amend.
McCarthy J. reviewed the exceptions for allowing an amendment under former Rule 132 and
determined that there was no existing exception. The Application to amend the pleadings was
granted.
In support of the Application for Summary Dismissal, an Affidavit was filed by only two of the
three Applicants. The Respondent argued that each Applicant had to file an Affidavit in support
of the Application. McCarthy J. did not agree with this suggested requirement and stated that:
… Quadrangle argues that the Applicants are required to rely on their own
affidavits and their own evidence. However, I do not agree that this is the case.
Rule 7.3(2) provides that the “application must be supported by an affidavit
swearing positively […]”. The Applicants relied specifically on Coady’s and
Wandinger’s affidavits. I find that this is sufficient to meet the requirements of
Rule 7.3.
McCarthy J. applied the provisions of the Limitations Act, and granted Summary Judgment for
one of the individual Applicants but dismissed the other Defendants’ Applications.
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GORSALITZ V BMO BANK OF MONTREAL, 2012 ABQB 24 (CANLII) (MASTER SCHLOSSER)
The case confirms the well-established test for Summary Judgment as being whether it is “‘plain
and obvious’ or ‘beyond doubt’ that there is … no merit to the claim or part of it”. Further, the
Court noted that:
The legal burden is on the Applicant … throughout. The Respondent is not
obliged to furnish evidence. However, if an Applicant discharges the evidentiary
burden imposed upon it on a balance of probabilities, the evidentiary burden
then falls to the Respondent to show that there is arguable merit to the case …
The Respondent runs a risk if they do not adduce any evidence in response to the application.
Parties are expected to put their best foot forward. The court cannot base its decision on what
evidence might be generated later in the lawsuit, should it be allowed to continue …
HSBC BANK CANADA V 1100336 ALBERTA LTD (INCREDIBLE ELECTRONICS WHOLESALE), 2012
ABQB 27 (CANLII) (MARSHALL J)
At Trial, the Plaintiff was successful in proving that the Defendant engaged in a civil conspiracy
to defeat a debt. In relation to the applicability of deterrence in determining Costs, Marshall J.
was not satisfied that deterrence has a role in civil litigation, outside of promoting timely and
efficient prosecution of civil litigation. Marshall J. awarded double costs based on the relative
difficulty of establishing a civil conspiracy.
LEE V YEUNG, 2012 ABQB 40 (CANLII) (MACKLIN J)
The issue was whether or not an Executive Board of a society, incorporated pursuant to the
Societies Act, RSA 2000, c F-14, was properly elected on November 21, 2010. In this case, it was
important that the society was a private body rather than a public body.
An Originating Application under Rule 3.2 was filed on July 8, 2011, seeking, amongst other
things, an Order setting aside the November election. The Respondents argued that the
Application was not filed within the six month time period prescribed by Rule 3.15(2),
applicable to Originating Applications for Judicial Review.
The Court noted that Judicial Review was “historically not available in relation to private
bodies”. It was also noted that there is a distinction between public law remedies such as
mandamus and certiorari and private law remedies such as injunctions and declarations.
The Court noted that:
It is unclear whether the drafters of the Rules of Court specifically intended the
judicial review time limit rule to apply to private law remedies such as
declaration and injunction. One might infer that to be the case, given the
wording of rules 3.15 and 3.24(1) and the policy arguments for short limitations
in both cases …
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The Court determined that it was not necessary to decide whether or not the six month time
period applied, because the matter could be settled on other grounds. However, if it had been
necessary to decide, Macklin J. indicated that the six month limitation period would apply.
TWINN V SAWRIDGE BAND, 2012 ABQB 44 (CANLII) (BROWNE J)
This was an Appeal of a Master’s Decision to grant a lawyer’s Application to extend time for
review under Rule 10.10 (2). Browne J. noted that the current standard for the admission of
evidence on review of a Master’s Decision is that the evidence is “relevant and material”. The
Appellant sought to adduce evidence that was not relevant to the Appeal and the Court did not
consider it.
At the lawyer’s request, the Master had ordered a review hearing under Rule 10.10 (2). At the
hearing, the Reviewing Officer raised a question about whether Rule 10.10(2) applied to the
lawyer’s requests for review and directed the Parties to relevant memoranda under the
equivalent former Rule. The Review Hearing was adjourned to afford the Appellant, the
Sawridge Band, time to Appeal the Master’s Decision. On Appeal, the Respondent argued that
the Application under Rule 10.10(2) was unnecessary as the Rule does not apply to lawyerinitiated reviews of accounts; however, it was taken as a precautionary step. The Respondent
argued that the account should be reviewed before the Review Officer and questions could be
referred to the Court as necessary. The Appellant argued that the Respondent was out of time,
and the Application to collect on the outstanding accounts should be brought by way of
Statement of Claim.
The Court noted that Rule 10.10 (2) does not distinguish between reviews of fee accounts
initiated by clients and those initiated by lawyers. However, “the reasons a lawyer initiates a
review are fundamentally different from the reasons that a client initiates a review”. The Court
found that the Rule, the interpretation memos under the previous Rule, and common sense
dictate that Rule 10.10 (2) applies only to reviews of lawyers’ charges initiated by a client, and
not to lawyer-initiated reviews. In the context of a lawyer-initiated review, after 6 months an
application is unnecessary and the Parties can simply proceed to Review.
Browne J. added that where a lawyer initiates a review and the client disputes liability, the
appropriate procedure is to allow the lawyer to proceed to Review. If necessary, the Review
Officer can adjourn and refer issues to the Court for determination.
ALBERTA ADOLESCENT RECOVERY CENTRE V CANADIAN BROADCASTING CORPORATION,
2012 ABQB 48 (CANLII) (MARTIN J)
The Defendant, Canadian Broadcasting Corporation (“CBC”), broadcast a television program
regarding a drug treatment centre operated by the Plaintiff. The individual named Defendants
were a writer, director and an executive producer of the program. The Plaintiff commenced an
Action in defamation against the CBC and the three individual Defendants. The individual
Defendants applied to be removed from the Claim on the basis that they did not receive notice
under the Defamation Act, RSA 2000, c D-7.
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Martin J. held that the principles governing Applications to Strike a Statement of Claim pursuant
to Rule 3.68 are settled. The test, which is unchanged from the former Rules, is that before a
Claim may be struck for failing to disclose a reasonable cause of action, it must be plain and
obvious that the Claim cannot succeed. Although the Pleadings should be liberally interpreted
and all allegations of fact made by the Plaintiff must be assumed to be true, the Court has a
duty to apply Rule 3.68 as intended. If the alleged facts do not disclose a Cause of Action, the
Claim should be struck. A Claim should also be struck under Rule 3.68 if it is frivolous. A Claim is
frivolous if it is brought in bad faith or if it is obvious that it cannot succeed. The onus of proving
that the Plaintiff’s Action is bound to fail is extremely high.
Martin J. held that the Defendants failed to demonstrate that it was plain and obvious that the
Plaintiff could not succeed on its argument regarding substantial compliance with the
Defamation Act. Although the Plaintiff had not served the three individual Defendants
personally, it had served their employer, CBC. There was no evidence to suggest that the three
individual Defendants were not aware of the notice served on CBC. The law is unsettled as to
whether strict compliance with the Defamation Act was required, or whether substantial
compliance was sufficient. As such, it was not plain and obvious that the Plaintiff’s substantial
compliance argument would fail, and the Application to strike the Statement of Claim against
the individual Defendants was denied.
SIBANDA V NDLOVU, 2012 ABQB 49 (CANLII) (VEIT J)
The Court had previously dispensed with the requirement of written consent to grant a Divorce
Judgment as an uncontested divorce. It was represented to the Court that Ndlovu had
consented to have the Action proceed as an uncontested divorce but did not understand that
she needed to formally consent. Upon being served with the Divorce Judgment Ndlovu advised
that she opposed the divorce.
Veit J. held that the misunderstanding was because of language difficulties and not fraud, and
that this was an appropriate situation to apply Rule 9.12 and set aside the Divorce Judgment.
LOUW V HAMELIN-CHANDLER, 2012 ABQB 52 (CANLII) (MICHALYSHYN J)
This Application resulted from the inability of the parties to agree on Costs following an
Originating Application. The Respondent sought a discretionary increase in Taxable Costs
through Rule 1(4), Schedule C of the Rules.
The Court referred to RIC New Brunswick Inc v Telecommunications Research Laboratories,
2011 ABCA 10 (CA), in which Berger J.A. determined that, as under the “old” Rules, the Court
retains a residual discretion to award Costs above Column 1. Michalyshyn J. noted, however,
that as a starting point, where there is no amount involved, or where such amount is impossible
to calculate, Column 1 applies unless the Court orders an enhanced scale. The Court noted that
an enhanced scale of costs may follow from the following factors: (1) the outcome is of
particular importance to the Parties; (2) the successful Party incurs significant liability to retain
counsel; (3) exceptional circumstances are found; (4) the successful Party needs to defend his
or her reputation or standing; or (5) the issues are complex. The Court also referred to case law
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(not involving Schedule C) in which a Court had tripled a tariff amount on the basis that that
amount was too low given the usefulness of a brief or written final argument. On the other
hand, no case law considered by Michalyshyn J. suggested that Rule 1(4) Costs could be
enhanced on account of a finding that the litigation was merely without merit or misconceived.
Michalyshyn J. ordered that the Respondent receive enhanced Costs for two reasons: (1)
because of the importance of the issue not only to the successful Party but also, in terms of
precedent, to the public; and (2) because the Respondent, who had been self-represented
through the hearing portion of the Originating Application matter, had then hired counsel, who
provided much assistance to the Court with its written submissions.
BARCELLONA V EINERSON, 2012 ABQB 56 (CANLII) (MASTER SCHLOSSER)
This was an Application to Strike for long delay. The Plaintiff filed a Claim in August of 2006 and
took no further steps to advance the matter. The Defendant filed a Statement of Defence on
February 9, 2010. The Statement of Defence, however, was not served on the Plaintiff. Master
Schlosser relied on the decision in Bugg v Beau Can Exploration Ltd, 2006 ABCA 201, and held
that the filing of a Statement of Defence is a thing that materially advances the Action and
dismissed the Application. However, Master Schlosser went on to suggest that the Court may
not maintain this precedent because the filing of a Statement of Defence does not fulfill the
requirements for Rule 3.31, which requires that a Statement of Defence be filed and served
within 20 days:
A Statement of Defence that has been filed but not served is not a completed step required by
the Rules. Accordingly, it may not be immune from examination to see whether it has somehow
moved the matter closer to trial in a meaningful way.
Master Schlosser also stated that Parties may agree to delay, as per Rules 15.4(2)(a) and
4.33(1)(a). The agreement need not be in writing but must be “express”, and a “Defendant’s
request not to be noted in default isn’t enough”. However, a request that no steps be taken can
suffice.
DAVID M GOTTLIEB, PROFESSIONAL CORPORATION V CHAMPION HOMES INC, 2012 ABQB 64
(CANLII) (KENNY J)
This was an Appeal of a Decision of Master Hanebury on the issue of “whether the unilateral
discharge, by a mortgagee, of a mortgage granted by one mortgager against a property owned
by it, satisfies the debt owing under that mortgage, and thereby renders unenforceable a
collateral mortgage granted by a second mortgagee against a second property that was granted
to secure the same debt”. Master Hanebury ruled that when the mortgagee unilaterally
discharged the mortgage, the debt secured under that mortgage was deemed to be satisfied
and therefore the collateral mortgage was unenforceable. The Plaintiffs Appealed that Decision.
In determining the Standard of Review, Kenny J. discussed the application of Rule 6.14(3) and
stated that:
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[P]rior to the enactment of new Rule 6.14(3), an appeal from a master was an
appeal by way of trial de novo. Some caselaw suggests that the new rules have
changed the standard of review to be applied on appeals from a Master.
Kenny J. then quoted from the Court of Appeal’s Decision in Gudzinski Estate v Allianz Global
Risks US Insurance Company Limited, 2012 ABCA 5, where the Court stated that while Rule 6.14
states that Appeals from a Master are “on the record”, this Rule does not necessarily change
the previous Rule and is a continuation of the previous practice. Furthermore, Rule 6.14 states
that an Appeal of a Master’s Decision may be based upon new evidence placed before the
Court. Kenny J. found that the Standard of Review on a Decision from the Master on a question
of law was correctness, on a question of fact was reasonableness, and on a question of mixed
fact and law was reasonableness. Lastly, Kenny J. found that where a question of law was
extractable from the facts, in a question of mixed fact and law, the Standard of Review was
correctness.
FIRST NATIONAL FINANCIAL GP CORPORATION V MACRO REALTY AND MANAGEMENT LTD,
2012 ABQB 69 (CANLII) (PARK J)
This was an Appeal of a Master’s dismissal of an Application for Summary Judgment. The
Appellant argued that the Master erred in the two interpretations of law he proposed in
relation to the contractual waiver of rights under the Expropriation Act, RSA 2000 c E-13. Park J.
held that in determining whether or not the Master erred in dismissing the Application, the
Rules of Court did not require a determination of whether the Master’s interpretations of the
law related to the Expropriation Act were correct. It was not for His Lordship to determine
whether the Master had made an error of law in the two stated legal issues. Rather, on Appeal,
Justice Park was charged with determining whether the Appellant had demonstrated that there
was no genuine issue for Trial on the Application presented. The rulings by the Master implicitly
and inferentially presented two genuine issues for Trial. As such, Park J. dismissed the Appeal
and held that the Master was correct in denying the Application for Summary Judgment.
SZTUCZKA V KNEBEL, 2012 ABQB 72 (CANLII) (MASTER MASON)
The Defendant brought a Summary Judgment Application for dismissal of the Plaintiff’s Claim,
pursuant to section 3(1)(a) of the Limitations Act, RSA 2000, c L-12.
The Action involved a negligence Claim against a Dentist. The dental services were provided
between April 26, 2007 and January 30, 2008. The Plaintiff made a complaint to the Alberta
Dental Association and College (“ADA & C”) and the complaint was dismissed on May 1, 2009.
The Plaintiff commenced the Action on June 3, 2010.
The Plaintiff claimed that she did not know her injuries were caused by the Dentist prior to May
1, 2009, because she was waiting to hear what the ADA & C concluded. However, she had
written complaint letters to the ADA & C, within the first four months of 2008, which showed
the Action was commenced more than two years after the Plaintiff knew or ought to have
known that the injuries had occurred. Master Mason dismissed the Plaintiff’s Claim.
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KLYCHAK V SAMCHUK, 2012 ABQB 85 (CANLII) (VEIT J)
The Applicant applied to consolidate three Actions involving the same Parties. The Court
determined that the existing case law on consolidation under the old Rules is still applicable
under the new Rules because of the similarity that exists between the old and the new Rules.
Thus, Bank of Montreal v Valerio, 2009 ABQB 578 and Mikisew Cree First Nation v Canada,
[l998] A.J. No. 869 (Q.L)(Q.B.) are still relevant to determining “the types of factors which a
court should consider when deciding whether to exercise its power under the Rules …” Further,
pursuant to Alliance Pipeline Ltd Partnership v C.E. Franklin Ltd, 2007 ABCA 285, “although
individual factors should be considered, the court’s overall objective is to ensure that its
decision on how the actions should be tried will serve the ends of justice”.
The Court decided that the three claims should be heard together. The Court reasoned that this
would result in greater efficiency. One specific reason given for this is that Alternative Dispute
Resolution could only be effective if all of the proceedings were dealt with at the same time.
The Court noted that even more important than efficiency is the fact that hearing the claims
together would result in greater fairness. This is because in all three proceedings the evidence
will almost exclusively be from the two primary Parties. Having one Trial allows for a single
assessment of credibility on the evidence. The Court ordered a consolidation of the Actions
because there was “a real risk that the results in the three proceedings could not be reconciled
with one another”.
Lastly, it was decided that neither Party would be prejudiced by trying the Actions at the same
time.
STEWART ESTATE V TAQA NORTH LIMITED, 2012 ABQB 87 (CANLII) (ROMAINE J)
The Plaintiffs alleged that mineral leases held by the Defendants had terminated due to lack of
production. The Parties entered into a litigation plan that set timelines for the delivery of
primary expert reports, rebuttal expert reports and surrebuttal expert reports. The Plaintiffs
served expert reports on the Defendants, and one Defendant served a rebuttal report on the
Plaintiffs. Shortly before Trial began, counsel for the Defendant Nexen advised the Plaintiffs
that it intended to object to the admission of certain portions of the Plaintiffs’ expert reports.
The afternoon before the Trial commenced, the Plaintiffs advised the Defendants that it would
not call certain expert witnesses at Trial, and would be deleting portions of another of its expert
reports. The letter stated that the Plaintiffs would proceed on the basis that Nexen would not
call rebuttal expert evidence at Trial.
Counsel for the Defendants alerted the Court to this issue in opening statements and advised
the Court that they would call expert witnesses during the Trial. Just prior to the closing of the
Plaintiffs’ case, counsel for the Plaintiffs advised the Defendants that they would object to the
Defendants calling any expert evidence. The Defendants applied for a direction that their expert
evidence was admissible. The Plaintiffs argued that the Defendants did not submit primary
expert reports as provided for in the litigation plan and under the Rules of Court. Further, since
the Plaintiffs called only limited expert evidence at Trial, there was nothing to rebut. It would
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be an abuse of process to allow the Defendants to call rebuttal experts after the close of the
Plaintiffs’ case.
Rule 5.36 requires the Party receiving an expert report to provide reasonable notice of any
objection regarding the admissibility of the report at Trial. Romaine J. held that notice the day
before Trial or during the course of Trial was not reasonable. Romaine J. further held that even
if the Defendants were in error in failing to file primary expert reports, there was no doubt that
the Defendants’ expert evidence was relevant. Excluding it for a technical failure to comply with
a procedural Rule would be unjustified in the circumstances. Romaine J. held that a flexible
approach to rebuttal reports has been adopted in Rule 5.35, which provides that a rebuttal
report may include issues not raised in the initial expert report. Romaine J. held that while the
Plaintiffs were entitled to put in their case the way they wished, they were not entitled to rely
on a technical objection to deprive the Defendants of the opportunity to present their case,
particularly in the absence of any real prejudice.
The Plaintiffs then applied to call their experts in rebuttal to the Defendants’ case, or to reopen the case to call their experts. Rule 9.13 provides that at any time before a Judgment is
entered, the Court may hear more evidence if it is satisfied that there is good reason to do so.
Romaine J. held that there was little prejudice to the Defendants in allowing the Plaintiffs to reopen their case because the Plaintiffs’ Application was brought before the Defendants led any
evidence. Romaine J. further held that allowing the Plaintiffs to re-open their case to call expert
evidence that was previously disclosed to the Defendants did not give the Plaintiffs the
opportunity to re-argue their case. In this context, Romaine J. allowed the Plaintiffs to re-open
their case to the limited extent of calling the experts whose reports had been previously
disclosed to the Defendants.
EPIAR INC V RAINIER CAPITALMANAGEMENT, LP, 2012 ABQB 94 (MACKLIN J)
This matter involved a Claim filed in the Alberta Court of Queen’s Bench alleging embezzlement
of funds. However, the Alberta Claim was preceded by a Claim filed in Texas by the Defendant
against the Plaintiff, for similar allegations. The Plaintiff brought an Application for a declaration
that the Alberta Court of Queen’s Bench had jurisdiction over the subject matter of the Action
and declaring that Alberta was the most convenient forum for the hearing of the Action. The
Defendant then applied for an Order adjourning or temporarily staying the Plaintiff’s
Application on the basis that there was a Motion to Dismiss being considered by the Court in
the Texas Action that would resolve the matters at issue. The sole issue before the Court was
whether the Plaintiff’s Application should be adjourned or stayed pending the decision of the
Texas Court.
The Plaintiff argued that the Defendant’s Application to adjourn was not within the parameters
of Rule 3.68, which deals with significant deficiencies of a claim. Macklin J. rejected this
argument, and found that the Application to adjourn should be considered under Rule 1.4,
which provides the Court with the authority to adjourn or stay an Application or proceeding.
Furthermore, Macklin J. relied on Rule 1.2 and stated that an Adjournment of the Plaintiff’s
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Application was consistent with the purpose and intention of the Rules to facilitate the quickest
means of resolving a claim with the least expense. The Application to Adjourn was granted.
OLSON LEMONS LLP V KEARL, 2012 ABQB 95 (CANLII) (WITTMANN CJ)
The Defendants sought to strike the Claim pursuant to Rules 3.68 (2) (b), (c) and (d). The Court
cited Donaldson v Farrell, 2011 ABQB 11, for the proposition that the new Rules have not
changed the test articulated for striking a claim under the old Rules. The Court held that first it
must determine if a “condition” as stipulated under Rule 3.68 (2) is present, and if a “condition”
is present only then will the Court determine which of the four types of Orders under Rule 3.68
(1) should be applied. The Application was dismissed.
590863 ALBERTA LTD V DELOITTE AND TOUCHE INC, 2012 ABQB 98 (CANLII) (MASTER
SCHLOSSER)
The Defendants brought an Application for Security for Costs. The Court, referring to Autoweld
Systems Limited v CRC-Evans Pipeline International Inc, 2011 ABCA 243, Attila Dogan
Construction and Installation Co v AMEC Americas Limited, 2011 ABQB 175, and Xpress Lube &
Car Wash Ltd v Gill, 2011 ABQB 457, noted that the starting point of the analysis (when the
Respondent is a company) is Section 254 of the Alberta Business Corporations Act, RSA 2000, c
B-9. Rule 4.22 then comes into play.
In reference to Rule 4.22 generally and factor 4.22(e) in particular, the Court referred to
Crothers v Simpson Sears Ltd, [1988] A.J. No. 408 CA for the proposition that the “justice” of the
case governs the exercise of discretion and provides a framework for the application of Rule
4.22(e).
Because of the unusual circumstances of the case, the Court, rather than granting Security for
Costs, ordered the shareholders of the Plaintiff to provide a personal undertaking, jointly and
severally, to respond to any eventual Costs award against the Plaintiff.
LEE V YEUNG, 2012 ABQB 102 (CANLII) (MACKLIN J)
Relying on Rule 10.33, the Applicants applied for Solicitor-Client Costs or a Costs award set at an
increased level from Column 1 of Schedule C, which is what the Applicants would otherwise
have been entitled to in their Originating Application. The Applicants argued that the conduct
of the Respondents had been improper, unfair and illegal, and an increased award should
therefore follow. The Court found that it is only conduct occurring during the course of
litigation that can result in an award of Solicitor-Client Costs and then only if the conduct of the
liable party has been shown to be reprehensible, scandalous or outrageous. Macklin J. also
determined that Solicitor-Client Costs relate to the conduct of the lawsuit and not conduct of
the Party before the lawsuit. The Applicants were awarded Column 1 Costs, given that the
remedy was a Judgment other than for the payment of money.
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HALL V HSBC CAPITAL (CANADA) INC, 2012 ABQB 114 (CANLII) (YAMAUCHI J)
The Defendants brought an Application for Summary Judgment. The Court held that there were
genuine issues for trial, and those issues could only be dealt with after a Trial Court had the
opportunity to make appropriate findings of fact and credibility.
KUMRA V LUTHRA, 2012 ABQB 117 (CANLII) (LEE J)
The Defendant, who applied for an Order to set Trial dates, submitted that the conditions
required under Rule 8.5 for the Court to order Trial dates had been met. Plaintiff’s (newly
retained) counsel argued that because he had not had a reasonable opportunity to review the
file: (1) he was not able to provide the Court with the anticipated number of witnesses and the
anticipated length of the trial; and (2) he was unable to certify that there were no further PreTrial steps required. Both (1) and (2) are specific items listed under Rule 8.4 as responsibilities
of Parties to be completed before the Court Clerk sets a Trial date.
Lee J. noted that it was the inability of the Parties to set the matter down for Trial, pursuant to
Rule 8.4, that motivated the Rule 8.5 Application. The Court also highlighted that in June 2011
the Court directed the Parties to meet certain deadlines in furtherance of the Action, and that
these deadlines ended in August 2011; the proposed Trial date in June 2012 would be nearly a
year since the Parties were to have met those deadlines. Lee J. also remarked that counsel for
the Plaintiff would be in a position to have finalized his review of the matter by the end of
March 2012, which would leave ample time for preparation for the Trial. Lee J. granted the
Application, concluding that the conditions for scheduling the Trial as set out in Rule 8.5 had
been met.
TORONTO DOMINION BANK V BEATON, 2012 ABQB 125 (CANLII) (VEIT J)
The Defendant brought an Application to have the Court waive the Court Fees for applying for
transcripts. The Attorney General opposed the Application on the basis that the Court does not
have the jurisdiction to grant the Order requested and that explicit authority to waive Court
Fees is given only to the Court Clerk or Registrar. Veit J. found that Rule 13.32 specifically
provides the Court Clerk with the authority to waive Court Fees and that Rule 13.38 does not
allow the Court to circumvent the clear intention of this Rule by granting a Fiat ordering the
Clerk to waive the Court Fees. Despite this Rule, Veit J. applied the cases of Polewski v Home
Hardware Stores Ltd [2003] OJ No 2908, and Purtle v Novak [2010] OJ No 4401, and found that
the Court has the authority to grant access to justice by waiving Court Fees. However, the Court
may only intervene where the Applicant has established a meritorious claim. Veit J. held that
the Defendant did not have a meritorious claim, and denied the Application.
LDW V KDM, 2012 ABQB 128 (CANLII) (JEFFREY J)
The Applicant applied for leave to appeal a Costs Order that was made following a Trial. The
Applicant applied pursuant to old Rule 505(3), which remains applicable pursuant to Rule
14.1(1).
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The Court followed Lameman v Alberta, 2011 ABQB 724 and summarized the law governing the
granting of leave to appeal a decision on Costs. A “high threshold” must be met and leave
should only be granted sparingly. The purpose of old Rule 505(3) is to “bring finality to cost
orders”, and to “conserve court resources by screening out appeals that are hopeless”.
Further, a leave Application is not an opportunity to re-argue the issue of Costs. However, the
Court must give the Applicant sufficient latitude to address the four part test approved in
Roman Catholic Bishop of the Diocese of Calgary v Canada (AG), 2009 ABQB 231.
When hearing a leave Application, the Court must consider the standard of review. The
applicable standard of review involves considering whether or not the Court, in making the
initial Costs Decision, committed a clear, palpable and overriding error.
HALLIBURTON GROUP CANADA INC V BORTH, 2012 ABQB 130 (CANLII) (MASTER MASON)
The Defendant brought an Application for Summary Judgment with respect to a claim against
him that was related to a motor vehicle accident. The Defendant claimed that the action was
statute barred under section 3(1) of the Limitations Act, RSA 2000, c L-12. The Court indicated
that to succeed the Defendant must show, that it was “plain and obvious or beyond doubt that
his Limitations Act defence will succeed”.
There was evidence, put forward by the Plaintiff, that representatives of the Defendant’s
insurance company indicated to the Plaintiff’s insurance company that it “need not be
concerned with time periods” and that the Defendant’s insurance company had “accepted the
claim and would deal with it until it was finalized”. An insurance adjuster for the Defendant
deposed information contradicting this.
Ultimately, it was found that there was a genuine issue for trial. The issue was based on the
evidence put forward by the Plaintiff and the argument that promissory estoppel precluded the
Defendant from relying on a Limitations Act defence.
ANOTHER LOOK VENTURES INC V 624157 ALBERTA LTD, 2012 ABQB 143 (CANLII) (KENNY J)
The Plaintiff filed a Statement of Claim seeking specific performance of an offer to purchase a
property, or in the alternative damages. The Defendant applied for Summary Dismissal. The
Court made the following comments regarding the test for Summary Dismissal:
The test for summary dismissal is very high. It must be “plain and obvious that
the action cannot succeed”, the action is “bound to fail”, or the action has “no
prospect of success”.
The Court held that the numerous facts in dispute made the matter inappropriate for Summary
Dismissal. Accordingly, the Application was dismissed.
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MCMEEKIN V ALBERTA (ATTORNEY GENERAL), 2012 ABQB 144 (CANLII) (MARCEAU J)
The Defendants applied to strike out the pleadings in a second Action. The Defendants had
been served with a Statement of Claim in that Action, which had been commenced before all of
the Defendants had filed defences to a Statement of Claim brought by the same (selfrepresented) Plaintiff in the first Action. Both Statements of Claim made the same allegations,
the difference being that additional Defendants (the “Remaining Defendants”), which included
lawyers who had provided defences on behalf of Defendants in the first Action, had been added
to the second Action.
In response to an argument by the Plaintiff that the Court could not strike the second Action
before a Defence had been filed in the first Action, Marceau J. referred to Rule 3.30, which
“clearly” provides a Defendant with “three mutually-exclusive options”, including the ability to
make a Rule 3.68 Application.
The Plaintiff alleged in the second Statement of Claim that the Defendants had fabricated a
previous Order of the Court in the first Action that did not reflect the Order handed down by a
Master. Marceau J. found that a dispute over the terms of an Order in one Action cannot form
the basis for a separate Action. Such an allegation disclosed no reasonable Cause of Action. The
Court noted that the Plaintiff could have applied to settle the terms of the Order pursuant to
Rule 9.3.
Marceau J. indicated that, notwithstanding that the word “vexatious” which was present in the
“old” Rules is absent in Rule 3.68, Courts have interpreted “vexatious” as being broadly
synonymous with impropriety and abuse of process. As a result, vexatious Pleadings can still be
struck pursuant to Rules 3.68(2)(c) and (d). The Court referred to Dykun v Odinshaw, 2000
ABQB 548, which listed a number of specific tests to determine whether a proceeding was
vexatious. His Lordship noted that making unsubstantiated allegations against a Party, legal
counsel, or the Court, tends to be a common feature of vexatious proceedings. In this case, the
Court found that the allegations were vexatious and ought to be struck, as should be the claims
against the Remaining Defendants.
Marceau J. cited Donaldson v. Farrell, 2011 ABQB 11, for the proposition that a Pleading is
frivolous when it is indicative of bad faith or is factually hopeless. His Lordship then referred to
Haljan v. Serdahely, 2008 ABQB 472 for the proposition that a frivolous plea is one so palpably
bad that the Court needs no real argument to be convinced of that fact. The Court found that
the Claims against the Remaining Defendants were frivolous, disclosed no reasonable Causes of
Action, and were an abuse of process.
SILVERMAN V ALBERTA (HUMAN RIGHTS COMMISSION), 2012 ABQB 152 (CANLII) (VELDHUIS
J)
The Applicant had made a complaint to the Alberta Human Rights Commission (the
“Commission”) that he was discriminated against due to his gender when he “was denied
domestic violence services available to others”. The Commission dismissed the complaint. The
Applicant requested that a review of the dismissal be completed by the Commission’s Chief
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Commissioner. The Chief Commissioner upheld the dismissal. The Applicant then brought a
motion for Judicial Review. The Application also included requests to introduce further
evidence and for additional disclosure. The Respondent was the Minister Responsible for
Children’s Services (“CYS”).
The Rules were discussed with respect to the Disclosure Application. The Applicant sought
disclosure of three items: the basis for a statement by the Deputy Minister of CYS that Police,
Justice, Health and Children’s Services do not indicate a substantiated need for expanding the
shelter program to include men’s emergency shelters; a letter from the Applicant to the Human
Rights Officer who conducted the investigation into the complaint and who prepared the
report; and that Officer’s letter of reply.
The Court found that the materials required by Rule 3.18 and by IMS Health Canada, Limited v
Information and Privacy Commissioner, 2005 ABCA 325, and other authorities, were the only
materials relevant to the Application. None of the requested documents fit into this category
and the Disclosure Application was denied.
BLYDO V ONE EXPLORATION INC, 2012 ABQB 153 (CANLII) (MASTER MASON)
The Plaintiff was in upper management at OneExploration Inc (“OneEx”). OneEx entered into a
transaction with TriOil Resources Ltd (“TriOil”), the terms of which stipulated that a new
management team would take over OneEx. Pursuant to the employment agreement in place
between OneEx and the Plaintiff, the Plaintiff was to receive a retiring allowance, as liquidated
damages for termination without cause. The transaction closed at the end of January.
In mid-December, the Plaintiff was offered a new position, during a conversation with the CEO
of TriOil. The new position would enable him to participate in a private placement. The Plaintiff
was told that accepting the position would not impact receipt of his retiring allowance. Prior to
the transaction closing, the CEO of TriOil advised the Plaintiff he would not be permitted to
commence the new position.
Issues were raised as to whether the Plaintiff was restricted to the dismissal benefits of the
initial agreement, whether the Plaintiff was entitled to participate in the private placement and
whether any oppression remedies existed. The Court found that the discussion concerning the
new position, held between the CEO of TriOil and the Plaintiff, resulted in the existence of
genuine issues for trial, with respect to all three issues.
In considering the Application for Judgment, the Court stated:
The bar on a motion for summary judgment is high. A party bringing a motion for
summary judgment bears the legal onus of showing no genuine issue for trial. It
must be “plain and obvious” or “beyond doubt” that the action will not succeed.
Summary judgment should not be granted if opposing affidavits clash on
relevant facts. A Justice or Master in chambers should not assess the quality and
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weight of the evidence, as this is a function reserved for a trial judge. [citations
omitted]
EDMONTON (CITY) V EDMONTON COMPOSITE ASSESSMENT REVIEW BOARD, 2012 ABQB 154
(CANLII) (GERMAIN J)
The Court referred to McCauley Community League v Edmonton (City), 2011 ABCA 327 and
Rendle v Edmonton (City) Development Appeal Board, [1995] AJ No 1169, as authority for the
proposition that the reasonable success threshold for leave to appeal an administrative
decision is very low and probably analogous to that of “…no reasonable claim or defence to a
claim”.
1400467 ALBERTA LTD V ADDERLEY, 2012 ABQB 155 (CANLII) (VEIT J)
The Applicants applied to set aside an interlocutory injunction that was granted without notice
on December 16, 2011. The Court held that the effect of the Application was that a fresh
hearing would take place to determine if the burden to establish an interlocutory injunction
was met. This Application took place two months after the initial injunction was granted. The
Court noted Rule 9.15(2) requires that Applications to vary a without notice Order must occur
within 20 days after the Order is brought to the Applicant’s attention. However, the Court held
that Rule 9.15 allows the Court to establish a different timeline, and it was appropriate to
amend the timeline as a prior Order consented to by the parties relieved the Defendants from
compliance with the deadline set in Rule 9.15(2).
The Court held that a cumbersome but correct way of outlining the test for when notice can be
avoided is:
…“undue prejudice that cannot be remedied by giving notice”, i.e. where the
requirement to give notice would defeat the whole purpose of the Application…
The Court held that the tri-partite test for an injunction was met in this case, and that the
Applicants in the without notice Application did disclose to the Court all relevant facts. If they
had not, this would be a ground for setting aside the injunction, even if it was otherwise
merited.
LYONS V BALDWIN, 2012 ABQB 156 (CANLII) (MASTER SMART)
The Plaintiff brought an Action against two Defendants, one of whom, Van Tassell, had been
retained as the Plaintiff’s legal counsel in a matter relating to the removal of a Lien registered
by the second Defendant. The Plaintiff claimed that Van Tassell failed to ensure that a Form of
Order prepared in relation to an Application before Justice Wilkins properly reflected the actual
terms of the Order. Van Tassell applied for Summary Dismissal.
Master Smart held that the Rule for Summary Judgment set out in Rule 7.3 operates in the
same manner as former Rule 159. Summary Judgment may be granted if the Court is satisfied
that there is no merit to a Claim, if the Action is bound to fail, if the Plaintiff does not raise a
genuine issue for Trial, or if the Claim has no reasonable prospect of success. Master Smart held
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that the Order was approved by Van Tassell ostensibly on the basis that certain comments by
Justice Wilkins were not a part of the substantive Order, but were merely obiter. However, the
Plaintiff led un-contradicted evidence that the interpretation and effect of those comments was
expressly brought to the Defendant’s attention by the Plaintiff. By the time the Plaintiff
obtained a copy of the Order, the Appeal period had expired. Master Smart held that she could
not conclude that there was no merit to the Plaintiff’s Claim, and dismissed the Application for
Summary Dismissal.
FULLER WESTERN RUBBER LININGS LTD V SPENCE CORROSION SERVICES LTD, 2012 ABQB 163
(CANLII) (LEE J)
The matter involved a former employee of the Plaintiffs, Norman Spence (“Spence”), who left
his employment with the Plaintiffs and began a competing company. The Plaintiffs brought a
Civil Contempt Application on the basis that Spence had deleted electronic records, and had
allegedly directed a third party to delete electronic records after a Document Preservation
Order had been issued. The Court held that there are both factual and mental components
required to prove Civil Contempt. The Court found that the Defendant was in Civil Contempt,
and held:
[I]t has been established beyond a reasonable doubt that Spence directed or
counselled a third party to destroy records relevant and material to the within
action, and that Spence’s material purpose in acting was to interfere with the
administration of justice.
GH V ALCOCK, 2012 ABQB 166 (CANLII) (THOMAS J)
One of the Defendants applied for Summary Judgement. Thomas J. stated that the relevant
principles for such an Application are set out in paragraph 17 of Murphy Oil Company Ltd v
Predator Corporation Ltd, 2004 ABQB 688. Further, Thomas J. relied upon Kwan v Superfly Inc,
2011 ABQB 343, Manufacturers Life Insurance Co v Executive Centre at Manulife Place Inc, 2011
ABQB 189, and BA Capital Inc v Stream Oil & Gas Ltd, 2011 ABQB 91, for the proposition that
Rule 7.3 operates in the same manner and follows the same legal principals as its precursor,
former Rule 159.
RHINO LEGAL FINANCE INC V SALMON, 2012 ABQB 169 (CANLII) (MASTER SCHLOSSER)
The Plaintiff applied to compel production of records from the Defendant lawyer that would
otherwise have been privileged or confidential. Records held by the Defendant were privileged
documents relating to his former client from a separate lawsuit.
Master Schlosser noted that Rule 5.8 is essentially a codification of the law in Dorchak v Krupka
(1997), 196 AR 81 (CA), which requires: (1) categorization, so that the type of objection can be
identified, and (2) numbering, so that it is possible to say categorically whether a given record is
disclosed. The Court required the Defendant to prepare a further and better Affidavit of
Records that complied with Rule 5.8.
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Because the Plaintiff sought records from a separate Action, the Master indicated that the
threshold for disclosure of information subject to the Implied Undertaking Rule (codified as
Rule 5.33) is quite high, since the interest in disclosure must outweigh the relevant privacy
value sought to be protected by the Implied Undertaking.
Master Schlosser pointed out that, although records on a lawyer’s file are physically tied to the
lawyer’s possession, they are not, arguably, within his “control” for the purposes of Rule 5.6(2).
In the context of this Application, “control” depended on privilege and belonged to the
Defendant’s former client. The Court concluded that if the Plaintiff wished production of these
records, it should apply pursuant to Rule 5.13 to have the client, who was the “source of the
confidentiality and privilege”, release control of the documents directly.
RICHARDSON V SHELL CANADA LTD, 2012 ABQB 170 (CANLII) (WITTMANN CJ)
The Applicant sought to enforce a Letter of Request (the “LOR”) from the United States District
Court for the District of Kansas, which would require the Respondent to produce a corporate
representative to answer questions upon Oral Examination concerning a number of topics
arising out of multi-state litigation in the United States.
Rule 6.24 permits the Court to authorize a LOR, or to make any Order that the Court considers
appropriate. Wittman C.J. referred to a number of cases to interpret Rule 6.24. These included
but were not limited to: United States District Court, Middle District of Florida v Royal American
Shows Inc, [1982] 1 SCR 414; CSI Wireless LLC v Harris Canada Inc, 2003 ABQB 610, R v Zingre,
[1981] 2 SCR 392, and Presbyterian Church of Sudan v Talisman Energy Inc, 2005 ABQB 920.
Wittmann C.J. referred to the following six factors that Canadian Courts adhere to in
responding to a LOR:
1.
Whether the evidence sought to be obtained is relevant;
2.
Whether the evidence sought to be obtained is necessary for a Trial or for
Discovery;
3.
Whether the evidence is otherwise available through some other source;
4.
Whether any documents requested have been identified with reasonable
precision;
5.
Whether there is any public policy reason to refuse the request; and
6.
Whether the LOR requests an activity which would place an undue
burden on a proposed witness or witnesses, having regard to the nature
of the testimony requested.
His Lordship indicated that the Court is not reluctant to narrow the scope of a LOR, nor is it
inclined to require a revised LOR before it considers the merits of what is being requested.
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Wittmann C.J. indicated that failing to show that the evidence is sought only for Trial purposes
is not fatal; this is one factor to be considered along with all of the other factors. The Court also
determined that a reviewing Court receiving a LOR cannot help but look at the evidence sought
through the lens of relevancy. Wittmann C.J. significantly narrowed the LOR in this case, given
that a close examination of the LOR revealed a request for an extremely broad scope of Oral
Examination.
In concluding as the Court did, Wittmann C.J. noted that discovery evidence under Rule 5.2
must be “relevant and material”. The Court stressed that the key word in Rule 5.2 is
“significantly”.
WIENS v DEWALD, 2012 ABQB 172 (VEIT J)
The Defendants appealed the Decision of Master Laycock to not strike the proceedings under
the “drop dead” Rule. The “drop dead” date was April 25, 2011, and an Application to impose a
Litigation Plan was set for April 21, 2011. The Application was set over to May 18, 2011 and the
Parties agreed that this adjournment could not be used to dismiss the Action pursuant to Rule
4.33.
In the May 18, 2011 Application, Master Laycock made an Order implementing a Litigation Plan
that set dates, outside of the “drop dead” date, for responses to Undertakings, questions in
relation to those responses and the filing of a Form 37.
Veit J. found that Master Laycock erred in finding that a Litigation Plan in a standard case is a
required step and thus materially advances the Action, because in a standard case a Litigation
Plan is optional. However, Veit J. noted that Master Laycock had continued the analysis to
determine if the Action had been significantly advanced, and that the decision of Master
Laycock was reasonable.
Veit J. found that the Action was significantly advanced by setting dates by which Questioning
on answers to Undertakings would be completed and a Form 37 would be filed. Veit J. noted
that a specific exception in Rule 4.33 is when the delay is provided for in a Litigation Plan.
CLIFF V CLIFF, 2012 ABQB 174 (CANLII) (VEIT J)
The Plaintiff applied for relief from the obligation to participate in the mandatory Dispute
Resolution Process, on the basis that the Defendant had been convicted of assault against the
Plaintiff, the Defendant was self-represented, and that the Defendant had not provided
sufficient disclosure. Veit J. stated that where one party has been convicted of assault against
another party, waiver of the requirement to participate in the Dispute Resolution Process may
be provided. However, in circumstances where the party who was a victim of an assault is
represented by counsel, there is no risk to that party by participating in the Dispute Resolution
Process. Further, because the dispute with the Defendant was regarding money, Veit J. found
that the Applicant would not suffer any emotional or mental detriment from participating in
Dispute Resolution with the Defendant. Veit J. also held that not having legal counsel and poor
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disclosure are not sufficient reasons for waiving Dispute Resolution. The Application was
dismissed.
VAN CAMP V CHROME HORSE MOTORCYCLE INC, 2012 ABQB 175 (BURROWS J)
The Court disagreed with other decisions that have interpreted Rule 6.14, including Janvier v
834474 Alberta Ltd, 2010 ABQB 800 (“Janvier”).
Justice Burrows considered the “constitutional foundations of the respective jurisdictions of a
Judge and a Master”. The Court indicated its agreement with Stevenson & Côté’s Alberta Civil
Procedure Handbook(the “ACPH”) 2011 (at p 6-44)wherein the authors indicate that the new
Rule is substantially the same to the old Rule. The Court agreed with what is said in the ACPH,
namely, that an Appeal from a Master is de novo and Justices of the Court of Queen’s Bench
can use their discretion afresh and substitute their view for the Master’s view. According to the
ACPH, “[t]he test is whether the Master was correct. There is (in a sense) no standard of
review.”
395545 ALBERTA LTD (APPOLLO DRUGS AND HERBS) V TELUS COMMUNICATIONS INC, 2012
ABQB 184 (MASTER BREITKREUZ)
The Plaintiff applied to add another party as a Plaintiff under Rule 3.73. The proposed Plaintiff
was incorporated a year before the Statement of Claim was issued, but was not included as a
Plaintiff when the Claim was filed. The proposed Plaintiff carried on business under the same
trade name as the Plaintiff and both companies had the same controlling mind behind them.
The issue in the Application was whether or not the Limitations Act, RSA 2000, c L-12, barred
the addition of the proposed party as a Plaintiff. Master Breitkreuz held that the proposed
Plaintiff was a sister company to the Plaintiff and granted the Application.
LAMEMAN V ALBERTA, 2012 ABQB 195 (BROWNE J)
The Applicant applied pursuant to old Rule 129(1), now Rule 3.68, to strike portions or all of the
Plaintiff’s Amended Statement of Claim. Because the Application was filed but not heard prior
to the new Rules coming into force, Browne J. applied Rule 15.12 and held that the Application
would be pursuant to Rule 3.68. Furthermore, Browne J. stated that the new and old Rules are
of similar effect, and relied on the case law established under Rule 129(1). However, in applying
the case law, Browne J. also relied on Rule 1.2 in order to achieve a timely and cost effective
resolution of the matter. Upon a review of the facts and case law, Browne J. held that it was not
plain and obvious that the claim would not succeed. The Application was partially successful as
two paragraphs from the Amended Statement of Claim were struck, but the remaining
paragraphs were left to stand.
HUNKA V DEGNER, 2012 ABQB 207 (GILL J)
The Plaintiffs brought an Application for leave to amend the Statement of Claim to include
alleged oppressive acts by the Defendants. Citing Manson Insulation Products Ltd v Crossroads
C and I Distributors, 2011 ABQB 51, Gill J. held that the test for amending pleadings is the same
as that under the former Rules: pleadings may be amended, no matter how careless or late the
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party seeking to amend is, with four exceptions. First, an amendment will not be allowed where
it would cause serious prejudice that is not compensable in costs. Second, an amendment will
not be allowed if it is hopeless. Third, an amendment will not be allowed where, unless
permitted by statute, it seeks to add a new party or new Cause of Action after the expiry of a
limitation period. Fourth, an amendment will not be allowed where there is bad faith
associated with the failure to plead the amendment in the first instance. If no exception
applies, the pleadings can generally be amended. Gill J. granted the Application to amend the
Statement of Claim and held that there was sufficient evidence capable of supporting the
Plaintiffs’ allegations.
BROWN V BROWN, 2012 ABQB 214 (GRAESSER J)
The Applicant sought an Order to set aside a previous Order that gave her ex-spouse (the
Respondent) leave to make an Application to vary the existing spousal support Order. The need
for leave existed because of a prior Order that indicated, “[n]either party is entitled to bring any
further applications before the Court without leave.” The Order granting leave was granted in
the absence of the Applicant.
There was also an existing Order that allowed for Notice of an Application to be served on the
respective parties’ residences by registered mail. The Applicant was served in the manner
mandated. However, the Applicant maintained that Notice of the Application was not properly
served on her. The Applicant swore an Affidavit indicating that the Respondent knew she was
away and took advantage of this absence.
The Court noted that pursuant to Rule 9.15 it “clearly had jurisdiction to revisit an order
granted in the absence of the other party.” It was determined that Ms. Brown did not have
sufficient notice of the Application, despite having been served Notice of the Application
pursuant to the previous Order. Given the history of the matter, it was found that had the
Applicant been aware of the Application, she would have attended in opposition.
The Court indicated that the purpose of the Order mandating that leave be sought before
bringing an Application was intended to allow the Court to act as a gatekeeper, to prevent
unnecessary and frivolous Applications.
In this case, the Court saw no reason to treat a leave Application any different than an
Application for leave to Appeal under the Rules of Court. It was then noted that “a reasonably
arguable case” is required when requesting leave to the Court of Appeal. The Court then
analysed whether or not the Respondent’s Spousal Support Review Application was reasonably
arguable. Ultimately, the Order granting the Respondent leave was stayed. It was stayed
pending the delivery of specified disclosure that would help determine whether or not the
Respondent’s request for leave was reasonably arguable.
WEATHERFORD CANADA PARTNERSHIP V ADDIE, 2012 ABQB 215 (SHELLEY J)
The Applicants sought production of certain records that the Respondent refused to produce.
Specifically, the Applicants sought an Order directing the Respondent to produce un-redacted
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versions of certain records and to produce any further relevant and material records in its
possession.
Shelley J. held that relevance and materiality are tied to the scope of the pleadings, because the
pleadings define the issues between the parties. However, Shelley J. further held that Courts
should not be overly strict in assessing relevance and materiality in interlocutory proceedings.
It will be sufficient if counsel can disclose a rational strategy in which the disputed document
has a role.
Parties to an Action have an obligation to produce all relevant and material records. A party’s
obligation to produce records is not contingent upon the opposing party identifying what
records it thinks are in the possession of the other. Further, inconvenience and expenditure of
effort are not acceptable reasons for delaying or refusing production. Moreover, disclosure
does not bar further disclosure, and records that are relevant and material cannot be held back
on the basis that they contain similar information to records already produced. Shelley J. found
that the records sought by the Applicants were relevant and material to the litigation and
ordered disclosure.
MURPHY V CAHILL, 2012 ABQB 220 (LEE J)
The Applicants sought an Interim Receivership Order. The Respondents requested an
Adjournment to allow for Questioning in relation to the Affidavits that were submitted in
support of the Application. The Court held that case law from old Rule 314 (1) was applicable in
determining the application of Rule 6.7. The Court canvassed past case law and cited the
following exceptions for not allowing Cross-Examination on an Affidavit:
(a)
the examination would be frivolous;
(b)
the examination is only to forestall the proceedings; or,
(c)
the delay caused by the adjournment would put property at risk.
The Court allowed the Adjournment holding that none of the exceptions were met.
(GRAESSER J)
This matter consisted of two related Actions that arose out of a fire that destroyed an
apartment complex. The Plaintiff owners brought the first claim against the security services
provider, its insurer and insurance broker. Two days prior to the expiration of the limitation
period, the Plaintiffs filed a second claim against one of the same Defendants under a new
cause of Action. The Plaintiffs did not serve the second claim for nearly a year. Once the second
claim was served, the Defendant in the second Action brought an Application to strike the
Plaintiffs’ claim pursuant to Rule 3.68, and argued that commencing a second Action for a single
wrongful act was an abuse of process. The Plaintiffs brought an Application to consolidate the
two Actions, pursuant to Rule 3.72.
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Graesser J. stated that while the parties were the same, the contract was the same, and the fire
loss was the same, the mechanism of the loss was different between the two Actions. As such,
it was a reasonable strategic decision to issue a new Action, and it was not an abuse of process.
Furthermore, the decision not to serve the second claim for almost a year was arguably an
abuse of process, but was something that could be completely addressed by Costs. The
Application to strike the claim was dismissed.
The Defendants argued that the Application to consolidate the two Actions should be denied
because the Plaintiffs had failed to provide any evidence in support of the Application. Graesser
J. held that while an Application to amend a claim required evidence, an Application to
consolidate two claims did not. Despite this, the Application to consolidate was also dismissed,
and the Court Ordered that the Actions be tried at the same time or one after another, as may
be directed by further Order of the Court.
GAYTON V RINHOLM, 2012 ABQB 232 (BROOKER J)
The Defendant, an emergency room physician, sought Summary Judgment dismissing the
Plaintiff’s claim against him. The Applicant filed an Expert Report which stated that he had met
the standard of care of an emergency room doctor practicing in Alberta. The Plaintiff also filed
an Expert Report, which stated that the Applicant breached the relevant standard of care.
Citing Sima v Hui, 2008 ABQB 104, Brooker J. held that Summary Judgment is appropriate
where it is plain and obvious that an Action cannot succeed. Brooker J. further held that the
initial onus is on the Applicant to demonstrate that there is no genuine issue for Trial. Once this
threshold has been met, the onus shifts to the Respondent to establish that the claim has a real
chance of success. The Respondent cannot merely rely on allegations in the pleadings or on the
possibility that more evidence may be available at Trial. If the Respondent fails to come forward
with evidence to prove a meritorious case, Summary Judgment will be granted. In the context
of medical malpractice cases, Brooker J. held that there may be an onus on a Respondent to
provide expert evidence to support the claim in a Summary Judgment Application.
Brooker J. held that liability could be established against the Applicant if the Respondent could
prove on a balance of probabilities that his conduct fell below the appropriate standard of care,
which was that of a reasonably competent emergency room physician practicing in Alberta.
Brooker J. held that expert opinion proffered on behalf of the Plaintiff, that the Applicant
breached the standard of care, was of no weight because the expert had no expertise as to the
appropriate standard of care in Alberta. As such, the Respondent had no proper evidence
before the Court to support her allegation that the Applicant’s conduct fell below the standard
of care. In the face of expert evidence that the Applicant’s conduct met the relevant standard
of care, the Respondent’s claim against the Applicant was bound to fail. As such, the
Application was allowed and Summary Judgment was granted.
OW V WP, 2012 ABQB 252 (MAHONEY J)
In early 1999, the Plaintiff filed a Statement of Claim alleging she had been sexually assaulted
by the Defendant in the 1940s. The Defendant brought an Application for Summary Dismissal
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pursuant to Rule 7.2(a), arguing that admissions made by the Plaintiff in Questioning
demonstrated that the limitation date for bringing her Action expired long before she filed her
Statement of Claim. The Plaintiff argued that limitation date calculations in sexual assault cases
are nuanced and are not appropriate for Summary Dismissal.
Mahoney J. held that the Plaintiff’s admissions during Questioning demonstrated that she
appreciated the causal link between her injuries and the alleged sexual assault decades before
she filed her Statement of Claim. The limitation date started to run when she became aware of
this causal link. Mahoney J. held that even if he took the latest possible time at which the
Plaintiff could have become aware of the causal link, the limitation date would have expired in
1974. Given that the Plaintiff’s Action was commenced 25 years later, Mahoney J. held that the
Plaintiff’s Action was statute barred. As such, the Application for Summary Dismissal was
granted.
The Plaintiff further argued that the Defendant had a non-party, his son and Power-of-Attorney,
swear an Affidavit in support of his Application, but the Affiant refused to answer questions
that were relevant to the Application. Mahoney J. held that the Rules do not provide that only
parties can file Affidavits. Rather, the Affiant, in his role as Attorney, was simply putting facts
before the Court by attaching excerpts from transcripts of the Questioning of the Defendant.
Mahoney J. held that Rule 2.13 provides for such a procedure and, as such, nothing unfair or
improper was done in filing the Affidavit.
BOTAN (BOTAN LAW OFFICE) V ST. AMAND, 2012 ABQB 260 (MICHALYSHYN J)
The Defendant sought Costs against the Plaintiff law firm, after the Plaintiff had advanced a
claim for $106,250.00, but only received a Judgment of $5,250.00, and after the Defendant had
previously made an informal offer of $10,000.00.
The Court awarded Costs to the Defendant, and made the following findings in obiter:
(a) should the Plaintiff have received Costs, those Costs would have been
reduced by 25% as the amount of the Judgment fell within the limit of the
Civil Division of the Provincial Court of Alberta: Rule 10.42;
(b) Rule 10.22 ensures “that no lawyer will take a legal judgment for fees against
a client without a frank and clear review of that judgment by the Courts”;
and,
(c) Rule 10.50, which allows Costs to be awarded against a lawyer, can be
punitive, whether intentional or not.
OLEYNIK V UNIVERSITY OF CALGARY, 2012 ABQB 286 (VEIT J)
The self-represented Applicant objected to the Respondent’s unilateral request to the Court
that a form of Order representing a decision be signed by Veit J. The Respondent had sought a
waiver of Rule 9.2(2), given the history of the matter and the Respondent’s inability to obtain
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comments from the Applicant related to previous Orders. The Respondent had written directly
to the Court seeking such a waiver, and had provided the Applicant with a draft Order at that
time. The Applicant did not specify any particular complaint with the substance of the proposed
Order, but instead asserted that the Rule 9.2(2) procedure was not followed by the
Respondent. The Applicant informed the Court that he would not be able to appear in front of
Veit J. for a number of months to resolve the contents of the form of Order.
The Court indicated that parties may apply to the Court to resolve a dispute (pursuant to Rule
9.3), but that in this particular case it was not clear whether there was a dispute about the
contents of the draft Order. Although the Respondent had relied on Rule 9.4(2)(c) in its request
that Veit J. sign the form of Order, Veit J. noted that, strictly speaking, this was not a Rule
9.4(2)(c) situation, in which a party might request that a Clerk of the Court sign an Order. The
Court also pointed out that when a Justice is asked to sign a form of Order, while the time limits
in Rule 9.2(2) may not apply, the process of consultation set out in Rule 9.2(2) does apply in
principle.
In the circumstances of this case, given the timeline of communication between the Applicant
and Respondent as it related to the form of Order, the Court was not concerned with any
procedural unfairness to the Applicant. Veit J. signed the form of Order as presented,
concluding that the Court was acting in the interest of achieving a timely and cost-effective
resolution of the matter.
NETTE V STILES, 2012 ABQB 290 (BELZIL J)
A stranger to the Action sought an Order to add its name as a Party to the Action. The Court
indicated that Rule 3.74(2)(b) governed the Application, but found that on a plain reading of
that Rule, the Application could only be made by an existing Party to the Action. Belzil J.
concluded that the non-party was unable to invoke Rule 3.74(2)(b) to add itself as a Party to the
Action.
ABQB 291 (LEE J)
Judgment had previously been given regarding two Judicial Reviews. One of the parties, Dr.
Oleynik, then sought a stay of the proceedings, and the University sought to dispense with the
requirement that Dr. Oleynik approve the Order before filing of the Order.
As Dr. Oleynik was to be out of the country, he may have sought a stay of proceedings so that
he could file an Appeal within the time limitations. However, he did not expressly make that
request and the Court held that it would not be an appropriate basis for a stay in any event.
Further, the Court directed that there was no need for a stay of proceedings and there was no
need to obtain Dr. Oleynik's approval for the Order as the Court was prepared to approve the
Order pursuant to Rule 9.4(3).
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DONOGHUE V JOHNSON, 2012 ABQB 295 (MAHONEY J)
The Plaintiffs applied to have their Statement of Claim amended after the close of pleadings,
pursuant to Rules 3.62 and 3.65. Mahoney J. recognized that the Courts have previously held
that the test for amending pleadings is the same as it was under former Rule 132. An
amendment should be allowed, no matter how careless or late, unless there is prejudice to the
other side, and even that is no obstacle if the harm can be repaired.
The Defendant argued that the amendments should not be allowed because they were
hopeless. Mahoney J. held that a proposed amendment is not hopeless if it raises a triable
issue and there is a modest degree of evidence in support of it. The Application to amend the
Statement of Claim was granted.
BAKER V BAKER, 2012 ABQB 296 (LEE J)
On April 5, 2012, an Application was brought in Family Chambers at which the Respondent
failed to appear. An Order was granted reflecting that the Respondent had failed to appear,
although properly served, and the Applicant received a $5,000 credit towards his Maintenance
Enforcement Program obligations, representing the apparent overpayment of certain Section 7
expenses.
Three weeks later, counsel for the Respondent advised the Court that his client received a copy
of the Order, but was never properly served with the Application. The Respondent argued that
the Applicant was acting on his own behalf and had sent the Respondent unfiled documents
related to the Hearing. Because such documents could be changed, altered or revised before
they were filed and became a part of the Court record, counsel for the Respondent argued that
he was justified in not responding on behalf of the Respondent. The Applicant argued that he
served the Respondent by delivering a Notice and sworn Affidavit, which he received back from
the Clerk of the Court, to the office of the Respondent’s counsel more than three weeks prior to
the Application return date.
Lee J. held that the Applicant failed to adequately address the allegations made by the
Respondent, particularly whether filed copies of documents were served. If unfiled documents
were served, the Applicant did not comply with Rule 6.3(3).
Lee J. further held that Rule 9.15(1) provides that the Court may set aside, vary or discharge a
Judgment or Order where it was made without Notice to one or more Parties. Lee J. held that it
was clearly the Respondent’s intention to challenge the Application and, as such, the nonappearance by the Respondent’s counsel at the April Hearing was an accident or mistake as
contemplated in Rule 9.15(1)(b). Lee J. concluded that the Respondent should have the
opportunity to respond to and challenge the Application, notwithstanding the accident or
mistake that occurred. As such, Lee J. vacated his Order and remitted the matter to Family Law
Chambers.
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BANK OF MONTREAL V COCHRANE, 2012 ABQB 297 (HAWCO J)
The Plaintiff brought a Claim against a number of Defendants, alleging that they were involved
in obtaining over 60 fraudulent mortgages on which the Plaintiff suffered losses in excess of
$8.7 million. The Plaintiff took a number of steps to attach some of the Defendants’ properties
in Lebanon, which had allegedly been purchased with the fraudulent mortgage funds. The
Plaintiff succeeded in obtaining a “Precautionary Attachment” against nine properties in
Lebanon. Those Defendants hired Lebanese counsel to challenge the Precautionary
Attachment, but the challenge was not successful.
The Defendants were served with the Statement of Claim by way of Substitutional Service. The
Defendants failed to file a Statement of Defence and Default Judgment was entered. The
Defendants subsequently brought an Application to have Default Judgment set aside, arguing
that they were not aware of the Plaintiff’s Claim until after Default Judgment had been entered.
Hawco J. held that in an Application to set aside a Default Judgment pursuant to Rule 9.15(3),
the Court considers whether there was an adequate explanation as to why the Statement of
Defence was not delivered, whether there was any delay in applying to set aside the Default
Judgment, whether there was a satisfactory explanation for any delay, and whether the
material disclosed a meritorious defence or triable issue. However, Hawco J. held that these
requirements should not be applied rigidly, but with an eye to fairness.
Hawco J. held that documents filed by the parties, including by the Defendants, suggested that
the Defendants were aware of the Statement of Claim and the specific allegations against them
earlier than they suggested. The Defendants were aware of the Statement of Claim shortly after
it was filed, and delayed taking any steps for five months without a satisfactory explanation.
Moreover, the Defendants took no steps to set aside the Default Judgment for a month after it
was obtained. In this context, Hawco J. held that the Defendants did not meet any of the
criteria that must be proven to set aside a Default Judgment pursuant to Rule 9.15(3).
Hawco J. further held that the conduct of the Defendants did not suggest an effort to act in
good faith. Rather, the Defendants appeared to have ignored what had occurred in Alberta and
attempted to seek protection through the judicial system in Lebanon. When they failed, they
redirected their efforts to Alberta. Hawco J. held that if the Defendants could demonstrate
good faith by proffering an irrevocable letter of credit in the amount of $700,000.00 within one
month of the date of his Decision, the Default Judgments would be set aside and the
Defendants would have leave to file a Statement of Defence. However, if the Defendants failed
to do so, their Application would be dismissed without further notice.
WARDILL V PEEBLES, 2012 ABQB 303 (MASTER SMART)
The Applicants sought to set aside an exparte Order that extended the time for service of the
Statement of Claim. The Court held that Oberg v Foothills Provincial General Hospital, 1999
ABCA 76, is still applicable and thus the threshold to obtain an extension is low. However, in
obiter, the Court reasoned that to give meaning via Rule 1.7 to Rule 3.26 extensions should not
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be granted as a matter of course; if extensions are automatically granted the time for service
may as well be 15 months. The Application to set aside the ex parte Order was dismissed.
UNITED FOOD & COMMERCIAL WORKERS CANADA UNION, LOCAL 401 V NORTH COUNTRY
CATERING LTD, 2012 ABQB 306 (GOSS J)
The Applicant requested that the Court quash a decision of the Alberta Labour Relations Board
(“Board”). The Respondent included in its authorities materials relating to the procedural
history that occurred after the Board rendered its decision. The Court cited Alberta Liquor
Store Assn v Alberta (Gaming and Liquor Commission), 2006 ABQB 904, for the following
propositions:
(a)
the general rule is that Judicial Reviews are conducted based on the
return filed by the Tribunal;
(b)
additional Affidavits and evidence are admitted in exceptional
circumstances;
(c)
evidence not before the Tribunal, relating to the merits of the decision, is
not permitted on Judicial Review; and,
(d)
a Tribunal’s decision cannot be rendered unreasonable by referring to
matters that were never put before it.
The Respondent did not apply via Rule 3.22 to have the new evidence admitted. Accordingly,
the Court declined to consider the material that was not available to the Board at the time of its
decision.
ROYAL BANK OF CANADA V LEVY, 2012 ABQB 310 (ROMAINE J)
The Plaintiff advanced a Claim against a number of Defendants on the basis that they had
participated in or executed real estate transactions that defrauded the Plaintiff Bank of
mortgage loan proceeds. The Plaintiff brought concurrent Applications to strike portions of the
Statements of Defence of certain Defendants, and for Summary Judgment with respect to
certain Defendants and properties identified in the Statement of Claim.
Pursuant to Rule 3.68, the Plaintiff applied to strike parts of the Statements of Defence of
certain Defendants on the basis that those portions were frivolous, irrelevant or improper, and
did not disclose a reasonable defence to a Claim. Romaine J. held that Rule 3.68 was similar to
former Rule 129, and is to be interpreted in accordance with Rule 1.2, to fairly and justly
resolve Claims in a timely and cost-effective way. Romaine J. further held that Rule 1.2 does not
sacrifice due process for efficiency. Citing First Calgary Savings and Credit Union Limited vPerera
Shawnee Limited, 2011 ABQB 26, Romaine J. held that the test to be applied in an Application
under Rule 3.68 is whether it is plain and obvious that there is no reasonable defence to a
Claim. In making such a determination, the Court must assume that all allegations of fact in the
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Statement of Defence are true, and then determine whether those facts disclose a defence to
the claim.
The Plaintiff also applied for Summary Judgment pursuant to Rule 7.3, citing the two-step test
set out in Eng vEng, 2010 ABCA 19. This test provides that the Plaintiff bears the evidentiary
burden of proving its cause of action on a balance of probabilities. The evidentiary burden then
shifts to the Defendant who can avoid Summary Judgment by proving that there is a genuine
issue for Trial. Romaine J. held that the Plaintiff had established a prima facie claim, and the
evidentiary burden therefore shifted to the Defendants to demonstrate that there was a
genuine issue to be tried. Romaine J. held that, with respect to a number of the Defendants,
she was satisfied that there were legally relevant facts which were disputed and could not be
summarily disposed of. As such, Romaine J. refused Summary Judgment with respect to a
number of Defendants, and dismissed the Application to strike the pleadings of those
Defendants. She reserved her decision with respect to the Summary Judgment Application of
one Defendant, and granted Summary Judgment against another Defendant who failed to
appear or make submissions.
NIXON V TIMMS, 2012 ABQB 315 (ACTON J)
A process server swore an Affidavit of Service stating that he personally served the Statement
of Claim on the Defendant. The Plaintiff subsequently obtained Default Judgment. Upon
discovering that an enforcement agency was attempting to enforce the Default Judgment, the
Defendant retained a lawyer and claimed that he was never served and had no knowledge of
the Claim. The Defendant applied for a Declaration that the Statement of Claim had expired, or
in the alternative, for an Order setting aside a Default Judgment pursuant to Rule 9.15(3).
After reviewing the viva voce evidence of the Defendant, the process server, and a tenant of a
property which was the subject matter of the dispute, Acton J. determined that the Defendant
was never served with the Statement of Claim. Rather, the Claim was served on a tenant of the
subject property.
The Defendant argued that the Statement of Claim had expired, and relied on Rule 11 of the
former Rules, which were in force when the Statement of Claim was filed. Rule 11 provided that
a Statement of Claim was in force for a period of 12 months after it was issued. The Defendant
argued that the Statement of Claim was not served within this 12 month period and, as such,
had expired. For all intents and purposes, the Action was “dead” and any steps taken after the
expiry of the Statement of Claim were void or ineffective.
The Rules require a commencing document to be served personally (Rules 3.26(a) and 11.5(a)).
However, the Plaintiff was operating on the understanding that he had effected personal
service on the Defendant. In this context, Acton J. held that the issue was whether a Statement
of Claim can become a nullity unbeknownst to a Plaintiff who acts in good faith and proceeds in
accordance with the Rules, until a Declaration is made that service is not in order.
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Under the former Rules, an expired Statement of Claim was not a nullity and could be revived in
a number of circumstances. Former Rule 11 was replaced by Rule 3.27, which provides that the
Court may extend the time for service in extraordinary circumstances that exist by virtue of the
conduct of a person who is not a party to the Action. Rule 3.27 specifically contemplates the
kind of unusual consequence of a false Affidavit upon which an entire case would stand or fall.
Rule 3.28 sets out the effect of a failure to serve a Statement of Claim within the one year time
limit, and provides that if a Claim is not served in time, no further proceeding may be taken
against the Defendant who was not served in time. In such circumstances, it was more
appropriate to describe the Action as suspended rather than struck or dead.
Acton J. held that given the extraordinary circumstances, and pursuant to Rule 3.27, it was
reasonable to extend the time for service of the Statement of Claim to the date of her Decision.
Acton J. held that such an extension would not prejudice either Party, because the Defendant
was able to defend on the merits of the Claim even if the time for service was extended.
GLADUE V ALBERTA (ATTORNEY GENERAL), 2012 ABQB 319 (VEIT J)
The Applicant sought Costs against the Edmonton Police Service for a variety of steps he took to
advance his case. The Action was commenced by Originating Application, and the Court noted
that the form applicable to Rule 3.8 stated what information must be provided on an
Originating Application. The Court observed that Rule 3.8 does not state whether Briefs are
required at an Originating Application.
The Applicant had filed 3 Briefs. The Court stated that, although the Applicant was required to
prepare a brief for the special Application, filing 3 briefs was exceptional and would be at the
upper limit for a Costs Claim. However, due to the difficulties which the Applicant had in having
the matter heard in an expeditious way, it was acceptable that new Briefs were prepared as
circumstances changed.
The Applicant also sought Costs for an adjournment Application which he opposed and lost. The
Court declined to grant him Costs regarding the Application, stating:
The court probably does not have jurisdiction to grant costs with respect to an application
which Mr. Gladue unsuccessfully opposed before another judge: R. 10.29(1) suggests that Mr.
Gladue is already liable for costs to Canada for having unsuccessfully opposed its motion for an
adjournment of the hearing. …
The Applicant’s claim for Costs was varied by awarding a lower amount in accordance to what
was typically granted by Assessment Officers.
ROYAL BANK OF CANADA V LEE, 2012 ABQB 320 (MASTER WACOWICH)
The Plaintiff filed a claim against the Defendant mortgagor seeking foreclosure on a mortgage
between the two parties. The Defendant’s Statement of Defence and Third Party Notice alleged
that Third Parties, including a bank employee, had fraudulently induced him to execute the
mortgage.
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The Plaintiff filed an Application for Summary Judgment. The Court referred to and relied on
prior mortgage fraud cases that found that where there is possible involvement of or
misrepresentation by the Plaintiff bank in the fraud, by a bank employee or agent, Summary
Judgment may be denied. Further, the Court may refuse Summary Judgment if the Plaintiff
bank does not provide any evidence in reply to an allegation that its employees or agents had
knowledge of and participated in the fraud.
In the circumstances of this Action, the Plaintiff bank offered no denial to allegations from the
Defendant that its employee helped to perpetrate the mortgage fraud. As a result, the Court
dismissed the Summary Judgment Application because it was not clear that there were no
genuine issues for trial.
TORONTO DOMINION BANK V LETENDRE, 2012 ABQB 323 (MANDERSCHEID J)
This was an Appeal of a Master’s Decision. The Appellant was the second encumbrancer on the
Defendant’s property title. The first encumbrancer had already proceeded through a
Foreclosure Action and had been paid out for the amounts and related costs under a mortgage.
