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Civil Procedure – 2015 Donna Molzan

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Part I: FUNDAMENTALS ................................................................................................................................................. 6

Ch 1: Introduction .................................................................................................................................................................................... 6 A. Why are there Rules of Court? .................................................................................................................................................................. 6 B. Purpose and Intention of These Rules .................................................................................................................................................. 7

C(L) v Alberta 2011 ABQB .................................................................................................................................................................................................................................................................... 8 Hryrniak v Mauldin ................................................................................................................................................................................................................................................................................. 8 Nafie v Badawy......................................................................................................................................................................................................................................................................................... 8

Ch 2: Jurisdiction ...................................................................................................................................................................................... 9 Section 96 Courts ...................................................................................................................................................................................................... 9 Non Section 96 Courts ............................................................................................................................................................................................. 9 Specialized Tribunals and Judicial Review..................................................................................................................................................... 9

Ch 3: Costs and Fees ............................................................................................................................................................................. 10 Ch 4: Professional Responsibilities ................................................................................................................................................ 12

Change of Solicitors or Withdrawal ................................................................................................................................................................ 12 Undertakings ............................................................................................................................................................................................................. 13

- B&J Petroleum Ltd. v Rhim ................................................................................................................................................................................................................................................ 13 Witten, Vogel, Binder & Lyons v Leung 1983 ABQB ................................................................................................................................................................................................................. 14

Part II: PLEADINGS ........................................................................................................................................................ 15

Ch 5: Commencement of Action ....................................................................................................................................................... 15 Limitations Periods ................................................................................................................................................................................................ 16

Boyd v Cook 2013 ABCA ..................................................................................................................................................................................................................................................................... 18 Statement of Claim.................................................................................................................................................................................................. 18 Originating Application ........................................................................................................................................................................................ 19

Dash Distributors Inc. v Powlik ....................................................................................................................................................................................................................................................... 19 Ch 6: Parties ............................................................................................................................................................................................ 19

Business Entities ..................................................................................................................................................................................................... 19 1) Corporations ............................................................................................................................................................................................................................................................................................ 19 2) Partnerships ............................................................................................................................................................................................................................................................................................ 20 3) Sole Proprietorships ............................................................................................................................................................................................................................................................................. 20 4) Societies ..................................................................................................................................................................................................................................................................................................... 21

Persons Lacking Legal Capacity ........................................................................................................................................................................ 21 5) Deceased Persons – Under FAA & SAA ......................................................................................................................................................................................................................................... 21 Infants .............................................................................................................................................................................................................................................................................................................. 22 Persons of Unsound Mind ........................................................................................................................................................................................................................................................................ 22 7) Appointment and Role of Litigation Representative .............................................................................................................................................................................................................. 22

Champagne v Sidorsky........................................................................................................................................................................................................................................................................ 24 L.C. v Alberta (Metis Settlement Child & Family Services, Region 10) ............................................................................................................................................................................... 24

Trust and Estate Proceedings ............................................................................................................................................................................ 24 8) The Crown ............................................................................................................................................................................................................ 24

Canada Deposit Insurance Corp v Prisco ..................................................................................................................................................................................................................................... 25 Class Proceedings & Representative Actions .............................................................................................................................................. 25

Class Proceedings Act: ................................................................................................................................................................................................................................................................................ 25 Representation Before the Court ..................................................................................................................................................................... 26

Self-Represented Litigants ...................................................................................................................................................................................................................................................................... 26 Lameman v Alberta ............................................................................................................................................................................................................................................................................. 26 Chapman Estate v Ramjohn ............................................................................................................................................................................................................................................................. 26 908077 Alberta Ltd v 1313608 Alberta Ltd ................................................................................................................................................................................................................................ 27

Ch 7: Pleadings – General Rules ....................................................................................................................................................... 27 Lax Kw’alaams Indian Band v AG Canada .................................................................................................................................................................................................................................. 28 Paniccia Estate v Toal ......................................................................................................................................................................................................................................................................... 28 Mazepa v Embree ................................................................................................................................................................................................................................................................................. 29

Ch 8: Interest ........................................................................................................................................................................................... 29 Aetna Insurance Co v Canadian Surety Co .................................................................................................................................................................................................................................. 29 321665 Alberta Ltd v ExxonMobil Canada Ltd (ABQB) .......................................................................................................................................................................................................... 30

Ch 9: Venue .............................................................................................................................................................................................. 30 Siver v Siver 2010 ABQB..................................................................................................................................................................................................................................................................... 30

Ch 10: Joinder of Parties and Causes of Action ........................................................................................................................... 31 Joining Parties and Claims ................................................................................................................................................................................... 31

Res Judicata .................................................................................................................................................................................................................................................................................................... 31 Cahoon v Franks – Cause of Action Estoppel ............................................................................................................................................................................................................................ 31 Angle v Minister of National Revenue – Issue Estoppel ......................................................................................................................................................................................................... 31 Penner v Niagara – Issue Estoppel ............................................................................................................................................................................................................................................... 31 Cameco Corp v Insurance Co of State of Pennsylvania ........................................................................................................................................................................................................... 32 Sears Canada Inc v C&S Interior Designs Ltd ............................................................................................................................................................................................................................. 32

Amendment of Pleadings ..................................................................................................................................................................................... 32 Attila Dogan Construction and Installation Co Inc v Amec Americas Ltd........................................................................................................................................................................ 34 Poff v Great Northern Data Supplies ............................................................................................................................................................................................................................................. 35

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Joining and Separating Claims and Parties .................................................................................................................................................. 35 JOINING CLAIMS AND PARTIES ............................................................................................................................................................................................................................................................ 35 SEPERATING CLAIMS (Egg Lake Farms) ........................................................................................................................................................................................................................................... 36 CONSOLIDATING CLAIMS ........................................................................................................................................................................................................................................................................ 36

Egg Lake Farms Ltd v Alberta (Minister of Environment and Sustainable Resource Development) ..................................................................................................................... 37 INCORRECT PARTIES ADDED TO CLAIM .......................................................................................................................................................................................................................................... 37

Parties Added on Own Motion/Interveners ................................................................................................................................................ 37 University of Alberta v Alberta (Information and Privacy Commissioner) ..................................................................................................................................................................... 37

Ch 11: Service ......................................................................................................................................................................................... 38 Purpose of a Service ............................................................................................................................................................................................... 38

Butkovksy v Donahue .......................................................................................................................................................................................................................................................................... 38 How do you service the Document? .................................................................................................................................................................................................................................................... 38 Service of Non-Commencement Documents in Alberta .............................................................................................................................................................................................................. 39 Service outside of Alberta but in Canada........................................................................................................................................................................................................................................... 39

Morgaurd Investments v Desavoye SCC 1997 BIG CHANGE TO CL ..................................................................................................................................................................................... 39 Metcalfe v Yamaha Power Motor Products ABCA 2012 ......................................................................................................................................................................................................... 40

Service Outside of Canada (See Club Resorts) .................................................................................................................................................................................................................................. 40 Club Resorts Ltd v Van Breda ........................................................................................................................................................................................................................................................... 40

What date was service Effective on? ................................................................................................................................................................................................................................................... 41 Providing Evidence of Proper Service ................................................................................................................................................................................................................................................ 41

Overcoming Service Problems .......................................................................................................................................................................... 41 Substitutional Service................................................................................................................................................................................................................................................................................ 41

R v Goodhart ........................................................................................................................................................................................................................................................................................... 41 Dispensing with Service ........................................................................................................................................................................................................................................................................... 41 Validating Service ....................................................................................................................................................................................................................................................................................... 41

226911 Alberta Ltd v Redecopp ...................................................................................................................................................................................................................................................... 41 Ch 12: Renewal of Statement of Claim ........................................................................................................................................... 42

Brousseau v Janz Estate 3.27(1)(a)(i/ii) ...................................................................................................................................................................................................................................... 42 McGowan v Lang 3.27(1)(c) ............................................................................................................................................................................................................................................................. 42

Ch 13: Particulars .................................................................................................................................................................................. 43 Alberta v Atria Group .......................................................................................................................................................................................................................................................................... 44 1021018 Alberta Ltd v Bazinet........................................................................................................................................................................................................................................................ 44

Ch 14: Procedure on Default ............................................................................................................................................................. 44 Time for Defending ................................................................................................................................................................................................. 44

Statement of defence ................................................................................................................................................................................................................................................................................. 45 Demand for notice by defendant (More detail in Ch. 15 of CAN) ............................................................................................................................................................................................ 45

Default Judgment..................................................................................................................................................................................................... 45 Liquidated Demand Rule 3.39................................................................................................................................................................................................................................................................ 46

TLA Food Services v 1144707 .......................................................................................................................................................................................................................................................... 46 Noting in Default ......................................................................................................................................................................................................................................................................................... 46

Argent v Gray ......................................................................................................................................................................................................................................................................................... 46 Toerper v Hoard .................................................................................................................................................................................................................................................................................... 46

Setting Aside Default Judgment ............................................................................................................................................................................................................................................................. 46 Palin v Duxbury ..................................................................................................................................................................................................................................................................................... 46

Ch 15: Pleadings Subsequent to Statement of Claim ................................................................................................................ 47 Defendant’s Procedure ......................................................................................................................................................................................... 47

Demand for Notice (DFN) ........................................................................................................................................................................................................................................................................ 47 Bell v Grande Mountain Apartments ............................................................................................................................................................................................................................................. 48

Statements of Defence ............................................................................................................................................................................................................................................................................... 48 C(L) V Alberta ........................................................................................................................................................................................................................................................................................ 49 Barcellona v Einarson ......................................................................................................................................................................................................................................................................... 49

Reponses in a Statement of Defence.................................................................................................................................................................................................................................................... 49 Third Party Claims and Notices to Co-Defendant(s) ................................................................................................................................ 49

Co-Defendant(s) .......................................................................................................................................................................................................................................................................................... 49 Third Party Claims ...................................................................................................................................................................................................................................................................................... 50

Canadian Natural Resources Ltd v Arcelormittal Tubular Environment Inc v MEC OP LLC .................................................................................................................................... 51 O’Connor Associates Environmental Inc. v MEC OP LLC 2014 ABCA ................................................................................................................................................................................. 52

Counterclaim ............................................................................................................................................................................................................. 52 Lil Dude Ranch Ltd v 1229122 Alberta Inc ................................................................................................................................................................................................................................. 52

Set Off ............................................................................................................................................................................................................................................................................................................... 52 Holt v Telford – equitable set-off ................................................................................................................................................................................................................................................... 53

Part III: PRE-TRIAL EVIDENCE GATHERING AND DISCLOSURE ..................................................................... 54

Ch 16: Disclosure of Records ............................................................................................................................................................ 54 Records Under a Party’s Control ...................................................................................................................................................................... 55

Western Union Insurance Company v Nihill ............................................................................................................................................................................................................................... 55 McInerney v MacDonald .................................................................................................................................................................................................................................................................... 55

Records Which are Relevant and Material ................................................................................................................................................... 55 1400467 Alberta Ltd v Adderley ..................................................................................................................................................................................................................................................... 55 Leduc v Roman ...................................................................................................................................................................................................................................................................................... 55 Kaddoura v Hanson ............................................................................................................................................................................................................................................................................. 55

The Exception for Privileged Records ............................................................................................................................................................ 55 AM v Ryan................................................................................................................................................................................................................................................................................................ 56

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Canadian Natural Resources v Shawcor Ltd .............................................................................................................................................................................................................................. 57 Bellatrix Exploration Ltd v Penn West Petroleum Ltd ............................................................................................................................................................................................................ 57 Syncrude Canada Ltd v Babcock & Wilcox Canada Ltd .......................................................................................................................................................................................................... 57

The Affidavit of Records ....................................................................................................................................................................................... 57 Sun Life Assurance Company of Canada v Tom 2003-1 Limited Partnership #2 .......................................................................................................................................................... 59 Chevalier v Sunshine Village Corp .................................................................................................................................................................................................................................................. 60 University of Calgary v JR .................................................................................................................................................................................................................................................................. 61

Ch 17 – Questioning .............................................................................................................................................................................. 61 Turta v CPR ............................................................................................................................................................................................................................................................................................. 62 Golden Estate v Neilson ...................................................................................................................................................................................................................................................................... 62 Cogent Group v EnCana Leasehold Ltd Partnership ................................................................................................................................................................................................................ 62 Tremco Inc v Gienow Building Products Ltd .............................................................................................................................................................................................................................. 63 Rozak Estate v Demas ......................................................................................................................................................................................................................................................................... 63 Kwok v Canada (Natural Sciences and Engineering Council) .............................................................................................................................................................................................. 63 Wesley First Nation v Alberta (ABQB) .......................................................................................................................................................................................................................................... 64 Psychologists Association of Alberta v Schepanovich.............................................................................................................................................................................................................. 64

Discovery Abuse ...................................................................................................................................................................................................... 64 Holowaychuk v Lopishinsky .............................................................................................................................................................................................................................................................. 64 Landes v Royal Bank of Canada ...................................................................................................................................................................................................................................................... 64

Procedure to Read In ................................................................................................................................................................................................................................................................................. 65 410675 Alberta Inc v Trail South Developments Inc ............................................................................................................................................................................................................... 65 Juman v Doucette ................................................................................................................................................................................................................................................................................. 65 Hall v Wilcox .......................................................................................................................................................................................................................................................................................... 65 Edmonton (Police Service) v AB ...................................................................................................................................................................................................................................................... 65

Ch 18: Admissions ................................................................................................................................................................................. 66 Dwyer v Fox ............................................................................................................................................................................................................................................................................................ 66 Andriuk v Merrill Lynch Canada Inc .............................................................................................................................................................................................................................................. 66 TS v Stazenski ........................................................................................................................................................................................................................................................................................ 67

Ch 19: Experts ......................................................................................................................................................................................... 67 Expert Reports ......................................................................................................................................................................................................... 67

Henderson (Estate) v Arnett ............................................................................................................................................................................................................................................................. 69 Nystrom v Ransom ............................................................................................................................................................................................................................................................................... 69 Drapaka v Patel .................................................................................................................................................................................................................................................................................... 69 Adasci v Amin ......................................................................................................................................................................................................................................................................................... 69

Preservation and Inspection of Property ..................................................................................................................................................... 70 Referees ....................................................................................................................................................................................................................... 70

Ch 20: Other Evidence ......................................................................................................................................................................... 70 Affidavit Evidence at Trial ................................................................................................................................................................................... 70

Toliver v Koepke.................................................................................................................................................................................................................................................................................... 70 Preserving Evidence for Future Use ............................................................................................................................................................... 70

Part IV: LITIGATION MANAGEMENT & STRATEGIES ......................................................................................... 72

Ch 21: Managing Litigation ................................................................................................................................................................ 72 Responsibilities of the Parties ........................................................................................................................................................................... 72 Court Assistance in Managing Litigation....................................................................................................................................................... 73 Dispute Resolution by Agreement ................................................................................................................................................................... 74

Ch 22: Chamber Practice – Interlocutory Applications ........................................................................................................... 74 On Motion ....................................................................................................................................................................................................................................................................................................... 74 Ex Parte – without the other party (not going to be present) .................................................................................................................................................................................................. 75

Appearance in Masters’ Chambers .................................................................................................................................................................. 76 Jurisdiction..................................................................................................................................................................................................................................................................................................... 76

South Side Woodwork (1979) Ltd v RC Contracting Ltd (1989) ......................................................................................................................................................................................... 76 Janvier v 834474 ................................................................................................................................................................................................................................................................................... 76 Schaffer v Lalonde ................................................................................................................................................................................................................................................................................ 76

Appeals ............................................................................................................................................................................................................................................................................................................ 76 Bahcheli v Yorkton Securities Inc – Standard of review not on exam ............................................................................................................................................................................... 76

Affidavits ..................................................................................................................................................................................................................... 76 Byer’s Transport v Terra Mining .................................................................................................................................................................................................................................................... 77 Barker v Budget Rent-A-Car of Edmonton Ltd .......................................................................................................................................................................................................................... 77