The Appellant brought an Application before the Master, claiming an interest in the remaining
funds from the sale of the property, which had been paid into Court. The Defendant did not
respond to that Application, but a subsequent encumbrancer on title (the “Respondent”)
opposed the Application for payout on the basis that the Appellant was statute barred from
bringing a Claim pursuant to the Limitations Act, RSA 2000, c L-12.
One of the central questions in the Appeal was whether the Respondent, who was not a
Defendant in the Foreclosure Proceeding, could invoke the protection afforded in the
Limitations Act. Rule 3.77 does not permit a subsequent encumbrancer to be a party to an
Action unless possession is claimed from the subsequent encumbrancer. Manderscheid J.
indicated that, from both a policy and interpretation perspective, it would be counterproductive for Rule 3.77 to prescribe on one hand, that a Plaintiff in a Foreclosure Action must
not make any subsequent encumbrancer a party to the claim (save certain special
circumstance) and, in another breath, for the subsequent encumbrancer to turn around and
commence a separate Foreclosure Action in respect of the same mortgaged lands as a Plaintiff
against the same Defendant debtor in the first Foreclosure Action. For this reason and others,
the Respondent’s limitation argument failed.
CHAN V CALGARY REMAND CENTRE, 2012 ABQB 325 (MASTER SCHLOSSER)
The Applicants brought three Applications to dismiss three separate Actions for long delay.
The Respondent argued that the delay occurred because it was too dangerous to proceed to
Questioning, as the police had advised that a criminal gang intended to murder the Plaintiff and
anyone in the vicinity of the Plaintiff was in danger. The Court held that this did not constitute a
Standstill Agreement. Additionally the Court held that other steps could have been taken or
precautions could have been implemented to allow Questioning to take place. Two of the
Actions were dismissed.
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In the third Action, there was not a 5 year gap. The Plaintiff served an Affidavit of Records
during the 5 year period. The Respondent argued that the Affidavit of Records was a blank
record (there were no records listed), and thus it was not a completed step.
The Court held that the Rules specifically allow for this situation (Rule 5.6 (3)), and the
Application was dismissed. The Court also Ordered that the Plaintiff would have to obtain leave
of the Court before filing a further and better Affidavit of Records.
HERITAGE STATION V SHARIFZADEH, 2012 ABQB 338 (MANDERSCHEID J)
The Defendant Appealed a Default Judgment granted in an ex-parte Application pursuant to
Rule 3.37. As a preliminary question, Manderscheid J. addressed whether or not the Court had
jurisdiction to hear the Appeal. The Court stated that an Appeal of a Master’s Decision of an ex
parte Application should be directed back to the Master. Manderscheid J. granted the Appeal
and set aside the Default Judgment and directed that the matter be returned to Master Mason
for a fresh assessment of the damages.
JR V UNIVERSITY OF CALGARY, 2012 ABQB 342 (READ J)
At Trial, Read J. held that the Defendant did not negligently or intentionally cause the Plaintiff
mental suffering either through its behaviour or in the manner of the Plaintiff’s dismissal from
employment. Further, it was not reasonably foreseeable to the Defendant that its actions in
dismissing the Plaintiff would cause the Plaintiff mental distress.
At paragraph 200 of the written Judgment, Read J. considered the question of whether the
social worker who diagnosed the Plaintiff as suffering from PTSD was properly qualified to give
opinion evidence of that diagnosis. After finding that the social worker was only qualified as an
expert in social work with clinical experience in the treatment and trauma of PTSD, the Plaintiff
argued that the scope of the social worker’s qualification could be expanded by use of the “slip
rule” found in the Rules. It was argued that failure to qualify the social worker as an expert in
the diagnosis of PTSD was an accidental omission that could be cured by the Rules; however,
Counsel was unable to cite the exact Rule number relied on. Read J. noted that the only Rule
that fit the definition of a “slip rule” is Rule 9.12; however, this Rule only applies to Judgments
and Orders, not procedural steps at Trial. Based on this, Read J. held that the “slip rule” did not
assist the Plaintiff’s argument to expand the social worker’s qualification.
1985 SAWRIDGE TRUST V ALBERTA (PUBLIC TRUSTEE), 2012 ABQB 365 (THOMAS J)
The Applicant applied to have the Public Trustee of Alberta (the “Public Trustee”) appointed as
the Litigation Representative for a group of minors potentially affected by proposed changes to
the 1985 Sawridge Trust (the “Trust”), which was to be amended as a consequence of
amendments to the Indian Act relating to Band membership.
Rule 2.11 states that a person under 18 years of age must have a Litigation Representative to
participate in an Action, and Rule 2.15 grants the Court authority to appoint a Litigation
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Representative for these individuals. Rule 2.16 mandates that a Litigation Representative is
required where the membership of a trust is unclear.
In applying Rule 2.16, Thomas J. appointed the Public Trustee as Litigation Representative for
the minors because the number of potentially affected minors was unclear, namely, the
children of applicants seeking to be admitted into membership of the Sawridge Band. The Court
concluded that the affected minors under the Trust were persons who could have been readily
ascertained, and that their interests may have been at risk. For this reason, the Court charged
the Public Trustee with determining which minors were affected by the amendments to the
Trust, and enforcing their legal rights once they were identified.
PANICCIA ESTATE V TOAL, 2012 ABQB 367 (SHELLEY J)
In a medical malpractice Action, Justice Shelley concluded that the Defendant doctor was
negligent and had caused the Plaintiff to die of cancer six months earlier than ordinarily would
have happened. The Plaintiffs had requested that the Defendant doctor negotiate a settlement
before the death of the individual Plaintiff. This request was rebuffed. The Defendant made an
informal “Calderbank” offer to discontinue the Action with each party covering its own Costs,
and if the offer was refused the Defendant would seek double Costs at the conclusion of the
Trial. This was refused by the Plaintiffs. The Plaintiffs counter-offered informally, but the offer
was not accepted.
The parties disagreed about several issues after the Trial concluded. Costs were awarded on a
solicitor-client basis because the Defendant introduced the issue of Special Damages in a
procedurally incorrect manner and at a late date. Several issues relating to Costs remained in
dispute.
In a follow-up decision, Shelley J. outlined Rule 10.33, which gives the Court the broad authority
to order the payment of Costs, in order to determine the preliminary issue of whether an
elevated Costs award was appropriate. The Court concluded that an elevated Costs award was
fitting since the expert evidence was extensive and substantial and it was often interrelated.
The Trial was also long, though Justice Shelley noted that the complexity of the issues was not
necessarily reflected in the length of the Trial.
Justice Shelley also considered the calculation of solicitor-client Costs and then the offers to
settle made by both parties. The Court reviewed Rule 4.29 and the case law decided under the
former Rules. Her Ladyship noted that the formal offer process is the same under the current
Rule as it was under the former Rules: absent special circumstances, a formal offer to settle
would result in elevated costs when a litigant bested the offer. The characteristics of a formal
offer had been changed in the current Rules in that a formal offer was required to be made at
least 10 days prior to the start of the Trial (Rule 4.24(1)(b)). Justice Shelley concluded that the
offers to settle made by each of the parties were informal on this basis. Justice Shelley noted
that under the former Rules the Court was able to order double costs at its discretion after an
informal offer, but that this had not been decided under the new Rules.
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In deciding about whether the mechanisms used in prior cases, under the former Rules, were
still relevant, Shelley J. considered whether the Defendant acted in a manner that would
shorten the Action under Rule 10.33, and added that the amount could be varied under that
Rule. Her Ladyship, informed by the “purpose and intention” principles under Rule 1.2, held
that informal/Calderbank offers are an effective mechanism to meet the objectives set out in
the Rules. The Defendant was ordered to pay double Costs for all steps in the Action that
followed the offer.
MORRONE ESTATE V CAPUTO, 2012 ABQB 370 (MASTER HANEBURY)
In a dispute over the ownership of property, the Plaintiff estate commenced an Action for
money paid to the Defendants and for conversion. The Defendants Counterclaimed for money
owing on the property. An Application for Summary Judgment was brought and granted, but
the Judgment went unpaid. While the litigation continued the property went into foreclosure
and an Order for Sale was granted. An Application for Summary Judgment against the
Defendant was brought before Master Hanebury.
The Master considered Rule 7.3 which provides that a party may apply for Summary Judgment
on the ground that there is no merit to a claim or part of it. The Court considered and applied
cases interpreting the former Rules on Summary Judgment. The Master pointed out that the
bar that must be met on a motion for Summary Judgment is high; that the obligation to prove
each fact required to make out a cause of action rests with the Applicant, if they are also the
Plaintiff; that the onus of showing that there is no genuine issue for Trial is also on the
Applicant; the assessment of the weight and quality of the evidence is properly for a Trial
Judge; and, the Court must be satisfied that there is no genuine issue for Trial – it should be
“plain and obvious” or “beyond doubt”. The Master added that Summary Judgment should not
be granted where opposing Affidavits do not disclose the same relevant facts.
The Master held that the Application was not capable of being resolved summarily because the
information provided to the Court was insufficient. The evidence provided did not establish
whether the property was paid for in full; this resulted in uncertainty in the assessment of
damages owing to the parties. As well, it was unclear as to when the title to the property was to
pass or whether rent was payable. The Application for Summary Judgment was dismissed with
costs in the cause.
CRAIK V ALBERTA TREASURY BRANCHES, 2012 ABQB 373 (STREKAF J)
The Plaintiff applied for Summary Judgment and the Defendants (collectively referred to as
“ATB”) applied for Summary Dismissal of the Action. The Plaintiff claimed that he was
wrongfully charged service fees on his bank account, that he was improperly accused of having
made lewd and vulgar comments, and that ATB’s conduct was contrary to various provisions of
the Fair Trading Act, RSA 2000, c F-2, the Alberta Treasury Branches Act, RSA 2000 c A-37, the
Financial Consumers Act, RSA 2000, c F-13, and the Criminal Code, RSC 1985, c C-46.
The Plaintiff brought his Application for Summary Judgment pursuant to Rule 7.2 and ATB’s
Application was brought pursuant to Rule 7.3. Strekaf J. noted that the substantive tests applied
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by the Court on Applications for Summary Judgment or Summary Dismissal under Rules 7.2 and
7.3 are the same; the Applicant must demonstrate that it is plain and obvious that there is no
genuine issue for Trial. Strekaf J. quoted Murphy Oil Co v Predator Corp, 2006 ABCA 69, which
set out that Summary Judgment will only be granted where there is no genuine issue for Trial
and it must be “plain and obvious” that the Action cannot succeed. Further, the moving party
must meet a burden that includes the “beyond doubt” standard. Murphy Oil also set out a two
stage analysis for a Summary Judgment Application:
[T]he moving party must adduce evidence to show that there is no genuine issue
for trial. Once the moving party has met that burden, the responding party may
adduce evidence to persuade the court that there remains a genuine issue to be
tried. It may choose to adduce no evidence, but then bears the risk that the
judge will decide that the evidence adduced by the moving party has established
that there is no genuine issue to be tried.
After assessing the relevant facts and evidence submitted by the parties, Strekaf J. held that
Plaintiff’s Application for Summary Judgment had to be dismissed on the basis that the
evidence did not establish that it was plain and obvious that hisClaim would succeed. Strekaf J.
also considered ATB’s Application for Summary Dismissal and was satisfied that there was no
evidence that raised a triable issue. The ATB had demonstrated that it was plain and obvious
that no part of the Plaintiff’s Action would succeed; therefore, the Defendants’ Application for
Summary Dismissal was granted and the Action was dismissed in its entirety.
MEDICINE SHOPPE CANADA INC V DEVCHAND, 2012 ABQB 375 (TOPOLNISKI J)
The Defendants sought an Order to compel the corporate representative of the Plaintiff to
provide answers to questions arising from the Cross-Examination on an Affidavit. The Plaintiff
brought an Application seeking a temporary Sealing Order in relation to certain Records.
In relation to the Defendants’ Application, the Affidavit had been filed by the Plaintiff in support
of its Application Staying the Counterclaim pending Arbitration. The Plaintiff refused to answer
questions that went to the merits of the Counterclaim. Section 7 (1) of the Arbitration Act, RSA
2000, c A-43 mandates that the Court shall grant a Stay of proceedings if the parties have
contracted to have their disputes Arbitrated. Section 7(2) outlines exceptions to section 7(1)
whereby the Court may refuse to grant a Stay. One of the exceptions found in section 7(2) is if
the matter in dispute is appropriate for Summary Judgment (the “Summary Judgment
Exemption”). The Defendants argued that a Stay Application brought the Summary Judgment
Exemption into play. The Defendants further argued that since a Stay is analogous to a
Summary Dismissal, all of the issues raised in the Affidavit and Counterclaim were relevant and
subject to Questioning.
The Court held that in order for the Defendants to rely on the Summary Judgment Exemption,
the Defendants were required to actually bring a Summary Judgment Application, including
supporting Affidavit evidence. Without such an Application before the Court, the Defendants
could not rely on the Summary Judgment Exemption. As well, the Court held that a Stay
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Application is not analogous to a Summary Dismissal, but is akin to an Application regarding
forums conveniens. The Defendants’ Application to compel answers was denied.
In regard to the Plaintiff’s Application, the Court held that the Records were confidential,
contained trade secrets, and the release of the Records would cause serious harm to the
Plaintiff. Additionally, the salutary effects of temporarily sealing the documents outweighed
any deleterious effects. Compliance with Part 6, Division 4 of the Rules was not addressed by
the Plaintiff at the hearing of the Application. Thus, the Court held the temporary Sealing Order
would expire in 7 days if the Plaintiff had not complied with the Rules, and if the Plaintiff had
complied with the Rules the Sealing Order would remain in effect pending the outcome of the
Stay Application and, if successful, the Arbitration.
BA CAPITAL INC V FOCUSED MONEY SOLUTIONS INC, 2012 ABQB 379 (MASTER LAYCOCK)
The Plaintiffs applied to request leave to review their solicitor’s accounts after the passage of
the 6 month period prescribed by Rule 10.10(2) had passed. The Plaintiffs applied on the
grounds that they had been “overcharged, misled on legal strategy” and indicated that the case
had been ongoing and they did not want to jeopardize it. One of the Plaintiffs filed an Affidavit
in support of the Application. The law firm did not file an Affidavit but opposed the Application
for an extension of time to review their legal accounts.
Master Laycock first considered whether or not the Plaintiffs had a reasonable excuse for failing
to bring the disputed accounts before a Review Officer within six months of the bill being
delivered. The Plaintiffs provided no evidence in their Affidavit to explain the 16 month delay in
bringing the Application, nor when they became concerned about the size of the account or the
performance of the law firm. An explanation was provided during argument, but Master
Laycock stated that this was not evidence and was therefore irrelevant.
Master Laycock also noted that if a reasonable explanation for the delay had been provided to
the Court, then the Court was required to consider whether or not there was any evidence of
prejudice to the law firm in bringing the matter forward.In this case, there was no evidence of
prejudice; however, this did not matter because there was no explanation given for the delay in
bringing the accounts before the Review Officer.
Finally, Master Laycock cited Twinn v Saw Ridge Band, 2012 ABQB 44, where Browne J. referred
to the decision in P & S, Barristers & Solicitors v Legal Aid Society, [1994] 164 AR 208 (QB),
stating the following about client-initiated reviews:
The six month time limit for client-initiated reviews makes sense for many
reasons. Clients will almost always be aware of any concerns they may have
about lawyer’s fees within six months of receiving the final account. Clientinitiated reviews put lawyers on notice that a client has concerns. The time limit
encourages clients to voice concerns close to the date they arise. This makes it
easier for all parties (including the Review Officer) to resolve the disputes. This
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also allows lawyers to anticipate uncollectible receivables within a reasonable
period of time.
In conclusion, there was no adequate evidence explaining the delay and as such the Application
for leave to have the accounts reviewed was dismissed.
SCOTIA MORTGAGE CORPORATION V MANZOURIE, 2012 ABQB 395 (MASTER PROWSE)
The Applicant, the mortgagee in a foreclosure Action, sought a Rice Order. The Respondents
sought to have the purchase price in the Rice Order set at an earlier, higher, fair market value.
The Applicant took the position that any delay should be attributed to the Respondent, and
thus the present fair market value should be applied. The Applicant argued, in the alternative,
that Rule 1.2 (3) requires all parties to an Action to facilitate the quickest resolution of disputes,
so any losses from delay should be shared between the Parties.
The Court held that both parties were equally responsible for the delay. The Court did not
apportion the losses due to delay. However, the Court halved the period of delay, to determine
what point in time the fair market value should be calculated from. There was a 10 month
delay, and the Court added 5 months from when the Rice Application should have been
brought to determine the appropriate date to calculate the fair market value.
CAPLINK MORTGAGE INVESTORS CORPORATION V KRETSCHMER, 2012 ABQB 396 (MASTER
SMART)
The Plaintiff applied for a review of a reduction in a Foreclosure Bill of Costs, as proposed by the
Assessment Officer pursuant to Rules 9.35(1) and 10.41.
The Master refused to modify the Assessment Officer’s determination, for two reasons. First,
Rule 9.35(4) requires that attendance in front of a Master take place before a Foreclosure
Order has been entered. Here, out of necessity, the Order had already been entered to
facilitate the closing of a sale to a third party purchaser. Master Smart indicated that this
situation was one of the practical difficulties arising from the new Rules.
Second, the Bill of Costs had been presented to the Assessment Officer on a without notice
basis. The Master applied Rule 10.37, pointing out that notice of the Assessment had to be
given unless there had been consent to the Bill of Costs.
The Court also noted that the practice of the Assessment Officer had not been to issue a
Certificate for an Assessment, but rather to return the Bill of Costs with a cover sheet setting
out what she would be prepared to allow. Master Smart determined that, although not
technically correct, the substance of the Assessment Officer’s practice conformed with Rule
10.43.
CONCREATE USL LTD V CALGARY (CITY), 2012 ABQB 400 (MCMAHON J)
The Plaintiff brought an Application for Summary Judgment. The Defendant responded with a
Cross-Application for Severance of damages from liability issues.
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The Court referred to Manufacturers Life Insurance Company v Executive Centre at Manulife
Place Inc, 2011 ABQB 189 as authority that the test for Summary Judgment under the “former”
Rules has not been altered by Rule 7.3. McMahon J. referred to Pioneer Exploration Inc v EuroAm Pacific Enterprises, 2003 ABCA 298, a Court of Appeal decision articulating the test for
Summary Judgment as follows (paragraphs 18 and 19):
First, the plaintiff bears the evidentiary burden of proving its cause of action on a
balance of probabilities. Each and every fact necessary to support the claim must
be proven…
After the plaintiff has proved its case on a balance of probabilities, the
evidentiary burden shifts to the defendant but the ultimate burden remains, as
always, with the plaintiff. The defendant can avoid a summary judgment in
favour of the plaintiff by proving that there is a genuine issue for trial. If the
defendant meets this evidentiary burden, the plaintiff fails to meet its ultimate
burden. It must be beyond doubt that no genuine issue for trial exists.
In this case, the Plaintiff did not meet the stringent test for Summary Judgment.
Turning to Rule 7.1, McMahon J. referred to Gallant (Litigation Guardian of) v Farries 2012
ABCA 98. His Lordship indicated that Gallant quashed any suggestion that the new Rules
effected any significant change in the law regarding the splitting of Trial issues. McMahon J.
noted that, according to Gallant, the question remains the same: would a severance of issues
save time and money in the particular case? McMahon J. quoted the following excerpt from
Gallant (paragraph 24):
…[I]t has always been the presumption in our civil practice that all the issues are
decided at once, in one trial or proceeding. Bitter experience has shown that
searching for savings in time and money by chopping litigation up into little
pieces simply does not work.
His Lordship also noted that the poverty of a party may sometimes influence a decision to sever
an issue, though that was not a factor in this case.
The Court refused the Cross-Application for Severance of Trial issues, since there was no
preliminary issue, no limitation period issue, no clear condition precedent to the suit – any of
which may have been suitable for severance. Further, there was “no neat question of law or
interpretation of any one document”, as described in Esso Resources Canada Ltd v Stearns
Catalytic Ltd (1991) 114 AR 27.
CIBC MORTGAGES INC V LUCAS, 2012 ABQB 402 (MASTER MASON)
The Plaintiff, CIBC Mortgages Inc (“CIBC”), applied for Summary Judgment on the basis that
there was no genuine issue for Trial.
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The Defendant became involved in a “straw buyer” mortgage fraud scenario where she would
assume a high interest mortgage on another’s behalf in exchange for $5,000.00. The mortgage
eventually went into default and CIBC commenced foreclosure proceedings against the
Defendant. The Defendant claimed that she was not responsible for the mortgage deficiency
because she was a victim of fraud perpetrated by CIBC’s agents. CIBC asserted that there was
no evidence that its agents were involved in a fraud, and therefore there was no genuine issue
to be raised at Trial.
Master Mason cited Canada (Attorney General) v Lameman, 2008 SCC 14 and Murphy Oil Co v
Predator Corp, 2006 ABCA 69, in stating that the bar on a Motion for Summary Judgment is
high, and that the party bringing a Motion for Summary Judgment bears the onus of showing
no genuine issue for Trial.
Master Mason noted evidence of prior meetings amongst CIBC’s agents, representations from
those agents, and falsified documents in her decision to dismiss the Application for Summary
Judgment. There was evidence to support the fact that CIBC’s agents may have been involved in
fraudulent activity, and this evidence raised several questions that needed to be determined at
Trial.
VERBEEK V STEWART, 2012 ABQB 415 (GRAESSER J)
A Master approved an offer to purchase two quarter sections of land, and the decision was
Appealed. The Appellant obtained a copy of the transcript from the Master’s decision, but a
copy was not forwarded to opposing counsel or put before the Court.
The Court held that Rule 6.14(4) requires that the record for the Appeal include a transcript of
the proceedings before the Master, and the Master’s Judgment, unless the parties agree or the
Justice hearing the Appeal rules that it is not necessary.
The Court was advised that there were no detailed reasons provided by the Master, so that
deficiency was not fatal to the hearing of the Appeal. The Court held that although it would
have been preferable to have the full proceedings before the Court, this was not a procedural
deficiency that would bar the hearing of the Appeal.
TOMPKINS V ALBERTA (APPEALS COMMISSION FOR ALBERTA WORKERS’ COMPENSATION),
2012 ABQB 418 (GATES J)
The Applicant, Bruce Tompkins, was struck and injured by equipment while working on an oil
drilling rig in 1975. At that time, he claimed workers’ compensation and was paid total
temporary disability benefits for nine days and subsequently returned to work. In the early
2000s, he requested that the Workers Compensation Board (“WCB”) reopen his claim. When
his request was denied, the Applicant applied for review by the Decision Review Body (“DRB”).
The DRB denied the appeal and the Applicant then appealed to the Appeals Commission (“AC”).
When this appeal was also denied, the Applicant requested reconsideration by the AC of its
decision. The AC denied the request for reconsideration and the Applicant applied for Judicial
Review of the AC’s decision by way of Originating Notice, dated November 26, 2006.
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A preliminary issue brought before the Court was whether the Action was properly brought in
the context of a Judicial Review. Gates J. noted that the Applicant complained in the Originating
Notice that the AC did not properly apply the law to the facts of the case. These complaints
were characterized as questions of mixed fact and law, which could be considered by the Court
in the context of a Judicial Review.
Gates J. briefly discussed the jurisdiction of the Court to cure technical defaults in order to
continue proceedings. Referring to Buckley v Entz Estate, 2007 ABCA 7 (a WCB case) Gates J.
noted the possibility of “recasting” the proceedings under former Rule 753.16 (now Rule 3.2(6))
to allow the Court to convert pleadings where the parties chose the wrong type of proceeding.
Gates J. also referred to Patrus v Alberta (Workers’ Compensation Board, Appeals Commission),
2011 ABQB 523, and noted that Rule 3.2(6) could be used in certain circumstances to avoid
denial of a remedy on the basis of a technical defect.
Gates J. did not accept the WCB’s contention that the issues raised by the Applicant were not
properly before the Court. The Applicant sought relief from the Court on the basis of alleged
errors on the part of the AC in dismissing his claim and Gates J. stated that even assuming that
the application for Judicial Review erroneously characterized some of the questions as issues of
law, the Court still had jurisdiction to hear the matter.
NEWEL POST DEVELOPMENTS LTD V 1402801 ALBERTA LTD, 2012 ABQB 422 (WITTMANN CJ)
This Action involved the sale and subsequent resale of a Calgary property known as “The Barron
Building”. The property was sold by the Plaintiff in 2007 with certain conditions, and because of
unfulfilled obligations of the purchaser, the Plaintiff registered an Unpaid Vendor’s Lien against
the title of the property. In 2008, the Defendant acquired the property and filed an Action to
have the Unpaid Vendor’s Lien removed from the title. The Plaintiff and Defendant purported
to settle that Action by way of a settlement agreement. The Plaintiff, in turn, brought this
Action to enforce specific performance of the settlement agreement.
Just prior to the Trial of the Action of this matter, the Plaintiff applied for an Order, pursuant to
Rule 4.36, to authorize it to discontinue the Action, without costs to the Defendant. The
Application was heard and the Court adjourned the Trial sine die pending the decision of the
Application and requested written briefs from the parties.
In deciding the Application, the Court found that there was no material difference between the
new Rules and the “old” Rules governing the obligation of a party to obtain leave of the Court
to discontinue an Action or Claim. Furthermore, the Court relied on De Shazo v Nations Energy
Co, 2006 ABCA 400 (CA), for the following principle:
[A]fter the proceedings have reached a certain stage, the Plaintiff, who has
brought his adversary into Court, shall not be able to escape by a side door and
avoid the contest. He is then, to be no longer dominus litis, and it is for the judge
to say whether the action shall be discontinued or not and upon what terms.
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The Court recognized that there was no resistance by the Defendant to the Discontinuance of
the Action. Rather, there was only resistance to the Discontinuance of the Action on a without
costs basis. In deciding whether or not Costs should be awarded, the Court stated that if the
evidence established that the Defendant had “engineered” the situation so as to render the
continuation of the Action to a successful Judgment an exercise in futility, it would have
granted leave to Discontinue the Action on a without costs basis. In the circumstances, the
Court found that the continuation of the Action to Judgment had not been proven to be
demonstrably futile, and therefore, Leave to Discontinue the Action with Costs to the
Defendant was granted.
YAWORSKI V GOWLING LAFLEUR HENDERSON LLP, 2012 ABQB 424 (MAHONEY J)
The Plaintiff, a lawyer and an income partner in the Defendant law firm, sought compensation
from the Defendant for services provided. The Defendant sought an Order to Stay the Action
because the disputed matter was subject to a mandatory arbitration clause in a letter
agreement between the Defendant and the Plaintiff’s Professional Corporation. The Plaintiff
argued that the Court should refuse the Stay of the Action as the matter was a proper one for
Summary Judgment.
Justice Mahoney considered Rule 7.3 in deciding if the matter was a proper one for Summary
Judgment. His Lordship confirmed that the test for Summary Judgment is well established by
prior case law. There must be no genuine issue for Trial and a Trial is normally ordered when
relevant facts are contested. His Lordship held that Mr. Yaworski had not met his burden of
showing that there was no genuine issue to be tried; consequently, Summary Judgment was not
appropriate. Summary Judgment was not granted and the Action was stayed.
ALBERTA (ADMINISTRATOR, MOTOR VEHICLE ACCIDENT CLAIM ACT) V RIENDEAU, 2012 ABQB
434 (THOMAS J)
This Action involved a motor vehicle accident which took place in September 1992. The injured
parties, Zawaski and McNamara, commenced an Action for damages against Riendeau.
Riendeau did not defend and was noted in default in the “Personal Injury Action”. The
Administrator of the Motor Vehicles Accident Claims Act stepped in to defend the claims against
Riendeau and consented to Judgments being entered against Riendeau. The Administrator
commenced Actions to renew both the Zawaski Judgment and the McNamara Judgment in
October 2006 and June 2007 respectively (“Judgment Renewal Actions”). Riendeau then filed
Counterclaims in both of those Actions. Subsequently, the Administrator applied for Summary
Judgment pursuant to Rule 7.3, on the basis that Riendeau had no defence to the Judgment
Renewal Actions, nor any basis for making the Counterclaim.
Thomas J. first determined that the Administrator had taken the proper steps of issuing new
Statements of Claim and filing the Zawaski Judgment Renewal Action and the McNamara
Judgment Renewal Action. Next, Thomas J. considered whether Summary Judgment should be
granted in both Judgment Renewal Actions. The Application was brought under Rule 7.3 which
sets out that the Application must be supported by an Affidavit swearing positively that one or
more of the grounds set out in 7.3(1) have been met. Thomas J. noted that Murphy Oil
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Company Ltd v Predator Corporation Ltd, 2004 ABQB 688, at paragraph 17, set out the wellestablished and relevant principles regarding an Application for Summary Judgment:
1) A party bringing a Motion for Summary Judgment bears the legal onus of
showing that there is no genuine issue for Trial.
2) There is no onus on the responding party to prove a genuine issue for Trial.
3) If the Applicant for Summary Judgment discharges his/her onus on the
material filed, a Respondent who does not resist the Application through
admissible evidence risks Judgment against him/her. This is an evidentiary
burden.
4) There is no obligation on the Respondent to file material. He/she can accept
the risk described above. If the Applicant fails to discharge his/her legal onus, the
Application will fail.
5) More commonly a Respondent will provide admissible evidence opposing the
Motion. The Court will then consider all the evidence to determine whether the
Application has shown that there is no genuine issue for Trial.
Rule 7.3 was held to operate in the same manner and follow the same legal principles as was
set out in former Rule 159. Thomas J. stated that Applications for Summary Judgment place an
obligation on the Court to conduct a careful review to determine whether there are undisputed
facts sufficient to resolve the matter. Where there is no factual dispute, there is no purpose to
a Trial, as the parties can effectively advance their legal arguments in a Special Chambers
Application.
In this case, Thomas J. saw only three issues that required determination: (1) whether there
was a Judgment entered against Riendeau in the Personal Injury Action; (2) whether that
Judgment had been satisfied; and (3) if that Judgment had not been satisfied, the outstanding
amount of the Judgment. Riendeau raised several defences to the Judgment Renewal Actions;
however, as the majority of these defences dealt with the original Personal Injury Action, the
only allegation that related to issues raised in the Judgment Renewal Actions was whether the
Zawaski and McNamara Judgments were properly assigned to the Administrator. Thomas J. was
satisfied that this allegation did not raise a genuine issue for Trial and Summary Judgment was
granted for both Judgment Renewal Actions.
LOZINIK V SUTHERLAND, 2012 ABQB 440 (JONES J)
This Action arose from a failed attempt on Lozinik’s part to elicit financial commitment from the
Defendants in the development and introduction of technology which Lozinik claimed to have
developed. Lozinik brought a Special Chambers Application seeking, amongst other things, a
Summary Judgment and the Defendants filed a Cross-Application seeking, amongst other
things, a Summary Dismissal.
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Jones J. first considered the objectives of Rule 7.3 and referenced several excerpts from volume
1 of the Stevenson & Côté Alberta Civil Procedure Handbook, 2011,(Edmonton: Juriliber, 2011)
to clarify factors the Court should consider with respect to an Application for Summary
Judgment or Summary Dismissal:
•
Summary Judgment cannot be given if there are difficult or intricate legal issues, or if
the evidence conflicts.
•
The Affidavit for the Motion must make out a prima facie case with no holes in it,
though the Chambers Judge can draw reasonable inferences.
•
The entire basis for Summary Judgment cannot be inadmissible hearsay.
•
If the opposing Affidavits clash on relevant facts, the Master or Chambers Judge can
rarely prefer one over the other. One must look at the facts deposed to by the Party
opposing Summary Judgment, and see if the law permits Summary Judgment on those
facts.
•
The Defence (or the Cause of Action, if the Defendant moves for Summary Judgment)
need only be arguable to resist Summary Judgment. The Defence (or Claim, if the
Defendant moves) need not be certain, and need not even have a 50% chance of
success. A reasonable doubt on a legally relevant point is enough to prevent Summary
Judgment…Where the Defendant moves for Summary Judgment, he or she has an initial
evidentiary burden, but then the Plaintiff must show that his suit has a real chance of
success. The test of "plain and obvious" is the proper test for Summary Judgment in
favour of a Defendant.
•
Summary Judgment cannot be given if there is an opposing Affidavit which disagrees on
a necessary factual question.
•
Material factual issues cannot be decided on a Motion for Summary Judgment or
Dismissal.
Jones J. stated that the test for Summary Judgment under Rule 7.3 is the same as under the
former Rules. In assessing Lozinik’s request for Summary Judgment, Jones J. had to assume that
the facts deposed to by the Defendants were correct and then, in accordance with Rule
7.3(1)(a), determine if there was a defence to Lozinik’s claim or to any part of it.
The opposite was held to apply for an Application for Summary Dismissal. Jones J. had to
assume that facts deposed to by Lozinik were correct and based on that assumption, determine
whether there was merit to Lozinik’s claim or any part of it, in accordance with Rule 7.3(1)(b).
After individually considering each possible Cause of Action Lozinik brought against the
Defendants, Jones J. held that, assuming the assertions set out in the Defendants’ Affidavits
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were true, there would be a defence to each of the asserted Causes of Actions. Based on this,
the request for Summary Judgment was dismissed.
Next the Applications for Summary Dismissal were considered in turn, and Jones J. found in
each case that even if Lozinik’s evidence was accepted, a triable issue or a Cause of Action could
not be identified for all but those founded on breach of covenant as against one of the
Defendants. Substantially all of Lozinik’s actions against the Defendants were dismissed and
Jones J. advised Lozinik not to infer from the fact that not all of the actions were dismissed, that
the Court believed he had a reasonable chance of success.
ENGLER V ENGLER, 2012 ABQB 442 (VEIT J)
Ms. Engler sought an Order striking portions of Mr. Engler’s Affidavits on the grounds that they
contained allegations not supported by independent evidence, were too long and contained
opinion. The Court held that Mr. Engler’s Affidavits were prolix, repetitive, argumentative and
sometimes irrelevant. The Court cited Chevron Canada Resources v Canada (Executive Director
of Indian Oil and Gas Canada), 1998 ABQB 910, for the proposition that although the Court
could review the parties Affidavits and strike out material which is frivolous, irrelevant or
improper, the wiser course of action is to ignore the material. The Court then cited Elkow v
Sana, 2006 ABQB 851, for the exception to the general rule, that if the material is interwoven
with the acceptable evidence, then the only solution may be to strike the complete Affidavit.
The Court struck one paragraph from one of the Affidavits as it was both irrelevant and
gratuitously offensive.
BRIGGS BROS STUDENT TRANSPORTATION LTD V ALBERTA (ATTORNEY GENERAL), 2012 ABQB
455 (LEE J)
The Applicant (“Alberta”) filed a Notice of Motion pursuant to old Rule 244.1, now Rule 15.4,
for an Order dismissing the Respondent’s (“Briggs”) Action on the basis that five years had
passed without a “thing” having been done that materially advanced the Action.
In 1998, Briggs applied for a tax rebate pursuant to s. 4(3) of the Fuel Tax Act (“Act”). This
provision allowed consumers to obtain a fuel tax rebate for fuel consumed in certain vehicles
(in this case, school buses) while they were being used for commercial purposes. Briggs was
entitled to a rebate under the Act and received a cheque accordingly.
In 2001, Alberta disallowed the 1998 rebate because it was not satisfied that Briggs established
the fuel consumption rate for idling yellow school buses. Briggs’ Notice of Objection was
denied, and a Notice of Appeal was filed with the Court of Queen’s Bench in 2003 (the
“Appeal”). Throughout these proceedings, Briggs continued to apply for fuel tax rebates under
the Act which were also denied on the basis that Briggs failed to establish the fuel consumption
rate of idling yellow school buses. Briggs filed Notices of Objections to these denials (“Other
Objections”).
Briggs provided Alberta with fuel consumption surveys to show the average fuel consumption
for yellow school buses was 4.83 litres per hour (Alberta originally applied a rate of 2.0 litres per
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hour). In 2009 and early 2010, Alberta accepted Briggs’ fuel consumption surveys and resolved
the Other Objections by applying a fuel consumption rate of 5.17 litres per hour (4.83 plus 7%
margin of error).
In 2010, Alberta applied to dismiss Briggs’ Appeal for long delay pursuant to Rule 15.4, claiming
that five years had elapsed since the last thing done to significantly advance the Action. The
sole issue before the Court was this:
Is the determination by the government of the applicable fuel consumption rate
for idling yellow school buses in October 2009 to February 2010 of 5.17 litres per
hour a “thing done to significantly advance” this Appeal within the meaning of
Rule 15.4(1)?
Justice Lee stated that while the wording of the current Rule has been altered slightly from the
old Rule 244.1, the change from “materially advance the action” in the old Rules to
“significantly advance the action” in the current Rules carried no difference in meaning. To
determine what constituted a “thing” done to significantly advance the Action, the Court
referred to the following authorities:
Alberta v Morasch, 200 ABCA 24 – A “thing” is not required to be a procedural
step, but may be anything that moves the Action closer to Trial.
Calgary (City of) v Chisan, 2000 ABCA – A “thing” does not have to be done in the
within Action, but may be done in a closely related Action, when the proceedings
are “inextricably linked”.
The Court considered four non-exhaustive factors from Haekel v Canada, 2008 ABQB 701, in
determining whether the Other Objections were “inextricably linked” to the Appeal:
1.
Are the two Actions inextricably linked in the sense that the result in the
related Action would be “legally or factually determinative” of the issues
in the primary Action?
2.
Will the issue determined in the related Action be “relevant and binding”
in the primary Action?
3.
Does the related Action materially advance the primary Action?
4.
Could the Decision in the related Action be a “barrier in law” to the
Court’s adjudicating the primary Action?
Justice Lee found that Alberta’s decision in 2009 and 2010, when it accepted Briggs’ rate of idle
fuel consumption, was factually determinative of the primary issue in the Appeal:
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By determining the idling rate in the Other Applications, the government has
therefore also determined the rate for this Appeal, and so was “materially
advancing” this Appeal by resolving one of the matters in issue.
Accordingly, Alberta’s Motion to Dismiss the Appeal for long delay was denied.
MCMEEKIN V ALBERTA (ATTORNEY GENERAL), 2012 ABQB 456 (SHELLEY J)
The Defendants applied to strike the unrepresented Plaintiff’s Action and the Plaintiff applied
to strike the Statements of Defence. Citing case-law under the new Rules, the Court confirmed
that Rule 7.3(1) applies the same criteria and analysis as Section 159(b) under the former Rules.
The Court also concluded that there was nothing to support the Plaintiff’s allegation of
malicious prosecution by some of the Defendants.
The Crown Defendant also asserted that an allegation of defamation by the Plaintiff was not
detailed as required by Rule 13.7(f), and that the potential defamatory speech would have
occurred at a point in time falling outside the two year limitation period for civil litigation. The
Court did not strike this allegation, determining that the Pleading deficiencies could be cured by
an amendment to the Statement of Claim, which might reveal a different alleged defamation
that could still be a potential subject for litigation.
The Defendants further requested dismissal of the Action based on categorizing the Plaintiff as
a vexatious litigant, pursuant to Rule 3.68. Shelley J. indicated that the Court could strike a
Claim or dismiss an Action if the Statement of Claim was frivolous, irrelevant, improper, or an
abuse of process. Referring to pre and post new-Rules case law, Shelley J. stated that a pleading
is frivolous if its substance indicates bad faith or is hopeless factually; a frivolous plea is one so
palpably bad that the Court needs no real argument to be convinced of that fact. The Court
later referred to the hallmarks of a vexatious litigant specified in Dykun v Odinshaw, 2000 ABQB
548.
Her Ladyship pointed out that Canadian Courts generally provide litigants, particularly selfrepresented litigants, with very significant leeway with respect to Rules 3.68(2)(c-d), since there
are both good policy and equity bases for this approach. By way of example, Justice Shelley
remarked that it would not be surprising for a self-represented litigant to misunderstand or
misapply elements of civil law procedure. The Court indicated that the Rules provide broad
authority to address issues that might arise in such circumstances. Shelley J. noted that the
Court’s response is contextual and that not all unrepresented parties warrant the same
treatment.
Shelley J. found that the Plaintiff: (1) followed Court procedure only when it was in his interest
to do so; (2) conducted himself in an abusive and hostile way in Court; (3) alleged bias of legal
professionals and the judicial system, on a repetitive basis in this and other proceedings; and
(4) applied for Summary Judgment – the exact same strategy he had taken in four reported
Decisions, all of which failed. Shelley J. noted that the Plaintiff engaged in repeated litigation on
the same issue, including Appeals, and that the Plaintiff did not engage in the kinds of
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mediation or negotiation that indicate a sincere litigant. The Court also indicated that there was
no evidence that the Plaintiff conformed to the general litigant obligations in Rule 1.2(3).
Justice Shelley struck the Plaintiff’s Claim as being vexatious for all of these reasons.
The Plaintiff, on the other hand, had three arguments in support of Summary Judgment against
the Defendants. The first assertion was that the Defendants failed to enter into a dispute
resolution process pursuant to Rule 4.16. Her Ladyship, referring to Rule 8.4(3)(a), pointed out
that a Trial cannot be scheduled unless the parties have engaged in a Rule 4.16(1) dispute
resolution process or had that obligation waived via Rule 4.16(2). Shelley J. noted, however,
that Rule 4.16 does not set any kind of timeline other than litigants are required to attempt
good faith dispute resolution procedures at some point prior to Trial. The Court indicated that
the Plaintiff had no right to demand compliance at this point of the Proceeding, and that the
Plaintiff had not discharged his own obligation under Rule 4.16 to attempt resolution in good
faith.
The Plaintiff’s second assertion was that the Statements of Defence did not have a detailed,
point by point denial of his allegations. Shelley J. concluded that this point was irrelevant, since
both Statements of Defence included categorical denials of any facts not admitted, which
satisfies Rule 13.12(2).
Finally, the Plaintiff contended that the Defendants served their Statements of Defence late.
The Court rejected this argument because an Affidavit of Service indicated that service occurred
within the required period.
GENSTAR DEVELOPMENT COMPANY V PLAINS MIDSTREAM CANADA ULC, 2012 ABQB 457
(MASTER PROWSE)
The Applicants (collectively “Genstar”)brought an Originating Application to have a utility right
of way removed from title to land. Plains Midstream Canada ULC applied to have the Action
converted into a Statement of Claim. Rule 3.2 requires Actions to be brought by Statement of
Claim unless one of the enumerated grounds listed in the Rule is met. Genstar argued that two
exceptions were met:
1. An enactment provided for a remedy – that enactment being the Land Titles
Act, RSA 2000, c L-4, specifically section 141 (application to discharge caveat) and
section 146 (order re caveat). The Court held that these sections were
inapplicable as they dealt with caveats and not rights of way.
2. There was no substantial factual dispute. The Court held that there may not be
facts in dispute, but there may be unknown facts which might affect the legal
answer.
The Application to convert the Action to a Statement of Claim was granted. The Court held that
even if it was permissible to commence the Action by Originating Notice, the Action should
proceed by Statement of Claim because of the unsettled and complex legal issues.
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SUCKER CREEK FIRST NATION V CANADA (ATTORNEY GENERAL), 2012 ABQB 460 (MASTER
SMART)
The Defendants applied for an Order dismissing the Plaintiffs’ Action, pursuant to Rule 15.4(1),
on the basis that the Plaintiffs did nothing to significantly advance the Action for five years prior
to the date the Application was filed. In deciding this Application, Master Smart relied on
Bahcheli v Yorkton Securities Inc, 2010 ABQB 824, for the proposition that the jurisprudence
under former Rule 244.1(1) continues to be applicable to Rule 15.4 and that there is no
difference between the term “significantly” advanced under the new Rule and “materially”
advanced under the old Rule.
Master Smart stated that the question to be decided was whether or not there was an express
agreement between the Plaintiff and Defendant for a standstill agreement that added time
onto the five year period contemplated under Rule 15.4. In determining whether there was an
express agreement, Master Smart relied on Bugg v Beau Canada Exploration Ltd, 2006 ABCA
201, where the Court stated that a standstill agreement can be written, oral, or partly written
and partly oral, as long as it is express and not based on intent or inference. Further, not all
agreements that remove the need to take an immediate step automatically add time to the
period contemplated in Rule 15.4. Master Smart concluded that the interpretation of an alleged
standstill agreement should be based on the words used or there must be a reasonable
implication or inference that adds time onto the five year period contemplated by the Rule.
Master Smart also held that the Court must consider whether or not the facts and
circumstances support an inference of a standstill agreement.
The Court found that an extension of time was requested by the Defendants, and was granted
by the Plaintiffs, but only in order to provide the Plaintiffs with an opportunity to correct a
material defect in their Statement of Claim. Master Smart stated that the Court was unable “to
clearly (or at all) find by inference or implication a standstill agreement by time tacking or
otherwise”. The Application of the Defendants was granted and the Action was dismissed.
SCOTIA MORTGAGE CORPORATION V AAB, 2012 ABQB 464 (MASTER MASON)
In a mortgage fraud scheme, the Defendants were paid an amount of money to apply to the
Plaintiff, Scotia Mortgage Corporation, for mortgage financing. The mortgages went unpaid and
Foreclosure Proceedings were commenced. The Plaintiff applied for a Deficiency Judgment
against each of the Defendants. In order to determine the issue of whether the Plaintiff had
sufficient evidence to support the Application for Deficiency Judgments, Master Mason
indicated that, pursuant to Rule 13.18(3), it was sufficient that the Deponent have access to
records and be informed of the requisite elements of the relief claimed – it was not a
requirement that the Deponent have a role in the granting or approval of the mortgages.
Master Mason briefly outlined the test for Summary Judgment under Rule 7.3. Citing prior
leading cases, Master Mason stated that the bar on a Motion for Summary Judgment is high,
and that the Party bringing the Motion for Summary Judgment bears the burden of showing
that there is no genuine issue for Trial. Master Mason found that there were genuine issues for
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Trial with respect to the knowledge and participation of the Plaintiff’s agents and employees.
On that basis, the Plaintiff’s Application for Summary Judgment was denied.
KENT V MARTIN, 2012 ABQB 467 (TILLEMAN J)
At the heart of this Contempt Application was the assertion by the Plaintiff that the corporate
representative of the Defendant (the “Representative”) appeared unprepared at his
Questioning. In summary, the Plaintiff’s argument was that the Representative did not review
the material in advance, notwithstanding a previous Order of the Court that all parties were to
conduct Questioning, and complete Questioning, in a very tight time frame. Tilleman J. also
noted that Clarkson J., who issued the Order in respect of Questioning, had emphasized the
importance that the Representative be prepared.
The Defendant in this case argued that due to the operation of Rule 5.30, the remedy for a
corporate representative appearing unprepared at Questioning is not contempt; it is for the
corporate representative to undertake to inform himself. Tilleman J. rejected this idea, stating
that it is possible for a corporate representative to be found in contempt of Court for not
complying with Rule 5.4(2) (which requires a corporate representative to inform himself of
relevant and material records and information before being Questioned). Although Tilleman J.
ultimately decided that this case did not amount to contempt, His Lordship stated the following
regarding what would be required to establish such a claim:
In my mind, when new Rules 10.52, 5.4(2) and 5.30 are read together, the
Applicant in a contempt proceeding may succeed by showing a lack of diligence
and commitment to fulfilling a court order, but to do so, the breach should be:
(1) significant, meaning a substantial noncompliance; (2) the failure to comply
was not redressed forthwith and responsibly; (3) the failure to comply was clear;
and (4) the Court Order was direct and unequivocal.
The Court also spoke to increased obligations of corporate representatives under Rule 5.4(2)
relative to the former Rules. Tilleman J. stated:
I also agree with the Plaintiffs that under Rule 5.4(2), the expectation with the
history of this case is that the corporate representative will really be informed. A
higher obligation than under the old rules is consistent with the foundational
rules which speaks to more efficiency.[Emphasis in original]
DINGWALL V FOSTER, 2012 ABQB 476 (BURROWS J)
The Plaintiffs sought Summary Judgment in their Action to enforce a Nevada Judgment.
Burrows J. indicated that the bar on an Application for Summary Judgment is high, and that it
must be plain and obvious that a defence or Action cannot succeed, is bound to fail, or has no
prospect of success.
With respect to one of the Respondents’ defences, being that the Nevada Judgment had been
obtained by fraud, the Respondents had invited the Court to speculate on evidence that might
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be adduced if the matter were to go to Trial. In response to this, Burrows J. referred to a
Supreme Court of Canada decision, Papaschase Indian Band No 136 v Canada (Attorney
General), 2008 SCC 14:
In the Court of Appeal and here, the case for the plaintiffs was put forward, not
only on the basis of evidence actually adduced on the summary judgment
motion, but on suggestions of evidence that might be adduced, or amendments
that might be made, if the matter were to go to trial. A summary judgment
motion cannot be defeated by vague references to what may be adduced in the
future, if the matter is allowed to proceed. To accept that proposition would be
to undermine the rationale for the rule. A motion for summary judgment must
be judged on the basis of the pleadings and materials actually before the judge,
not on suppositions about what might be pleaded or proved in the future. …
Burrows J. pointed out that, according to Papaschase, each side must “put its best foot
forward” with respect to the existence or non-existence of material issues to be tried.
The Court determined that the Nevada Judgment was final, for a fixed amount, and had no
penal or quasi-criminal character, such factors being the prerequisites for the enforcement of a
foreign Judgment in Alberta. His Lordship concluded that it was plain and obvious that none of
the Respondents’ defences (relating to natural justice, fraud, and public policy) would succeed.
SAVEVA V FLIGHT CENTRE, 2012 ABQB 477 (MASTER SCHLOSSER)
This Action arose from an accident that occurred while the Plaintiff was vacationing at a hotel in
the Dominican Republic. Upon the Plaintiff’s return to Edmonton, she filed a claim against the
resort in the Dominican Republic as well as the tour operators that carry on business in Alberta.
The resort Defendants claimed that the Dominican Republic is the proper forum and filed an
Application to have the proper forum determined pursuant to Rule 11.25. Prior to the Court
hearing the Application to determine the proper forum, the resort Defendants applied to have
the Plaintiff provide conduct money, pursuant to Rule 6.17, to pay for the expense of
Questioning its witnesses.
In deciding the resort Defendants’ Application for conduct money, the Court reviewed Rule
11.25 and found that two of the presumptive connective factors provided in Rule 11.25 applied
to the Action. The Court relied on the case of Van Breda v Village Resorts Ltd, 2012 SCC 17, for
the proposition that when there are presumptive factors arising from Rule 11.25 that apply, the
Applicant will have the onus of rebutting the presumption. Therefore, in the Application to
determine the proper forum, the resort Defendants would have the onus to prove that Alberta
was not the proper forum. The Court dismissed the resort Defendants’ Application for conduct
money and provided the following reasons for its Decision:
(i)
The resort Defendants were the Applicants in determining the proper
forum;
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(ii)
Providing conduct money would likely create a hardship for the Plaintiff;
(iii)
The resort Defendants did not demonstrate that the witnesses, for which
they were requesting conduct money, were the only ones that could
provide the evidence in question; and
(iv)
The resort Defendants could speak to Costs if they were successful in
their Application to determine the proper forum.
PL V ALBERTA, 2012 ABQB 485 (GRAESSER J)
An Application was brought to settle the terms of an Order arising out of another Decision of
Graesser J. in the same matter. That Application was heard in conjunction with an Application in
JO (et al) v Her Majesty the Queen in Right of Alberta (et al).
Graesser J. held that during the course of argument in the JO matter, it became clear that a
number of errors were made in several rulings in PL v Alberta, 2012 ABQB 383. Graesser J. held
that the Order in the present matter had not been entered and, pursuant to Rule 9.13(a),
Justice Graesser had jurisdiction to correct any errors therein.
Graesser J. determined that the area to be corrected related to proposed Amendments to the
Statement of Claim. In the previous Decision, Graesser J. disallowed the addition of certain
paragraphs on the basis that public perception of a situation is irrelevant to a Claim. However,
in this Decision, Graesser J. held that in the context of the Supreme Court of Canada’s decision
in KLB v British Columbia, 2003 SCC 51, those paragraphs of the Statement of Claim should not
have been struck. Rather, Graesser J. held that those paragraphs could remain in the Statement
of Claim as relevant to the issue of vicarious liability.
OLYMPIA TRUST COMPANY V TOTTEN, 2012 ABQB 488 (HALL J)
The Plaintiff loaned money to the Defendants, his son and daughter-in-law, for the purchase of
a house. The house was purchased and two mortgages were obtained. The mortgages on the
house went into default, and the property was sold in foreclosure. The son and daughter-in-law
separated soon thereafter. An issue arose as to whether the payments made by the Plaintiff to
the Defendants were a loan or a gift. Both the Plaintiff and his son (the “Applicant”) claimed the
payments were a loan. The daughter-in-law (the “Respondent”) claimed the payments were a
gift.
The Applicant sought an injunction, relying in part upon the Matrimonial Property Act, to
prevent the proceeds of the foreclosure sale from being distributed until the issue had been
resolved. Hall J. commented on the proper Rule under which to bring such an Application, and
what would be required for such an Application to be successful:
[The Applicant] seeks a freezing order which he says is brought under the
Matrimonial Property Act. That Act makes no specific provisions for a freezing
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order. The Court’s jurisdiction to freeze matrimonial assets arises under the
Judicature Act 1980 c. J-1, s. 13(2). Rule 6.25(1) of the Rules of Court.
In order for the court to grant such an order [the Applicant] must show a strong
prima facie case and a real and substantial risk that [the Respondent] is
dissipating or disposing of assets other than in the normal course to provide for
herself and her children.
His Lordship determined that there was not sufficient evidence to grant such an order. Justice
Hall stated that no prima facie case has been made out and there was no evidence that the
Respondent had been dissipating or would dissipate the funds. The Application was denied.
LUZIA V BAPTISTA, 2012 ABQB 491 (MASTER SCHLOSSER)
Plaintiffs’ counsel proposed a Litigation Plan in a standard case in February 2012 and received
no response from Defence counsel. After two attempts in May and June, 2012 to elicit a
response, the Plaintiffs prepared an Affidavit and filed an Application, returnable in July 2012.
Defence counsel then consented to the Litigation Plan but when Plaintiffs’ counsel asked the
other side for Costs of their abandoned Application, they received no response. Plaintiffs’
counsel then told Defence counsel that they would be appearing on the date of their
abandoned Application to ask for Costs and no objection was raised.
Master Schlosser considered the commentary regarding abandoned Motions in the Alberta Law
Reform Institute’s Consultation Memorandum No. 12.17. The Committee’s position in the
Memorandum was that some Costs should be made available to the Party who was forced to
commence an Application in order to get the opposite Party to move forward. Master Schlosser
felt that Costs of an abandoned Application appeared to be captured in Rule 10.31(1)(a), the
section that speaks to the Costs to “file” an Application, but stated that such Costs were more
explicitly captured in Schedule C, Item 7(c). In the result, the Court awarded the Applicant 50%
of Schedule C, Item 6(1) for an uncontested Application.
BOSSIO V ANDREANA, 2012 ABQB 492 (MASTER SMART)
The Defendants applied for Summary Dismissal of the Plaintiff’s claims.
The Court indicated that Rule 7.3 has not amended the test in Alberta jurisprudence for
Summary Judgment under “old” Rule 159. The Court cited Manufacturers Life Insurance Co v
Executive Centre at Manulife Place Inc, 2011 ABQB 189, and Tottrup v Clearwater (Municipal
District No 99), 2006 ABCA 380 as authority for the applicable test under Rule 7.3.
Master Smart also referred to a Supreme Court of Canada decision, Papaschase Indian Band No
136 v Canada (Attorney General), 2008 SCC 14 for the proposition that each side in a Summary
Dismissal application must “put its best foot forward” with respect to the existence or nonexistence of material issues to be tried. Papaschase highlighted that a Summary Judgment
Motion cannot be defeated by vague references to what may be adduced into evidence in the
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future, but rather it must be judged on the basis of the pleadings and materials actually before
the Court, not on suppositions about what might be pleaded or proved in the future.
The Court concluded that the Defendants failed to establish that there was no genuine issue of
material fact requiring Trial.
SOLER & PALAU V MEYER’S SHEET METAL LTD, 2012 ABQB 496 (MASTER HANEBURY)
The Plaintiff sued the Defendant for outstanding invoices (the “Old Invoices”). Before litigation
commenced, the Plaintiff and Defendant agreed that all new orders made by the Defendant
would be subject to an additional fee that would be applied to the Old Invoices. When the
Plaintiff eventually sued for the Old Invoices, the Defendant claimed that the two year
limitation period had expired for all but one of the Old Invoices. The Defendant also filed a
Counterclaim alleging that the Plaintiff breached an exclusive dealership agreement by
marketing its products to the Defendant’s competitors. The Plaintiff argued that the monies
owing under the Old Invoices were due and that Summary Judgment should be granted.
One issue before the Court was whether the partial payments extended the limitation period
for all of the outstanding invoices, or only the one against which the payments were applied
(the Defendant maintained that this was the earliest of the Old Invoices). The issue relating to
the Rules was whether Summary Judgment should be granted in light of the nature of the
Counterclaim.
Master Hanebury cited Manufacturers Life Insurance Co v Executive Center at Manulife Place
Inc, 2011 ABQB 189, stating that in order to grant Summary Judgment, the Court must be
satisfied that there is no genuine issue for Trial, which in this case would be that there were no
triable issues in relation to the limitations defences raised by the Defendant. After a detailed
interpretation of the Limitations Act, RSA 2000, c L-12, the Court granted Summary Judgment
only for the earliest of the Old Invoices, stating that there was a genuine issue for Trial as to
whether there was a single claim or several claims.
Addressing the second issue of whether the Counterclaim barred an Order for Summary
Judgment, Master Hanebury stated:
Rule 3.58 provides that a counterclaim is an independent action. It will not, in
and of itself, prevent a plaintiff from obtaining summary judgment, unless the
counterclaim constitutes a defence. A legal or equitable setoff, as defences, may
prevent summary judgment. Procedural setoff does not.
The Court noted that legal set-off applies between Liquidated Claims, which was not the
situation in this case. Equitable set-off requires a Counterclaim to be so clearly connected with
the Plaintiff’s demand that it would be manifestly unjust to allow the Plaintiff to enforce
payment without taking the Counterclaim into account.
The Defendant filed no evidence supporting the allegations set out in the Counterclaim.
Further, the Counterclaim did not indicate that there was an agreement for an exclusive
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distributorship or that there was a breach of the alleged agreement. For these reasons, the
Court found that the Defendant’s Counterclaim did not preclude Summary Judgment as
granted.
DOVE HOMES (1999) LTD V FOUNTAIN CREEK ESTATES LTD, 2012 ABQB 497 (CANLII) (SHELLEY
J)
On the eve of Trial, the Plaintiffs discontinued against one of the Defendants, Umer Choudhry
(“Choudhry”), and agreed to pay Costs of $9,000.00 to Choudhry. After completion of the Trial,
the Plaintiffs applied for Costs on a full indemnity basis. The Plaintiffs also sought an Order that
the unsuccessful Defendants pay the Costs owed to Choudhry.
The Plaintiffs based their claim for full indemnity Costs on the Defendant’s credibility issues,
misstatements of facts and delay. The Court held that although there were issues with the
conduct of the Defendants, it did not meet the high bar for solicitor-and-client Costs, but did
give rise to an increase in the taxable Costs.
The Court held that it may make Orders requiring an unsuccessful Defendant to pay Costs
directly to a successful Defendant, or directing a Plaintiff to pay the successful Defendant’s
Costs and allowing a Plaintiff to add those Costs to its Costs. The Court cited Gladue v Alberta
(Attorney General), 2011 ABQB 535, for the following tripartite test:
(a) Was it reasonable to add the successful Defendant to the litigation?
(b) Was it reasonable to keep the successful Defendant in the litigation?
(c) Is it fair and just to require the unsuccessful Defendant(s) to pay the Costs of
the successful Defendant?
The Court held that:
(a) Because of the uncertainty about potential liabilities at the commencement
of the Action it was reasonable and advisable to name Choudhry;
(b) It was reasonable to keep Choudhry in the litigation; and
Had the other Defendants not failed to admit certain facts, Choudhry could have
been discontinued against earlier.
The Court ordered the unsuccessful Defendants to pay the $9,000.00 in Costs directly to
Choudhry.
UNLAND V NATURAL RESOURCES CONSERVATION BOARD, 2012 ABQB 501 (HALL J)
An Application was brought for Judicial Review of a Decision made by the Natural Resources
Conservation Board (“NRBC”). The Decision regarded the licensing status of a cattle ranch
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located on property adjacent to the Applicant. Both the NRBC and the cattle ranch (Rocky Butte
Ranches) were Respondents to the Application.
The NRBC provided an initial Decision to the Applicant on October 15, 2007. The Applicant was
not satisfied with the Decision. The Applicant then provided further evidence to the NRBC and
called upon the NRBC to review its earlierDecision. The NRBC continued to collect evidence,
investigate and correspond with both the Applicant and Rocky Butte Ranches. On August 11,
2008, a second Decision was provided to the Applicant, which confirmed the original Decision.
The Applicant subsequently filed their Originating Notice for Judicial Review on February 10,
2009.
Rule 3.15(2) states that an Originating Application for Judicial Review to set aside a Decision of
a person or body must be made within six months of the Decision. The Respondent NRBC
argued that because the initial Decision was provided on October 15, 2007, and that the
subsequent decision of August 11, 2008 was merely a review of the original Decision, that the
six month time period had lapsed. Hall J. rejected this argument, stating:
I disagree. The initial decision of October 15, 2007 was almost immediately
reviewed and reconsidered by the Board and its Inspector, at the urging of the
Applicants. Had no further steps been taken by the Board to review that
decision, this application would have to be made within six months of the
decision. However, as the Board continued to gather evidence to inform itself in
respect of the issue and to communicate with the Applicants, the matter clearly
was not considered complete by the Board or its Inspector Mr. Jespersen. The
Inspector continued to conduct his investigation, to the knowledge of the
Respondent Rocky Butte, and to the knowledge of the Applicants. The decision
did not become final until communicated on August 11, 2008. The Application
was brought within six months thereof. Accordingly, the limitations argument
put forth by the Respondents fails.
KINDRACHUK V BELSECK, 2012 ABQB 515 (MASTER PROWSE)
The Plaintiff sued various parties, including Royal Bank of Canada (“RBC”), seeking damages for
deceit and negligence. RBC sought Summary Dismissal of the claim against it on the basis that
the Plaintiff was a participant in a fraudulent transaction, and was barred from suing RBC
pursuant to the doctrine of ex turpicausa non orituractio(out of fraud, no action arises). Master
Prowse noted that Courts have declined to provide summary relief in actions involving
complicated and subtle issues of law. Master Prowse also stated that the application of the ex
turpicausa and in pari delicto doctrines to situations where there was evidence that an
employee or agent of the lender was involved in the fraud was a complicated and nuanced
matter that should not be decided summarily.
ANDERSON ESTATE, 2012 ABQB 517 (CLARK J)
In 2011, Justice Clark ordered compensation to the Applicants in the amount of $810,000 for
their services as Executors of the Anderson Estate (“Estate”) (2011 ABQB 806) (the
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“Compensation Decision”). The Parties in this Application sought a Decision in respect of the
Costs incurred in the Compensation Decision. The Applicants maintained that they should be
fully indemnified for their legal costs out of the Estate or from the Respondents.
The Court considered the factors set out in Rule 10.33(1) in making its Decision onCosts. With
regard to Rule 10.33(a), the Applicants argued that they were “substantially successful”
because they were awarded $810,000 in the Compensation Decision when the Respondents
claimed that they should have been awarded no compensation. Justice Clark was not convinced
that the Applicants were “substantially successful” because: (a) the Applicants originally
requested $2,900,000 for compensation from the estate, an amount significantly
disproportionate to the actual amount awarded; and (b) the Compensation Decision took into
account the Applicants’ failure to properly manage the Estate.
With regard to Rule 10.33(2)(a), the Applicants claimed that they should have received full
indemnity for their legal costs because the Respondents made “scurrilous allegations of
misconduct” throughout the proceedings, and that responding to these allegations
unnecessarily lengthened the proceedings. Justice Clark stated that because the Applicants
improperly managed the Estate, the Respondents’ allegations were justified.
The Court gave serious consideration to refusing to allow the Applicants any reimbursement of
their legal fees because of them:(a) mishandling the Estate; and (b) commencing litigation in an
attempt to secure an unrealistic amount of compensation for their services as Executors.
However, Justice Clark decided that it would be “too harsh a stance” to deny any Costs for the
Applicants since litigation could have been commenced even if the Applicants requested a sum
less than $2,900,000 for compensation. The Court considered it reasonable to reimburse the
Applicants $50,000.00 for their legal costs, which was to be paid from the Estate.
With regard to Rule 10.33(2)(g) the Court awarded the Respondents Solicitor-Client Costs due
to the Applicants’ mismanagement of the Estate and disregard for the interests of the residuary
beneficiary by requesting a grossly inflated amount for compensation from the Estate.
The Respondents were disentitled from claiming prejudgment interest under Rule 13.6(2) which
states that a Pleading must state any interest claimed, including the basis for the interest, and
the method of calculating interest. The Respondents’ Notice of Objection made no mention of
prejudgement interest. Accordingly, Justice Clark concluded that an award of prejudgment
interest was not appropriate in the circumstances.
CHAMPAGNE V SIDORSKY, 2012 ABQB 522 (JONES J)
One of the three Plaintiffs brought an Application to be appointed as the Litigation
Representative for the other two Plaintiffs under Rules 2.16 and 2.21, as well as certification of
the three Plaintiffs as a class under the Class Proceedings Act, SA 2003, c C-16.5 (“CPA”). Jones
J. held that a Litigation Representative under the Rules reflects what was formerly referred to
as a Next Friend or Guardian Ad Litem, under the old Rules. As a result, the jurisprudence
regarding the old Rules is binding on the new Rules surrounding Litigation Representatives.
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Jones J. relied on Salmon v Alberta (Minister of Education), (1991), 120 AR 298, and Torrance v
Alberta, 2010 ABCA 88, for the proposition that a lay Next Friend could not act as counsel for a
disabled person. Similarly, under the new Rules, except where the Court exercises its discretion
to allow representation by non-lawyers or where otherwise provided for in an express
exception, representative Plaintiffs must be represented by counsel. In determining whether or
not to use the Court’s discretion to allow a non-lawyer to represent the Plaintiffs, Jones J.
referred to and relied on Pacer Enterprises Ltd v Cummings, 2004 ABCA 28, and held that the
circumstances in this case were not appropriate to do so. The Plaintiff’s Application to be
appointed as Litigation Representative was dismissed.
Lastly, the Court considered Rule 2.6(1) in deciding the lone Plaintiff’s Application to have the
three Plaintiffs certified as a Class. Jones J. stated that an Action may still be started under Rule
2.6(1), independent of the CPA, and that the requirements for a Class Action to be certified
under this Rule were outlined in Korte v Deloitte, Haskins & Sells (1993), 135 AR 389 (CA).
Despite the Plaintiffs meeting this test, Jones J. held that Rule 2.6(1) referred to “numerous”
persons, and did not intend for this to include only three individuals. As a result, the Application
was dismissed.
VANDEN BRINK V RUSSELL, 2012 ABQB 523 (MASTER PROWSE)
The Defendant applied to set aside a Default Judgment obtained by the Plaintiff. The Defendant
argued that he was entitled to set aside the Default Judgment as of right because he was never
served with the Statement of Claim. He further argued that the Court should exercise its
discretion to set aside the Default Judgment pursuant to Rule 9.15(3).
Master Prowse rejected the Defendant’s Application to set aside the Default Judgment as of
right, because the Plaintiff had proffered sufficient evidence to prove Service, and because the
Defendant’s evidence denying Service was not credible. Although the Plaintiff bears the burden
of proving Service, in the absence of filed evidence that puts Service in doubt, the Plaintiff’s
burden is satisfied by filing an Affidavit of Service. Where conflicting Affidavits result in a
deadlock, viva voce evidence should be heard by a Justice in Chambers to resolve the matter
based on findings of credibility. Only if the matter remains deadlocked after a viva voce hearing
should a Default Judgment be set aside on the basis of the Plaintiff’s failure to meet their onus.
Master Prowse held that this approach avoids a scenario whereby a Plaintiff obtaining a Default
Judgment faces the prospect of it later being set aside based on a bare denial of Service by the
Defendant. The consequence of setting aside the Judgment may be that the time for Service of
the Statement of Claim will have elapsed, and the Cause of Action lost due to limitations issues.
While Rule 3.27(1)(b) allows the time for Service of a Statement of Claim to be extended where
an Order for Substitutional Service is later set aside, there is no provision to extend the time
where proof of Service upon which a Default Judgment has been issued is later rejected.
Master Prowse noted that the Court considers three factors in an Application pursuant to Rule
9.15: (1) the Court will consider the reason the Defendant failed to file a Statement of Defence
within the time provided by the Rules; (2) the Court will consider whether the Defendant
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delayed in applying to set aside Default Judgment once he became aware of it; and (3) the
Court will consider whether the Defendant has an arguable defence. Master Prowse held that
the Defendant had no adequate reason for not filing a Statement of Defence within the time
afforded by the Rules, and further that the Defendant delayed in pursuing his Application to set
aside the Default Judgment. However, Master Prowse held that the Defendant had an arguable
Defence on the merits. As such, and given an absence of prejudice to the Plaintiff, the Default
Judgment was set aside.
STONEY TRIBAL COUNCIL V IMPERIAL OIL RESOURCES LIMITED, 2012 ABQB 557 (MASTER
HANEBURY)
Imperial applied to have a royalty payments claim struck. Master Hanebury stated that a Claim
will be struck under Rule 3.68 if it is plain and obvious or beyond doubt that the Action cannot
succeed; however, if it can be shown that “there is a chance” that the Action will be successful,
the Claim should not be struck. Next, Master Hanebury noted that a claim may be dismissed
summarily under Rule 7.3, but an Application for Summary Dismissal should not be granted if
there is a genuine issue for Trial. Master Hanebury also confirmed that when the facts were not
in dispute, as was the case in this matter, the question to be determined by the Court was
whether the issue could be fairly decided on the filed record. After considering each issue in
turn, Master Hanebury determined that there was no genuine issue for Trial and the Stoney
Tribal Council had no standing to continue their claim against Imperial.
KENT V POSTMEDIA NETWORK INC, 2012 ABQB 559 (TILLEMAN J)
The Plaintiff applied to amend his Statement of Claim to include allegations of misappropriation
of personality, and breach of duties of confidentiality and fiduciary trust. Tilleman J. confirmed
that as long as there was some foundation for the amendment and unless there was a
significant prejudice or injustice, an Order to allow amendments should be freely given. It was
noted that factors such as bad faith, unreasonable delay, or questionable motive should always
be considered, as they could prove fatal to a request to make amendments, but none of those
factors were argued by the Defendants in this case. Further, Tilleman J. confirmed that
amendments cannot be hollow, futile, or hopeless, and further defined futile as meaning that
“it would make little sense to grant an amendment that is barren of all evidence and is
otherwise so starved of a triable issue that it faced a perfect (100%) chance of success on a
motion to strike or a motion for summary judgment”. In this case, Tilleman J. held that the
allegations were worthy of argument and it was preferable to err in sending a matter to Trial on
its merits, rather than take it away on the Pleadings. Tilleman J. concluded by noting that while
the evidence could be stronger, Pleadings were not evidence and in this case there was a
“modest degree of evidence”. The Application to amend was allowed.
EDMONTON FLYING CLUB V EDMONTON REGIONAL AIRPORTS AUTHORITY, 2012 ABQB 563
(VEIT J)
The Edmonton Flying Club (“EFC”) had a lease to operate out of the Edmonton City Centre
Airport (“ECCA”) until 2028. In 2009 the City of Edmonton announced its decision to commence
a phased closure of the ECCA. In response, EFC launched legal proceedings. In this Application,
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EFC sought a severance Order to allow a Trial to determine whether it was entitled to a
Permanent Injunction prior to determining Damages.
The Court outlined the general principles applicable to Rule 7.1, as outlined in Gallant v Farries,
2012 ABCA 98:
(a) The clear aims identified in Rule 7.1 cannot be superceded by Rule 1.2;
(b) There must be a good probability that a second Trial will not be necessary;
(c) The first Trial must be much shorter than the second would be; and
(d) Any significant overlap in evidence between the issue to be severed and the
remainder of the Action will essentially doom the severance Application.
In applying the general principles, the Court held that, amongst other things:
(a) There was no material overlap between a determination of EFC’s entitlement
to an Injunction and EFC’s claim for Damages;
(b) There was a good chance that the determination of whether EFC was entitled
to injunctive relief would end the Action;
(c) The Trial regarding injunctive relief would be much shorter than the Trial
regarding Damages;
(d) Severance would provide an opportunity to minimize litigation expenses and
even the imbalance of litigation funding ability between the parties; and
(e) There was no prejudice to any of the parties.
The Order for severance was granted.
OMEGA DEVELOPMENTS INC V CANADA SAFEWAY LIMITED, 2012 ABQB 564 (MASTER
PROWSE)
Omega owned a building in Calgary. The adjacent land was acquired by Canada Safeway, who
hired Ledcor to construct a building. In February 2001, Omega brought an Action for damages
against Safeway and Ledcor, claiming that they had trespassed on Omega’s lands and damaged
its building. Omega eventually discontinued the Action against Safeway, leaving Ledcor as the
only Defendant. Ledcor sought an Order dismissing the Action pursuant to Rule 15.4, on the
basis that five years had elapsed since the last thing done by Omega to significantly advance the
Action.
Ledcor argued that the five year period during which nothing was done to significantly advance
the Action was May 14, 2007 to May 14, 2012. However, Master Prowse noted that in June
2007, Omega filed a Defence to the Counterclaim filed by Safeway. Although Rule 3.58 provides
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that a Counterclaim is an independent Action, in practice a Claim and a Counterclaim are tied
together more closely than two separate Actions. Where there is a Claim and a Counterclaim,
Parties hold concurrent Questioning, and set the matter for Trial concurrently. Master Prowse
further held that the Court generally applies a functional approach to dismissal for delay, and
considers how an Action was advancing as a whole, and not just against a particular Defendant.
The former Rules of Court specifically directed the Court to take Counterclaims into
consideration in an Order Striking an Action for Delay. The current Rules simply state that an
Action must be dismissed where there is a five year delay. However, under the functional
approach, a Claim and Counterclaim should be considered together. This avoids one five year
time period running under an Action and a different five year time period running under a
Counterclaim.
In any event, Master Prowse held that it was not necessary to decide whether filing of the
Defence to the Counterclaim materially advanced the Action. Master Prowse held that Omega
materially advanced the Action against Ledcor when it discontinued against Safeway in July,
2010. Moreover, in June 2011, Omega amended its Claim against Ledcor, which also
significantly advanced the Action. These steps occurred during the relevant five year period,
and as such, Master Prowse declined to dismiss the Action pursuant to Rule 15.4.
LAASCH V TURENNE, 2012 ABQB 566 (GRAESSER J)
In April, 2008, the Plaintiffs filed an Originating Notice which sought to register the Plaintiffs’
Montana Judgment in Alberta, pursuant to the Reciprocal Enforcement of Judgments Act. In
July, 2008, the Plaintiffs issued a Statement of Claim in relation to the debt created by the
Montana Judgment. The registration Application was heard and dismissed in 2009. The
Plaintiffs then pursued the debt Action, but Summary Judgment was granted in favour of the
Defendants on the basis that it was brought outside the relevant limitation period.
The Plaintiffs applied to amend the 2008 Originating Notice to add the debt claim as an
alternative to the registration remedy that was initially pursued. In the alternative, the Plaintiffs
sought a Procedural Order under Rule 3.2(6), directing that the amendment be set out in a
Statement of Claim filed in this Action. The Plaintiffs argued that, pursuant to section 6 of the
Limitations Act, if a claim is added to an already commenced Proceeding, the Defendant is not
entitled to immunity from liability, provided the added Claim is related to the conduct,
transaction or events described in the original Pleading. The Plaintiffs further argued that their
Application was permitted under Rule 6.3, which provides that, unless the Court otherwise
permits, an Application may be filed during an Action or after Judgment is entered.
The Defendants argued that section 6 of the Limitations Act requires an existing Proceeding or
Claim to which an amendment may be made. The Originating Notice proceeding was concluded
in 2009. The Originating Notice merged into the Formal Judgment, and the Court became
functus. Further, the Defendants argued that Division 3 of Part 9 of the Rules sets out the only
circumstances under which an amendment after Judgment can be sought (i.e. under Rule 3.6),
but that Division 3 of Part 9 had no relevance to the Plaintiffs’ circumstances.
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Graesser J. held that Rule 6.3 was of no assistance to the Plaintiffs because Rule 6.1 provides
that Division 1 of Part 6 does not generally apply to Originating Applications. Further, Graesser
J. held that Plaintiffs were not required to bring themselves within Division 3 of Part 9. Rather,
the Plaintiffs were required to meet the requirements of Rule 3.65, which relates specifically to
amending Pleadings.
Graesser J. held that an Action can end in a number of ways. An Action can lie dormant for up
to the period governed by Rule 4.33, after which it is effectively at an end. The present Action
was not dormant for long enough to be treated as dead merely by the passage of time.
Graesser J. held that the Plaintiffs could have pursued the debt claim as an alternative remedy
in 2009. In the Originating Notice, the Plaintiffs sought the registration of the Montana
Judgment, Interest and Costs, and the general and often pled remedy of “such further and
other Relief as Counsel may advise and this Honourable Court deems just”. The only issue
adjudicated in 2009 was the registration of the Judgment. There was no adjudication relating to
the findings of fact or the Judgment itself, and there was no pursuit of any other relief as
sought in the Originating Notice. Graesser J. held that having regard to the actual wording in
the Originating Notice, it could not be said that everything contemplated by the Originating
Notice had been litigated. There was no technical reason under the Rules which would bar the
Plaintiffs from pursuing further relief, subject to res judicata, issue estoppel, action estoppel
and Rule 4.33.
Graesser J. held that prejudice is relevant to the Court’s determination as to whether to allow
an amendment under Rule 3.65. Prejudice relates to the ability to answer a Claim, and turns on
factors such as availability, health and memory of key witnesses and destruction of relevant
records. Prejudice does not refer to the loss of a limitations defence or other technical
arguments. Graesser J. held that the Defendants would not be prejudiced by the amendment,
and that the Plaintiffs had met the requirements for an amendment under Rule 3.65. Graesser
J. allowed the Application, and permitted the Plaintiffs to amend the Originating Notice to add
the alternate relief related to the debt Action.
TORONTO DOMINION BANK V GAUTHIER, 2012 ABQB 569 (MASTER SCHLOSSER)
The Defendant applied to set aside a Default Judgment that was granted without the Defendant
present. The Defendant did not appear before the Court to contest the Default Judgment
Application because he was under the impression that a Settlement Agreement had been
reached. The Plaintiff did not believe that a Settlement Agreement had been reached and
proceeded with the Application in the absence of the Defendant. After being granted an Order
for Default Judgment, the Plaintiff filed a Writ for the entire amount of the Claim, which was
approximately $6,000.00 higher than the alleged settlement amount.
The Defendant’s Application was made on short notice and the original counsel for the Plaintiff
was unable to attend, so a student lawyer appeared on behalf of the Plaintiff. In considering the
Application, Master Schlosser relied on Rule 1.2, which encourages early, informal resolution,
and stated:
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In our zeal to move matters forward, it is easy to forget that the Rules are about
resolving disputes not taking steps. More haste, less speed.
The Defendant’s Application was adjourned until the following week. Master Schlosser ordered
that the Writ be discharged, and further directed that the matter be heard in Justice Chambers,
due to the conflicts in evidence and the fact that the matter had been before a Justice several
times prior.
MEADS V MEADS, 2012 ABQB 571 (ROOKE J)
Crystal Lynne Meads (the “Appellant”) requested a Case Management Hearing to help resolve
issues she faced dealing with her husband, Dennis Larry Meads (the “Respondent”) in relation
to ongoing spousal and child support payments. At the Case Management Hearing, the
Respondent proclaimed that, as a “child of God”, he was not subject to the Rule of Law and
therefore not obligated to provide further support payments. The litany of fallacious arguments
submitted by the Respondent at the Case Management represented a group Justice Rooke
labeled as Organized Pseudolegal Commercial Argument Litigants (“OPCALs”); individuals who
employ techniques to disrupt Court operations and to attempt to frustrate the legal rights of
governments, corporations, and individuals.
Justice Rooke’s Reasons for Decision served to assist the Appellant in dealing with the
Respondent as she moves through the litigation process. However, Justice Rooke’s ultimate
goal in this decision was to address and rebut the controversial arguments and concepts
adopted by the OPCAL community and “set the record straight” for Canadian Courts to end the
OPCAL community’s abuse of the litigation process.
Rooke J. cited Rule 3.68(2)(c) which allows Courts to strike Claims or dismiss an Action where a
Justice concludes that a commencement document or pleading is frivolous, irrelevant, or
improper. Justice Rooke referenced numerous nonsensical documents submitted to the Court
by the Respondent and suggested that Rule 3.68(2)(c) could be applied in the circumstances of
this case. Moreover, the Court added that a proceeding may be struck where a Defendant is
“left both embarrassed and unable to defend itself”: Kisikawpimootein v Canada, 2004 FC 1426.
With regard to elevated Costs, Rooke J noted a potential exception to the rule that a successful
litigant is entitled to a costs award against the unsuccessful party (Rule 10.29(1)), and that is
where there is a novel issue before the Court: Grant v Grant, 2010 ABQB 735. However, the
Court maintained that the opposite occurs with OPCALs and cited numerous cases that support
ordering elevated costs against OPCALs.
With regard to an Order for Security for Costs, Justice Rooke stated that litigation, a defence, or
an Application that flows from a known OPCAL strategy might favour an Order for Security for
Costs against an OPCAL. Since OPCALs usually maintain that they stand outside the Court’s
authority, that alone should be a strong factor that may favour a Security of Costs Order under
Rule 4.22(e).
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Further, His Lordship observed that Rule 10.49(1) authorizes a Justice to order a person to pay
the Court Clerk a penalty where the person fails to comply with the Rules and interferes with
the proper or efficient administration of justice. The Rule provides a “very helpful mechanism
to address OPCAL misconduct”. Justice Rooke added that any fine issued under this Rule does
not affect the substance of a dispute, thus respecting the legal rights and issues that an OPCAL
may have.
SEARS CANADA INC V C & S INTERIOR DESIGNS LTD, 2012 ABQB 573 (KENT J)
Sears Canada Inc. (“Sears”) sought to overturn a Master’s Decision staying the Alberta Action.
The Master had held that Ontario was the most appropriate jurisdiction.
Sears cited Rules 3.3 and 3.5 and argued that the Alberta Rules of Court suggested that Alberta
was the most appropriate jurisdiction. The Court held that Rules 3.3 and 3.5 address the issue
of the appropriate judicial centre with respect to initiating a claim, and have nothing to do with
determining the appropriate forum in the face of competing jurisdictions. The Appeal was
dismissed.
LAKHOO V LAKHOO, 2012 ABQB 574 (KENT J)
The wife in this case sought Costs on a full indemnity basis from the solicitor who previously
acted for the husband. Kent J. denied an Application by that lawyer for permission to continue
to act for the husband, notwithstanding that a lawyer in his office had been consulted by the
wife prior to the wife commencing the Action for divorce. The wife’s counsel stated that she
notified the solicitor immediately of the conflict, but the solicitor continued to pursue Motions
with respect to disclosure, payment of spousal support and related relief. Counsel for the
solicitor argued that the solicitor did not act egregiously and the Costs that the wife should be
entitled to would be the usual party/party Costs.
Kent J. noted that Rule 10.50 permitted the Court to order a lawyer to pay Costs personally if
the lawyer “engages in serious misconduct” and these Costs have been awarded where a
lawyer has promoted excessive motions, put forward irrelevant material and generally acted in
bad faith. Further, awarding such Costs required a finding of positive misconduct. In this case,
Kent J. held that the lawyer did not act inappropriately when he sought a ruling about his ability
to act and because he lost, the wife would receive party/party Costs. The only conduct that
Kent J. considered as questionable was that the solicitor waited approximately three months to
bring the Motion; however, this conduct did not rise to the level of ordering Costs personally
against the solicitor.
Even though Costs were not personally awarded against the solicitor, Kent J. did find that the
delay in bringing the Motion was inexcusable and during that period, work was done on the file
by both sides that became irrelevant. Based on this, Kent J. ordered Costs of $5,000 to the wife.
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SAVOIE V ALBERTA UNION OF PROVINICAL EMPLOYEES, 2012 ABQB 575 (MOREAU J)
In 2011, the Appellant filed a Claim alleging, inter alia, deceit by the Respondent in notifying the
Appellant’s wife that grievances related to her employment would be taken to Arbitration by
the Respondent. The Appellant’s wife granted the Appellant Power of Attorney that included
authorization to sue on her behalf. The Respondent applied for Summary Dismissal of the
Claim, which was granted on January 31, 2012. The Appeal before Moreau J. was brought on
the basis that the Appellant was not aware of the time and place of the Summary Dismissal
Application and, thus, could not attend. The Appellant also argued that, pursuant to the
Provincial Court Act, the Provincial Court did not have jurisdiction to grant Summary Judgment.
Moreau J. held that, pursuant to section 8 of the Provincial Court Act, the Provincial Court has
jurisdiction to grant a Summary Dismissal Application pursuant to Rule 7.3. Moreau J. further
held that the Appellant may not have been aware of the date of the Summary Dismissal
Application. While there was evidence of laxity in the Appellant’s approach to the proceedings
in Provincial Court, the interests of justice required that he be given an opportunity to fully
respond to the Summary Dismissal Application.
Moreau J. further held, however, that pursuant to Rule 1.4 (which authorizes the Court to make
any Order to advance the purpose and intention of the Rules), and Rule 1.2, returning the
matter to Provincial Court for a continuation of the Summary Dismissal Application would be
contrary to the intent of the Provincial Court Act and the Rules. As such, Moreau J. held that the
Appeal should be continued before her as an Application de novo for Summary Dismissal.
THUNBERG V ZADWORNY, 2012 ABQB 576 (LEE J)
The Defendant brought an Application for a Declaration that the Plaintiffs’ Claim did not survive
the Defendant’s discharge from bankruptcy. The Master dismissed the Application and allowed
the Plaintiffs to amend their Statement of Claim to include fraud, embezzlement,
misappropriation and defalcation. The Defendant appealed the Master’s Decision.
Lee J. heard the Appeal of the Master’s Decision and stated that the standard of review was
correctness for questions of law and reasonableness for questions of fact. Lee J. went on to
state that the matter could not be dealt with summarily because the Plaintiffs had not yet
obtained full disclosure of relevant information, and there was a genuine issue to be tried as to
whether the Defendant induced the Plaintiffs to invest based on false pretenses or fraudulent
misrepresentations. These issues needed to be determined by the Court once the Plaintiffs
amended their Statement of Claim. Lee J. held that the Master did not err in dismissing the
Application, and that it was not appropriate under the circumstances for the Court to substitute
its discretion for that of the Master.
COLD LAKE FIRST NATION V ALBERTA (TOURISM, PARKS AND RECREATION), 2012 ABQB 579
(BROWNE J)
Cold Lake First Nation brought an Application for Judicial Review of a November 2010 decision
of the North-East Regional Director of Parks, Government of Alberta. The Judicial Review
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required the Court to address two issues, including the admission of new evidence pursuant to
Rule 3.22(d). In determining whether or not new evidence should be admitted, the Court relied
on Alberta Liquor Store Assn v Alberta (Gaming and Liquor Commission), 2006 ABQB 904.
Browne J. stated that:
Judicial review is the review of a decision, not a hearing or decision de novo.
When reviewing the reasonableness or the correctness of a decision, the
reviewing court must undertake that review based on the information available
to the original decision maker…
Browne J. concluded that the admission of new evidence would turn the Judicial Review into a
hearing de novo, and would not assist the Court in determining the central issue under Judicial
Review. The Application to admit the new evidence was dismissed.
LOZINIK V SUTHERLAND, 2012 ABQB 583 (JONES J)
The Plaintiff brought a series of Applications including Applications for Summary Judgment,
Double Costs, and dismissing the requirement for Judicial Dispute Resolution. The Defendants
cross-applied to have the Plaintiff’s claim summarily dismissed and for Costs under column 5 of
Schedule C of the Rules. Jones J. dismissed the Plaintiff’s Actions against the Defendant,
Sutherland, in their entirety and as against the remaining two Defendants in their entirety
except for an Action that may be founded on breach of covenant. All of the Plaintiff’s
Applications were denied.
Jones J. denied the Plaintiff’s request for Costs because he was entirely unsuccessful in his
Application for Summary Judgment, and because Rules 10.29 and 10.31 provide the Court with
discretion in awarding a Costs award and in considering the factors outlined in Rule 10.33.
Further, Jones J. considered the factors outlined under Rule 10.33(2) and found that the
Plaintiff improperly sought:
(a) To set a Trial date prior to disclosure of information between parties;
(b) Case management after the date had been set for his Special Chambers
Application relating to his Summary Judgment Application; and
(c) To compel the Defendants to complete a Request for Disclosure which the
Plaintiff prepared in a manner not in compliance with the Rules.
Jones J. stated that there was no basis for awarding the Plaintiff any Costs, and granted the
Defendants’ request for Costs pursuant to Column 5 of Schedule C of the Rules.
NORTHLAND MATERIAL HANDLING INC V PARKLAND (COUNTY), 2012 ABQB 586 (VEIT J)
The Respondents sought an indemnity for Costs on the basis that the Applicants were
unsuccessful in their claim alleging that the Respondents acted without good faith and for an
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improper purpose in making zoning decisions. In the alternative, the Respondents sought
increased Costs on the basis that the Judicial Review Application was complex.
The Court noted that the plain reading of the Rules would require Costs to be calculated under
Column 1, because the Originating Notice did not seek monetary relief. However, the Court also
held that the awarding of Costs is discretionary. In relation to the unproven “bad faith”
allegations, the Court held that usually unproven allegations of fraud attract Costs on an
indemnity basis, or at least attract an obligation to pay heavy Costs. However, this principle
does not apply to unproven allegations of “bad faith”. Taking all of the submissions into
consideration, the Court awarded the Respondents increased Costs on the basis that there was
a lot at stake for both parties, and it was a complex matter.
JAMES V NORTHERNLAKES COLLEGE, 2012 ABQB 588 (MARCEAU J)
Upon the Application of the Defendants, the Master summarily dismissed the Plaintiff’s Action.
The Plaintiff Appealed the Master’s Decision, which was based on the finding that the Court had
no jurisdiction over the essential character of the dispute, because it was governed by a
collective agreement between the parties and the Post-Secondary Learning Act, SA 2003, c P19.5 (“PSLA”).
Marceau J. stated that the standard of review on Appeal of a Master’s Decision on all issues is
correctness. Marceau J. reviewed the relevant facts and law and held that the Master made no
error of law or fact, and dismissed the Appeal.
SANDERSON ESTATE V POTTER, 2012 ABQB 593 (READ J)
The Defendant was involved in a motor vehicle accident in 2004 which resulted in the death of
Sanderson, whose Estate commenced two separate Actions. The Statements of Claim in the
two Actions were issued in May of 2006. The Defendant was Noted in Default on the basis of an
erroneous Affidavit of a process server who swore that he had served the Defendant with both
Statements of Claim. After the Statements of Claim expired, it was determined that someone
else had actually been served, not the Defendant. The Defendant brought an Application to set
aside the Noting in Default and strike the Statements of Claim against him, or alternatively, to
grant him leave and extend time to permit him to file Statements of Defence.
Justice Read considered the following Rule-related issues:
(a) Which Rules of Court applied, those in effect when the Defendant was Noted
in Default, or those in effect at the time of the Application?
(b) Should the Noting of Default be set aside?
(c) If yes, did the Court have discretion to renew the Statements of Claim? If so,
should the Court exercise its discretion in this case?
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Justice Read referred to Rule 15.2(1), which directs that unless an enactment or another Rule
provides otherwise, the Rules apply to every existing proceeding. Rule 15.1(a) defines an
“existing proceeding” as “a Court proceeding commenced but not concluded under the former
Rules”. The Court confirmed that an expired Statement of Claim does not become a nullity; it is
simply not in force: Shah v Christiansen (1992), 5 Alta LR (3d) 174 (CA).An expired Statement of
Claim is “renewable”, but this must be done through an Application: Nixon v Timms, 2012 ABQB
315.
Where there is a flaw in the procedure leading up to a Default Judgment, a Defendant,
proceeding promptly, is entitled to open up the Default Judgment as of right: Anstar Enterprises
Ltd v Transamerica Life Canada, 2009 ABCA 196. In the circumstances of this case, Justice Read
set aside the Noting in Default because the Rules were not strictly complied with in serving the
Defendant with the Statements of Claim.
In determining whether the Court had the discretion to renew the Statement of Claim, Rules
3.26 and 3.27 were examined. Rule 3.26(1) provides that a Statement of Claim must be served
on the Defendant within one year after the date the Claim is filed. Rule 3.27(1)(c) states that
the Court may grant an extension of time for service of a Statement of Claim if a special or
extraordinary circumstance exists resulting solely from the conduct of a person who is not a
party to the Action.
The Court concluded that the process server was not a party to the Action. The remaining
question to be determined was whether the Defendant’s situation constituted a “special or
extraordinary circumstance”. The Court referred to the facts of Nixon where a process server
lied in his Affidavit that service of a Statement of Claim had been effected. The Court in Nixon
considered the fraudulent Affidavit to be an “extraordinary circumstance”. Justice Read
distinguished Nixon, on the basis that the process server in this case swore a mistaken or false
Affidavit, not a fraudulent one. Nevertheless, Justice Read found that the mistaken Affidavit
sworn by the process server constituted a “special” circumstance contemplated by Rule
3.27(1)(c).
The Court exercised its discretion to permit an extension of time for service of the Statement of
Claim for a period of 30 days, and the Defendant was given a further 30 days to file a Statement
of Defence.
FUFA V UNIVERSITY OF ALBERTA, 2012 ABQB 594 (MARCEAU J)
The Appellant appealed a Master’s Decision dismissing his suit against the Respondent
University. The Action was commenced via a Statement of Claim, and alleged tort and breach of
contract. The Action related to the Appellant’s forced withdrawal from a doctoral program due
to academic issues.
The Court upheld the Master’s Decision. The grounds for dismissal were:
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(a) The Court had no jurisdiction regarding Claims of an academic nature [Rule
3.68(2)(a)];
(b) The allegations regarding tortious conduct were frivolous [Rule 3.68(2)(c)];
(c) The Claim was an attempt to circumvent Legislation granting Universities
autonomy, and thus was an abuse of process [ Rule 3.68(2)(d)]; and
(d) There was no merit to the Claim [Rule 7.3(1)(b)].
EDMONTON POLICE SERVICE V ALBERTA (INFORMATION AND PRIVACY COMMISSIONER),
2012 ABQB 595 (ROSS J)
This was a Judicial Review Application by the Edmonton Police Service (“EPS”) to quash a
Decision of an Adjudicator in the Office of the Information and Privacy Commissioner (“OIPC”),
ordering the EPS to disclose portions of its Professionalism Committee’s Final Report (the
“Report”) to the Criminal Trial Lawyers' Association (“CTLA”). The Committee issued its report
in 2006, which included information from various outside agencies, including Alberta Justice.
CTLA made an access request for the Report. EPS released most of the Report to the CTLA, but
withheld some sections, pursuant to the Freedom of Information and Protection of Privacy Act,
RSA 2000, c F-25 (“FOIPPA”). CTLA requested a review by OIPC.
The OIPC Adjudicator held that, pursuant to FOIPPA, the Report should be disclosed in its
entirety. The EPS brought an Application for Judicial Review on the basis that the Adjudicator
incorrectly interpreted the relevant sections of FOIPPA, and that the evidence before the
Adjudicator established that the outside information was supplied to the Committee in
confidence. The EPS further argued that the Adjudicator breached the requirements of
procedural fairness.
Ultimately, the Application for Judicial Review was dismissed on the basis that the Adjudicator
did not breach the rules of procedural fairness, and on the basis that the Adjudicator’s
conclusion that the outside information was not supplied in confidence was reasonable. Before
coming to a decision on these issues, Justice Ross held that the records that were the subject of
the CTLA access to information request, the in camera documents referred to by the
Adjudicator, should be sealed. Justice Ross waived the requirement under Rule 6.32 for Notice
to the Media of the Application to seal the in camera documents, pursuant to the Court’s
discretion under Rule 6.28. Justice Ross held that sealing records that are subject to an access
to information request, and documents that would reveal the content of those records, is
mandated by FOIPPA.
JO V ALBERTA, 2012 ABQB 599 (GRAESSER J)
J.O. brought an Action against the Crown for breach of fiduciary duty, amongst other
allegations, which resulted in the serious injury of a child in foster care. J.O. applied for Orders
declaring that she had amended the Statement of Claim pursuant to Rule 3.65. The Crown
argued that J.O.’s amendments should not have been allowed as they were repetitive,
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superfluous, unnecessarily inflammatory, and conclusive rather than explanatory (the Amended
Claim added words such as “maliciously” and “recklessly”). Interpreting Rule 1.2, Justice
Graesser made the following comments with respect to Pleadings and litigation efficiency:
This is not an exercise in creating a perfect pleading. It is intended to result in a
pleading that is comprehensible and precise, identifies the real issues in dispute,
pleads relevant facts without conclusions and speculation, pleads causes of
action which are not hopeless, provides sufficient facts to enable the opposite
parties to understand the case against them, and is not frivolous or vexatious, all
the while being succinct and in accordance with Rules 13.1 to 13.12. It is not up
to the Court to draft pleadings for the parties.
The Court voiced concerns regarding the Amended Statement of Claim. The Amended Claim
was not concise and contained some evidence as opposed to facts. Nevertheless, the Court
permitted the amendments, stating that the Claim was not so objectionable that the Court
should strike otherwise relevant provisions. Justice Graesser noted that his failure to “cut
deeper” into the wording of the Amended Statement of Claim should not be viewed as tacit
acceptance that the Amended Statement of Claim satisfied Rule 13.6.
TORONTO DOMINION BANK V POON, 2012 ABQB 606 (KENT J)
The Defendant, Poon, was a straw buyer of a residential property. In return for a payment of
$11,000, Poon agreed to be the legal owner of a property and sign a mortgage to the Plaintiff.
Poon argued that he was told by the corporation that orchestrated the scheme that the
transaction was legal. Poon further argued that he insisted that a lawyer be involved in the
transaction, in order to ensure that it was legal. Poon attended at the law offices of the Third
Party Defendant, Blumell, to sign papers, including the Mortgage, a Purchaser’s
Acknowledgement and a Statutory Declaration. The documents signed by Poon included
statements that Poon was personally liable for default under the Mortgage, and that the
property must be owner-occupied. Poon did not tell Blumell about the circumstances
surrounding the purchase of the property.
Blumell brought an Application for Summary Judgment, arguing that the Claim was bound to
fail on the basis of the principle of ex turpicausa non orituractio [from a dishonorable cause an
action does not arise]. The Application was granted by a Master, and Poon appealed.
Justice Kent held that a Party moving for Summary Judgment must show that there is no
genuine issue for Trial, or that it is plain and obvious that the Claim cannot succeed. In order for
the ex turpi doctrine to apply, the act forming the basis of the Claim must be causally linked to
the illegal act. Justice Kent held that the foundation of the doctrine is that the wrongdoing must
be related to the loss for which recovery is claimed.
Poon argued that Summary Judgment should not be granted because there had not been a
finding that Poon was a willing participant in the illegal act. Poon argued that only a Judge, at
Trial, weighing the evidence, can make such a finding of fact. Poon argued that his Claim was
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for indemnity, and that he sought compensation to put him back into the position he would
have been in but for the conduct of Blumell.
Blumell argued that a finding could be made that Mr. Poon was a willing participant in the
fraudulent scheme. Poon had not provided any explanation for why he thought it was legal to
sign documents stating facts that were not true, and accept $11,000 for a couple of hours of
work. Further, if the Claim against Blumell merely related to compensation rather than the
illegal act, Poon would be overcompensated because he had received $11,000 for his
participation in the fraudulent scheme.
Justice Kent held that Blumell had no knowledge that Poon was receiving a payment to buy the
property for someone else. Justice Kent further held that Poon was a willing participant in an
illegal act. Poon was an educated man who had previous experience in the real estate market.
In the circumstances, Justice Kent determined that Poon’s claim of innocence was not credible.
Justice Kent held that the ex turpi doctrine applied, because allowing the Claim to succeed
would create an inconsistency in the law. Poon engaged in an illegal act. Had the real estate
market continued to rise, the property may have been resold, and Mr. Poon would have earned
$11,000 for his actions. However, by intentionally not disclosing to Blumell that he was a straw
buyer when there was a risk the real estate market would fall, Poon had a claim in his back
pocket against his lawyer. Poon hedged his bets. If this was permitted, straw buyers effectively
had no risk. The Court would, in essence, be saying that such an act is both illegal and legal.
Such an approach would create an inconsistency in the law which attacks the integrity of the
legal system. The Appeal was dismissed.
INTACT INSURANCE V LEUNG, 2012 ABQB 608 (BELZIL J)
Intact Insurance applied for Summary Judgment against the Defendant, O’Onna Leung, a
former employee. Intact Insurance alleged that Ms. Leung and her husband, also a former
employee, defrauded Intact Insurance while they were employees. Mrs. Leung admitted to
defrauding the Plaintiff, and consented to Summary Judgment.
Ms. Leung denied that Mr. Leung was involved or had any knowledge of her fraudulent
conduct. Mr. Leung maintained that he had no knowledge of his wife’s conduct and sought
Summary Dismissal of the Claim against him on this basis.
Justice Belzil confirmed that Summary Disposition is not available where credibility is genuinely
at issue. The Court noted that while Mr. Leung claimed he had no knowledge of his wife’s
conduct, he made numerous withdrawals and purchases out of the bank account containing the
converted funds over an extended time period. Justice Belzil concluded that these evidentiary
issues could not be resolved without findings of credibility as to what Mr. Leung knew or ought
to have known. Mr. Leung’s Application for Summary Dismissal was dismissed.
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SWARTOUT V QUINNCORP HOLDINGS INC, 2012 ABQB 610 (MASTER MASON)
The Plaintiffs entered into a Joint Venture Agreement with one of the Defendants, 268981
Alberta Ltd., in 1998. 268981 Alberta Ltd. amalgamated with Quinncorp Holdings Inc.
(“Quinncorp”) in 2001. Under the Joint Venture Agreement, Quinncorp was to develop a
neighbourhood in phases, using funds provided by a number of investors, including the
Plaintiffs. After deducting Quinncorp’s expenses and a management fee, net profits were to be
distributed 70% to the investors and 30% to Quinncorp. The Plaintiffs commenced this Action in
2011, alleging that they had not received all of the net profits they were entitled to under the
Joint Venture Agreement. The Plaintiffs sought the return of their initial contributions, payment
of net profits owing under the Joint Venture Agreement, and an accounting of all revenues,
expenses and profits. Quinncorp alleged that repayment of initial contributions was not due,
that net profits had been properly distributed and that the Plaintiffs had been overpaid.
Quinncorp further alleged that the Joint Venture Agreement did not require Quinncorp to
report or account directly to the Plaintiffs.
Quinncorp presented two issues to the Court for advice and direction. The first issue related to
Quinncorp’s ability to defer production of source documents. During the Questioning of
Quinncorp’s corporate representative, some Undertakings were given which related to source
documents underlying summary information that had been produced by Quinncorp. Quinncorp
argued that it was not required to produce these source documents until entitlement to an
accounting was established at Trial. Quinncorp further argued that production should be
delayed because its accountant was preparing a report on the underlying revenues and
expenses of the Joint Venture Agreement, and because it would be too difficult to produce the
source documents. Quinncorp argued that the Plaintiffs were using disclosure Rules to obtain
accounting relief that could only be granted after liability was established at Trial. Quinncorp
argued that the general rule is that while that there must be full Discovery on all issues prior to
Trial, if liability and remedies are easily severable, it is appropriate to defer Discovery on
remedies until liability has been established.
Master Mason held that the records sought by the Plaintiffs were not solely relevant to the
accounting. Rather, the records were also relevant to whether Quinncorp had paid the net
profits under the Joint Venture Agreement. Quinncorp’s calculation methodology was at the
heart of the dispute, and as such, source documents showing costs and revenues were relevant,
material and necessary to resolve the issue at Trial. Any documents that also related to other
projects could be redacted and would be subject to an Undertaking pursuant to Rule 5.33.
Quinncorp further argued that the Plaintiffs’ representative on the Joint Venture Agreement
agreed that Quinncorp’s accountant would review and substantiate the distribution of net
profits. Quinncorp argued that this agreement bound the Plaintiffs and prevented them from
seeking production of the source documents until the report was complete. Master Mason held
that the Joint Venture Agreement did not constitute contracting out of the production
requirements of the Rules of Court. Relevance and materiality govern the production of
documents in litigation, not a paragraph in a Joint Venture Agreement.
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Quinncorp further argued that, pursuant to Rules 1.2 and 1.4, the litigation would be more
timely and cost effective if the Plaintiffs’ production requests were held in abeyance pending
the review by Quinncorp’s accountant. Master Mason held that the Plaintiffs were entitled to
access source documents for their own review, and that it would be inconsistent with Rules 1.2
and 1.4 to delay production of the documents.
Quinncorp also argued that, pursuant to Rule 5.25, it would be unduly onerous to respond to
Undertakings relating to source documents. Further, the production requirements should be
modified in relation to the source documents because, pursuant to Rule 5.3, the difficulty of
producing them would be disproportionate to their likely benefit. However, Master Mason held
that a Party seeking to modify or limit another Party’s rights under the Rules faces an onerous
test. Alberta Courts have recognized that the process of responding to Undertakings requires
time and money, and the Party giving the Undertaking will have to devote some resources to
ensure that the Undertakings have been met. The fact that it will take time is not a sufficient
excuse for not responding. The Costs of responding to Undertakings will be addressed in the
normal course of the Action.
The second issue before the Court related to whether the U.S. counsel and a staff member of
one of the Plaintiffs was entitled to view a real time transcript at a future Questioning. At the
Questioning of Quinncorp’s corporate representative, real time reporting was used, which
generated a live transcript. The transcript was streamed to a computer in an adjacent
conference room, where it was observed by U.S. counsel and a staff member. Quinncorp
argued that this violated the general rule that only the Parties and Counsel of record have the
right to attend Questioning. The Plaintiffs argued that because the real time software does not
permit communication or interaction between those in the Questioning room and those
observing elsewhere, the presence of others in a separate room watching a live transcript is not
tantamount to attendance at the Questioning. Any concerns identified with additional
attendees at Questioning, such as disruption, distraction and delay, do not arise where
attendees are passively observing the transcript.
Master Mason held that observers in the next room were not allowed to communicate or
interact with those in the Questioning room. The transcript remained confidential and was not
broadcast to the public at large, but only to individuals who would be provided with a copy of
the transcript in any event. Indeed, passively observing a real time transcript is not substantially
different from receiving a copy of an expedited transcript the following morning. Provided that
the attendees do not interrupt, communicate with those in the Questioning room during the
Questioning or cause delays in the proceeding, such observation does not amount to
attendance at the Questioning.
GEOPETROL INTERNATIONAL LTD V ALLIANZ INSURANCE COMPANY OF CANADA, 2012 ABQB
613 (MASTER SMART)
Allianz Insurance sought to have the Action dismissed for long delay. The Respondent,
Geopetrol International, argued that a course of conduct leading to a signed Consent Order
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regarding the filing of an Amended Amended Statement of Claim significantly advanced the
Action and, additionally, amounted to a Standstill Agreement.
The Consent Order was never entered, and the Amended Amended Statement of Claim was
never filed and served. Under the circumstances, the Court held the Action was not significantly
advanced and granted the Summary Dismissal Application. In relation to the argument
regarding the existence of a Standstill Agreement, the Court held that although Bugg v Beau
Canada Exploration Ltd, 2006 ABCA 201, opens the door to find a Standstill Agreement by
implication, “it does not require express negativing in every communication to avoid such a
consequence”. The Court held that there was no Standstill Agreement.
STATOIL CANADA LTD V CADILLAC FAIRVIEW CORPORATION, 2012 ABQB 618 (KENT J)
The Plaintiff, Statoil, leased several floors of an office building from the Defendant, Cadillac
Fairview. The lease was conditionally assigned by Statoil, with the authorization of Cadillac, to
Homburg, and Homburg subsequently signed subleases with several companies. Statoil
commenced this Action claiming that it and the subtenants were co-sureties, each having
guaranteed Homburg’s obligations to Cadillac. The Claim was based on the different rent rate
that was contained in the head lease and the rent rate in the subleases to the subtenants. The
Application before the Court was brought by the subtenants for Summary Judgment, pursuant
to Rules 7.2 and 7.3.
Kent J. first noted that the test for Summary Judgment that the subtenants were required to
meet was a high one which required that it be plain and obvious that the Action could not
succeed. Statoil argued that there needed to be a full hearing because of the number of
documents that needed to be considered to determine the obligations of the parties; however,
Kent J. did not agree. Kent J. stated that this case was about the interpretation of several
documents and the facts required to set the context within which to interpret the contracts
were not contentious facts. Based on this finding, Kent J. reviewed the documents submitted
for each of the five issues raised by the subtenants and made a finding for each of the issues. As
a result of this review, Kent J. dismissed the Statoil Action.
HOPPEGARTEN-NEUENHAGEN KG V HANNE, 2012 ABQB 624 (ERB J)
In Summary Trial proceedings, the Plaintiff sought recognition and enforcement in Alberta of a
Judgment issued by the Berlin Regional Court of Germany, as well as the associated Costs
Judgment. The Defendant raised a preliminary issue, arguing that Summary Trial proceedings
were inappropriate to determine the enforceability of the foreign Judgment.
The Plaintiff argued that Summary Trial would be inappropriate because (1) viva voce evidence
was necessary to determine the issues, (2) the translation of documents was unreliable, (3)
expert evidence would be required to understand the German Court system, and (4)
conventional pre-trial procedures and a full civil Trial were necessary to resolve conflicts in the
expert evidence before the Court. The Court disagreed.
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The Court affirmed that jurisprudence decided under the old Rules remains relevant in
determining the suitability of Summary Trial. Thus the Court was guided by the test articulated
in JN v GJK, 2004 ABCA 394, and the factors identified in Pecek v Fedun, 2007 ABQB 133 and
Duff v Oshust, 2005 ABQB 117. Summary Trial is appropriate if (1) the Court can decide
disputed questions of fact through the means available in a Summary Trial, and (2) It would be
just to decide the issues through those means.
In determining whether the test for Summary Trial is met, a Court should consider, inter alia,
the amount of money involved, the complexity and urgency of the matter, prejudice, costs, the
import of Questioning in the context of the case, and whether resolution will depend on
findings of credibility.
In this case, the Court found that although the Judgment for over €1.5 million put a large
amount of money in issue, Summary Trial proceedings were appropriate. Erb J. found that the
protracted nature of the proceedings resulted from the Defendant’s conduct, rather than the
complexity of the case. Noting that counsel for the Defendant characterised Questioning in this
dispute as a fruitless exercise, the Court held that there was little likelihood that Questioning
would bolster the Defendant’s evidence. The Defendant had also failed to examine other
potential witnesses when given the opportunity. Although there were differences of opinion in
the expert Affidavits explaining the German legal system, the Court held that these differences
were not sufficient to require a full Trial to resolve issues of credibility. Furthermore, Erb J. held
that the conflict in the Affidavit evidence did not have to be resolved to determine the issues
before the Court.
BREITKREUZ V HOLST, 2012 ABQB 632 (GATES J)
The Plaintiffs, brothers, claimed an equitable interest in the shares of the corporate Defendant,
controlled by the individual Defendant, arising from an agreement between the individual
Defendants and their father. The Defendants unsuccessfully applied to add the father as a Third
Party.
The Court articulated the test as “whether the facts as alleged in the Third Party Claim, if
proved, would result in a finding that the alleged third party was liable to the defendants”.
Gates J. found that there was no air of reality to the Third Party allegations. Even if there was,
the allegations would defeat the Plaintiffs’ Claim, rather than entitle recovery against the Third
Party. There were additional allegations that the alleged Third Party owed a duty to the
Defendants, however, the Court found that no facts were pleaded to support the Claim.
Finally, the Court took issue with the Defendants’ claim as to damages. Gates J. found that if the
Plaintiffs were successful the Defendants would not suffer a loss, rather they would be required
to return to holding trust property as required by the agreement.
HESTBAK V HESTBAK, 2012 ABQB 633 (GRAESSER J)
The Plaintiff brought an Application to adjust Section 3 and Section 7 expenses for 2011, and to
set ongoing support payments. The Defendant opposed the Application on the basis that any
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adjustments should be in accordance with the 2008 Minutes of Settlement. The Defendant also
sought sole custody of the child.
One of the Defendant’s positions related to objections surrounding an Order of Justice
Graesser. The Defendant was self-represented and, as such, Justice Graesser invoked Rule
9.4(2)(c) when the Order was made. Rule 9.4(2)(c) provides that the Clerk may sign an Order if
the Court directs that approval of the form of Order by a Party is not required. Justice Graesser
held that although he did not invoke Rule 9.4(2)(c) explicitly, he clearly indicated to Plaintiff’s
counsel that the Defendant’s signature was not required. The Order was prepared by the
Plaintiff’s counsel and submitted directly to Justice Graesser for signature. Justice Graesser held
that although it may not have been explicit, Rule 9.4(2)(c) was invoked, and therefore the
Defendant’s signature was not required on the Order.
ZAHN V TAUBNER, 2012 ABQB 636 (VERVILLE J)
This was an Application for Costs following the Trial of a matter where the Defendant was
ultimately successful in defending the validity of a Will. The Defendant was seeking Costs
against the Plaintiff, whereas the Plaintiff was seeking their Costs to be paid out of the Estate
on a Party-Party basis. In determining whether or not the Costs would be paid out of the Estate,
Verville J. relied on the test outlined in Babchuk, Petrowski v Petrowski Estate, 2009 ABQB 753,
and found that the Plaintiffs acted reasonably in challenging the Will. Further, the amount of
the Plaintiffs’ Costs would not significantly deplete the assets of the Estate.
The Court also found that there were numerous Formal Offers to Settle made by both the
Plaintiffs and Defendant, including a Formal Offer by the Defendants that was better than the
result obtained by the Plaintiffs. However, Verville J. concluded that, because of the “factual
matrix of this case and the somewhat unusual circumstances”, the failure of the Plaintiffs to
beat a settlement offer was not a factor that weighed significantly against them. The Plaintiffs
were awarded their Costs on a Party-Party basis from the Estate, and the Defendant’s
Application for Costs was dismissed.
PRINCE V EDMONTON (CITY), 2012 ABQB 637 (MASTER SCHLOSSER)
The Plaintiff was a passenger on an Edmonton Transit Service bus when it was struck by
another bus. The City of Edmonton was served with the Statement of Claim and asked not to be
Noted in Default without prior written notice. Plaintiff’s counsel granted this indulgence to the
City, but no Defence was ever filed.
The Plaintiff apparently lost interest in the lawsuit, and disappeared. Nothing further happened
until the City of Edmonton told Plaintiff’s counsel that the City was going to proceed with an
Application for Dismissal for Delay. Plaintiff’s counsel responded by Noting the City in Default.
The City of Edmonton applied for an Order Striking the Action for Long Delay. There had been a
gap of at least seven years between the service of the Statement of Claim and the Application
to Strike for Long Delay. The Court held that events after the gap do not count unless the
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Defendant participates. Further, a Defendant who has been Noted in Default may make an
Application to Strike for Long Delay (as was the case under former Rule 244.1).
The Court noted that Rule 15.4 is mandatory, and that no exceptions apply to the
circumstances. Accordingly, the Application was granted and the Action dismissed.
COURT V DEBAIE, 2012 ABQB 640 (ROSS J)
The Action involved the posting of allegedly defamatory remarks by the Defendants on their
Facebook pages. The Statements of Claim alleged that at the time the Defendants posted the
comments on their Facebook pages, the Facebook options on the pages were set to open
access. As a result, anyone with an internet connection could view the comments. As well, the
posted comments would appear on the wall of the Defendants’ Facebook friends.
The Defendants sought to set aside the service outside of Alberta of the Statements of Claim.
Alternatively, the Defendants sought to dismiss or stay the Actions on the grounds that there
was no real and substantial connection, or pursuant to the doctrine of forum non conveniens.
The Defendant, Debaie, filed an Affidavit stating that only seven of her 289 Facebook friends
resided in Alberta. Six of the seven Facebook friends had no connection with the Plaintiffs and
one was the Plaintiff, Ms. Court. The Defendant, Ms. MacKay, deposed that only one of her 51
Facebook friends resided in Alberta.
The Plaintiffs’ Affidavits stated that they accessed the Defendants’ Facebook pages and viewed
posts containing defamatory statements against them. They gave evidence that the posts were
visible to anyone with access to the internet. They also stated that they were advised by their
sister who lives in Alberta that she viewed the Facebook pages and saw the defamatory
comments. The Defendants took issue with this hearsay evidence.
The Court allowed the hearsay evidence. Rule 13.18 requires personal knowledge of the Affiant
where the Affidavit is “used in support of an application that may dispose of all or part of a
claim”. In this Application, the hearsay evidence was used by the Respondent, so it was not
used in support of an Application that may dispose of all or part of a claim. Additionally, setting
aside service does not dispose of all or part of a claim.
The Court applied Éditions Écosociété Inc v Banro Corp, 2012 SCC 18 (“Éditions”). Éditions
applied the jurisdiction framework to a defamation case. The Supreme Court of Canada in
Éditions held that the tort of defamation is “crystallized upon publication of the libellous
material” and “publication occurs when libellous material is read by a third party”.
The Court held that the evidence supports an arguable case that the allegedly defamatory
material was published in Alberta, and that is sufficient to establish the presumptive connecting
factor of a tort committed in Alberta. Therefore, there was a real and substantial connection
between this jurisdiction and the Action. Additionally, the Court held that the Defendants did
not establish that there was a clearly more appropriate forum.
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The Application was dismissed.
HSBC BANK CANADA V LOURENCO, 2012 ABQB 648 (GOSS J)
HSBC successfully sued Triple J Armature Inc. (“Triple J”), Lourenco, and Salokangas (collectively
the “Defendants”) for breach of trust. HSBC claimed that it was entitled to Solicitor and Client
Costs pursuant to the General Security Agreement (“GSA”), which provided that the Defendants
would pay any Solicitor and Client Costs in connection with the GSA. Justice Goss found that the
language in the GSA was clear and unambiguous to sufficiently support a claim for Solicitor and
Client Costs. The remaining questions before the Court were:
1. Whether the Defendants received sufficient notice that the Costs covenants
in the GSA would be relied upon by HSBC;
2. What the appropriate Costs award should have been in this case; and
3. Whether Costs should have been allocated between the Defendants.
Justice Goss wrote that “Rule 13.6 provides that a pleading must include a statement of any
matter in which a party intends to rely that may take another party by surprise … To consider
whether there would be surprise the Court must look to the sophistication of the parties and
their negotiating power.” Justice Goss found that the claim for Costs pursuant to the GSA did
not take the Defendants by surprise. They were sophisticated businessmen and assisted by
legal counsel, and it should not have been a surprise that the GSA contained a clause requiring
payment of Solicitor and Client Costs. His Lordship added that in the event he was wrong in his
conclusion, he would address Costs in the absence of the covenant in the GSA.
Considering Rule 10.33(1) and (2), Justice Goss found that there was no basis to award Solicitor
and Client Costs based on the conduct of the parties. There was no misconduct during the
litigation, and the pre-suit breaches of trust and fiduciary relationship were not serious enough
to attract punishment and deterrence though an award of Solicitor and Client Costs.
The Court allocated Costs under Rule 10.31(3)(c) and (d) between Lourenco and Salokangas in
accordance with the time expended in relation to HSBC’s claim against each of them as
directors of Triple J. Justice Goss found that apportioning 75% of the Costs to Lourenco and 25%
to Salokangas was appropriate in the circumstances.
ARBUTUS CAPITAL LEASING LTD V CSM MEDIA INC, 2012 ABQB 650 (MASTER SCHLOSSER)
This was a Summary Judgment Application by a lender against an individual. One of the
individual Defendants, Steven Agar, was the principal and 45 percent owner of CSM Media Inc.
(“CSM”) and negotiated a loan with Arbutus Capital Corporation. This contract was immediately
assigned “for value” to Arbutus Capital Leasing Ltd. and payments were made for a while
before the loan went into default. Another individual Defendant, Gary Nash, who worked with
CSM and was considered a part owner, claimed that he thought he was signing the loan
agreement for the company and would not be held personally liable.
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After briefly considering the evidence presented by Mr. Nash, Master Schlosser noted that a
Respondent to a Summary Judgment Application only had to demonstrate that he had an
“arguable case” in order to avoid Judgment. Further, he did not have to prove his case on the
ordinary civil standard. Master Schlosser held that Mr. Nash demonstrated an arguable case
only by the smallest of margins, as there was just enough to make the Plaintiff’s case fall short
of the very high standard required of a Plaintiff in a Summary Judgment Application. Master
Schlosser did note that some of the evidence seemed to be “incredible or contradictory” and
had the potential to detract from, rather than enhance, Mr. Nash’s position; however, the
Court was not permitted to assess credibility or weigh evidence in a Summary Judgment
Application.
Finally, Rule 1.2(2)(c) was peripherally referred to by Master Schlosser, but not considered.
Master Schlosser concluded by stating that Mr. Nash should reflect on Rule 1.2(2)(c) and
consider the possibility of settlement. Master Schlosser stated that Mr. Nash rolled the dice
once by not reading the contract and was about to “roll them again when the lawsuit
proceeds”.
NGUYEN V KOEHN, 2012 ABQB 655 (MOREAU J)
Koehn appealed the dismissal of his Application to dispense with videotaping the Defence
medical examination of Nguyen. Nguyen had retained an orthopaedic specialist to complete a
medical examination and Koehn selected an Edmonton orthopaedic specialist, Dr. Russell, to
conduct a Defence medical examination of Nguyen. Nguyen wished the examination to be
videotaped, but Dr. Russell refused the request and indicated that he would not permit a
nominee health care professional to be present during the medical examination. Koehn’s
counsel contacted six specialists to determine if they would perform the Defence medical
examination with videotaping; four responded that they would not, while two others said that
they would. Counsel for Koehn did not wish to retain any of the four specialists who indicated
they would allow videotaping, providing reasons that related to potential bias, credibility issues
and not knowing the specialists as he had not previously retained them.
Moreau J. began by noting that Rule 5.44(5) pertained to the conduct of the medical
examination itself and not to how the medical examination was recorded. Next, Moreau J. went
on to consider Rule 5.3(1) and observed that it is similar to former Rule 216.1(1), which was
contained in Part 13, Division 1 of the former Rules, under the title “Discovery of Records”. In
contrast, former Rule 217(5), which permitted a party being examined to have a nominee
medical practitioner present during the examination, was contained in Part 14, rather than Part
13 of the former Rules. Moreau J. stated that this made it appear that former Rule 216.1 did
not apply to permit waiver of a party’s right to have a nominee present. Further, Alberta case
law supported the conclusion that there was no recourse to Rule 216.1 under the former Rules
to deprive a party of his or her election to have a nominee present during the medical
examination.
In the current Rules, Rule 5.3(1) is contained in Division 1 of Part 5 and Part 5 also contains Rule
5.42(1) in relation to Defence Medical Examinations, which suggested to Moreau J. that the
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Court now has the power under Rule 5.3(1) to modify or waive the Plaintiff’s right of election
under Rule 5.42(1) if the conditions set out in Rule 5.3(1)(a) or (b) are met. Moreau J.
interpreted Subrule 5.42(1) and (2) as authorizing the Court to limit the manner in which a
Plaintiff may exercise his or her options under Rule 5.42(1) in relation to recording or
witnessing of a Defence Medical Examination. Based on the inclusion of these specific
provisions that do not expressly limit the circumstances in which the Court may exercise its
discretion, the Master was not constrained by the conditions set out in Rule 5.3(1).
Further, Rule 5.42(1) does not require that a Plaintiff demonstrate the potential for a bona fide
concern as to the reliability of the doctor’s account of any statements made by the Plaintiff
during the examination. Moreau J. was of the view that it was for the party seeking to dispense
with videotaping to justify the Court exercising its discretion to deprive the person being
examined of his or her entitlement to have the examination videotaped under the new Rule.
Moreau J. stated that Rule 5.42(1) now secures the entitlement of a Plaintiff to elect in favour
of video and audio-recording of the Defence medical examination, unless the Court orders
otherwise.
In this case, there was no evidence indicating why the six specialists refused videotaping and no
evidence that it might impair their ability to conduct a proper and effective medical
examination. Moreau J. noted that it was the refusal of the specialists to permit videotaping
that was limiting Koehn’s choices, not the actions of Nguyen in insisting on an option the
Legislature determined he could elect to exercise. While Moreau J. stated that, in an
appropriate case, where there was cogent reasons provided to justify dispensing with
videotaping, the Court had discretion under Rule 5.42(1) and (2) to do so. In this case, the Court
was not satisfied that asking for videotaping had a mischievous purpose.
Further, Koehn did not provide specific reasons why he did not wish to select any of the
specialists from the pool of those that would allow the examination to be videotaped. One
specialist had even signed a form indicating that while he would not permit the examination to
be videotaped, he would permit a nominee to be present and this specialist was one of those
counsel for Koehn favoured. Moreau J. held that the Master did not err in declining to confirm
the appointment of Dr. Russell to perform the Defence medical examination as requested by
Koehn. Such a selection would have deprived Nguyen of all the options set out in Rule 5.42 and
in these circumstances, Koehn had not established that Nguyen should be deprived of all of
those options. The Appeal was allowed to the extent of entitling Koehn, at his election to be
exercised within 30 days of the release of the reasons, to choose a specialist to conduct the
examination who would allow videotaping or to choose one who would agree to the presence
of a nominee.
FRANSSEN V THULE TOWING SYSTEMS LLC, 2012 ABQB 657 (MASTER LAYCOCK)
The Plaintiffs filed a Statement of Claim on December 29, 2011. On December 6, 2012, an Order
was granted by Master Breitkreuz granting the Plaintiffs an extension until March 6, 2012 to
serve the Statement of Claim, and also to serve, ex-juris, a copy of the Statement of Claim on
the Defendant located in the United States of America (the “US Defendant”). The US Defendant
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was not served with a copy of the Statement of Claim until July 3, 2012, and applied to have the
Order of Master Breitkreuz set aside and a Declaration that no further steps could be taken
against any of the Defendants.
The US Defendant argued that the Plaintiffs’ Affidavit in support of their December 6, 2011
Application (“Affidavit”) should be struck out on the basis that the deponent did not have
personal knowledge of the facts and did not disclose the source of her information and belief.
Master Laycock agreed with the US Defendant and struck out the bulk of the Affidavit because
sections of the Affidavit:
1. Repeated allegations found in the Statement of Claim and did not provide any
factual evidence to the Court;
2. Failed to provide a source of information and belief; or
3. Consisted of legal opinion or conclusion.
Master Laycock then applied the test for extending the time for service of a Statement of Claim
pursuant to Rule 3.26, and considered case law regarding former Rule 11(6). Master Laycock
disagreed with the Plaintiffs’ argument that an Order to extend time for service can be made
without any Affidavit evidence, and further stated that any Rule that does not explicitly
mention the need for an Affidavit still requires Affidavit evidence to be considered by the Court.
Master Laycock found that there were no material facts contained in the Affidavit and there
was no evidence upon which the Court could rely. As a result, Master Laycock struck out the
provision of Master Breitkreuz’s Order extending time for service of the Statement of Claim,
and declared that no further steps could be taken against the US Defendant.
EDMONTON FLYING CLUB V EDMONTON REGIONAL AIRPORTS AUTHORITY, 2012 ABQB 664
(VEIT J)
Pursuant to the provisions of Rule 9.3, the Parties asked the Court to settle the minutes of an
Order arising from the Court’s written Decision issued on September 13, 2012. There were
several contested issues. After reviewing each of the issues, the Court concluded that the form
of Order proposed by the Edmonton Flying Club best reflected the Court’s Decision.
One of the contested issues was whether the Order should take into account a new
development which occurred after the September 13, 2012 Decision. The new development
was the City of Edmonton’s decision, on October 5, 2012, to serve a Notice of Intention to
expropriate the interests of the Flying Club, and others, in the Edmonton City Centre Airport
lands. In concluding that the Order should not take this into account, the Court stated that:
…although the law allows a court to vary its order before it is entered … that
power should not be lightly exercised [original citation omitted]
Further, the Court added that:
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…[B]ecause the court’s [earlier] decision … was only an interlocutory decision,
the City of Edmonton’s application to vary that decision based on the intention
to expropriate, can still be heard in a special chambers hearing as a normal
application to vary an existing interlocutory decision based on a material change
of circumstance. The court’s [earlier] decision … was not a final decision or
judgment in the matter; unless a final judgment is varied or struck before it is
entered, it can only be appealed. However, an interlocutory order can easily be
varied if material new circumstances justify a variance …
Another contested issue was whether, pursuant to Rule 508, the Court should stay its Decision
of September 13, 2012 to allow the City to appeal that Decision. Veit J. first noted that:
“pursuant to the provisions of Rule 508(3) a refusal by me, as the judge appealed from, will not
prevent the respondents from applying for a stay to the Court of Appeal…”. In concluding that
the Decision should not be stayed, Veit J. cited the following two reasons:
(a) The City has not yet appealed Her Ladyship’s Decision; and
(b) The Decision represented Her Ladyship’s best understanding of the evidence
and the law.
KULAK V AG CLARK HOLDINGS LTD, 2012 ABQB 672 (VERVILLE J)
A.G. Clark Holdings Ltd., Giebelhaus Developments Ltd., 680262 Alberta Ltd. (“680262”), and
Douglas Cannam (“Cannam”) (collectively the “Defendants”) applied for a Non-Suit against the
Plaintiffs Laird Kulak and DLK Management Services Ltd. at the conclusion of the Plaintiffs’ case.
The Plaintiffs alleged that they held a partnership interest in the corporate partnership of the
Defendants and that shares in 680262 were held in trust by Cannam on behalf of the Plaintiffs.
Rule 8.20 provides that at the close of the Plaintiff’s case, the Defendant may request the Court
to dismiss the Action on the ground that no case has been made, without being asked to elect
whether evidence will be called. Justice Verville cited Prudential Securities Credit Corp, LLC v
Cobrand Foods Ltd, 2007 ONCA 425, in setting out the test on a Non-Suit Motion:
On a non-suit motion, the trial judge undertakes a limited inquiry. Two relevant
principles that guide this inquiry are these. First, if a plaintiff puts forward some
evidence on all elements of its claim, the judge must dismiss the motion. Second,
in assessing whether a plaintiff has made out a prima facie case, the judge must
assume the evidence to be true and must assign ‘the most favourable meaning’
to evidence capable of giving rise to competing inferences.
The Plaintiffs produced financial statements which suggested that they received net profits
from the Defendants’ partnership and draws from the capital of the partnership. Also, the
Plaintiffs produced organizational documents which contemplated that Cannam may have held
shares in 680262 on behalf of the Plaintiffs.
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The Court found that the Plaintiffs led some evidence to further their Claim against the
Defendants, and added that Non-Suit Motions should be granted rarely unless there are the
clearest of circumstances. Giving the Plaintiffs’ evidence “the most favourable meaning”, his
Lordship concluded that the evidence was capable of giving rise to competing inferences and
the Application was dismissed accordingly.
RAMPERSAUD V BAUMGARTNER, 2012 ABQB 673 (BURROWS J)
The central issue before Justice Burrows was whether participation in a Dispute Resolution
Process under Rule 4.16 could be waived on the consent of the Parties. Counsel for the Plaintiff
presented a Consent Order in morning Chambers, which provided that leave of the Court was
granted to waive the mandatory Dispute Resolution Process required by Rule 4.16. No evidence
was proffered to establish that any of the reasons upon which a waiver could be granted, as set
out in Rule 4.16(2), were met. Further, neither of the Parties appeared at the Application,
despite the attendance requirement in Rule 4.16(3). Although the Action was commenced in
2006, the new Rules applied because, pursuant to Rule 15.3, discoveries were not completed
before the new Rules came into effect.
Counsel for the Plaintiff argued that engaging in a Dispute Resolution Process would be futile,
and a waste of resources. However, Justice Burrows was not satisfied that a Dispute Resolution
Process would be futile. Even where an immediate resolution is not achieved, a Dispute
Resolution Process is useful where it clarifies the issues and gives the Parties a clear sense of
how an independent judicial officer assesses the Parties’ respective risk.
Justice Burrows held that an Order under Rule 4.16(2) cannot be granted on the basis of
consent alone. Rule 4.16 renders engaging in a Dispute Resolution Process nearly mandatory.
Such a process was entirely voluntary under the old Rules. If Rule 4.16 could be waived by the
consent of the Parties, the intent of the Rule, that Pre-Trial Dispute Resolution would no longer
be voluntary, would be frustrated. In any event, Justice Burrows held that the Order could not
be granted where the mandatory attendance requirement in Rule 4.16(3) was not satisfied. The
Application was dismissed.
ELEMEN V CARBONEL, 2012 ABQB 674 (VEIT J)
Elemem sought to have Carbonel’s Statement of Defence struck as it contained untrue
statements. Previously, Elemen had served a Statement of Claim for divorce and corollary relief
upon Carbonel who resided in the Philippines. However, Elemen had not applied to the Court
for leave to serve the Statement of Claim outside of Canada.
The Court held that as both Parties were unrepresented and there was no irreparable harm to
either Party, Rule 1.5 could be applied to correct the deficient service. The Court also applied
Rule 1.5 to strike the portions of the Pleadings that dealt with corollary relief as the Philippines
was the forum conveniens.
The Application to strike the Statement of Defence was not granted, as the appropriate process
when the Pleadings conflict is to proceed to Trial, not to strike the Pleadings. The Court granted
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the divorce as there was no dispute regarding the facts that gave rise to the granting of a
divorce.
COOPER V GANTER, 2012 ABQB 695 (PARK J)
The Defendant, Her Majesty the Queen in Right of the Province of Alberta (the “Crown”),
applied for Summary Judgment to dismiss the Plaintiffs’ Action against it, arguing that there
was no merit to the Plaintiffs’ claim. The Crown argued that the Amended Statement of Claim
sought a public law remedy in the nature of a Writ of Mandamus against it, which had to be
pursued via Judicial Review. The Crown further submitted that any such Judicial Review was
barred by the six month limitation period set out under Rule 3.15, as the original Statement of
Claim was filed some 16 months after the Plaintiffs became aware of the Crown’s Decision
affecting them.
The dispute arose over a license for a Registered Fur Management Area which was given by one
of the Plaintiffs, Marvin Boucher, in 1999 to his sister, Bertha Ganter (“Ms. Ganter”). After Ms.
Ganter’s death, the Crown concluded that the license was vacant and awarded it to the
Defendant, Stephen Ganter (“Mr. Ganter”). Boucher argued that Ms. Ganter intended to have
the licence revert back to him. In the Amended Statement of Claim, Boucher requested an
Order directing that the licence be returned to him.
The Plaintiffs argued that a constructive or express trust existed by virtue of Ms. Ganter’s letter,
and that the licence should not have reverted to the Minister under the Wildlife Act. The
Plaintiffs also submitted that the remedy of a Declaration, as sought in the Amended Statement
of Claim, was a situation to which Rules 3.15(1) and (2) did not apply; therefore, there was no
time limitation of six months. Justice Park held that the Plaintiffs’ attack on the Crown’s
Decision formed the basis for Judicial Review and was in form and substance a Writ of
Mandamus. The Claim was therefore subject to the six-month limitation period in Rule 3.15,
and the limitation period had expired prior to the claim being filed.
Justice Park also noted that the Court had discretion under Rule 1.5(1) to convert the Amended
Statement of Claim to an Originating Application for Judicial Review, but declined to exercise
this discretion as there was no Application by the Plaintiffs for such relief. Further, it was held
that to do so would circumvent the operation of the six month limitation period for Judicial
Review under Rule 3.15. Justice Park granted Summary Judgment in favour of the Crown,
holding that there was no merit to the Plaintiffs’ claims.
ABQB 699 (GATES J)
Toronto-Dominion Bank (“TD Bank”) brought an Application to compel the Defendant, John
Collins (“Collins”), to provide answers to Undertakings arising from his Questioning. TD Bank
also sought an Order declaring that the subject of the Undertakings was relevant and material
and allowing TD Bank to question Collin on these matters. Gates J. first noted that the wording
of Rule 5.2(1) was identical to the wording of former Rule 186.1 and case authority interpreting
the former Rule was applicable to interpreting the new Rule. Under the former Rule, oral
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Examinations for Discovery were confined to eliciting primary facts which were directly at issue,
or facts from which the existence of primary facts might be directly inferred. The question was
to be determined by reference to the issues raised by the Pleadings. Gates J. cited Weatherill
(Estate of) v Weatherill, 2003 ABQB 69 [Weatherill], which set out that relevance must be
determined with respect to the issues defined in the Pleadings. The Pleadings are also relevant
to the issue of materiality. Gates J. quoted from Weatherill:
In deciding whether a particular document is material, one must take a very
pragmatic view, viewing the situation from the perspective of the party who
must prove the fact in question. At an interlocutory state of proceedings, the
Court should not measure counsels’ proposed line of argument too finely; if
counsel can disclose a rational strategy in which the disputed document plays a
material part, that should be sufficient.
In this case, Collins acknowledged during Questioning that he was mistaken as to the then
current value of the property when he swore the Affidavits of Value. Gates J. held that Collins
opened the door to further Questioning relative to other Affidavits of Value sworn in relation to
properties that were subject to earlier foreclosure proceedings. Based on this, Gates J. accepted
TD Bank’s argument that Questioning relative to earlier transactions could significantly help
determine an issue raised in the Pleadings. While the Court was prepared to direct that Collins
respond to questions related to earlier foreclosure proceedings, it was not prepared to go so far
as to allow TD Bank to question Collins on all 56 foreclosure-type Actions against Collins, or the
corporation he solely owned. Gates J. stated that permitting such a broad range of Questioning
would serve little purpose other than to unnecessarily delay the proceedings. It was left up to
TD Bank to identify a reasonable number for the purposes of Questioning. The Court also
directed that TD Bank obtain any of the relevant documents from the earlier foreclosure-type
Actions that it wished to present during the continued Questioning, as TD Bank was not to use
the Order from this Application to indirectly require Collins to expand his document production
obligations.
NEXXTEP RESOURCES LTD V TALISMAN ENERGY INC, 2012 ABQB 708 (POELMAN J)
Nexxtep applied to strike portions of the Affidavit of Talisman pursuant to Rule 3.68. Nexxstep
argued that the Affidavit contained testimony and attached exhibits which Talisman should
have produced at Trial and allegations of damages for which Talisman did not Counterclaim.
Talisman submitted that it was entitled to Costs of the Action, while Nexxtep maintained that
each party should be responsible for its own Costs.
Justice Poelman noted that the Court may consider any matter relevant to Costs under Rule
10.33, and that there are many matters relevant to Costs that are not relevant to liability and
relief. Such matters may be adduced by way of representations of counsel, Affidavit evidence,
and viva voce testimony. The Court found that the evidence was admissible as it was relevant to
determining Costs, and the Application to strike the Affidavit or portions of it was dismissed.
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Nexxstep argued that each party should have been responsible for its own Costs because the
basis of the original Judgment was not argued by either party, which amounted to divided
success. His Lordship stated that the result of the Trial was in favour of Talisman on all issues of
substance between the parties. The Court concluded that Talisman, as the successful party, was
entitled to its Costs.
Before Trial, Talisman served a Formal Offer to Settle pursuant to former Rules 169(3), 170(5),
and 174. Neither Justice Poelman nor the parties suggested that the difference in wording
between the aforementioned former Rules and their new Rules counterparts, Rules 4.24 and
4.29, should alter the determination of Costs consequences in this matter.
Talisman argued that it was entitled to Double Costs under Rule 4.29(3) because: (a) Nexxstep
did not accept Talisman’s Formal Offer to Settle; and (b) Talisman received an award more
favourable than the Offer. The Court found that Talisman’s Offer to Settle contained too many
alternatives when issues associated with the pending Trial remained undetermined. There was
no evidence at Trial to confirm the practical difference of many geological terms used in the
Offer to Settle, and Justice Poelman said that Nexxtep was “entitled to precision in the terms of
an Offer, particularly at the stage when it has to make its decision”. The Court found that it was
not proper to award Double Costs in favour of Talisman.
Finally, Nexxtep argued that Talisman’s claims for expert charges should have been significantly
reduced because of the experts’ unclear or unhelpful contribution to the proceedings. The
Court found that Talisman’s expert charges were reasonable and proper, stating:
The fact that an expert’s evidence was not referred to in my reasons or an expert
did not testify … or that some were found not particularly helpful, is not
determinative.
BUDD V MBE JET LTD, 2012 ABQB 714 (WILSON J)
After reviewing counsels’ written submissions, Justice Wilson awarded the Plaintiffs Costs of
$3,500.00, $3,000.00 of which was a penalty for failure to serve an Affidavit of Records in
accordance with Rule 5.5.
DEBONA V DEBONA, 2012 ABQB 720 (MILLER J)
The Applicant requested that the Case Management Judge be recused due to insight obtained
by the Case Management Judge while conducting the Judicial Dispute Resolution. The Applicant
submitted that this insight would lead to bias against the Applicant.
The Court held that in the area of Case Management “courts should not easily and quickly
accede to requests for recusal”. Additionally, the Court held that delay in family law cases
involving children should be avoided if possible.
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The Court held that the Applicant willingly entered into the JDR process knowing who the
Justice was, and allowing the Application would derail the litigation. The Application was
dismissed.
BOWMAN V RADFORD ESTATE, 2012 ABQB 722 (MASTER SCHLOSSER)
The dispute between the Parties in this case arose in connection with the distribution of a
quarter section of land. The Executor originally sold the quarter section to the Plaintiff, but title
was never transferred. Subsequently, when one of the beneficiaries, Ms. Brooks, became
Trustee, she sold the same quarter section to another party, who transferred title into their
name. The Application was made to have portions of the Pleadings struck or amended, and also
to have the Claim summarily dismissed.
In order for the Applicant’s Summary Dismissal Application to succeed, Master Schlosser stated
that it must be “plain and obvious” or “beyond doubt” that there was no merit to the Plaintiff’s
Claim. The Applicant Defendant would have to show both that the sale of the property was
made solely for the purpose of distribution, and that the beneficiaries were opposed to it. The
Applicant did not file an Affidavit and Master Schlosser held that it was clear on the evidence
that the Estate was not fully administered. Master Schlosser further noted that it could not be
said that it was plain and obvious or beyond doubt that the sale of the second quarter was for
distribution to the beneficiaries only and that their lack of concurrence barred the sale of the
land to the Plaintiff. Based on this, there appeared to be a triable issue.