Questioning on Affidavit ........................................................................................................................................................................................................................................................................... 77 Saveva v Flight Centre ........................................................................................................................................................................................................................................................................ 78 Rozak Estate v Demas ......................................................................................................................................................................................................................................................................... 78 Smith v Coperstone Capital Inc........................................................................................................................................................................................................................................................ 78 Medicine Shoppe Canada Inc v Devchand ................................................................................................................................................................................................................................... 79 Kahara Budas Company, LLC v PLN (Persero) .......................................................................................................................................................................................................................... 79

Ch 23: Civil Contempt of Court ......................................................................................................................................................... 79 Cary v Laiken.......................................................................................................................................................................................................................................................................................... 80

Ch 24: Alternative Routes .................................................................................................................................................................. 80 Striking Out Pleadings ........................................................................................................................................................................................... 81

R v Imperial Tobacco Canada Ltd .................................................................................................................................................................................................................................................. 81 Joly v Pelletier ........................................................................................................................................................................................................................................................................................ 82

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Chutskoff v Bonora ............................................................................................................................................................................................................................................................................... 82 Summary Judgment ................................................................................................................................................................................................ 82

Hryniak v Mauldin ................................................................................................................................................................................................................................................................................ 83 Windsor v Canadian Pacific Railway Ltd ..................................................................................................................................................................................................................................... 83 1214777 Alberta Ltd v 480995 Alberta Ltd ................................................................................................................................................................................................................................ 83 776826 Alberta Ltd v Ostrowercha ................................................................................................................................................................................................................................................ 84 Stout v Track .......................................................................................................................................................................................................................................................................................... 84

Summary Trial .......................................................................................................................................................................................................... 84 Westjet v ELS Marketing Inc (ABCA) ............................................................................................................................................................................................................................................. 85 Manson Insulation Products Ltd v Crossroads C&I Distributors ......................................................................................................................................................................................... 85

Trial of Particular Questions or Issues........................................................................................................................................................... 85 Bailey v Guaranty Trust Co of Canada .......................................................................................................................................................................................................................................... 86 Gallant (Litigation Gaurdian of) v Farries .................................................................................................................................................................................................................................. 86 Edmonton Flying Club v Edmonton Regional Airport Authority ......................................................................................................................................................................................... 86

Delay ............................................................................................................................................................................................................................. 86 Empson v Wenzel Downhole Tools Ltd ......................................................................................................................................................................................................................................... 86 Dejanovic v Axa Pacific ....................................................................................................................................................................................................................................................................... 87 Calihoo v Canada (AG) ........................................................................................................................................................................................................................................................................ 88 Charik Custom Homes Ltd v Sara Developments Inc ............................................................................................................................................................................................................... 88

Security for Costs .................................................................................................................................................................................................... 88 Amex Electrical Ltd v 726934 Alberta Ltd .................................................................................................................................................................................................................................. 89 Koerner v Capital Health Authority ............................................................................................................................................................................................................................................... 89

Discontinuance of Action ..................................................................................................................................................................................... 89 Newel Post Developments Ltd v 1402801 Alberta Ltd ............................................................................................................................................................................................................ 90

Ch 25: Settlement .................................................................................................................................................................................. 90 Formal Offers ............................................................................................................................................................................................................ 90

Torode Realty (Edmonton Ltd v Winfield Power Co) .............................................................................................................................................................................................................. 91 Snihur v Grace........................................................................................................................................................................................................................................................................................ 91

Informal Offers ......................................................................................................................................................................................................... 91 Paniccia Estate v Toal ......................................................................................................................................................................................................................................................................... 91

IF YOU SETTLE, GET A RELEASE .......................................................................................................................................................................................................................................................... 91

Part V: TRIAL AND JUDGMENT .................................................................................................................................. 92

Ch 26: Entry for Trial and Trial ........................................................................................................................................................ 92 Entry ............................................................................................................................................................................................................................. 92

Tan v Swyrd ............................................................................................................................................................................................................................................................................................ 93 Attendance of Witnesses at Trial ...................................................................................................................................................................... 94

Mode of Trial ................................................................................................................................................................................................................................................................................................. 94 Jury Trial ..................................................................................................................................................................................................................... 95

Fowler v Dion ......................................................................................................................................................................................................................................................................................... 95 Ch 27: Judgment ..................................................................................................................................................................................... 95

1. What is the Difference between an Order and a Judgment? ............................................................................................................ 95 2. What is the Form for Judgment and Orders? .......................................................................................................................................... 95 3. Who Drafts, Signs and Enters the Judgment or Order? ...................................................................................................................... 95 4. What is the time limit for filing/entering the judgment or order? ............................................................................................... 96 5. Can a judgment OR order be varied? ......................................................................................................................................................... 96 Variation Before Entry .......................................................................................................................................................................................... 96

Lewis Estates v Brownlee LLP .......................................................................................................................................................................................................................................................... 96 Variation After Entry ............................................................................................................................................................................................. 97

Administrative Agencies, Boards, and Commissions (ABCs) ................................................................................................ 98

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Part I: FUNDAMENTALS

Ch 1: Introduction - What is Civil Procedure?

o Rule of law that courts will follow in adjudicating civil claims o A set of rules that create a means to access the civil claims process in fair, timely, and cost effective way.

A. Why are there Rules of Court? o Need rules and expectations about what happens next – need some level of 1) certainty, 2) repose/finality,

3) fairness, 4) order, 5) avoid surprises. o Different set for each jurisdiction in Canada.

Principle of the Rules – Natural Justice and Natural Fairness

- Rule of Law – law should not be arbitrary, should be accessible, individuals must know the law. - Natural Justice has Two Basic Concepts

o The rule against bias (for impartiality) – “No one should be the judge in his or her own cause” Members of tribunals, etc should be independent from the cause

o The right to a fair hearing has 3 assumptions 1) Sufficient Notice (to allow case to be prepared)

Allow for adequate preparation Can involve relaxing time limits with agreement of other party.

2) Know what evidence will be produced against them Know the case against them but not the arguments – no trial by ambush

3) Right to contest, correct or contradict evidence against you Right to state your own case and involves the right to obtain reasons for judgments, right

to counsel, presumption of oral hearings, right to cross examine witnesses, etc.

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Process of Civil Action

New Rules VS old Rules

- Old Rules – adversarial process: expectation of imposed solution, not necessarily mutual agreement – emphasis on disagreement – impartiality was highly expected

- New Rules – Emphasis on cooperation: work together to solve the issues and come to an agreeable outcome but still adversarial in nature.

o Came into effect Nov. 1, 2010 o New rules allow for room to argue a new interpretation of the rule OR argue that rule should be

interpreted in accordance to prior case law.

B. Purpose and Intention of These Rules Rule 1.2 “Purpose and Intent” section

STEP 1: PLEADINGS The court and other parties are given written

notice of the complaint and the position/allegations regarding the complaint.

STEP 2: EVIDENCE GATHERING (DISCOVERY)

Parties discover evidence each party might bring to the action via documents or oral

questioning.

Each party must make any unprivileged, relevant documents in its possession

available to the opposing party.

Each party may be questioned under oath by the opposing party.

Expert reports are exchanged prior to trial.

STEP 3: TRIAL Court hears all admissible evidence and

arguments which will allow a judge to rule on the claim.

Chambers Application

Short hearing before a Master in

Chambers or a Justice in Chambers

to resolve a procedural question.

Trial Alternatives [1] Striking Out

[2] Default Judgment [3] Summary

Judgment [4] Discontinuance

Settlement [1] Parties may settle outside of

litigation

[2] Parties may settle under the Rules of Court

(“Formal Settlement”)

[3] Parties may

settle in Mediation or Arbitration

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- Rule 1.2(1): The purpose of these 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.

- Rule 1.2(2) Rules are intended to o a) Identify the real uses in dispute o b) Facilitate quickest means to resolution at the least expense o c) Encourage parties to resolve claims themselves (cooperation) o d) Oblige the parties to communicate honestly and openly o e) Provide effective, efficient and credible system of remedies and sanctions to enforce rules orders and

judgments - Rule 1.2(3): To achieve the purpose and intention of these rules the parties must, jointly and individually during an

action: o a) Identify or make an application to identify the real issues in dispute and facilitate the quickest means of

resolving the claim at the least expense o b) Periodically evaluate dispute resolution process alternatives to a full trial, with or without assistance

from the Court. o c) Refrain from filing applications or taking proceedings that do not further the purpose and intention of

these rules, and o d) when using publicly funder Court resources, use them effectively.

- Rule 1.2(4): The intention of these rules is that the Court, when exercising a discretion to grant a remedy or impose a sanction, will grant of impose a remedy or sanction proportional to the reason for granting or imposing it.

- Rule 1.4 o To implement the purpose and intention of the rules referred to in Rule 1.2, the Court may make any order

with respect to practice and procedure - Rule 1.4(2)(g)

o Court may give advice including guidance, suggestions and recommendations C(L) v Alberta 2011 ABQB Facts: P brings application under 1.2 because D’s actions inconsistent with the New Rules (not abiding by the purpose of fairness and openness). 4 grounds for application of Rule 1.2

- 1) D actions not consistent with 1.2 - 2) D actions relate to procedural technicalities - 3) D not using quickest method to settle claims - 4) D not using open and honest communication

Decision: 1.2 is a guiding principle of new rules, does not change adversarial nature of civil litigation. - Purpose and intent of 1.2: arguably this changes the flavor and intent of all the rules and must be kept in mind when

interpreting each rule (even those that are worded as the old rules) - New Rules DO NOT change the adversarial nature of litigation - D is not required to assist the P in making their case against them - Some of the principles of fair and just resolution are conflicting aspects - No need to jump over process - No time frame under which you need to bring an application under 1.2

There are new requirements of D – D’s must disclose their positions and provide their defenses at the beginning and cannot just deny all allegations in a statement of claim. They can still use any defence that is not frivolous or untenable though. Hryrniak v Mauldin

- Increasingly there’s a recognition that culture shift is required to promote timely and affordable access to civil justice system.

- Shift includes simplifying pre-trial procedures and moving emphasis away from conventional trial in favour of proportional procedures tailored to the needs of the particular case.

- New models of adjudication can be fair and just. Nafie v Badawy

- Response to Hryniak: despite scarce judicial resources we must not cast aside established procedures and practices expressly prescribed by the rules for sake of expediency.

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Ch 2: Jurisdiction Four questions to ask regarding jurisdiction:

1. Does the decision-maker have territorial jurisdiction? 2. Does the decision-maker have jurisdiction over the person appearing? 3. Is the subject matter of the litigation within the scope of the decision maker’s authority? 4. Is the amount of damages or remedy sought within the monetary limits or scope of the decision maker’s

authority? Two Types of Actions Which Gives the Decision Maker Jurisdiction

- 1) In personam (against the person) – D is served within territorial boundaries of the court o Jurisdiction depends on the ability of the court to summon someone before it (ie resident of Alberta or

accepts service of the SoC in Alberta. - 2) In rem (action against land) – Court has jurisdiction if immovable is situation in the territorial boundaries

(cannot acquire jurisdiction over these types of actions. o Jurisdiction is where the land is

Section 96 Courts Section 96 superior courts include ABCA and ABQB – they have inherent jurisdiction (CL concept)

- Jurisdiction over all matters except those delegated to specialized tribunals - Inherent jurisdiction cannot be used to override existing statues or rules

o Why have inherent jurisdiction? Ensures fairness, prevents steps that would make ineffective.

- ABQB must also abide by Judicature Act and Court of Queen’s Bench Act - Rules of Court apply to ABQB and ABCA, Provincial Court Rules apply to ABPC.

Alberta Queen’s Bench Masters Chambers – Created by statute and NOT section 96.

Non Section 96 Courts - Provincial Courts & Tribunals

- Called inferior courts – set by statute – do not have inherent jurisdiction. - Small Claims Matters have increased to $50k

o Provincial Court Act: under 9(1)(i) may prescribe an amount not in excess of 50k for purposes of 9.6 (which outlines General Justice Matters).

o If claim exceeds 50k party can abandon a part of their claim to have their matter heard in small claim court (s. 9.6(4)).

- Federal Courts– Created by statute – can only do what the provisions in the statute say o Have exclusive jurisdiction to hear:

Crown land issues Tort actions involving the Crown Tax Court

Why allow power to create procedure?

- 1) So you know the rules - 2) Prevents steps that makes things ineffective - 3) Prevents abuse of process (judges are impartial) – aka ensures fair proceedings, prevents ineffective steps, ensures

decisions can be enforced, prevent abuse Why care about inherent jurisdiction?

- Gives leave to Court to fill gaps and make changes that better serve civil procedure (e.g. class action – all the rules used to say is that you could bring representative actions (2 or more people) – said nothing else, not true anymore.)

Specialized Tribunals and Judicial Review

- Statutes place authority in hands of tribunals, jurisdiction for them is statute-specific and may have effect of limiting the jurisdiction of the court.

- Examples: Workers Board, Surface Rights Board, Development Appeal Board and the Land Compensation Board.

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- Typically up for review by the courts but not generally fully re-litigated at court level. - Tribunal proceedings usually not bound to Rules of Court.

Ch 3: Costs and Fees

- Costs do not usually include those incurred prior to the action being started - One party generally required to pay costs to the other party - Types of cost awards

o Usually partial indemnification basis (“party and party costs”) o Being compensated for actual costs (Full indemnity basis)(“solicitor and client costs”) is rare. o On a punitive or deferential basis which exceeds indemnification. o Court can also say no order with respect to costs (common for matrimonial cases/child custody cases)

- Costs will follow the cause – costs won’t be awarded until the whole matter is completed at trial - Tribunals can also award costs – creatures of legislation so power to award costs found in statute - If hiring mediator may say in K with them whether or not can ask for costs as well

Purpose for awarding costs:

- Take some burden off the victors - Deter those who are wrong from going to court, to encourage the wrong party to settle

Types of costs that can be claimed

Filing fees, faxes and phone calls, disbursements (process servers, couriers, etc), witness expenses (to appear and give evidence), expert fees, lawyers fees

o Disbursement costs are flow through costs (costs money to file a SoC, money to get medical reports, money to mail things)

o Lawyer fees – amount lawyer charges for their services (running law office, paralegals, etc – hourly rate) Rule 10.9: reasonableness of a lawyers charges can be reviewed by a review officers (employee of

court services) either by the client or a lawyer (Rule 10.11) (generally lawyer who works and is employed in AB)

Can be reviewed despite any agreement to the contrary Rule 10.10(2): lawyers charges cannot be reviewed after 6 months pass after date that the charges

were sent to the client Rule 10.12: You have to pick a jurisdiction (usually closest to where the lawyer practices) If lawyer

wants it reviewed, lawyer must live or have office in Alberta to get it reviewed by Review Officer in Albert. If client wants reviewed in Alberta, client must live in Alberta. Must have some connection to jurisdiction.

Rule 10.20: the decision of the review officer can be entered as a judgment or order therefore if have a client that will not pay bill can set up a review and have court officer

review it – can have an instant judgment in hand (can get court order to pay) Don’t have to file a SoC or go after them in small claims court.

o Costs of the court – court will require one party to pay the other 3 Principles Belonging to Costs

- 1) Indemnification o Party cannot recover more costs than they incurred in their expenses (not damages) o Level of indemnification is subject to courts discretion

a) On a partial indemnity basis = party and party costs – usual award Schedule C – Tariff or recoverable fees: sets out the fees you can recover Schedule B - Amounts that apply to experts. Rules not only require that you send witness

notice but also must give allowances (bus/plane fare) or else the notice isn’t sufficient b) On full indemnity basis = solicitor and client costs – costs for all expenses

Usually done when one party has done something inappropriate c) On a punitive or deterrent basis which exceeds indemnification (not really indemnification)

4.29(1) Example: formal offer to settle from P and D declines. If judgment for P is more favourable than offer then entitled to double costs.

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Rule 10.33(2)(b): there are certain factors the court can consider when determining costs – can vary award costs if the party failed to admit something they should have admitted

Rule 10.50: court can order a lawyer to pay a costs award if the lawyer engaged in serious misconduct

Rule 10.53(2): court can order costs against a person in civil contempt (wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court)

- 2) Costs belong to client and not lawyer o Client can contract to pay costs to lawyer who then pays

- 3) Rule 10.29(1): General rule is that successful party is entitled to costs immediately o Application Question: Why would D bring counterclaim and not new action? Because counterclaim will

determine both right away and could balance out (rather than paying and having new action) o Party may not recover more costs than actually spent in expenses o Trying to put party back in their original position o If court is silent on costs this is default position

Authority for Costs:

- Court of Queen’s Bench Act S.21 and Court of Appeal Act S.12 o Subject to an express provision to the contrary in any enactment, the costs of and incidental to any matter

authorized to be taken before the Court or a judge are in the discretion of the Court or judge and the Court or judge may make any order relating to costs that is appropriate in the circumstances

o Rule 10.29: applies if parties do not speak to costs and states that costs are payable immediately by losing party to winning party

Schedules B and C of the Rules outline costs that a party can claim Rule 10.49 – Penalty for Contravening Rules

- 1) The court may order party, lawyer or other person to pay to the court clerk a penalty in an amount determined by the court if…

o (a) the party, lawyer or other person contravenes or fails to comply with these rules or practice note or direction of the Court without adequate excuse, and;

o (b) the contravention or failure to comply, in the Court’s opinion, has interfered with or may interfere with the proper or efficient administration of justice.

Rule 10.29(1) – General Rule for Payment of Litigation Costs - A successful party to an application, a proceeding or an action is entitled to costs award against the unsuccessful

party. This is subject to a number of considerations including Rule 10.31. Rule 10.31 – Court-Ordered Costs Award

- After considering matters in Rule 10.33, the court has the discretion to order one party to pay the other one or a combination of:

o The reasonable and proper costs of litigation o Any amount the Court considers appropriate, including an indemnity to party for that party’s lawyers’

charges, or a lump sum instead of, or in addition to, assessed costs. Rule 10.33 – Court considerations in making costs award

- (1) In making a cost award, the Court may consider: o (a) Result of the action and degree of success of each party o (b) Amount claimed and amount recovered o (c) Importance of issues o (d) Complexity of action o (e) Apportionment of liability o (f) Conduct of a party that tended to shorten the action, etc. o (g) Anything else the court wants

- (2) In deciding whether to impose, deny or vary cost award, the Court may consider: o Conduct of the parties o A party’s denial of or refusal to admit anything that should have been admitted o See rule for 5 other factors, the one we went through in class is bellow

(b) A parties denial or refusal to admit anything that should have been admitted Operation of Rule 4.29 on Awarding Costs via Schedule C Rule 4.29(1): Plaintiff makes offer which is not accepted. If the plaintiff gets a judgment that’s equal to or better than the

original offer, the plaintiff is entitled to double costs.

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o E.g. If under Schedule C they would’ve gotten $5,000 they now get $10,000. Rule 4.29(2): If defendant makes an offer that isn’t accepted and gets a judgment equal or more favourable, the defendant

will get costs for all steps taken after serving the formal offer. If the claim is dismissed completely, the defendant is entitled to double costs [Rule 4.29(3)].

Ch 4: Professional Responsibilities Who is Lawyer of Record: Rule 2.24:

- (1) The lawyer of record is the person responsible for conducting the action and following the rules. Establishes that when your name or name of your firm appears on a commencement document, pleading, affidavit, etc then you become lawyer of record

o (2) When there is a lawyer of record, the party for whom the lawyer of record acts may not self-represent unless the Court permits.

o (3) A lawyer of record remains a lawyer of record until the lawyer ceases to be a lawyer of record under these rules

Under 2.24 you are responsible for conducting the action and following the rules Ties into purpose and intent statement in rule 1.2: Have to facilitate quickest means to resolve claim,

have to communicate openly, honestly and in a timely way, rules have to create an effective, efficient system for remedies.

Rule 11.17(1): A commencement document may be served on a party by being served on the lawyer of record for the party

- (a) by being left with the lawyer, being left at the lawyers office, or being left at another address specified by the lawyer, or

- (b) by being sent by recorded mail, addressed to the lawyer, to the lawyer’s office. Duties of the Lawyer of record: Rule 2.25(1)(a): Lawyer of Record must abide by rule 1.2 Verifying Lawyer of Record: Rule 2.26(1): If a person who is served with a commencement document, pleading or other document asks a lawyer or firm of lawyers if the lawyer/firm is a lawyer of record in an action, application or proceeding, the lawyer must respond to the question in writing as soon as practicable (with direction from the client) Rule 2.26(2): If a lawyer/firm whose name appears as the lawyer of record in an action denies being the lawyer of record

- (a) every application and proceeding in the action is stayed, and - (b) no further application, proceeding or step may be taken in the action without the Court’s permission.

Note: Rule 2.27: Retaining lawyer for a limited purpose.

Change of Solicitors or Withdrawal Changing a lawyer of Record Rule 2.28(1): To change lawyer of record, the client must:

o (a) Serve a notice of change (Form 3) o (b) File an affidavit of service

- (2): Self-rep has to serve notice to all parties if they get a lawyer - (4): Notice is not required when (a) a party is noticed in default, or (b) if there is a default judgment

Getting Off the Record – Prior to Trial Date Scheduled Rule 2.29: For the lawyer to get off the record, lawyer must:

o (a): serve on the client and parties a notice of withdrawal (in Form 4) that states: (i) Clients last known address (ii) That on expiry of 10 days after the filing of the affidavit of service, the lawyer will no

longer be the lawyer of record AND

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o (b) File an affidavit of service of the notice - (2): Still on the record for 10 days

o Lawyer can’t simply leave client, must advise client on getting a new lawyer Lawyer cannot simply leave client – must advise client on getting new lawyer After Trial Date Set Rule 2.31: After a trial date is scheduled, a lawyer cannot withdraw without the court’s permission

- Note: Rule 2.30: once lawyer withdraws from the record, you can’t serve the former lawyer after the 10-day period - Note: Rule 2.32: when lawyer automatically ceases to be lawyer of record

o (a) In the case of an individual lawyer (i the lawyer dies, (ii) the lawyer is suspended or disbarred from practice as a lawyer, or (iii) the lawyer ceases to practice as a lawyer;

o (b) In the case of a firm of lawyers, the firm dissolves. Law Society of Alberta Code of Conduct Rules

- Rule 2.07(1): Lawyer can’t withdraw from acting for client except with good cause and upon reasonable notice Right of Lien:

- Counsel has a lien on a client’s file. If client chooses to leave counsel’s office, normally file belongs to client and client take file with them. o But if no pay no file because counsel who hasn’t been paid has a lien on it.

Undertakings - Rule 5.30: Undertakings - A promise to do something – any sort of promise a lawyer makes (written, oral or implied)

that’s relied on, in some manner, by another party o Presume the utmost good faith o Must personally be fulfilled

- Any ambiguity as to whether the undertaking was a personal one on the part of the lawyer is resolved AGAINST he lawyer and in favour of finding personal liability against him

- Court takes these very seriously - B&J Petroleum Ltd. v Rhim

Law Society of Alberta Code of Conduct Rules

- 4.01(7) A lawyer must strictly and scrupulously fulfill any undertakings given and honour any trust conditions

accepted in the course of litigation - 6.02(13) A lawyer must not give an undertaking that cannot be fulfilled and must fulfill every undertaking given and

honour every trust condition once accepted o 6.02(13) Commentary: Undertaking should be written and be absolutely unambiguous. If lawyer does not

intend to accept personal responsibility, this should be stated clearly in the undertaking itself. If there is no such statement, the person to whom the undertaking is given is entitled to expect that the lawyer giving it will honour it personally.

Trust Conditions: requirements that must be met before both parties are deemed to have completed their roles. Undertakings must be fulfilled by the lawyer the obligation is absolute! Never give an undertaking for something that you can’t control. Trust condition applies to the lawyer regardless of what client instructs you to do, they can advise you otherwise, but lawyer cannot ignore an undertaking. You should not accept undertakings that require another party to complete certain requirements – you could be held responsible for their failure to complete the requirement

- If you cannot accept trust condition exactly as it is in the trust document then you must reply to the other lawyer and say you can’t. You can’t negotiate, must arrive at a whole new set of trust conditions.

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o If you can’t fulfill then you must report it to the Law Society o Court can enforce in the form of a judgment for damages through inherent jurisdiction

Court claims inherent jurisdiction to enforce undertakings (enforcement is not found in the Code of Professional Conduct, only the duty).

Court enforces undertakings through a judgment for damages (via inherent jurisdiction) Witten, Vogel, Binder & Lyons v Leung 1983 ABQB Facts: D firm breached trust condition of undertaking regarding returning 2 copies of executed documents within 10 days. Client told lawyer not to return document within time frame. Decision: Solicitor must comply with any trust conditions that they have accepted

- trust conditions cannot be varied and are set in stone - Parties must comply with the trust conditions without any questions. The obligation is absolute. Once you have

accepted trust conditions you are bound. o If you don’t think you can fulfill trust condition, or trust condition you accept requires your client to do

something, ask to vary the condition so it’s up to you to carry out the condition, so you can ensure you fulfill it.

- Also not what your clients wants you to do. If you agree to trust condition, you must fulfill the obligation regardless of whether your client screwed up.

- Note: Lawyer is officer of the court, you have higher duty to the court than the client.

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Part II: PLEADINGS

Ch 5: Commencement of Action Four Steps

- 1) Determine who the potential parties are o See Ch 6 o Must have cause of action against each D, if you don’t then D can strike entire SoC (and can seek costs against

P) o Must have facts that support every single claim

If you can’t identify claim but think there might be something then you have to file SoC against D (can claim and look for more facts later) or risk losing limitation period) – rules on ammendments are very liberal, can add D’s later (must only be “a scintilla of evidence”)

- 2) Determine whether plaintiff has capacity to sue o See Ch 6 o Individual and corporation can sue, if corporation sues then there is procedure that must be followed o Are children involved?

Don’t have capacity to bring action in Alberta o Incapacitated Adults (mental ability)? o Deceased People – Could strike claim o Rule 2.11 – litigation representative:

LR is required for: individuals under 18, an adult who lacks capacity as determined by Alberta Guardianship and Trustees Act, an individual who is represented under the AGTA, or a person who is dead.

o Executor of an estate can bring or defend an action. - 3) Cause of action must arise prior to bringing the action

o Cannot bring an action until after the breach o E.g. Business Corporation Act s. 119 – It would be premature to bring an action against the directors for

unpaid wages before bringing an action against the corporation Must exhaust all actions against corp before going after directors.

o E.g. If landlord has tenant that can’t pay, landlord can’t do anything until the rent payment date has passed before an action can be brought.

- 4) Consider bars to action o 1) Contractual Agreement

Contract out of settling disputes – most insurance liability contracts say that no action can be commenced against the insurer until a judgment has been entered against the insured, following the trial of an action.

Arbitration Act s.7(1): arbitration must be gone through before an action can be brought before the act – court will stay the proceedings in order for arbitration to proceed. Can’t be used to bar an action though.

Labour Dispute – labour law requires arbitration. Labour arbitration hears claim, not the court.

o 2) Res Judicata Prevents re-litigating something that has already been decided Also known as Estoppel by Res Judicata = rule of evidence applies when you have the same claim,

same matter, same parties and there has been a final judgment. If there is administrative decision already decided and then brings action to the court, this is barred Concept of someone who has been removed from court room because disruptive – bring claim

against police, claiming unnecessary and don’t need to be removed, decided under police admin procedure – not jurisdiction question, question is whether are we re-litigating the same manners (ie already decided by College of Physicians but want to go through court because not happy with decision)

o 3) Bars against the particular cause of action Something that’s against public policy

Can’t bring cause of action for gambling Can’t enforce K’s for servitude, prostitution, illegal acts, slavery.

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o 4) Failure to obtain essential prerequisites If there is a debt it usually requires demand If have a case of guarantee – usually must make request against the debtor before can go against the

guarantor. E.g. Student loan and have guarantor – must go after you first.

o 5) Statutory Bars – generally absolute bars Limitations Act – SEE BELLOW Workers Compensation Act – means cannot bring action against employer, claim is determined by

workers compensation board. Freedom of Information and Protection of Privacy Act – Information Privacy Commissioner deals with

access to info, if someone in their office accidently revealed info that they shouldn’t have, you can’t sue the commissioners office or any of his staff.

No action on a Commissioner who acted in good faith: FOIPP s 69 Many Acts about bars against particular people (like masters of QB)

No action on Master who made an order outside his jurisdiction- Section 14 of the QB Act – no action can be brought against a Master if he actions outside his jurisdiction, unless he acted maliciously Also, no damages can be awarded against a party who acted on an order given by a

master without jurisdiction (s. 14(2))

Limitations Periods - Three reasons for Limitations Act

o 1) Evidentiary reasons – deciding a dispute depends on applying the law to the facts – which requires evidence. D may not

know what records to keep and how to protect themselves if the action happened a long time ago. Especially apply to D’s who supply goods to people

witnesses may forget/die/get lost D’s are more vulnerable than P’s

o 2) Peace and Repose – D is entitled to have their legal issue resolved in a timely manner. Want to ensure judges are dealing

with current disputes. o 3) Economic Reasons –

If D is vulnerable to a claim/action it may affect their ability to enter into future business transactions.

- Two Core Concepts in the Limitations Act (Section 3) o (a) Knowledge (aka discoverability) – limitation period does not commence until claimant has discovered

the claim: section 3(1)(a) = Claimant ought to have discovered 3 things i) Injury Occurred ii) Attributed to conduct of D iii) That it is sufficiently serious to warrant bringing a proceeding

After discovery claimant has 2 years to bring claim (discovery limitation period) Do not have to have knowledge of full extent of your damages, just some damages

o (b) Repose or Finality (section 3(1)(b)) – incorporates certainty by providing absolute cutoff date. Doesn’t mean claim is extinguished but D entitled to immunity from claim – could be anywhere

from 2-10 years. Aside: if brought in another jurisdiction with another time period you may be able to bring

claim there E.g. Bowes v City of Edmonton – homes in Edmonton slid into the river, unfortunately damage

occurred 11 year prior. - Alberta has “new” limitations act – changed from prior limitations which limited particular types of claim – medical

negligence, personal injury, contract all different – BC, ON, SK, NB all use “new” concept - D is entitled to a limitation defense either to the discovery limitation or the ultimate limitation. This is therefore only a

shield and not a sword. Due to this you MUST plead limitations act in SoD. o If D successful, then D has immunity from liability under the claim

Key Points in Limitations Act

- Shield not Sword

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- Definition of a claim – s.1(a): claimant seeks remedial order - Remedial Order – s.1(i): judgment or order made by court which requires D to comply with the duty and pay damages

o Limitation Act does not apply to declarations, an order for enforcement of remedial order, judicial review of powers that are conferred on the administrative body by statue

o Section 2(4)(b): Act doesn’t apply where it is ousted by limitation periods in other enactment there may be limitation provisions in other enactments that deal with particular types of claims

which are excluded from the limitations act (e.g. municipal government act – municipality leaves a hazard and someone gets hurt, if suing city of Edmonton you have 6 months from the time accident occurred to bring claim)

- Special Circumstances that modify limitation period – both discovery and ultimate period can be suspended o Section 4 – if someone fraudulently concealed the injury for which remedial order is sought. o Section 5 – suspended when a person is under a disability (example minor –time period does not start

running until 18, (can start running if D gives notice to minor) or adult unable to make reasonable judgment. defendant delivers notice to guardian or Public Trustee + pays the Public Trustee’s fee limitation

period will begin to run once notice is received. Disability can include depression

o Section 6 – claims added to a proceeding after limitation period has expired Notwithstanding the expiration of the limitation period, where a claim is added, the D is not immune

from liability. Requirements for Amending pleadings (adding parties or claims) after expiration of Limitations

period Threshold Requirement: Proceedings previously commenced within limitation period

o 1. No Change of Party (section 6(2)) Changing the types of things you are claiming Relationship Requirement: has to relate to the conduct, transaction or

events described in original pleading Ex. adding an additional injury to a previous injury claim (where

addition injury may not have show up right away) o 2. Change of Claimant (section 6(3))

Use: misnamed the claimant, put down the wrong P 3 Requirements:

1. Relationship Requirement 2. No Prejudice to D (limitation + service time)

o D needs sufficient knowledge of claim that they will not be prejudiced by added claim

o Section 6(3)(b) says the defendant must have received sufficient knowledge of claim within limitation period plus time for service (could be a shorter government limitation period too))

3. Needed to determine the original claim o Ex. someone dies and need to name personal

representative o Cat add in a true stranger (ex passenger in MVA, not

needed to determine drivers claim) o Change of Defendant (section 6(4))

Need relationship requirement No prejudice to D (limitation + service) No requirement to show its somehow related *

Claimant proves: 1. Relationship requirement 2. Needed to determine original claim (not needed for (6(4))

Defendant Proves: 1. Prejudice (no notice in limitation period +service time)

o Section 7 – Standstill agreements which suspend the limitation period. Can suspend but not reduce it. o Section 8 – If D acknowledges the claim or makes a part payment (debts, rents, income, etc) before the

expiration of the applicable limitation period, the operation period begins again at the time of the acknowledgement or part payment

o Section 11 – judgment for payment of money – if within 10 years after claim arose, claimant doesn’t seek a remedial order in respect of a claim based on a judgment or order for the payment of money, the D is immune from this liability.

o Section 12 – Conflict laws –

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The Act applies to any proceeding commenced in Alberta Exception: where a proceeding would be determined in accordance with the law of another

jurisdiction if it were to proceed, and that jurisdiction provides a short limitation period, then the shorter limitation period applies.