A portion of this Application was to strike parts of the Statement of Claim for serious defects.
The Defendant argued that a paragraph of the Claim should be struck because it referred to the
“Defendant Estate and Brooks and Graunke, either individually or as a group” (emphasis
added), which was taken by Master Schlosser to mean that the Plaintiff was seeking to make
the beneficiaries personally liable. It was noted that there was nothing in the evidence or the
allegations that would attract personal liability to the beneficiary. Her only involvement was in
a representative capacity as Trustee of the Estate. Based on this, Master Schlosser held that this
part of the Application was justified.
The Style of Cause named “[The] Estate of Julianita Radford, Susan Brooks and
RemediosGraunke”. Master Schlosser noted that an “Estate” is not a legal entity and a
deceased person was also not a legal entity. Naming only the Estate would have been fatal, but
in this case it was held to be a curable irregularity. The allegations against Ms. Brooks
personally were struck and the Style of Cause was to be corrected to show Ms. Brooks in her
representative capacity as Trustee of the Estate. Master Schlosser ordered the Statement of
Claim to be amended, filed and served within thirty days of the date of the Order. In the end,
the Applicant succeeded in having portions of the Pleadings struck or amended, but the
Summary Dismissal Application was dismissed.
KNISS V ELLIOTT, 2012 ABQB 732 (MACLEOD J)
This was an Appeal from a Master’s Decision to strike an Originating Notice for Judicial Review,
as well as to strike an Action for defamation. Both were struck pursuant to Rule 3.68.
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The Appellant was an employee of Telus and a member of the Telecommunications Workers
Union (the “Union”). Following the Appellant’s termination, the Union brought a grievance on
his behalf against Telus for wrongful termination. An Arbitrator found that the Appellant was
not wrongfully terminated. The Union did not seek Judicial Review of this Decision.
The Appellant sought Judicial Review of the Arbitrator's Decision on his own behalf. Telus
applied for an Order pursuant to Rule 3.68 to strike out the Originating Notice on the basis that
the Appellant had no standing to seek Judicial Review of the Arbitrator's Decision. The Master
granted the Order.
The Appellant Appealed again, this time arguing that he had not received fair representation by
the Union. MacLeod J. concluded that the Master was correct in striking the Originating Notice,
stating:
…The [Canadian Industrial Relations Board] has the exclusive jurisdiction to
determine whether Mr. Kniss received fair representation, and it found that he
did. Had it found otherwise, the panel could have ordered the [Union] to seek
judicial review of the decision […] Mr. Kniss cannot now ask this Court to make a
new finding on essentially the same issue…
The Defendants to the Appellant’s defamation Action also filed an Application pursuant to Rule
3.68 for an Order striking out the Statement of Claim. They claimed the comments were made
in the course of employment, and thus the allegations constituted employment grievances and
fell within the sole jurisdiction of the Arbitrator under the terms of the collective agreement.
The Master granted the Order. MacLeod J. dismissed the Appeal of the Master’s Order.
HOSACK V WIEGERS, 2012 ABQB 739 (MASTER BREITKREUZ)
The Plaintiff commenced a Civil Action against a Police Officer for head injuries sustained during
an arrest. According to the Defendant, the last significant step in the proceeding was a Pre-Trial
Conference which took place on October 10, 2006. The Plaintiff was later arrested and held in
custody for murder in British Columbia in 2009.
The issue was whether the Civil Action should be Dismissed in accordance with Rule 4.33. The
Court considered the issues of whether the Plaintiff was mentally fit to instruct counsel, as well
as whether it was physically possible for him to stand Trial (being that he was in custody in
British Columbia). After reviewing the Plaintiff’s psychiatric report, Master Breitkreuz
determined that the Plaintiff was likely fit to instruct counsel; however, he was not physically
able to do so as long as he was imprisoned in British Columbia. The Master then determined
that the Plaintiffs ability to advance this Action would depend almost entirely on his being
found not guilty of murder. Under the circumstances, Master Breitkreuz made the following
Order:
… that if the plaintiff is acquitted of the murder charge he will have 45 days after
the expiry of the appeal period, to take the next significant step in these
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proceedings. If he is convicted of the murder charge, this action will be dismissed
upon the expiry of the appeal period.
In dealing with the strict requirements imposed on the Court by the new drop dead rule,
Master Breitkreuz quoted 4.33(2) and made the following comment:
Rule 4.33(2) provides as follows:
(2) If the Court refuses an application to dismiss an action for delay, the Court
may still make whatever procedural order it considers appropriate.
It is apparent to me that this sub-rule is intended to moderate the harsh effect of
4.33(1).
WILDE V LANGTON, 2012 ABQB 742 (LEE J)
The Defendants applied for an Order for Summary Judgment against the Plaintiffs. The
Defendants filed evidence in the form of Affidavits and Expert Reports. The Plaintiffs did not file
any evidence in response to the Defendants’ Application. At the Application, the Plaintiffs
provided the Court with an Expert Report that was not in the proper form. The Defendants
argued that such a Report should not be considered by the Court as evidence in the Summary
Judgment Application. Justice Lee, however, held that the Expert Report, while not in the
proper form, was still evidence before the Court. The Expert Report provided evidence in
defence of one of the Defendants, but not the other. Justice Lee ordered the Claim struck as
against the Defendant that the Plaintiffs’ Expert Report did not address, and dismissed the
Summary Judgment Application of the other Defendant. Justice Lee further ordered that the
Plaintiffs serve all of their Expert Reports in the proper form and within four months.
AGF TRUST COMPANY V SOOS, 2012 ABQB 747 (MASTER SMART)
The Plaintiff’s Bill of Costs in a foreclosure Action was reviewed by the Assessment Officer, as
contemplated by Rule 9.35(1)(b). Pursuant to Rule 9.35(4), the Plaintiff’s counsel re-attended
before Master Smart for the purpose of settling Costs. Master Smart noted that the Action was
a standard residential foreclosure with little out of the ordinary. The Statement of Claim
consisted of 10 boilerplate paragraphs, and included incorrect mortgage information. The
Affidavit of Default was also a boilerplate document, and included information inconsistent
with the Statement of Claim. Current title was not filed as required by Rule 9.31(a), although a
copy of title was stapled to the back of counsel’s file folder. A Notice of Application was filed to
accept an Offer to Purchase, but no material was filed in support of the Application, including
the Offer to Purchase or a final Affidavit of Default.
The Plaintiff sought legal fees of $6,500.00, plus disbursements and other charges, representing
31 hours of time spent on the file, with no differentiation between lawyer and paralegal time.
The Assessment Officer allowed legal fees of just over $5,000.00. Master Smart held that
lenders in foreclosure proceedings attempt to reduce costs by downloading responsibility to
lawyers, including many administrative tasks. That lenders demand lawyers perform
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administrative work does not make such tasks legal services which are recoverable against a
mortgagor. Master Smart held that there was a failure to comply with the requirements of the
foreclosure Rules, and that there were concerns regarding overpayment to the mortgagee.
Master Smart allowed legal fees of $3,850.00, with the balance for disbursements and other
charges as approved by the Assessment Officer. Master Smart also held that a determination as
to whether Costs should be assessed pursuant to Rule 10.49(1) for contravening the foreclosure
Rules would be made once counsel filed a full explanation of the mortgage balance calculation
along with supporting documentation.
ERKETU V WILSON, 2012 ABQB 748 (MASTER WACOWICH)
The question before the Court was when Expert Medical Reports should be exchanged by the
Parties. The Defendant argued that a determination as to whether he would make a Rule 5.41
Application for a Medical Examination of the Plaintiff was not required until the Plaintiff
provided his Experts’ Reports pursuant to Rule 5.35—Rule 5.35 provides that if a Party intends
to rely on expert evidence at Trial, the Experts’ Reports must be served in a specific sequence.
The Party who bears the primary burden of proof must serve their Experts’ Report first,
followed by the rebuttal Experts’ Reports of the other Parties. The Party who served the initial
Experts’ Report may then serve surrebuttal Experts’ Reports. Master Wacowich noted that no
such sequence was required under the former Rules, which provided that each Party had to
serve their primary Experts’ Reports not less than 120 days before Trial.
Experts are required to provide their honest opinion as to the state and extent of the Plaintiff’s
injuries. It is more likely that the Defendant’s expert will provide a fresh opinion if he or she is
not influenced by another expert opinion. As such, there was no reason why the Defendant
could not or should not make a determination on the Rule 5.41 Application within a reasonable
period of time after Questioning. Master Wacowich held that the old practice should be
continued, and that the Plaintiff should not be required to produce its reports until the
Defendant has obtained its Rule 5.41 report or waived its right to apply for one. Although Rule
5.41 does not clearly provide for such an approach, it does not preclude it. Pursuant to Rule
5.35(2), Master Wacowich ordered that the Plaintiff was not required to serve his Experts’
Reports without further Court Order.
Master Wacowich also noted that Rule 5.41 does not include a provision for the Court to direct
the Defendant to make an election under Rule 5.41. However, Rule 1.2 provides that the Rules
are intended to facilitate the quickest means of resolving a Claim at the least expense. Master
Wacowich directed that within two months the Defendant was required to either make a Rule
5.41 Application or advise Plaintiff’s counsel that he would not be making such an Application.
Failing that, the Plaintiff’s Experts’ Reports would be provided. Should the Defendant thereafter
attempt to make a Rule 5.41 Application, Master Wacowich recommended that members of
the Court refuse the Application on the basis that such an Application is not in good faith and
not in harmony with the preferred and longstanding practice of the Court.
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DASH DISTRIBUTORS INC V POWLIK, 2012 ABQB 770 (MASTER SCHLOSSER)
The Applicant, by way of an Originating Application, sought an Order compelling the
Respondent to transfer shares. The Respondent made a Cross-Application submitting that the
Action should have been commenced via a Statement of Claim. The Respondent also argued
that the matter was not appropriate for summary disposition.
The dispute centred on a release that set out a distribution of shares. The Applicant argued that
the release was the agreement. The Respondent argued that the release was only a release,
and the agreement was made orally. Further, the release did not fully reflect the oral
agreement.
The Court held that there was a substantial factual dispute, and thus the Action could not be
decided summarily and had to be converted to a Statement of Claim.
MURPHY V CAHILL, 2012 ABQB 793 (VEIT J)
The Applicant sought to have the Affidavit of Margaret Cahill struck, and the Affidavits of Gerald
Cahill and Alice Wilson redacted.
In relation to the Affidavit of Margaret Cahill, the Applicant argued that it should be struck
because of the delay and obstruction of Margaret Cahill. The Court held that the striking of a
Party’s Affidavit in a contested Application, leaving that party with no evidence, is an extreme
measure. The Court held that the evidence did not support a finding of delay and obstruction.
The Applicant argued that the Affidavit of Gerald Cahill contained hearsay and irrelevant and
improper opinion evidence. The Court held that hearsay evidence can be used in a response to
an Application that may dispose of all or part of a Claim. Rule 13.18 only prevents hearsay
evidence in support of an Application that may dispose of all or part of a Claim. Additionally,
the common law hearsay exceptions apply to Affidavits used in support of an Application that
may dispose of all or part of a Claim. The Applicant’s argument relating to irrelevance focused
on evidence regarding credibility. The Court held that the absence of complete Pleadings, as the
matter was commenced via Originating Application, made it unwise for a Court to rule
precipitatedly on relevance. Additionally, subject to certain exceptions, credibility evidence was
relevant. The Court held that the disputed opinion evidence should be dealt with via
submissions when the matter was heard, and not via an Application to strike.
In relation to the Affidavit of Alice Wilson, the Court held that the use of the alleged
inadmissible opinion evidence, relating to credibility, should be dealt with by the Judge who
hears the matter. The Application was dismissed.
PRECISION DRILLING CANADA LIMITED PARTNERSHIP V YANGARRA RESOURCES LTD, 2013
ABQB 2 (MASTER PROWSE)
A procedural question arose in the context of a Summary Judgment Application brought by
Precision against Yangarra. Yangarra sought to issue subpoenas to four Precision personnel,
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pursuant to Rule 6.8. The transcript of the examinations of those four witnesses would then be
put in evidence in the Summary Judgment Application.
Master Prowse determined that Yangarra was entitled to Question the four witnesses pursuant
to Rule 6.8. The only issue was “whether Yangarra’s examination is an examination in chief or a
cross-examination”.The Law under former Rule 266 was settled: the Examination of the party
issuing the subpoena was an Examination in Chief. According to Master Prowse, this has not
changed in the new Rules: “A party calling a witness under Rule 6.8 must conduct the
examination as an examination in chief, as previously under Rule 266”.
Master Prowse noted that Rule 6.8 makes reference to Rule 6.20, which states that Questioning
by Parties adverse in interest may take the form of Cross-Examination:
6.20(2) Questioning and questioning again under this rule by parties adverse in
interest may take the form of cross-examination.
Master Prowse stated that the correct way to determine if a Party is adverse in interest
is as follows:
The party who issues the subpoena is calling the witness as his/her witness –
therefore it is the other party who is ‘adverse in interest’ and may crossexamine.
Master Prowse concluded by noting that: “[if] Yangarra chooses to subpoena a witness under
Rule 6.8, then that is their witness. Yangarra cannot be considered ‘adverse in interest’ to their
own witness”.
PRAGER V CANADA HOMES 4 RENT.COM INC, 2013 ABQB 3 (KENT J)
The Applicant filed an Originating Application seeking a declaration that he was a shareholder in
the Respondent Company. The Application was based on an agreement purportedly signed by
the Applicant and a Principal of the Respondent Company. The Principal swore an Affidavit in
which she stated that she did not recall discussing or signing the agreement. The Action
proceeded through Questioning on the Affidavits and was set down for Argument. One week
before Argument was set to commence, the Respondent filed a Statement of Claim against the
Applicant.
Justice Kent noted that Rule 3.2 sets out how an Action may be commenced. Rule 3.2(2)
provides that an Action must be commenced by Statement of Claim, unless one of several
conditions is met. Unlike the former Rule, there is no provision in Rule 3.2(2) that permits an
Action to be commenced by Originating Notice if the Claim is based on a written instrument
where there are no material facts in dispute.
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Justice Kent held that the Statement of Claim gave rise to issues beyond simply whether there
was an agreement to give shares to the Applicant, including issues relating to consideration and
limitations. Justice Kent held that while the Originating Application may have been the
appropriate document at the time it was filed, the operative document in the matter had
become the Statement of Claim.
In this context, Justice Kent declined to grant the Applicant the declaration sought in the
Originating Application. However, Justice Kent further held that the Applicant was not
precluded from seeking other Summary Relief in the future, provided additional issues raised in
the Statement of Claim were addressed. Finally, Justice Kent held that although the
Respondents were successful, thrown away Costs would be awarded to the Applicant.
CAG V SG, 2013 ABQB 12 (JONES J)
Following a Judgment on a family law matter, the Parties were also directed to make written
submissions respecting Costs. The Director of Maintenance and Enforcement and Child Support
Services suggested that no Costs should be awarded against the Director, citing the decision in
Budge v Budge, 2010 ABQB 608. The Court stated that this case suggested that when the Crown
was a regular litigant, it paid Costs like any other litigant. However, the Crown was not
characterized as a “regular litigant” when it was acting in a “child support environment to
address the interests of the public and the children”. In such a situation, it was only appropriate
to grant Costs against the Director if there were special or unusual circumstances.
SG sought reimbursement for Costs associated with travelling to Calgary, and CAG sought
reimbursement for legal services. Justice Jones noted that fees, determined in accordance with
Division 2 of Schedule C of the Rules, would, as they related to matters that did not involve a
monetary amount, be determined in accordance with Column 1. In this case, monetary
amounts were in issue, however, the Parties were not seeking Costs computed in accordance
with the various line item components of the columns under Division 2. Instead, each simply
specified a total amount in respect of which they sought reimbursement.
Jones J. determined that each party should bear their own Costs. This finding was based on
several factors. First, pursuant to Rule 10.29, SG was substantially successful in achieving his
objectives and as such, was entitled to a Costs award against the unsuccessful party. That being
said, Rule 10.29(a) provided that it was subject to the Court’s discretion to award Costs under
Rule 10.31, which was to take into account the factors set out under Rule 10.33. Jones J.
considered the factors under Rule 10.33 and concluded that SG could have, in light of his
medical condition, asked to participate in the Application before the Court by video link, which
would have made it unnecessary for him to travel to Calgary. SG was required to bear the Costs
incurred from travelling to Calgary because they were avoidable.
Jones J. also noted that CAG’s much greater cost outlays were incurred so she could properly
advance her argument that, among other things, earlier Orders which denied SG’s request for
extinguishment of arrears were res judicata. This issue was not canvassed in previous Decisions
and SG advanced no argument to illuminate this point; therefore, with reference to Rule
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10.33(1)(g), Jones J. held that it was appropriate to recognized CAG’s contributions to the
resolution of the issue by requiring SG to bear responsibility for his own Costs. The Court
concluded by holding that SG and CG would bear their own Costs and no Costs were to be
awarded in favour of or against the Director.
TLM V MGH, 2013 ABQB 14 (JONES J)
This Domestic Special Application was a consolidation of Applications with both Parties seeking
an Order for various forms of relief. Four of the five requests for relief by MGH were dismissed
and two of the five requests for relief by TLM were dismissed. TLM sought Double Costs,
arguing that a proposed Consent Order constituted a Formal Offer, and the Order of the Court
was more favourable to TLM than the proposed Consent Order. Jones J. held that the Court’s
Order was different than the proposed Consent Order in ways that favoured both Parties. Thus,
Double Costs were not awarded. However, TLM was awarded Costs as the Court held that TLM
was more successful than MGH.
DBF V BF, 2013 ABQB 16 (JONES J)
Justice Jones issued a Judgment implementing shared parenting arrangements and ordered
that the Parties retain joint custody of the child. The Parties were also directed to provide
written submissions regarding Costs, including Costs incurred in connection with the direction
of the Court that a Family Law Practice Note 7 Intervention be conducted, which resulted in a
report issued by Glenda Lux, Registered Psychologist (“Lux Report”).
Jones J. held that Costs should be awarded in favour of BF regarding the Application, computed
in accordance with Column 1 of Division 2, Schedule C of the Rules. This Decision was based on
consideration of Rule 10.29, which provided that the successful Party to an Application should
be awarded Costs. In this case, BF was successful in securing the relief he sought. Jones J. also
noted that Rule 10.29 was subject to the Court’s discretion under Rule 10.31, which required
that the Court take into account the factors specified under Rule 10.33. Jones J. considered the
factors under Rule 10.33 and noted that none of those factors suggested a departure from the
notion that a successful Party should be entitled to Costs.
Additionally, consideration of these factors did not suggest a departure from the commentary
in the Rules where it was noted that, “[U]nless the Court otherwise orders, matters which have
no monetary amounts, for example, injunctions, will be dealt with under Column 1”. The
Application in this case did not involve a monetary amount and, in his submissions, BF did not
elaborate on why Column 2, should apply to this case. Jones J. noted that the Court was at
liberty to depart from Column 1, but saw no reason to do so. Neither were the factors set out in
Rule 10.33(2) seen as being of particular significance regarding this Decision on Costs.
Concerning the Costs of the Lux Report, Jones J. held that it they should be borne equally by the
Parties. The notion of equal responsibility motivated the primary commitments of the Parties
and the Lux Report helped the Court better assess how to respond to conflicting views;
therefore, it was held as logical that the Parties share those Costs.
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KENT V MARTIN, 2013 ABQB 36 (TILLEMAN J)
The Applicant proposed to have in-Court cross-examinations on the Affidavits of four Parties
that had made Applications for Summary Judgment. The Applicant claimed that, due to the
complexity of the litigation and a multitude of problems arising from Discovery, this step was
necessary to resolve the claim in a timely and cost effective way. Counsel for each of the
Respondents argued that Rule 6.11(1)(g) gives the Court considerable discretion, but since
there is no case law on the new Rule, the limiting principles under former Rule 276(1) should
apply, and that oral examination at Application hearings should only be allowed in
“exceptional” or “extraordinary” circumstances.
The Court agreed with the submissions put forward by the Respondents, stating:
I have contemplated the options including the normal approach (Rule 5.25) and
the exceptional approach under Rule 6.11(1)(g). I have thought through the time
demanded of the proposed judicial role, which would mean I supervise
examination and objections, giving rulings “on the spot”. While … there would be
some efficiency to having any objections ruled on simultaneously, that would
also be an unpredictable and very time consuming process. In the result, the
proposed use of Rule 6.11(1)(g) risks significantly extending the discovery
process. I do not consider that appropriate.
The Court concluded by dismissing the Rule 6.11 Application:
For the reasons above, the application to invoke Rule 6.11(1)(g) is dismissed. The
new Rule, while written somewhat differently than previous Rule 267, is still a
discrete option that should be used only if other methods of resolving objections
or questioning difficulties have failed. Judicial resources are indeed scarce.
LIA SOPHIA CANADA, LP V PARKLANE JEWELRY LIMITED, 2013 ABQB 53 (KENT J)
The Plaintiff served Parklane U.S. ex juris and Parklane U.S. brought this Application disputing
service. Parklane U.S. stated that service was not valid because of a failure by the Plaintiff to
attach a document or Affidavit that set out the grounds for service outside of Canada and also
because there was no good arguable case. Kent J. began by stating that there was no dispute
that the test for valid service ex juris was a good arguable case. Citing prior case law, Her
Ladyship set out that a good arguable case was not fanciful or speculative, but grounded on
some evidence upon which an objective trier would say that “on the basis of the facts
presented, the case is arguable and not to be dismissed out of hand”. In this case, it was held
that the Plaintiff provided evidence that showed a relationship between the executives of
Parklane U.S. and other Defendants which would allow a Trial Judge to draw inferences about
what occurred. This was sufficient for demonstrating a good arguable case and Kent J. held
that, given such a finding, the issue about the technical service deficiency became moot. Service
of the claim on Parklane U.S. was valid.
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GUAY ESTATE, 2013 ABQB 58 (BURROWS J)
The Executor of the Plaintiff Estate brought an Application seeking an Order allowing for the
distribution of the Estate. Ms. Ivany, the daughter of the Testator, had previously brought a
Dependants Relief Application. The Dependants Relief Application had been struck from the list
as Ms. Ivany had not filed a Brief. Additionally Ms. Ivany did not appear for Questioning after
being served with an appointment for the same.
The Court held that the evidence before the Court was insufficient to allow for a determination.
In particular, Ms. Ivany relied upon a letter from a doctor outlining that she was not capable of
handling work related responsibilities. The Court held that this was not evidence as it was not
sworn, and was not converted to evidence by being attached to a signed Form 25. The Court
directed Ms. Ivany to take specific steps, failing which an Order would be granted for the
distribution of the Estate.
BOHN V PG&E CORPORATION, 2013 ABQB 77 (MASTER HANEBURY)
The Plaintiffs brought an Action for wrongful dismissal against the Defendant Corporation. The
Defendant applied for Summary Judgment, and argued that the Plaintiffs were terminated for
cause for converting company funds.
Citing Forwest Development Enterprises Ltd v High River Regional Airport Ltd, 2012 ABQB 785,
Master Hanebury held that a Plaintiff responding to a Summary Judgment Application need not
prove each element of its cause of action. Rather, a Plaintiff need only raise enough evidence to
justify the Action going to Trial. A Respondent may defeat a Summary Judgment Application by
demonstrating disputes with respect to questions of fact, or with respect to points of law that
are unsettled or cannot be easily resolved in the context of the factual disputes. The existence
of a question of law will not, without more, defeat a Summary Judgment Application.
Master Hanebury held that, while it was clear that the Plaintiffs converted company funds, it
was not clear that the conversion ended the trust relationship between the Parties in a way
that justified the Plaintiffs’ immediate termination. The facts demonstrated that the Plaintiffs
were allowed continued access to the Defendant’s offices and e-mail, and continued as signing
authorities on the Defendant’s bank accounts. As such, Master Hanebury dismissed the
Summary Judgment Application because the Defendant had not demonstrated that there was
no genuine issue for Trial.
The Defendant further argued that Summary Judgment should be granted on the basis that the
Plaintiffs failed to demonstrate any damages. In a Summary Judgment Application, the
Respondent need only demonstrate a genuine issue for Trial, and is not required to prove its
damages. Although the Plaintiffs’ provision of an unsubstantiated estimate of damages and a
bare assertion that expert evidence would be proffered at Trial was insufficient to defeat a
Summary Judgment Application, anomalies in the Defendant’s evidence with respect to
damages were an insufficient basis upon which Summary Judgment could be granted.
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The Defendant further argued that Summary Judgment should be granted on the basis that
releases executed by the Plaintiffs immunized the Defendant from their claims. Rule 13.6(3)
requires that a pleading set out any matter on which a Party intends to rely, including payment
and release. The purpose of Rule 13.6(3) is that a Plaintiff not be caught by surprise by
unanticipated defences. Master Hanebury held that because the requirements of Rule 13.6
were not met with respect to this defence, the Defendant’s argument relating to the release
would not be considered. However, the Summary Judgment Application would be renewed on
the release issue after the Statement of Defence was amended to include this defence.
ORR V ALOOK, 2013 ABQB 86 (MASTER SCHLOSSER)
The Applicants sought summary dismissal. The Plaintiff, Andrew Orr, and the Defendant, James
Alook, had been rivals for leadership of the Defendant, Peerless Trout First Nation, since the
mid-nineteen nineties. There were three parts to the Action: defamation, conflict of interest
and breach of contract.
The defamation allegation related to the posting of a “draft” Statement of Claim at the band
office. The Court dismissed the defamation allegation holding that there was no merit to the
Claim. The Court also held that the alleged defamation was not sufficiently particularized.
The Applicants alleged that when James Alook was the Chief of Peerless Trout First Nation he
used a non-profit corporation for his personal benefit, instead of the benefit of Peerless Trout
First Nation. Relating to alleged conflicts of interest, Master Schlosser held that:
In a summary dismissal application, the Applicant bears the legal burden
throughout. Once the Applicant has discharged its evidentiary burden of, in this
case, showing that there is no merit to a portion of the claim, the evidentiary
burden then falls to the Respondent to show that there is at least an arguable
case. The law in this area is well settled. In this case, the Respondent tendered
no evidence. There is nothing to displace the Applicant’s position that the
conflict allegations and the claims in paras. 18-21 are without merit. Accordingly,
this portion of the claim is dismissed.
The last issue related to an alleged breach of contract relating to the negotiation of land claims.
Peerless Trout First Nation submitted that it could not be held liable because the alleged
breaches occurred before its formation as a band under the Indian Act, RSC 1985, c I-5. The
predecessor groups were community associations registered under the Societies Act, RSA 2000,
c s-14. Peerless Trout First Nation argued that it could not be sued for any contracts formed
prior to it becoming a band. The Court undertook an extensive analysis. The Court held that the
acquisition of band status is very different than the formation of a corporation. The Court did
not strike this portion of the Pleading, holding that it was not plain and obvious that the
corporate analogy argument would doom the Respondent’s claim.
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ONISCHUK V ALBERTA, 2013 ABQB 89 (ROOKE ACJ)
Onischuk initiated various court Actions over several years stemming from allegations that he
was exposed to toxic chemicals, as a result of voluntarily participating in a cleanup of chemicals
following the derailment of a train in 2005. The majority of the Actions and subsequent Appeals
were struck. On January 6, 2011, Onischuk filed this claim and also filed a nearly identical claim
in the Federal Court, but the Federal Court struck the Action. To begin, Justice Rooke noted
that, with two exceptions, the Pleadings in the current Action were, in essence, a duplication
from the first Court of Queen’s Bench Action and the Federal Court Action.
The Court considered whether Onischuk was a vexatious litigant under Sections 23 and 23.1 of
the Judicature Act, RSA 2000, c J-2. Justice Rooke stated that an accurate description of a
vexatious litigant was one who repeatedly brought Pleadings containing extreme,
unsubstantiated, unfounded, and speculative allegations against a large number of individuals
to exploit or abuse the Court process for an improper purpose or to gain an improper
advantage. The Court declared the Plaintiff to be a vexatious litigant, as his conduct had been
improper and an abuse of Court processes.
The Defendants requested that Onischuk’s claims be struck pursuant to Rule 3.68 on the basis
that they disclosed no reasonable claim, were frivolous, irrelevant or improper, and constituted
an abuse of process. Regarding whether there was a reasonable claim, Justice Rooke stated that
a Pleading should be struck only when it was plain and obvious that it disclosed no reasonable
Cause of Action. In making this determination, the Court must assume that the allegations of
fact made by the Plaintiff are true, unless the Statement of Claim contains bare allegations with
no facts stated, speculative facts incapable of proof, facts found against the Plaintiff in earlier
stages, or patently ridiculous allegations. The Plaintiff must plead facts, not a bare duty of law,
and the general rule is that where a Statement of Claim is unclear, it should be construed
generally. Justice Rooke considered the allegations against each of the Defendants and, even
assuming the allegations to be true, found that no Cause of Action lay against any of the
Defendants. Based on this, all the Pleadings were struck.
The Court also considered whether the Claim was frivolous, irrelevant or improper. Justice
Rooke noted that a frivolous Pleading was one that was indicative of bad faith or factually
hopeless, or “so palpably bad that the Court needs no real argument to be convinced of that
fact”. In this case, it was held that the complete lack of alleged facts to support the Plaintiff’s
allegations rendered his claims so palpably bad that they were properly classified as frivolous.
Based on this, the Defendants’ Applications to strike were also granted on this ground.
The final factor considered for striking the Statement of Claim was whether it was an “abuse of
process”. The Court noted that the doctrine of abuse of process engaged the inherent power of
the Court to prevent the misuse of its procedure in a way that would be manifestly unfair to a
party to the litigation or would in some other way bring the administration of justice into
disrepute. Abuse of process may be established where: (1) the proceedings are oppressive or
vexatious; and (2) violate the fundamental principles of justice underlying the community’s
sense of fair play and decency. In this case, Justice Rooke held that the Plaintiff’s Pleadings
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complained about the actions of lawyers and judges, alleging, among other things, conspiracies
and tampering, and advanced no reasonable Cause of Action. Based on this, it was held that the
proceedings contained the hallmarks of vexatious litigation and, if the Action was allowed to
proceed, it would bring the administration of justice into disrepute.
Finally, Justice Rooke considered whether, in the alternative, the Defendant should be granted
Summary Judgment. Justice Rooke held that the Plaintiff’s Pleadings disclosed no reasonable
Cause of Action; therefore, there was no genuine issue for Trial. Having found that there was no
merit to the Plaintiff’s claims, the onus shifted to the Plaintiff; however, he did not put forward
any evidence. Justice Rooke held that if the claims against the Defendants were not already
struck, the Court would have found Summary Judgment was warranted.
COMMISSIONER), 2013 ABQB 106 (ROSS J)
Following a Supreme Court ruling in respect of timelines prescribed by the relevant legislation,
this matter was remitted to the Alberta Queen’s Bench to address the other issues raised in the
initial Originating Application for Judicial Review. The Applicant filed an Amended Originating
Application for Judicial Review. The Respondent challenged the amendments.
The Court held that “the discretion to define the proper scope of a judicial review application
rests with the judge hearing the judicial review application”. To determine that scope, Justice
Ross addressed the principles governing the Court’s discretion to permit amendments pursuant
to Rule 3.65. The onus is on the party objecting to the amendment to show irreparable
prejudice. Amendments are permitted to assist the Court in determining the real question in
issue between the Parties. Justice Ross considered circumstances under which amendments
would not be permitted (as articulated in Manson Insulation Products Ltd v Crossroads C & I
Distributors, 2011 ABQB 51). Taking the circumstances into consideration, Justice Ross allowed
the amendments.
SIGGELKOW V CANADA (ATTORNEY GENERAL), 2013 ABQB 116 (STREKAF J)
On August 19, 2010 a search warrant was granted against the Plaintiff, who then applied for
Judicial Review of the search warrant at the Federal Court, and was ultimately unsuccessful.
Following the Decision of the Federal Court of Appeal, issued on April 24, 2012, the Plaintiff
made the present Application to set aside the search warrant in the Court of Queen’s Bench.
Because it was not expressly stated in the materials, Strekaf J. assumed that the Application
was brought under either Rule 3.15 or Rules 830 and 825, pursuant to Part 60 of the Rules that
apply in relation to criminal matters. The Defendants argued that the Application was not
brought within the six month time period contemplated by Rules 3.15 and 830. In response to
the Defendant’s argument, the Plaintiff brought a preliminary Application to extend the time
for filing its Application to set aside the search warrant.
Rule 3.15 requires that an Originating Application for Judicial Review be brought within 6
months after the date of the decision or act. Rule 13.5, which permits the Court to extend any
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time period specified in the Rules, does not apply to Rule 3.15. As a result, Strekaf J. held that
the Application, to the extent it was brought under Rule 3.15, was out of time as the Court had
no jurisdiction to extend the six month time period contemplated by the Rule. Strekaf J. then
held that Rule 13.5 granted the Court the ability to extend the time period considered under
Rule 830, and proceeded to apply the test outlined in Cairns v Cairns, [1931] 26 Alta LR 69, used
to determine whether to extend the timeline for filing an Appeal. Justice Strekaf held that the
Application did not have a reasonable prospect of success and denied the Plaintiff’s preliminary
Application to extend the time for bringing the Application pursuant to Rule 830. As a result,
the Application was dismissed.
CHUTSKOFF ESTATE V BONORA, 2013 ABQB 119 (ROSS J)
The Applicants applied for advice and direction from the Court with respect to the appointment
of a Litigation Representative to represent the Respondent. The Respondent had commenced
the Action as Executor and Trustee of his uncle’s Estate. During enforcement proceedings, an
Application was brought to hold the Respondent in contempt, but during the course of the
Application, the Court received advice that the Respondent was hospitalized for a psychiatric
condition. The Contempt Application was adjourned sine die, requiring the Applicant to give 30
days’ notice to continue the Application so the Respondent could file an Affidavit detailing his
psychiatric condition. The evidence regarding capacity was admitted with the consent of the
Parties. It was in the form of unsworn physician letters and reports and a physician’s Affidavit
which indicated that the Respondent suffered from several serious psychiatric conditions.
Justice Ross first noted that the definition of capacity under the Adult Guardianship and
Trusteeship Act was incorporated in Rule 2.11(c), which provided that “an adult is presumed to
have the capacity to make decisions until the contrary is determined”. The admitted fact that
the Respondent suffered from a psychiatric condition did not mean that he lacked capacity as
defined in Rule 2.11(c). Lack of capacity in the defined sense must be proved on a balance of
probabilities.
None of the letters or reports directly addressed the Respondent’s capacity to understand
relevant information or to appreciate the consequences of decisions relating to the Action. The
evidence suggested that the Respondent’s condition might affect his ability to control his
actions and, if this was the case, the Respondent might require strict Case Management to
enforce timelines and to deal with repeated Applications. The Court held that there was no
basis, on the evidence before the Court, to conclude that the Respondent lacked capacity as
defined in Rule 2.11(c) and did not direct the appointment of a Litigation Representative under
Rule 2.15.
Justice Ross noted that Rule 2.15 put adverse Parties in a difficult position by imposing an
obligation on them to seek Court appointment of a Litigation Representative when an opposite
Party lacks capacity to make decisions about a claim in an Action. The determination of a
Party’s capacity must be based on proper evidence, and the adverse Party might not have the
ability to provide that evidence. In this case, the Applicants asked the Respondent to obtain an
up-to-date letter from his doctor, but the Respondent did not do so. Based on this, the Court
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held that the Applicants fulfilled the obligation imposed by Rule 2.15 and were free to pursue
their intention to bring a Summary Dismissal Application.
AECON INDUSTRIAL WESTERN V INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON
SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS, LOCAL LODGE NO. 146, 2013 ABQB
122 (MASTER SCHLOSSER)
An enforcement creditor applied to have the Respondent Union disclose employment
information about a Union member. The Union was not a Party to the underlying Action. The
central issue was whether the Personal Information Protection Act, RSA 2003, c P-6.5 prevented
the Union from being required to disclose the requested information. After reviewing the
applicable legislation and case law, Master Schlosser concluded that the Union was in fact
required to disclose the information:
[…] it cannot have been the intent of the PIPA to tie up information and thereby
create a modern version of civil debtor’s prison so as to frustrate an execution
debtor’s timely satisfaction of their debts. The purpose of the Act is to protect
reasonable and legitimate expectations, not illegitimate ones.
In relation to Costs and Rule 5.13 Master Schlosser stated:
The concept in Rule 5.13, with respect to compensating an outsider to an action
for providing information, is useful in determining the costs of this application.
Privacy Act law is not settled. It was appropriate that the Union attend and make
what were very helpful submissions. Accordingly, it is appropriate that the Union
receive costs under column 1, item 7(1) for attendance at this application
together with any reasonable costs necessarily arising from the production of
the information requested by the Applicant.
P BURNS RESOURCES LIMITED V LOCKE, STOCK & BARREL COMPANY LTD, 2013 ABQB 129
(BENSLER J)
The Parties disputed whether an oil and gas lease had terminated due to a cessation of
production and working operations. Master Laycock granted partial Summary Judgment and
the Applicants appealed.
The Court outlined the law in relation to Appeals of Masters’ Decisions and Summary
Judgment:
(a) An Appeal from a Master's Decision is a de novo hearing and the Standard of
Review is one of correctness - the Justice may exercise any discretion anew
and substitute their own views;
(b) Subrule 6.14(3) clearly provides that new evidence is admissible if it is
relevant and material - the Rule is clear and is a continuation from the former
Rules; and
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(c) The test on an Application for Summary Judgment is equally clear: an
Application for Summary Judgment requires the applicant to prove there are
no genuine issues to be tried.
Based on the evidence that was before Master Laycock and new evidence presented, the Court
held that the Applicant did not carry on working operations or produce oil, and thus the lease
had been terminated.
KOHLENDORFER V NORTHCOTT, 2013 ABQB 145 (READ J)
This Decision consolidated two Actions which dealt with the same issues. In both Actions the
Plaintiffs opted to videotape medical examinations which were conducted by medical experts
chosen by the Defendants. The Plaintiffs in both Actions provided the videotapes to counsel for
the Defendants, but sought to disallow the examining expert doctors the ability to review the
videotapes prior to completing their reports. Justice Read considered whether Rule 5.43
permitted the Plaintiffs’ restriction on the use of the video. Her Ladyship considered the
applicable Rules and noted that Foundational Rules 1.2 and 1.7 should be applied to interpret
the other Rules in a manner which would facilitate the fair and just resolution of the claims in a
cost effective and timely way. Further, Her Ladyship stated that Rule 5.3 clearly provided that
the Court retained discretion to modify or waive provisions of the relevant Rules where so
warranted. The Plaintiffs in both Actions argued that Rule 5.43(3) should be interpreted
restrictively, and that Rule 5.43 was remedial and only benefitted the Plaintiffs. The Defendants
argued that it would be inherently unfair to disallow the examining medical professional from
reviewing a video recording of their own assessment if it existed. The Defendants conceded
that there were restrictions set out in Rule 5.43(4), but strict restrictions on dissemination of
video recordings would effectively reduce the number of available experts who would be
willing to complete medical reports. The Defendants argued that allowing the medical expert to
verify the video was consistent with the proper interpretation of Rule 5.43 and with the general
purpose and intention of the Rules.
Read J. observed that the new Rules mark a change from the former Rules which were silent on
whether a medical examination could be video recorded. Justice Read noted that, despite the
significant change with respect to the availability of a video recording, Rules 5.41, 5.42 and 5.43
are similar to the language of former Rule 217; the case law interpreting the former Rule was
therefore still applicable. However, the new Rules are silent about what use a party may make
of the video once available. Her Ladyship concluded that the Foundational Rules suggested an
interpretation of Rule 5.43 which would permit a Defendant’s expert to review the video
recording prior to finalizing their expert’s report, and which permitted the Defendants counsel
to review the recording as well. The new Rules require the Plaintiff to provide the Defendant
with a copy of the videotape “as soon as practicable” which was indicative that the Defendant
should be permitted to use the video recording. Read J. agreed that providing the video
recording to the Defendants was consistent with the Foundational Rules which require open
and honest communication between the parties to encourage settlement. “Trial by ambush” is
to be avoided. In the result, the medical examiners’ requests to review the video recording
were reasonable, and since the requests could be accommodated in a way which was not
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contrary to the Rules, the video recording should be provided. Read J. commented that the
video recordings were sensitive, but, the new Rules did not stipulate that the video recordings
needed to be filed with the Court. The Plaintiffs’ Application was dismissed.
CHISHOLM V LINDSAY, 2013 ABQB 157 (KENNY J)
The Defendant applied to have a settlement offer, that was neither a Calderbank offer nor a
formal offer pursuant to the Rules, considered by the Court in determining costs. The Plaintiff
argued that the basic rule was that the successful Party was entitled to costs, pursuant to Rule
10.29, and that the Court could not even consider a settlement offer unless it was a Calderbank
offer or a formal offer. The Defendant, on the other hand, argued that Rules 10.31 and 10.33
gave the Court the discretion to consider any kind of settlement offer in determining an award
of Costs.
Kenny J. referred to and relied on Mahe v Boulianne, 2010 ABCA 74, and Koma v Tomich Estate,
2011 ABCA 257, and held that the Court had discretion to consider informal settlement offers,
in whatever form, when determining an award of Costs. Further, Kenny J. stated that this was in
keeping with Rule 1.2 and facilitating the quickest means of resolving a claim and encouraging
Parties to resolve a Claim themselves. Kenny J. also held that “without prejudice” privilege as it
relates to settlement offers expires once the merits of the dispute have been settled. The
Defendant’s Application was granted and the Court held that the informal settlement offers
could be considered by the Court in the overall determination of costs between the Parties.
(GERMAIN J)
The Plaintiff filed a Builders’ Lien against the Defendant’s lands due to a dispute relating to
payment. The Plaintiff subsequently filed a Statement of Claim, and a Certificate of Lis Pendens
was registered on title. The Defendant applied for Summary Judgment, arguing that the Action
was bound to fail because the Statement of Claim was deficient and did not claim Builders’ Lien
relief in the customary manner. The Master held that because the Claim was drafted as a debt
action and not as a Builders’ Lien action, the Certificate of Lis Pendens and the Lien should be
struck from title, but the Claim should not be summarily dismissed. The Plaintiff appealed,
arguing that the Statement of Claim adequately pleaded a Builders’ Lien Action.
Germain J. held that the purpose and intention of the Rules, including Rule 1.2, prioritizes
resolving the real issues between the Parties. This is reflected in the drafting of the Rules, in
that many defects are capable of rectification, provided it occurs without prejudice. Indeed, the
Court is less formalistic with respect to the specific form and wording of documents than was
the case historically, as demonstrated by Rule 1.2(4), which provides that a remedy or sanction
granted by the Court will be proportional to the reason for granting or imposing it.
Germain J. further held that most lawyers have always understood the requirement that some
causes of action, such as fraud, must be specifically pleaded. However, in 581257 Alberta Ltd v
Augla, 2013 ABCA 16, the Court of Appeal held that it was not absolutely necessary that fraud
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be pleaded specifically and particularly, provided the Statement of Claim asserted fraudulent
conduct which was sufficient to advance a cause of action in fraud.
The Plaintiff’s reluctance to apply to amend the Statement of Claim to incorporate a more
traditional Lien drafting approach was puzzling, particularly given that disputes regarding the
wording of a Statement of Claim are costly, inefficient, and do not aid in resolving the real
issues between the Parties, as required by Rule 1.2(3)(a). However, Germain J. held that it was
not strictly necessary that a Statement of Claim include words to indicate that it was brought
pursuant to the Builders’ Lien Act, provided that was otherwise clear from the facts pleaded.
Although the Statement of Claim was poorly drafted, sufficient facts were pleaded to ground a
Builders’ Lien action. In this context, Germain J. allowed the Appeal and directed that the
Certificate of Lis Pendens would remain on the title.
MAKAR V LUEDEY, 2013 ABQB 189 (MASTER WACOWICH)
The Plaintiffs filed a Statement of Claim on January 28, 2011, seeking damages for personal
injuries arising out of a motor vehicle accident that occurred on February 19, 2009. Plaintiffs’
counsel took a number of steps to attempt to locate the Defendant in order to serve the
Statement of Claim, including obtaining an Order to Extend the Time for Service to April 28,
2012 and an Order allowing for Substitutional Service by publication in the Edmonton Sun.
Counsel for the Defendant’s insurer was notified of the claim within 9 months of the accident
and remained involved. The Defendant herself did not become aware of the claim until June 19,
2012.
The Defendant applied to set aside Substitutional Service. The Court considered: (1) whether
there was sufficient evidence to establish that the Substitutional Service Order was sufficient,
and if not, whether it should be set aside; and (2) whether the Court should grant an extension
of time for service of the Statement of Claim if the Order for Substitutional Service was set
aside.
The Plaintiffs had evidence that the Defendant’s vehicle bore Nova Scotia license plates at the
time of the accident, and had been advised by the insurer that the Defendant was likely in Nova
Scotia. The Court found that as the Plaintiffs’ best information was that the Defendant had
returned to Nova Scotia, publication in the Edmonton Sun was not likely to be effective service,
and it set aside the Order allowing for it.
In applying for an extension of time to serve the Statement of Claim, the Plaintiffs argued that
the Court had inherent jurisdiction to waive irregularities, as well as specific authority under
Rules 1.5 and 11.27 to cure a contravention of the Rules. The Court noted that courts “will
generally take steps to cure a procedural defect as long as it does not cause substantial
prejudice to the other party”. It held that the test has been codified in Rule 1.4(4)(a) and made
even broader the requirement that the steps taken to cure the irregularity must not cause
“irreparable harm to any party”. However, the Court noted that Rule 1.5 did not apply because
Rule 3.27 specifically addressed the issue in question.
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The Court found that there was no prejudice to the Defendant. The Plaintiffs had proven that
the insurer had early notice, only 52 days had passed since the renewal period expired, the
Plaintiffs made every reasonable effort to locate the Defendant and there was no evidence of
prejudice. In the result, the Court granted relief under Rule 3.27.
CENTRAL ALBERTA RURAL ELECTRIFICATION ASSOCIATION LTD V FORTISALBERTA INC, 2013
ABQB 191 (VELDHUIS J)
In this case, the Court provided its Decision on Costs stemming from an unsuccessful
Application for Leave to Appeal of an Arbitral Award. Veldhuis J. stated that the general rule for
Costs, pursuant to Rule 10.29, was that the successful party is entitled to Costs. Veldhuis J.
further relied on the factors outlined in Rule 10.33 for determining an appropriate value for
Costs, and stated that the number of grounds appealed by the Applicants was considered an
important factor. Since the matter did not have a monetary value attached to it, the
appropriate Schedule C column was determined by considering the importance of the Appeal to
the parties and the potential financial result a successful Decision would have. Because the
matters were important, and a favorable Decision was estimated to have a value of at least
$500,000.00 to each party, the Court held that Column 4 of Schedule C should apply. Veldhuis J.
also held that the complexity of the matter justified granting Costs in the nature of an
appearance before an Appeal Court. The Respondent was awarded Party-Party Costs in the
amount of $12,750.00, pursuant to Column 4 of Schedule C.
ENERFLOW INDUSTRIES INC V SUREFIRE INDUSTRIES LTD, 2013 ABQB 196 (MCCARTHY J)
The individual Defendant commenced employment with Enerflow in 2007. In 2008,Enerflow
and the individual Defendant executed a non-compete agreement. The individual Defendant
left Enerflow in 2011, accepting a position with the other Defendant, Surefire. Enerflow
commenced an Action against the individual Defendant, alleging a breach of the non-compete
agreement. Enerflow also named Surefire, alleging that it induced the individual Defendant to
breach the non-compete agreement. Surefire and the individual Defendant brought an
Application for Summary Trial of the matter. Enerflow objected.
The first issue was whether theAffidavit evidence of the Plaintiff should be allowed. The
Plaintiff’s evidence was filed before the Hearing, at some point after the 10 day period required
by Rule 7.6, but before the 5 day period required by Rule 7.8. The Court concluded that the
evidence was admissible, stating:
Enerflow asserts that it did not at any time consent to the summary trial process;
the Defendants do not dispute that assertion. Therefore, I think Enerflow may be
taken to have objected to the summary trial process, with the result that Rule
7.8 is applicable to its response. As Rule 7.8(2) requires a respondent objecting
to a summary trial process to file and serve “anything on which the objector
intends to rely” 5 or more days before the hearing, the Williamson Affidavit was
filed on time, albeit barely.
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The next issue the Court considered was whether the Application should be adjourned pending
Questioning. McCarthy J. determined that the Court does have jurisdiction to permit a
Summary Trial prior to Questioning. McCarthy J. cited Discovery RidgeDevelopment Corporation
v Well International Holdings Corporation, 2003 ABQB 406, as authority for when a Summary
Trial can proceed prior to Questioning. McCarthy J. concluded that, the Defendants having
offered to make themselves available, and the Plaintiff not having taken them up on that offer,
the objection on this ground should be dismissed.
The Court then considered whether this was an appropriate instance for Summary Trial. The
Court cited with approval the nine factors to be used in making this assessment, as enumerated
in Duff v Oshust, 2005 ABQB 117. After considering the relevant factors, the Court concluded
that the Summary Trial should proceed, stating:
I find that this matter is suitable for summary trial and I dismiss Enerflow’s
objection thereto. In arriving at this conclusion, I am mindful that Rule 7.8(3)
provides that I must dismiss the objection if I am of the view that the issue or
question is suitable for summary trial and that the summary trial will facilitate
resolution of the claim or a part of it. As noted above, I find that, at a minimum,
the enforceability of the Non-Compete Agreement can be determined in a
summary trial process… [Emphasis in original]
FRYDMAN V PELLETIER, 2013 ABQB 225 (KENNY J)
The Applicant brought an Originating Application seeking a declaration that shares in the
subject corporation were held in trust for him by the Respondent. The Applicant further alleged
that the Respondent engaged in conduct that was oppressive or unfairly prejudicial to him and
the corporation. The Respondent brought a Cross-Application to have the matter consolidated
with another Action in which a number of Parties, including the Applicant, brought an Action
against the Respondent and the corporation for damages related to alleged fraudulent activity.
The Respondent argued that the Applicant should not have proceeded by way of an Originating
Application. The Respondent argued that, pursuant to Rule 3.2(2)(a), an Originating Application
is only proper where there is no substantial factual dispute. The Respondent argued that many
factual issues were in dispute, and that Discovery, Questioning and a Trial were necessary to
determine the facts. As such, the Respondent argued that the Court should convert the
Originating Application to a Statement of Claim. Justice Kenny rejected this argument and held
that an Originating Application was appropriate. All evidence was before the Court on the
relevant issues, and the evidence was not going to improve in the context of a Trial.
The Respondent further argued that the two Actions should be consolidated. Pursuant to Rule
3.72, the Court has discretion in determining whether the consolidation of Actions is
appropriate. Justice Kenny held that there were a number of factors to consider with respect to
consolidation, including: whether there were common claims, disputes, and relationships
between the Parties; whether consolidation would save time and resources; whether Trial time
would be reduced; whether one Party would be seriously prejudiced by having two Trials
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together; whether one Action was at a more advanced stage than the other; and whether
consolidation would delay the Trial of one Action causing serious prejudice to one Party. The
risk of inconsistent verdicts would also be a reason for consolidation. Upon reviewing all of the
factors, Justice Kenny was satisfied that there was no reason to consolidate the two Actions.
Her Ladyship held that the Court had enough information to decide the issues raised in the
Originating Application, and that consolidation would only cause delay. Moreover, there were
no common issues of fact or law between the two Actions, and consolidation would only have
the effect of leaving the share issue unresolved until Trial, causing prejudice to the Applicant.
RAINVILLE V PONTIN, 2013 ABQB 256 (MARCEAU J)
The Plaintiffs (Defendants by Counterclaim) brought an Application to compel the Defendants
(Plaintiffs by Counterclaim) to answer Undertakings refused during Questioning. The
Defendants (Plaintiffs by Counterclaim) filed a cross-Application to compel the Plaintiffs
(Defendants by Counterclaim) to answer questions refused during Questioning. In determining
whether or not the Undertakings and questions refused were relevant and material, Marceau J.
relied on Rules 5.1 and 5.2. Further, Marceau J. relied on the Decision in Suncor Energy Oilsands
Limited Partnership v Propak Systems Ltd, 2012 ABQB 789, at paras. 3-5, where Poelman J.
outlined the test for determining the materiality of evidence:
[3] In my view, most of the disputes between these parties over undertaking
requests can be determined by basic principles and purposes of the discovery
process, now called disclosure and questioning in our rules.
[4] The questioning process in an action is fundamentally an inquiry into relevant
facts. Further, questions may only seek facts of primary relevance (those directly
in issue) or secondary relevance (from which the existence of primary facts may
be directly inferred), not tertiary relevance (information that might lead to facts
or records of secondary relevance).
[5] Furthermore, rule 5.25 (1)(a) of the Alberta Rules of Court provides that “a
person is required to answer only ... relevant and material questions.” Under
rule 5.2 (1)(a), “a question ...is relevant and material only if the answer to the
question ... could reasonably be expected ... to significantly help to determine
one or more of the issues raised in the pleadings.” The Court of Appeal
elaborated on that definition, as follows:
The materiality of evidence refers to its pertinency or weight in relation
tothe issue it is adduced to prove: Black’s Law Dictionary, (6th ed.
1990).Facts or documents may be relevant within Rule 186.1, but, either
alone orin combination with other evidence, be of no significant help to
theexamining party in proving or disproving a fact in issue. As Slatter
J.observed in Weatherill Estate v.Weatherill, (2003) 337 A.R. 180
(Q.B.),2003 ABQB 69 at para. 17, “... relevance is determined by the
pleadingswhile materiality is more a matter of proof ...”. See also Tolko
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Industries Ltd. v. Railink Ltd. (2003), 14 Alta. L.R. (4th) 388, 2003 ABQB
349 atpara. 6. (references omitted)
Marceau J. then determined on a case by case basis whether or not the objected to
Undertakings or questions were relevant and material to the Action.
SHREEM HOLDINGS INC V BARR PICARD, 2013 ABQB 257 (WAKELING J)
Shreem Holdings Inc. (“Shreem”) and Deepak Kumar filed a request, pursuant to Rule 10.13(1),
for a review of charges levied by the Applicant law firm with respect to legal services. Shreem
argued before the Review Officer that the law firm agreed to a fixed fee retainer, with the fee
capped at $15,000. The Review Officer determined that a reasonable fee for the legal services
provided was $65,429.50. However, the Certificate of Review stated that due to a paucity of
evidence, no ruling had been made as to what amount was still owing to the law firm. The
Certificate of Review also stated that Shreem and Mr. Kumar denied being liable for the
accounts, and that the Review Officer did not rule on issues of liability.
The Applicant law firm brought an Application pursuant to Rule 10.20(1)for an Order directing
that the Review Officer’s Decision be entered as Judgment against Shreem and Mr. Kumar.
Neither Party appealed the Certificate of Review.
Wakeling J. held that a Certificate of Review should not be entered as a Judgment if it did not
have the effect of resolving the issues between the Parties. There is no utility in giving a
Certificate of Review the status of a Judgment when it cannot be enforced. Rule 10.19, which
sets out the issues a Review Officer may decide, does not provide that a Review Officer may
adjudicate a claim that a lawyer agreed to accept a fixed fee, or determine the amount a client
has already paid towards an account. It was not appropriate for the Court to enter the
Certificate of Review as a Judgment against Shreem and Mr. Kumar because questions
regarding the identity of the client, the fixed fee agreement, and the amount the client had
already paid were in dispute. These unresolved issues in the Certificate of Review made its
enforcement impossible.
Wakeling J. further held that although Rule 10.18(1) sets out the conditions under which a
Review Officer may refer a question to the Court, it was unclear whether the Court had the
jurisdiction to amend a Certificate of Review and delete the Review Officer’s
qualifications.Wakeling J. held the appropriate course for the Review Officer would have been
to refer the unresolved issues to the Court pursuant to Rule 10.18(1)(a). However, in its current
state, the Certificate of Review did not resolve the dispute between the parties. As such,
Wakeling J. dismissed the law firm’s Application and held that the Court should not exercise its
discretion under Rule 10.20(1).
PARKER V HER MAJESTY THE QUEEN, 2013 ABQB 296 (ROOKE ACJ)
The Plaintiffs applied for Certification in a proposed Class Proceeding under the Class
Proceedings Act. The Defendant (Alberta) made a cross Application for Summary Judgment on
the basis that the Plaintiffs’ claims were barred under the Limitations Act.
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Associate Chief Justice Rooke, citing Jackson v Canadian National Railway, 2012 ABQB 652,
confirmed that summary judgment is available on the basis of a limitations defence. Rooke
A.C.J. stated that the test for Summary Dismissal is as follows:
(a) the applicant must show evidence that there is no genuine issue for trial; and
(b) if the applicant meets this burden, the responding party may bring evidence
to persuade the court that there is a genuine issue to be tried.
Associate Chief Justice Rooke further noted that “[t]he defendant who seeks summary
judgment must prove there is no genuine issue of material fact requiring trial and
cannot simply rely on mere allegations or the pleadings”. If the Defendant is able to
prove this, then the burden will shift to the Plaintiff, who must either refute or counter
the Defendant's evidence, or risk Summary Dismissal. Withrespect to Summary
Dismissal in the context of a limitations defence, RookeA.C.J. cited Papaschase Indian
Band No 136 v Canada (Attorney General), 2008 SCC 14, and stated that where a Claim
“is barred by the operation of a limitation period, there is no genuine issue for trial”.
After reviewing the Limitations Act, the relevant case law and the facts, Rooke A.C.J. granted
Alberta’s Summary Dismissal Application because the Defendant had established that the
Plaintiffs claims were barred by the 10 year ultimate limitation period, and the Plaintiffs were
not able to refute or counter the Defendant’s evidence.
ALBERTA (JUSTICE AND ATTORNEY GENERAL) V ECHERT, 2013 ABQB 314 (BROWN J)
The Minister of Justice and the Attorney General of Alberta applied for an Order forfeiting
certain restrained property to Her Majesty the Queen in Right of Alberta. The Application was
supported by an Affidavit from a Constable in the Drug and Gang Enforcement Unit of the City
of Edmonton Police Service. The Court expressed concerns about the quantity of hearsay
evidence. At paragraph 34, Justice Brown stated that:
… the Minister must put his best foot forward. Here, he has not done so …
The Court cited Rule 13.18, holding that the Court could only rely on information and belief
where the source of the information and belief was disclosed, and only in respect of
information which the deponent expressly claimed to believe. The Court held that a generic
attribution of all information in the Affidavit to documents and other peace officers was
insufficient for the purposes of Rule 13.18. The Court noted that the Affidavit also failed to
express a belief in significant portions of the information contained therein. Accordingly, the
Court held that the Affidavit in question did not meet the requirements of Rule 13.18, and
could not assist the Minister in discharging his burden.
KOWCH V GIBRALTAR MORTGAGE LTD, 2013 ABQB 317 (MASTER SCHLOSSER)
Prior to certification in a proposed Class Action, the Defendants brought an Application for
Summary Judgment against the Plaintiffs. Master Schlosser considered whether a Master had
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the jurisdiction to hear a Summary Judgment Application in an Action intended to be certified
as a Class Action. In considering jurisdiction, Master Schlosser stated:
In this case there is no certification order and there has been no certification
application. Until it is certified, a proceeding commenced as a Class Action does
little else other than suspend the limitation period for the cause of action
asserted in the proceeding (section 40). Until a proceeding is certified as a Class
Action, there is nothing special about it and all of the other procedural rules
prevail. The Act provides (section 41) that the Rules of Court apply unless they
are inconsistent with a provision of the Act. There is no express inconsistency
with hearing a Rule 7.3 or 3.68 application first. ... There is no reason a Master
cannot hear a Summary Dismissal application prior to certification.
Master Schlosser held that it was appropriate that the Summary Judgment Application be heard
and determined on its merits, prior to certification, and that a Master had jurisdiction. Master
Schlosser further stated that, in deciding the merits of the Application, the Court did not have
to “engage in an investigation into possible worlds which might contain class members whose
claims might not be proscribed”. Only the facts of the two Plaintiffs were relevant. The
Application was granted, because the Claims were started out of time, and the Action was
dismissed.
VWW V WASYLYSHEN, 2013 ABQB 327 (MANDERSCHEID J)
The Plaintiff, a vexatious litigant, applied to the Court for permission to continue the Action and
take certain steps in advancing her Claim. As part of the Order declaring the Plaintiff a vexatious
litigant, the Plaintiff was required to apply to the Court with an Affidavit in support before being
permitted to take any further steps. After reviewing the Affidavit in the context of the particular
steps requested, the Court assessed the Plaintiff’s present litigation strategy to determine
whether it could be considered vexatious.
Justice Manderscheid found that the Plaintiff’s actions disclosed a vexatious and frivolous
litigation strategy intended to abuse Court processes. The Court went on to review the
characteristics commonly associated with vexatious litigants and held that Rule 3.68(2)(c)
authorizes the Court to dismiss an Action that is frivolous, irrelevant, or improper.
The Court found that the Plaintiff’s Action possessed many features of vexatious litigation,
including that the Plaintiff’s present Action challenged conclusions already addressed in a
different proceeding, contained sensational conspiratorial claims, and the Plaintiff had ignored
prior Costs Orders. The Court held that these factors together provided a basis for dismissing
the Action as frivolous and vexatious.
JORDAN V ALBERTA LAW ENFORCEMENT RESPONSE TEAMS, 2013 ABQB 330 (YAMAUCHI J)
A Constable of the Calgary Police Services was assigned to monitor the Plaintiff in relation to
criminal harassment allegations. Fifteen months later, the Plaintiff sent an email to the Alberta
Premier and certain individuals within the Alberta Maintenance Enforcement Program (“MEP”),
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which included allegations that the MEP caused suicides and murder-suicides. The Constable
received a copy of the email and requested that the Integrated Threat and Risk Assessment
Centre undertake a threat assessment with respect to the Plaintiff (the “Report”). Shortly
thereafter, the Plaintiff was charged with criminal harassment. The Plaintiff commenced an
Action allegingthat the Report was defamatory and that the Defendants acted with misfeasance
in the exercise of their public office duties. The Defendants applied for Summary Judgment
dismissing the Plaintiff’s claim or, in the alternative, for an Order striking the Statement of
Claim.
With respect to the allegation of defamation, Yamauchi J. held that the Applicants were not
required to demonstrate that the Report was not defamatory. Rather, they were only required
to demonstrate that there was no genuine issue to be tried, and Yamauchi J. held that they
discharged this burden. Yamauchi J. further held that the Plaintiff failed to meet his evidentiary
burden to demonstrate that there was a genuine issue for Trial with respect to whether the
Defendants had defamed him.Yamauchi J. granted the Application for Summary Judgment.
The Defendants argued in the alternative that the Court should strike the Claim pursuant to
Rule 3.68, on the basis that the Claim was vexatious. The Plaintiff had commenced seven other
Actions, arising out of the same facts, against various individuals and organizations. Relying on
the reasoning in McMeekin v Alberta (Attorney-General), 2012 ABQB 144, Yamauchi J. held
that, although Summary Judgment had been granted, the Claim would also be struck pursuant
to Rule 3.68. The Plaintiff’s Claim was frivolous, vexatious and did not disclose a reasonable
cause of action.
SAMSON CREE NATION V O’REILLY & ASSOCIÉS, 2013 ABQB 350 (ROOKE ACJ)
This Decision dealt with two Applications regarding the taxation of legal accounts submitted by
the Respondent law firms (“O’Reilly” and “Parlee”) to the Samson Cree Nation (the “Nation”).
The Nation filed Applications for Taxation of its lawyers’ accounts arising from two prior
Actions, and served the Appointments for Taxation pursuant to former Rule 647. Some of the
accounts dated back as early as 1989, with the most recent accounts being rendered to the
Applicant on October 31, 2009 (by Parlee) and June 19, 2008 (by O’Reilly). Counsel for the
Respondents raised issues relating to the validity of the Appointments arising from the
limitation periods for seeking Taxation, and as a result the Nation filed the Applications to
determine the validity of the Appointments.
Associate Chief Justice Rooke determined that, under the circumstances, former Rule 647
applied to the determination of the limitation period, not Rule 10.10. In arriving at this
conclusion, Rooke A.C.J. acknowledged that new Rule 15.2 states “these rules apply to every
existing proceeding”; Associated Chief Justice Rooke further acknowledged that, under Rule
15.6, the Court may apply the former Rules to matters in a proceeding commenced before the
new Rules came into effect. However, His Lordship ultimately determined that former Rule 647
ought to be applied in this case, stating:
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How can it be possible that the validity of documents, filed December 3 or 10,
2009 under the old Rules, could be determined by rules that did not come into
effect until 11 months later? One needs to know the validity of documents at the
moment filed, not some later time.
Based on the limitations set out in former Rule 647, Rooke A.C.J. determined that the Nation’s
Appointment for Taxation was outside the time period for all of the O’Reilly accounts, and
therefore none of them could be taxed. With respect to the Parlee accounts, the Court held
that the Nation had the right to continue with the Taxation of accounts dated from January 9 to
October 31, 2009 but no other accounts, as they fell outside the limitation period set out in
former Rule 647.
The Nation had argued that because some of the accounts were within the limitation period,
they should be allowed to tax all the accounts going back to the beginning of the retainer, since
it was essentially all one contract. Rooke A.C.J. rejected this argument stating:
The retainers were not whole contract or entire contract retainers, and the
periodic (usually monthly) accounts rendered were neither interim nor
provisional accounts, and therefore contained no right to tax back to the
beginning of the retainer based on the last account issued.
ENCANA CORPORATION V ARC RESOURCES LTD, 2013 ABQB 352 (POELMAN J)
The Applicants each held leases from mineral owners giving the Applicants the right to explore
for and produce natural gas. The mineral owners who granted the leases did not own title to
coal. The issue to be determined was who held rights to produce coalbed methane on certain
leased lands in light of recent amendments to the Mines and Minerals Act.
The Court noted that the test for summary judgment requires an Applicant to establish that it is
“plain and obvious,” or “clear,” or “beyond real doubt,” that the Action should be summarily
dismissed or Judgment issued. The onus then shifts to the Respondent to show that there is a
genuine issue for Trial. The Court found that “summary judgment should only be granted when
the applicant has shown that there is no genuine issue of material fact requiring trial”.
Relying on guidance from the Court of Appeal in Tottrup and Clearwater, the Court analyzed the
issues raised in the applications before it. Justice Poelman found that the distinct issues of law
regarding the interpretation of amendments to the Mines and Minerals Act could fairly be
decided on the record before the Court, and granted Summary Judgment.
AIRDRIE (CITY) V SILVERCREEK DEVELOPMENT CORPORATION, 2013 ABQB 357 (MASTER
HANEBURY)
The Defendant, Silvercreek Development Corporation, applied to strike the claim filed against it
by the Plaintiff, the City of Airdrie, on the basis that it was filed outside of the limitation period
allowed under the Limitations Act.
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Silvercreek had the evidentiary burden of showing that there was no genuine issue of material
fact requiring Trial and, in order to establish that, it had to be beyond doubt or plain and
obvious that there was no genuine issue to be tried. Master Hanebury emphasized that the
Justice or Master hearing the Application was not to assess the quality and weight of the
evidence, as that was to happen at Trial, buthad an obligation to conduct a careful review to
determine whether there were undisputed facts sufficient to resolve the matter. The test for
Summary Judgment was not whether the issue of law was "beyond doubt", but whether the
issue of law could fairly be decided on the record before the Court.
In this case, section 3 of the Limitations Act was at issue, so the Court had to be satisfied that it
was beyond doubt that the claim could not succeed on the basis of being time-barred by the
criteria found in section 3(1). After considering the record before the Court, Master Hanebury
noted that an assessment of the weight and credibility of the evidence presented by the City
could not be made at this stage of the proceeding; it had to be made at Trial. In order for the
Court to undertake the objective assessment necessary to determine what the City ought to
have known in the context of determining whether it had the requisite knowledge required by
the Limitations Act, further information was necessary. The Court had to find it plain and
obvious or beyond doubt that the Action would not succeed due to the limitations defence;
however, the evidence before the Court was not sufficient to summarily determine that the
City ought to have known that the injury was attributable to the Defendant's failings, so the
Additionally, Master Hanebury observed that with the amendments to the Rules of Court, the
Applicant was able to file further evidence upon Appeal and, as a result, the omission of the
contextual evidence necessary to determine whether the City "ought to have known" of its
injury was capable of being remedied.
KWOK V CANADA (NATURAL SCIENCES AND ENGINEERING RESEARCH COUNCIL), 2013 ABQB
395 (MAHONEY J)
There were eight Defendants in this Action, including the National Sciences and Engineering
Council of Canada ("NSERC") Defendants and certain Media Defendants.
The Applicant, Dr. Kwok, was employed as an assistant professor with the University of Alberta
and received research grants from NSERC. In 2005, after an investigation, the University of
Alberta concluded that Dr. Kwok violated the University's Research and Scholarship Integrity
Policy. Dr. Kwok resigned; however, the University of Alberta again investigated him and
determined that he had misappropriated NSERC grant money. The parties reached a
settlement, but the University of Alberta provided its investigation reports to NSERC. NSERC
terminated the grants it awarded to Dr. Kwok and banned him from receiving further funding.
Additionally, in 2010, Canwest and National Post published articles that accused Dr. Kwok of
plagiarism and misusing grant funds.
In July 2010, Dr. Kwok filed a Statement of Claim and then, in January 2011, filed an Amended
Statement of Claim. Between January and November 2011, the Parties participated in
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Questioning and, in February 2012, Dr. Kwok filed a Second Amended Statement of Claim. In
March 2012, Dr. Kwok requested the consent of the Defendants to file a Third Amended
Statement of Claim, but the Defendants refused.
Several issues were raised in this Application: whether Dr. Kwok should be granted leave to
amend the Second Amended Statement of Claim; whether the Defendants should be required
to provide answers to questions posed during Questioning; and whether the Media Defendants
should be ordered to produce documents previously withheld on the basis of journalistic source
privilege.
Referencing Rule 1.2, Mahoney J. stated that the Rules of Court were to be liberally construed
in a civil proceeding to “secure the just, most expeditious and least expensive” result based on
the merits. The Court then considered whether Dr. Kwok should be granted leave to amend the
Second Amended Statement of Claim pursuant to Rules 3.62 and 3.65 and the legal principles
referred to in Manson Insulation Products Ltd v Crossroads C & I Distributors, 2011 ABQB 51 and
869120 Alberta Ltd v B & G Energy Ltd, 2011 ABQB 209 - an amendment should be allowed no
matter how careless or late, unless there is prejudice, and unless clear exceptions (such as
those noted in Manson) apply.
The Court was persuaded that Dr. Kwok's claims satisfied the general rule, and none of the
exceptions applied. Where there was a dispute as to documentary evidence supporting a
proposed amendment, Mahoney J. noted that the merit of the evidence needed to be weighed
by the Trial Judge; therefore, this was not a reason for denying an amendment.
The Parties also disputed whether the questions posed during Questioning were relevant and
material to the issues identified in the Statement of Claim in effect at the time of Questioning.
The Court considered what was meant by "pleading" and concluded that it referred to all of the
pleadings, not just the version in effect at the time a question was asked. Mahoney J. noted
that, under Rule 5.25(1)(a), a person was required to answer only relevant and material
questions during Questioning and stated:
A question, record or information is relevant and material only if the answer
could reasonably be expected to significantly help determine one or more of the
issues raised in the pleadings, or ascertain evidence that could reasonably be
expected to significantly help determine one or more of the issues raised in the
pleadings.
Mahoney J. remarked that counsel ought to be given wide latitude in posing questions and that,
under Rule 5.25(2), a party being questioned may object to questions, but only for one or more
of a specific list of reasons. The questions did not need to be directly linked to a pleading; an
examining lawyer could indirectly approach a subject and go beyond the pleadings if the
question reasonably related to the matter. Finally, Mahoney J. stated that there ought to be a
generous approach to relevance; if counsel could disclose a rational strategy, that was
sufficient.
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The Court then considered each of the disputed questions and noted that the use of repetitive
questions, utilized sparingly, might be part of an examination strategy. Mahoney J. held that
repeating a question was not oppressive and did not amount to intimidation. The Defendants
were ordered to answer the majority of the disputed questions.
Lastly, the Court considered whether the Media Defendants should be directed to provide
answers to questions, which were objected to on the grounds of "journalistic source privilege".
Mahoney J. was satisfied that three of the four "Wigmore criteria" set out by the Supreme
Court of Canada in R v National Post, 2010 SCC 16, were met. Further, it was noted that the
relationship between professional journalists and their sources ought to be "sedulously"
fostered and no persuasive reason was offered to reduce the value of this relationship;
therefore, the Application to compel answers from the Media Defendants was denied.
AG CLARK HOLDINGS LTD V HOOPP REALTY INC, 2013 ABQB 402 (GILL J)
Previously, the Applicant (Defendant) sought to have the Claim struck on the basis that
arbitration had not been commenced within the two year limitation period pursuant to the
Limitations Act, RSA2000, c L-12. Alternatively, the Applicant sought a Stay pursuant to the
Arbitration Act,RSA 2000, c A-43.
The Court found that arbitration was not mandatory and dismissed the Application. The
Decision was appealed and overturned. The Court of Appeal found that there was a mandatory
arbitration clause and the matter was referred back to the Court of Queen’s Bench to resolve
the remaining issues.
The Respondent (Plaintiff), relying on section 7(2)(d) of the Arbitration Act, submitted that the
proceedings should not be stayed as the Application for the same had been unduly delayed.
The Respondent also argued that the issuance of a Statement of Claim could be considered an
arbitration-commencing document: Lafarge Canada Inc v Edmonton (City), 2012 ABQB 634
[Lafarge].
The Court dismissed the Action. The Court held that Lafarge was distinguishable, and stated
that:
Section 7(2) of the Arbitration Act does not assist HOOPP. Once it has been
determined that there is a mandatory arbitration clause and that the applicable
party failed to commence an arbitration within the limitation period, the
Arbitration Act ceases to have any further application and the Court’s role comes
to an end.
FISHER V CORAL HILL ENERGY INC, 2013 ABQB 437 (MARTIN J)
The Plaintiff commenced an Action on behalf of a proposed class consisting of former
shareholders of one of the Corporate Defendants, Wave Energy Ltd (“Wave”). The Plaintiff
alleged that all of the Defendants conspired to divert certain petroleum and gas rights to
another corporate entity Coral Hill Energy Inc. (also a Defendant), thereby depriving the Wave
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shareholders. The Defendants applied to dismiss the proceedings pursuant to Rule 7.3; and, in
the alternative, to strike the proceedings pursuant to Rule 3.68. The individual Defendants also
applied for Summary Trial.
Martin J. considered whether Summary Dismissal should be granted pursuant to Rule 7.3. The
parties agreed that the test for Summary Dismissal was whether the Defendant Applicants
could show, on a balance of probabilities, that there was no genuine issue of material fact
requiring Trial. If the Defendants succeeded, the burden shifted to the Plaintiff to counter the
Defendants’ evidence and demonstrate that there was a genuine issue for Trial. The Plaintiffs
and the Defendants did not dispute the bare facts of the case but did dispute the explanations
and motivations underlying the facts.
Justice Martin reviewed whether the Action was properly pursued as a class action on behalf of
the Wave shareholders, or whether it should have been commenced as a derivative Action. The
Defendants argued that the Action was properly a derivative Action and that Summary
Dismissal should be granted pursuant to Rule 7.3 because the Plaintiff did not have the legal
right to pursue the requested remedies. Justice Martin noted that the case law was not clear,
but an overlap existed between derivative actions and claims of oppression. Overall, it was not
plain and obvious that a Court would not allow a derivative action as a remedy for oppression in
this case. The Defendants had not established that they were entitled to Summary Dismissal on
the basis that the Plaintiff lacked the legal right to proceed.
Her Ladyship considered the various disputed contractual clauses and concluded that the
Defendants had provided a satisfactory explanation for the clauses and the basis for them.
Martin J. held that there was no genuine issue of material fact in respect of the inclusion of the
contractual provisions; this was so whether the Action was a derivative claim or a claim in
oppression. Justice Martin held that sufficient evidence to meet the Plaintiff’s burden was
lacking. Additionally, Justice Martin held that there was no genuine issue of material fact with
respect to the Plaintiff’s claim respecting lack of disclosure of portions of the asset transaction,
and the Plaintiff had provided no evidence to show that there was a genuine issue. Justice
Martin also held that there was no evidence of conspiracy as between the Defendants or unjust
enrichment by the Defendants.
Her Ladyship concluded that:
The Defendants have tendered evidence that provides a cogent, non-nefarious
explanation of the events in question. That evidence satisfies me that there is in
this case no genuine issue of material fact requiring trial. The burden therefore
shifts to Fisher to provide this Court with evidence that there is a genuine issue
for trial here. That he has not done.
Justice Martin briefly stated that, in light of the conclusions respecting Rule 7.3, the
Defendants’ application to strike out the Plaintiff’s claim pursuant to Rule 3.68 did not need to
be addressed. Similarly, the conclusions respecting Summary Dismissal made it unnecessary to
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address the Application for Summary Trial. The Defendants’ Application for Summary Dismissal
was granted.
1301905 ALBERTA LTD V SWORD ENERGY INC, 2013 ABQB 444 (LEE J)
Previously, the Plaintiff Applicant was granted Summary Judgment and the assessment of
damages was referred to a referee pursuant to Rule 7.3(3)(b). The Plaintiff Applicant sought
direction regarding the assessment of damages and a full indemnification for Costs. The
Defendant Respondent argued that, since the Court previously referred the matter to a referee,
the Court no longer had jurisdiction to deal with the assessment of damages, and that there
was no reason to depart from party-party Costs.
The Court held that it had continuing jurisdiction and gave further directions regarding the
assessment of damages by the referee. Costs were awarded on a party and party basis as the
exceptional circumstances, as outlined in Jackson v Trimac Industries Ltd, 1993 4 WWR 670 and
Evans v Sport Corp, 2011 ABQB 616, required for solicitor and client Costs were not met.
GREATER ST. ALBERT ROMAN CATHOLIC SEPARATE SCHOOL, DISTRICT NO. 734 V BUTERMAN,
2013 ABQB 485 (GRECKOL J)
In October of 2009, the complainant, Mr. Buterman, filed a complaint with the Alberta Human
Rights Commission alleging that the School Board had discriminated against him in its Decision
to remove him from the substitute teacher list, and from consideration for permanent positions
with the School Board. The Director of the Alberta Human Rights Commission dismissed the
complaint on May 20, 2011. The complainant then appealed to the Chief of the Commission,
who overturned the Director’s Decision and directed that a tribunal hear the complaint on July
16, 2012. The School Board filed an Application for Judicial Review seeking, inter alia, an Order
directing that the Director determine whether a settlement had been reached or the
complainant had rejected a reasonable settlement. Following the Chief’s Decision on July 16,
2012, the School Board wrote both the Director and the Chief asking that the Director consider
the settlement question. Neither the Director nor the Chief found it appropriate to consider
that issue at that juncture.
The Court began by addressing standing and found that the Director has standing to argue
issues concerning his role in the administration of the Act and, in particular, whether he was
required to consider settlement issues when dismissing a complaint, and whether the School
Board’s Application was filed within the six month time limit prescribed by the Rules.
The Director applied to strike the Originating Application for Judicial Review as against the
Director on the basis that it was brought outside the prescribed time limit, and the Director was
functus officio. Greckol J. expressed doubt as to whether an Application to strike under Rule
3.68(1)(a) should be available in the case of judicial review, particularly given the primacy of
cost effectiveness and efficiency set forth in Rule 1.22 (b). Notwithstanding these doubts, the
Court determined that it could dispose of the Application before it on its merits.
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In assessing the Application to strike the Originating Application for Judicial Review on the basis
that it was out of time, the Court examined each aspect of Rule 3.68(2). Greckol J. affirmed that
the test for striking out a pleading remains whether, assuming the facts in the pleading can be
proved, it is plain and obvious that the pleading discloses no cause of action. Greckol J. held
that the question of whether the time limit for filing a judicial review had passed was one
concerning the availability of defences, and not grounds for striking a pleading. Similarly, the
concern that the Director was functus officio engaged questions of mixed fact and law, and it
was consequently not possible to determine from the pleadings whether the claim could be
struck on that basis.
The Court went on to find that it was not plain and obvious that the pleading constituted an
abuse of process or was vexatious or frivolous in any way, nor that any other grounds under
Rule 3.68(2)(a) applied.
The School Board also brought an Application seeking an Order that the Chief file an expanded
record, and that the Director file a record. Justice Greckol then turned to the School Board’s
Application for a further and better record. The Court held, at para. 82, that:
… what is required under Rule 3.18(2) is the written record of the decision, the
reasons given for the decision, the originating document (here, the complaint),
the evidence and exhibits filed with the Chief, and anything else relevant to the
decision in the possession of the person or body …
Noting that there were no concerns of bias or abuse of process raised in the instant Application,
the Court found that the Chief had included in the record all things relevant that were in his
possession when he made his Decision. The Application by the School Board for an Order
requiring the Chief to file a further and better certified record was dismissed. In light of the
Court’s determination that judicial review might be available against the Director, the
Application for the Director to produce a record was granted.
DEGUIRE V BURNETT, 2013 ABQB 488 (BROWN J)
The Action involved neighbours who were disputing Mr. Deguire’s construction of
improvements on a portion of Mr. Burnett’s land. Mr. Deguire sued Mr. Burnett for an Order
under section 69(1) of the Law of Property Act, RSA 2000, c L-7, and Mr. Burnett
counterclaimed in trespass, negligence and nuisance for damages. Each Party applied for
Summary Judgment of their claims and at issue was whether the evidence supported Summary
Judgment.
Brown J. first noted that there was no dispute between the Parties as to the onus and test to be
met for Summary Judgment; however, Mr. Deguire emphasized that conflicting evidence on
immaterial facts was not a bar to Summary Judgment, and Mr. Burnett stressed that a party
could not rely on self-created evidence when determining if there was a genuine issue for Trial.
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Brown J., at para. 19, held that “[i]t must be ‘plain and obvious’ that the claim or defence will
fail; the claim or defence must be ‘bound to fail’, or have ‘no prospect of success’, or have ‘no
merit, or raise ‘no genuine issue for trial’”. After setting out the applicable test for an Order
under section 69(1) of the Law of Property Act, Brown J. considered whether the evidence
supported Summary Judgment for an Order under section 69(1). Regarding Mr. Deguire’s
Application, the Court held that the state of evidence rendered it very likely that Mr. Deguire
would succeed in demonstrating the first part of the test set out for section 69(1); however, for
the second portion of test, there was some evidence from Mr. Burnett that was sufficient to
defeat an Application for Summary Judgment, since it could not be held that Mr. Deguire’s
position was so unassailable that the likelihood he would succeed was very high. There was
clashing Affidavit evidence, and it was noted that even if no contradictory evidence was
presented at Trial, Mr. Deguire’s evidence might still be found to be insufficient. The Court’s
concern was with the sufficiency of the evidence, rather than the admissibility of the evidence.
Regarding the Application for Summary Judgment for the Counterclaim, Brown J. held that the
plausibility and reasonableness of Mr. Deguire’s evidence was unsettled; therefore, it could not
be said that it was very likely that he would fail to demonstrate the honest belief necessary for
a claim under section 69(1) of the Law of Property Act. Because of this, it could not be said that
it was very likely that Mr. Burnett would succeed in his claims against Mr. Deguire.
Both Applications for Summary Judgment were dismissed.
PRECISION DRILLING CANADA LTD V YANGARRA RESOURCES LTD, 2013 ABQB 492 (TILLEMAN
J)
This was an Appeal from a Master within the context of a Summary Judgment Application.
Yangarra Resources Ltd. (“Yangarra”) contracted with Precision Drilling Canada Limited
Partnership (“Precision”) to drill wells. Precision employees allegedly used inappropriate drilling
chemicals, resulting in a well and some equipment being lost. Precision sued for payment of its
services on the basis that the contract required that it be paid regardless of errors. Precision
applied for Summary Judgment on this basis. Yangarra argued that it was not obligated to pay
since the original well was lost due to Precision’s negligence.
Yangarra sought to inquire into whether Precision field personnel communicated the drilling
mistake to offsite Precision personnel prior to the well being lost. Yangarra wanted to issue
Notices of Appointment for Questioning to four offsite personnel, pursuant to Rule 6.8.
Transcripts of the Questioning would then be put into evidence in the Summary Judgment
Application. Master Prowse held that, while Yangarra was entitled to question the witnesses
under Rule 6.8, it would be limited to examinations in chief, as opposed to cross-examination.
The key issue on Appeal was whether Rule 6.8 permitted Yangarra to cross-examine the
employees of Precision or whether, consistent with former Rule 266, the examination was to be
done only in chief. A related secondary issue was whether Precision’s employees were adverse
in interest to Yangarra, such that they could be cross-examined.
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Rule 6.8 relates to the Questioning of witnesses with respect to Applications. Rule 6.20 is
incorporated into Rule 6.8 and addresses Questioning on Affidavits and Questioning a witness.
Tilleman J. held that Rule 6.8, on its face, does not provide that a witness may be crossexamined. However, the wording of Rule 6.8 differs from former Rule 266, including the
addition of Questioning in the nature of cross-examination as contemplated by Rule 6.20.
Tilleman J. held that the intent of the changes to the Rules was to streamline proceedings and
promote efficiency. The Foundational Rules, such as Rule 1.2, also supported a streamlined and
efficient process. In the circumstances, Tilleman J. held that he was required to interpret Rule
6.8 in a manner that best promoted the fair, timely and efficient resolution of disputes.
With these interpretive principles in mind, Tilleman J. held that Rule 6.8 was broad enough to
permit cross-examination of a witness. Moreover, Tilleman J. held that such a crossexamination did not require an intervening declaration of hostility. If it were not so, a party
seeking to cross-examine a witness in such circumstances would have to apply to a Master for
permission to call the witness and then make a separate Application to a Justice for a
declaration that the witness was hostile. Such an approach would be antithetical to the
efficiency sought to be promoted by the Rules.
Further, the new Rules permit broader access to cross-examination. While the former Rules
drew a distinction between an Examination on an Affidavit and an Examination of a person
called as a witness, Rule 6.20 does not draw such a distinction in terms of the form of
Examination. As such, Rule 6.8 permits cross-examination of a witness by a party who has called
the witness, and Yangarra was entitled to cross-examine the four Precision employees.
Tilleman J. further held that the four Precision employees were adverse in interest to Yangarra.
Although the employees were not named Parties, they were not neutral. The principles
underlying the new Rules required a nuanced approach with respect to considering a witness
adverse in interest. The new Rules allow for a broader scope of Questioning, not only of an
adverse party, but also of a witness directly linked to an adverse party. Adversity in interest is a
determination of fact which requires an examination of the particular circumstances. Tilleman J.
held that Courts must not be blind to the reality of the relationship between parties and
witnesses and should be cautious in taking a categorization approach. Tilleman J. held that, for
predictably unfriendly witnesses, there was no need to seek a declaration of hostility with
additional Applications before allowing a cross-examination.
Tilleman J. also noted that a broad interpretation of Rule 6.8, which allowed for crossexamination of a presumably unfriendly witness with sufficient commonality with the adverse
party, enhanced the information-gathering function of that Rule.
Yangarra’s Appeal was allowed.
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0738827 BC LTD V CPI CROWN PROPERTIES INTERNATIONAL CORPORATION, 2013 ABQB 499
(HALL J)
The Defendants, except Jamila Premgi and Jamila Premgi Professional Corporation, sought
Summary Dismissal of the claims of the CPI Quotavest Investors Steering Committee (“CQSC
Plaintiffs”), based on the claims being time barred. Alternatively, the Defendants sought
Security for Costs against all of the Plaintiffs. All of the Plaintiffs, including the CQSC Plaintiffs,
sought Partial Summary Judgment against the following Defendants: Crown Vista Estates II Ltd.,
CPI Crown Properties International Corporation, CPI Crown Capital Corporation, and Camrose
Crown Care Corporation (“SJ Defendants”).
In relation to the limitations issues, the Court held that:
(a) It appeared that the CPI Defendants had delayed providing information to the CQSC
Plaintiffs;
(b) Due to the delay, the CQSC Plaintiffs became suspicious; and
(c) The CQSC Plaintiffs then engaged legal counsel to obtain the information (and were
successful in doing so).
The Court held that there was a triable issue as to when the CQSC Plaintiffs knew, or ought to
have known, that a claim should be brought.
The Defendants sought Security for Costs based on numerous Plaintiffs residing outside of
Alberta, and there being no evidence suggesting that those Plaintiffs had assets in Alberta to
satisfy a Costs Order. The Court noted that Rule 4.22, unlike former Rule 593, has no provision
indicating Security for Costs may be ordered on the basis that a Plaintiff resides outside of
Alberta. Instead, the focus under Rule 4.22 is on whether the Party has assets in Alberta against
which costs could be recovered. The Court noted that the Action revolved around Alberta real
estate projects in which the Plaintiffs had invested. Since the Defendants already had control of
these assets, it was likely that the Defendants could enforce an order or judgment against these
assets. The Court held that the Defendants had not met the onus to justify Security for Costs.
The Plaintiffs alleged that the SJ Defendants (that were part of the Limited Partnership
Agreement (“LPA”)) breached the LPA by lending funds to non-arm’s length parties (the other
SJ Defendants). The SJ Defendants did not enter Affidavit evidence to oppose the Summary
Judgment Application. Instead, they argued that the Plaintiffs, as Limited Partners, did not have
standing to bring the Summary Judgment Application. The Court held, based on the following
section of the LPA, that there was a contractual duty of good faith by the general partner to the
limited partners, and that duty had been breached:
Duty of general partner: the general partner shall exercise the powers and discharge the duties
of its office hereunder honestly, in good faith and in the best interests of the limited partners.
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The Court held that there was a triable issue in relation to the limitations defence regarding the
CQSC Plaintiffs, and Summary Judgment could not be entered. However, the Court noted that
the triable issue in respect of the CQSC Plaintiffs should not deprive the remaining CVP II
Limited Partners from the benefits of the Decision. In order to give effect to the Decision, and
yet recognize the limitations issue, Justice Hall ordered that any funds realised as a result of this
Judgment that would be distributable to members of the CQSC were to be paid into Court and
not distributed until the limitations issue had been determined.
LEWIS ESTATES COMMUNITIES INC V BROWNLEE LLP, 2013 ABQB 508 (BROWN J)
The Applicants, being various golf course owners, applied for an Order allowing them to seek
review by a Review Officer of accounts for services rendered by the Respondent, Brownlee LLP,
notwithstanding that most of the invoices were issued over six months prior to filing the
Appointment for Taxation. The Applicants also sought an Order compelling Brownlee to provide
them with complete files relating to the matters covered by the accounts.
The Parties agreed that the golf courses were entitled to a review of Brownlee’s accounts dated
April and March of 2010, but also agreed that an Order was required for a review of Brownlee’s
accounts going back further. The actual Appointments for Review were filed prior to the
adoption of the current Rules of Court; therefore, the Court was required to apply former Rule
647, as it governed the Application at the time it was filed - Brown J. noted that the effect of
former Rule 647(d) was the same as the combined effect of current Rules 10.10(2) and
13.5(2)(a).
Whether considering the former Rules or the current Rules, the Applicants were only entitled to
a review of lawyers’ charges delivered within the prior six months. Brown J. stated that this
limit was meant to balance the right of a client to initiate a review of accounts, which required
the lawyer to demonstrate reasonableness, and the right of lawyers to a prompt request by
clients for a review. Further, any exercise of judicial discretion to extend the time period
beyond six months must weigh the factors relevant to the circumstances of the Application,
having regard to established principles and possible injustices.
In this instance, the Court considered several factors, including: the types of accounts Brownlee
rendered to the Applicants; the length of the requested extension; the reason for the delay to
file the Appointments; whether the delay caused prejudice to Brownlee; whether there was
evidence of overcharging by Brownlee; and whether the evidence of the entire relationship
between the Parties supported an extension of time. Brown J. stated that no one factor was
determinative; however, the first factor considered was the type of accounts rendered by
Brownlee, as it was seen to be pivotal to some of the other factors.
Regarding the type of account, the issue was whether Brownlee’s periodic accounts were
interim or final. Brown J. stated that a periodic account was likely to be considered final if the
parties understood that the charges would be based on hours spent at an hourly rate and
would not be adjusted at the conclusion of the matter. The Court held in this case that the
accounts on their face were final in that they were for services rendered during a specific time
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period, the total was said to be “due” and the Applicants actions demonstrated that they
considered the accounts to be payable immediately, not subject to a later adjustment.
Regarding the length of the extension, the longer the extension, the more the Court felt this
factor would militate against granting an extension. In one instance, review was statute-barred
pursuant to the Limitations Act. Brown J. stated that the Applicants needed a “very good
reason” to support an extension of time for reviewing lawyers’ charges and expressed two
concerns with the evidence provided by the Applicants. First, the Applicants failed to identify
their concerns earlier than 2009 and, second, the Applicants failed to provide particularity in
their account of the time period between identifying their concerns about possible duplicative
work and filing the Appointments.
Regarding prejudice, Brown J. examined whether the Applicants’ delay was inordinate and, if
so, whether the Applicants rebutted the presumed prejudice to Brownlee. The length of the
delay varied with each account, and Brown J. concluded that delay in respect of accounts sent
in connection with the 2009 and 2010 matters were not reasonably characterized as inordinate.
Regarding the 2007 and 2008 matters, the delay in seeking a review of those accounts was
considered inordinate. Where the delay was found to be inordinate, Brown J. held that the
Applicants were able to rebut the presumed prejudice to Brownlee, as Brownlee still had the
files for those matters in its custody and was therefore able to address the merits of the
accounts.
The Court also considered the allegations of overcharging and agreed with Brownlee’s
submission that the time entries were not necessarily suggestive of overcharging; however, it
was held that there was some evidence that could support a finding of overcharging. Finally,
Brown J. considered the relationship between the Parties and held that the relationship
between Brownlee and the Applicants gave them many opportunities to identify concerns and
raise them with Brownlee; therefore, this factor weighed against allowing an extension.
After all of the factors were considered, Brown J. concluded that the interests of justice and
public confidence were best served by permitting a review of Brownlee’s accounts relating to
the 2009 and 2010 assessment matters. The Court extended the Applicants’ time for seeking
review by six months for those specific matters.
Regarding the Applicants’ request for an Order compelling Brownlee to provide them with
complete files, Brownlee submitted that the request was premature and unnecessary. Brown J.
disagreed, finding that it would be better to ensure that the Applicants had all the file materials
in advance of the Review, rather than to adjourn it later. The Court also held that the Review
Officer’s authority under Rule 10.17(1)(b) was intended to empower the Review Officer. Brown
J. ordered Brownlee to provide the Applicants with the complete files regarding the matters
under review.
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BILHETE V WONG, 2013 ABQB 514 (READ J)
The Defendant, Wong, incorporated the two Defendant corporations – Material Processing
Canada Inc. (“MPCI”) and Camrose Mining (Alberta) Ltd. (“Camrose”) – to purchase lands, the
funds for which were advanced by the Plaintiffs. The Plaintiff, Louis Bilhete (“Louis”), had
instructed Wong to make his son, Clinton Bilhete (“Clinton”), the sole shareholder of both
corporations. However, Wong failed to make Clinton the sole shareholder for MPCI.
The Defendants brought an Application to have the Plaintiffs found in contempt for failure to
answer Undertakings, for dismissal of the Action for delay, or alternatively for the Plaintiffs to
provide Security for Costs. The Application to strike for delay was subsequently abandoned at
the Hearing. The Application for a finding of contempt alleged that Louis failed to answer
Undertakings which were ordered by the Court on two occasions. The Plaintiffs asserted that all
Undertakings had been answered to the best of Louis’ ability.
On the issue of contempt, Read J. determined that an Order made by Master Wacowich was
unambiguous and required actual responses, not just best efforts. The answers provided to the
Undertakings were held to be unresponsive and incomplete. Pursuant to Rule 10.51, Read J.
directed Louis to be served with Form 47 and to appear before the Court to show cause why he
should not be declared in civil contempt for failing to answer the Undertakings he was ordered
to answer.
The Order for Security for Costs was granted. Read J. held that the Plaintiffs’ case was weak:
Louis’ evidence was confusing and often contradictory, and the Defendants had a strong
Statute of Frauds defence regarding the absence of written documentation. Further, the
Plaintiffs provided no evidence to show their ability to pay or that Security was not necessary.
PRECISION FOREST INDUSTRIES LTD V COX, 2013 ABQB 524 (LEE J)
The Plaintiff signed a real estate purchase contract for nine parcels of forested land. The
Plaintiff was interested in the lands and the timber located on the lands. An Action was brought
by the Plaintiff seeking specific performance, or damages in lieu thereof, with respect to the
real estate sale transaction which the Defendant refused to close. The lawyer performing the
closing was named as a Third Party by the Defendant. The Defendant subsequently sold all the
wood products to another party, kept the proceeds, and started to remove gravel product from
the subject lands. Multiple attempts were made, including two court Orders, to compel the
Defendant to answer Undertakings necessary to address the issue of damages. The Defendant
still failed to provide answers. The Plaintiffs brought an Application for Contempt pursuant to
Rules 10.52 and 10.53.
Lee J. noted that it was significant in relation to the Application that the two prior Court Orders
referred to the same Undertakings. The standard of proof in civil contempt is proof beyond a
reasonable doubt and is comprised of both the required action and the required mindset, i.e.
an actus reas and mens rea. The requirements for finding civil contempt are:
1.
An existing requirement of the Court;
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2.
Notice of the requirement to the person alleged to be in contempt; and
3.
An intentional act (or failure to act) that constitutes a breach of the requirement
without adequate excuse.
Upon review of the two Court Orders to compel Answers to Undertakings, the history of the
delays, as well as a review of the Undertakings and the answers in conjunction with the orders,
Lee J. held that, pursuant to Rule 10.52, the alleged contempt was made out as it was clear that
the Defendant had not answered the Undertakings in dispute.
In determining the appropriate remedy for the contempt, in accordance with Rule 10.53, Lee J.
reviewed the basic nature of the claim. He held that a fine was not appropriate given that it
would not achieve the answers to the questions sought. Nor was it appropriate to strike the
Defence as the Plaintiff would still be in the current position of having to proceed to an
Assessment Trial to prove its damages. Lee J. held that the appropriate remedy for contempt in
this case was to require the Defendant to pay all fees and costs associated with the Application
incurred by the Plaintiff and the Third Party on a solicitor-client basis.
ATTILA DOGAN CONSTRUCTION V AMEC AMERICAS LIMITED, 2013 ABQB 525 (WITTMANN CJ)
The Plaintiff and Defendant became joint venture participants in an agreement to build a large
magnesium oxide plant with Jordan Magnesia Company Limited (JorMag). The Parties entered
into an amending agreement in order to resolve cash flow issues but the project continued to
encounter delays which resulted in the termination of the entire project. The Parties and
JorMag submitted to arbitration, and the Plaintiff and Defendant subsequently entered into a
claims agreement which had the effect of suspending the claims as between the Plaintiff and
Defendant. The joint venture participants settled with JorMag and the Plaintiff commenced this
Action against the Defendant, claiming damages for the failure of the project. The Plaintiff
subsequently sought to amend its Amended Statement of Claim and its Statement of Defence
to Counterclaim pursuant to Rules 1.2 and 3.65. The Plaintiff argued that the proposed
amendments required no supportive evidence.
Wittmann C.J. outlined Rule 3.65 and noted the test for amending pleadings. Chief Justice
Wittmann confirmed that the evidentiary threshold for allowing amendments is "generally
low"; however, substantive amendments do require supportive evidence. Certain amendments
to allegations (for example: fraud, breach of trust, wilful default or undue influence) require a
greater evidentiary standard. Chief Justice Wittmann held that the proposed amendments
required evidence. Further, it was appropriate to consider the prior evidence brought in
support of the Application to decide if the amendments should be allowed. Based on a detailed
consideration of the proposed amendments and the available evidence, Wittmann C.J. allowed
some specific amendments to the Pleadings and denied other amendments.
FRANCHUK V SCHICK, 2013 ABQB 532 (MASTER SCHULZ)
The Applicant (Defendant) sought dismissal for long delay, or alternatively, dismissal for delay
causing significant prejudice.
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The Action alleging defamation was brought in 2006. The issue was whether an Affidavit filed in
2009 advanced the Action. The Affidavit was filed in support of the Defendant, and outlined
details on the defences of qualified privilege and whether the Defendant acted maliciously. The
Affiant died shortly after the filing of the Affidavit. The Affiant had not been questioned on the
Affidavit.
The Court held that the filing of the Affidavit was similar to the provision of information to an
opposing party. The Court also held that the Defendant had acknowledged, in previous
correspondence, that the filing of the Affidavit moved the Action closer to Trial. The Court held
that the filing of the Affidavit significantly advanced the Action. Additionally, the Court held that
the Defendant had not been significantly prejudiced.The Application was dismissed. However,
the Court granted a procedural Order requiring the Plaintiff to either file a completed Form 37
or bring an Application to set a Trial date.
1251165 ALBERTA LTD V WELLS FARGO EQUIPMENT COMPANY LTD, 2013 ABQB 533
(GRAESSER J)
The Plaintiffs appealed the Decision of Master Breitkreuz ordering payment of Security for
Costs. The dispute arose over a lease agreement whereby the Plaintiff and a related
corporation (the "Customer") leased a trailer from the Defendant. The Customer went into
arrears after having made 37 payments and the Defendant seized the trailer. The trailer was
sold for $15,000; however, the Plaintiffs alleged that the trailer was worth more and brought a
claim alleging that the Defendant sold the trailer for a price significantly under fair market value
and that it did not act in good faith or in a commercially reasonable manner. The Defendant
applied for Security for Costs on the basis of a good defence on the merits and the
impecuniosity of the Plaintiffs. The Plaintiffs acknowledged that they were without money
sufficient for posting Security for Costs, but argued that they intended to use the proceeds of
the sale of the trailer to pay off their debts, as they estimated the value of the trailer at
$200,000
The Court considered Rule 4.22, stating that there was no substantive difference between the
current Rule and the former Rule, with the exception that the current Rule invited the Court to
consider the merits of the Action. In this case, there was evidence that the Plaintiffs were
individually and collectively unable to pay Security for Costs, but Graesser J. noted that Rule
4.22 gave the Court discretion to set the amount and terms of any Security Order, including
determining whether any Order should be granted. Additionally, the Court highlighted that
there was nothing to prevent the Defendant from obtaining Security for Costs simply because it
filed a Counterclaim. The Court acknowledged that the basis for an Order for Security for Costs
was to protect a Defendant, who has an arguable defence, from facing a situation where a
Plaintiff is unable to pay Costs.
After canvassing case law, Graesser J. set out factors to consider when determining whether or
not to order Security for Costs: the existence of a Counterclaim; the merits of the Action; the
likelihood of success for the Plaintiff (the greater the likelihood of success for the Plaintiff, the
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more the Court should consider the injustice of preventing the claim from proceeding); and any
connection between the Plaintiff's financial situation and the Defendant's conduct.
Graesser J. considered the merits of the Parties’ arguments and could not determine which
Party was more likely to succeed. Based on this, the Master’s Order was upheld and it was also
ordered that if the Plaintiffs were unable to post Security for Costs in accordance with Rule
4.23, the Claim and Counterclaim would be dismissed.
ERNST V ENCANA CORPORATION, 2013 ABQB 537 (WITTMANN CJ)
The Plaintiff, Ernst, brought an Action against EnCana Corporation (“EnCana”), the Energy
Resources Conservation Board (the “ERCB”) and Her Majesty the Queen in Right of Alberta
(“Alberta”) in respect of alleged damage to the water well and aquifer that supplied fresh water
to her home near Rosebud, Alberta. Ernst claimed that the ERCB was negligent in its
administration of its statutory regime with respect to EnCana’s drilling activity, and that the
ERCB owed her a private duty to take reasonable steps to protect her well water from
contamination. Ernst further alleged that the ERCB breached s. 2(b) of the Canadian Charter of
Rights and Freedoms by barring her from communicating with the ERCB through the usual
public channels. The claim against Alberta related to Alberta Environment & Sustainable
Resource Development (“Alberta Environment”). Ernst claimed that she relied on Alberta
Environment to protect underground water supplies and to reasonably respond to complaints.
Ernst alleged that Alberta Environment responded to her complaints negligently and in bad
faith. Ernst further alleged that Alberta Environment owed her a duty to protect her water well
from foreseeable contamination caused by the EnCana drilling.
Ernst filed a Statement of Claim in December 2007, and an Amended Statement of Claim on
April 21, 2011. A Second Amended Statement of Claim was filed on February 7, 2012.
Applications were made by all of the Defendants to strike certain paragraphs from the Second
Amended Statement of Claim. The ERCB also sought Summary Judgment against Ernst. When
the Applications were heard in April 2012, the Case Management Judge suggested that Ernst
redraft the Second Amended Statement of Claim in a manner that complied with the Rules of
Court. A fresh Statement of Claim was drafted.
The fresh Statement of Claim was filed on June 25, 2012. The ERCB and Alberta brought
Applications in respect of the fresh Claim. The ERCB requested an Order striking certain
paragraphs of the Claim or, in the alternative, granting Summary Judgment in favour of the
ERCB. In the further alternative, the ERCB requested better particulars with respect to certain
paragraphs in the fresh Claim, Costs of the April 2012 Application, and Costs of the present
Application. Alberta sought an Order striking certain paragraphs or portions thereof from the
Claim or, in the alternative, for Particulars and Costs.
The paragraphs the ERCB sought to have struck from the fresh Claim related to negligence
claims against the ERCB and to the Charter. Pursuant to Rule 3.68, a Claim may be struck if it is
plain and obvious that the pleading does not disclose a reasonable cause of action. With
respect to Ernst’s negligence Claims, the ERCB argued that it, as a statutory body, did not owe
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Ernst a private duty of care. In the absence of a duty of care, there could be no action in
negligence. The ERCB also relied on s. 43 of the Energy Resources Conversation Act (ERCA), a
statutory immunity clause in favour of the ERCB. Ernst argued that the ERCB owed her a private
duty of care, and that the statutory immunity clause in the ERCA, properly interpreted, did not
provide immunity to the ERCB in respect of her Claim.
Wittmann C.J. held that the duties owed by the ERCB were not private duties, but duties owed
to the public at large. None of the paragraphs in the fresh Claim elevated the ERCB’s public
duties to a private duty owed to Ernst in particular. As such, Wittmann C.J. held that there was
no sufficient proximity to ground a private duty of care. Wittmann C.J. held that the allegations
of negligence against the ERCB in the fresh Statement of Claim should be struck.
The arguments respecting s. 2(b) of the Charter related to a reference Ernst had made about
Wiebo Ludwig. The ERCB argued that Charter protection of free expression did not extend to
situations involving threats or acts of violence. The ERCB argued that the Wiebo Ludwig
comment was significant in the context of numerous violent acts of eco-terrorism against oil
and gas development in Alberta and, as such, it was required to take such threats seriously. The
ERCB further argued that Ernst continued to contact the ERCB after it ceased communications
with her and, as such, her Claim related to the ERCB’s failure to respond to her
communications. The ERCB argued that s. 2(b) of the Charter only guarantees a right to free
expression, and not a right to be listened to. Ernst alleged that the ERCB used the Wiebo
Ludwig comment as an excuse to prohibit her from communicating with the ERCB through the
ordinary channels for public communication. Ernst argued that her Charter rights were
breached in that the ERCB punished her for criticizing the ERCB, and in that she was restrained
in her communication with the ERCB. Wittmann C.J. held that a Claim is not doomed to fail
simply because it is novel. Wittmann C.J. held that the ERCB led no evidence with respect to the
Wiebo Ludwig eco-terrorism Claim, and therefore could not rely on this argument. As such, it
could not be said that the Charter Claim was doomed to fail or that it did not disclose a cause of
action.
The ERCB also made a limitations argument with respect to Ernst’s Charter Claim. The ERCB
argued that Summary Judgment could be granted if a Claim was filed outside the limitation
period. While there was no Affidavit evidence in support of this Application, the ERCB argued
that the fresh Claim itself demonstrated that the Charter Claim was brought out of time. The
ERCB further argued that the Summary Judgment Rule provides that Judgment may be given at
any time in an Action when admissions of fact are made in a pleading. Further, while Rule 7.3(2)
provides that an Application for Summary Judgment must be supported by Affidavit evidence,
the Rule also provides that an Application for Summary Judgment may be supported by other
evidence to the effect that the grounds have been met. The other evidence referenced in Rule
7.3(2) included admissions of fact in the pleadings. Ernst argued that the ERCB had not proven
the test for demonstrating that a limitation period had expired, on the facts, as provided under
the Limitations Act. Wittmann C.J. agreed, and held that there was insufficient proof upon
which to ground Summary Judgment.
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The ERCB further argued that the statutory immunity clause in s. 43 of the ERCA was an
absolute bar to the Ernst Claims against it. Ernst argued that s. 43 could not bar her Claim on
the basis that it did not cover omissions. Wittmann C.J. held that s. 43 bars any actions or
proceedings against the ERCB both in terms of its decisions to act and its decisions not to act.
As such, even if it was found that the ERCB owed a private duty of care to Ernst sufficient to
establish a tort claim, that claim would have been barred by s. 43 of the ERCA. With respect to
Ernst’s constitutional arguments, Wittmann C.J. held that the statutory immunity clause applied
to claims for personal remedies pursuant to the Charter. As such, s. 43 of the ERCA was an
absolute bar to Ernst’s claims against the ERCB, and the claims were struck or, in the
alternative, dismissed.
With respect to Costs, the ERCB argued that it was a successful Party at the Application
returnable April 2012. The Case Management Judge expressed negative views regarding the
Second Amended Statement of Claim and ultimately directed that a new Statement of Claim be
filed. Wittmann C.J. held that, at the April 2012 Application, the Case Management Judge found
that she had the authority to order amendments pursuant to Rule 3.68, and it was on that basis
that she recommended that the Statement of Claim be redrafted. Wittmann C.J. declined to
award any Costs for the April 2012 Applications on the basis that the issues determined that
day were initiated by the Case Management Judge on her own motion and were approved of by
all Counsel.
Alberta sought an Order striking certain paragraphs of the fresh Claim or, in the alternative,
Particulars and Costs. Alberta argued that a number of paragraphs in the fresh Statement of
Claim were frivolous, irrelevant or improper. Rules 13.6(1)(a) and 13.6(2)(a) require that only
relevant matters of fact upon which a Party relies, but not the evidence to prove those facts,
should be pleaded. Further, a pleading must be succinct. Rule 13.6(3) requires a Party to state
any matter relied upon which may take another Party by surprise. Pursuant to Rule 3.68, the
Court may strike out all or any part of a Claim on the ground that a commencement document
is frivolous, irrelevant, or improper. Alberta argued that pleadings are not intended to be prolix
and must not go beyond a summary of the facts or be argumentative. Ernst argued that the
essence of a properly drawn pleading is clarity and disclosure, and that the burden with respect
to striking out pleadings is extremely onerous and high. It must be plain and obvious that the
facts as pleaded, which must be assumed to be true, do not disclose a reasonable cause of
action. Wittmann C.J. held that while some of the impugned words or phrases ought to be
excised or substituted, that was not the function of the Case Management Judge. Tinkering
with the pleadings by the Court would not be useful to the advancement of the Action, and
therefore would be contradictory to the Foundational Rules. As such, Alberta’s Application was
dismissed.
EQUITABLE TRUST COMPANY V LOUGHEED BLOCK INC, 2013 ABQB 544 (ROMAINE J)
The Plaintiff Applicant applied to Justice Romaine to vary the Reasons relating to Costs in order
to reflect a previously overlooked contractual provision that Costs would be borne by the
Defendant Respondents on a solicitor and own client basis. The Defendant Respondents
opposed the Application on the basis of jurisdiction and merits. The Defendant Respondents
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argued that the issue was res judicata, or that Rule 9.13 applied only in the limited
circumstances of a “slip” or where fresh evidence was adduced. Justice Romaine noted that
pursuant to Rule 9.13 jurisdiction to re-open the previous Decision was a non-issue; the Rule
clearly allowed for the Order to be varied at any time before entry. The Justice further observed
that the Costs Decision could not be res judicata since Rule 9.13 specifically provides that an
Order may be varied, and the Rule was not limited to the narrow ambit suggested by the
Defendant Respondents. The previous Costs Order was varied to accommodate Affidavit
evidence that had not previously been considered. Costs were awarded to the Plaintiff
Applicant on a solicitor and own client basis.
VAN BRABANT ESTATE (RE), 2013 ABQB 547 (MOEN J)
The Applicants were five brothers and sisters of a deceased brother who died intestate. The
Respondent acted as their counsel in a bitterly fought estate matter, including the successful
challenge to the status of an adult interdependent partner claimant. The Applicants applied for
an Order pursuant to Rule 13.5 extending the six month time limit created by Rule 10.10, and
allowing the Applicants to proceed with a review of accounts rendered by the Respondent.
The Applicants filed their appointment for review of the retainer agreement/lawyer’s charges
on October 9, 2012. Out of the sixteen accounts rendered by the Respondent, four were within
the six month period, and twelve were not.
The Court looked at whether the accounts rendered by the Respondent were interim or final,
and cited Samson Cree Nation v O'Reilly & Associés, 2013 ABQB 350 for the proposition that the
six month time limit occurs after the final account has been rendered to the client. Moen J.
analyzed the terms of the retainer letter and the accounts rendered. Moen J. found that the
retainer letter was less than transparent with respect to whether the accounts were final or
interim, and resolved the ambiguity in favor of the Applicants.
Given that the accounts were interim, and that the last account was rendered within the six
month limitation period, Moen J. did not need to address the issue of whether the Court should
exercise its discretion to extend the time for filing the appointment pursuant to 13.5. However,
Moen J. undertook the analysis, in the event that her determination that the accounts were
interim was incorrect.
In determining whether the Court should exercise its discretion to extend the time period in
this case, Moen J. considered the following factors.
1.
Did the delay in filing the taxation cause prejudice to the solicitor?
2.
When did the client express the intent to tax the accounts?
3.
Were the accounts part of a continuing file and therefore interim
accounts?
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4.
Was there evidence that there was overcharging and that it was just and
equitable that the accounts be taxed?
5.
Was there evidence that the parties had come to an agreement as to the
amount of the account?
6.
Did the evidence of the entire relationship between the solicitor and
client support any extension of time?
7.
Did the Applicant have a reasonable excuse for failing to seek a review
within six months?
8.
Was there merit to the client’s position that the accounts were
excessive?
9.
Was the extension request for a significant period of time?
After reviewing these factors, the Court determined that, even if it had been incorrect in
characterising the accounts as interim, this was a proper case for the Court to use its discretion
to extend the time period.
FORSYTH V FRASER, 2013 ABQB 557 (BROOKER J)
A Provincial General Election was held in Alberta and the result indicated that Ms. Heather
Forsyth of the Wildrose Alliance Party had obtained the largest number of votes, followed by
Ms. Wendelin Fraser of the Progressive Conservative Party. The number of spoiled ballots in
this case exceeded the number of ballots by which there was victory. Ms. Fraser requested a
judicial recount on the basis that the votes had not properly been accepted, and the Certificate
of Return did not accurately record the number of votes. The recount confirmed Ms. Forsyth’s
victory. The Court directed that the Parties resolve the matter of Costs. The Parties were unable
to resolve this issue and Ms. Forsyth made an Application for a Costs award in relation to the
judicial recount.
The Court completed an analysis of s. 148.1(1) of the Election Act in determining who should
pay the Costs. The Court reviewed the factors set out in s. 148.1 (1) and determined that an
award for Costs was a fact-specific endeavor. The Court also noted the general rule, Rule
10.29(1), that the successful Party to an Application is entitled to a Costs award against the
unsuccessful Party. Rule 10.29(1)(d) provides an exception to this general rule where there is
legislation governing who is to pay Costs. In this case, the Court acknowledged that ensuring
public confidence in a fair and transparent electoral system outweighed the consideration that
Ms. Fraser was personally invested in the outcome. The Court also noted that the margin of
victory was very minimal and that there was no evidence that Ms. Fraser was taking the process
lightly. Further, there was no indication that Ms. Fraser seemed to be motivated by anything
other than a desire to ensure the voting record accurately reflected the ballots cast for each
candidate. The Court held that the Crown would bear the Costs of the Application pursuant to
s.148.1(1)(b)(ii) of the Elections Act.
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The Court then determined the quantum of Costs to be paid by the Crown, noting that Rule
10.33(1) of the Rules of Court allows the Court to consider a variety of factors in making a Costs
determination. The Court found that solicitor-client Costs were not justified, and that a partyparty Costs award was the correct approach. The Court determined that the appropriate Costs
award given the facts would be calculated on single Schedule C Column 5, plus disbursements.
However, in this particular case, the Crown had already negotiated a settlement with Ms. Fraser
on Costs that the Court estimated to be around $10,000, an amount greater than the Costs for
the recount that would be calculated under Column 5. The Court stated that it would offend
one’s sense of justice and fairness that the “loser” of a recount would receive a greater
payment than the “winner”. Thus, in exercising its discretion, the Court ordered the Crown to
pay a sum of $12,500 plus reasonable disbursements for the judicial recount, and the Costs
under Column 5 of Schedule C for the Application.
ROYAL BANK OF CANADA V RAHMANI, 2013 ABQB 565 (MASTER MASON)
The Royal Bank of Canada applied for Summary Judgment. The Respondent straw
purchaserasserted that he entered into the transaction at the urging of his former co-worker,
who requested that the Respondent help him to purchase a house. The Respondent stated that
he was told that the proposed transaction was completely legal, and that everything would be
handled officially through a lawyer and banker. The Respondent thought he was helping out a
friend and received no compensation for his role.
The Respondent defended the Action on the grounds that the Bank did not act with due
diligence in lending him the money, a bank employee was involved in the fraud, and non est
factum. He also issued a Third Party Notice alleging negligence against the lawyer that
represented him in the transaction.
By an Order dated October 12, 2010, the property was sold to the Bank at its appraised fair
market value. The Bank’s Application for a Deficiency Judgment was adjourned and became the
subject of the Application, which also included the lawyer’s Application to summarily dismiss
the Third Party Notice against him.
The Applications were dismissed in their entirety. Master Mason determined that there were
genuine issues for Trial on all of the matters being considered.
FILL V SOMANI, 2013 ABQB 572 (SHELLEY J)
A little over a month before Trial, the Defendants made Formal Offers to Settle, which the
Plaintiffs accepted. The Parties agreed to Consent Judgments which provided for party-party
Costs as agreed or, failing agreement, to be taxed with reference to the relevant column of
Schedule C. The Parties were unable to agree on Costs and attended before an Assessment
Officer who referred six issues to the Court for determination.
Before addressing the issues, the Court analyzed whether the wording of the Consent Judgment
operated to limit its discretion in awarding Costs. Shelley J. found that the Parties had agreed to
submit disputes to taxation which inherently implied the discretion of the Court to award Costs.
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The Court held that clear and strong language is required to contradict that implication. Shelley
J. then addressed in turn each of the six issues referred by the Assessment Officer.
First, the Court assessed whether the Plaintiffs were to be awarded an inflationary factor. The
Court found that the Rules of Court Committee’s recent request for comment and its ongoing
review of the tariff of recoverable fees in Schedule C was a relevant consideration. In addition,
the Plaintiffs had provided an economist’s report evidencing the rate of inflation. The Court was
satisfied that this was an appropriate case to award an inflationary factor and did so on the
basis of the economist’s report, at the rate set forth in that report.
Second, the Court addressed Costs for Notices to Admit. The Plaintiffs sought Costs for each of
the Notices to Admit Opinions, Notices to Admit Documents, and Replies to the Defendants’
Notices to Admit Documents. The Defendants argued that in the Notices to Admits identical
opinions were unnecessarily duplicated. The Court found the Notices to Admit were likely
helpful in settlement and the Experts’ Reports were lengthy. Accordingly, it was appropriate to
award a fee in respect of each Notice to Admit Opinion. The Plaintiffs served a Notice to Admit
eleven documents which resulted in the Defendants admitting nine of them. The Court found
that this would have significantly shortened Trial and awarded the Plaintiffs the Costs thereof.
Finally, the Plaintiffs sought Costs for Replies to Notices to Admit Documents served by the
Defendants. The Plaintiffs relied on Rule 1.7 to assert that a Reply to a Notice to Admit was
analogous to a Notice to Admit for the purposes of a Costs award. The Court was not satisfied
that the Replies to Notices to Admit were appropriate or warranted, and determined that it
would be inappropriate to award Costs based on the proposed application of Rule 1.7.
Third, the Plaintiffs sought to recover the disbursement expense for Costs of a mediation. The
mediation had occurred under the old Rules. However, the Court found that Rule 10.41(2)(d)
was relevant. Shelley J. explained that the rationale for the Rule was “that dispute resolution
processes benefit both parties and promote early settlement”. Finding that Parties should be
encouraged to seek alternative dispute resolution, the Court declined to award Costs for the
mediation.
Fourth, the Court addressed costs awards for nominee physicians at Rule 5.41 Examinations.
The Plaintiffs sought to recover disbursements for fees paid to nominee physicians. The
Defendants argued that the Plaintiffs must first establish a need. The Court held that nominee
medical expert fees should be awarded if the fees are reasonable and appropriate. Shelley J.
held that, in this case, they were, and awarded the Plaintiffs Costs. The Court went on to note
that there is no need to prove necessity to justify an award of Costs for a nominee’s
attendance.
Fifth, the Defendants disputed the Plaintiffs’ entitlement to recover the Costs of an Expert’s
Report from PricewaterhouseCoopers, arguing that the fee was unduly high. The Court noted
that the Defendants presented no particular evidence on this point, but rather relied on general
principles from case law. Shelley J. found that the Expert’s Report at issue had been
complicated by the difficulty of assessing a fledgling business, and was a key factor in
settlement. Her Ladyship also noted that the fee had already been reduced. The Court rejected
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the generalized arguments for a reduction of the fee for the Expert’s Report from
PricewaterhouseCoopers and awarded the Plaintiffs full Costs for this disbursement.
Finally, the Plaintiffs sought disbursements for photocopying in-house at the legal firm at $0.28
per page. The Defendants argued that photocopying costs should be restricted to $0.15 per
copy in accordance with amounts set by jurisprudence. The Court held that the $0.15 per copy
rate applies only in the absence of evidence substantiating a higher rate. In this case, the
Plaintiffs provided the Affidavit of a legal assistant which showed an actual cost of
photocopying of $0.38 per page. Accordingly, the Court held that $0.28 per page was supported
on the evidence and granted costs of photocopying at that rate.
CANADIAN NATURAL RESOURCES LIMITED, 2013 ABQB 578 (HUGHES J)
The case involved a defamation action for release of a document (the “Quality Alert”) by the
Defendant, CNRL, which stated that piping defects had been discovered in the pipes
manufactured by the Plaintiff, Mittal, and that those materials should be quarantined until an
investigation of the cause was complete. Mittal sought to substantially amend its Statement of
Claim, from 26 paragraphs to 111 paragraphs. The Defendant submitted that Mittal had not
met the test under Rule 3.65 for many of the proposed amendments because there was no
evidence to support the amendments and/or some of the amendments raised new claims
which were past the limitation date. Pursuant to Rule 3.68(2)(b), the Defendant applied to
strike the pleadings related to the allegation that the Quality Alertwas defamatory and/or an
injurious falsehood.
With regard to the Application to amend the pleadings, the Court addressed each of the
proposed additional paragraphs. The proposed amendments that CNRL did not oppose were
allowed. Some amendments identified the names of the recipients of the Quality Alert who
were described more generally in the original pleadings. Therefore, those amendments
particularized the original pleadings and were allowed. Paragraphs which identified the projects
and customers who allegedly avoided the pipes as a result of CNRL’s Quality Alert were
supported by Affidavit evidence and allowed. However, the majority of the proposed
amendments were not allowed. In a prior application – Canadian Natural Resources Limited v
Arcelormittal Tubular Products Roman S.A. (Mittal Steel Roman S.A.), 2012 ABQB 679, aff’d
2013 ABCA 87 – CNRL was denied amendments to its Statement of Defence. Some of the
paragraphs that the Plaintiff now proposed were essentially identical to those sought by CNRL
in its proposed Amended Statement of Defence. Therefore, Hughes J. denied those
amendments. Other proposed paragraphs were denied for the following reasons:
(a) The amendments pleaded no material or relevant facts with respect to the
elements of defamation or injurious falsehood;
(b) The amendments were wholly argument and therefore improper pleadings;
(c) The amendments were not supported by the evidence;
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(d) The original pleadings did not provide sufficient detail of the specific claims.
Therefore, the amendments did not further particularize the original
pleadings, butbrought new claims which were out of time; and
(e) Those claims out of time could not be saved because they did not relate to
the conduct, transaction or events described in the original pleading. The
original Statement of Claim simply made general allegations and did not
adequately plead republication or the harm arising therefrom.
With respect to CNRL’s application to strike out pleadings pursuant to Rule 3.68(2)(b), the test
was whether it was “plain and obvious” that the Plaintiff’s claim must fail. The ultimate issue
came down to whether the words that Mittal complained of were in fact defamatory. The
ordinary meaning of the language and the evidence presented by the attached photographs
were considered.Hughes J.found that a reasonable, thoughtful and informed person of average
intelligence, with a degree of common sense, would not find the words in the Quality Alert to
be defamatory, and that it was plain and obvious the Plaintiff’s claim in injurious falsehood was
bound to fail.The Application to strike the pleadings related to the Quality Alert was granted.
MCDONALD ESTATE (RE), 2013 ABQB 602 (MAHONEY J)
The Applicants, Cheryl Mackintosh (“Cheryl”) and Michael McDonald (“Michael”), were the coguardians and co-trustees of a dependent adult, Arlene Mackintosh (“Arlene”). The Applicants
sought to finalize remaining probate issues of an estate matter and to declare the former
trustee of Arlene, Joan Gusa (“Gusa”), in contempt and a vexatious litigant.
Gusa failed to file any materials in response to the Application and sought a last minute
adjournment, which was a tactic she had used in the past. Mahoney J. held that there were no
grounds to grant the adjournment and that the request was simply for the purposes of delay.
Further, when Court Orders had been made, she failed to comply with the terms.
On the issue of whether Gusa was in contempt of Case Management Orders, Mahoney J.
referred to the provisions of Rule 10.52(3) and stated that the purpose of the contempt Rules is
to achieve compliance with Court Orders and to uphold the authority of the Court. Gusa was
declared to be in contempt, as she had repeatedly failed to respond to, or ignored,
Undertakings ordered in eleven Case Management Orders. No reasons were given for the
noncompliance, nor did she file any Affidavits to explain what attempts had been made to
comply with the Orders.
With respect to the punishment under Rule 10.53 for being in contempt, Mahoney J.
considered the fact that Gusa had made no apology or any kind of attempt to purge her
contempt, and that the Applicants had incurred significant costs and wasted time as a result of
Gusa’s failure to comply with the Orders. Gusa was ordered to pay a fine of $1,100.00 –
$100.00 for each of the eleven failures to comply.
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Mahoney J. further reviewed Gusa’s conduct throughout the estate matter and declared her to
be a vexatious litigant: she failed to follow Court Orders, delayed proceedings, refused to
consent to basic steps in administering the estate, and made unfounded allegations of
misconduct against third parties. In deciding the appropriate Costs in the circumstances,
Mahoney J. held that the Order should “bring home to Ms. Gusa the seriousness of her
actions”. Gusa was ordered to pay 4 times Column 5 Costs related to the Case Management,
contempt and vexatious litigant Applications.
PHOENIX LAND VENTURES LTD V FIC INVESTMENTS USA CORP, 2013 ABQB 614 (GOSS J)
This Action involved a tripartite property transaction in which the vendor sold the property to
the Defendant, who sold it on to the Plaintiff, but the title was transferred directly from the
vendor to the Plaintiff. The Plaintiff commenced the Action against the Defendant claiming
default in the payment due. The Defendant denied the allegations, pleading that the Plaintiff
did not disclose certain deficiencies in the environmental reports. The Defendant also
counterclaimed against, among others, their transactional solicitor alleging breach of contract
and breach of duty of care. The solicitor applied for a Summary Dismissal of the Counterclaim
as against him.
On the issue of breach of duty, Justice Goss held that there was conflicting evidence which
rendered the matter a triable issue. On the issue of the environmental reports, Justice Goss
held that there was evidence relevant to the level of care and skill of the solicitor, rendering the
issue triable. The solicitor argued further that the claim against him was statute barred. Her
Ladyship opined that the date upon which the limitation period started to run was not plain and
obvious, which made the issue triable.
CRYSTAL RIDGE FUELS LIMITED V MCINTOSH, 2013 ABQB 618 (JONES J)
The Defendant, Reese McIntosh (“McIntosh”), sought an Order:
(a) Permitting him to file a Counterclaim against the Plaintiffs, Gregory Binks, Sally Binks
and Crystal Ridge Fuels Limited (“Crystal Ridge”); and
(b) Compelling answers to Undertakings from Crystal Ridge.
McIntosh and Janice Pearce (“Pearce”) (McIntosh’s common-law spouse) were former
employees of Crystal Ridge. After their resignation, the Plaintiffs alleged, inter alia, that:
(a) McIntosh and Pearce had unlawfully and fraudulently misappropriated and converted to
their own use funds belonging to Crystal Ridge;
(b) McIntosh used funds belonging to Crystal Ridge to form Big Rock Petroleum Ltd. (“BRP”)
with the intention of competing with Crystal Ridge;
(c) McIntosh caused BRP to appropriate Crystal Ridge’s client base, revenue and good will;
(d) McIntosh falsely claimed to own Crystal Ridge and improperly pledged its credit;
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(e) McIntosh breached his fiduciary duty to Crystal Ridge; and
(f) BRP was unjustly enriched to the detriment of Crystal Ridge as a result of McIntosh’s
breach of fiduciary duty.
The Action was commenced in 2004. The claims of Gregory Binks and Sally Binks had been
previously struck. McIntosh now sought permission to file a counterclaim alleging, inter alia,
that the Plaintiffs deliberately misrepresented his 2003 tax withheld in respect of his 2003
income.
The Court held that more than 2 years had passed since McIntosh knew of the injury.
Therefore, for the Counterclaim to be allowed, one of the exceptions in the Limitations Act, RSA
2000, c L-12 (“Limitations Act”), would have to apply.
S. 6(2) of the Limitations Act allows for claims to be brought by a defendant in the proceeding
against a claimant in the proceeding, and thus applied to the claim against Crystal Ridge.
However, the Court held that s. 6(2) did not apply in relation to Gregory Binks or Sally Binks, as
although part of the Action, they were no longer claimants as their claims had been struck.
However, the Court held that s. 6(4) of the Limitations Act applied. The Counterclaim related to
events in the original claim, and Gregory Binks and Sally Binks:
(a) Would be added as Defendants;
(b) Received sufficient knowledge of the added claim within the applicable limitation period
plus time for service (3 years in total); and
(c) Would not be prejudiced in maintaining a defence to the counterclaim.
The Application to allow the filing of the Counterclaim was granted.
McIntosh also sought an Order requiring Crystal Ridge to provide answers to what he alleged
were deficient responses to Undertakings. The Court dismissed this Application, and held that
the appropriate remedy was for McIntosh to Question further on the Undertakings if he
believed that the answers were inadequate. However, the Court awarded costs to McIntosh,
holding that the Application would have been unnecessary if counsel for Crystal Ridge had
replied to a letter from counsel for McIntosh that detailed the alleged deficiencies in the
Undertakings.
LAKEVIEW DEVELOPMENTS INC V STONY PLAIN (TOWN), 2013 ABQB 619 (MOREAU J)
The Plaintiff applied for Summary Judgment against the Town of Stony Plain (the “Town” or the
“Defendant”), on the basis that there were no genuine issues to be tried in relation to its claim.
The Plaintiff was a registered owner of a remainder lot created from a plan of subdivision
registered by the Defendant. The Plaintiff acquired the subdivision lands from a foreclosure sale
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in January, 2011. At that time, the Town claimed to be owed $136,290.18 in outstanding utility
charges and penalties.
The charges related to a water leak, which the Town alleged was the responsibility of the owner
and sole occupier of the subdivision lands at the time. The Plaintiff, a subsequent purchaser,
paid $140,871.54 to the Town under protest to clear its title, and then commenced this Action
to recover those funds.
The Court noted that the test for Summary Judgment is the same as under the old Rules, citing
Encana Corp v ARC Resources Ltd, 2011 ABQB 431. The Court stated that “the Applicant is
required to establish that there are no genuine issues for trial”. If a Summary Judgment
Application is based on “factual merit,” then the Applicant must establish “beyond doubt” that
there is no genuine issue for trial.
The Court further explained that, if a Summary Judgment Application is based on the
interpretation of documents or a statute, the test for Summary Judgment is:
… whether the issue of law can fairly be decided on the record before the court.
If the legal issue is unsettled or complex or intertwined with the facts, it is
sometime[s] necessary to have a full trial to provide a proper foundation for the
decision.
The Court determined that there were genuine issues for Trial, and dismissed the Plaintiff’s
Application for Summary Judgment.
ROYAL BANK OF CANADA V KADDOURA, 2013 ABQB 630 (MASTER PROWSE)
The primary issue in this Application was whether, in a dispute between a 'straw buyer' and the
lawyer who represented the straw buyer, files the lawyer handled for other straw buyers were
producible in the litigation. Master Prowse first defined 'straw buyers' and how they drive the
fraudulent schemes they are involved in before considering the Affidavit of Records. The Court
stated that the Pleadings first had to be examined to determine whether documents were
material and relevant for the purpose of production.
After examining the contents of the Parties' Pleadings in detail, Master Prowse considered the
relevance and materiality of the previous transactions conducted by the lawyer involved in the
transactions with the straw buyers. The key issue in this case was "who knew what", as
between the lawyer and the straw buyer. Master Prowse held that documents regarding
previous transactions, if they existed, were relevant and producible under Part 5. The Court
stated that whether those records ultimately persuaded a Trial Judge was something a Trial
Judge would ascertain after hearing the evidence in full; however, at this stage, the documents
should be produced so the Trial Judge would have access to the complete “story” at Trial.
Master Prowse held the view that the lawyers in question should be required to disclose the
existence of previous purchase and mortgage transactions which involved either the same
mastermind or agent of the mastermind or loans officer, subject to solicitor and client privilege.
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Master Prowse declined to consider the solicitor and client privilege arguments presented by
counsel, because if there were no files, the issue did not have to be engaged. The Court
directed counsel for the lawyers to include those files in a Supplementary Affidavit of Records,
indicating what portions were being claimed as non-producible pursuant to solicitor and client
privilege, and the issue could then be addressed based on specific files.
Master Prowse concluded that, subject to solicitor and client privilege, the prior files were
relevant and material and producible because they could establish a pattern which
distinguished the transaction in question from a bona fide transaction.
JABNEEL CONSTRUCTION INC V LAMONT (TOWN), 2013 ABQB 648 (LEE J)
The Plaintiffs entered into three development agreements and three master sales agreements
for the development of three subdivisions with the Defendant, the Town of Lamont. The Town
of Lamont eventually terminated the agreements and the Plaintiffs subsequently filed a
Statement of Claim alleging that termination of the agreements was wrongful and that the
Defendant, Tom Miller, who was Chief Administrative Officer of Lamont, acted in bad faith in
relation to development delays. The Plaintiffs brought an Application seeking to amend their
Statement of Claim and seeking production of the Crown Disclosure from Miller in relation to
charges he was facing under the Criminal Code.
The Plaintiffs submitted that the criminal charges and the ongoing investigation went to the
heart of the allegations of bad faith against the Defendants. The Defendant, Miller, argued that
there was no real connection between the allegations made in the pleadings and the requested
Crown Disclosure pertaining to events that occurred three years after the agreements with the
Plaintiffs terminated.
Lee J. highlighted that Questioning had not yet occurred and the Application by the Plaintiffs to
amend the Statement of Claim was scheduled to be heard in February 2014. The Court was
concerned that the Application for an Order for disclosure of Miller's criminal charges was
brought too early. Lee J. stated that disclosure on unproven criminal charges at this point in the
proceedings seemed to be useful only for character evidence that would tend to show that
Miller was more likely to commit improper acts because of the criminal charges. Further, if the
charges against Miller resulted in convictions, then those records could be disclosed at that
time. Additionally, Lee J. pointed out that there was no prejudice to the Applicants if the
Application was not granted, because it could be brought again in February 2014.
The Court held that the Application to obtain Miller's Criminal Disclosure was premature at this
point in the proceedings, as it was not directly relevant and material to Miller's liability in the
civil proceedings. Lee J. noted that, after Questioning or after the Statement of Claim was
amended, such disclosure might then be material and relevant. The Application for disclosure
was dismissed.
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UNIVERSITY OF CALGARY V JR, 2013 ABQB 652 (JONES J)
A former employee of the University of Calgary (the “University”) sued for constructive
dismissal and requested some documents pursuant to the Freedom of Information and
Protection of Privacy Act, RSA 2000, c F-25 (“FOIPP”). The University claimed solicitor-client
privilege over some of the records requested and the Information and Privacy Commissioner of
Alberta (the “Commissioner”), after exhausting other attempts to satisfy himself that the claim
of privilege was properly made, issued a Notice to Produce the records in order to determine if
the privilege was properly claimed.
The University brought an Application for Judicial Review of whether the Adjudicator had
authority to issue the Notice to Produce under FOIPP. Justice Jones held that the Adjudicator
had authority to issue the Notice to Produce under FOIPP. Justice Jones also noted that
recourse to compel disclosure would not be available through the Courts. Justice Jones noted
that Part 5 of the Rules only applied to disclosure of information in the context of a Court
Action, not FOIPP requests independent of the Courts. Further, an Application under Rule 3.2
was only available if an enactment so authorized, but FOIPP did not authorize any Application
except for review of the Commissioner’s Decision post-inquiry.
1400467 ALBERTA LTD V ADDERLEY, 2013 ABQB 656 (VEIT J)
The Plaintiff applied for an Order requiring each of the Defendants, except Pro-Canada, to file
new Affidavits of Records, containing only Records which were relevant to the issues between
that specific Defendant and the Plaintiff.
The Defendant Pro-Canada had filed an Affidavit of Records that was 13,000 pages long. Each of
the other Defendants’ Affidavits of Records merely adopted Pro-Canada’s Affidavit of Records.
The Plaintiff argued that this was not appropriate considering that the issues, as defined in the
Pleadings, did not involve all of the Defendants in the same way, at the same time, and in
connection with the same activities.
The Court noted that the Rules of Court do not specifically address prolixity or provide a
remedy for prolixity where it exists. However, Veit J. went on to note that Alberta Courts have
an inherent power to ensure that purported compliance with the Rules of Court does not
become a technique for unnecessarily increasing the cost of litigation. In addition, Veit J.
pointed out that Rule 5.1(2) provides Alberta Courts with the explicit power to advance the
objectives articulated in Rule 5.1(1).
Veit J. concluded that the appropriate remedy was to require all of the Defendants, other than
Pro-Canada, to amend their previously filed Affidavits of Records by identifying from amongst
the 13,000 pages of disclosure those pages which dealt specifically with their own actions.
MONCRIEFF V HAYNE, 2013 ABQB 657 (JERKE J)
In this estate litigation, the deceased’s daughter brought a claim against her brother, the
deceased’s son, and against the lawyer who drafted the deceased’s most recent Will, claiming
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undue influence and a lack of testamentary capacity. In addition, the daughter claimed an
interest in the deceased’s land pursuant to an agreement. The deceased’s son and the lawyer
applied for Summary Judgment and the dismissal of the Plaintiff’s entire Claim. In the
alternative, they applied to have the matter set down for determination at a Summary Trial.
Jerke J. reviewed the relevant law and found that a defendant seeking Summary Dismissal must
prove that there is no genuine issue of material fact requiring Trial. If the defendant does so,
the onus shifts to the plaintiff to refute or counter the defendant’s evidence by establishing a
real chance of success.
Jerke J. found that the deceased’s son had established that there was no genuine issue for Trial
concerning the claimed agreement respecting the daughter’s interest in land. The deceased’s
daughter had not successfully refuted this evidence and, accordingly, that claim was dismissed.
The deceased’s daughter had also sought an accounting. However, Jerke J. determined that the
administrator pendente lite previously appointed by the Court was fully competent and
authorized to address this concern.
Finally, the Court addressed the validity of the Will. Jerke J. found that the deceased’s daughter
had presented sufficient evidence to refute the defendants’ contention that there was no
genuine issue for Trial and established that the claim had a real chance of success. Accordingly,
Jerke J. turned to the question of whether a Summary Trial would be appropriate. With
reference to the nine factors set forth in Bonsma v Tesco Corporation, 2011 ABQB 620 and Duff
v Oshust 2005 ABQB 117, Jerke J. found that a full Trial was warranted. The Court noted that
“courts should not be hesitant to decide cases by use of a summary trial process, and litigants
should not be reluctant to participate”. However, the case at bar depended on the success of
the deceased’s daughter’s cross-examination of her brother’s witnesses. Consequently, Jerke J.
held that justice required a full Trial to determine the validity of the Will.
Jerke J. also included an appendix discussing the process by which parties may apply for
Summary Trials set forth in Rules 7.5 - 7.8. The Court noted that the Rules expressly provide the
Respondent a right to wait until 5 days before the date scheduled for the Summary Trial to give
Notice of Objection. Jerke J. noted that the process the Parties followed in the case before the
Court, whereby a ruling as to the propriety of Summary Trial would be obtained in advance of
the scheduled date, helped to eliminate uncertainty arising from a strict reliance on the Rules.
Jerke J. recommended that parties follow a bifurcated process to first determine the propriety
of a Summary Trial in advance of the date for the Summary Trial Hearing.
RB NEW CO LTD V 1331440 ALBERTA LTD, 2013 ABQB 659 (VEIT J)
The Applicant was previously unsuccessful in seeking partial Summary Judgment. The Applicant
then contended that the successful Respondent should have Tariff Costs under the column
representing the amount of the partial claim, rather than the amount of the total claim. The
Applicant also submitted that the Questioning had taken place long prior to the Summary
Judgment Application, and should not be a compensable item in Costs.
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The Court held that, on a plain reading of Schedule C, Rule 1(3)(c), in an Interlocutory
Application the applicable Costs column is that of the total amount claimed by the Plaintiff. The
Court also held that a protective measure was built within Item 5(1) Questioning, as it can only
be claimed once per Action. The Court held that the Questioning was a compensable item in
Costs in relation to the Summary Judgment Application.