E.G. AB couple gets into accident in California (Castillo case) If Cali limitation period shorter then this limitation period applies If longer bring action in Cali and argue for their limitation period.

Summary: If appears out of time ask 8 questions:

- 1) Are the criteria under section 3 met (P knew or ought to have known) - 2) Has there been a period of disability (e.g. physical injury/depression) - 3) Was the P a minor at the time the action arose? - 4) Was there an agreement to suspend the running of the limitation period? (e.g. standstill agreement) - 5) Could a claim be added under S.6 of Act

o An added claim is one based on different and distinct events giving rise to different and distinct loss when compared to those pleaded originally (as opposed to amendment which is same facts pleaded differently and are not concerned with limitations)

- 6) Could a different case of action have arisen at a later time? - 7) Is there another jurisdiction where the limitation law differs when actions may be brought? - 8) Has there been fraud? (i.e. to stop the limitation period from running)

Boyd v Cook 2013 ABCA Test not whether P knew situation warranted suing, rather it is whether he knew or whether in the circs ought to have known. Facts: D and P knew each other, D tried to get P to invest in certain land development projects. P always rejected, finally D induced P to invest money in mortgage company. Later P found out 60% was invested in rejected development project. P suffered losses as a result of the development going under. D told P after discovery of fraud not to worry and he would get his money. Issue: Had limitations period expired? Decision: Yes. Reasons: Section 3(1)(a) of Act says that 2-year limitation period only starts to run when the P knows (or ought to have known) three things

- P suffered injury - Injury was from D’s conduct - The injury assuming liability on the part of D warranted bringing a preceding

o This was in dispute o Liability was not something which the P had to know, it is assumed. What P had to know was that the

injury warranted suing. o The P did not really believe that he would get his money back and no reasonable person would have.

- Reasons for Limitations statutes generally: Provides certainty “in their lives to all those who may at some time be sued” It is a “nuisance and expense to have to keep voluminous records in perpetuity” “it is unjust to sue people once their former ability to defend themselves has evaporated”

Generally How to Start an Action Rule 3.2(1) An action may be started only by filing in the appropriate judicial centre determined under rule 3.3 (determining the appropriate judicial centre)

- a) a statement of claim by a P against a D - b) originating application by an originating applicant against a respondent - c) a notice of appeal, reference, or other procedure or method specifically authorized or permitted by an enactment.

Statement of Claim Rule 3.2(2): A statement of claim must be used to start an action unless

- (a) There is no substantial factual dispute - (b) There is no person to serve as the D - (c) A decision, act or omission of a person or body is to be the subject of judicial review

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- (d) An enactment authorizes or requires an application, an originating application, an originating notice, a notice of motion or a petition to be used.

- (e) An enactment provides for a remedy, certificate, direction, opinion or order to be obtained from the Court without providing the procedure to obtain it, or

- (f) An enactment provides for an appeal to the Court, or authorizes or permits a reference to the Court, or provides for a matter to be put before the Court, without providing the procedure to be used,

- in which case an originating application may be used to start the action. Contents of SoC Rule 3.25: SoC Must

- a) be in form 10 - b) State the claim and basis for it - c) state and specify the remedy sought - d) comply with the rules about pleadings in Part 13

Requirements of a Statement of Claim/Defence Be “substantively adequate”

o 1. A statement of claim must set out facts which if true entitle the P to the legal relief claimed If the statement of claim fails to do this, the D can attack the pleading through a motion to strike

o 2. A statement of Defence must also set out facts that if true provide the defendant with a valid defence to the P’s claim

If the Statement of Defence fails to do this the P may bring an application to strike out the Defence

Originating Application - In appropriate circs an originating application may be more conducive to expedite resolution of a matter. - It gets you into court on a specific date to have the matter heard, and where its use is appropriate, dispenses with

many steps that would follow a SoC (Dash Distributors) Dash Distributors Inc. v Powlik Originating applications cannot be used when there are factual disputes. Facts: Claimant wanted to commence claim against D on summary basis (not a lot of facts in dispute), therefore they did so by an originating application, because can be fast solution if case can be solved Issue: Can they bypass a SoC? Decision: Substantial factual dispute, therefore could not be determined summarily, must convert to a SoC

Ch 6: Parties

- 1) Corporations - 2) Partnerships – LLP’s - 3) Sole Proprietors - 4) Societies - 5) Deceased litigants (FAA, SAA) - 6) Interveners - 7) Litigation Representative - 8) Crown - 9) Self represented litigants ties

Business Entities

1) Corporations Alberta Business Corporations Act (ABCA) & Partnership Act

- In order for a corporation to bring an action, it must first authorize that action to be named as a P. Must do so by looking at bylaws/directors.

- Corporation must retain counsel to be represented under 106(1) - Section 9: Corps comes into existence on the date shown on the certificate of corporation

o A corp must be registered in order to bring/defend an action - Section 16: Once corp is registered it has all the rights and privileges of a natural person

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- Section 227(2)(a&b): Corp can bring action or D an action before it is dissolved and the action survives the dissolution

o A corp can be sued for up to 2 years after it is dissolved o 227(2)(b): any property still available can be used to satisfy the judgment

- Liability of Shareholders o Section 227(4): Available property includes property a shareholder received on the liquidation as long as an

action has been started at least 2 years after dissolution Section 46: Otherwise shareholders protected from liability

- S 46(1)- Shareholders protected from personal liability - Liability of Directors

o Section 118: Directors can be jointly and severally liable to a corp if they authorize a transaction that results in a loss

o Section 119: Directors may be jointly and severally liable for 6 months of employees wages o Section 122: Directors can also be sued for breaching statutory standards of care requiring them to protect

the best interest of the corporation (fid duty)

2) Partnerships - Generally liable for their own actions, actions of other partners, liable for the firm - Not purely statutory existence, CL does apply to partnership as well - Rule 2.1(1) an action against two or more persons acting as partners may be brought using the partnership name (e.g.

Smith Jones LLP can sue law firm do not have to name each partner) o If an action is brought using partnership name, any party can require them to disclose names and

addresses of all the partners under rule 2.4 o May be prudent to name every partner because rule 2.3 says must personally serve the partner with the

commencement document and the notice that they are a partner during time of cause of action arose to enforce any order against them.

If one partner is more wealthy may want to enforce judgment against the one and not others. Limited Liability Partnerships (LLP)

- Section 12 of Partnership Act: LLP – partner in LLP is not individually liable for debts, obligations or liabilities of the partnership or another partner that arise through negligence, wrongful acts, omissions, malpractice or misconduct of another partner or employee or another agent that occur while carrying on practice in an eligible profession

o If negligent, etc or doesn’t things purposely wrong then other partners will not be liable. Only exception is if other partner knew what the other one was doing.

o E.g. someone in partnership decides to take trust money, you are not liable for that loss. Doesn’t apply if partner knew about other persons action, or didn’t take reasonable steps to prevent

it, or employee was required to be supervised. - 12(1) Subject to subsections (2) and (4), a partner in an Alberta LLP is not individually liable, directly or indirectly by means of indemnification,

contribution, assessment or otherwise, for debts, obligations or liabilities of the partnership or another partner that arise from the negligence, wrongful acts or omissions, malpractice or misconduct of

o (a) another partner, or o (b) an employee, agent or representative of the partnership that occur in the ordinary course of carrying on practice in an eligible

profession within the meaning of section 81 while the partnership is an Alberta LLP. - (2) Subsection (1) does not operate to protect a partner from liability

o (a) where the partner knew of the negligence, wrongful act or omission, malpractice or misconduct at the time it was committed and failed to take reasonable steps to prevent its commission, or

o (b) where (i) the negligence, wrongful act or omission, malpractice or misconduct was committed by an employee, agent or

representative of the partnership for whom the partner was directly responsible in a supervisory role, and (ii) the partner failed to provide such adequate and competent supervision as would normally be expected of a partner in

those circumstances. - (3) A partner in an Alberta LLP is not a proper party to a proceeding by or against the partnership that claims relief in respect of negligence,

wrongful acts or omissions, malpractice or misconduct referred to in subsection (1). - (4) The protection from liability given to a partner under subsection (1) shall not be construed as offering any protection from claims against that

partner’s interest in the partnership property.”

3) Sole Proprietorships Rule 2.5: A person can carry on business under their name or under a trade name and bring or defend action in that name

- Want to name sole proprietor and name his business jerry jones and jerry jones shoe renew - Want to be able to enforce against proprietorship and jerry jones personally.

Rule 2.5(2): Can give them notice requiring the person to disclose, in writing, the legal name of the person carrying on the business or operation.

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4) Societies If incorporated society they can bring or defend actions in their own name. Societies Act:

- Section 3 Group of five or more persons that exist for the purpose of not carrying on a business - Section 13: Society exists from the time of incorporation, not prior to registration. If not registered then not able to

name that entity. - Section 14: Society has all the rights and powers of a regular corporation - Section 21: No member of a society is, in the member’s individual capacity, liable for a debt or liability of the society.

Persons Lacking Legal Capacity

5) Deceased Persons – Under FAA & SAA - Deceased litigants are not legal entities and neither is their estate, so action can’t be brought in their name. - Need Personal Representative: must have either executor or administrator to bring or defend an action as a

representative of an estate; do not need to name the beneficiaries (a deceased person nor an estate is a legal entity). - Executor is generally named in a will - Court can appoint a representative – if estate does not have a personal representative can appoint one, called a

litigation representative: o Administrator ad litem – for the litigation

A person appointed by a court to represent an estate during a lawsuit. (Ad litem is Latin for "during the litigation.") An administrator ad litem is appointed only if there is no existing executor or administrator of the estate, or if the executor or administrator has conflicting interests.

- Any judgment against the deceased would apply against the assets of the estate - Any judgment for the deceased would be paid into court and dispersed amongst the beneficiaries - Fatal Accidents Act

o At CL: damages in tort intended to bring person back to original position. When someone killed they can’t do this, so we have idea that damages are not meant to be punitive, meant to compensate.

Saying: it’s cheaper to kill then to maim, could not bring action on someone that had died. o FAA: displaces CL, if person dies through wrongful actions of 3rd party (tortfeasor) the cause of action against

the tortfeasor survives for benefit of spouse, partner, siblings, or parents (section 3). Generally bring action as personal representative but if they don’t do this the beneficiaries can bring

action. o Can bring 2 types of damages claims:

1) Section 7: Expenses essentially (care between injury and death, damages to car, property, funeral expenses, travel),

2) Section 8: Can bring action for damages for bereavement (statutory damages). Bring action for grief without proof of loss. Applies to spouse/partner, parent or child.

o Dead child/spouse or interdependent adult: $82k for o Dead parent: $49k – any children

Side note: in Ontario you must prove your damages. Only 3 provinces have this, Alberta, Sask, and one more.

- Survival of Accidents Act

o If a party dies with an interest in an action, their interest continues for the benefit of their estate (Survival of Actions Act, s2 (for estate), s 3 and 4 (against estate)). The name in the style of cause would be amended to the PR.

o Section 5: Can claim for pecuniary damages. Much broader group can bring claim for actual expenses and damages than for FAA (but much smaller for emotional pain)

o Transfers cause of action or liabilities of deceased estate (overrides CL) o If tortfeasor dies at time caused damage, act deems there to have been a claim by P prior to death o Not all damages that resulted in loss are going to be recoverable, have to be actual financial loss o Punitive damages excluded: can’t have pain and suffering for someone no longer around. Can’t claim for

future loss or earnings or expectation of life. o Can bring claim for damage to property, expenses incurred after accident (meds, physio) – pecuniary

damages

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- Example of how to name a personal rep in a SoC. o Ferraiuolo Estate v. Olson: Dante Ferraiuolo, Personal representative of the estate of Maria Rosa Farrurlo,

deceased In the pleadings also have to outline how the person is the personal rep.

6) Interveners – see pg 36 of CAN

- Rule 2.10: Court can grant who will be an intervener in an action o Generally in private civil actions, the court will not allow a number a interveners

Infants - Claims involving minors governed in part by Minors Property Act and Public Trustee Act - Family Law Act – a PR is appointed and they must act in the interests of the child. The PR (litigation representative) is

an officer of the court - If an action is brought against a minor, their guardian may defend the action (the litigation representative).

Persons of Unsound Mind - Governed by Public Trustee Act and Dependent Adult Act.

7) Appointment and Role of Litigation Representative Rule 2.11: 5 situations where you need a litigation representative

- (a) Minor o In AB minors are ppl under 18 o Do not have capacity to instruct counsel o Litigation representative could be a guardian or a next of friend o Litigation Representative is going to be an adult and will

A) instruct counsel B) Liable for costs C) Enforce any order if the minor wins D) Act for the benefit of the minor and in the minors best itnerest

o Litigation representative for a minor (“next friend”) is an officer of the court they have to be unbiased, can have no benefit to themselves.

o If action brought against a minor, the guardian or litigation rep has to defend action o Rule 10.47: Litigation representative for P is liable for costs awarded against P, a litigation rep for D is not

liable unless the lit rep has engaged in serious misconduct and the court orders so. - (b) Missing Person

o person under Public Trustee Act - (c) Adult Lacking Capacity

o Represented adult or person who lacks capacity to make decisions: Guardian who decides where they will live, eat, what clothes to wear Also have trustee who is taking care of the money or finances Adult Guardianship and Trusteeship Act and Mental Health Act. Some times people lack capacity in one

area but not another. People may have varying levels of capacity. May not have capacity to give direction to counsel. May not have to have a trustee just for the trial.

Represented person may have a trustee who is limited appointment where court specified the things they can handle (e.g. finances) BUT may not include bringing litigation. Therefore may need a special application to widen the scope of what they can do.

- (d) Represented Adult o Person is represented adult under Adult Guardianship and Trusteeship Act where no person is

appointed to make a decision about a claim o Under Act this can mean 2 things

1) They don’t have anyone to make decisions 2) They have a trustee or guardian who makes decisions

trustee deals with money, guardian deals with care decision o Can only bring action if the court authorizes it – cannot bring action for purely financial reasons o 2 acts that apply: Mental Health Act and Public Trustee Act

- (e) Estate

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o If estate has not personal representative. Rule 2.12: Three types of litigation representatives

- (a) Automatic o Rule 2.13: If an individual or estate is required to have a litigation representative under rule 2.11, a person is

an automatic litigation representative for the individual or estate if the person has authority to commence, compromise, settle or defend a claim on behalf of the individual or estate under any of the following:

(a) an enactment; E.g. Personal Directives Act allows you to name an agent to deal with all health care

affairs. (b) an instrument authorized by an enactment; (c) an order authorized under an enactment; (d) a grant or an order under the Surrogate Rules (AR 130/95);

E.g. Estates: can apply for grant and obtain executorship and thus PR of estate (e) an instrument, other than a will, made by a person, including, without limitation, a power of

attorney or a trust. E.g. Under Power of Attorney Act, if I become incapacitated, my husband is automatically

named as my trustee . This gives whoever the authority to commence, compromise, settle or defend a claim on behalf of an individual or an estate under any of the following

Personal Directive Act: Adult Guardians Trustees Act: If already guardian/trustee, you automatically become

litigation representative , you can set up to have enduring power of attorney spring into action when you lose capacity

- (b) Self-Appointed Litigation Representative o If a party has to have a lit rep an interested person can come forward and file affidavit and say I want to be

appointed as a lit rep o Rule 2.14: If an individual (ex. an injured minor) or estate has no litigation representative (any of the above 5

groups where litigation representatives are required), an interested person may file an affidavit to become one.