(MICHALYSHYN J)
At issue on Summary Judgment was whether an Edmonton City Bylaw complied in substance
with its empowering legislation, the Municipal Government Act, RSA 2000 c M-26 (“MGA”) and
the Principles and Criteria for Off-Site Levies Regulation, AR 48/2004 (“Regulation”).
The Applicants, including the City of Edmonton, did not deny that arguably the Bylaw failed to
comply with the Regulation; however, they argued that any claims that the Bylaw was invalid
were irrelevant because the Respondents missed a limitation period. The Applicants argued
that a challenge to the validity of a Bylaw under s. 536 of the MGA was barred if not brought
within six months of its enactment, pursuant to the six month limitation period in Rule 3.15(2).
In this case, the Bylaw was enacted on October 1, 2006. The Applicants argued that any
challenge to the Bylaw’s validity had to be made by April 1, 2007. The Respondents highlighted
that they acquired lands subject to the Bylaw on March 14, 2007, but were not informed by the
Applicants that they were subject to a levy under the Bylaw until April 25, 2012. The
Respondents argued that they did not know, and could not have anticipated, that levies would
be imposed on them prior to the suggested April 1, 2007 limitation expiry. They had an
awareness of the Bylaw within the limitation period; however, they did not in abstract
scrutinize the Bylaw, nor should they have reasonably been expected to.
The Parties agreed that the test for Summary Judgment, specifically in the context of a
limitation period, was that there had to be no genuine issue for Trial, and it had to be plain and
obvious that the claim could not succeed; therefore, where a claim was barred by a limitation
period, there was no genuine issue for Trial.
Michalyshyn J. noted that, in Okotoks (Town) v Foothills (Municipal District No 31), 2013 ABCA
222 (“Okotoks”), the Court of Appeal characterized the issue as solely being the application of
Rule 3.15(2) to an Application under s. 536 of the MGA. One noted difference between the case
at bar and Okotoks was highlighted in the Court of Appeal’s statement that, “Okotoks had been
involved throughout [in] the process leading to the bylaw”. Michalyshyn J. noted that the Court
of Appeal in Okotoks, without mentioning United Taxi Drivers’ Fellowship of Southern Alberta v
Calgary (City of), 2002 ABCA 131 (“United Taxi”), held that a municipal Bylaw was in fact “a
decision or act” subject to the Rule 3.15(2) limitation period. In Okotoks, the Court of Appeal
stated that “the Legislature knew full well in 2010 when it enacted the Rules that the judicial
review rules, including Rule 3.15(2), were being applied to challenges of bylaws as well as to the
traditional judicial review remedies”. The Applicants relied on this statement to conclude that
the Okotoks Decision erased any distinction between void and voidable Bylaws for the purpose
of Judicial Review proceedings seeking declaratory relief.
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While Michalyshyn J. agreed with the Applicants that Okotoks conflicted with United Taxi on its
face, and appeared to reverse it, his Lordship noted that the Court of Appeal did not specifically
state such an intent. Michalyshyn J. noted that both United Taxi and Wiswell v Winnipeg, [1965]
SCR 512 appeared to stand for the proposition that a challenge to an arguably invalid Bylaw
would not fail due to an expired limitation period. The Applicants argued that Okotoks changed
the law by expanding the definition of “decision or act” to include arguably invalid Bylaws, and
by limiting the rule of law by way of the Rule 3.15(2) limitation period. The Respondents
attempted to distinguish Okotoks and Wiswell on the basis of the nature of the limitation
period, being statutory in the MGA versus general in the Rules; however, Michalyshyn J. agreed
that Okotoks could not be distinguished from Wiswell on that basis. Further, Michalyshyn J.
noted that the Parties agreed that, but for Okotoks, the prevailing authorities would allow the
Applicants to seek declaratory relief, notwithstanding Rule 3.15(2).
The Court then considered the Respondents’ argument that, if the Court was unable to
distinguish Wiswell from Okotoks, then the Court was faced with conflicting authorities from
the Supreme Court of Canada and the Alberta Court of Appeal, but was bound by the former.
Michalyshyn J. felt that the issue was not whether the Court was bound by either Okotoks or
Wiswell, but rather whether Okotoks or United Taxi was binding. The Court noted that United
Taxi unequivocally followed the established authority in Wiswell; however, Okotoks mentioned
United Taxi, but said nothing about Wiswell. Further, the Court of Appeal in Okotoks referred to
United Taxi, but preferred other cases where administrative decisions, rather than legislative
enactments, were at issue. Okotoks conflicted with United Taxi, but did so with no apparent
explanation. Based primarily on the fact that there was no definitive statement in Okotoks
setting out that United Taxi was no longer the law in Alberta, the Court was persuaded to
follow United Taxi.
In the further alternative, the Respondents argued that if the Court was not obligated to follow
United Taxi, then Okotoks was distinguishable on the basis that, unlike the Town of Okotoks,
the Respondents in this case had no involvement or reasonable opportunity before the
limitation period expired to change the impugned Bylaw. Michalyshyn J. agreed that the
Applicants had an arguable case that the Decision in Okotoks was distinguishable on that basis.
Finally, the Respondents argued that, assuming Rule 3.15(2) was a bar to their Originating
Application, the Rule itself was ultra vires Alberta, as limiting the powers of the Court. The
Respondents argued that, to the extent Rule 3.15(2) precluded Court review of arguably invalid
Bylaws, it was unconstitutional for interfering with the powers of a Court appointed under the
Constitution Act 1967, 30 & 31 Victoria, c 3 (U.K.), and as recognized in the Judicature Act, RSA
2000, c J-2. After considering the Applicants’ response to this argument, the Court was not
persuaded that the Applicants should be denied the chance to advance this argument at the
hearing of this matter.
Based on all of the above, the Applications for Summary Judgment were dismissed.
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WESTJET V ELS MARKETING INC, 2013 ABQB 666 (JONES J)
WestJet sued the Defendants (collectively, “ELS”) for damages, alleging breach of contract. ELS
Counterclaimed against WestJet and also sought, inter alia, damages for breach of contract.
WestJet alleged that ELS was in breach of contract by not remitting monies owed in a timely
fashion and by not fulfilling its financial record keeping and reporting responsibilities. ELS
alleged that WestJet was in breach of contract by terminating their service agreement as of
December 31, 2009, having earlier extended it to September 30, 2010.
WestJet applied for Judgment by way of Summary Trial for their claim relating to the monies
owed to them, which were being withheld by ELS. The Justice stated that the relevant Rules of
Court engaged were Rules 7.5 to 7.10. Justice Jones discussed objections under Rule 7.8,
stating:
In my view, Rule 7.8(3), while purporting to require the applications judge to
make a determination regarding the merits of an objection ignores the practical
effect of these Rules. The applications judge actually may have to conduct the
trial (or a substantial portion of it) in order to make the threshold determination,
after the fact, that it was appropriate for the applicant to have sought judgment
by way of summary trial.
Jones J. was critical of the new Rules regarding Judgment by way of Summary Trial. His Lordship
quoted at length from Madame Justice Veit’s Decision in Islam v Mozumder, 2012 ABQB 773,
where Justice Veit discussed the move from a two-step Summary Trial process (wherein the
first step is an Application that can be heard in Morning Chambers as to whether some or all of
the issues should proceed by way of Summary Trial, and the second step is the Summary Trial
itself) to a one-step process, where the Application for Summary Trial and the Summary Trial
proceed simultaneously. Veit J. was strongly of the opinion that the one-step process in the
new Rules has in fact made things more difficult and expensive for most litigants, especially
where the Respondent objects to the Application. After echoing Justice Veit’s comments, Jones
J. stated his own thoughts on the matter:
My understanding of her Ladyship’s overall concern with these Rules is that
compression of what was a two-step process into one step not only exposes the
parties, particularly a respondent who objects, to undesirable and unnecessary
expense, delay and uncertainty, but places strain on the Court’s ability to achieve
a just result. From commencement of the application to and after its conclusion,
the application judge has to engage in an ongoing process of considering the
limited evidence presented to determine if (i) he or she has enough facts to
decide the issues, (ii) it would be “unjust” to award judgment with respect to
what is emerging during the course of the summary trial, (iii) the issue being
framed during the course of the summary trial appears to be unsuitable for
resolution by that mechanism and (iv) the summary trial itself seems to be falling
short in facilitating resolution of the issues.
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Jones J. then went on to discuss the following proposition arising from the case law respecting
Summary Trials:
It is permissible to hear the request for summary trial, to hear the summary trial
itself and to give final judgment in a single proceeding: WA Stevenson & JE Côté,
Civil Procedure Encyclopedia, Volume 2 (Juriliber, 2003) (“CPE”) at p. 31-95. The
comments of Justice Veit in Islam also reflect that conclusion.
Complexity is not a bar to summary trial: Compton Petroleum Corp v Alberta
Power Ltd, 1999 ABQB 42, 242 AR 3 (“Compton”) at para 18.
A judge hearing a summary trial may decide some but not all of the issues:
Canlan Investment Corp v Gettling, (1998), 37 BCLR (3d) 140 (CA) at paras 44, 45
and 49. However, conducting a summary trial on part of the suit may be counterproductive, particularly where there is overlap in the key issues: see CPE at p. 3199, Prevost v Vetter, 2002 BCCA 202, 100 BCLR (3d) 44 and Islam at para. 19.
While it is not appropriate for the Court to decide a summary trial solely on the
basis of a choice between conflicting affidavits, conflicting evidence is not, in and
of itself, a bar to summary trial if the conflict can be resolved by reference to
other evidence. See Compton at para. 13 and Inspiration Management Ltd v
McDermid St Lawrence Ltd (1989), 36 BCLR (2d) 202 (CA) at pp. 215-216.
Summary trial may be appropriate even in situations where large amounts are
sought: Mattu v Mattu, 2001 BCCA 140, 4 CPC (5th) 55 at paras 9-10; CIBC v
Charbonnages de France International SA (1994) BCLR (2d) 104 (CA) at para 108.
Justice Jones noted that the application of Rule 7.9(2) required him to answer two questions: 1)
was he able to find the facts necessary to decide the issues of fact and law before him; and 2)
would it be unjust to decide those issues on the basis of the Summary Trial.
Jones J. then considered the objections raised by the Respondents. ELS objected to the
Application for Summary Trial on several grounds. The first ground was that the matter was too
complex to be suitable for Summary Trial. The Court rejected this assertion, stating that
WestJet was only seeking Summary Trial for its claim of the monies owed to it by ELS pursuant
to an agreement and, taken in isolation, WestJet’s claim was straightforward.
ELS also objected on the ground that Summary Trials lack necessary procedural safeguards and
are not Trials in the full sense of the word. Jones J. conceded that the Summary Trial process is
imperfect. However Justice Jones rejected this objection stating that “to refuse an application
for judgment by way of summary trial on the basis that the summary trial process itself is
flawed would be to render that process altogether unavailable”. He further stated that ELS
must answer WestJet’s application by demonstrating that the Summary Trial process is
inappropriate in this particular case.
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The final objection was that it would be unjust to determine WestJet’s claim without also
determining ELS’ counterclaim, which could not be done without the benefit of a full Trial
process. The Court noted that both Parties to an Application for Judgment by way of Summary
Trial must come to Court armed with sufficient evidence to support their positions:
The one-step process does not allow a respondent merely to object to the
matter being heard on a summary basis while declining to provide evidence; he
must be prepared for the summary trial to proceed notwithstanding his
objection. If that were not the case, raising the possibility of a defence or
counterclaim would be sufficient to defeat any application for summary trial.
That cannot be the intent of the Rules.
The Court went on to state that, WestJet having engaged the Summary Trial process by
applying under Rule 7.5, ELS had a responsibility to present evidence in support of its
Counterclaim and its position that a full Trial was needed to resolve the issues before the Court.
In the result, Jones J. granted Judgment in Westjet’s favor. Justice Jones also dismissed ELS’
Counterclaim, without prejudice to ELS’ ability to pursue its Counterclaim in a separate
proceeding.
MANSON INSULATION PRODUCTS LTD V CROSSROADS C&I DISTRIBUTORS, 2013 ABQB 702
(POELMAN J)
The Plaintiffs commenced an Action against the Defendants claiming, amongst other things,
breach of contract. The Defendants counterclaimed and filed an Application for Summary Trial
seeking dismissal of part of the Action against them. One of the Plaintiffs responded with an
Objection to the Summary Trial. Justice Poelman, in considering the Rules governing Summary
Trials, confirmed that prior case law was still relevant. Based on earlier authorities, Justice
Poelman opined that a party is presumptively entitled to a Summary Trial and an Objection to a
Summary Trial may be ruled on before or at the Hearing. The issue for consideration was
whether the Claim was “suitable” for Summary Trial and whether a Summary Trial would
“facilitate resolution of the Claim or a part of it”. Justice Poelman observed that the suitability
requirements were flexible and that a broad range of factors should be considered. His Lordship
noted that Summary Trial was not precluded even where evidence was conflicting or where
findings of credibility and reliability were necessary; however, there must be a factual context
which the Court could use in order to prefer one party’s evidence over the other.
Justice Poelman noted that the Justice hearing the Summary Trial still has the ability, pursuant
to Rule 7.9, to dismiss the Application in the event that the Objection to Summary Trial is
dismissed before the Hearing. In addition, Rule 7.9(2) requires that Judgment be given unless it
would be unjust to decide the issues on a Summary Trial. Justice Poelman differentiated the
word “unjust” in Rule 7.9 from the word “suitable” in Rules 7.5 and 7.8.
… If the difference in words is to mean anything, perhaps there is a higher onus
on a judge to make a ruling after the full summary trial has been heard.
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Justice Poelman upheld the Objection to Summary Trial, expressing concerns about the risk of
limiting judicial independence or creating contradictory findings in two separate proceedings.
RODRIGUES V RODRIGUES, 2013 ABQB 718 (NIXON J)
The Plaintiff sued the Defendant for defamation for statements made about the Plaintiff
between the Fall of 2010 and May 2011. At the time of the incident, both the Plaintiff and the
Defendant were residing in Calgary, Alberta. Since then, the Defendant had moved back to
India, while the Plaintiff continued to reside in Alberta.
The Defendant was Noted in Default and the matter was set for an assessment of damages
pursuant to Rule 3.37. As the Defendant was Noted in Default, the facts in the Statement of
Claim were deemed to be admitted (TLA Food Services Ltd v 1144707 Alberta Ltd, 2011 ABQB
550). In 2004, the Defendant had made similar statements in India. These earlier statements
were admitted to prove that the Defendant was the author of the statements at issue in this
Action.
Before assessing damages, Nixon J. considered whether the Court could hear the case against a
foreign defendant who had not attorned to the jurisdiction. The Court found that all relevant
documents were served on the Defendant. Nixon J., after reviewing the circumstances under
Rule 11.25(3), also found that a real and substantial connection to Alberta existed, as all
publications were sent, and the internet and blog postings were accessed, by individuals in
Alberta.
Upon determining that the Defendant had published defamatory statements in Alberta about
the Plaintiff, the Court turned to damages. The Court awarded $75,000 in general damages and
$50,000 in aggravated damages. Punitive damages were not awarded. The Court also awarded
injunctive relief. The Court did not direct an apology or retraction as the Defendant was neither
a newspaper nor a broadcaster. Costs were awarded on a solicitor-client basis.
ALBERTA TREASURY BRANCH V 14010507 ALBERTA LTD, 2013 ABQB 748 (WAKELING J)
The Applicant Appealed a Decision of the Review Officer, pursuant to Rule 10.26 (1) of the Rules
of Court. The Applicant alleged that the Review Officer wrongly failed to enforce a Court Order
requiring the Defendant, who borrowed money from the Applicant, to indemnify them for fees
the Applicant paid its legal counsel to enforce its rights under the loan agreement. The
Applicant loaned the Respondent $100,000.00 under a personal line of credit in 2006 and made
three additional loans to a numbered company and the Respondent in 2008. Security for these
loans consisted of a General Security Agreement between the Applicant and the Respondent
and a mortgage by the Respondent in favour of the Applicant. The Respondent agreed to
indemnify the Applicant for legal fees the Applicant incurred to collect outstanding amounts for
the loan instruments. The Review Officer heard the parties and reduced the Applicant’s legal
fees by fifty percent.
Wakeling J. stated that, pursuant to Rule 10.27, if the Decision of the Review Officer reflected
an error of principle or if the award was inordinately high or low, the Review Officer’s Decision
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could be varied or revoked. The Court also held that a factual determination that was clearly
wrong may also justify intervention.
The Court outlined the following general principles governing Court-Ordered Costs payable by
one litigant to another:
1. The Court of Queen's Bench of Alberta is responsible for settling, if asked to do so, the
amount a lawyer is entitled to for the performance of legal services for a client or the
amount one litigant must pay another litigant as a result of a Costs Order.
2. The Court has discretion to issue a Costs Order.
3. The Court, in exercising its discretion, must act in a principled manner. Rule 10.2(1) of
the Rules of Court assists in determining what remuneration is reasonable.
4. Absent exceptional circumstances, the unsuccessful party pays the successful party a
sum intended to indemnify the successful party for all or a portion of its legal fees.
5. In most cases, the successful party will only receive partial indemnity.
6. In the absence of a contractual term committing one party to pay the other's costs on a
full-indemnity basis, costs are awarded to a successful party on a full-indemnity basis
only in exceptional cases.
7. Contracts may contemplate the existence of litigation between the parties and allocate
the burdens associated with it, including provisions obligating the payment of legal costs
at stipulated levels under specified circumstances. The Court may choose to hold a party
to its promise.
8. Legal service performed by a lawyer which increases the likelihood the purpose
stipulated under the specified conditions will be achieved is a legal service specified in a
fee indemnification agreement for which Respondent must indemnify the Applicant.
9. A Party who is ordered to indemnify another party for its legal fees is not responsible for
costs associated with unnecessary steps. A corollary to this principle is that a client who
instructs a lawyer to take steps which would not normally be undertaken is responsible
for the costs associated with the extraordinary measures.
10. The Court has an overriding obligation to ensure that those who are obliged to pay for
legal services are treated reasonably, taking into account all the circumstances.
The Court held that the Review Officer breached several of the general principles governing
Costs. First, the Review Officer did not comply with the first principle. The Review Officer failed
to recognize or give effect to the Court of Queen’s Bench’s Order stating that the Applicant is
entitled to its costs on a Solicitor and Client basis.
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Second, the Review Officer did not comply with the third principle in that he did not make his
assessment in a principled manner. The Review Officer specifically failed to assess the matter
before him on the merits and this omission constituted a legal error.
Third, the Court held that the Review Officer did not follow the seventh principle. The
Respondent had agreed to indemnify the Applicant for the legal services the Applicant had
incurred to protect its interest. The Review Officer failed to study the loan documents to
determine the legal services which were indemnified.
The Court held that the Review Officer did not ask whether the Applicant sought
indemnification for any costs associated with any unusual or unnecessary expense or for any
step undertaken by its counsel which did not increase the likelihood the lender’s security
interest would be protected. The Court held that if the Review Officer had asked the above
questions, he would have found it necessary to review the tenth principle, to ensure that those
who are obligated to pay for legal services are treated reasonably.
Pursuant to Rule 10.27(1)(c), the Court revoked all parts of the Decision of the Review Officer
and directed another Review Officer to hear the case on its merits. The Court held that the
Review Officer must make an individual assessment in accordance with the principles set out in
this Decision. The Court allowed the Appeal by the Applicant.
CNH CAPITAL CANADA LTD V HIGHWAY EQUIPMENT SALES LTD, 2014 ABQB 6 (MASTER
SMART)
The Plaintiff and Defendants by Counterclaim brought an Application for Summary Judgment of
the Action and dismissal of the Counterclaim. The Plaintiff sought payment for equipment
supplied to the Defendant, the amounts of which were undisputed. The Defendant disputed
owing the amounts claimed because of alleged unsuitability of the equipment and
counterclaimed for costs incurred for equipment repair which were not reimbursed by the
Plaintiff.
The Plaintiff also sued the guarantor to the purchase and financing agreements for repayment
of the debt. The guarantee was executed in Alberta but stated that it was to be governed by the
laws of the State of Wisconsin, USA. No Guarantees Acknowledgment Act Certificate was
completed or executed. The guarantor argued that Alberta law governed as no foreign law was
pleaded or proven; therefore, because no Notarial Certificate was executed, the guarantee was
unenforceable. The Plaintiff tendered evidence from a lawyer in Wisconsin who claimed that
the State of Wisconsin does not require a signatory to a guarantee to sign before a Notary
Public.
Master Smart held that there was insufficient evidence to determine the validity and amounts
of the offsets claimed by the Defendant in its Statement of Defence and Counterclaim. For that
reason, Master Smart gave judgment to the Plaintiff for the principal amount owing but
ordered a stay of enforcement pending a determination of the validity and amount of the
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setoffs claimed. Because of the potential offsets, Master Smart denied the Application to
summarily dismiss the Counterclaim.
With respect to the guarantee, numerous allegations of misrepresentation and collateral
agreements were raised with respect to its enforceability. Without knowing how those issues
might be dealt with under Wisconsin law, Summary Judgment was denied for the Claims
against the guarantor.
GORDON V TAYLOR, 2014 ABQB 11 (ROSS J)
The Plaintiff was involved in four separate car accidents. The Defendants sought Certified
Medical Examinations (CMEs) pursuant to the Minor Injury Regulation, Alta Reg 123/2004
(MIR). The Plaintiff and Defendants did not agree on a certified examiner, and the
Superintendent of Insurance (Superintendent) appointed four separate physicians to conduct
the CMEs.
The Plaintiff contacted each physician and requested that the examination be videotaped, and
all of the physicians refused to do so. The Plaintiff refused to attend the CMEs unless they were
videotaped.
The Defendants brought an Application to require the Plaintiff to attend the CMEs.
Rule 5.42 allows a party ordered to undertake a medical examination to elect to have it
videotaped. The MIR does not contain this right. The Court concluded that the entitlement to
videotaping under the Rules does not apply to CMEs under the MIR, and ordered the
Superintendent to appoint a physician to conduct a CME in relation to all four Actions.
BARRETT ESTATE V KASHA, 2014 ABQB 12 (EIDSVIK J)
The Plaintiffs sold a quarter section of land to the Defendants, but reserved ten acres to
subdivide into three acreages. To facilitate the transaction closing, the parties entered into an
option to purchase for the three lots. A dispute arose over the location of the acreages and the
Plaintiffs applied for Summary Judgment pursuant to Rule 7.3(1) arguing that there was no
defence to the Claim and no triable issue.
Eidsvik J. noted that the test to obtain Summary Judgment was whether there was a genuine
issue for Trial. Eidsvik J. held that this matter was appropriate for Summary Judgment as the
dispute involved an interpretation of a contract and the facts necessary to resolve that dispute
were not in conflict. While both parties had hoped that the three originally proposed locations
would be approved, there was no evidence of a guarantee or an agreement that the proposed
lots could not be changed. When the Defendants signed the Option, they were bound by it in
the absence of fraud or misrepresentation, even though they may not have read or understood
it. The Summary Judgment Application was allowed and the Option was held to be enforceable.
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LAIRD V SWORD ENERGY INC, 2014 ABQB 13 (MANDERSCHEID J)
The Applicant lessors sought Summary Judgment with respect to a petroleum and natural gas
lease (the “Lease”) entered into with the Respondents (“Sword”). The Applicants sought
Summary Judgment on the basis that the facts were not in dispute, and Sword refused or failed
to comply with its contractual obligation under the Lease to, within 30 days, remedy the breach
alleged by the lessors, or commence the required proceedings for a judicial determination of
whether the alleged acts or omissions constituted a breach.
The Applicants contended that the only real issue in this matter was the amount to be awarded
as damages because the other issues could be decided on the basis of the record before the
Court. Sword opposed the Application on the grounds that certain facts were in dispute, the
interpretation of the Lease by the Applicants was incorrect, and these genuine, triable issues
could only be determined by the Court after a weighing of the evidence at Trial.
After reviewing the evidence, the Court determined that the Applicant’s reproductions of
certain portions of the Lease were not accurate, and that Sword had adduced “some evidence”
tending to establish a defence. The Court further pointed to several instances of legal issue
intertwined with the facts which would require a Trial for determination. In the result,
Manderscheid J. dismissed the Applicant’s Summary Judgment Application.
PERREAL V KNIBB, 2014 ABQB 15 (ROOKE ACJ)
The Respondent, Perreal, was a passenger in a truck driven by the Applicant, Knibb. The truck
was involved in a one-vehicle collision that occurred near Winnipeg, Manitoba, and Perreal was
allegedly injured. Over several months in 2012, Knibb and his lawyer received a number of
documents from Perreal and an individual by the name of Mr. Dale Jacobi (“Jacobi”) relating to
the vehicle collision. These documents applied pseudo-legal strategies and concepts, which
were addressed by Associate Chief Justice Rooke in Meads v Meads, 2012 ABQB 571. In this
case, the documents included one labeled “Statement of Claim with Notice and Demand”, sent
by Perreal to Knibb, which gave Knibb 30 days to reject and disprove his alleged misconduct, or
the document became a valid contract and true bill for the amount claimed. Rooke A.C.J. noted
that such pseudo-legal strategies were “frivolous and vexatious litigation strategies that
offer[ed] no beneficial effect”. Further, Justice Rooke characterized the document as a foisted
unilateral agreement and noted that a person has no obligation to respond to a Statement of
Claim that is not filed in a Court.
Regarding the Application for Summary Judgment, Justice Rooke heard from the Applicant and
his counsel; however, neither the Respondent nor Jacobi was in attendance. Jacobi was known
to the Court through his involvement with pseudo-legal strategies, his conviction in the United
States for associated illegal activity, and information from Canadian authorities that considered
Jacobi a threat. Based on this, Rooke A.C.J. noted that, had the Plaintiff and Mr. Jacobi
attended, the status given to Mr. Jacobi by Perreal to act as his “full Power of Attorney” was
irrelevant, and Mr. Jacobi was prohibited from representing Perreal by the Legal Profession Act.
Additionally, because of Jacobi’s involvement, Justice Rooke granted an ex parte Application
that allowed Knibb’s counsel to be identified by pseudonym and appear by telephone.
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In this decision, the Court applied the well-established test for Summary Judgment, which
required the Applicant to demonstrate that there was “no genuine issue of material fact
requiring trial”. Rooke A.C.J. held that the lawsuit was initiated after the relevant limitation
period had expired and further accepted the Applicant’s argument that the Manitoba Public
Insurance Corporation Act, CCSM c P215 eliminated Perreal’s right to sue and recover damages
in tort for motor vehicle collisions in that jurisdiction. Rooke A.C.J. held that the Respondent’s
Action had no prospect for success and ordered Summary Judgment.
DEVELOPMENT), 2014 ABQB 32 (READ J)
The Applicant, Fort McKay First Nation (Fort McKay), in the context of an Application for Judicial
Review, sought a preliminary Order for production of a further and better Record by the
Minister of Environment and Sustainable Resource Development (ESRD) or, in the alternative,
an Order allowing the admission of an Affidavit sworn by a member of Fort McKay (Mr.
Stuckless).
Fort McKay had provided the ESRD with various documents relating to the decision under
Judicial Review. The ESRD had included all of those documents as part of the Record. However,
Fort McKay sought to have the ESRD produce further documents in the Record, on the basis
that these documents had been provided to the ESRD during previous projects where the ESRD
had made decisions in relation to the Applicant’s land.
Fort McKay argued that because all of the documents provided to the ESRD in previous projects
were in the possession of the ESRD, Fort McKay had a reasonable expectation that the ESRD
would consider and review them in making the decision. As a consequence, it argued, these
documents should be considered as having been filed within the meaning of Rule 3.18(2)(d).
The Court declined to adopt this interpretation. The documents referenced pre-dated the
present dispute and were not provided to the ESRD in this proceeding. The Court noted that to
accede to Fort McKay’s position would make the process of determining what constituted the
Record in a Judicial Review “exceedingly unwieldy and difficult”.
The Court declined to use its discretion to allow the Affidavit of Mr. Stuckless to be entered into
evidence to be reviewed by the Court on judicial review. Moreover, the Court noted that the
onus lay with the party seeking to admit the documents to show their relevance, and
determined that the Applicant had not made it clear why the documents in this Affidavit were
relevant. The Court noted that a party seeking to adduce further evidence is required to edit
and organize its materials.
STEINKE V HAJDUK GIBBS LLP, 2014 ABQB 34 (WAKELING J)
The Appellant law firm appealed the Decision of the Review Officer to reduce the law firm’s
fees by approximately 19%. The Respondent clients cross-appealed, stating that the Review
Officer should have made a larger reduction.
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With respect to the standard of review, the Court held that it may only review or revoke the
Review Officer’s Decision if it reflected an error of principle or if the award was inordinately
high or low. The Court also held that a factual determination that was clearly wrong may also
warrant intervention.
The Court reviewed the general principles governing the review of an account submitted by a
lawyer to a client as set out in Alberta Treasury Branch v 1401057 Alberta Ltd, 2013 ABQB 748.
The Court held that the Review Officer failed to take into account the general principles
governing costs and committed errors of law for the following reasons:
1. The Review Officer’s Decision failed to honour the terms of the retainer agreement and
without a compelling reason, relieved the clients of their obligation to pay their lawyer.
2. There was no indication that the law firm failed to pass the costs principle that, unless
there was a contrary provision in the retainer agreement, a client must pay for legal
services which increases the likelihood of the purpose of the retainer agreement being
achieved.
3. The Review Officer did not assert that any reduction ordered was attributable to the
principle that ensured that those who are obliged to pay for legal services are treated
reasonably, taking into account all circumstances. The Review Officer appeared not to
have discussed whether the law firm’s charges were exorbitant or if the law firm took
advantage of its clients.
4. The Review Officer did not discuss the client’s direction to the law firm to “fight”.
The Court held that generally, after concluding that the Review Officer had committed errors in
law, the Court would direct the matter back to the Review Officer to adjudicate the amounts
needed to be paid in accordance with the correct legal principles. In this case, the Court held
that another review by a Review Officer was not required for the following reasons:
1. The Court was completely satisfied that the principles governing the review of the
Appellant’s account could dictate only one result: the clients must pay the entire
amount.
2. The record before the Review Officer was complete and there was no need to conduct
another hearing to perfect the record.
3. The decision would save the clients and the law firm significant costs associated with an
additional appearance before the Review Officer.
The Court went on to explain why the clients would have to pay the Appellants their account in
its entirety:
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1. The Respondent had made a promise to the Appellant to pay for all legal services which
increased the likelihood of its success. It also expressly promised to pay for all time
spent on the file.
2. The Respondent pressed the Appellant to fight its case and leave no stone unturned and
now should not be in a position to complain about the work performed by their lawyers.
3. The Court considered whether the law firm’s charges were exorbitant, such that it can
be said that the law firm took advantage of its clients. The Court held that this was not
the case for two reasons. First, the law firm informed the clients of their billing
procedures in the retainer agreement. Second, the Court held on review of the file that
the clients were fortunate to recover the amounts and this was largely attributable to
the good work of its lawyers.
The Court dismissed the Cross-Appeal by the Respondents as it was without merit. The
Appellant was entitled to Costs in accordance with Schedule “C” of the Rules of Court.
TURNER V BELL MOBILITY INC, 2014 ABQB 36 (LEE J)
The representative Plaintiff commenced a proposed Class Action against several
communications and wireless companies in respect of overcharging for roaming fees in various
provinces. The Action had not yet been certified, but two of the Defendants, Saskatchewan
Telecommunications and Saskatchewan Telecommunications Holding Corporation (collectively
“SaskTel”), applied to dismiss the Action on the basis that the Courts of Alberta lacked
jurisdiction over SaskTel with respect to the claims against it. Justice Lee considered whether
SaskTel’s Application to dismiss was made under the wrong Rules and it was only entitled to an
invalidation of service, and whether the Courts of Alberta had jurisdiction over the claim.
SaskTel was served with the Plaintiff’s Statement of Claim at its head office in Saskatchewan.
The Plaintiff argued that SaskTel could only seek an invalidation of service, not a dismissal of
the Action under the Rules. Justice Lee noted that SaskTel was not restricted to seeking an
Order to set aside service of the Statement of Claim under Rule 11.31. Justice Lee concluded
that the Plaintiff’s argument was without merit: SaskTel had made a clear Application
challenging the Court’s jurisdiction, and had cited all of the applicable Rules for the specific
relief that it sought.
With respect to jurisdiction, SaskTel argued that, although it was extra-provincially registered in
Alberta, it had not carried on business in Alberta since early 2006; therefore the Alberta Courts
could not be seized of the Action. Justice Lee restated Rule 11.25(3), noting the consistency of
the underlying analytical framework for a real and substantial connection and the provisions of
the Alberta Rules. With respect to the first branch of the test under Rule 11.25, His Lordship
rejected the use of damages as a presumptive connecting factor as determinative of whether
the Court had jurisdiction. His Lordship held that the Alberta Court did have territorial
competence and jurisdiction in the case on the basis that the Claim involved over 4,000
resident Albertans who may have been unlawfully charged system access fees by SaskTel.
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With respect to the second branch of the test, Justice Lee considered the SaskTel contract
which contained a choice of law clause which, SaskTel argued, presumptively removed any
connecting factor to Alberta. The Plaintiff countered that the choice of law clause should not be
conflated with a choice of forum clause which mandated proceedings in a particular
jurisdiction. The Justice observed that leading Supreme Court case law suggested that Courts
would assume jurisdiction over every aspect of the case for fairness and efficiency. Justice Lee
applied this principled approach and concluded that, due to a variety of presumptive
connecting factors, the Alberta Court had territorial competence and was capable of applying
Saskatchewan law in the instant case.
With respect to the third element, Justice Lee agreed that the Plaintiff had misstated the test.
Justice Lee analysed whether the place of sale was material, and how modern business
activities affected the notion of place of sale. Justice Lee determined that SaskTel was likely
“carrying on business” in Alberta, and agreed with the Plaintiff that residency status was of
“minimal consequence to the question of jurisdiction” in the case at bar.
With respect to the final branch under Rule 11.25, Justice Lee emphasized the clarity of Rule
11.25(3)(i): that the consideration of whether a Defendant is a “necessary and proper party” is
related to ascertaining the real and substantial connection to a jurisdiction. Justice Lee
confirmed that this factor could be examined as a presumptive connecting factor for the
purpose of a jurisdictional analysis. His Lordship stated that, though the proposed Class Action
did not automatically provide the Court with jurisdiction, the “specter of commonality” of the
claims against SaskTel and the other defendants made SaskTel a necessary and proper party to
the Action.
In the result, Justice Lee found that the Courts in Alberta had territorial competence or
jurisdiction over SaskTel. Briefly considering whether the Court should decline to exercise its
jurisdiction, Justice Lee noted that the Defendant had not raised the issue of forum non
conveniens and had not argued that the Statement of Claim constituted an abuse of process
pursuant to Rule 3.68(2)(d). Justice Lee left open whether SaskTel could utilize that argument in
the future. The Application to dismiss the Action as against SaskTel was denied.
DOW CHEMICAL CANADA INC V NOVA CHEMICALS CORPORATION, 2014 ABQB 38 (WITTMAN
CJ)
Nova Chemicals Corporation (“Nova”) brought an Application for an Order compelling Dow
Chemical Canada Inc. and Dow Europe GmbH (collectively “Dow”) to provide further and better
answers to Undertakings and Interrogatories. The Action involved allegations that Nova had
unlawfully taken product from a plant to which Dow and Nova were joint owners.
Nova sought information from Dow that was in the possession of the Dow parent company, The
Dow Chemical Company (“TDCC”). Particularly, Nova sought information related to TDCC’s US
Gulf Coast facilities. The Court outlined that Nova was seeking documents from a non-party to
the Action but failed to bring the necessary Application pursuant to Rule 5.13, which allows the
Court to order a non-party to an Action to produce documents. The Court also held that Dow
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did not carry on business in the United States, had no way to transport its product to the United
States and therefore, the documents were not relevant and material to the Action.
Nova also sought the production of a spreadsheet that Dow claimed privilege over. Dow
produced the original version of the spreadsheet, but claimed privilege over subsequent
versions that had been created for the dominant purpose of litigation. The Court noted that no
guiding authority was located on the changing nature of electronic spreadsheets and the
implications for a claim of litigation privilege. The Court held that subsequent versions of the
spreadsheet, although incorporating data from earlier iterations, were different documents and
therefore privileged.
In addition, Nova sought answers to Interrogatories that required the compilation of
information into charts. The Court held that it did not have the jurisdiction to order a party to
make new documents, but only to produce what already existed. The Court dismissed Nova’s
Application in its entirety.
LIL DUDE RANCH LTD V 1229122 ALBERTA INC, 2014 ABQB 39 (MASTER ROBERTSON)
The Plaintiff commenced an Action against the Defendant claiming default under a lease
agreement as between the Plaintiff and Defendant, and regarding a dispute over who was
entitled to fire insurance payments. The Defendant counterclaimed stating that there was a
partnership between the parties and there were matters in dispute beyond the fire insurance
issues; specifically, improvements made to the lands and a living arrangement agreement
between the individual parties. Questioning in the Action had occurred and the Defendant
(Plaintiff by Counterclaim) applied to amend the Counterclaim to add an individual who was not
already a party to the Action as a Plaintiff by Counterclaim. The Defendant (Plaintiff by
Counterclaim) also sought to amend the amount of damages.
Master Robertson noted the concordance of former Rule 93 and new Rule 3.56(1) both in form
and substance. Master Robertson considered whether the law had changed in light of Rules 1.2
and 3.74, concluding that “neither the former Rule, nor the current Rule, admitted of the
possibility of adding a stranger to the proceedings as a Plaintiff-by-Counterclaim”. The Master
observed that Rule 3.74(2)(a), which should be read in conjunction with Rule 3.56(1), was
directed at making sure that a party added to an existing pleading as a Plaintiff is “consenting to
being added”.
Master Robertson articulated the test for amending pleadings: an amendment should be
allowed, no matter how careless or late, unless there is prejudice to the other side, and even
that is no obstacle if it is required. Master Robertson set out the four major exceptions to the
“classic rule” and noted that Rules 3.74(2)(b) and 3.74(3) establish three criteria to add a party:
1. The Application must be made by a party;
2. The Court must be satisfied that an Order should be made; and
3. There should be no prejudice that could not be remedied.
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Master Robertson clarified that, with respect to the second criteria, justice must require the
addition of the parties.
Master Robertson considered and dismissed the Defendant’s (Plaintiff by Counterclaim)
arguments that Rule 1.2 allowed the adding of a new Plaintiff by Counterclaim to make sure
that the correct parties were before the Court and that Rule 3.56(1) should be “interpreted” to
allow the addition of a stranger as a Plaintiff by Counterclaim.
With respect to the proposed revisions to the claims in the Counterclaim, the Master stated
that such amendments were frequently sought after Questioning when the real issues had been
clarified. Master Robertson described these kinds of amendments as “housekeeping” and noted
that Rule 1.2(2) contemplated such circumstances. Master Robertson dismissed the Application
to amend the Counterclaim by adding a further Defendant who was a stranger to the Action;
however, the remaining proposed amendments revising the claims in the Counterclaim were
allowed.
GATEWAY MORTGAGE INVESTMENT CORP V 1384125 ALBERTA LTD, 2014 ABQB 45 (LEE J)
This Application was brought by the Plaintiff, Gateway, for Summary Judgment against one of
the Defendants, Capital. Capital also brought a concurrent Application for Summary Dismissal.
The issue was essentially whether Capital was liable to Gateway for a $70,000 holdback.
Capital entered into a mortgage agreement with another of the Defendants, 1384125 Alberta
Ltd., the mortgagor. Under the terms of the mortgage, while some amounts were advanced to
the mortgagor, $70,000 was held back. Its release was conditional on certain steps being taken
by the mortgagor.
The mortgagor then granted a second mortgage over the same lands to Gateway. Shortly after,
Capital received a copy of an “Irrevocable Assignment” from the mortgagor’s solicitor, advising
that the mortgagor had assigned any further funds to be advanced from the unfunded
mortgage proceeds to Gateway. Following receipt of the assignment, Capital nevertheless
advanced $43,000 under the holdback to the mortgagor, rather than Gateway. Gateway
brought this Action against Capital claiming it owed it the entire amount of the holdback.
Capital argued that it had no liability to Gateway.
Lee J. determined that this matter could proceed by way of Summary Judgment, as the only
issue to be determined was whether, as a matter of law, any liability ought to be imposed on
Capital to Gateway for the payments made from the holdback funds, or any other amount.
Lee J. stated that the test for Summary Dismissal was set out in Rules 7.2 and 7.3. After
reviewing the circumstances of the case, Lee J. granted Summary Judgment in favour of
Gateway in the amount of $43,000.
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GENGE V CENTRON RESIDENTIAL CORPORATION, 2014 ABQB 50 (PENTELECHUK J)
The Plaintiff appealed a Judgment from the Provincial Court of Alberta. The Plaintiff had paid
the Respondent Defendant $10,000.00 as a deposit for performance of services. The
Respondent Defendant returned $1,972.09, deducting amounts for pooled damages and
damages to or near the lot in question. The Plaintiff objected to the reduction and sued for its
return. The Trial Judge dismissed the Action with Costs.
The Court held that standard of review on questions of law was correctness and that it would
not interfere unless the Judge had made a palpable and overriding error.
The Court noted that the Applicant Plaintiff was self-represented and the Trial Judge had a
special duty to provide assistance (R v Phillips, 2003 ABCA 4). After reviewing the Trial
transcripts, the Court held that the Trial Judge had provided the required limited assistance to
the Plaintiff and exercised proper judicial discretion. Second, the Court held that the contract,
specifically, the performance deposit scheme, was legally enforceable. Finally, the Court held
that there was no palpable and overriding error demonstrated by the Trial Judge with respect
to the assessment of damages. The fact that the Trial Judge accepted the evidence of the
Respondent Defendant was sufficient evidence to support the deductions.
The Court dismissed the Appeal and awarded costs on Schedule “C”. The Court applied Rule
10.42 to reduce the amount claimed to 75%. The Court also held that the Respondent
Defendant would have Costs of the Appeal in the amount of $1,500.00 plus taxable
disbursements.
VACCARO V TWIN CITIES POWER-CANADA, ULC, 2014 ABQB 56 (NIXON J)
The Plaintiff was employed as a trader by the Defendant, Twin Cities Power-Canada, ULC (“TC
Canada”), by way of an employment contract. He was terminated from his employment
without cause. The other Defendants, collectively, Twin Cities USA (“TC USA”) were related to
TC Canada.
There were four Applications before the Court: (1) TC USA applied for Summary Dismissal of the
Action by the Plaintiff for damages for wrongful dismissal; (2) the Plaintiff applied to amend its
Pleadings; (3) the Plaintiff sought an Order for Security of Costs against TC USA and TC Canada
(collectively, the “Defendants”); and (4) the Plaintiff sought Security for Judgment against the
Defendants.
TC USA applied for summary dismissal of the Action on two grounds. First, TC USA submitted
that the issue was res judicata. Second, TC USA submitted that it was not the Plaintiff’s
employer and thus the argument was without merit and could not succeed.
The Court recognized that Rule 7.3 of the Rules of Court provided for Summary Judgment when
there was no merit to a claim. As a general rule, outstanding Applications to amend Pleadings
are resolved before considering a Summary Judgment Application on its merits (Condominium
Corp No 0321365 v 970365 Alberta Ltd, 2012 ABCA 26). However, leave to amend will not be
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granted if the claim could be successfully struck, such as if the claim was res judicata (Alberta
Treasury Branches v Opsteen, 2012 ABCA 153).
Based on the above, the Court first determined whether the Application was res judicata. The
Court held that the previous Summary Judgment entered against TC Canada as the Plaintiff’s
employer did not constitute a finding that the Plaintiff had only one employer. It also did not
preclude a finding that TC USA or any of the proposed new Defendants would also be liable as
an employer. The Court dismissed the Application of TC USA for Summary Judgment sought on
the basis of res judicata.
In determining if amendments to Pleadings should be allowed, the Court relied on Rules 3.62
and 3.74(3). In addition, the Court summarized the following principles regarding amendments:
1. An amendment should be allowed no matter how careless or late, unless there is
prejudice to the other side, and even that is no obstacle if it is repaired;
2. The threshold to allow amendments is very low except in cases of alleged fraud. Very
significant evidence and the evidence of the intent to commit fraud is required; and
3. A modest degree of evidence justifies an amendment to Pleadings within the limitation
period.
The Court held that there was no prejudice in this case as the existing Defendants and the
proposed Defendants were closely related entities. Further, the existing Defendants were
represented throughout the litigation by common counsel who also represented the proposed
Defendants. There was a standstill agreement respecting limitation periods. The Court reviewed
the amendments on a case-by-case basis, allowing some amendments and disallowing others.
The Plaintiff sought Security for Costs and Security for Judgment against the Defendants as a
condition of their continued defence. Rule 4.22 of the Rules of Court allowed for Security for
Costs as a discretionary Order. The Court granted Security for Costs against TC Canada for
several reasons including:
1. TC Canada had ceased operations and had no assets in Alberta - the Plaintiff had no
ability to enforce his existing Judgment, any future Judgment or any Order for Costs
against TC Canada;
2. TC Canada’s defence continued to be funded and the evidence did not show that an
Order for Security would preclude it from continuing to defend the Action against it, or
unduly prejudice its defence;
3. With regard to the merits of the claim, the Court noted that the Plaintiff had a final
judgment against TC Canada and TC Canada had not posted Security as directed by the
Alberta Court of Appeal; and
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4. There was insufficient evidence to draw the conclusion that the Plaintiff was responsible
for the closure of TC Canada.
The Court held that the unpaid final Judgment, the damages for wrongful dismissal and the
Plaintiff’s unpaid bonus were all strong claims. Taking into account all of the factors relevant to
Rule 4.22, the Court held that Security for Costs against TC Canada was appropriate.
Although Security for Judgment was an extra-ordinary remedy to be granted only in exceptional
cases, the Court held that those circumstances existed here because:
1. TC Canada enjoyed the benefit of revenue gathered by the Plaintiff, but chose not to
pay the Plaintiff his bonus;
2. TC Canada did not honour the Judgment that it said it would;
3. TC Canada raised an unsubstantiated FERC investigation defence;
4. TC Canada had ceased its operations, thus making it difficult, if not impossible, for the
Plaintiff to collect; and
5. TC Canada continued to be involved in the litigation and there was no evidence that it
could not arrange to post security.
With regard to Security for Costs and Judgment against TC USA, the Court held that the
corporation had no assets in the jurisdiction against which the Plaintiff could enforce a
Judgment. The Court also held that there was no basis to conclude that an Order for Security
for Costs, or for Judgment, would prejudice its ability to continue its defence, or that it could
not post security. However, on the evidence before the Court, the Court held that the claims
against TC USA were not as strong as the claims against TC Canada.
Pursuant to Rule 4.11, the Court has discretion to enforce terms and conditions, and make any
Order with respect to practice or procedures. The Court noted the following relevant
circumstances:
1. The Plaintiff had not been paid the bonus the Court had determined he was entitled to;
2. TC USA, or at-least some of the Defendants under TC USA, decided to cease operations
in Canada and remove its assets from Alberta;
3. TC USA controlled the flow of money in and out of TC Canada;
4. TC USA did not use any of its monies, including any profits earned, after terminating the
Plaintiff to pay the Plaintiff his bonus;
5. TC USA had benefitted from the services of the Plaintiff for which he had not been paid;
and
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6. It would not be just and equitable, as a result of TC USA and TC Canada arranging its
affairs, that the Plaintiff not be able to enforce Judgment in Alberta.
The Court held that exceptional circumstances existed that would make it just and equitable
that both Security for Costs and Security for Judgment be posted by TC USA, despite the
uncertainty respecting the merits of the Plaintiff’s claim.
The Defendant, Cahill, was sued by his brother-in-law, Murphy, in Alberta and in Ireland.
Immediately before the Trial in Ireland was due to commence, Cahill suffered a stroke. The Trial
was adjourned, and Irish counsel for Murphy obtained an Order from the Irish Court to obtain
additional evidence of Cahill’s medical status, which was never received. Instead, a medical
opinion letter was proffered by Cahill, and Murphy’s counsel sought a medical report from
another doctor. Murphy was allowed to enter all of these reports into evidence in the Irish
Action, but Cahill requested that the Alberta Courts strike out Murphy’s medical opinion
because it disclosed Cahill’s depression.
Madam Justice Veit considered whether Murphy could use the reports in the Alberta Action.
First, Justice Veit noted that Rule 6.11(1)(f) may govern whether the Defendant’s medical
report is evidence. The Justice reviewed the history of the Rule, and considered the case law
under former Rule 263 to help interpret Rule 6.11(1)(f) which, the Justice clarified, was
intended to “allow applications to be heard on the basis of existing evidence only where such
reliance does not create unfairness for the Parties” [emphasis in original]. Justice Veit
concluded that, for the purposes of the Applications, it could be assumed that Rule 6.11(1)(f)
referred to all evidence produced in any other Action, including the medical opinion submitted
in the Irish Action.
Justice Veit also considered whether that evidence should be permitted in Alberta. Her
Ladyship observed that Cahill had received notice of the intended use of the opinion, and had
sufficient time to consider the implications of its use. Although Rule 6.11 did not identify the
test for the Court to determine whether permission should be granted to adduce evidence from
a different Action on an Application, Justice Veit summarized the relevant factors using prior
case law.
Justice Veit concluded that Cahill’s medical evidence was not compelled, and the use of the
evidence did not breach the implied undertaking rule which was encompassed within Rule 5.33.
Cahill used his health as an excuse for the adjournment of the Irish Trial, so he could not
complain that his evidence had been compelled. Justice Veit also held that the context in which
the medical opinion was obtained was sufficiently similar between the two Actions - Cahill had
used his medical status in an attempt to avoid procedural obligations – so it was only fair and
reasonable that all of the evidence which was available in the Irish Action should be made
available to the Alberta Court. Her Ladyship also considered Cahill’s argument that the use of
the medical opinion should not be permitted because, in submitting to the assessment for the
Irish Court, he was not allowed the protections available to an Alberta Defendant under Rule
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5.42. Justice Veit opined that if the Irish Court issued the Order to receive the health evidence
on its own motion, Rule 5.41 would not apply; but, if the Irish Order was obtained by Murphy
because he was not satisfied with the medical information provided by Cahill, Rule 5.41 was
broad enough to cover the Order. Justice Veit concluded that, if the medical opinion had been
dealt with in Alberta through the use of Rule 5.41, the Court would give permission to use the
opinion, even though none of the options available under Rule 5.42 were made available to
Cahill. Justice Veit also observed that the principles espoused in The Ikarian Reefer, [1993] 2
Lloyd’s LR 68 (QBO) were no mystery to Alberta Courts and the principles were to be saluted:
experts were not to engage as advocates, but they must be independent in the sense that they
would give the same opinion if given instructions by the opposing party. Justice Veit concluded
that the reference to The Ikarian Reefer decision did not taint the medical opinion proffered by
Murphy. Justice Veit also held that Cahill’s medical opinion letter would be subject to Rule
6.11(1)(f) because it was evidence produced in and for the proceedings. Her Ladyship
concluded that it was clearly fair that Murphy’s medical opinion be considered along with
Cahill’s materials. Justice Veit also held that Murphy’s medical opinion should be admitted as
evidence.
Justice Veit considered whether Cahill should be relieved of the obligation to present himself
for Questioning on his Affidavit. Her Ladyship relied on Cahill’s materials and held that they did
not disclose any reason why he could not present himself for Questioning.
CHARIK CUSTOM HOMES LTD V SARA DEVELOPMENT INC, 2014 ABQB 63 (MASTER
ROBERTSON)
The Defendants applied for dismissal of the Plaintiffs’ Claim for long delay pursuant to Rule
4.33. The Plaintiffs filed and served the Statement of Claim nearly four years prior. Shortly after
the Statement of Claim was served, the Defendants’ counsel advised that he was acting and
requested the usual courtesy of taking no default proceedings without reasonable prior notice,
to which the Plaintiffs’ counsel agreed. Then the Claim remained dormant. The Plaintiffs’
counsel relied on Rule 4.33(1)(a) and argued that the parties had agreed to the delay and the
exchange of correspondence was a “standstill” Agreement. Master Robertson noted that there
are three stated exceptions to the “drop dead” rule, the first of which is where “the parties to
the Application expressly agree to the delay”.
Master Robertson reviewed the leading authorities and observed that the law in Alberta is
clear: when the Defendant’s counsel asks for reasonable notice before the Plaintiff takes
default proceedings, and the Plaintiff agrees, Rule 4.33(1)(a) does not come into play. The
exception is in reference to a delay of three or more years. A request for a courtesy, by itself, is
not an agreement to a delay of three years without a significant advancement in the Action. If
the Plaintiff does not follow up with the request for a Statement of Defence, there is no need
for the Defendant to deliver one, and after three years of inactivity the Defendant may bring an
Application for long delay. In the result, the Application to Dismiss was granted.
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GRAMMER V LANGPAP, 2014 ABQB 74 (MASTER SMART)
The Defendant sought the production of documents underlying Experts’ Reports that were
previously provided by the Plaintiffs. The Defendant argued that, because the Experts’ Reports
were produced, litigation privilege was waived and the underlying documents must be
produced.
The Plaintiffs argued that there was an express reservation of privilege when the reports were
provided and, relying on Chernetz v Eagle Copters Ltd, 2005 ABQB 712 (“Chernetz”), that
litigation privilege continues to apply until the report is introduced into evidence at Trial.
The Court held that Rule 5.37 was applicable and consistent with Chernetz. Rule 5.37 allows the
Court to direct that an expert be Questioned (and consequently documents underlying the
report be disclosed) prior to Trial, in exceptional circumstances. The Court held there were no
exceptional circumstances, and the Application was dismissed.
(TOPOLNISKI J)
This was an appeal of a Master’s dismissal of Applications to discharge ten Caveats registered
against titles for ten properties.
The Caveators/Respondents filed Caveats claiming an equitable interest in mortgages and
related instruments which they alleged were funded with their own traceable money. The same
interest was claimed in all of the Caveats and the same evidence and arguments were applied
in all ten Applications.
Master Schulz concluded that the Caveators had established a prima facie case for their
Caveats. Maser Schulz noted that their problem in gathering evidence to better support their
position was due to the Defendants’/Appellants’ undisputed refusal to disclose certain financial
documents despite their obligation to do so.
On Appeal, the Appellants contended that the Master erred in finding that the Caveators had
established a prima facie case. They argued that the Caveators’ unfounded suspicions regarding
funding of the impugned mortgages was insufficient, and that their inability to obtain better
information did not negate the requirement to meet their onus.
Justice Topolniski first addressed the standard of review on an Appeal from a Master’s Decision.
Topolniski J. stated that Rule 6.14(3) governs Appeals from a Master’s Decision. Topolniski J.
noted that the applicable test is whether the Master was correct, and the Appeal of a Master’s
Decision continues under the new Rules as it had in the past – a de novo hearing.
In discussing the nature and quality of the evidence presented, the Court considered the
Respondents’ supporting Affidavit (“Butt’s Affidavit”), which the Appellants claimed was
inadmissible and deficient, and constituted nothing more than unfounded suspicions. Justice
Topolniski discussed Rule 13.18 of the Rules of Court, stating:
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Rule 13.18(2) is akin to old Rule 305(3) which permitted hearsay evidence on
“interlocutory motions" if it was accompanied by the source, and grounds for the
belief were given. […]
Rule 13.18(3) is very different. It prohibits hearsay in affidavits in support of an
application that disposes of a claim, but it imposes no such prohibition in respect
of affidavits like Steven Butt’s affidavit, filed in response to an application:
Murphy v. Cahill, 2012 ABQB 793 at paras. 3, 25-26.
The Court stated that, in any event, the beliefs in Butt’s Affidavit were founded on his own
conclusions based on the Records he reviewed, the result of his registry searches, as well as
some information provided by the Appellants. Topolniski J. stated that even if this were
hearsay, it would be permissible under Rule 13.18(3), and that Butt primarily drew inferences
based on his study of the materials provided to him.
The Appellants pointed to the Questioning of Butt on his Affidavit to support their position that
there was no basis for his beliefs. Essentially, they claimed that he was not qualified to opine
about what he discerned from his reviews because he was not an accountant, nor had he seen
the “whole picture”.
The Court responded by stating that, although Butt was not an accountant, he had conducted a
detailed review of what was made available, and the Appellants did not direct the Court to any
evidence suggesting that the documentation he reviewed was inaccurate or otherwise
unreliable. The Court also conceded that Butt had not seen the “whole picture”, but stated that
“[h]ad the Promoters and Mortgagees complied with their obligations under the Settlement, he
might have had the complete picture, but the Promoters and Mortgagees have chosen not to
do so”. The Court also noted that Butt’s beliefs were not proffered as bare assertions. His
conclusions were supported by the documents and registry searches.
In the result the Court determined that Butt’s Affidavit was admissible, and that the Caveators
had established a prima facie case to support the Caveats. The Appeal was dismissed.
1400467 ALBERTA LTD V ADDERLEY, 2014 ABQB 85 (VEIT J)
The Applicant applied to strike out the Respondent’s claim under Rule 3.68(1) for two reasons.
First, the Applicant submitted that the Respondent did not have a reasonable cause of action in
Alberta (Rule 3.68(2)(b)). Second, the Applicant submitted that the Court had no jurisdiction
over the Respondent, a corporation incorporated and operating in Saskatchewan (Rule
3.68(2)(a)).
In assessing the Applicant’s position on Rule 3.68(2)(b), the Court reviewed former Rule 129
and current Rule 3.68(2)(b). Justice Veit noted that former Rule 129 had previously been
interpreted and considered as though the Rule had included the word “reasonable”. The Court
further held that there was no difference in principle between the assessments made under the
current Rule and the former Rule.
340
Determining if there was a reasonable cause of action under Rule 3.68(2)(b) required a
summary analysis. The Amended Statement of Claim explicitly alleged that the Defendants
conspired to solicit its clients and induce its employees to join the Applicants. The Amended
Statement of Claim also alleged that the employment contracts were made in Alberta. Based on
the above, the Court held that it was reasonable to conclude that a reasonable cause of action
in Alberta existed.
The Court then determined whether it had territorial jurisdiction to deal with the Application.
The Court acknowledged that dealing with territorial jurisdiction disputes, for constitutional
reasons, required more than a summary analysis (Greenbuilt Group of Companies Ltd v RMD
Engineering Inc, 2013 ABQB 297). The Court took two routes to determine the issue of
territorial jurisdiction: attornment and conflicts of laws.
By failing to avail itself of the processes outlined in Rules 3.30 and 11.31, by filing a Defence on
the merits of the claim, and by taking other steps in the proceedings, including bringing the
current Application, the Court held that the Applicant had attorned to the jurisdiction of the
Court.
To prove a real and substantial connection under Rule 11.25(3)(b) and 11.25(3)(c), the contract
had to relate to, or be made in and governed by, the law of Alberta. From the Amended
Statement of Claim, and from the employment contract, it was clear to the Court that the
Applicant’s contract related to Alberta. It was also clear that, not only was the non-compete
contract governed by Alberta law, Alberta was the choice of forum. The Court held that,
although the Applicant was not a signatory to the contracts in question, its links to its principal
established the required connection. Overall, the Court held that it had jurisdiction simpliciter
to deal with the Respondent’s claim.
Finally, the Court considered whether it should exercise its rights to rule on this matter. Forum
conveniens did not have to be determined for two reasons. First, the Respondents gave the
Applicants no notice on this issue. Second, the Court held that it would be inappropriate to deal
with the matter without assistance from the parties on the important legal issues. For the
above reasons, the Court did not determine the forum conveniens issue on this Application.
RBZ CAPITAL CORP V PETROL ALCHEMY, LLC, 2014 ABQB 102 (EIDSVIK J)
The Applicants sought an Order dismissing the Action against them on the grounds that Alberta
did not have jurisdiction over the dispute or, in the alternative, an Order staying the Action in
favour of an Action in Colorado.
A preliminary issue arose as to whether Eidsvik J. ought to consider a late filed Affidavit by one
of the Respondents. The Respondents argued that the evidence clarified earlier evidence given
in the Affiant’s Cross-Examination, and that they had a duty to clarify as soon as it was
discovered that clarification was required.
341
The Applicants conceded that an Affiant has a duty to correct an answer that is misleading or
incorrect and that the Court has the discretion to accept this evidence pursuant to Rules 5.27
and 6.11(1)(e). However, they argued that this new evidence did not correct anything, but
simply supplemented missing information which should not be received. Eidsvik J. disagreed
with the Applicants, stating that the evidence did help to clarify, and allowed the evidence.
With respect to whether Alberta had jurisdiction to hear the matter, the Respondents argued
that there were four presumptive factors of real and substantial connection pursuant to Rule
11.25, those being:
1. A contract formed in Alberta;
2. An alleged Tort committed in Alberta;
3. That the law of Alberta applies to part of the dispute; and
4. A permanent injunction was being sought.
The Applicants argued that, although some presumptive factors might exist, they were weak or
tenuous, and further, the parties agreed to Colorado in a jurisdiction clause in an earlier Letter
of Intent. The Court dismissed this argument, stating that Alberta had jurisdiction over the
dispute. The Court noted that the Supreme Court of Canada had set out the parameters for
when a court in Canada should assume jurisdiction, and the Rules of Court (Rule 11.25
specifically) also set out the presumptive connective factors. The Supreme Court noted that any
presumptive connecting factor will do, as long as the link is not weak or tenuous.
The Court then went on to discuss choice of forum. The Court stated that both Alberta and
Colorado had jurisdiction to deal with the dispute. The Court noted that there were multiple
daily direct flights between Alberta and Colorado, and that distance is much less of a factor
than it would have been in times gone by. The Court examined all the factors which favoured
one forum over the other, and vice versa. There were several factors in favour of each;
however, for the most part both forums appeared to be of approximately equal convenience.
The Court cited Dyck v Questrade, Inc, 2012 ABCA 187 for the proposition that the Applicants
had the burden of showing that another other forum is “clearly more appropriate”.
Eidsvik J. found that the Applicants had not met this burden, and dismissed the Application,
awarding costs to the Respondents.
FIC REAL ESTATE FUND LTD V LENNIE, 2014 ABQB 105 (GRAESSER J)
The Plaintiff commenced an action against three Defendants for non-payment of funds upon
closing a real estate transaction. The Plaintiff mistakenly discharged its own caveat and the
lands were transferred. The Plaintiff, upon discovering its mistake, applied for an Order
requiring that the two individual Defendants immediately pay the funds into Court. The Order
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was served on Counsel of Record for both of the individual Defendants in accordance with the
Rules. The Plaintiff applied to enforce the terms of the Order against one of the individual
Defendants, which resulted in the freezing of that Defendant’s accounts, and a warrant was
issued to hold the Defendant in contempt. The Defendant learned of it and voluntarily came
forward to deal with the matter, worked to comply with the terms of the Order and accounted
for most of the funds received. The Plaintiff sought a declaration that the individual Defendant
was in contempt of the Order and sought solicitor and client costs for the enforcement
proceedings.
Justice Graesser considered whether the initial service of the Order had been effective. His
Lordship noted that an Order is not a commencement document as defined in the Rules, nor is
a Notice of Application, so service may be effective in a number of different ways. Justice
Graesser reviewed Rules 2.24, 11.17, 11.20 and 11.21, and stated that it was clear from Rule
11.17 that subsequent documents in an action can be served on a Lawyer of Record. Justice
Graesser clarified that Orders speak from pronouncement (Rule 9.6): appeal periods may in
some cases not run until the formal Order or Judgment has been filed and served, but when a
Justice makes an Order in Court, the Order is not “in limbo and ineffective” until the terms are
completed and the Order filed and served. The Order is therefore “valid unless and until it is set
aside or varied”.
Justice Graesser considered Rule 10.52 pertaining to civil contempt. His Lordship reviewed the
common law requirements for contempt and stated that the language of Rule 10.52 was clear:
it is not necessary to prove that the person has actual knowledge of an Order; it is sufficient if
the Order has been served in accordance with the Rules. Graesser J. opined that Rule
10.52(3)(a) has replaced the common law in Alberta. Justice Graesser considered the
Defendant’s argument that he did not know about the Order. Noting that the Rules allow for
contempt to be found even in the absence of personal knowledge, Justice Graesser was
satisfied that the Defendant had provided a reasonable excuse for not complying with the
Orders, and even if the timing of events was suspicious with respect to the transfer of funds,
suspicions were not a proper basis for a finding of contempt. The individual Defendant was
found not guilty of contempt.
His Lordship also considered whether solicitor and client costs were appropriate in the
circumstances. The Plaintiff argued that they had been put to considerable expense to get
compliance with the Order. Justice Graesser considered the provisions of Rules 10.29 through
10.31 and stated that costs were always at the discretion of the Court. Further, it was clear
from Rule 10.31 that the Court has the jurisdiction to award a range of costs. His Lordship cited
prior leading authority on solicitor and client costs pursuant to prior Rule 601(1). In the result,
the fees and disbursements were payable by the Defendant on a full indemnity basis for those
portions which related to the enforcement of the initial Order. Justice Graesser noted that it
would be inappropriate in the circumstances to require the Plaintiff and its lawyers to justify
“every bit of research and minute of time spent pursuing appropriate remedies”.
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SECURE ENERGY SERVICES INC V CCS CORPORATION, 2014 ABQB 107 (WITTMANN CJ)
The Applicant, Secure Energy Services Inc. (“Secure”), applied pursuant to Rule 5.33 for leave to
provide documents produced by the Respondent, CCS Corporation (“CCS”), to the Competition
Bureau of Canada (“Competition Bureau”).
The Court held that Rule 5.33 is a codification of the implied undertaking rule. The Court held
that, although there was no direct evidence that the real reason Secure brought the Application
was to apply pressure on CCS in furtherance of the Action, that is exactly the result that would
occur if Secure could release the documents to the Competition Bureau. The Court noted that
the reasons for this Judgment were public, and given the broad powers available to the
Competition Bureau, there appeared to be nothing to prevent it from compelling the
production of the records if it so wished.
The Application was dismissed.
RUE V ASSANTE WEALTH MANAGEMENT (CANADA) LTD, 2014 ABQB 109 (ROOKE ACJ)
The Plaintiffs commenced a prospective Class Action against a financial advisor and his
employer for fraud and misappropriation of funds. The individual Defendant was also criminally
charged for causing the death of one of his former clients; she died when the letter bomb the
Defendant allegedly sent to her exploded. The individual Defendant applied for a stay of the
proceedings in the potential Class Action pending the final determination of the criminal
proceedings. In the alternative, the Defendant sought an Order directing that, pending the final
determination of the criminal proceedings, there be certain protections afforded to the
Defendant with respect to Questioning related to the criminal proceedings. The Plaintiffs
agreed to the alternative relief, but the Defendant appeared before the Court to request the
stay in any case.
Associate Chief Justice Rooke considered the test for a stay where there are concurrent criminal
and civil proceedings. His Lordship noted that the jurisdiction of the Court to grant a stay is
provided for in the Judicature Act and the Class Proceedings Act and augmented by Rule
1.4(2)(h). Associate Chief Justice Rooke confirmed that a stay of proceedings was discretionary
and not a matter of right. The test for the stay was: whether the pending criminal charges were
sufficiently interrelated with the civil Action so that the Defendants would be prejudiced if the
civil Action continued; and whether the Defendants could demonstrate that the stay would not
cause an injustice to the Plaintiff Class. Associate Chief Justice Rooke held that, in all the
circumstances, the Defendant did not meet the test for a stay which would require the Court to
exercise its discretion, and the alternative Order which the Respondents agreed to adequately
protected the Defendant. With respect to costs, Associate Chief Justice Rooke ordered that,
since the Plaintiffs had effectively made an offer equal to what was granted, double costs were
appropriate pursuant to the Rules of Court.
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ORR V FORT MCKAY FIRST NATION, 2014 ABQB 111 (BROWN J)
The Plaintiff appealed the Judgment of a Master dismissing his Application for partial Summary
Judgment. The Plaintiff was a First Nations Councillor and had been suspended by the First
Nations Band Council. That suspension was quashed by the Federal Court. However, he did not
receive payment for the time that he was suspended. The Plaintiff sought Summary Judgment
for the pay that he did not receive during his suspension.
The Court cited the test for Summary Judgment as “whether the evidence renders a claim or
defence so compelling that the likelihood it will succeed is very high”. The Court reviewed the
Supreme Court of Canada case of Hryniak v Mauldin, 2014 SCC 7 (“Hryniak”) and held that,
without diminishing the weight of the guiding principles provided in Hryniak, Hryniak applies to
Applications under Rule 7.5, and not Rule 7.3.
The Court held that there was inadequate evidence to establish that the First Nations Band was
legally obligated to pay the Plaintiff any funds. The Court also held that the cause of action
pleaded by the Plaintiff, breach of compensation for electoral office, is not currently recognized
as a cause of action. The Application was dismissed.
SHREEM HOLDINGS INC V BARR PICARD, 2014 ABQB 112 (WAKELING J)
Previously, the Appellant law firm, Barr Picard, brought an Application for an Order directing
that a Review Officer’s Decision regarding a fee dispute be entered as a Judgment. That
Application was dismissed, as:
(a) The Certificate of Review did not certify the amount owed;
(b) The Certificate of Review did not identify Deepak Kumar as a client (and the Application
sought Judgment against Deepak Kumar); and,
(c) The unresolved issues in the Certificate of Judgment made it impossible to enforce.
The Court advised the parties that a further Application could be brought to determine if the
Court had jurisdiction to order any other remedies, such as a Trial of an issue, which might
accelerate the dispute resolution process.
The Appellant law firm brought a further Application to the Court requesting the Court to
Order, pursuant to Rule 7.1, a Hearing to answer the following questions:
1. Was Barr Picard restricted to recover only the amount of its initial estimate of legal
fees?
2. What parties were liable, if any, for the legal fees?
3. Were the Respondents obligated to pay interest as per the retainer agreement?
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The Court held that a request filed for review of a law firm’s accounts does not serve as a
foundation for the second and third questions above. Additionally, the questions to be
answered fall outside of the parameter of issues that would be reasonably contemplated by the
request filed by the Respondent. The Court held that Rule 10.18 provides original jurisdiction to
a Review Officer to make reference to a Court, and the Court does not have inherent
jurisdiction as the Rules set out a comprehensive code dealing with the taxation of legal fees.
Additionally, Rule 7.1 allows for an Order to answer a question at or before Trial, and Rule
10.13 does not involve a protocol to which a Trial is part, and thus Rule 7.1 is not applicable.
The Court held that the result did not produce any unfairness as a lawyer has a right to
commence an Action against a client to seek payment of unpaid legal fees.
LOFTHAUG V CANADIAN IMMIGRATION SPECIALISTS LTD, 2014 ABQB 115 (LEE J)
The Plaintiff sought Summary Judgment for his Claim relating to unpaid commissions arising
from a breach of a consulting agreement. In 2008, former Counsel for the Defendant prepared
and filed a Consent Judgment which stated “the Plaintiffs’ claim as to liability against all of the
Defendants is established as it relates to all causes of action…”. Thus, the Plaintiff in this
Application sought Summary Judgment on the ground that the only real issue was the amount
to be awarded. The Plaintiff sought Judgment for the sum of $1,239,000.00 based on the
calculations prepared by his expert.
Lee J. stated that where there are genuine questions of fact and law relating to the assessment
of damages, Summary Judgment is not available. He also noted that the test for Summary
Judgment is whether there is a genuine issue for trial.
The Plaintiff argued that his Application complied with the purpose noted in Rule 7.1 of the
Rules of Court, and that the Court was authorized to assess the Plaintiff’s damages and render a
Judgment. The Plaintiff further asserted that quantification of the commission claim was
straight forward and simply required an assessment of the number of relevant clients
multiplied by 50% of the fee charged.