Individual must set out certain info about why they want to be appointed. Court will look at their interests. They will be liable for costs.

- (c) Court Appointed o Rule 2.15: sets out court appointed lit reps: Where action brought against deceased or where there is no

one to represent the D. The individual can have any interest in the outcome (party adverse in interest can apply to court to have litigation representative appointed).

o Rule 2.16 (1): Court-appointed litigation representatives in limited cases.

This rule applies to an action concerning any of the following o a) the administration of the estate of a deceased person o b) property subject to at trust o c) the interpretation of a written instrument o d) the interpretation of an enactment

(2): In an action described in (1), a person or class of persons who is or may be interested in or affected by a claim, whether presently or for a future, contingent or unascertained interest, must have a Court-appointed lit rep to make a claim in or defend an action or to continue to participate in an action, or for a claim in an action to be made or an action to be continued against that person or class of persons, if the person or class of persons meets one or more of the following conditions

A) the person, the class, or a member of the class cannot be readily ascertained, or is not yet born.

B) the person, or class or member of the class, though ascertained, cannot be found C) the person, the class or the members of the class can be ascertained and found, but the

Court considers it expedient to make an appointment to save expense, having regard to all the circumstances, including the amount at stake and the degree of difficulty of the issue to be determined.

(3): On application by an interested person, the Court may appoint a person as litigation rep for a person or class of persons to whom this rule applies on being satisfied that both the proposed appointee and the appointment are appropriate.

- The person will have the authority to bring an action, settle an action, or bring a claim

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- Generally litigation reps must have court approval to settle, discontinue or abandon an action. Unless their interest in power allows them to do that.

- If lit rep receives money other then cost award they have to pay that back into the court, which is distributed, to the beneficiaries.

Champagne v Sidorsky Legal Professions Act: LR can instruct counsel but not appear before the Court (LR does not become counsel, but must hire counsel) Facts: Douglas Champagne claims D in breach of restrictive covenant. Doug doesn’t want to take part in lit so appointed daughters Cindy and Cheri to be enduring powers of attorney (EPA). EPA purported to appoint them as attorneys inter alia. Cindy sought to be automatic lit rep per Rule 2.13.

- Justice determined 2.13(e) should only apply in instances where lit rep is required to be appointed – not case here D said per 106(1) of Legal Profession Act (LPA) daughters could not provide assistance. Judge noted any action taken by agent of a self rep lit must be limited to those actions set out in rule 2.23: those actions fall short of acting as a barrister or solicitor or commencing, carrying on or defending an action or proceeding before a court or judge on behalf of another person. Due to this Doug transferred interest in land to daughters as JT

- Requested Cindy be appointed as lit rep under rule 2.16 and certification of the P as a class under Class Proceedings Act

- D opposed this because to appoint Cindy as a lit rep would effectively empower her to perform the role of barrister/solicitor on behalf of her father and sister

Issue: Can Cindy be appointed as lit rep? Decision: Law is, unless express exception such as s.106(2) of LPA or court exercises discretion, for one person to represent another, that person must be a lawyer. Reasons:

- lit rep under current Rules reflects what was formerly “next friend” or guardian ad litem - CA disabled party, litigating via a rep, be represented by counsel (lawyer) - Counsel is required in class proceedings: generally corps and persons acting on behalf of person under legal disability

or serving in representative capacity cannot self-represent but the court has the discretion to allow them to do so in appropriate circs.

- Rule 2.16 does not apply in this case - “except when the Court exercises its discretion to allow representation by non-lawyers or otherwise provided for in

an express exception, representative plaintiffs must be represented by counsel” (23) L.C. v Alberta (Metis Settlement Child & Family Services, Region 10) Facts: Y has EPA for X. X wants Y to be lit rep for X’s child in suit that she is also named a litigant in. Court cannot allow this because of possible conflict of interest. Issues: Can mother and child have same lit rep? Decision: No Reasons: there are potential conflict issues between EMP and her mother which make it important that EMP have an independent lit rep. Lit rep has to be someone acceptable to C(L), Mr. Lee (Class proceeding attorney) and the Court

- It is acceptable to exempts a lit rep from costs if they are a stranger. This is the same reason why payment may also be allowed/required

- Costs: Y says she wants to be exempt from costs, Y must ask court to not be responsible for costs. The further apart the relationship, the more likely court will protect lit rep from costs.

o 3rd party separated from costs can also asked to be compensated for responsibility of being Next Friend. Y wanted compensation, and likely rep of minor would also be compensated, as a third party.

o Generally the more removed the lit rep is the less likely for them to pay costs/same for getting paid.

Trust and Estate Proceedings Rule 2.1: An action may be brought by or against a personal representative or trustee without naming any of the persons beneficially interested in the estate or trust.

8) The Crown Interpretation Act

- Section 14: No enactment is binding on Her Majesty or affects Het Majesty or Her Majesty’s rights or prerogatives in any manner, unless the enactment expressly states that it binds Her Majesty

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o Unless an enactment specifically says it applies to Crown, it does not. So if you want to know if claim against the Crown, or Crown could be party or affected, must see if statue applies to Crown. If statute is silent, Crown is NOT bound by law.

Proceedings Against the Crown Act - In proceedings against Crown the Rules apply as if Crown were a corporation - However, Crown may refuse to produce records or answer a question if it would be injurious to the public

interest - Common law applies in all cases unless expressly overridden by stattue - Section 12: To name the Crown in Alberta, must use: Her Majesty the Queen in Right of Alberta.

Crown Liability and Proceedings Act - See Canada Deposit Insurance Corp v Prisco

o Crown officers and employees cannot be compelled to provide evidence. Canada Deposit Insurance Corp v Prisco Facts: Canadian Deposit Insurance Corp and Crown in its own right brought an action against former directors and officers of the Northland Bank for recovery of losses sustained after the collapse of this bank. This was an appeal for an order that they attend an examination of discovery. Issue: Can crown officers and employees be compelled to provide evidence? Decision: No Reasons: Just because Crown waives immunity with respect to agreeing to produce officers and employees, such a voluntary waiver cannot be used to compel attendance of other officers of the Crown.

Class Proceedings & Representative Actions

Class Proceedings Act: - When P’s have small amount of damage there may still be an economy of scale to bring claim (reduce cost per person) - Product liability claims common - Benefit for D: res judicata – if class action identified and advertised (give notice, whether they have notice or not) to

class then res judicata applies. - Act doesn’t require claim to same, just needs to be similar - Can file SoC and then certify class action - Can serve the SoC, then certify - Section. 3: A class proceedings claim must be certified before the action can continueif it’s not certified, you can’t

pursue the action as a group - s. 5(1): requirements for SoC in a class action:

o The pleadings disclose a cause of action o There is an identifiable class of 2 or more persons o There is a common issue o The most efficient way to proceed is a class proceeding o There is a person eligible to be appointed as a representative plaintiff who, in the opinion of the Court,

will fairly and adequately represent the interests of the class, has produced a plan for the proceeding that sets out a workable method of advancing the proceeding

on behalf of the class and of notifying class members of the proceeding, and does not have, in respect of the common issues, an interest that is in conflict with the interests of

other prospective class members. - s. 2(3)(a): 90 days to certify

o “An application under subsection (2) must be made o (a) within 90 days after

(i) the day on which the statement of defence was served, or (ii)the day on which the time prescribed by the Rules of Court for service of the statement of defence

expires without its being served, whichever is the later, or o (b) with the permission of the Court, within any other time prescribed by the Court. o After certification, a notice goes out describing the injuries, and whoever gets the notice will be able to

participate no notice means they can’t participate. o Multi-jurisdiction proceedings – Alberta put in a recent amendment which allows an action to be brought in

Alberta, even though some claimants may live outside Alberta. - Rule 2.6: allows representative action (not in class proceedings act) – generally used by a group of defendants.

Representative actions

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Rule 2.6(1): If numerous persons have a common interest in the subject of an intended claim, one or more of those persons may make or be the subject of a claim or may be authorized by the Court to defend on behalf of or for the benefit of all.

- (2) If a certification order is obtained under the Class Proceedings Act, an action referred to in subrule (1) may be continued under that Act.

Amendments to pleadings in class proceedings Rule 2.7: After a certification order is made under the Class Proceedings Act, a party may amend a pleading only with the Court’s permission. Questioning/Records of class and subclass members Rule 2.8(1): If under section 18(2) of the Class Proceedings Act the Court requires a class member or subclass member to file and serve an affidavit of records, the Court may do either or both of the following:

o a) limit the purpose and scope of the records to be produced and of questioning; o b) determine how the evidence obtained may be used.

- (2) If a class member or subclass member is questioned under section 18(2) of the Class Proceedings Act, the Court may do either or both of the following:

o (a) limit the purpose and scope of the questioning; o (b) determine how the evidence obtained may be used.

Class proceedings practice and procedure Rule 2.9: Despite any other provision of these rules, the Court may order any practice and procedure it considers appropriate for a class proceeding under the Class Proceedings Act to achieve the objects of that Act.

Representation Before the Court

Self-Represented Litigants Rule 2.22: represented – individual may represent themselves unless rules provide otherwise. Rule 2.23: They can receive some assistance but any assistance they receive cannot violate the Legal Profession Act (cannot have someone represent you unless they are a lawyer)

- (2) Without limiting subrule (1), assistance may take the form of o (a) quiet suggestions, o (b) note-taking, o (c) support, or o (d) addressing the particular needs of a party.

- (3) Despite subrule (1), no assistance may be permitted o (a) that would contravene section 106(1) of the Legal Profession Act, o (b) if the assistance would or might be disruptive, or o (c) if the assistance would not meet the purpose and intention of these rules.

Rule 2.27: Allowed to retain a lawyer for only certain parts of your case – they won’t be a lawyer of record (limited retainer)

- must inform court they are only there for specific purpose orally or by filing the terms of the retainer before their appearance

- Not lawyer on record (contrast with 2.24(2)) o Rule 2.24(2): if there is a lawyer of record, a party CANNOT self-represent. If you have a lawyer of record, you

can’t switch back and forth to be self-rep. Lameman v Alberta Facts: Appellant asked judge to allow six English barristers to appear in court and argue. Issue: can judge overrule Legal Profession Act? Reasons: LPA: 106(1) No person shall, unless the person is an active member of society…practice.. “Acts… refers to advocacy and representation for another, NOT to whether or how that advocate is paid”

- Getting paid has nothing to do with it, it matters whether or not you are providing advice on issues of law Chapman Estate v Ramjohn Facts: Oommen is co-executor of Chapman estate. Chapman before death won civil action against Ramjohn. Oommen trying to personally enforce this judgment on behalf of estate without assistance of counsel. Issue: Can Oommen enforce judgment?

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Decision: NO Reasons: Rule 2.22 says estate not individual but separate legal entity.

- Estate requires litigation representation to appear in court - S. 106(2) LPA: no person shall commence, carry on or defend an action or proceeding before a court or judge on

another’s behalf unless that person is an active member of the Law Society of Alberta. 106(2) provides exceptions, none of which apply.

908077 Alberta Ltd v 1313608 Alberta Ltd Whether corporate appellant can be represented on the appeal by directors who are not LSA member.

- NO, only individuals

Ch 7: Pleadings – General Rules What are pleadings?

1) Statement of Claim

2) Statement of Defence

3) Counterclaim

4) Defence to a Counterclaim

5) A reply to a Statement of Defence

6) A 3P Claim

7) A Defence to a 3P Claim

8) A Reply to a 3P Statement of Defence

9) A Response to a Request for Particulars

10) A Response to an Order for Particulars

5 Purposes of Pleadings:

1) Defines the questions between the parties 2) Notifies the opposing party of the case to be met 3) Frames the issues for the court 4) Provides a clear record of the issue (res judicata) 5) Advocates position to the opposing party and the court

Material Facts Pleading – is what you are alleging happened – Spectrum- Material factsParticulars Evidence

- Level of material facts that needs to be disclosed are relative to the general facts you are pleading – have to disclose what you are alleging the P did.

o Pleading material facts but not evidence - Particulars – in between material facts and evidence. Pieces of info that help flush out material facts

o Particulars may also be required to ensure the responding party has enough info to respond - Evidence - facts that simply prove allegations you make

Statement of Claim – must set out facts which, if true, entitle the P to legal relief claimed (you need a cause of action)

- If SoC fails this, D can motion to strike o Can strike all or part of claim o Ex: If try to claim breach of K but plead does not show how that K was breached then can strike.

- Judge works from premise that facts in SoC are true Statement of Defence – must set out facts, that if true, provide D with valid defence to the P’s claim

- If SoD fails to do this the P may bring an application to strike and get default judgment o Example if there is invalid defence.

General Requirements

- Rule 3.25: Statement of claim MUST o a) Be in Form 10 o b) State the claim and basis for it o c) State and specify the remedy sought o d) Comply with the rules about pleadings

Technical Rules

- Rule 13.6 – Requirements for Pleadings o 13.6(1)

Must be succinct

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Divided into consecutively numbered paras, with dates and numbers expressed as numerals unless words or a combination of both would make meaning clearer

o 13.6(2) Pleadings must state all matters that are relevant (3 things)

Rule 13.6(2)(a): material facts (but NOT the evidence) on which the party will rely Rule 13.6(2)(b): matters which defeats or raises a defence to the parties claim

o Example: Limitations Act – if D wants to sue this defence must plead it, otherwise can’t use it later.

Rule 13.6(2)(c): the remedy claimed, including damages (both type and amount), costs, interest claimed via the Judgment Interest Act.

o Court can’t grant outside what is claimed (Paniccia Estate) but can amend (Mazepa) o 13.6(3)

A pleading must ALSO include a statement of any matter on which a party intends to rely that may take another party by surprise including:

(a) breach of trust; (b) duress; (c) estoppel; (d) fraud; (e) illegality or invalidity of a contract, including the grounds; (f) malice or ill will; (g) misrepresentation; (h) payment; (i) performance; (j) release; (k) undue influence; (l) voluntary assumption of risk; (m) waiver; (n) lack of capacity or authority; (o) willful default; (p) tender of payment; (q) a limitation period; (r) a provision of an enactment.

- Rule 13.7: You must give particulars on anything in regards to a) breach of trust, b) fraud, c) misrepresentation, d) willful default, e) undue influence, f) defamation.

- Rule 13.8: What you may include: o you may include alternative claims and defenses that may raise a matter that commences o statement of a point of law and how the facts apply to it o a matter that arises after the commencement document was filed

- Rule 13.10: Replies o In reply to a SoD, SoD to Counterclaims, SoD 3p Claim

Cannot bring up any new statements in a reply – only available through amendments o Evidence provided must prove allegations (facts, if true, would give rise to claim) o Evidence provided must a valid defence (fact, if true, would successfully defend against action).

Lax Kw’alaams Indian Band v AG Canada Opposing party must be left with no doubt what is claimed due to procedural efficiency and natural justice Facts: Band claims right to fish and want to have “general inquiry” into customs of band in order to characterize alleged right Issue: can they do this? Decision: No must provide more detail in SoC Reasons: SCC: must be able to know when you read the SoC what the issues are. SoC defines what is in issue! Pleading not only serve to define issues but gives opposing parties fair notice of case to meet, provide boundaries and context for effective pre-trial case mgmt., define extent of disclosure required, and set parameters of expert opinion.

- D must be left in no doubt about what is claimed Paniccia Estate v Toal A finding of liability and resulting damages against the D cannot stand where the liability and damages were not plead in the SoC (D can’t be found liable for a reason that the P didn’t plead).

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Facts: P wanted to claim damages for lost opportunity but they didn’t plead it. Judge said could have been damages awarded but because no one asked for it they cannot award it. Reasons:

- judge cannot find liability on a theory not pleaded - legal decisions are bound by the boundaries of the pleadings

Ensures D have full knowledge of the case and can appropriately defend themselves. Party can usually amend pleadings so long as it does not prejudice the opposing party An objection to lack of a plea, made at trial, will often lead to the issue of amending the pleadings. Mazepa v Embree A court is free to amend pleadings or grant relief outside of the pleadings upon the consent of the parties or by the discretion of the court. Well-established that trial or chambers judges should not decide a case on a matter not pleaded, and should not grant remedies beyond the pleadings

o Hearing: even though spousal support not plead, other side agreed to modify the pleadings and judge agreed. o Appellant later argued that the absence of any mention of spousal support in the original pleading meant that the

original chambers judge had “no jurisdiction to grant that form of relief” (39) HOWEVER, court can amend pleadings any time (Rule 3.65)

- Relief can sometimes be granted on conditions – not necessary that the specific conditions be pleaded - Parties can always consent (express or implied) to matters of procedure, such as amendments to the pleadings, or

the resolution of the case on issue not strictly plead.

Ch 8: Interest Why have interest?

- Courts want to ensure there is timely settlement of disputes and encourage settlements

Judgment Interest Act: S.2(1), 2(3), 4(1), 4(2), 6(2) Two types of judgment interest:

- 1) Pre-Judgment interest o Section 2(1) of the Judgment Interest Act: must award interest from the date cause of action arose to the time

of judgment. Section 2(3): Courts can refuse to award pre-judgment interest, or vary it to be a higher or lower

rate. o Two types of damages in pre-judgment interest

Pecuniary (lost income, property damage, etc) Section 4(2) sets out the prescribed rate in regulations (changes every year, 1.05% for

2015) Non-Pecuniary (things like pain and suffering)

Section 4(1) sets out the rate at 4% - 2) Post-Judgment Interest

o Section 6(2): judgment debt payable under a civil proceeding bears interest on the date it was payable until it is paid.

o Interest rate is the same as any other debt – same rate as pecuniary damages. 1.05% in 2015

o There interest is the same for both pecuniary and non-pecuniary - Section 2(2): There is no interest that is payable on punitive damages, on costs, for money paid under a formal

settlement offer, or for consent judgments. Aetna Insurance Co v Canadian Surety Co Court will not interfere with discretion of trial judge when awarding interest.

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- Side Note: If there’s a significant alteration to judgment on appeal (such as a part of the judgment being overturned) they may consider varying the interest.

321665 Alberta Ltd v ExxonMobil Canada Ltd (ABQB) Compound Interest: Section 2(b) of the IJA precludes the awarding of compound interest, except in breach of contract cases where the parties knew compound interest would occur as damages.

- can be awarded in equity if it can be proven entitlement to it outside or before the statutory framework cam into play, and that the D gained such interest from the money improperly withheld or the P would have gained such interest if the debt properly was paid

Delay: If P unreasonably delays filing their claim then the court can exclude interest that would have been accumulated during the delay.

- If delay was warranted or wasn’t P’s fault then interest may not be reduced o Fact that action proceeded too slowly to trial is not determinative of the issue whether P should forfeit

portion of pre-judgment interest, which it is prima facie entitled to receive. o Fact that D had the use of pre-judgment interest money throughout is not determinative.

Ch 9: Venue Rule 3.2: Action is started by filing at the appropriate judicial centre determined under rule 3.3

- “judicial centre” is defined in appendix. Rule 3.3: tells you where the appropriate judicial centre is

- Rule 3.3(1) o a) appropriate judicial centre is the closest by road to the residence or place of business of the parties; or o b) if a single judicial centre cannot be determined then the party who started the action gets to choose.

- Rule 3.3(2) – if party carries on business in 1+ location in AB then place of business that is nearest to the location where the issue in the action arose or was transacted

- Rule 3.3(3) – Despite the above rules, the parties can always agree on a judicial centre

- Appendix to rules lists 11 judicial centres: Edmonton, Calgary, Fort McMurray, Grande Prairie, Drumheller, Medicine Hate, Hinton, High Level

Rule 3.5 – Transfer of Judicial Centre

- (a) Court is satisfied that it would be unreasonable for the action to be carried on at that judicial centre - (b) Court is satisfied the parties requested the transfer (2 parties must agree)

Siver v Siver 2010 ABQB Facts: Action started in Edmonton by husband, both parties had retained counsel in St. Albert. Husband now wants moved to Fort McMuarry because both live there and have business there but wife planning to move to St. Albert. Issue: can they move action? Decision: No, wife’s reason for keeping in Edmonton is rational. Reasons: Apply natural justice

- Filed according to Rule 3.3 - Test: A court may order action moved when it is satisfied that it would be unreasonable to continue at current

location, or where the parties consent. - An unreasonable decision to continue the proceedings in one judicial district is one which “in the main, is not

supported by any reasons that can stand up to a somewhat probing examination” o In other words, unreasonable decision is one that has no logical grounding, it is not a decision which is open

to dispute, it is not necessarily there best, or smarter, or cheapest decision. It is a decision which doesn’t make any sense.

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Ch 10: Joinder of Parties and Causes of Action

Joining Parties and Claims

Res Judicata - Preventing something from being litigated twice - In res judicata if party sues another party and the matter gets resolved then the losing party cannot sue again

either for the same cause of action or different cause of action that relates to the same matter o Goal is to provide closure

Must plead Res Judicata, can be an absolute bar to P’s action. Three requirements for test:

1) Same parties before the court – can include assignees and successor parties 2) Issue or matter must have direct or substantial relation to earlier action

a. Can’t be something that was just touched on 3) Matter has to be final adjudication

a. If parties agreed to discontinue action, not a final decision by judge b. If action dismissed or struck, not a final decision from judge c. If settlement without consent judgment its not final.

Two types of Res Judicata

- 1) Cause of Action Estoppel o Claim adjudicated between 2 or more parties and 2nd action brought between same parties that is

somehow related with first claim. o If have same cause of action in both actions, the second action must fail o Cause of action – combination of facts that will give rise to seek some kind of judicial resolution or relief o If P wins then action is lost, if P loses then action is barred

Cahoon v Franks – Cause of Action Estoppel Facts: P only claimed property damage for care in 1965, month later wanted to amend claim for personal injury. D argued that he’s trying to bring a new claim and can’t because limitation period has expired, and not two distinct causes of action. Issue: can this be amended or it is cause of action estoppel? Decision: Can be amended Reasons: Single cause of action of negligence, so personal injury damages that result from that cause of action should be dealt with at same time as property damage. Both damages arise from same cause of action.

- 2) Issue Estoppel o Second case does not involve same cause of action BUT issues are related to those decided in the first case. o Different than stare decisis – it’s more discretionary, arguable as to whether or not the earlier case applies.

Angle v Minister of National Revenue – Issue Estoppel Facts: Angle examined on income tax, question arises during assessment whether owes money to subsidiary companies. New proceeding question is whether she owes Transworld Transport? Claimed issue estoppel, that issue was already decided. Decision: No, was new issue Reasons: Test – Same party? Same issue? Final determination? Court said not same issue, prior action was income tax, now asking whether owe particular company, not for purposes of assessing tax.

Penner v Niagara – Issue Estoppel Facts: P arrested after being disruptive in ON courtroom. Filed complaint against police offers saying arrest unlawful, also started civil action against officers, Chief, and Niagara police service. In disciplinary hearing tribunal finds them not guilty. Officers applied to have suit dismissed Issue: Is this Issue Estoppel? Decision: No Reasons: Generally you can apply issue estoppel to these cases but look at whether initial process was unfair or whether it would be unfair to use results of first process to decide a subsequent action.

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Police disciplinary hearing is NOT precluded from issue estoppel BUT the court will look at what is fair and it may be unfair to sue the result from the prior hearing.

- Unfairness of applying issue estoppel may arise from prior proceedings, even if fair and proper it may be unfair to use result of that process to preclude a subsequent case.

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- Is part of courts inherent jurisdiction to control the procedures - Flexible powers - If you can’t use Res Judicata because don’t meet specific rules may be able to use abuse of process (Cameco Case) - Can also apply in cases of delay - Court may decide to use abuse of process to stop duplicate or subsequent litigation

o Similar to res judicata but without strict 3 part test. Inherent power of S.96 Courts)

Rule 3.68: allows the court to order that a claim be struck or an action be stayed Rule 3.68(2): refers to conditions under which order can be applied under abuse of process. 3.68(2)(d) – abuse of process Cameco Corp v Insurance Co of State of Pennsylvania Court may decide to use abuse of process to stop duplicate or subsequent litigation, similar to res judicata but without strict 3 part test, it’s more flexible. Inherent power of 2.96 courts. Abuse of process is inherent doctrine, can be used when can’t meet requirements of estoppel by res judicata

Doctrine not so much concerned with parties and their interests as it “concentrates on the integrity of the adjudicative process”

Sears Canada Inc v C&S Interior Designs Ltd Looks at Rule 3.68 Facts: Sears filed identical claim in ON and AB, D asked AB action dismissed or stayed and only proceed in ON. Sears argues claim should proceed in AB. Issue: Can claim be struck under 3.68? Decision: Just because two actions in two jurisdictions does not mean it will auto fail. No res judicata because no final decision. Reasons:

- D can try to get action stayed or claim struck but whether court will do it depends on facts - 3.68(2) refers to conditions under which order can be applied under abuse of process. - 3.68(2)(d) commencement documents or pleading constitutes an abuse of process – filing in two locations must be an

abuse of process to have one stayed. - just because you’ve started similar actions in 2 jurisdictions does not necessarily mean abuse of process and does not

automatically result in a stay

Amendment of Pleadings

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Rule 13.5 – Variation of Time Periods (Can’t use to change time of service for SoC under 3.26(3)) (1) Unless the Court otherwise orders or a rule otherwise provides, the parties may agree to extend any time period specified in these rules. (2) The Court may, unless a rule otherwise provides, stay, extend or shorten a time period that is (a) Specified in these rules, (b) Specified in an order or judgment, or (c) Agreed on by the parties. (3) The order to extend or shorten a time period may be made whether or not the period has expired.

Amending Pleadings Three stages - 1) Plaintiff is allowed to include any allegations that disclose a cause of action without having to produce any evidence in

support of the pleading when an action is commenced - 2) An amendment can be made any number of times without consent or permission of the other parties and without

having to produce any evidence in support before the pleadings close (Rule 3.62(1)(a)).

- 3) If any amendments are to be made after the pleadings close, they must be accompanied by either a consent order or the permission of the Court. Evidence in support of the allegation would be required (Rules 3.62(1)(c) and 3.65).

1. Ask: When are you making your amendment?

a. Before pleadings close? b. After pleadings close c. After the limitations period has expired?

2. Ask: What type of amendment do you want to make? a. Adding, removing substituting or correcting name of a party? b. Any other amendment: substantive matters, like the amount of damages, additional causes of action

A. Before Pleadings Close o Rule 3.62(1)(a): can amend at any time for any reason (party or otherwise) without courts permission

(before pleadings close) Includes amendments to add, remove, substitute, or correct the party’s name

o Rule 3.65: can choose to get permission of court (before pleadings close) o Rule 3.62(1)(c): with the agreement of the parties filed with the court you can amend.

STEP D: REPLY

Rule 3.33: Plaintiff must reply to defence within 10 days after service

STEP C: STATEMENT OF DEFENCE

Rule 3.0 & 3.31: Defendant has 20 days after being served to serve Plaintiff in AB

STEP B: STATEMENT OF CLAIM

Rule 3.26: Plaintiff has 1 year to serve SOC on defendant after filing

STEP A: CLAIM ARISES

Limitation Act: 2 years or 10 years to file SOC

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B. After Pleadings Close o Rule 3.74(2) (add or substitute party): special rules for adding, substituting, or removing the name of a

party. On application the court may order that a person be added, removed or substituted as a party to an action if:

(a) Adding or substituting P: If going to add or substitute a P must make sure the application is made by a person or a party. Must have the consent of the party you want to add in.

(b) To remove, add, substitute, or correct a name of the party, only has to be party who makes the application and the court must be satisfied it warrants changing (Can be either P or D)

o Rule 3.74(3): Court will not make an order if prejudice will result which cannot be compensated by costs o Rule 3.65 (other amendment): for non-party amendments, need the permission of the court

Does it identify the real question and issue between the parties?” (not in rules, set out in case law, it

relates back to Rule 1.2). The classic rules for amendments says you can do it at ALL times so long as you

follow the test, however there are four exceptions:

(A) It causes serious prejudice to on the opposing party that cannot be remedied in cost

(B) If the amendment is hopeless – See Attilla

(C) If amendment includes a party of cause of action that contravenes the limitation period

(Limitations Act)

o Amending pleadings after limitations expiration see limitations act section 6 (above)

(D) If something has NOT been originally plead in bad faith

o Rule 3.62(1)(c) (any type of amendment): regardless of type, if you can get agreement of the parties then you can amend.

C. After Expiration of Limitation Period o See Limitations Act section 6 (above) o Can add new party but only if proceeding previously commenced within Limitations period. New claim can be

added directly or indirectly. S 6 creates different types of rules for different types of amendments. o S 6(2) – no change of party. E.g. you’re changing something else, like adding a new claim. S 6(2) has a

relationship requirement- claim must relate to the conduct, transaction, or events described in the original pleading.

o S 6(3) – change of claimant- requires (1) relationship requirement (2) no prejudice to D (limitation + service time; general rule is 1 year from time you filed SoC but can be extended if no prejudice) (3) needed to determine original claim; most difficult part to meet. May use 6(3) where you spelled the name of D wrong. Cannot use 6(3) where you’re trying to add in a “true stranger”

o S 6(4)- Change of D. (1) relationship requirement (2) no prejudice to D (limitation + service time) Can add in more Ds so long as there was some knowledge of the claim

Rule 3.62(2): Amended pleading must be filed and served within 10 days after the date of filing Rule 3.66: costs of amendment always born by party that’s filing amendment – exception if (a) it responds to amendments filed A party may, without courts permission, amend that party’s pleading before of after pleadings close if the amended pleading is:

- a) a statement of defence responding to an amended statement of claim, an amended counterclaim, or an amended 3P claim, or

- b) reply to an amended statement of defence, amended statement of defence to an amended counterclaim, or amended statement of defence to an amended 3P claim.

Rule 3.64 – Time Limit for Application to Disallow Amendment to Pleading

- (1) On application, court may disallow all or part of an amendment to a pleading - (2) Application must be made within 10 days after service on the applicant of the amended pleading

Rule 3.67(2) – Pleadings Close When

- (a) A reply is filed and served by a plaintiff, plaintiff-by-counterclaim or third party plaintiff, OR - (b) At the time for filing and serving a reply expires

o *Whichever is earlier Attila Dogan Construction and Installation Co Inc v Amec Americas Ltd Deals with “hopeless” amendment – low threshold but must bring some evidence for amendment

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Facts: Partners going to enter venture in Africa. They amend agreement to include a clause that Attila agrees not to make any claims against AMEC for delays. Atilla eventually brings claims against AMEC about K and delays and AMEC counterclaims. Attila started first action 2002, 2003 they amended their claims to include duress. Issue: Should amendment be allowed? Held: So far as amendments go, this amendment is hopeless, they noted that evidentiary standard for amendments is low but for the test DOES NOT preclude weighing of tendered evidence the judge is entitled to give an assessment in determining if threshold is met, in other words, evidence is important. NOTE: Molzan says people often lose because they do not bring forward any evidence for amendments. Poff v Great Northern Data Supplies Facts: long term disability from employer for stroke. Insurance company payments were much less than should have been, employer gave wrong info. Claimed against Alberta Co, NewCo administered it, named wrong party and can’t proceed. Limitation period was said to have expired. Issue: Can you amend SoC to name NewCo so claim can proceed? Held: Yes Reasons: As per 6(4) Alberta Co and NewCo shared directors, so knowledge is there and the court said you knew about this and not prejudiced by being added as party.