The Court disagreed with the Plaintiff, stating that while there were no issues regarding the
expert’s accounting and valuation expertise, his report was complex and was also subject to
hundreds of pages of additional Questioning and Answers to Undertakings. Further, Lee J.
noted that there were many Affidavits filed in this matter, and Questioning that occurred on
those Affidavits appeared to be somewhat relevant to the issue of damages.
The Court stated that, despite the fact that liability was admitted, a party must adduce
uncontroverted evidence to establish a claim for damages. Lee J. concluded that the factual
matrix of the relationship between the parties was such that the question of damages could not
be fairly and properly determined without viva voce evidence and without findings of
credibility.
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In the result, Lee J. dismissed the Summary Judgment Application and ordered a Trial to
determine damages.
WHITECOURT POWER LIMITED PARTNERSHIP V INTERPRO TECHNICAL SERVICES LTD, 2014
ABQB 135 (MASTER MASON)
The Plaintiff (“Whitecourt”) commenced an Action against the Defendant (“Interpro”) alleging
Interpro caused losses due to repairs it made to Whitecourt’s turbine/generator. Almost two
years after Whitecourt filed its Reply to Interpro’s Statement of Defence, Interpro filed a Third
Party Claim against Elliott Turbo Machinery Canada Inc. (“Elliott”). Elliott applied to set aside
the Third Party Claim or alternatively for Summary Dismissal of the Third Party Claim. Elliott
argued that, pursuant to Rule 3.45, Interpro should have filed and served a Third Party Claim
against Elliott within six months of filing its Statement of Defence. Although Interpro’s Third
Party Claim was filed outside of this period, Interpro had obtained an Order to extend the time
to file and serve its Third Party Claim. Master Mason declined to set aside the Order, holding
that Elliott had not demonstrated prejudice due to the extension of time since Elliott had
received notice of the Order.
Master Mason considered Rule 7.3, stating that the onus is on the party bringing a Motion for
Summary Judgment to show “no genuine issue for trial”, and that the Court will consider all the
evidence to determine whether the Applicant has discharged that onus. Master Mason
expressed the test for Summary Judgment as being “plain and obvious or beyond doubt that
the claim cannot succeed”. Further, if the evidence must be assessed and weighed by a Master
or Justice in Chambers, the “plain and obvious” or “beyond doubt” test has not been met.
Master Mason considered how Hryniak v Mauldin, 2014 SCC 7 should apply in Alberta, and held
that, unlike the Ontario Summary Judgment Rule considered by the Supreme Court, Alberta’s
Rule 7.3 does not permit the Court to weigh evidence to resolve disputed questions of fact.
Master Mason concluded that the Supreme Court of Canada’s statement with respect to courts
being permitted to find the relevant facts was applicable to Summary Trials under Rule 7.5.
Master Mason observed that civil procedures must be proportional to the Claim.
Proportionality is codified by Rule 1.2, which is the lens through which courts must interpret
the Rules, including Rule 7.3.
Master Mason held that, pursuant to Rule 3.44, Interpro’s Third Party Claim alleging Elliott to
be liable to Interpro for Whitecourt’s Claim was a claim for contribution. This portion of the
Claim was summarily dismissed pursuant to the Tort-Feasors Act, RSA 2000 c T-5. Master
Mason held that, other than the portion of Interpro’s Third Party Claim for contribution, the
parties had outstanding factual disputes to be determined at Trial.
BROUSSEAU V JANZ ESTATE, 2014 ABQB 136 (MASTER SCHLOSSER)
The Plaintiff, Laetitia Brousseau, applied for an extension of time for the service of a Statement
of Claim. The Action arose out of a car accident. There were three passengers, all Plaintiffs, in
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one car, and the same law firm acted for all of them. Settlements were reached with two of the
Plaintiffs, but not with Ms. Brousseau.
Prior to the filing of the Statement of Claim, the insurer indicated that there were no issues
with coverage. Based on, inter alia, the representation that insurance would cover the accident,
and that settlement had been reached with the other two Plaintiffs, the Court held that the
exceptions to allow time for an extension of service found in Rule 3.27(1)(a)(ii) and (iii) were
met. The Application was granted.
SHAW V SHAW, 2014 ABQB 165 (SCHUTZ J)
Ms. Shaw provided Mr. Shaw with a Calderbank Offer, one day before the commencement of
Trial, on January 7, 2014. The Offer was not accepted by Mr. Shaw, and a Trial ensued. The
global effect of the Judgment following Trial was more favourable to Ms. Shaw than the terms
of her Calderbank Offer.
The Court cited Adams v. Adams, 2011 ABQB 812 for the proposition that Costs in an Action for
Matrimonial Property Division or Support should not be treated any differently than Costs in
other litigation. The Court noted that Ms. Shaw’s Calderbank Offer did not meet the
requirements of the Rules of Court under the Formal Offer Rule, Rule 4.24, because the Offer
was not served 10 days or more before the start of Trial. Therefore, Rule 4.29, which mandates
the Double Costs consequences of a Formal Offer, did not apply. However, Schultz J. stated that
the Alberta Court of Appeal has made it clear that even informal offers that arguably do not
comply with the Rules can have an effect on Costs.
In the result, the Court concluded that Ms. Shaw was entitled to ordinary fees under Schedule
C, Column 1, from the time she retained counsel in this Action until January 7, 2014; and 1.25
times regular Column 1 after the Calderbank Offer was made on January 7, 2014.
ALLEN V RADEJ, 2014 ABQB 171 (SCHUTZ J)
The Plaintiff fell out of a tree. The Plaintiff was intoxicated and climbed the tree as part of a
challenge that he had issued to another individual. The Defendants brought a Summary
Judgment Application.
The Court analyzed three issues that the Plaintiff submitted were triable issues: (a) employeremployee relationships; (b) social host liability; and (c) occupier’s liability. The Court held that
the “Defendants have satisfied their legal burden of showing that there is no genuine issue of
material fact requiring trial”. The Court cited Hryniak v Maudlin, 2014 SCC 7, for the general
proposition that Courts need to arrive at a fair and just adjudication of claims in a way that does
not impose unnecessary expense upon the litigants. The Court held that there were no triable
issues and the Application was dismissed.
PORTER V ANYTIME CUSTOM MECHANICAL LTD, 2014 ABQB 193 (GRAESSER J)
In a wrongful dismissal action against a Corporate Defendant, the Plaintiff attempted to force
the other shareholders and directors to buy his shares. One of the individual Defendants
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applied for intervener status in order to defend the Action on behalf of the Corporate
Defendant and to pursue the Corporate Defendant’s Counterclaim against the Plaintiff. The
stated purpose of the Application for intervener status was to avoid the expense of having two
counsel defend the Action and pursue the Counterclaim. The Plaintiff argued that, if the
individual Defendant was allowed to intervene, he should post Security for Costs because the
corporation was without significant assets.
Graesser J. referred generally to the Foundational Rules, stating that they favored efficiency
and economy in the pursuit of litigation. However, while economy is encouraged, it does not
trump conflicts of interest. His Lordship observed that the Action was neither efficient nor
economical since there had been significant delay in moving the Action forward, but a conflict
would loom if leave were given to allow intervener status. It would inferentially allow the same
counsel to defend both the individual Defendant and the Corporation as well as pursue a
corporate counterclaim. In the result, Graesser J. held that the appointment of an intervener
was not necessary and was premature since there was no indication that the corporation was
unable to defend the Action and pursue the Counterclaim. Graesser J. noted that the
requirement under the former Rules, that a Defendant who was seeking Security for Costs was
required to swear that he had a defence to the Action, was no longer part of the Rules. The
merit of the Parties’ positions was a factor to be considered, but there were no longer any
“magic words” necessary in an Affidavit in support of such an Application.
OLYMPIA TRUST COMPANY V ODEGARD, 2014 ABQB 204 (MASTER SCHLOSSER)
The Plaintiff in a foreclosure Action assigned its entire interest in the lawsuit to a third party,
(the “Assignee”) post Order Nisi/Order for Sale in 2010. More than 3 years after the
assignment, the Plaintiff brought an Application to have the Assignee substituted as Plaintiff, or
added, and the Pleadings amended, pursuant to Rule 3.62(1).
The Court noted that assignment of the Order Nisi was an assignment of a Judgment. Rule 4.34
did not apply in the circumstances. However, because there were further procedural steps
before this Action would be concluded, the Court granted the amendment to the Pleadings to
have the Assignee substituted as Plaintiff.
Master Schlosser stated that, because this was an assignment of a Judgment, the 3 years did
not create a limitation problem. Section 11 of the Limitations Act only prevents liability on a
Judgment after ten years.
GEOPHYSICAL SERVICE INCORPORATED V NWEST ENERGY CORP, 2014 ABQB 205 (MASTER
ROBERTSON)
The Plaintiff, a former seismic licensing company, commenced an Action against the Defendants
claiming breach of contract, breach of copyright and conversion for the alleged sharing of
seismic data. The Plaintiff applied to amend the Statement of Claim to add additional claims
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against the Defendants and to increase the quantum, and to add three new named Defendants
and 26 additional “John Doe” style Defendants under Rules 3.62, 3.63, 3.65 and 3.66.
Following the principles set out in Balm v 3512061 Canada Ltd, 2003 ABQB 98, Master
Robertson noted that:
The classic rule is that an amendment should be allowed, no matter how careless
or late, unless there is prejudice to the other side, and even that is no obstacle if
it is repaired.
Master Robertson clarified that, particularly where the amendment is to add new Defendants,
the Applicant must provide some evidence of the claim; however, the evidence must be
meaningful. That bar is still present though it may be low. Master Robertson observed that, if
no exceptions to the classic rule applied, the pleadings could generally be amended. In addition,
Master Robertson also noted that Rule 3.74 was applicable to adding parties after the close of
Pleadings. The express caution in that Rule is that the Court is precluded from making an Order
if prejudice would result that could not remedied by a Costs award, adjournment or the
imposition of terms. Once the Court has established that a party would be seriously prejudiced
by an amendment, Rule 3.74(3) requires that no amendment be made.
Master Robertson analysed each of the proposed amendments in the Application and held that
there was little or no evidence to support the claims. “Housekeeping” amendments that were
routine in nature were allowed, but many parts of the claims were hopeless because they
proceeded on a faulty legal premise without evidence. The proposed amendment to increase
the quantum was disallowed as it was not supported by evidence. Master Robertson also
declined to add the 26 “John Doe” Defendants and two of the three proposed named
Defendants on the basis that fishing for evidence to support the claims against the proposed
Defendants was not acceptable: there must be modest evidence of wrongdoing by a party prior
to their addition as a Defendant. Master Robertson observed that, if the amendments had been
allowed adding all of the proposed parties, significant terms would have been imposed as well
as Costs, Security for Costs and deadlines for filing and service, taking into account Rule
1.2(2)(b).
RESOURCE WELL COMPLETION TECHNOLOGIES INC V CANUCK COMPLETIONS LTD, 2014 ABQB
209 (MASTER HANEBURY)
This was an Application by the Plaintiff to amend its Statement of Claim to add a claim against
another party, an individual named Graf. Graf contested the amendment on a number of bases.
Master Hanebury first reviewed the case law in relation to amending pleadings, and cited Balm
v 3512061 Canada Ltd, 2003 ABCA 440 for the proposition that “an amendment should be
allowed, no matter how careless or late, unless there is prejudice”. Master Hanebury also noted
that:
1.
The amendment must raise a triable issue;
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2.
The evidentiary threshold is low and hearsay evidence is allowed;
3.
There must, however, be some evidence to support the amendment; and
4.
The necessary amount of evidence is “modest”.
With those considerations in mind, Master Hanebury turned to the specific arguments raised by
Graf. The first was that the Plaintiff’s Affidavits supporting the amendment ought to be struck,
or portions ought to be struck, because they contain unattributed hearsay. Master Hanebury
reviewed Rule 13.18(2) which states that, if an Affidavit is sworn on the basis of information
and belief, the source of the information and belief must be disclosed. Although it was true that
the paragraphs which the Respondent sought to have struck constituted unattributed hearsay,
Master Hanebury found that in some cases there were documents in the Plaintiff’s Affidavit of
Records which supported the information in question, and therefore those paragraphs were
not struck. In one instance, it was found that some information which was unattributed hearsay
was acknowledged by another party to the Action. Master Hanebury allowed these paragraphs
to remain in the Affidavit; however, Master Hanebury did strike some paragraphs which were
unattributed hearsay and not supported by any other evidence before the Court. Master
Hanebury also struck several more paragraphs from the Affidavits because they contained
inappropriate evidence by a lay person.
Further, Master Hanebury had to determine whether the Affidavits, as now redacted,
contained sufficient evidence to support the amendment. Master Hanebury determined that
they did, and further determined that the amendments were not hopeless. In the result,
Master Hanebury allowed the Application to amend.
BRANDNER V ALBERTA (JUSTICE & SOLICITOR GENERAL), 2014 ABQB 211 (MASTER
HANEBURY)
This was an Application to summarily dismiss the Civil Claim of the Plaintiff on the basis that it
was filed out of time. The Plaintiff was pulled over for speeding. The routine traffic stop ended
with the Plaintiff pepper sprayed, handcuffed and arrested. The incident occurred on June 13,
2010, and the Plaintiff filed his claim on August 9, 2012. The Plaintiff made claims for assault
and battery, wrongful arrest and detention, breach of his Charter rights, negligent investigation
and malicious prosecution.
A preliminary issue arose with respect to the claims for negligent investigation and malicious
prosecution. The Applicant conceded that these two claims were not out of time, but asked the
Court to dismiss them on the merits. The Court stated that Rule 6.3(2)(b) requires that the
Notice of Application for Summary Judgment include the grounds for making the Application.
The only grounds provided in the Notice in this case were that the claim was filed out of time.
The Court stated that the grounds the Applicant was attempting to rely on with respect to
negligent investigation and malicious prosecution were not obvious to the Plaintiff or the Court
in either the Application or the supporting Affidavit. The Court further stated that “[w]hether
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intentional or unintentional, ambush is not a tactic supported by the courts”. The Court
declined to consider any evidence respecting these two claims.
With respect to the remaining claims, Master Hanebury stated that the test for Summary
Judgment under Rule 7.3 was no longer the same as it had been under the Former Rules. A
Summary Judgment Application is not confined to the test of “a genuine issue for trial” found in
the Former Rules. Rather, interlocutory decisions that can resolve a dispute in whole or in part
should be made when the record permits a fair and just adjudication.
After reviewing the facts of the case, as well as section 3 of the Limitations Act, Master
Hanebury determined that the Plaintiff had everything he needed to determine if proceeding
with the claim was warranted, on June 13, 2010. As such, the claims were out of time. Master
Hanebury granted the Summary Judgment Application and dismissed the Plaintiff’s claims, with
the exception of the claims for negligent investigation and malicious prosecution.
SILVERADO OILFIELD VENTURES LTD V DAVIDSON, 2014 ABQB 218 (ROMAINE J)
The Plaintiff, Silverado, went into receivership, and its assets were sold to 1773907 Alberta Ltd.
(“177”), causing the Action to be stayed pursuant to Rule 4.34. This Application was for a Court
Order lifting the stay and substituting 177 as the Plaintiff in place of Silverado. The Defendants
sought to have the Action struck as abuse of process, alleging that the assignment of the Action
from Silverado to 177 was tainted by champerty and maintenance.
Romaine J. ordered that the stay be lifted and that 177 be substituted as the new Plaintiff,
stating it was “clear that the cause of action has been transferred from Silverado to 1773907,
and Silverado no longer has any right or interest in the litigation”. However, after a thorough
review of the law on champerty and maintenance, Romaine J. struck the resulting claim by 177
as an abuse of process on the basis that the assignment of the Action was tainted by champerty
and maintenance.
ASHRAF V SNC LAVALIN ATP INC, 2014 ABQB 220 (MAHONEY J)
The self-represented Plaintiff, Ashraf, commenced an Action against his former employer
claiming abuse, harassment and bullying in the workplace. The Defendant, SNC, applied to
strike the Statement of Claim or to stay the Action. The Application was dismissed on the basis
that the Plaintiff’s Action was statute barred pursuant to the Worker’s Compensation Act
(“WCB”). Costs for the Application were awarded to the Defendant. The Plaintiff appealed and
sought leave to add a claim for constructive dismissal. The Plaintiff’s Appeal was dismissed.
Mahoney J. held that the Defendant was entitled to its Costs for the Appeal under Schedule C,
Item 8(1), at Column 5. The Plaintiff was disappointed with the Costs award and came before
Mahoney J. to contest the Cost Order. His Lordship considered the Plaintiff’s argument that
each party should bear their own Costs because of mixed success in the Application. His
Lordship clarified that the Master was correct in striking the Statement of Claim in its entirety
pursuant Rule 3.68(1), and that if the Statement of Claim was amended it would be struck in its
entirety on the same basis. Mahoney J. stated that success was not mixed at all: the Defendants
was entirely successful and should have their Costs as set out in the Order. The Plaintiff further
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argued that the Costs Order of the Master should be revoked, but Mahoney J. dismissed this
argument stating that, having won the Appeal, the Defendants were entitled to their Costs as
ordered by the Master. His Lordship observed that the Plaintiff was warned at the start of the
Application that if he was unsuccessful in his Application further Costs might be awarded
against him. The Plaintiff indicated that he understood and wanted to proceed; therefore, it
was appropriate that the Defendants were awarded their Costs for a contested motion under
Schedule C, Item 7(1), Column 5.
PINO BROS COMMERCIAL INC V SILVER GOLD BULL INC, 2014 ABQB 227 (MASTER SCHULZ)
The Defendant, Silver Gold Bull Inc. (“SGB”), applied under Rule 9.15 to set aside a Default
Judgment obtained by the Plaintiff, Pino Bros. Commercial Inc. (“Pino Bros”). Pino Bros
contracted with SBG for the supply and delivery of six “monster boxes” of silver bullion for the
purchase price of $101,310. SGB retained Fedex Ground Package System Ltd. (“Fedex”) to make
an initial test delivery of one box. The delivery was successfully made to the delivery address
given by Pino Bros. SGB retained then Fedex to deliver the five remaining boxes. Fedex
attempted to deliver the bullion to the delivery address but there was nobody present to
accept delivery. A sign at the delivery address directed deliveries to an adjacent address. Fedex
attempted to make delivery to the adjacent address, but again there was nobody present to
accept delivery. Fedex then tried a nearby commercial address and the delivery was accepted.
The shipment went missing after it was delivered and signed for. A representative of Pino Bros
attempted to discuss the situation with a representative of SGB but to no avail. On April 8,
2013, counsel for Pino Bros sent a demand letter to SGB at its registered office address, the
registered address for Silver Spoon Holdings Ltd (the majority shareholder in SGB), and the
address listed for wire transfers to SGB on its website. SGB acknowledged receipt of a demand
letter but did not respond because it had no intention of paying any money to Pino Bros.
Pino Bros filed a Statement of Claim and purported to serve it by registered mail at SGB’s
registered office on May 13, 2013. The recorded mail was signed for by “M. Belandis”, who was
a director of SGB. On June 11, 2013, Pino Bros filed an Amended Statement of Claim, pursuant
to Rule 3.62, changing the name of the other Defendant to Fedex but making no additional
claims against SGB. There was no evidence that the Amended Statement of Claim was served
on SGB. On June 28, 2013, Pino Bros noted SGB in Default pursuant to the original Statement of
Claim, and subsequently entered Default Judgment and filed a Bill of Costs. Pino Bros then
garnisheed $86,040.07 from SGB’s bank account, which amount was held in Court.
SGB took the position that the first notice it had of the Action or Default Judgment was when its
managing partner, Nikolas Morianos, noticed the funds missing from the SGB account on July
25, 2013. Counsel for SGB sent correspondence on the same day to Pino Bro’s counsel objecting
to the garnishee and advising that it would likely receive instructions to seek to set aside the
Default Judgment. An Application to set aside the Default Judgment was filed by SGB on August
9, 2013, to be heard August 13, 2013, and was then adjourned indefinitely by consent. It was
brought back on November 26, 2013 and adjourned for submission of briefs by the parties.
Fedex was aware of the proceedings but made no submissions.
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The issues were whether Pino Bros could proceed to Default Judgment upon service of the
Statement of Claim when the Amended Statement of Claim had not been served, and whether
the Default Judgment should be set aside.
SGB argued that it was not properly served with either the Statement of Claim or Amended
Statement of Claim. After reviewing and referring to Rule 11.4 and s. 256 of the Business
Corporations Act, RSA 2000, c B-9 (“BCA”), Master Schulz summarized that service on a
corporation is deemed to be effected by recorded mail sent to the registered office, and
deemed effective on the date that the acknowledgment of receipt is signed. Master Schulz
added that the deeming provision can be set aside if there are reasonable grounds for believing
that the corporation did not receive the document.
An Affidavit of Service was filed showing service of the Statement of Claim on SGB by recorded
mail at the registered office on file with the corporate registry pursuant to s. 20 of the BCA.
Receipt was recorded by “M. Belandis”, a director on the corporate registry search. SGB said it
did not receive the Statement of Claim. Nikolas Morianos, the managing partner of SGB,
deposed that the registered office address for SGB is that of Peter Crossley Law Office, and that
Mr. Crossley told SGB’s lawyer (Mr. Averbach), who told Mr. Morianos, that he had no record of
receiving the Statement of Claim. Mr. Morianos further deposed that he did not recognize the
signature as his own or as one of his employees. There was no evidence before the Court from
Mr. Belandis or from Mr. Crossley, nor was there any explanation for the absence of evidence.
Master Schulz stated that the failure of someone with personal knowledge to give evidence and
the lack of explanation for that failure leaves an adverse inference.
Master Schulz did not accept the double hearsay evidence of Mr. Morianos as reasonable
grounds for believing that the corporation did not receive the Statement of Claim. Master
Schulz found that service of the Statement of Claim was made in accordance with the
legislation and was therefore deemed to be effective on the date receipt was acknowledged.
SGB argued that the Amended Statement of Claim replaced the original Statement of Claim
such that it could no longer be relied upon to establish service in support of Default Judgment.
Master Schulz noted that the amendments corrected the misnomer of another Defendant and
did not affect the claim against SGB. The Statement of Claim was amended pursuant to Rule
3.62, which allows amendments without court order before pleadings close. Master Schulz
emphasized the salient points of the Rule: that a party may amend its pleading, including an
amendment to add, remove, substitute or correct the name of a party before pleadings close,
any number of times without the court’s permission, and an amended pleading must be served
on each of the other parties within 10 days after the date on which it is filed. The Rule does not
dictate a consequence to the failure to serve within the specified 10 days. Master Schulz opined
that the drafters of the Rules of Court must have meant there to be some consequence
associated with the time limitation otherwise it would not have been included. Master Schulz
looked to Rule 3.65(3) for guidance, which provides that an order giving permission to amend a
pleading under the Rule ceases to have effect unless the amended pleading is filed and served
within the time specified by the court. From this, Master Schulz deduced that, if the court order
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ceases to have effect, then the amendments allowed by the court order also cease to have
effect and the amended pleading is then a nullity. Presumably the affected party would have to
re-apply for an order to amend the pleading. In the meantime, the original pleading is
operative. Master Schulz commented that, if the drafters wanted the same consequences to
apply to non-service under Rule 3.62, then the Rule would have said so, and silence on that
point must mean that something different should result. However, it makes sense that the
Rules of Court would address the situation where there is an apparent conflict between the
Rules and an extant court order, but be silent and allow the Rules to govern when there is no
court order. Master Schulz determined that the consequence set out in Rule 3.65 is consistent
with the plain reading of 3.62, and found that that the Amended Statement of Claim filed by
Pino Bros ceased to have any effect because it was not served on SGB. The original Statement
of Claim was the operating pleading and it was properly served.
Master Schulz repeated the test to set aside a default judgment as set out by Justice Poelman in
Palin v Duxbury, 2010 ABQB 833, at para 21:
…the Defendants must show that:
(a)
they have an arguable defence;
(b)
they did not deliberately let judgment go by default and have some
excuse for the default, such as illness or a solicitor’s inadvertence; and
(c)
up.
after learning of the default judgment, they moved promptly to open it
Master Schulz added that the three part test must be tempered by the overarching principle of
fairness, and the answers to the three questions of delay, excuse or inadvertence, and arguable
defence, provide guidance to the Court in the overall exercise of judicial discretion to promote
fairness between the parties.
Master Schulz commented that, while there was no adequate reason given for SGB’s failure to
file a Statement of Defence, there was no delay in moving to set aside Default Judgment and
there were arguable defences raised by SGB. There was no evidence of prejudice to Pino Bros if
the Default Judgment was opened up that could not be remedied by a monetary award.
Fairness dictated that SGB should be allowed to litigate the “possibly reasonably meritorious
defences”.
Master Schulz noted the evidence that Pino Bros approached SGB in advance of commencing
the Action in an attempt to resolve the matter, an attempt that SGB ignored. SGB had
demonstrated that it was prepared to ignore the matter and became motivated to deal with it
only when serious enforcement measures were undertaken by Pino Bros. Further, SGB did not
provide a draft Statement of Defence in support of a genuine intention and readiness to
defend. Master Schulz found that, given SGB’s approach to the claim, fairness dictated that the
money paid into Court should remain in Court during the litigation until further Order of the
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Court or agreement of all parties, in order to provide incentive to SGB to address the matter
and bring it to resolution. Master Schulz set aside the Default Judgment and directed SGB to file
and serve its Statement of Defence on Pino Bros within 5 days of the filing and service of the
Order. Master Schulz awarded Pino Bros thrown away Costs and the Costs of the Application on
a solicitor and client basis, payable forthwith and in any event of the cause.
MILNER’S ALOHA MOBILE HOME PARK (1998) LTD V JENKINS, 2014 ABQB 229 (MASTER
ROBERTSON)
The Plaintiff landlord commenced an Action against a tenant for the termination of the tenancy
as well as Judgment for rental arrears. The landlord had tripled the rent; he then claimed that
the full amounts were never paid and that rental arrears had therefore accrued. Master
Robertson considered the evidence before the Court regarding the increase in rent and the
arrears, holding that the rental increase was in reality “a notice… to terminate a periodic
tenancy” and was not for a proper reason. The notice of the rent increase was therefore of no
effect. Master Robertson cited Rule 1.4(2)(g) and held that the Court was authorized to give
advice including providing guidelines and making proposals, suggestions and recommendations.
Master Robertson made six recommendations with respect to the conduct of the landlord and
tenant towards one another. Master Robertson emphasized that the six recommendations
were not Orders, but that they could be explained further at the parties’ request.
BYRON V BYRON, 2014 ABQB 240 (JONES J)
The Applicant sought an Order declaring an Order made without notice, granted Justice Wong
of the Supreme Court of British Columbia (the “Wong Order”) was unenforceable; an Order for
abridgment of the time for service; and Costs. The Application was dismissed, and the Applicant
sought a stay of enforcement of Justice Jones’ Decision until it could be appealed. The Decision
to deny the Applicant’s request for a stay pending an Appeal (the “Jones Decision”) was to
permit the Wong Order to be given effect, which meant the parties’ two children would be
returned to the care of the Respondent on Vancouver Island. The Court of Appeal ultimately
dismissed the Applicant’s request for a stay of the Jones Decision. The Wong Order was
implemented and the parties’ two children returned to the care of the Respondent.
In considering a Costs award, Jones J. noted Rules 10.29, 10.29(a), 10.31, 10.33, and 10.33(1).
The Respondent was successful and sought full indemnity of solicitor and own client Costs. She
provided a draft Bill of Costs which reflected time charges of $14,805.36, disbursements of
$195.80, and “other charges” of $2,047.57, which included travel costs. The Respondent sought
full indemnity alleging that the Applicant: wrongfully and without prior notice refused to return
the children; should have known he would fail in his attempt to have the Wong Order declared
unenforceable; and was guilty of blameworthy conduct including unnecessary delay of
resolution of the issues and improper allegations that the children’s needs were not being met
and their safety was at risk. The Applicant believed that no Costs should be awarded, but if
awarded, they should be limited to $500 with reference to item 7(1) of Schedule C of the Rules.
Jones J. awarded Costs to the Applicant in the amount of $13,055.85. Justice Jones reasoned
that he was not prepared to go so far as to find that the Applicant was guilty of positive
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misconduct and was therefore not prepared to order Costs on a full indemnity basis, but found
the circumstances appropriate to depart from Column 1. The matter was complex, involved
jurisdictional issues and the interaction of legislation together with lengthy argument and
discussion of the tests to be applied. The Applicant acted inappropriately in retaining custody of
the children beyond their expected return date, in contravention of the understanding
historically existing between the parties. Further, the Applicant’s actions required the
Respondent to incur legal and other expenses, on short notice, and necessitated the
participation of the Respondent’s British Columbia lawyer on very short notice and who was
invaluable to laying the groundwork for an informed decision in the best interests of the
children.
AMACK V WISHEWAN, 2014 ABQB 242 (GILL J)
The Defendants in this Action brought applications for Summary Judgment. At issue was
whether certain identified documents and evidence from other proceedings could be relied
upon by the parties in the Summary Judgment Applications. The other proceedings involved an
investigation and report regarding certain aspects of the business and financial affairs of two
businesses affiliated with the Defendants.
Gill J. analyzed the evidentiary issue in two parts:
1.
Pursuant to Rule 5.2, were the documents and evidence relevant and
material to the Summary Judgment Applications?
2.
Was it necessary for reasons of fairness and justice that the documents
and evidence be available for the parties?
The principles for relevance and materiality under Rule 5.2 remain those that were applicable
under former Rule 265:
-
The parties’ pleadings are the basis for determining relevance and
materiality;
-
Discovery of records is now confined to eliciting facts of primary relevance
(facts directly in issue), or of secondary relevance (facts from which the
existence of the primary facts may be directly inferred);
-
Records must be material, in that they must be reasonably expected to
significantly help determine one or more of the issues raised in the
pleadings;
-
Relevance is determined by the pleadings, while materiality is more a matter
of proof; and
-
At an interlocutory stage of proceedings, it is sufficient if counsel can disclose
a rational strategy in which the disputed documents play a material part.
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Considering these principles, Gill J. held that documents and evidence in question were relevant
and material to the issues raised in the pleadings and in the Summary Judgment Applications.
Gill J. held that the documents and evidence were so clearly relevant and material that it may
be impossible to have a proper adjudication without them, and thus they were necessary to
achieve fairness and justice. As such, the documents and evidence from the other proceedings
were permitted to be relied upon by the parties.
JIN V REN, 2014 ABQB 250 (SHELLY J)
The Defendant sought to amend his Statement of Defence and file a Counterclaim
approximately seven years after the commencement of the lawsuit, and after the matter had
been set down for Trial. The Court stated that the threshold for amending pleadings is low.
However, there are four major exceptions to the “Classic Rule” of permitting late amendments,
which are set out in Dow Chemical Canada Inc v Nova Chemical Corporation, 2010 ABQB 524.
The Court reviewed the case law and the circumstances of this case and determined that all of
the exceptions in Dow Chemical were engaged, and the amendments should not be allowed.
The Court placed particular emphasis on the prejudice that the Plaintiff would face given the
circumstances. The Court also stated that one of the proposed amendments raised the defence
of tender, which, pursuant to Rule 13.9, required the Defendant to pay into Court the amount
alleged to have been tendered before filing a defence based on tender. This pre-requisite had
not been met by the Defendant and was thus another bar to allowing the amendments.
With respect to the Counterclaim, the Court stated that the Defendant had the onus of showing
that there was a “real and substantial connection” between Alberta and the facts on which the
proposed Counterclaim was based: Rule 11.25(1). The Court also noted that, in making this
determination, factors to be considered included where the cause of action arose and
convenience or inconvenience to potential witnesses: Kuffner v Manitoba Public Insurance
Corporation, 2005 ABCA 440. After reviewing the facts, the Court determined that the Applicant
had not made out a real and substantial connection. Finally, the Court stated that to allow a
Counterclaim at this stage of the proceedings would be highly prejudicial to the Plaintiff, and
that the Defendants had more than ample time over the last 7 years to seek to file a
Counterclaim, but failed to do so.
In the result, the Court dismissed the Application to amend the Statement of Defence and file a
Counterclaim.
STANNERS V ALEXANDRE, 2014 ABQB 253 (MILLER J)
The divorced parties had a lengthy history of litigation regarding the parenting terms for their
two children. The father brought an Application to vary the parenting terms of a Corollary Relief
Order which was ultimately addressed by way of Summary Trial pursuant to Part 7, Division 3.
Miller J. provided an overview of the history of disputes between the parties on the issue of
parenting dealt with by the Court. This included a total of four Provincial Court Orders, the
Divorce Judgment and Corollary Relief Order, and at least four further Orders in the Court of
Queen’s Bench. In light of this background, Miller J. referred to the purpose and intention of
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the Rules, as stated in Rule 1.2, in declaring that resolution of these types of issues or disputes
are best reached using a Summary Trial. Here, the Summary Trial would present the
opportunity for the parties to testify under oath and have the issue of parenting dealt with
rather than incurring further costs in a litigation war.
SNIHUR V GRACE, 2014 ABQB 268 (VEIT J)
The Plaintiff sued certain members of the Edmonton Police Service, the Edmonton Remand
Centre and certain of its employees for damages she alleged she suffered as a result of
wrongful arrest and imprisonment. The Plaintiff had chosen a psychiatrist as an expert witness
who would not provide a written opinion prior to trial in December of 2013. As a result, the
Court required the psychiatrist to testify in chief and then adjourned the Trial for several
months to allow the Defendants to decide how to cross-examine that witness and whether to
call experts of their own. The Court ordered the Plaintiff to pay $4,750 in thrown-away Costs in
connection with the lengthy adjournment.
The issue here was whether those Costs already ordered should be paid forthwith, as required
by Rule 10.29(1) and as requested by the Defendants; or whether the Court should, because
the Plaintiff had not abused the process and because a requirement to pay Costs forthwith
might constitute an impediment to her ability to continue the Action, exercise its discretion to
award Costs in the cause.
Justice Veit determined that the Costs should be paid forthwith. Justice Veit observed that
Alberta has, since the decision in Anderson Preece & Associations Inc v Dominion Appraisal
Group Inc, 2000 ABQB 979, adopted a “pay-as-you-go” Costs regime; therefore, even assuming
for the purpose of the Application that Rule 10.31(6) had not restricted the Court’s discretion to
deviate from Rule 10.29(1), in order to make access to the Court system as predictable as
possible, the Court should depart from the adopted Costs regime only if such a departure is
justified by the particular circumstances of a case. In determining whether the Court should
exercise its discretion to depart from Rule 10.29(1), Veit J. provided five reasons that militate
against interference with the standard rule that interlocutory Cost awards should be paid
forthwith. Three of the reasons have general application, and two are particular to the facts of
the case:
1.
The Rules have changed since Anderson Preece, which held: for the policy
reasons that have been well explored in the case law, the standard, or
general, or default interlocutory Costs rule is now “pay-as-you-go”;
2.
Access to the Courts should be made as predictable as possible;
therefore, standard rules should only be displaced where the
circumstances of the case establish that it would be unfair or
inappropriate to apply the general rule;
3.
Thrown-away Costs are, by their very nature, Costs which should not
have had to be incurred; it doesn’t matter if the party who has wasted
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money on those steps eventually wins or loses the lawsuit. Therefore,
there is no point in waiting to pay for those Costs until the final result of
the lawsuit is known;
4.
While it is true that in this particular case, the Plaintiff did what she could
to alleviate or reduce the prejudice caused to the Defendants by her
choice of expert, that effort on her part was already recognized in the
substantive award of Costs by reducing the amount of Costs that would
otherwise have been awarded; and
5.
The Plaintiff, who is the party who asks the court to depart from the rules
and who therefore, bears the burden of convincing the court that such a
departure is justified, had not provided any evidence to suggest that the
obligation to pay the Costs forthwith would constitute an impediment to
the continuation of her lawsuit.
Under the circumstances, Veit J. ordered that the Costs be paid forthwith by the Plaintiff.
NORFOLK SOUTHERN RAILWAY COMPANY V CROWSHAW, 2014 ABQB 273 (NIXON J)
On July 25, 2008, the US Plaintiff obtained Default Judgment (“Default Judgment 1”) in
Pennsylvania against the Defendant’s companies for the balance of an unpaid purchase
contract for railway equipment (the “Debt”). Default Judgment 1 was endorsed by the Alberta
Court on September 10, 2008. During the examination in aid of execution, it was discovered
that the Defendant had used the funds from the resale of the railway equipment for personal
investments and to pay gambling debts.
In 2011, the Plaintiff obtained Default Judgment (“Default Judgment 2”) in Pennsylvania against
the Defendant personally for the Debt, alleging fraud, misappropriation and conversion. The
Defendant had been automatically assigned into bankruptcy prior to the Plaintiff obtaining the
Default Judgment 2. The Court considered whether Default Judgment 2 was enforceable in
Alberta and whether it survived the bankruptcy of the Defendant.
The first stage of assessing whether a foreign Judgment is enforceable in Alberta is whether (i)
there is a real and substantial connection between the foreign jurisdiction and either the
subject matter of the litigation or a party to it, or (ii) the party attorned to the foreign
jurisdiction.
Nixon J. held that a series of emails from the Defendant indicating an intent to defend the Claim
in Pennsylvania were insufficient to demonstrate attornment. Notice of intent to defend is not
binding on a Defendant, especially when he has not yet retained counsel. The Court went on to
consider whether there was a real and substantial connection to the jurisdiction of
Pennsylvania.
The Court reviewed a number of decisions governing the test for a real and substantial
connection, and also referred to the factors listed at Rule 11.25(3) which establish a real and
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substantial connection for service ex juris. The Court held that there was insufficient evidence
to establish that the Defendant or his companies carried on business in Pennsylvania, such that
a presumptive connecting factor existed. Moreover, the actions upon which Default Judgment 2
was based did not occur in Pennsylvania; the conversion and misappropriation of funds alleged
in order to pierce the corporate veil, occurred in Alberta. Furthermore, it was not sufficient to
establish a real and substantial connection where the damage occurred in the jurisdiction but
the alleged wrongdoing occurred outside of the jurisdiction.
The Court further held that Default Judgment 2 did not survive bankruptcy because there was
no clear finding that the Defendant obtained the property by deceit.
The Applicant applied to settle the minutes of a previous Order resulting from a hearing in
which the Respondent was represented by two law firms. In the previous hearing, the
Respondent’s first law firm was seeking redaction from the proceedings of materials filed in an
Irish Court. The Respondent’s second law firm was seeking leave to have the Respondent
examined by way of written interrogatories rather than in person.
On receiving the Decision from the previous hearing, the Applicant’s lawyer drafted the
proposed form of Order for Costs, which included double Costs on the basis of a Calderbank
letter. The Respondent’s law firm dealing with the redaction Application promptly consented to
the Order. The law firm dealing with the interrogatories Application did not provide a response.
Pursuant to Rule 9.2(2)(c), the Applicant’s lawyer waited 10 days before sending the proposed
form of Order to the Court for signature.
The firm dealing with the interrogatories Application subsequently objected to the Order for
Costs. First, the firm argued that because the Applications brought by the first and second law
firm were intertwined, there should really be only one set of Costs. Second, the firm argued
that the letter the Applicant purported to rely on as a Calderbank offer, could not be properly
characterized as a Calderbank letter and therefore should not have attracted double Costs.
The Court held that when determining Costs, it may consider whether any non-privileged
settlement discussions should be taken into account. This was the same whether the
discussions occurred formally as outlined in the Rules, or informally. The Court held, in this
case, that the Applicant was entitled to be paid double Costs for the interrogatories Application.
The Court then reviewed whether there should only be one set of Costs awarded. The Court
held that although there was a common objective behind the applications made by the law
firms, two separate Applications were made for two separate issues. Each required and
deserved separate treatment. Thus, two sets of Costs were warranted.
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BODKIN LEASING CORPORATION V MIGHTY MOOSE HOLDINGS LTD, 2014 ABQB 280 (MASTER
PROWSE)
The Plaintiffs commenced an Action against the Defendants due to the Defendant’s default of a
financing lease for a semi-trailer truck. The Plaintiffs had seized and sold the vehicle and applied
the net proceeds to the debt, and then sued for the balance owing. The Defendant lessees were
noted in default. The Plaintiff applied ex parte to the Court for Judgment pursuant to Rule 3.37.
The Court adjourned the ex parte Application and requested written argument on the issue of
whether a portion of the amount being claimed was an unenforceable penalty. Following a
review of the written argument, and citing prior Alberta case law, Master Prowse held that the
acceleration clause was arbitrary, unconscionable, and an unenforceable penalty. The
GLOBAL FIRST LTD V 1237007 ALBERTA LTD, 2014 ABQB 288 (BORROWS J)
In this Application, the Plaintiffs sought an adjournment of Trial, and the Defendants resisted.
Two Actions were scheduled to be tried together during an eight day Trial starting on May 20,
2014. The Plaintiffs in both actions sought an adjournment, despite the fact that a Confirmation
of Trial Date Form had already been submitted pursuant to Rule 8.7. This Application was heard
12 days before the Trial was scheduled to commence. The reason that the Plaintiffs sought an
adjournment was to prepare an expert rebuttal report.
Several months earlier, the parties had submitted a Form 39 Confirmation of Trial Date,
notwithstanding the fact that the requirements of Part 5 Division 2 had yet not been
completed. The form stated:
… we are ready to proceed with the trial on the scheduled date of May 20, 2014
save for the requirements set out in Part 5, Division 2 of the Alberta Rules of
Court. However, counsels (sic) for the Plaintiffs and Defendants, in both actions
above, agree to proceed with the scheduled trial date and permit the procedure
set out in Part 5, Division 2 of the Alberta Rules of Court to be conducted in the
interim period prior to the scheduled trial date…
Approximately 3 weeks before Trial, the Plaintiffs received the Defendant’s expert’s report.
The Plaintiffs claimed that the report had been expected months earlier, and that it was clear
from the report that a rebuttal report would be needed, and the Plaintiffs would not have
enough time to prepare one.
Counsel for the Defendants stated that the Plaintiffs knew that an expert’s report was coming,
and did nothing until after the report was received to suggest that the delay was a problem.
The Defendants submitted that the Plaintiffs should be forced to go ahead with the Trial.
After reviewing the circumstances, Burrows J. determined that justice required the Plaintiffs
have the chance to marshal evidence to respond to the expert’s report they had received, and
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that the time remaining before the scheduled Trial date was not sufficient for that purpose. He
noted that the Defendants would suffer little prejudice as a result of the delay.
Borrows J. reprimanded counsel for both parties for failing to be ready for Trial despite
submitting a Confirmation of Trial Date Form. He stated that normally “it is reasonable for court
officers to schedule scarce judicial resources in reliance on lawyers’ representations” and
normally “lawyers do not make such commitments unless they are sure they can meet them”.
Borrows J. further noted that the situation was a frustrating one, since “[o]ther litigants who
might have secured a slot on the crowded court schedule will continue to wait”.
CANADIAN NATURAL RESOURCES v SHAWCOR LTD, 2014 ABCA 289 (FRASER, CONRAD and
WATSON JJA)
This Appeal primarily reviewed Part 5 of the Rules relating to the content of an Affidavit of
Records where a party claimed privilege. The Action was in respect of a claim for damages from
Canadian Natural Resources Limited (“CNRL”) having to replace a pipeline, designed and
constructed by ShawCor Ltd. (“Shaw”), following a well blowout.
Shaw applied for an Order that CNRL provide a further and better Affidavit of Records because
CNRL had allegedly not disclosed all of the records in its possession in a number of critical areas.
The main issue turned on disclosure of evidence relating to CNRL’s testing and investigation of
the pipeline after February 4, 2009, the date on which CNRL established a protocol to funnel all
reports and communications to the legal department. It claimed that any records created after
this date were subject to solicitor-client and/or litigation privilege. Shaw contended that CNRL
made an improper “blanket” claim of privilege, failing to describe each record or privilege
claimed. CNRL argued that the case of Dorchak v Krupka (1997), 196 AR 81 (ABCA) (Dorchak),
remains the law with respect an Affidavit of Records, which does not require a description of
the records claimed to be privileged. Shaw’s Application was dismissed by the Case
Management Justice and Shaw appealed.
The Court held that the Rules must, like a provision in a statute, be read in a grammatical,
purposive and contextual manner. Doing so promotes access to justice, and is further
supported by the foundational purpose in Rule 1.2 and the intended purpose of Part 5, as
expressed in Rule 5.1. The Rules reflect the cultural shift to create an environment promoting
timely and affordable access to justice. This requires the Rules to be interpreted in a manner
that maximizes the ability of opposing counsel or parties to resolve disputes over privilege and
minimize the time and expense of taking further legal steps.
The primary Rules relevant to an Affidavit of Records are Rules 5.6, 5.7 and 5.8, and these must
be read together. Rule 5.7 was intended to apply to all relevant and material records, even
those a party objects to produce. Thus, in an Affidavit of Records, a party must number all
records in a convenient manner and briefly describe them, regardless if there is a single record
or a bundle. If a party objects to produce a prima facie producible record pursuant to Rule 5.8,
it must identify the particular ground(s) of the objection with respect to each record or bundle
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in order to assist the other parties in assessing the validity of the claimed privilege. This means
the party claiming privilege must do two things:
1.
state the actual privilege being relied upon with respect to the particular
record (or bundle); and
2.
describe the record in a way that, without revealing information that is
privileged, indicates how the record fits within the claimed privilege.
The Court also found support for this conclusion by referring to the format of Form 26 set out in
Schedule A. While the format is not strictly binding, as per Rule 13.16, Form 26 provides a list of
examples of privilege followed by a colon. This suggests that a party is expected to provide
more detailed information once citing the privilege claimed.
The Court rejected Dorchak as authority on this issue because it was decided under a different
set of Rules relating to disclosure, and those Rules have now been replaced. This new
interpretation of the Rules regarding disclosure is also consistent with other jurisdictions and
the evolving trend in Canada towards open disclosure.
CNRL suggested that it was unnecessary to require a description of the records claimed to be
privileged because the Rules provide for several options in addressing whether privilege has
been properly claimed. The Court rejected this suggestion, stating that the purpose of providing
a brief description is to obviate the need to seek a remedy under these other Rules.
Ultimately, the Court held that CNRL’s Affidavit of Records inadequately described the
documents claimed to be privileged and directed CNRL to prepare a new or supplementary
Affidavit in compliance with the Rules and its Order. With regard to the privilege claimed on
reports of CNRL’s testing and investigation of the pipeline after February 4, 2009, the Court
held that the dominant purpose of creating these reports was not necessarily for litigation: the
mere fact that a lawyer becomes involved is not automatically controlling. Without further
information from CNRL in the Affidavit of Records as to what records were created and for what
purpose, they could not fall within solicitor-client or litigation privilege.
ARABI V ALBERTA, 2014 ABQB 295 (GILL J)
In 2012, the Plaintiff was facing nine criminal charges, including counselling and coercing child
prostitution, sexual assault, assault with a weapon, production and possession of child
pornography and unlawful confinement. Of the nine charges, the Plaintiff was found guilty of
assault and possession of child pornography. During those proceedings it was alleged that the
Plaintiff was threatening witnesses with bodily harm. The Plaintiff was charged and convicted of
three counts of attempt to obstruct justice via interference or intimidation and four counts of
uttering a threat to cause death or bodily harm. The civil action brought by the Plaintiff was
based on wrongs he alleged occurred to him in the criminal proceedings.
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The Plaintiff named various Defendants, including members of the Edmonton Police Service,
Edmonton Remand Centre employees, federal Crown Prosecutors, the Chief of the Edmonton
Police Service, his lawyers from the criminal proceedings and members of the Law Society.
All of the Defendants sought to strike the Pleadings and, in the alternative, an Order requiring
the Plaintiff to pay $150,000 in Security for Costs. The Court held that the Action was (a)
factually and legally hopeless; (b) an abuse of process; and (c) frivolous and vexatious litigation.
The Action was struck and the Court held if it erred in striking the claim that Security in the
amount of $150,000 should be paid into Court by the Plaintiff.
(MASTER HANEBURY)
Upon default by the mortgagor, the Royal Bank of Canada (“RBC”) commenced a foreclosure
Action and obtained a final Order of foreclosure. After the foreclosure Order was obtained, RBC
discovered that the mortgage may have been obtained fraudulently by several parties colluding
to inflate the price of the property which was in fact worth much less. RBC then commenced
two suits:
1.
An Action against the mortgagor, alleging misrepresentation, breach of
contract and negligence; and
2.
An Action against the lawyer who acted for RBC with regard to the
mortgage and the real estate appraisers, alleging negligence and breach of
contract.
The mortgagor, the lawyer who acted for RBC during the mortgage and the appraisers brought
Applications for Summary Dismissal of the Actions, pursuant to Rules 7.2 and 7.3, which were
heard together. The lawyer and the appraisers argued that once RBC obtained an Order of
foreclosure, it no longer had a claim against them because the debt was extinguished pursuant
to section 48 of the Law of Property Act, RSA 2000 c L-7 (“LPA”). Alternatively, they argued that
the Action was a collateral attack on the Order for foreclosure. On a similar basis, the
mortgagor sought to dismiss the claim against him by arguing that the claim was barred as a
result of merger or res judicata. The mortgagor also argued that there was no evidence that he
acted fraudulently and thus could not be held liable on the third party claim brought by the
appraisers.
The Court held that, while section 48 of the LPA prohibits the ability to sue under the covenant
to pay in contract, it does not bar a claim in tort. Therefore, the claims against the mortgagor,
the lawyer and the appraisers could not be dismissed on that basis.
The Court further held that the doctrines of merger, res judicata and collateral attack were
inapplicable. A claim under a mortgage against the property alone is different than a claim in
tort, and thus merger does not apply. The issues and causes of action in a negligence action are
different than those in a foreclosure action, and thus res judicata does not apply. The claims
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made by RBC did not vary, nullify or render the foreclosure Order nonsensical, and thus did not
constitute collateral attacks.
Finally, the Court held that the evidence contradicted the assertion by the mortgagor that he
was an innocent dupe, which presented a genuine issue for trial with respect to the degree of
his participation in the alleged scheme. For these reasons, the Applications for Summary
Dismissal were dismissed.
1214777 ALBERTA LTD V 480955 ALBERTA LTD, 2014 ABQB 301 (MASTER SCHLOSSER)
Both the Plaintiffs and the Defendant sought Summary Disposition. The Plaintiffs (tenants)
sought specific performance for renewal of the lease with the Defendant (landlord). The
Defendant sought termination of the lease. The lease consisted of a three page hand-written
document. It was for a five-year term with a renewal for another five years. The nature of the
business was expressed as “massage therapy” and was to be operated in a “first class reputable
manner”, and the tenants were to “follow all the rules, regulations of the landlord, provincial
and municipal governments”.
Master Schlosser, citing Hyrniak v Mauldin, 2014 SCC 7, and Windsor v Canadian Pacific Railway
Ltd, 2014 ABCA 108, held that the starting point on a Summary Disposition Application is to
examine the record to see if a disposition that is fair to both parties can be made on the record.
This includes looking at the record and the dispute to decide whether it is essential to
resolution to see the witnesses. If the answer is yes then the matter must proceed to Trial. If
the answer is no then Court is to engage in the following six-step process:
1.
The Court is to presume that the best evidence from both sides is before
the Court: Canada v Lameman, 2008 1 SCR 372.
2.
The Court is to determine if any negative inferences should be drawn
from the absence of any evidence.
3.
The Court is to determine if the evidence presented is admissible.
4.
The Court must determine if there is a conflict in the evidence and, if so,
whether (a) the conflict has been resolved on cross-examination: Janvier
v 834474 Alberta Ltd, 2010 ABQB 800 or (b) whether the conflicting
evidence is purely self-serving and otherwise unsupported: Guaranty v
Gordon, [1999] 3 SCR 423.
5.
The Court must then examine the evidence. Master Schlosser cited the
recent Ontario decision of Pammett v Ashcroft, 2014 ONSC 2447 for the
proposition that the Court may assess the sufficiency and reliability of
evidence without using enhanced fact-finding powers. Also cited was
Tottrup v Clearwater Municipal District (99), (2007) 68 Alta LR (4th) 237
and Gayton v Lacasse, 2010 ABCA 123 for the proposition that assessing
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the sufficiency of the evidence will involve considering whether the issue
can be fairly decided on the factual record.
6.
The Court must then determine in relation to a Plaintiff seeking summary
disposition, whether all of the elements of the cause of action are proven
and the Defendant cannot maintain a defence; and in relation to a
Defendant seeking summary disposition, whether the Plaintiff cannot
prove an essential element of the cause of action, or whether the
Defendant has a complete defence.
The Defendant, ostensibly, took the position that the renewal was invalid as the tenants were
in default when they purported to renew the lease. However, no specific evidence of this was
provided and Master Schlosser held that the lease had been renewed.
The Defendant argued that the failure to pay rent, operating the premises for the purposes of
prostitution and issues with the HVAC and sprinkler systems were all defaults by the Plaintiffs
that justified termination of the lease.
In relation to rent, Master Schlosser set out what the rent would be going forward based on the
lease, and ordered the Plaintiffs to pay arrears within 30 days or the lease would be terminated.
In relation to the use of the premises for prostitution, Master Schlosser held that the lease
speaks to legality not morality and the lease would not be terminated based on the state of the
law (prostitution laws being in flux) and the evidence before the Court. In relation to the HVAC
and sprinkler systems, Master Schlosser held there was insufficient evidence to determine if
there had been a breach of the lease.
The Plaintiff’s Application was granted, and the Defendant’s Application was dismissed.
SOLIS V DEL ROSARIO, 2014 ABQB 310 (LEE J)
This was an Application by the Defendant, WCB, to cancel a Notice of Appointment to Question
one of their employees, pursuant to Rule 5.19.
WCB had brought a Summary Dismissal Application against the Plaintiffs. The Application was
heard by Lee J. on February 7, 2014. Lee J. reserved his Decision, which Decision was still
outstanding at the time the Application was heard.
The Defendants argued that the Questioning was premature and improper at this time. If
Summary Dismissal was granted, the Questioning would have been unnecessary. The Court
agreed, and after reviewing Rule 5.19 and Rule 1.2, cancelled the Appointment for Questioning
pending the outcome of the Summary Dismissal Application.
RICHTER V CHEMERINSKI, 2014 ABQB 322 (VEIT J)
By way of a Consent Order endorsed by Sanderman J., the Respondent was to construct a
roadway across the Applicant’s property to provide access to a subdivided parcel of land for
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farming operations. A dispute arose over the specifications and location of the proposed
roadway and the Applicant brought three Applications for Contempt against the Respondent
for failure to comply with the Consent Order.
Justice Veit noted that the standard of proof to establish civil contempt is only on a balance of
probabilities, but held that the Consent Order was not sufficiently clear, precise and
unambiguous to ground an Application for Contempt. The Consent Order lacked sufficient
clarity with respect to the location and specifications of the roadway and there was conflicting
Affidavit evidence on whether the parties had reached an agreement.
The Respondent cross-applied under Rule 9.14 to vary the Consent Order to approve his
proposal of the roadway. Veit J. dismissed the Cross-Application and emphasized that Rule 9.14
could only be invoked to correct a slip or a failure to reflect the intention of the Court when it
granted the Order. The Respondent’s proposal would have involved a more substantive change
to the Consent Order. In any event, Rule 9.16 requires the Judge or Master who granted the
original Order to vary it under Rule 9.14. Therefore, such an Application should be made to
Sanderman J.
1214934 ALBERTA LTD V CLEAN CUT LTD, 2014 ABQB 330 (VEIT J)
This was a Summary Judgment Application relating to the purchase of a business. The Court
attempted to determine whether the case was proper for Summary Judgment. The Applicant
argued that the case could properly be determined on the record, as the contract in question
contained an entire agreement clause.
The Respondents argued that a full Trial was required, as they sought to introduce parol
evidence of collateral representations, which evidence constituted an exception to the parol
evidence Rule, and that evidence of such collateral representations raised issues which required
a Trial.
The Court summarized the recent developments in the area of Summary Judgments as follows:
… the Supreme Court of Canada, and our Court of Appeal have recently insisted
that a culture shift is required to promote timely and affordable access to our
civil justice system and that this culture shift affects the way in which courts
assess applications for summary judgment: Windsor, Hryniak (sometimes
referred to as Combined Air Mechanical Services Inc. v Flesch). As our Court of
Appeal put it in Windsor: “The modern test for summary judgment is therefore
to examine the record to see if a disposition that is fair and just to both parties
can be made on the existing record.”
After reviewing the facts, Veit J. determined that this case was appropriate for Summary
Judgment. The Court considered the collateral representations, and determined that they were
not material and that the Respondents would have entered the contract regardless of whether
those representations were made or not. Therefore, no Trial was needed on the issue of
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collateral representations, and the matter could fairly be decided on the record. Accordingly,
Veit J. granted Summary Judgment in favour of the Applicant.
SOBEYS WEST INC V ALBERTA COLLEGE OF PHARMACISTS, 2014 ABQB 333 (GILL J)
The Defendant College of Pharmacists decided to amend their Code of Ethics to prohibit
inducements and loyalty programs at pharmacies across Alberta. The Plaintiffs sought an
Interim Order staying the Defendant’s decision to amend their Code of Ethics pending the
hearing of the Plaintiffs’ Application for Judicial Review of that decision. Justice Gill considered
the test for granting a Stay in such circumstances. Gill J., citing Rule 3.23, noted that the test for
granting a Stay pending determination of a Judicial Review had not been changed from that
under former Rule 753.15(1). Justice Gill stated that the test to be applied under the prior Rule
was the tri-partite test for an interim injunction as set out by the Supreme Court of Canada in
RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311 at 334:
1. A preliminary assessment must be made of the merits of the case to ensure
there is a serious issue to be tried;
2. It must be determined whether the applicant would suffer irreparable harm
if the application were refused; and
3. An assessment must be made as to which of the parties would suffer greater
harm from the granting or refusal of the remedy pending a decision on the
merits.
His Lordship noted that the threshold on the first part of the test is low, and there are no
specific requirements which must be met to satisfy it. The Court should make a preliminary
assessment of the merits without a prolonged examination. Gill J. noted that it was not
necessary for the Court to make a preliminary assessment of the outcome of the Judicial
Review. Justice Gill was satisfied that the Plaintiffs had met the relatively low threshold for a
establishing that there was serious question to be tried. With respect to the second element,
irreparable harm, Justice Gill stated that the term “irreparable” referred to the nature of the
harm suffered rather than its scale. Gill J. was satisfied that the Plaintiffs would suffer
irreparable harm if the Court were to dismiss the Application. With respect to the third branch
of the test, the balance of convenience, Justice Gill observed that, in assessing the balance of
convenience, the Court must determine which party will suffer greater harm from granting a
refusal of the stay pending a decision on the merits. The factors will vary in each case. His
Lordship noted that the inducement provisions must be assumed to benefit the public interest
and the Court should take that into account when considering the Stay. Upon weighing the
balance of convenience, Justice Gill held that the balance favoured granting the Stay.
Accordingly, the Plaintiffs met the test for the Stay and the implementation of the inducement
prohibitions was stayed pending the resolution of the Judicial Review Application.
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PRUNKL V TAMMY JEAN’S DINER LTD, 2014 ABQB 338 (MANDERSCHEID J)
Devon Hotel Ltd., 836618 Alberta Ltd., and 836618 Alberta Ltd. operating as Devon Hotel Ltd
(the “Applicants” or “Owners”) applied for an Order for Summary Judgment against Lorne
Prunkl (the “Plaintiff” or “Respondent”), pursuant to Rule 7.3 of the Rules of Court. The primary
issue was whether the Applicants were entitled to Summary Judgment dismissing the Plaintiff’s
claim against them on the basis that there was no merit to the claim and there were no genuine
issues for Trial.
The Applicants were owners of a property, part of which was leased by another Defendant,
Tammy Jean’s Diner Ltd. (the “Diner”). The Plaintiff was injured on the Diner’s property. The
Diner had not obtained liability insurance as required, and the Plaintiff sued the owners of the
property and the lessee Diner (the “Defendants”).
The Applicants stated that they were not occupiers of the property as defined under the
Occupiers’ Liability Act, RSA 2000, c O-4. The Applicants also argued that insurance was optional
and for their own benefit, and there was no requirement for them to purchase a policy of
comprehensive general liability indemnifying the lessee Diner. The Plaintiff countered by stating
that the Applicants had control over the premises. The Plaintiff also argued that where the
lessee Diner failed to obtain insurance coverage, the Applicants were required to arrange for
insurance coverage to prevent the risk of loss.
After canvassing the law, the Court held that there was no satisfactory or clear evidence on the
issue of whether the Owners were in sufficient control of the premises, thus making the matter
unsuitable for summary disposition. The Court also held that, given the facts of the case and the
interpretation of the lease, there was still unanswered questions and issues which required
further evidence for the Court to make a fair and just disposition of the matter. As a result, the
Court concluded that it was unable to make a determination that there was no merit to the
Plaintiff’s claim in the Action. The Court denied the Application for Summary Judgment.
DECHANT V REBER, 2014 ABQB 342 (ANDERSON J)
The Defendant was fully successful at Trial over disputed land valued at $1.2 million. The
Defendant had served a Formal Offer to Settle on January 2, 2013, which the Plaintiff did not
accept. At Trial, the Defendant fared better than the Formal Offer. In accordance with Rule
4.29, the Defendant sought double Costs. The Plaintiff took no issue with respect to the
Defendant’s entitlement to double Costs after January 2, 2013. The issue was that the
Defendant sought Costs pursuant to Column 4 of the Tariff, and alternatively an amount of
Costs greater than Column 1. The Plaintiff argued that Column 1 should apply because the
Action was for specific performance and there was no claim for damages.
The parties agreed that a number of factors should be considered in determining a Costs award,
including the degree of success of each party, the importance of the issues, the complexity of
the issues and the conduct of the parties that tended to shorten the Trial. While the Action was
not particularly complex, Justice Anderson considered the complete success of the Defendant
and the importance of the issue to the Defendant, countered against a relatively simple two
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day Trial with two documents and three witnesses, and held that the Defendant should have its
Costs as against the Plaintiff in accordance with Column 2 of Schedule C. In addition, the
Defendant was awarded double Costs under Column 2 for any steps taken after January 2,
2013.
KENT V POSTMEDIA NETWORK INC, 2014 ABQB 343 (SULLIVAN J)
The Plaintiff obtained an Order which stated, inter alia, that the Defendant, Postmedia, would
preserve for disclosure and production all relevant and material records related to the Action.
For a short period of time, Postmedia “automatically” deleted 30 day old logs, which occurred
in their system as a matter of routine. The evidence demonstrated, however, that the records
were available from another source.
The Plaintiff sought an Order declaring Postmedia to be in civil contempt. Sullivan J. reviewed
Rule 10.52, and stated that, in order to make a finding of civil contempt, the Court must first
find “(1) an existing requirement of the Court; (2) notice of the requirement to the person
alleged to be in contempt; and (3) an intentional act (or failure to act) that constitutes a breach
of the requirement”.
Upon reviewing the facts, Sullivan J. concluded that the Defendants acted “reasonably and with
diligence to carry out the Order” and that there had “not been any intentional destruction of
material upon which [Sullivan J.] could make a finding of contempt”.
NORTHBRIDGE INDEMNITY INSURANCE CORPORATION V INTACT INSURANCE COMPANY,
2014 ABQB 345 (SULLIVAN J)
The underlying dispute involved the development of a condominium project (“Centuria
Project”). A condominium neighbouring the development site (“Central Park Manor”) sued for
damages it sustained from a sink-hole on the lands of the Centuria Project.
The Applicant, Northbridge Indemnity Insurance Corporation (“Northbridge”), was one of the
insurers of the Defendant owner of the Centuria Project, Lake Placid Investments Inc.
Northbridge filed an Originating Application, pursuant to Rule 3.2(1), seeking contribution from
Intact Insurance Company (“Intact”) and Zurich Insurance Company (“Zurich”), the insurers of
the other Defendants involved in the Centuria Project. The issue before the Court was whether
the Originating Application was the proper way to resolve the coverage dispute.
Sullivan J. held that the Applicant had followed the proper process by way of Originating
Application. There was no substantial factual dispute, as argued by Intact and Zurich, pursuant
to Rule 3.2(2)(a). There was no dispute that all three insurers insured the Centuria Project; the
dispute was between the insurers and the law appeared clear with respect to the legal issues
between the parties. Foundational Rule 1.2(1) was also referenced to support the decision that
an Originating Application was the most timely and cost-effective resolution of the dispute.
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KRIETER V ALBERTA, 2014 ABQB 349 (MASTER HANEBURY)
Various Defendants applied to have the Action struck for long delay. The Plaintiffs argued that a
Notice to Admit and the Reply, from one of the Defendants, advanced the Action. Additionally,
the Plaintiffs argued that the Notice to Admit and the Reply were proceedings which warranted
the Action continuing.
The Reply was a complete denial of the facts sought to be admitted, and the Court held that a
denial of all the admissions sought under a Notice to Admit does not significantly advance an
Action. The Notice to Admit and Reply were both served before the drop dead date, and thus
were not proceedings taken since the delay. The Application to strike was granted.
ALBERTA TREASURY BRANCHES V ELABORATE HOMES LTD, 2014 ABQB 350 (NIELSEN J)
The Defendant condominium developer became insolvent and a Receiver was appointed to
market the Defendant’s assets and property pursuant to a Receivership Order. One of the
secured creditors, Alco Industrial Inc. (“Alco”), held a second mortgage on the condominium in
the amount of $1,075,000. The Receiver was advised that the appropriate contact at Alco for
communications with respect to the insolvency and related creditor information was the
President of the company, and Alco provided the email address for the President. The Receiver
served Alco by email with notices relating to the Receiver’s status, communications with
respect to the receivership and notice of an Order Approving Sale. The President of Alco agreed
that he had received the emails but had not opened them since he was unfamiliar with
computers. The sale of the Defendant’s assets proceeded and Alco ultimately received a sum
which was insufficient to pay out the mortgage. Alco sought leave to file a Statement of Claim
against the Receiver for gross negligence or wilful misconduct in handling the sale of the
Defendant’s assets and property.
Nielsen J. considered Rules 9.15 and Rule 11.21 with respect to service via email. Justice Nielsen
noted that it was reasonable to infer that whoever provided the email address to the Receiver
was not aware that the President of Alco would not access his email; and, it was also
reasonable to infer that the President of Alco would not have an email address if he was
“totally computer illiterate”. Justice Nielsen stated that Rule 11.21 requires that the recipient
specifically provide an address, and that there was nothing in the material before the Court to
suggest that the Rule’s requirements were not met. Justice Nielsen also noted that, if Alco
wished to argue that the Order Approving Sale had been obtained without notice, Alco could
have applied pursuant to Rule 9.15 to vary or discharge the Judgment or Order due to lack of
notice. His Lordship observed that an Application under Rule 9.15 must be made within 20 days
after the service of Order on the Applicant, or the date the Order first came to the Applicant’s
attention, whichever occurred first. Justice Nielsen commented that Alco was well aware of the
Application for the Order Approving Sale and took no timely steps to set it aside upon becoming
aware of it. Justice Nielsen also noted, that electronic service is a reflection of the practical
realties in the area of bankruptcy and insolvency. Justice Nielsen held that there was no factual
basis to suggest that the Receiver was either grossly negligent or that it willfully misconducted
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itself in effecting service of the documents by email. Alco’s Application for leave to file the
Statement of Claim against the Receiver was dismissed.
NASH V SNOW, 2014 ABQB 355 (TOPOLNISKI J)
The Defendant applied to strike the Plaintiff’s claim for long delay. The Application turned on
whether a settlement letter sent nine weeks before the “drop dead date” and an 11th hour
Notice to Admit Facts qualified as having “significantly advanced” the Action, which was
otherwise dormant for more than four years.
Justice Topolniski discussed transitional Rule 15.4, which came into force on November 1, 2010
and was in effect until November 1, 2013, the date the Notice to Admit was served. Rule 15.4
fixed the “drop dead date” at the earlier of five years after “the last thing done that significantly
advanced” the Action, or three years following November 1, 2010, the coming into force date of
the new Rules. Under the transitional Rule, if the last thing done to significantly advance the
Action was prior to November 1, 2010, the drop dead rule would be triggered on November 1,
2013, at the very latest. Rule 4.33 provides that if three or more years have passed without a
significant advance in an Action the Court must dismiss the Action as against the Applicant.
Justice Topolniski noted that Rule 4.33 is mandatory. Subject to agreement of the parties to the
delay or another of the exceptions listed in subsection (1), there is no discretion to save a
dormant Action.
Topolniski J.’s interpretation of Rule 4.33 began with reference to the purpose of the Rules and
Rule 1.7, which states that interpretation of the Rules requires a purposive and contextual
approach. While many Courts may describe the purpose of Rule 4.33 and its predecessors in
different ways, its underlying purpose is always the same: to advance lawsuits and put an end
to flagging litigation. Pursuant to Rule 1.2(1), the purpose of the Rules is to provide a means by
which claims can be fairly and justly resolved in or by a court process in a timely and cost
effective way.
In interpreting Rule 4.33, Topolniski J. noted the absence of the words “the last thing” or
“step”, which necessarily modifies the focus of the purposive and contextual assessment. The
issue is “advancing” or moving the action and the issues in dispute forward. Accordingly, the
Court must take a macro-view of what transpired in the three year window. This approach does
not affect the view that there is no difference between the words “materially advance” (in
former Rule 244.1) and “significantly advance”. However, it may affect the applicability of
certain pre-November 1, 2013 authorities, particularly those that applied an analysis based on
categories rather than functional impact. Topolniski J. observed the culture shift called for in
Hryniak v Mauldin, 2014 SCC 7, and Windsor v Canada Pacific Railway Ltd, 2014 ABCA 108,
which supported the Plaintiff’s contention that the end goal of “significant advancements”
under Rule 4.33 is not necessarily trial, but rather resolution. Topolniski J. agreed.
Topolniski J. found that neither the settlement offer nor the counter-offer of Discontinuance on
a without costs basis reset the clock on delay. While a significant advancement towards
resolution can mean advancement to settlement, a functional analysis mandates something
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more than a bare offer to settle in the three year window; it must result in progress of some
sort in the Action.
Topolniski J. found that the Plaintiff’s 11th hour attempt to breathe life into her lawsuit by
serving the Notice to Admit on the drop dead day was too late. The Defendants made no
admissions, deemed or actual. Rather, the response was a firm objection to the Notice to Admit
and the Motion to Dismiss, brought well within the time for responding to the Notice to Admit.
To significantly advance an Action, an admission sought from the other party must be relevant
to the issues in the litigation, and it must add something new to the proceedings. The Notice to
Admit did not significantly advance the Action, either alone or in combination with the letter.
Topolniski J. held that nothing happened in the three years preceding the drop-dead date of
November 1, 2013 which would have enabled the Plaintiff to avoid the effect of Rule 4.33. The
Defendants neither agreed to, nor acquiesced in, the delay. Accordingly, there was no option
but to dismiss the Action.
CUBBON BUILDING CENTER LTD V CONDOMINIUM CORPORATION NO 1023241, 2014 ABQB
365 (MASTER SCHLOSSER)
The Plaintiff hardware store commenced an Action against the Defendant condominium
corporation for unpaid invoices related to the supply of materials for a condominium project.
The Plaintiff’s employee deposed in an Affidavit in support of a Summary Judgment Application
that the purchases were authorized which prompted the Defendants to review their file
materials. The review revealed documents which contradicted the Plaintiff’s employee’s
evidence and the Defendants sought to use them at the Plaintiff employee’s Questioning
without showing the documents to the Affiant beforehand.