Burden on claimant to show relationship between new claim and old claim Claimant must also show amendment needed to determine original claim Up to D to prove they didn’t have sufficient knowledge during the limitation period, so they are now prejudiced if

amendment done. “The burden is on the party resisting the amendment to show that it would suffer non-compensable prejudice were the amendment to be allowed.” (72) Here, D was unsuccessful in showing they would be prejudiced as they had knowledge of the claim all along

Joining and Separating Claims and Parties Difference between Action vs. Claim

- Claim – where P seeks remedy - Action – a vehicle for making claim

JOINING CLAIMS AND PARTIES Rules for joining parties and claims liberal, trying to make litigation more effective and cost efficient When looking to JOIN Plaintiffs consider:

- Liability for costs - Whether co-plaintiffs would have conflicts of interest - Realize that the more P’s you have the more questioning will be required. - IF class proceeding, what if you don’t agree with the representative P? - Multiple issues of law and fact

When looking to JOIN Defendants consider:

- Principle of res judicata - Whatever judgment comes out does not apply to someone who was not a D.

Joinder – joining claims

- can apply if have multiple claims against one D (tort and contract) - OR can have multiple P’s, multiple Ds, or both

Reasons for Joinder - When you bring an action you want it to be a final decision - If don’t capture all the P or D then not going to be bound by the decision

o Ex: If A sues B and court decides injuries weren’t caused by B, think caused by C (not party to action), now between A and B case is decided. A and C has nothing to stop C from now claiming no it was B and then res judicata applies.

o You want to make sure not leaving doors op Rule 3.69: Joining Claim (two or more claims but want to join them into one trial)

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- (1) can join two or more claims in an action unless court otherwise orders o Ex. can have battery and negligence in same action

- (2) Parties can be sued or sue in different capacities in the same action o If someone dies, person left can be both litigation rep for estate for loss of income and himself for grief.

- (3) If more than one D they don’t need to have an interest in o (a) All remedies claimed; or

D may only have interest in part of the claim, possibly with the breach of K but not with negligence o (b) In each claim included in the action

can have P with varying types of injuries, not all D’s are responsible for all injuries Rule 3.70: Parties joining to bring action (two ore more parties can join to bring an action and P can make claim against two or more parties as Ds)

- Applies to two or more parties bringing an action. In such an action the claim has 3 grounds: o (a) if want to have more parties involved in on action – must show their claim arises from same transaction,

occurrence or series of transaction o (b) common question of law or fact to both parties o )c) court has to permit them to come together to bring this action.

- Ex. Car accident, passenger is joined together but at the same time you will also name the D, now you want to add the municipality, this rule allows you to do that.

- If you have more than one D they do not have to all have the same interest or interest in the same remedy (Rule

3.70(2))

SEPERATING CLAIMS (Egg Lake Farms) You may have multiple processes within the same hearing, trial, etc. Court can separate the claims of the parties and this rule talks about the grounds to do that. Rule 3.71(1): Where 2 or more claims are made in the same action the court can separate claims or can separate parties

- (a) It occurs when joining would unduly complicate or delay the action, - (b) or keeping them together would cause undue prejudice to one party.

Rule 3.71(2): in such a case the court can: - (a) separate trials, hearings, applications - (b) order one or more of the claims to be asserted in another action - (c) order a cost award if a party has to attend for part of a proceeding that does not actually apply to them - (d) can excuse party for attending part of the trial

Egg Lake Farms Test applied is “real likelihood of saving time and expense” the court will consider the following factors: - Common claims disputes and relationships between parties? - Would severance save time and resources in pre-trial procedures? - Would time of trial be reduced? - Will party be severely prejudiced? - Whether one action is at a more advanced stage than the other?

CONSOLIDATING CLAIMS - When 2 actions that have already been started separately can be merged

Rule 3.72: Can ask court to either consolidate the actions or trials - (1) The court may order one or more of the following:

o (a) That 2+ claims or actions be consolidated o (b) That 2+ claims or actions be tried at the same time or one after the other. o (c) That 1+ claims or actions be stayed until another claim or action is determined. o (d) That a claim be asserted as a counterclaim in another action.

- (2) The court can make this order for any reason it considers appropriate, including where 2+ claims or actions: o (a) Have a common question of law or fact, OR o (b) Arise out of the same transaction.

Rule 3.72(1)(a) (defendant): Court can consolidate the claims or the action. If an action is consolidated, it basically melds into one action - that means you have one set of pleadings, one set of questioning, one judgment, one bill of costs.

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Rule 3.72(1)(b) (plaintiff): The actions can be tried together, but not consolidated: separate pleadings, separate questioning, separate judgments, and separate bill of costs. Judge will require them to be heard one after other, so they're consecutive, but everything remains separate. When actions consolidated they continue as if completely one action from beginning

- One set of pleadings, one set of questioning, one bill of costs. Difference between consolidating actions and just trying them together

- If actions only tried together then they have separate pleadings, judgment, and separate bills (combined if consolidated)

NOTE: Molzan says technically same as joining claims, Courts have said they prefer to consolidate sooner in proceedings rather than later. Egg Lake Farms Ltd v Alberta (Minister of Environment and Sustainable Resource Development) Facts: Weir built to maintain water levels in lake. Was built 4 inches too high and floods lands of P who wants compensation under Expropriation Act. Separately P amends their SoC to include tort claims. Alberta wants to sever two claims (more $$$ if not). Held: Court felt too much factual overlap and severance should not be allowed. Reasons: Court says severance is an exception remedy and test applied is “real likelihood of saving time and expense” the court will consider the following factors:

- Are there common claims disputes and relationships between parties? – for us it’s the same parties - Would severance save time and resources in pre-trial procedures? Court says no - Would time of trial be reduced? So when together there is nothing to say it will save time - Will party be severely prejudiced? D says it will be, it may be to the solicitor/client costs but court says you will have

to keep very careful records, so the tort doesn’t get charged at the higher level - Whether one action is at a more advanced stage than the other? Court says there is no evidence to support this - Would severance delay the trial of one action? Court says if we do sever it will cause delay.

INCORRECT PARTIES ADDED TO CLAIM - Rule 3.73: Saving Provision

o Incorrect parties not fatal to actions o (1) No claim or action fails solely because:

(a) 2+ parties join in an action when they shouldn’t have (b) 2+ parties do not join in an action when they could have or should have. (c) A party was incorrectly named as a party or was incorrectly omitted

o (2) If (1) applies, a judgment entered in respect of the action is without prejudice to the rights of persons who were not parties to the action

Ex: The judgment between A and B doesn’t affect C, where A could have brought an action against C.

Parties Added on Own Motion/Interveners Rule 2.10: On application court may grant status to a person to intervene in action subject to terms and conditions and rights and privileges specified by the court (note: regular party cost rules do not apply to interveners) University of Alberta v Alberta (Information and Privacy Commissioner) Access to information case between doctor and U of A Staff association at ASSUA looks for intervener status, court applies common law test

- 1) Characterize the subject matter and proceeding - 2) Determine the interest of the intervener

o A) Will they be affected by the decision? o B) Do they have particular expertise OR special insight? o C) Do they have interests that will not be protected by one of the existing parties?

- NOTE: interveners cannot bring up new issues or facts. You can only speak to the issues raised by the parties.

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Ch 11: Service

Purpose of a Service Concept of natural justice: first rule of natural justice is providing notice

o Parties must be given notice of existence and basis of the action

o Need to provide notice required and need to be able to prove that you gave notice

Butkovksy v Donahue P, having properly served the D within the jurisdictions, is prima facie entitled to continue the proceedings in this jurisdiction. 3 main concepts of service:

How do you serve the documents? What is the date of effective service? How do you provide the evidence of proper service?

Meant to satisfy natural justice – first rule of natural justice is to provide notice

- parties must be given notice of existence and basis of the action - need to provide notice required and need to be able to prove that you gave notice

Times for Services

- Rule 3.26: SoC must be served within one year after filed - Rule 13.5: Allows parties to be able to agree to extend any time period in the rules

o Cannot extend if particular rule prohibits – can' Rule 3.26(3) – cannot agree to extend one year limit for serving a SoC

May be particular rules which prohibit you from extending time limit o Cannot extend if court prohibits

- Rule 3.28: (1) If not served within one year after filed then no further proceedings may be taken against the D o (2) If statement served on any D in time is unaffected by the failure to serve any other D in time

How do you service the Document? - Commencement Documents: rules 11.3, 11.4, 11.5(1), 11.6, 11.7, 11.9, 11.10, 11.11, 11.14 and 11.17 – SoC, 3rd party

claim, notice to party (underline = ones on slide) - General Rule - Rule 11.4: all documents that commence an action must be served in accordance with these rules or another

enactment. - Service by Agreement (K) - Rule 11.3: if entered a K parties can agree how they want service - On Individuals (2.12(2), 11.5-11.8, 11.12, 11.18)

o Rule 11.5(1): sets out how you serve individual (a) Personal Service (b) Recorded Mail [defined in appendix – form of document delivery either by mail or by courier,

person must sign acknowledgment of receipt] Rule 11.5(2) Service is effected:

(a) if document is left with individual, on date it is left; OR (b) document is sent by recorded mail the date this acknowledgement of receipt is signed

by individual to whom it is addressed o Rule 11.6/7: if serving a lit rep can do so in person or by personal mail

Service is effected is same Rule 2.12 (2)

Service of a Litigation Representative o If someone has a lit representative

The lit repres must be served not the person (A)

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Service on the person is ineffective (B) o Rule 11.8: Service on Missing Persons o Rule 11.12: Services on persons using another name

Claim against a single individual carrying on business, or operating or engaged in an activity under another name

o Rule 11.18: Service on self-represented litigants - On Corporations (11.4, 11.9, 11.13)

o Rule 11.9: if serving corporation, you leave it with an officer who appears to have management or control of corp. Could leave it at the principal place of business of the corporation, or could send by mail to their recorded principal place of business

Service is effected is same o Rule 11.13: Service on a Corporation using another name

- Service on Firms/Partnerships (11.4, 11.10, 11.11) o Rule 11.10: if limited partnership, serve general partner or someone who appears to have

management/control of the business, or registered mail Service is effected is same

o Rule 11.11: If serving to partnerships other than LLP , can serve general partner, someone who owns, or registered mail to place of business

Service is effected is same - Service on Statutory or Other Entities (11.14)

o Rule 11.14: May also be able to use the corporate service rules for Statutory and other entities o Special Circumstances

Rule 11.15: Service on a person that has provided a specific address for service Rule 11.16: Service on a Lawyer Rule 11.17: Service on a lawyer of record. Leave a copy with lawyer, or at address the lawyer has

specified, or by recorded mail Rule 11.9: Business Representative of Absent Party

Service of Non-Commencement Documents in Alberta Other document (SoD, reply, defence to 3rd party claim, response to particulars) which don’t have another party or don’t start the action (non-commencement documents): use Rule 11:20

Four Methods for Serving under Rule 11.20 - (1) Could follow same method of service as done for commencement documents - (2) Rule 11.21: could use an electronic agent – “electronic transaction act” defines electronic agent = method

which allow transmission of data and device confirms you have transmitted it (e.g. fax), email acknowledgement receipt of email device must be on – service is effected when confirmation of

receipt received - (3) Rule 11.22: Recorded mail – service is effective 7 days after the mail was sent or acknowledgement of

receipt is signed. - (4) Rule 11.3: Parties agree to a method

Service outside of Alberta but in Canada - Rule 11.25(1): Real and substantial connection

o Commencement document may be served outside of Alberta and in Canada only if: Real and substantial connection exists between AB and the facts on which claim in action is based.

AND Commencement document discloses the facts in support and specifically refers to the grounds for

the service of the document outside of AB and in Canada. o Note: Facts supporting this connection must in the commencement document.

Morgaurd Investments v Desavoye SCC 1997 BIG CHANGE TO CL Courts in one province should give “full faith and credit” to another province when it’s enforcing the judgment of another province. Outlined the Real and Substantial Connection test. If passes, no service ex-juris (outside jurisdiction) application is needed. Facts: P granted mortgage in AB to defendant corp, D defaulted on mortgage and moved to BC. P foreclosed on land and received a judgment against D for the remaining money owed (Could only do this because D was corp, for individuals in AB it’s either land or cash, not both)

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- Note: before this case, court could only have jurisdiction over D if D was served in AB or consented to it. Otherwise service ex-juris required court order.

Metcalfe v Yamaha Power Motor Products ABCA 2012

Granting service outside AB is not solely concerned with the test of whether a document was brought or likely to be brought to the attention of a foreign D…service ex juris is founded upon a decision to extend the court’s jurisdiction beyond its own territory” (90)

Service Outside of Canada (See Club Resorts) - 11.25(2): Real and substantial connection

o A commencement document may be served outside Canada only if: Real and substantial connection exists between AB and the facts on which the claim in an action is

based, AND, The commencement document sets out the grounds for service of the document outside

Canada, OR The court permits service outside of Canada.

- Note: under CL, jurisdiction of court depended where court resided, D has to be served within territory. Court could take jurisdiction if D consented to it. If either didn’t happen court could do nothing.

Real and Substantial Connection

- 11.25(3): real and substantial connection is presumed to exist when (non-exhaustive list) o Claim relates to AB land o Claim relates to AB contract or alleged contract o Claim relates to AB law o Claim relates to tort committed in AB o Claim relates to enforcement of security against

property other than land in AB o Claim relates to injunction in AB

o Defendant resides in AB o Claim relates to administration of an estate

where deceased was ordinarily resident in AB o Defendant is party to action brought against

another person who was served in AB o Trustee in AB relating to a trust in AB o Breach of equitable duty in AB

Forum Non Conveniens (service outside Alberta or Canada)

- CL concept - Discretionary power that allows courts to dismiss a case where another court, or forum, is much better suited to

hear the case. - Allows court to decline to hear when it is clearly more appropriate elsewhere - Discourages P from starting actions in jurisdictions that have no real connection to the action - D can bring this application in either jurisdiction as a defence

Club Resorts Ltd v Van Breda Facts: Two P’s injured at resort in Cuba, both want to bring action in ON for breach of K and negligence. D carried on business in ON but Resort challenges this, wants court to dismiss action for lack of real and substantial connection OR to decline jurisdiction under basis of forum non Conveniens (that ON isn’t most convenient place to carry out action). Issue: Is there real and substantial connection (Rule 11.25(3) and, if there is jurisdiction, should they exercise jurisdiction or stay it under forum non convenience. Held: Real and substantial connection, Forum Non Conveniens doesn’t apply. Reasons:

- If any of 11.25(3) is present a connection is presumed to exist (rebuttable presumption) - Tort was in Cuba, it breached K made in ON so real and substantial connection - FNC claim, is based on recognition that CL courts retains residual power to decline to exercise it’s jurisdiction in

appropriate but limited circs to assure fairness to the parties and the efficient resolution of a dispute. o Other jurisdiction must clearly be more appropriate

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What date was service Effective on?

on the date the document is left with the individual, corporation, partnership, etc, or on the date the acknowledgement of receipt is signed for recorded mail

Providing Evidence of Proper Service - Rule 11.30: Proving Service of Documents

o (1) Service documents in AB and service documents other than commencement documents outside AB may be proved

(a) By affidavit outlining i) person was served ii) method of service iii) date time and place of service

(b) By an acknowledgement or acceptance of service in writing by other party (c) By an order validating service under rule 11.27

o (2) Service of a commencement document outside AB may be proved in the same way as above, but the affidavit must state the real and substantial connection between AB and the claim

Overcoming Service Problems

Substitutional Service Rule 11.28: Substitutational service where service inside or outside AB impractical

- (2) Seek a court order for substitutional service by setting the following out in affidavit o (a) why service is impractical, AND o (b) propose an alternative method of service, AND o (c) state why the alternative method is likely to bring the document to the person’s attention.

- (4) Service is effected on the date specified in the order - Ex. using Facebook is valid, but you must meet three req.

R v Goodhart Crown tired to service an appeal but couldn’t locate person. Constable made affidavit in support to get substitutional order. Affidavit contained misreps and false statements. Said made three phone calls but only two made and dude came to Edmonton to go to school. Misinformation meant that substitutional order was overturned showing that even when you get an order there is always potential for D to challenge it.