Master Schlosser considered whether the Plaintiff’s employee was entitled to see the
documents in advance. The Defendants acknowledged that they were under a continuing
obligation to disclose documents pursuant to Rule 5.10. Master Schlosser considered the
elements of Rule 5.10, noting that the Defendants had given notice that there were additional
documents as required by Rule 5.10(a). However, neither the Rule nor the principles drawn
from prior case law overruled section 22 of the Alberta Evidence Act, RSA 2000, c A-18, which
requires production before Questioning.
Master Schlosser held that the Defendant’s documents could not have been discovered with
reasonable diligence earlier in the Action; and, as the effect of disclosing the records for the
first time at the questioning would be lost “on paper”, that was not a reason to deprive the
Defendants of the advantage that might be gained from putting the substance of the records
before the witness in the Questioning on Affidavit.
STEPARYK V ALBERTA, 2014 ABQB 367 (CRIGHTON J)
The Crown brought an Application to dismiss an Action for long delay which related to alleged
abuses the Respondent was subjected to in the 1970s and 1980s while in the care of the
Alberta Government. The Application was filed on October 21, 2013 pursuant to Rule 15.4 and
Rule 4.31. Rule 15.4 had been repealed by the time the Application was heard and Rule 4.33
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was in effect, which changed the period of inexcusable delay from more than five years to more
than three years.
Crighton J. first considered which period of inexcusable delay applied to the Application and
held that, while Rule 4.33 governed the Application, transitional Rule 15.4 preserved the five
year clock and “should be interpreted to mean that the relevant period of inexcusable delay
must be determined by the date the Application was filed, not heard”. The application of Rule
15.2 did not affect this interpretation.
The Court reviewed the litigation activity from the five year period immediately preceding the
date the Application was filed to determine whether anything genuinely advanced the Action.
Crighton J. confirmed that: (i) the present approach to Rule 4.33 is a functional one with a focus
on substance and effect rather than on form; and (ii) the test under former Rule 244 still applies
to new Rule 4.31, namely that the Applicant must demonstrate an inordinate, inexcusable delay
that is likely to cause serious prejudice.
During the five year period, the acts taken primarily involved a change in representation for the
Respondent, conditional upon a successful Application for advanced Costs, and some steps
pursuant to the Application for advanced Costs. Just prior to the Application for dismissal for
long delay, the Respondent requested that a Case Management Justice be appointed. Crighton
J. stated that an Application for advanced Costs is neutral; because the Application was brought
by counsel who was not yet retained on the file, it was essentially an act taken by a third party
for funding which is neutral to the issue of advancing litigation. In the meantime, original
counsel did not cease representation and was responsible for advancing the Action. The
request for Case Management did nothing to significantly advance the Action, and given the
nature and timing of the request, it was held to be nothing more than an attempt to do
something before Rule 15.4 was repealed.
Crighton J. then considered whether any exceptions applied under Rule 4.33, specifically
whether the Respondent’s participation in the Application for advanced Costs was done for a
purpose and to the extent that warranted the lawsuit proceeding under Rule 4.33(1)(d).
Crighton J. held that it did not because the Application and the issues stood apart from the
main Action.
The Action was dismissed under Rule 4.33, but Crighton J. also analyzed the delay under Rule
4.31, which required a broader review and assessment of the entire progress of the Action from
its commencement to the date the Application was filed. The Court referred to the foundational
principles in Rule 1.2 which require “the parties to engage in purposeful, efficient, and timely
litigation”. The Action was commenced on August 31, 2001. The only step attributable to
advancing the main Action was the filing of the Statement of Defence and Affidavits of Records
in 2007. No questioning had been commenced, nor any other significant steps taken,
notwithstanding the Respondent being represented by counsel during the period of delay. Such
facts amounted to an inordinate delay which was prima facie evidence of serious prejudice. The
Respondent submitted no excuse or legitimate doubt on the question of prejudice, and
therefore Crighton J. would have also dismissed the Action under Rule 4.31.
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FRN V ALBERTA, 2014 ABQB 375 (GRAESSER J)
The Crown applied to strike the Plaintiffs’ Statement of Claim in its entirety. In the alternative,
the Crown sought to have the Action dismissed against some Defendants and have some
portions of the Statement of Claim struck.
The Crown made a number of objections to the Statement of Claim, including that large parts of
the pleadings were “irrelevant, improper, contradictory, repetitive, inflammatory, frivolous
and/or vexatious or plead facts not evidence or argument”. The Crown argued that the
pleadings offended Rule 3.68(2)(c). The Court agreed with the Crown’s argument; however, the
Court noted that the issue with striking pleadings lay entirely with the limitation period. If the
Statement of Claim was struck, the Plaintiffs would be out of time to bring a new claim on the
same matters. The Court thus held that it would be unjust to the Plaintiffs to strike the
pleadings and allowed the Plaintiffs to amend the claim to cure any deficiencies.
The Court also noted that the failure by the Plaintiffs to bring a proper claim for any financial
loss under the Survival of Actions Act, RSA 2000, c. S-27, by the executor or administrator had
been cured by Rule 2.11(e), which allowed for a litigation representative to be appointed for an
estate that has not obtained a grant under the Surrogate Rules.
SM V ALBERTA, 2014 ABQB 376 (GRAESSER J)
The Plaintiff, SM, commenced an Action in her own right and as litigation representative for the
estate of her deceased son, CM. CM was apprehended by Child and Family Service and placed
with two of the Defendants; he was assaulted by one of the Defendants and later died of his
injuries. The Plaintiff claimed against the Crown and two individual Defendants in negligence,
and alleged that her own involvement with Child and Family Services as a child resulted in her
ongoing difficulties and lack of parenting skills. The Defendant Crown sought to strike the entire
Amended Statement of Claim or significant parts of it. The Crown argued that it was plain and
obvious that the claims had no reasonable prospect of success. The Plaintiff argued that the
Court should be slow to strike or limit claims when they relate to important or serious issues of
law, and the expense and inconvenience of defending a complex action was not a ground to
strike out a pleading. Justice Graesser considered each of the Crowns specific complaints with
respect to the Amended Statement of Claim, striking many of the impugned claims.
Justice Graesser considered how the Foundational Rules, specifically Rule 1.2, dovetailed with
the request for striking particular causes of action from an Amended Statement of Claim.
Graesser J. held that in the circumstances of this claim, it was difficult to see how the Action
was served by expanding the number of Defendants and adding an “unnecessary level of
complexity to the claims”. Justice Graesser held that the number of Defendants should be
narrowed and stated that:
Facilitating the quickest means of resolving the claims at the least expense is not
served by preserving claims which, on the present pleadings are hopeless.
376
The Crown sought to have several portions of the Amended Statement of Claim struck on the
basis that they were argument or meaningless facts and allegations. Justice Graesser
considered Rule 3.68(2)(c) as the basis for striking irrelevant and embarrassing allegations. His
Lordship agreed with the Crown and held that the Amended Statement of Claim should be
further amended to remove the allegations which were “embarrassing, irrelevant, legal
conclusions and argument”. Justice Graesser concluded that the Rules of Court sought to have
parties identify the real issues in dispute quickly and to manage the litigation together within
the language of Rule 1.2.
His Lordship observed that the failure to bring a proper claim for any financial loss to CM under
the Survival of Actions Act, RSA 2000, c. S-27, by his executor or administrator, had been cured
by Rule 2.11(e) which allowed for a litigation representative to be appointed for the estate of a
person for whom probate had not yet been completed. Justice Graesser noted that a failure to
appoint a litigation representative under Rule 2.12 was likely an irregularity.
GULEVICH V MILLER, 2014 ABQB 377 (SULLIVAN J)
The Defendant brought an Application seeking an Order pursuant to Rule 11.31 setting aside
service of the Plaintiffs’ Statement of Claim, as well as a direction that the Court lacked
jurisdiction to entertain the Action. The Plaintiff had filed a Statement of Claim seeking
damages against Dr. Miller, a radiologist in Ontario who failed to diagnose the Plaintiff’s
malignant brain tumour. The Plaintiff filed an Amended Statement of Claim that asserted
grounds for service outside of Alberta, namely that her claim was governed by the law of
Alberta and related to a tort committed in Alberta.
The sole issue before Justice Sullivan was whether the Action should be allowed to proceed in
Alberta. The relevant question was whether the requirements for service ex juris under the
Alberta Rules of Court were met. Rule 11.25 governs the service of commencement documents
ex juris. A commencement document may be served outside Alberta but within Canada only if
(a) a real and substantial connection exists between Alberta and the facts on which a claim on
the action is based, and (b) a commencement document discloses the facts in support and
specifically refers to the grounds for service of the document outside Alberta and in Canada.
Pursuant to Rule 11.25(3)(c) and (d) other instances where a real and substantial connection
are presumed to exist include where the claim is governed by the law of Alberta, or relates to a
tort committed in Alberta.
The Plaintiffs failed to establish an arguable case that their cause of action was sufficiently
connected to Alberta for the Court to assume jurisdiction. Accordingly, the Court lacked
jurisdiction to entertain the Plaintiffs’ Action, and Justice Sullivan set aside the service ex juris of
the Statement of Claim pursuant to Rule 11.31(1)(a).
CARROLL V ATCO ELECTRIC LTD, 2014 ABQB 378 (SHELLEY J)
The Applicants (Defendants) appealed a Master’s Order requiring their executive to attend one
day of Questioning. The Respondent (Plaintiff) took the position that the executive had
knowledge of the reason behind his dismissal and not being awarded a performance bonus.
377
After reviewing the facts of the case, the Court held that the executive had or appeared to have
relevant and material information acquired as a result of her position with the Applicants (Rule
5.17(1)). The Court found that the executive was personally involved and played a hands-on
role in the process that led to the Respondent not being awarded the bonus. Thus, the Court
agreed with the Master’s Decision that the Respondent was entitled to question the executive.
With respect to whether the executive should be excused from having to attend Questioning
pursuant to Rule 5.3(1)(a), the Court stated that it was not satisfied that the Respondent was
acting in a manner that was vexatious, abusive, oppressive or improper. The Court was also not
satisfied that the expense, delay or difficulty for the executive would outweigh the likely benefit
gained from Questioning (Rule 5.3(1)(b)). The Court upheld the Master’s Order for the
executive to attend Questioning and awarded the Respondent its Costs on the Appeal.
BANSAL V FERRARA PAN CANDY CO INC, 2014 ABQB 384 (VEIT J)
The Defendants brought an Application requesting that the Court order that it did not have
jurisdiction to deal with the Action. Alternatively, the Defendants argued that, even if the Court
had jurisdiction, Alberta was not the most appropriate forum.
The Plaintiffs took the position that because one of the Defendants had taken additional steps
in Alberta, including having the original lawyer removed, the Defendants had attorned to
Alberta. The Court noted that, although Rule 11.31 stated what is not required to constitute an
attornment to the jurisdiction, it did not state what actions constitute attornment. The law firm
representing the Plaintiffs had previously acted for the Defendants and potentially had
confidential information. Thus, the Court held that making an Application to remove the law
firm did not mean that the Defendants had attorned to the jurisdiction.
The Court then dealt with whether Alberta had original jurisdiction as a result of a contract.
Justice Veit agreed with the Defendants that Rule 11.25(3) provided some guidance as to what
constituted a real and substantial connection. The Court (following Club Resorts Ltd v Van
Breda, 2012 SCC 17) noted that there were four presumptive connecting factors in contract
cases in Alberta:
1.
The defendant is resident in Alberta;
2.
The defendant carries on business in Alberta;
3.
A contract or alleged contract is made, performed or breached in Alberta;
and,
4.
A tort connected with the contract was committed in Alberta.
Because the Plaintiffs alleged that a contract was made in Alberta, the Court had jurisdiction to
hear the matter in Alberta. However, based on the facts the Court stated five reasons why
Alberta was not the most appropriate jurisdiction:
378
1.
The corporate Defendant 1163196 Ontario Inc. and the individual
Defendant Sarbjit Singh were residents and would have committed the
conspiracy in Ontario. Furthermore, Illinois could also have been the
original jurisdiction because the Defendants Ferrara Pan Candy Co. Inc.
and Salvatore Ferrara II were residents there;
2.
Many of the contractual relationships occurred outside of Alberta;
3.
Only one of the Plaintiffs was a resident of Alberta. The corporate
Plaintiff was not registered in Alberta and its status as an extra-provincial
corporation could not be revived;
4.
The Statement of Claim demonstrated that a major part of the Plaintiffs’
claim centred on the alleged conspiracy to cause economic harm. None
of the conspiracies were committed in Alberta; and
5.
The issue of whether the Plaintiffs would lose judicial advantage if they
were deprived of an Alberta action was not fully explored at the hearing.
In summary, the Court held that although Alberta had jurisdiction, Ontario and Illinois had
greater substantial connection to the dispute than Alberta.
TRUEHOPE INC V STRINGAM, 2014 ABQB 386 (MILLER J)
The Plaintiff (the “Supplier”) entered into a Marketing and Distributorship Agreement (“MDA”)
with the Defendants (the “Distributor”) who subsequently assigned their rights under the MDA
to the remaining Defendants (the “Assignees”). The dispute regarded which of the parties had
the right to market, sell and distribute the Supplier’s nutritional products in the United States.
The Assignees and the Supplier both brought Applications for Summary Judgment, the issue
being whether the MDA was validly assigned. The Distributor did not participate in the
Summary Judgment Applications.
The Court referred to Rules 7.2 through 7.4 which set out the Summary Judgment procedure
and stated that the test to be applied is whether it is plain and obvious that the Action cannot
succeed. Miller J. held that the plain and ordinary meaning of the language in the MDA required
the consent of both the Distributor and the Supplier be obtained for any valid assignment. The
undisputed evidence was that neither the Assignees nor the Distributor ever contacted the
Supplier to obtain its permission for the assignment. Further, the evidence put forward by the
Assignees indicated that the Distributor did not contract out of their contractual rights and
obligations, but were working in partnership with the Assignees. Therefore, Miller J. held that it
was plain and obvious that there was no assignment of the MDA and granted the Supplier’s
Application for a declaration that the assignment was null and void. The Summary Judgment
Application brought by the Assignees was dismissed.
379
CHUTSKOFF V BONORA, 2014 ABQB 389 (MICHALYSHYN J)
The Plaintiff claimed against the Defendant lawyers and law firm for allegedly compromising his
ability to respond to the registration of a Saskatchewan Judgment in Alberta. The primary issue
was whether the Plaintiff and the litigation were vexatious. A secondary issue of the Plaintiff’s
competence to conduct his own litigation was raised by the Plaintiff himself.
Justice Michalyshyn reviewed the Plaintiff’s extensive litigation history in both Saskatchewan
and Alberta. The Plaintiff had been the administrator of an estate against which a claimant
obtained Judgment in Saskatchewan. That litigation led to a series of reported Judgments and
Appeals. The Plaintiff also initiated complaint proceedings against lawyers and judges. The
Claimant then passed away and her estate attempted to enforce the Judgment by registration
in Alberta. It was discovered that the Plaintiff had entirely depleted the estate funds in excess
of $1 million. On its own motion, the Court had found the Plaintiff in criminal contempt for
breach of various Court Orders. In the within Action, Justice Michalyshyn stated that litigation
commonly referred to as “vexatious” may be struck under either Rule 3.68(2)(c) or (d), as the
term is synonymous with impropriety and abuse of process. Micalyshyn J. found that both the
Plaintiff and the litigation were vexatious. The Action was accordingly terminated immediately
on the basis of Rules 4.11(d), and 3.68(2)(c) or (d).
Michalyshyn J. briefly commented on the secondary issue of whether or not the Plaintiff was
competent to represent himself in the Action. Rule 2.11 explicitly indicates that for an adult
person the existence or absence of legal capacity is defined in the Adult Guardianship and
Trustees Act, SA 2008, c A-4.2. The two key aspects of capacity are the ability to understand (1)
a litigation scenario, and (2) the foreseeable consequences of an action or inaction. Justice
Michalyshyn concluded that any common law definition of legal capacity is irrelevant in Alberta,
as the legislature has codified the appropriate legal test. There was no expert evidence of
incompetence and the Plaintiff’s capacity was self-evident and obvious from his conduct in the
litigation. There was no doubt the Plaintiff had capacity to conduct his own litigation. The
Defendants were entirely successful and awarded Costs.
KOOPMANS V JOSEPH, 2014 ABQB 395 (GRECKOL J)
The Plaintiff appealed a Provincial Court Decision dismissing the Plaintiff’s Civil Claim against a
lawyer and law firm. The Plaintiff sought a refund of legal fees paid and damages equivalent to
the amount that the Plaintiff alleged he would have received from the Energy Resources
Conservation Board had the Defendants properly represented him.
The Provincial Court Trial Judge determined that the issue of legal fees had already been
decided by a Review Officer pursuant to Rule 10.19, and that Rule 10.26 provided an appeal
period of one month from the Review Officer’s Decision. The Plaintiff did not appeal the Review
Officer’s decision to a Justice of the Court of Queen’s Bench, so the Trial Judge determined that
the process had been taken to conclusion and there was no jurisdiction to consider the
Application for return of legal fees.
380
However, Justice Greckol found that the Provincial Court Trial Judge conflated the issue of
quantum of legal fees and the question of incompetence or breach of contract by the
Defendant, leading to return of legal fees as a remedy. Her Ladyship held that a Review Officer
deals with quantum, not questions of incompetence or breach of contract. The issue was
therefore whether the legal fees should be returned because of incompetence or failure to
provide services promised. Justice Greckol found that the legal services were not provided in a
timely and cost effective fashion. The Appeal was allowed and the Plaintiff was awarded
$4,254.23 in damages for the return of legal fees, and was also awarded his Costs.
KULAGA V FIRST NATIONAL FINANCIAL GP CORPORATION, 2014 ABQB 400 (MCCARTHY J)
The Plaintiff, a straw buyer in a real estate transaction, commenced an Action against, inter
alia, his lawyer. The Plaintiff had agreed to arrange financing and buy a house for an unknown
third party. When the third party failed to make the payments on the home the bank pursued
the Plaintiff for payment of the mortgage. The Defendant lawyer sought Summary Dismissal of
the Action before a Master, arguing that the Plaintiff could not seek indemnity or contribution
due the common law doctrine of ex turpi causa non oritur actio. The Master declined to
summarily dismiss the Plaintiff’s Claim against the Defendant lawyer; the Defendant lawyer
appealed. Justice McCarthy stated that the standard of review on an Appeal from a Master to a
Justice is correctness. In addition, an Appeal from a Master’s Decision is a hearing de novo
pursuant to Rule 6.14.
McCarthy J. stated that the test for Summary Judgment under Rule 7.3 accorded with recent
Supreme Court of Canada and Alberta Court of Appeal decisions. His Lordship agreed that the
modern test for Summary Judgment is to examine the record to see if a disposition that is fair
and just to both parties can be made on the existing record. McCarthy J. observed that the
Alberta Court of Appeal made it clear that it must be determined whether there is any issue of
merit that requires Trial. Further, an issue of law may be appropriate for Summary Judgment,
but the determination of facts often requires Trial. In the case at bar, the proper disposition of
the Defendant’s Application for Summary Judgment required an examination of whether a fair
and just decision could be made from the record. His Lordship found that the Master’s analysis
was correct: further evidence was needed with respect to the purchase contract, the property
transaction and the Defendant lawyer’s knowledge about the fraudulent nature of the
transaction. Justice McCarthy dismissed the Appeal, holding that the factual discrepancies and
questions of credibility were beyond the scope of a Summary Judgment Application.
ALLIANCE CONCRETE LTD V ROBERTSON, 2014 ABQB 401 (DARIO J)
The Applicant applied to set aside a Judgment issued in favour of the Respondent. The
Application was made pursuant to Rule 9.15(1)(b), on the basis that the Applicant’s counsel did
not appear because of an accident or mistake. After reviewing the case law, the Court held that
setting aside the Judgment was not appropriate in these circumstances. The Court gave several
reasons for coming to such a conclusion:
1.
The Court was not convinced that the evidence demonstrated that the
Applicant had an intention to participate in the Action.
381
2.
Even if the Applicant could bring itself within the scope of Rule 9.15, the
Court had to consider the prejudice to the other side if the Judgment was
set aside and the parties were to have another Trial. The costs for legal
fees had far exceeded the claimed amount.
3.
The Applicant suggested that it had a meritorious defence to the
Counterclaim; the Respondent’s questioned this defence. The Court
concluded that, unlike Rule 9.15(3), proving a meritorious defence for
Rule 9.15(1)(b) was not required.
4.
To provide relief to the Applicant would not be consistent with the ideal
of solving claims “fairly and justly”, in a “timely and cost-effective way”.
Granting the Application would run counter to the purposes expressed in
Rule 1.2(1).
Overall, the Court found that it was not appropriate in these circumstances to set aside the
Judgment and dismissed the Application.
MCGOWAN V LANG, 2014 ABQB 403 (YUNGWIRTH J)
The Defendant appealed an Order of a Master granting the Plaintiff an extension of time to
serve the Statement of Claim relating to a motor vehicle accident. The filed Statement of Claim
had been forwarded to the insurance adjuster, but at no point did the insurance adjuster advise
the Plaintiff that: (i) service on the Defendant was not necessary; (ii) the Statement of Claim
had been served on the Defendant; or (iii) liability was not or would not be contested.
However, there were ongoing negotiations throughout and, shortly before the expiry of the one
year period for service, the insurance adjuster advised Plaintiff’s counsel that he would file a
Statement of Defence if no medical documents were received soon.
The Plaintiff made no attempt to serve the Statement of Claim on the Defendant and there was
no evidence suggesting the Defendant’s whereabouts was unknown during the required time
period for service. The Defendant was eventually served with the Statement of Claim 68 days
after it had expired, at which point the Plaintiff applied to extend the time for service.
The Master granted an extension of time to serve the Statement of Claim pursuant to Rule
3.27(1)(c) and stated that, in exercising discretion under this Rule, the Court should:
(a) Aim to eliminate procrastination and delay in litigation;
(b) Consider whether there is any prejudice to any of the parties as a result of
the limitation issue;
(c) Determine if the special or extraordinary circumstances result solely from the
Defendant’s conduct or from the conduct of a person who is not a party to
the action; and
382
(d) Strike an appropriate balance of the interests of the parties in order to
achieve the most justice with the least injustice.
Applying these factors, the Master held that there was no procrastination or delay and no
prejudice to the Defendant. The Master held that the ongoing negotiations and comments
made by the insurance adjuster regarding the filing of a Statement of Defence constituted
special circumstances within the meaning of Rule 3.27(1)(c).
Upon reviewing the Master’s Decision, Yungwirth J. stated that:
-
Rules 3.26 to 3.28 were similar to former Rule 11;
-
The principles under the former Rules have been incorporated into the
requirements of Rules 3.26 to 3.28;
-
Rules 3.26 to 3.28 impose a strict and mandatory limit on the service of a
Statement of Claim;
-
Only the rare exceptions listed in Rule 3.27 alter the limit on service; and
-
The Court’s discretion to grant an extension pursuant to Rule 3.27 arises only
after a Plaintiff brings itself within the exceptions laid out in Rule 3.27.
Yungwirth J. went on to comment more thoroughly about Rule 3.27(1)(c), stating that while it is
intended to be more of a general exception, the reference to exceptional circumstances
suggests that it will rarely be used. Analysis under Rule 3.27(1)(c) is a two-step process:
1. The Plaintiff must bring itself within the requirement that special or
extraordinary circumstances exist resulting solely from the Defendant’s conduct
or from the conduct of a person who is not a party to the action. As part of this
step, the Plaintiff must demonstrate that the special or extraordinary
circumstances are connected in some way to the lack of service.
2. Once the Plaintiff establishes the type of special or extraordinary
circumstances contemplated by Rule 3.27(1)(c), the Court then considers if is it
appropriate to exercise its discretion to extend time for service. As part of this
step, the Court will consider policy considerations of the limitations legislation
and prejudice.
Yungwirth J. allowed the Appeal and held that the Plaintiff had not brought himself within the
requirements of Rule 3.27(1)(c). There was no evidence that the Plaintiff’s lawyer relied on
anything done by the Defendant or by any third party when he failed to serve the Statement of
Claim within the required time period. Moreover, there was no evidence that the Plaintiff
decided not to serve the Statement of Claim because he relied on the comments made by the
insurance adjuster regarding his intention to file a Statement of Defence. The evidence was that
the limitation for service was not noted on the file’s diary system and Plaintiff’s counsel simply
383
neglected to serve the Statement of Claim. Extensions under Rule 3.27 should not be permitted
in circumstances where the failure to serve is caused by Plaintiff’s counsel’s inadvertence, even
if there is no demonstrated prejudice to the Defendant.
MILNE V DZIADYK, 2014 ABQB 407 (MASTER HANEBURY)
The Defendant applied to have the Action dismissed for long delay. In the three years preceding
the Application, the Applicant’s counsel and the self-represented Respondent exchanged
correspondence in an attempt to set the matter for Judicial Dispute Resolution (“JDR”) but the
matter was never set for a JDR.
The Court cited Kurian v Alberta (Motor Vehicle Accident Claims Act, Administrator), 2007 ABQB
369 (“Kurian”), where that Court analyzed whether the preparation for a JDR and the exchange
of materials therein constituted a material advancement of the Action. The Court in Kurian held
that the pursuance and preparation for the JDR did not materially advance the Action. The
Court held that Kurian is in step with a line of cases that holds planning a step in an Action or
discussing taking a step in an Action, does not significantly advance the Action. The Court
further held that the fact the Respondent was self-represented could not be taken into account,
and the Application was granted.
STONEY FIRST NATION V IMPERIAL OIL RESOURCES LIMITED, 2014 ABQB 408 (MAHONEY J)
The Applicants appealed a Master’s Decision dismissing its Application to continue a royalties
compensation claim against the Respondent. In summarily dismissing the Applicant’s motion,
the Master held that there was no genuine issue to be tried.
After the appeal had been heard, the presiding Justice, Justice Stevens, passed away. Pursuant
to Rule 13.1, Chief Justice Wittman requested that Justice Mahoney take conduct of the matter.
His Lordship contacted the parties, who confirmed that the matter could be fairly decided on
the record. The Court recognized that, pursuant to Rule 6.14, an Appeal of a Masters’ Decision
was a hearing de novo.
The Court noted that, after the Appeal was heard by Justice Stevens, the test for Summary
Judgment was revised by the Supreme Court of Canada in Hryniak v Maudlin, 2014 SCC 7.
Previously the test was whether the case presented a genuine issue for Trial; post Hryniak the
test is whether there is a genuine issue requiring a Trial. The Court also noted that Hryniak was
decided under Rule 20 of the Ontario equivalent of the Alberta Rules of Court, which is broader
than Rule 7.3. Nevertheless, in accordance with the Alberta Court of Appeal decision in Windsor
v Canadian Pacific Railway, 2014 ABCA 108, the test in Hryniak has been adopted in Alberta.
In reviewing the materials, the Court first considered whether fair and just disposition could be
made on the record. The Court agreed with the Master’s Decision that the facts underlying the
dispute were not at issue. The Court held that the resolution of the dispute turned primarily on
issues of law and held that granting Summary Judgment in this case was a proportionate,
expeditious and less-expensive means of achieving a just result.
384
The Court disagreed with the Applicant that it should be granted standing to maintain this
Action and held that the Applicant did not produce reliable evidence establishing an issue of
merit requiring a Trial. The Court dismissed the Appeal.
CHORNEY V THOMPSON, 2014 ABQB 410 (MASTER SCHLOSSER)
The Plaintiff commenced an Action against his doctor and his local hospital, claiming that he
had been misdiagnosed with multiple sclerosis by the Defendant physicians, and the treatment
of steroids and other drugs had caused him to become addicted and homeless. The Claim was
commenced in 2001, Questioning was completed in 2009 and a Pre-Trial Conference was held
in 2010. A proposed Litigation Plan respecting the exchange of expert’s reports in preparation
for Trial was prepared in 2011, and Plaintiff’s counsel filed a Notice of Withdrawal in December
of 2011. The Plaintiff did not obtain further counsel. The Defendants applied to dismiss the
Action for delay under Rule 4.33.
Master Schlosser considered whether the incapacity of the Plaintiff might suspend the
calculation of time under Rule 4.33, or whether Rule 15.6 could be invoked to prevent injustice.
The Plaintiff had filed an Affidavit, but did not serve it on the Defendants and Master Schlosser
discovered the Affidavit on file when drafting the Decision for the Application. Master Schlosser
allowed Defendants’ counsel the opportunity to respond to the Affidavit noting that, technically
the direction was not compliant with Rule 6.6. Master Schlosser relied upon the Affidavit
pursuant to the discretion afforded to the Court in Rule 6.6(3).
Master Schlosser observed that transitional Rule 15.4 was in effect until November 1, 2013
when Rule 4.33 replaced it. Rule 4.33 now requires that an Action must have a “significant
advance” within three years or the Action will be dismissed; “things” or “steps” are no longer
needed. Master Schlosser noted that the issue in this case was whether it would be appropriate
to apply the five year drop-dead period set out in Rule 15.4(1)(b) instead of the three year
period in Rule 15.4(1)(a) or 4.33 in order to avoid a “difficulty or injustice” under Rule 15.6.
Master Schlosser held that, even if broad equitable powers were read into the words “difficulty
or injustice” in Rule 15.6, there were limits; the circumstances of this case were not sufficient
for equity to intervene. Master Schlosser noted that the Plaintiff’s issue appeared to be the loss
of representation, but this was not the sort of “injustice” contemplated by Rule 15.6. Further,
Rules like 4.33 are absolute and mandatory. Rule 4.33 was intended to be a “bright line Rule”
subject to the exceptions in 4.33(1)(a)-(d). Master Schlosser noted that such Rules remind us
that the privilege to litigate in Court is easily lost. In the result, the Application was allowed and
the Plaintiff’s lawsuit was dismissed for long delay. Based on the analysis of Rule 4.33, it was
unnecessary to decide whether incapacity might suspend the running of time under Rule 4.33.
1356613 ALBERTA LTD V 1313675 ALBERTA LTD, 2014 ABQB 414 (JONES J)
The Applicant applied for Summary Judgment of its claim. The Applicant also sought to amend
its Statement of Claim, pursuant to Rule 3.62, to reflect the Respondent’s change of name.
The Applicant and Respondent executed a bill of sale, which evidenced payment of $80,000.00
by the Applicant to the Respondent for the transfer of a commercial truck, purportedly owned
385
by the Respondent. Events transpired leading to the determination that the truck had been
stolen. The truck was turned over by police to an insurer. The insurer eventually transferred
title of the truck to the Applicant for the additional sum of $49,550.00 paid to the insurer by the
Applicant. The Applicant sought Summary Judgment for this amount, plus other expenses and
losses it had incurred.
Notably, the parties made submissions on this Application without having the advantage of the
Alberta Court of Appeal’s decision in Windsor v Canadian Pacific Railway, 2014 ABCA 108.
However, the parties were not invited to make new submissions in light of Windsor because,
according to Jones J., it was “clear that under both the articulation of the summary judgment
test as it existed when the parties appeared before me and as it exists after Windsor, I cannot
dispose of this matter on an Application for Summary Judgment”. With respect to the new test
for Summary Judgment, the Court confirmed that:
… [W]hen deciding whether to grant summary judgment, the court “must
examine the record to see if a disposition that is fair and just to both parties can
be made on the existing record, in order to determine if there is any issue of
merit that genuinely requires a trial.”
After reviewing the facts of this case, the Court determined that this was not an appropriate
matter for Summary Judgment, and dismissed the Application. The Court did, however, allow
for the amendment to the Statement of Claim pursuant to Rule 3.62 as there was no opposition
to the amendment.
BANK OF MONTREAL V RAJAKARUNA, 2014 ABQB 415 (DARIO J)
The Appellant, the Bank of Montreal, appealed a Master’s Decision dismissing its Application
for Summary Judgment. The Respondents, Gaston Rajakaruna and Shirley Rajakaruna, CrossAppealed the Master’s Costs award and, for the first time, applied for Summary Dismissal.
The Appellant had sought Summary Judgment of its foreclosure Action. The Appellant argued
that the Respondents’ failure to pay a noise fine and a witness fee (in relation to a Residential
Tenancy Dispute Resolution Hearing) constituted defaults, and thus foreclosure was an
appropriate remedy. The Court held that, although further evidence was adduced, there was
still insufficient evidence to establish that the witness fee was a charge that would fall within
the scope of the mortgage. In relation to the noise fine, the Court held that, even if further
evidence could be brought to validate the legitimacy of the noise fine, the Appellant could not
rely on the noise fine to obtain foreclosure. The Appeal was dismissed.
The Court then determined whether the Master had erred in declining to award solicitor-client
Costs to the Respondents. The Appellant argued that the Respondents did not obtain leave
from the Master to Appeal the Costs award. The Court held that leave was not required as the
Appeal did not relate only to Costs. However, the Court found no error in the Master’s Costs
award.
386
For the same reasons that the Appeal was dismissed, the Court held that Summary Judgment
dismissing the Action should be granted. The Court held while there was arguably a triable
issue, a Trial would not be proportionate and fair, and was not necessary for the adjudication of
the claim. The Court held that the Appellant had two opportunities to bring the required
evidence before the Court and had failed to do so.
The Application for Summary Dismissal was granted and Costs were awarded on the basis of
Column 5 of Schedule C, as there had been an extraordinary amount of time spent litigating the
matter in relation to the value of the claim involved.
SG V JPB, 2014 ABQB 418 (JONES J)
In a prior Application, the Plaintiff appealed a private guardianship Order granted to the family
who fostered the Plaintiff’s child and sought private guardianship of the child herself. Justice
Jones affirmed the Provincial Court Decision and directed the parties to make written
submissions with respect to Costs.
Justice Jones first noted that, generally, the unsuccessful party should not expect to receive an
award of Costs against the successful party. Rule 10.29 provides that a successful party to an
Application is entitled to a Costs award against the unsuccessful party, subject to the principle
that the Court has wide discretion to award Costs under Rule 10.31. Rule 10.31 confers general
discretion to award Costs, taking into account the factors specified in Rule 10.33. Rule 10.33(1)
provides an enumerated list of factors that the Court may take into consideration in making a
Costs award. Further, Rule 10.33(2) provides that the Court may consider, inter alia, conduct of
the parties which unnecessarily lengthened or delayed the Action, noncompliance with the
Rules or an Order, and whether a party has engaged in misconduct.
The Plaintiff took the position that, despite being unsuccessful in the Appeal, Costs should be
assessed against the Director of Child and Family Services and the foster parents. The Director
challenged the Plaintiff’s position, noting that there was no authority to support a finding of
special or unusual circumstances which would justify Costs against the Director. The Director
did not advance a claim for Costs against the Plaintiff.
The foster parents took the position that the expected outcome would be for the Court to
award Costs in favour of a successful party; they disputed the Plaintiff’s assertions of
misconduct. The foster parents sought Costs for their guardianship Application and for the
Appeal.
Counsel for the child submitted that the Court of Queen’s Bench retains the authority to make a
Costs award pursuant to both section 93 of the Family Law Act section 2(1) of the Court Rules
and Forms Regulation. In addition, Rule 10.33(1)(a) supports the position that the foster
parents should receive their Costs because they were entirely successful on Appeal. In addition,
the foster parents’ decision not to make oral submissions on the Appeal operated to shorten
the proceedings which engaged the provisions of Rule 10.33(1)(f). Further, 10.33(2)(d) was
engaged against the Plaintiff because of unnecessary or improper Applications. As such,
387
Counsel for the child asserted that the child’s best interests were served by a Costs award in
favour of the foster parents.
Justice Jones accepted the arguments of the Director, the foster parents and Counsel for the
child. His Lordship held that it was appropriate to award Costs in favour of the foster parents
based on their success in the matter. No Costs were assessed in favour of or against the
Director.
AT FILMS INC V AT PLASTICS INC, 2014 ABQB 422 (BURROWS J)
The Plaintiff applied for Summary Judgment. The Plaintiff and Defendant entered into contracts
for, inter alia, the provision of plastic resins from the Defendant to the Plaintiff. An explosion
occurred in the Defendant’s facilities and the Defendant was not able to supply the Plaintiff
with the product. The Plaintiff purchased the product from other suppliers and sought damages
for the difference between what it had to pay the other suppliers, and what it would have paid
to the Defendant pursuant to the contract. The Plaintiff also sought damages for its equipment
that was damaged as a result of the explosion interrupting the electrical supply.
The Defendant argued, inter alia, that the force majeure clauses in the contracts were
applicable. The Defendant argued that the explosion happened from peroxide warming and
exploding from a liquid state, and the Defendant was not aware that an explosion from the
liquid state could occur. The Defendant was only aware that an explosion could occur from
peroxide warming into a vapour state. Thus, as the Defendant was not aware that this type of
explosion could occur it could not guard against it, and the force majeure clause was applicable.
Between the date of the hearing and the date of the Judgment, the Alberta Court of Appeal
issued the decision in Windsor v CPR, 2014 ABCA 108 (“Windsor”). The Court held that Windsor
amended the Summary Judgment test in Alberta.
The Court found that there was uncertainty as to whether the explosion constituted a force
majeure or not, and that the evidence presented revealed a genuine issue of fact which
required resolution by Trial. The Application was dismissed and Costs were awarded to the
Defendant.
CLARKE v SYNCRUDE CANADA LTD, 2014 ABQB 430 (MACLEOD J)
The Plaintiff, Clarke, was unsuccessful in a wrongful dismissal Action against the Defendant
Syncrude. Although, the Defendant proved just cause for the Plaintiff’s termination, the Plaintiff
obtained a Judgment against the Defendant in respect of his stock options where were found to
have been undervalued. On this basis, and on the basis of alleged misconduct of the Defendant
throughout the course of litigation, the Plaintiff applied for Costs.
Justice Macleod noted that the Court has wide discretion in ordering Costs, particularly under
Rules 10.29, 10.31 and 10.33. Rule 10.29 provides that a successful party is entitled to a Costs
award against an unsuccessful party. This general rule applies where a party is substantially, if
not totally, successful in a proceeding. Likewise, a plaintiff who succeeds in an action but
388
recovers only a portion of the amount claimed will usually be considered successful and thus
entitled to Costs. The Court may consider the amount claimed and the amount recovered in
making a ruling on Costs under Rule 10.33(1)(b). The Rules expressly state that the Court may
consider the results of the Action and the degree of success of each party, as well as the
apportionment of liability: Rule 10.33(1)(a) and 10.33(1)(e).
While the Plaintiff was successful in obtaining a significant Judgment against the Defendant, he
was not substantially successful in the Action when viewed as a whole. The most significant
issue in the Trial was just cause and the Plaintiff was not successful on that point. In discussing
the relevant legal principles, Justice Macleod set out the various factors in Rule 10.33(2) which
the Court may consider in deciding whether to impose, deny or vary an amount in a Costs
award. This Rule and the cases make it clear that the conduct of a party in a proceeding may
affect the Court’s discretion to award Costs. If a successful party has engaged in misconduct,
the Court may deny Costs or require the party to pay the Costs of an unsuccessful party.
Macleod J. was not satisfied that the Plaintiff’s case fell within the rare and exceptional
circumstances that would justify an award of solicitor-client Costs. However, Macleod J. was
concerned about the pattern of late production of clearly relevant documents by the
Defendant. Justice Macleod found this an appropriate case to apportion Costs and directed that
each party calculate its Costs of the litigation in accordance with Column 4 of Schedule C of the
Rules, including taxable disbursements. The Defendant would be entitled to recover two-thirds
of its amount against the Plaintiff, and the Plaintiff would be entitled to recover one-third of its
amount against the Defendant. The two amounts would be set-off against each other and the
Defendant would have Judgment against the Plaintiff for the balance.
HARRISON V XL FOODS INC, 2014 ABQB 431 (ROOKE ACJ)
In a proposed Class Action, the representative Plaintiff sued the Defendant owner and operator
of a meat processing facility located in Alberta, claiming that the Defendant’s negligence lead to
contamination of meat which caused the Plaintiffs to become seriously ill. The Defendant sued
the Canada Food Inspection Agency (“CFIA”) as a third party alleging that the food inspection
processes were integrated with the Defendant’s operation. The CFIA applied to have the
Defendant’s Third Party Claim struck out pursuant to Rules 3.47(b) and 3.68. Rooke A.C.J.
considered whether the Third Party Claim should be struck out on the basis that the Claim did
not disclose a cause of action. Rooke A.C.J. considered whether it was plain and obvious that
the CFIA had any private law duty to the Plaintiff. His Lordship noted that the specific
allegations in the Statement of Defence and the Third Party Claim were deemed to be fact for
the purposes of Rule 3.47(b) and 3.68. His Lordship further stated that Rule 3.68 provides
parties and the Court with a mechanism to limit or end Actions or Defences which have no
possibility of success. The Rule allows a Claim to be struck, amended, to be the subject of
Judgment or to be stayed. The threshold test under Rule 3.68(2)(b) is that a pleading must
disclose no cause of action. His Lordship noted that Rule 3.68(3) dictates that no evidence is
admissible for the purpose of determining whether a Claim should be struck. Rule 3.47(b)
extended the application of Rule 3.68 to Third Party Claims.
389
Rooke A.C.J. stated that the test for a strike application is well established: an action or defence
may be struck where it is “plain and obvious, or beyond reasonable doubt that the action
cannot succeed”; and, pleadings should be considered in a “broad and liberal manner”. His
Lordship stated further that, in a strike Application, the pleadings that are the basis for the
allegations are considered to be true with two exceptions: a fact is different from a “bald
allegation” and an alleged fact may be rejected when it is absurd or highly implausible. The bar
for a strike Application is set high to preserve a potential Action where possible. Pleadings must
be read generously, and struck only if deficiencies cannot be corrected with amendments by
the Court. In addition, radical defects are a basis to end lawsuits by striking, and Courts are
required to err on the side of allowing novel claims to proceed. Using the principles and test for
striking under the Rules, His Lordship considered whether it was plain and obvious that the CFIA
had a private law duty to the Plaintiff class of meat consumers. Rooke A.C.J. utilized the
deemed factual foundation set out by the pleadings, which implied or stated that the CFIA was
liable to the Plaintiff Class, to test whether the Defendant’s Third Party Claim was hopeless and
could not succeed.
Rooke A.C.J. concluded that it was not plain and obvious that the Defendant would fail as
against the CFIA. Instead, there was a small potential for the Third Party Claim to be successful.
His Lordship also held that CFIA owed no private law duty to the Plaintiff Class. Rooke A.C.J. also
declined to grant a stay of the Third Party Claim against CFIA pending resolution of the
Certification Application.
THOMSON V UNIVERSITY OF ALBERTA, 2014 ABQB 434 (SHELLEY J)
The Defendant, the Governors of the University of Alberta (“University”), applied to strike the
Statement of Claim of the Plaintiff, Alan Thomson (“Dr. Thomson”), pursuant to Rule 3.68, on
the basis that the Court lacked jurisdiction to hear the Claim relating to Dr. Thomson’s
employment. Dr. Thomson’s Claim alleged that the conduct of the University constituted a
repudiation of the employment agreement and amounted to constructive dismissal. The
University argued that the collective agreement governing employment with the University
contained a dispute resolution process, and as such the Court was not the proper forum.
The Court held that, on an Application under Rule 3.68:
(a) a pleading will not be struck unless it is plain and obvious the Action will fail;
(b) the Court must assume the facts in the Statement of Claim can be proved;
and
(c) the Application must fail if there is a chance that the Plaintiff might succeed.
The Court held that the dispute must be resolved via the collective agreement and the
comprehensive grievance and arbitration procedures therein. The Defendant’s Application was
granted.
390
CORNELSON v ALLIANCE PIPELINE LTD, 2014 ABQB 436 (VERVILLE J)
The Plaintiff was the president and CEO of the Defendant corporation. He was terminated
without cause and claimed payment in lieu of reasonable notice. The Defendant took the
position that the Plaintiff had been paid all amounts to which he was entitled pursuant to the
contractual terms applicable to his employment.
The Plaintiff advised the Defendant that he was objecting to the admission of certain experts’
reports claiming that they were primary expert reports and that the Defendant had not
provided a Form 25, in compliance with Rule 5.34. The reports were received at Trial subject to
the Court’s ultimate determination as to admissibility. The Plaintiff argued that the experts
were presented by the Defendant as “fact witnesses” and no effort was made by the Defendant
to qualify either one as an expert witness. Nevertheless, they purported to give opinion
evidence in their reports and at Trial on the valuation issues before the Court. The Defendant
took the position that these were not experts’ reports within the meaning of Rule 5.34; rather,
they were prepared in the regular course of business as part of the valuation process required
under the Defendant’s long term incentive plan (“LTIP”), and pre-dated the litigation.
After reviewing the circumstances, Justice Verville determined that the reports in question
were obtained by the Defendant in the course of administering the LTIP for participants. They
were admissible at a minimum to explain the basis upon which the Defendants arrived at the
value per unit of the LTIP. The Court noted that the Plaintiff had not established any prejudice
due to the manner and timing of notice and disclosure of these reports. As a result, the Court
admitted the reports.
1400467 ALBERTA LTD v ADDERLEY, 2014 ABQB 439 (VEIT J)
Upon the Defendants selling their business to the Plaintiffs, the parties executed non-compete,
Alberta choice of law and choice of forum agreements and employment contracts as a part of
the transaction. The Plaintiffs commenced an action against the Defendants, who resided in
Saskatchewan, alleging that the Defendants had breached the non-compete agreements. The
Defendants counterclaimed that the Plaintiffs breached the purchase and sale agreement by
failing to pay the purchase price. The Plaintiffs applied for a Security for Costs Order and a
Security for Judgment Order as against the Defendants, citing Rule 4.22 and 1.4(2)(e). The
Plaintiffs argued that one of the corporate Defendants had incurred other significant secured
obligations since the commencement of the litigation which would make it more difficult for
the Plaintiffs to enforce a Judgment. Justice Veit noted that Rule 4.22 clearly allowed the Court
to order Security for Costs against the Defendant; this is so even where the Defendant failed to
satisfy the specific factors mentioned in the Rule. However, such an Order was “far from
automatic”. The general rule is:
… [A] plaintiff cannot call upon the defendant, even one resident out of the
jurisdiction, to provide security for the plaintiff’s costs.
Justice Veit commented that the language in Rule 4.22 and the prior Rule did not create a
departure from the approach of the Canadian Courts for Security for Costs. The revision to the
391
Rules was only required in order to explicitly accommodate situations in which a plaintiff or a
defendant within the Province could properly be ordered to post Security for Costs. Using the
factors in Rule 4.22, Her Ladyship concluded that it was not fair and just in the circumstances
for the Defendants to pay Security for Costs. The Application for Security for Costs was
dismissed.
Justice Veit also considered whether the Defendants were required to pay Security for
Judgment, observing that prior Alberta case law had questioned whether Rule 4.22 properly
applies in motions for Security for Judgment. Her Ladyship stated that it seemed clear that Rule
4.22 is limited to Security for Costs, but it was not necessary to decide the issue since the
Plaintiffs had also applied under Rules 1.3 and 1.4. Justice Veit stated that Rule 1.4(2)(e)
provided the Court with the authority to impose terms and conditions on parties who come
before the Court, and authorizes the Court to order the payment of Security for Judgment. Her
Ladyship noted that Security for Judgment is only ordered sparingly and in exceptional
circumstances. Veit J. held that a Court can issue pre-Judgment preservation Orders including
Orders requiring Defendants to post Security for Judgment where it is fair and just to do so. The
Court must consider all surrounding circumstances when determining whether it is appropriate
to make an Order for Security for Judgment. Justice Veit concluded that it was not fair and just
in the circumstances to require the Defendant to post Security for Judgment and dismissed the
Application.
ENOCH CREE NATION v PRUE, 2014 ABQB 445 (JERKE J)
The Defendant alleged that the Plaintiff failed to obtain a band council resolution authorizing
the commencement of the Action and so the Action should be dismissed. At Questioning the
Defendant obtained an Undertaking from the Plaintiff that any resolution authorizing
commencement of the Action be identified. The Undertaking was not answered and a series of
Court Applications, including Contempt Hearings, ensued. At a Special Chambers Hearing, the
Plaintiff claimed that there was a band council resolution, so Jerke J. directed the Plaintiff’s
counsel to provide it by the next morning. The Plaintiff’s counsel did provide it, but claimed
privilege on the document so it was sealed. At the continuation of the Special Chambers
Hearing, Plaintiff’s counsel disclosed for the first time that there was no resolution as at the
date the Action was commenced. The Defendant immediately sought Costs on a full indemnity,
solicitor-client basis.
Justice Jerke observed that Rule 10.31 permits the Courts to order one party to pay another
party Costs in accordance with the Rules of Court. Consideration is first given to the factors in
Rule 10.33. Solicitor-client Costs are appropriate where misconduct occurs during a legal
proceeding. There is much discretion afforded to the Court when awarding full indemnity Costs
on the basis of party misconduct; however, such awards are reserved for rare and exceptional
or unusual circumstances. Justice Jerke found the conduct of the Plaintiff reprehensible, an
attempt to delay or hinder the proceedings, or an attempt to deceive or defeat justice. The
failure to answer the Undertaking was an effort to conceal material information, and in the face
of a finding of contempt the Plaintiff provided a misleading answer. Justice Jerke found this to
392
be one of the rare, exceptional, or unusual cases where an award of Costs on a full indemnity
basis was warranted.
LION CREEK PROPERTIES, LTD, LLP V SOROBEY, 2014 ABQB 495 (MASTER HANEBURY)
The Plaintiff applied for Summary Judgment on its Claim and dismissal of the Counterclaim. The
Claim was based on a Judgment granted in the state of Idaho for $122,551.17 USD, with
interest thereafter at 5.25%. The Defendants had purchased a condo in Idaho and entered into
a promissory note and deed of trust in favour of the Plaintiff to fund the purchase. The Plaintiffs
could not pay the note when it expired, and could not pay the negotiated renewal balloon
payment either. The condo was sold to the Plaintiff, and the Plaintiff received Summary
Judgment, unopposed, against the Defendants for the deficiency. That Judgment became the
subject of the Alberta Action.
Master Hanebury found that the Statement of Defense raised no genuine issue for Trial and
granted Summary Judgment in favour of the Plaintiff. The remaining question was whether the
Defendants’ Counterclaim raised any genuine issues for Trial, or whether it should be
summarily dismissed. The Plaintiff argued that the Counterclaim was barred by res judicata, as
the Claim could have been raised in the prior proceeding. Master Hanebury said it was
unknown whether a claim based on the tort of intimidation, which was one of the claims made
by the Defendants, properly belonged in the original lawsuit in Idaho, as the law there may be
quite different. If the Claim did not properly belong there, then res judicata may not be
applicable. Therefore, there was a genuine issue for Trial as to whether res judicata applied to
bar the Claim in Alberta. Master Hanebury agreed with the Plaintiff that the Defendants’
evidence was poor, but noted that the Application was not made under Rule 3.68 to Strike the
Claim, but for Summary Dismissal under Rules 7.2 and 7.3. In such circumstances, the plaintiff
bears the legal onus of showing that there is no genuine issue for trial. Accordingly, the
Counterclaim for damages based on the tort of intimidation was not dismissed.
TANG v MUWAIS, 2014 ABQB 511 (GRAESSER J)
A Review Officer reduced the fees of a lawyer who sought to have two accounts taxed against
her former client. The reduction was due to ongoing delays in the scheduling of Questioning.
The lawyer appealed pursuant to Rule 10.26. Justice Graesser reviewed the factors set out at
Rule 10.2 with respect to the reasonableness of legal fees. Graesser J. noted that the hourly
rate appeared reasonable given the lawyer’s years of experience and seniority; however, His
Lordship observed that the result which was achieved in the litigation is an appropriate factor
to consider under Rule 10.2(f). In considering the history of the matter, what was accomplished
and at what cost, Justice Graesser held there was no palpable and overriding error on the part
of the Review Officer. The reductions on the accounts were appropriate given: (i) the delay in
the pace of litigation, (ii) the absence of any meaningful results and (iii) the excessive efforts
expended by the lawyer in comparison to the difficulty and complexity of the tasks undertaken.
The Appeal was dismissed and the Review Officer’s Decision was confirmed.
393
FINK v TRAKWARE SYSTEMS INC, 2014 ABQB 512 (LEE J)
The Plaintiff commenced an Action against the Defendants claiming three years of unpaid
wages. Defendants’ counsel filed a Statement of Defence, subsequently withdrew from the
record and provided a last known address for the Defendants. The Plaintiff served an
Application seeking Summary Judgment against the Defendants at the last known address and
sent a copy of the Application by email. The Defendants did not appear at the Application, and
Plaintiff was successful. The Defendants appealed the Master’s Decision on the grounds that
service of the Application was improper, and there were outstanding triable issues. The Plaintiff
argued there was no issue as to service given that Rule 11.15 allows for a non-commencement
document to be served at an address for service that was provided by the party for the purpose
of service. The Defendant Appellants argued that the provision of an address for service by a
withdrawing lawyer is directly contemplated by Rule 2.29(1)(a)(i) which places great
responsibility on the withdrawing lawyer to be diligent and to ensure that the address given is
the best available address. The last known address provided by the Defendant Appellants’
former lawyer was incorrect.
The Plaintiff also argued that Applications to set aside Judgments or Orders due to improper
service pursuant to Rule 9.15 should be heard within 20 days of the party being made aware of,
or being served with, the Judgment or Order, unless the Court otherwise orders. Justice Lee
extended the time to hear the matter pursuant to Rule 9.15(2). The individual Defendant, who
was the sole director of the corporate Defendant, deposed that although he communicated
with the Plaintiff’s lawyer via email after his lawyer had ceased to act for him, the corporate
Defendant was winding down its business and the email account was checked irregularly. The
individual Defendant also deposed that he never authorized service to the email account as
contemplated by Rule 11.21. Lee J. held that Rules 11.15 and 11.21 were applicable, and
concluded that the Plaintiff conducted himself properly, in accordance with Rule 11.15, by
serving the Defendants at the last known address for service, and emailing a copy to the email
address that the Defendants had regularly used to correspond with counsel for the Plaintiff.
Justice Lee observed that the test with respect to opening up Summary Judgments due to
accident or mistake should be similar to Rule 9.15(3) (re: setting aside Default Judgments). In
order to open up the Summary Judgment it was necessary to determine whether or not the
Defendants had an arguable defence which would require a de novo hearing. Justice Lee
directed a separate hearing of that issue on a future date.
GRAHAM v GRAHAM, 2014 ABQB 513 (LEE J)
The Plaintiff wife in a matrimonial Action sought an Order directing that the parties’ rental
property be sold and that the sale proceeds be held in trust as Security for Costs. The
Defendant husband was living in the property and was receiving the rental proceeds since the
matrimonial home had been sold by consent with the proceeds being held in trust by Plaintiff’s
counsel. The Defendant argued that his only source of income was the rental property, and
selling it would seriously affect his ability to proceed with the litigation. Justice Lee considered
the factors in Rule 4.22, noting that the husband had paid all previous Court Orders, and that,
although the husband’s financial circumstances were still unclear, he had assets in Alberta
394
which acted as security. The proceeds from the sale of the matrimonial home were also still
held in trust. As a result, pursuant to Rule 4.22(a) and (b), the Plaintiff had the ability to enforce
Cost awards and the husband was not impecunious and had the ability to pay. With respect to
the merits of the Action under Rule 4.22(c), Justice Lee held that, although the Defendant’s
outstanding property claims appeared “somewhat dubious”, it would be premature to assume
that the Plaintiff would be entirely successful. Finally, Lee J. noted that, under Rule 4.22(d), an
Order for Security for Costs would prejudice the Defendant because a sale or lien disruption of
the property would damage his ability to continue paying for the Action. Pursuant to Rule
4.22(e), the sale of the property would also result in the husband becoming homeless which
would necessitate further expenses and would result in problems visiting with his children.
Justice Lee noted the discretionary nature of the Rule and concluded that Security for Costs was
not appropriate in the circumstances.
SPARTEK SYSTEMS INC V BROWN, 2014 ABQB 526 (ROSS J)
The Defendant, Robert Brown (“Brown”), was the President, a director, and one of two largest
shareholders of the Plaintiff, Spartek Systems Inc. (“Spartek”) In 2004, Brown agreed to sell his
interest in Spartek and executed a Share Sale Agreement on his own behalf and on behalf of his
wholly owned company, the Defendant 1133098 Alberta Ltd (“113”). Spartek alleged that
Brown, in a conspiracy with other Defendants, breached his contractual and other obligations
to Spartek, including non-competition, non-solicitation of employees or clients, and protection
of confidential information. 113 commenced a separate Action against Spartek claiming for
monies allegedly owing under a promissory note issued pursuant to the Share Sale Agreement.
The two Actions were consolidated.
Brown argued that the Share Sale Agreement should not be enforced as not all parties to the
Agreement were parties to the Action. Justice Ross found no substance to the objection. Ross J.
cited Rule 3.73(1)(b) which provides that “no claim or action fails because two or more parties
do not join an action that they could or should have joined”. In accordance with Rule 3.73(2),
where a judgment is entered in respect of the claims between the parties to the action, that
judgment “is without prejudice to the rights of persons who are not parties to the action”.
Spartek entered into a Settlement Agreement with the Defendants, Chris Holt (“Holt) and
Carlos Claveria (“Claveria”). Spartek later continued the Action against Holt alleging that Holt
breached his obligations under the Settlement Agreement. Justice Ross found no fundamental
breach of the Settlement Agreement and concluded that Holt was protected from liability. Ross
J. held that Holt and Claveria were co-conspirators who would have been liable but for the
Settlement Agreement. Holt did not Counterclaim against Spartek seeking enforcement of the
Settlement Agreement, but it was agreed by Spartek and confirmed by Justice Ross during Trial
that the appropriate amendment to the pleadings was permitted without the filing of an Order,
pursuant to Rule 3.65(4).
Justice Ross concluded that the Share Sale Agreement was valid and that Brown violated the
non-solicitation and non-competition covenants. All of the required elements were proven
regarding the conspiracy claims against Brown, Holt, Claveria, and the Defendant Terrence
395
Matthews. Spartek proved damages for lost profits and replacement costs for employees who
departed from Spartek as a result of the Defendants’ unlawful actions and common design.
Justice Ross also pierced the corporate veil between 113 and Brown. 113 received Judgment
against Spartek pursuant to the promissory note. Because the corporate veil was pierced,
Spartek was permitted to set off its Judgment against Brown from its liability to 113.
NG v FLORENCE, 2014 ABQB 531 (VEIT J)
The Plaintiff previously applied for and obtained an Order to distribute the proceeds of the sale
of property equally between herself and the Defendant as co-owners. The Plaintiff then sought
a declaration of civil contempt and an accounting when the Defendant did not comply with the
Order. The Defendant applied to dismiss the Applications for contempt and accounting. Justice
Veit dismissed the Application for civil contempt since the Plaintiff had failed to provide the
proposed form of Order to the Defendant for review for the requisite 10 days pursuant to Rule
9.2(2)(c). Further, the form of Order that was filed did not accord with the Chambers Judge’s
Order. The Plaintiff’s Application for accounting was also dismissed because the home had
already been sold and an accounting was required prior to the sale.
HUERTO V CANNIFF, 2014 ABQB 534 (SHELLEY J)
The Defendant applied to have the Action dismissed for long delay, arguing that three or more
years had passed without a significant advancement in the Action under Rule 4.33(1) and that
the inexcusable delay had caused the Defendant significant prejudice under Rule 4.31. Shelley J.
noted that Rule 1.2 is relevant to Rules 4.31 and 4.33 since it encourages parties to resolve
claims cost-effectively, in a timely manner, and as early as practicable.
Shelley J. concluded that the Action should be struck for long delay. Her Ladyship observed
that, upon an Application pursuant to Rule 4.33, the Court is tasked with determining whether
there has been a “significant advance” which provides “meaningful” progress to the litigation in
the past three years. This is a functional and qualitative analysis where consideration is given to
the quality of the step and how it may be relevant to the action. If no significant advance is
shown in the previous three years, Rule 4.33 mandates that an action be struck. The Plaintiff
argued that significant advances were made when they provided a Supplementary Affidavit of
Records, retained experts, and participated in related litigation outside Alberta. Shelley J. found
that the Supplementary Affidavit did not add anything new, the expert information was not
disclosed to the Defendant and the related litigation was not “inextricably linked” to the
primary Action. None of the steps taken by the Plaintiff were significant advancements in the
previous three years.
Justice Shelley noted that the legal rule for terminating an Action under Rule 4.31 is whether
there is (a) an inordinate delay, (b) that the delay is inexcusable, and (c) that the delay is likely
to cause serious prejudice. An inordinate and inexcusable delay is prima facie proof of serious
prejudice under Rule 4.31(2). This presumption can be rebutted by a credible excuse. Having
concluded that there had not been a significant advance in over six years, Shelley J. stated that
there was an inordinate and inexcusable delay. The Defendant did not submit an excuse to
396
rebut the presumption that there was serious prejudice. The Action was therefore struck out
under both Rules 4.31(2) and 4.33.
WOOD BUFFALO HOUSING & DEVELOPMENT CORPORATION v FLETT, 2014 ABQB 537 (GOSS J)
The Plaintiff commenced an Action against the Defendants alleging that a fire in their multiresidential building was a result of the Defendants’ negligence in constructing the building. The
Defendants applied for Summary Dismissal of the Action pursuant to Rule 7.3(1)(b), on the basis
that the Plaintiff’s claim was barred by a contractual waiver, and by virtue of the Limitations
Act, RSA 2000, c L-12. Justice Goss observed that, in Alberta, a Defendant may apply for
Summary Judgment on the ground that there is no merit to the claim or part of it.
Goss J. considered prior authority, and noted that the test for a Summary Judgment Application
pursuant to Rule 7.3(1)(b) had recently changed due to the Supreme Court of Canada decision
in Hryniak v Mauldin, 2014 SCC 7. The more recent test adopted by the Alberta Court of Appeal,
following Hryniak, encouraged the Court to take a more holistic view on whether the claim had
merit, and Rule 7.3 “is not confined to the test of ‘a genuine issue for trial’ found in the
previous rules”. Nevertheless, Her Ladyship held that the bar remains high on a motion for
Summary Judgment, and the onus remains with the applicant to establish that there is no merit
to a claim. If the applicant discharges their burden, the onus then shifts to the respondent to
show that there is arguable merit to the claim. There is no genuine issue requiring Trial only
where the Court is able to make the necessary findings of fact and has the ability to apply the
law to the facts.
Justice Goss denied the Application for Summary Judgment because there were genuine issues
for Trial in relation to both the claim for negligent misrepresentation, as well as with respect to
Section 7(2) of the Limitations Act.
VANDER GRIENDT v CANVEST CAPITAL MANAGEMENT CORP, 2014 ABQB 542 (MARTIN J)
The Plaintiff applied to have his Claim certified as a Class Action to represent all investors who
purchased units in a limited partnership which was formed to purchase and sell real property.
The Defendant applied to have the Claims dismissed for long delay pursuant to Rule 4.33.
Justice Martin noted that although the new Rules changed the language from “material” to
“significant” advance, there was no substantive difference. Pursuant to Rule 4.33, the relevant
period is three years prior to the date of the Application for dismissal. Her Ladyship observed
that a number of events had taken place during the relevant time, but the key issue was
whether they were significant within the meaning of Rule 4.33.
Justice Martin noted that recent case law sets out a functional approach that focuses on the
substance of the steps taken. Martin J. held that there had been a number of significant
advances in the Action, including the appointment of a Case Management Justice and regular
Case Management meetings. In addition, Affidavits had been filed and Questioning on the
Affidavits was conducted which led to an Application to compel answers to several contested
Undertakings.
397
Martin J. rejected the Defendant’s argument that steps taken to advance the matter to the
Certification Hearing do not advance the Action itself within the meaning of Rule 4.33. The
Rules are intended to apply to Class Actions wherever possible. The advancement of a potential
Class Proceeding to the Certification Hearing constitutes advancement for the purposes of Rule
4.33, as it defines the nature of the Action and informs the parties of how a matter is going to
proceed.
The Plaintiff’s Application to proceed as a Class Action was granted and the Defendant’s
Application to dismiss for long delay was denied.
ALBERTA TREASURY BRANCHES V CANADIAN EGG PROCESSING INC, 2014 ABQB 548 (MASTER
SCHULZ)
The Plaintiff applied, pursuant to Rule 9.21, to renew a Judgment that it received in 2004. The
Defendants argued that, since the Plaintiff did not undertake some form of collection every
three years to enforce the Judgment, the Judgment should not be renewed pursuant to Rule
4.33. Master Schulz observed that Rule 1.7 provides that the meaning of the Rules arises from
the text in light of the purpose and intention of the Rules as a whole, and within the context of
a particular Rule. The Court held that the purpose and intention of Rule 4.33 is to determine
whether what has been done in the Action moves it closer to Trial in a meaningful way. Rule
4.33 is intended to address the process to be followed before Judgment is obtained. Master
Schulz stated that the purpose of Rule 9.21 is to expedite procedure and render it less
expensive. It allows a simplified and expeditious approach to renewing a Judgment. The Rule is
intended to address the process to be followed after a Judgment is obtained. Both Rules 4.33
and 9.21 demonstrate the principles encouraged by Rule 1.2. Master Schulz noted that, if Rule
4.33 applied to the renewal of a Judgment, the Rule would contradict s. 11 of the Limitations
Act. Master Schulz held that Rule 4.33 has no applicability to Rule 9.21, and the Application to
renew the Judgment was granted.
DEMB v VALHALLA GROUP LTD, 2014 ABQB 554 (JONES J)
The Plaintiffs had concerns with the Defendants’ document production, and applied for further
and better production. The Application was successful and the Defendants provided further
records, but the Plaintiffs were not satisfied, believing that the Defendants had breached the
Order for further and better production. The Plaintiffs applied to strike the Defendant’s
Statement of Defence, a Declaration that the Defendants were in Civil Contempt, and Judgment
in favour of the Plaintiffs. In the alternative, the Plaintiffs sought further and better production.
Jones J. considered the requirements for production as set out in Rules 5.5 and 5.6, noting that
the parties are required to exchange Affidavits of Records disclosing all records that are
relevant and material to the issues in the Action, and are or have been under the party’s
control. Pursuant to Rule 5.2, a record is relevant and material only if it could reasonably be
expected to significantly help determine one or more of the issues raised in the pleadings, or to
ascertain evidence that could reasonably be expected to significantly help determine one or
more of the issues raised in the pleadings. Justice Jones set out the test for relevance and
materiality considering prior leading authority and commented:
398
Mustard tells us that facts must be “directly in issue”, not merely facts which
might “reasonably relate” to issues raised in pleadings. Only records which
significantly help to determine one or more of the issues raised in the pleadings
need be produced, not records which “could reasonably have some weight.
With respect to the declaration of Civil Contempt pursuant to Rules 10.52 and 10.53, His
Lordship considered Civil Contempt in the context of patterns of delay and failure to adhere to
Orders of the Court. Jones J. then reviewed the Defendants’ production and the circumstances
giving rise to the delays, and determined that the Defendants were not in contempt of Court,
either for the delay in production or as a result of failing to provide a complete production as
required by the Rules. Justice Jones also considered whether the Defendants were in contempt
of Court for failing to provide their production in compliance with Rule 5.7. The Defendants had
produced an entire hard drive, containing 83,000 electronic documents. The Plaintiffs did not
take issue with the production of the hard drive but they objected to the excessive bundling
and the manner in which it the contents of the hard drive were disclosed. The Court noted the
purpose of the Rules as set out in Rule 1.2. Jones J. also noted that Civil Practice Note #4
contains guidelines for the use of technology. Jones J. stated that it is clear that a computer
hard drive is not a document in itself and noted that bundling is permissible under the Rules;
however, pursuant to Rule 5.7(2), the Records must all be of the same nature and the bundle
must be described in sufficient detail to enable another party to understand what it contains.
Further, Jones J. stated that, under the Rules, the Defendants have an obligation to disclose and
produce those records that are relevant and material. Avoiding the costs associated with
production is no excuse for non-production.
The Court found that the Defendants had not disclosed the relevant and material documents on
the hard drive in accordance with the Rules. Justice Jones held that a further Supplemental
Affidavit of Records was required. Jones J. declined to hold the Defendants in Civil Contempt or
to strike the Statement of Defence.
LC v ALBERTA, 2014 ABQB 557 (GRAESSER J)
The Plaintiffs sought to expand the scope of a proposed Class Proceeding in which parents and
children were seeking damages arising out of the Director of Child Welfare’s failure to file
service plans for children under Temporary Guardianship Orders within the time required. The
Certification Application was stalled by interlocutory proceedings. Counsel for the Plaintiffs,
Robert Lee, applied for relief under Rule 5.33 before Justice Graesser as Case Management
Justice to allow the Plaintiffs to rely on records and transcripts of Questioning produced in
litigation involving other Plaintiffs suing the Alberta Government and Child Welfare authorities.
The initial purpose for seeking this relief was so that Mr. Lee could rely on the records and
Transcripts to avoid a Costs Award that had previously been issued against him personally as
counsel for the Plaintiff. Mr. Lee believed the records and transcripts would assist him on
justifying his actions that led to the personal costs award. The Plaintiffs also sought to use the
records and Transcripts to support their Application for Certification as a Class Action.
399
In advance of the Rule 5.33 Application, the Plaintiffs filed a Brief which included 89 paragraphs
relating to the claim of abuse of public office and other allegations of breach of duty. The
Crown and the Public Trustee took great exception to the allegations and Mr. Lee withdrew the
Application to Amend the Statement of Claim to include the impugned 89 paragraphs, but the
Government sought Costs against Mr. Lee personally. Mr. Lee swore an Affidavit stating that
the Government did not put forward any evidence regarding the accuracy or inaccuracy of the
89 paragraphs and sought relief from the implied undertaking in Rule 3.32 and 3.33 on the basis
that the Government was the source of the documents he sought to use. Mr. Lee made a CrossApplication seeking Costs on an enhanced basis for having to defend himself against the
Government’s Cost Application. After the Application was set down, the Government advised
that it was withdrawing its Cost Application against Mr. Lee. Mr. Lee continued his CrossApplication seeking Costs on an enhanced basis.
Graesser J. considered Rule 10.49, commenting that had the Government not sought Costs
against Mr. Lee personally, Costs likely would have been in the cause, taxable by the
Government at the end of the litigation in the event it succeeded or was otherwise entitled to
Costs. Mr. Lee would not have incurred any Costs in defending himself from a potentially large
claim for Costs. Enhanced Costs are and should be used as a consequence for bringing frivolous
or vexatious claims. Enhanced Costs are also an appropriate consequence for litigation
misconduct, either by the party or the party’s lawyer. In some circumstances, the Court may
order Costs payable to the Court itself.
While not specifically argued, Graesser J. found it appropriate to comment on two issues raised
by the Application. The first issue was the element of confidentiality involved and the manner
in which confidential documents and records were treated. The second issue was regarding a
concern about use of confidential information without the implied undertaking having been
waived. Graesser J. noted that confidentiality when records are sought to be used in litigation,
is rare. The process for “secret” information to be used is found in Rules 6.28 to 6.32. The
process for sealing a courtroom, restricting publication or otherwise limiting access by the
public and the press to evidence used in Court proceedings is express, and requires notice to be
given to the press. It must be filed, pursuant to Rule 6.33. Graesser J. stated that, in such a
process, there is no need to attach exhibits to an Affidavit. The correct procedure to be
followed when an Affidavit makes reference to a potentially confidential record is for the item
or the document to be referenced, marked as an exhibit and made available on request to the
other party. The exhibit itself does not become part of the public record. If the exhibit is

Cumulative Summary

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