Dispensing with Service Rule 11.29: Order to dispense with Service if Service is impractical or impossible

- (2) Need affidavit stating o (a) service is impractical or impossible and reasonable efforts have been exhausted, AND o (b) Little likelihood that the issue will be disputed, AND o (c) No other method of service is apparently available

- NOTE: if you get an order dispensing with service and get a default judgment it is easier for the D to get it set aside if they

show up and contest it

Validating Service Rule 11.27: Validating Service

- (1)Court can approve another manner of service if they are satisfied that the method of service brought or is likely to have brought the document to the attention of the person being served (test is bolded)

- (2) may validate if satisfied person would have been served or received notice if they had not evaded service. - (3) effected on the date of the Court order. - Note: service is effected on the date of the order.

226911 Alberta Ltd v Redecopp May be reasons when negotiating that may not serve SoC in one year. Here sent a copy and doesn’t constitute service but when a year expired realized there’s a problem (rule 3.28 says claim is expired). Bring application to validate service claiming they had served. Issue: Can service be substituted in this case? Decisions: No

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Reasons: Court lays out service not just about bringing notice but also knowledge legal rights are being affected. Court said difference between affecting someone’s rights versus providing them with a courtesy copy. Setting Aside Service Rule 11.31: A D can claim that service was improper and then can strike the proof of service and require you to start all over again.

- A defendant may apply to the Court to set aside (a) service of a commencement document,(b) an order for substitutional service of a commencement document, or (c) an order dispensing with service of a commencement document, only before the defendant files a statement of defence or a demand for notice.

Ch 12: Renewal of Statement of Claim Time for service of statement of claim 3.26(1): A statement of claim must be served on the defendant within one year after the date that the statement of claim is filed unless the Court, on application filed before the one-year time limit expires, grants an extension of time for service. Rule 3.26(2): The extension of time for service under this rule must not exceed 3 months. Extension of time for service 3.27(1): The Court may, at any time, grant an extension of time for service of a statement of claim in any of the following circumstances: - where unusual circs apply

- (a) If D or someone on behalf of D leads P (or lawyer) to reasonably believe and rely on the belief that: o (i) the defendant has been served, o (ii) liability is not or will not be contested, or o (iii) a time limit or any time period relating to the action will not be relied on or will be waived;

- (b) if an order for substitutional service, an order dispensing with service or an order validating service is set aside; - (c) 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 (Brousseau) 3.27 (2):If time is extended under (1) no further extension can be granted under this rule. Rule 13.5 does not apply unless there are new circumstances. This is up to the court to decide. Brousseau v Janz Estate 3.27(1)(a)(i/ii) Got into car accident, P complained of chronic pain and insurer understood could be significant delay, no liability defence was even raised. Determining special circs under 3.27(1)(c) 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 circs result solely from the D’s conduct or from the conduct of a person

who is not a party to the action; and - d) strike an appropriate balance of the interests of parties in order to achieve the most justice with the least

injustice McGowan v Lang 3.27(1)(c) Facts: Lawyer dealing with adjuster, adjuster made statement indicating might have to provide SoD. Lead lawyer to believe that service was OK but lawyer didn’t actually serve the D. Court found this is exceptional circs. Appeal from Master who granted extension of time to serve SoC under 3.27(1)(c). Chambers judge overturned, said wasn’t careful and neglected to serve SoC.

- Rule has 2 steps o 1) whether special or extraordinary circs exist o 2) whether its appropriate to exercise courts discretion to extend time for service

Hinged on fact that P lawyer lulled into notion service was ok. However, Judge said not careful enough (no limitation date set in file’s diary system), also suggests more difficult to apply once time is up.

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Effect of not serving statement of claim in time Rule 3.28: If a statement of claim is not served on a defendant within the time or extended time for service,

- (a) no further proceeding may be taken in the action against the D who was not served in time, AND - (b) A SoC served on any D in time is unaffected by the failure to serve any other D in time.

“have this at the tip of your tongue” Rule 13.5 – Variation of Time Periods (Can’t use to change time of service for SOC under 3.26(3))

o (1) Unless the Court otherwise orders or a rule otherwise provides, the parties may agree to extend any time period specified in these rules.

o (2) The Court may, unless a rule otherwise provides, stay, extend or shorten a time period that is o Specified in these rules, o Specified in an order or judgment, or o Agreed on by the parties.

What to do if you think you’ve failed to serve

- get into court for order for extension - If passed the date see if 3.27 applies - See if still within limitation period

o If so file new SoC - IF you can’t do anything call law society – will be covered through insurance

Ch 13: Particulars What happens if P does not set out or provide particular material facts?

- Court can order any party to provide better and further particulars Particulars fall into pleadings, like SoC. When you plead something you are now going to be bound by it. Why particulars are important:

- Gives notice to other party - Prevent surprise, make sure litigation is open, fair. - Allows parties to prepare for trial - Defines the real issues in dispute

If P doesn’t give sufficient particulars D has two options

- 1) Application for further and better particulars – Rule 3.61 - 2) Application to strike the claim (all or part) on grounds that it does not disclose a reasonable cause of action under

3.68(2)(b) What is Required in Pleadings Rule 13.6 –

- Must state facts upon which party relies - If not enough detail D has option to strike or demand further/better particulars

Rule 3.61 – Bring an Application for Further and Better Particulars

- (1) Parties can request particulars relating to anything in the pleadings - (2) If requesting party requests particulars and there is no sufficient response WITHIN 10 DAYS the requesting party

may apply to the court for an order o Parties can agree to vary the 10 days under Rule 13.5

- (3) The court order will specify a time within which the order is to be complied with - (4) Requests for particulars DO NOT affect other obligations to file/serve pleadings

Rule 3.68 - Ask court to strike due to “significant deficiencies”

- Applies to ALL pleadings, think how res judicata, different jurisdictions, and abuse of process would use this rule - (1) If circs warrant and conditions under (2) applies, court may

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o (a) Strike out all or part of a claim or defence o o (b) Amend or set aside a commencement document or pelading o (c) Enter a judgment OR and order o (d) Stay the proceeding, action, or application

- (2) A court may only act under (1) if one or more conditions apply o (a) Court has no jurisdiction

Or if the Commencement Document or Pleading o (b) Discloses no reasonable claim or defence o (c) Is frivolous, irrelevant or improper o (d) Constitutes an abuse of process o (e) Contains an irregularity that is so prejudicial that it is sufficient to defeat the claim

- (3) No evidence may be submitted on an application made on the basis of the condition set out in sub-rule (2)(b) – (for other you can add additional evidence before the court)

o Court will look at the pleading on its face - These are interlocutory applications

o Cannot provide any other evidence to bolster your case. If pleading itself does not provide enough about the claim, then should be amending.

WHAT ABOUT EXTENDING TIMELINES (i.e. Rule 13.5)???

When the request is reasonable, you must extend. What you must decide is at what point it becomes unreasonable and

starts to prejudice your client (asking Court for more time to get particulars for SoD is ok, since it must be filed 20 days

after receiving SOC)

A client's instructions cannot override your ethical obligations.

However, an extension of time is not automatic - even though it must be given, you need a reply from the other's counsel.

If you don't hear a reply, the original timeline still applies.

Alberta v Atria Group While not mandatory application for particulars should generally be accompanied with an affidavit disclosing why you need particulars. Court has discretion in determining whether the allegations are so vague as to necessitate an order for particulars

- only need enough to file SoD, not a discovery or litigation of the whole matter. Natural justice and fair litigation without surprises

o “to show that particulars are required, absent an affidavit stating as such, the D must show that the pleading is defective on its face and that ‘the allegations are so general and so vague that the need for particulars is evident.’” (119)

If complex case consider getting into case management instead of requesting more particulars. 1021018 Alberta Ltd v Bazinet In response to request for particulars, you cannot say “the party knows”

- even though D knows what D’s actions are, D doesn’t know what P believes them to be

Ch 14: Procedure on Default Overview: D does nothing upon service of SoC P provides affidavit of service and applies for rule 3.36 a) judgment against D under Rule 3.38 (property) or rule 3.39 (liquidated demand/debt) OR b) noted in default against D under Form 14 (must then prove damages and apply for judgment under rule 3.37) D has rule 9.15

Time for Defending Defendant’s options Rule 3.30: A defendant who is served with a statement of claim may do one or more of the following:

- apply to the Court to set aside service in accordance with rule 11.31; - (b) apply to the Court for an order under rule 3.68 - court options to deal with significant deficiencies;

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- (c) file and serve a statement of defence or demand for notice.

Statement of defence Rule 3.31(1): If a defendant files a SoD, the SoD must

- (a) be in Form 11, and - (b) comply with the rules about pleadings in Part 13, Division 3.

Rule 3.31(2): The defendant must file the statement of defence and serve it on the plaintiff within the applicable time after service of the statement of claim. Rule 3.31(3) The applicable time is

- (a) 20 days if service is effected in Alberta, - (b) one month if service is effected outside Alberta but in Canada, and - (c) 2 months if service is effected outside Canada.

Demand for notice by defendant (More detail in Ch. 15 of CAN) Not contesting liability but contesting quantum of damages

- Responding to what they believe they should pay and should provide arguments as to why - If you file demand for notice but then decide it’s a mistake you can apply to have it overturned if you meet 3 part test

(same test as under 9.15(3)) o 1) Have good defence on merits, 2) something unintentional caused them not to file SoD, 3) Application

brought ASAP - D must then be served with notice of any application - P can only apply to the court for judgment (as opposed to noting in default)

Default Judgment Noting in Default - The time to file and serve a SoD has passed and the D has done nothing – court clerk can note them in default and file that – Rule 3.37 to get one of 3.37(3) Process for obtaining default judgment Rule 3.36 – Judgment In Default of Defence and Noting in Default

- Rule 3.36(1) After P proves service of SoC (affidavit of service filed) - 1) If claim to recover property or a debt or liquidated demand

o No requirement to note D in default o No application to court needed o Rule 3.36(1)(a): Enter judgment (rule 3.38 for property or rule 3.39 for a debt or liquidated demand –

specific sum payable under an express or implied contract for payment of money and interest OR claim for a specific sum of money recoverable under an enactment)

- 2) For all other claims o Note D is in default Rule 3.36(1)(b)

P must then prove what their damages are, once proven, they can apply for judgment under 3.37 o Apply to court to determine amount of judgment Rule 3.37 o Court will look at SoC to see if claim made out after applying for judgment (Argent) o P is entitled to cost award in either case

- (2) Default judgment can’t be entered against person if they are represented by a litigation rep, have to get court order.

- (3) If SoD or demand for notice filed but not served P may apply for costs award for anything arising from the D’s failure

Rule 3.37 – Application for judgment against D noted in default (other than property/debts/liquidated demand)

- (1) P may, without notice to any party, on proof of P’s claim, apply to court for judgment for a claim for which default judgment has not been entered if

o (a) one or more D’s are noted in default; or

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o (b) The D’s SoD is struck - (2) In circs of (1) the P is entitled to costs award - (3) Court may do one or more of the following:

o (a) Pronounce judgment o (b) Make any necessary order o (c) Direct a determination of damages o (d) Adjourn the application and order additional evidence to be provided o (e) Dismiss the claim or part of it o (f) Direct that the claim go to trial and that the notice be served on every other defendant o (e) Make a costs award in favour of P

NOTE: For all other claims, if property is not involved for example, if defendant does nothing, they should be noted in default

instead, under Rule 3.37 they cannot contest liability, but there is serious downside, the other party has not had the opportunity to

bring everything forward, thus the court tends to be amenable to overturning default judgments.

Liquidated Demand Rule 3.39 TLA Food Services v 1144707 Defines what a debt or liquidated demand is (amount that can be easily determined through a mathematical formulation)

- Ex. Credit card debt

Noting in Default Argent v Gray D didn’t file SoD and noted in default. Being noted in default is not the same as a judgment. It means that the D is deemed to admit to the SoC Court must still look at the SoC to see if action is made out before getting a default judgment Toerper v Hoard Example of noting in default Facts: had a P who claimed breach of K and breach of trust. They had one noted in default, and applied for other to have SoD stuck Held: If D has SoD struck out or do not file it, then they are basically admitting to the claim Rule 3.37: When D notes in default, the court can asses what the damages and judgment will be

Setting Aside Default Judgment Discretionary Order Rule 9.15(3): court allowed to set aside or discharge judgment or order if it was made without notice to one or more of the parties or if following the trial or hearing where party did not appear because of accident or mistake

- Because default judgment easily given, easy to set it aside as well - Case law creates 3 part test (Palin)

o 1) An arguable defence o 2) The D did not deliberately let the judgment go by default and have some excuse for the default o 3) After learning of the default the acted promptly to open it up

Palin v Duxbury CL test for setting aside a Default Judgment D had no defence really, been travelling a lot and did not realize how serious action was

- There is no time limit when asking the court to set aside default judgment. However there is a 3 part test to determine when D can set it aside

- Must meet all 3 criteria o 1) Must prove they have arguable defence (has to be a triable defense) o 2) D must show they did not deliberately let judgment go by default and they have some excuse for

default o 3) Once learned of default move quickly to have it set aside or opened up. Mere delay alone will not bar

this however. Court has to find what’s fair. Court finds D never really contested P’s claim – therefore failed 3 part test

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Default Judgment Demand for Notice

AFTER P proves service of SoC (affidavit of service) (rule

3.36)

AFTER defendant files and serves Demand for Notice (rule

3.34)

1. Enter Judgment to recover property for debt or

liquidated demand OR

Defendant cannot contest liability BUT may contest amount of

judgment (quantum)

2. Note in default Must be served with notice of any application

If 2 then Plaintiff may then apply for judgment without notice

to any other party (rule 3.37)

Plaintiff must apply to court for judgment

Ch 15: Pleadings Subsequent to Statement of Claim Overview – What Can a Defendant Do after Receiving a SOC? (i) Get service set aside or challenge service? (ii) Extend the time limit to file a SOD? 13.5 (iii) Ask for more particulars? (iv) Contest quantum and not liability – Demand for Notice? (v) File a SOD, admitting and denying allegations? (vi) File a counterclaim? (vii) File a 3P claim? (viii) File a co-defendant claim?

Defendant’s Procedure Rule 3.30 – Options D has when served with SoC

- (1) Apply to set aside service (Rule 11.31) o Must prove service done properly (natural justice says must be served properly)

- (2) Apply for an order under to strike (Rule 3.68) – for “significant deficiencies” o argue there’s not reasonable cause of action.

Example: not enough particulars – this wouldn’t stop 20 days for filing SoD - (3) File and serve a SoD (Rule 3.31) OR Demand for Notice (Rule 3.34)

o Filing and serving for both is same (20/1m/2m)

Demand for Notice (DFN) Rule 3.34 – Demand for Notice by Defendant

o 3.34(1): If the defendant files a demand for notice, the demand must be in Form 13. o 3.34(2) The defendant must file the demand for notice and serve it on the plaintiff within the applicable time after

service of the statement of claim on the defendant. o 3.34(3) The applicable time is

o (a) 20 days if service is effected in Alberta, o (b) one month if service is effected outside Alberta but in Canada, and o (c) 2 months if service is effected outside Canada.

o 3.34(4) If the defendant files a demand for notice and serves it on the plaintiff, the defendant must be served with notice of any application or proceeding in which the defendant is named as respondent, but filing and service of the notice does not give the defendant a right to contest liability.

o 3.34(5) If a defendant files a demand for notice and serves it on the plaintiff, the defendant may subsequently file a statement of defence only with the Court’s permission.

o Test for withdrawing DfN is same as overturning default judgment (Bell v Grande Mountain Apartments)

1) IS there arguable defence or good defence on merits? AND 2) Was not filing a SoD unintentional (accidental)? AND 3) Did D bring this application to have DfN withdrawn ASAP?

o 3.34(6) Judgment or an order may be given against a defendant who has filed and served a demand for notice only if - (a) the plaintiff applies to the Court for judgment or an order, and

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- (b) notice of the application is served on the defendant. NOTE: The plaintiff CANNOT get a judgement UNLESS they give the defendant notice of the application, where they are going to get a judgement. You have to bring an application before the court to bring a judgement you CANNOT bypass this.

Bell v Grande Mountain Apartments DfN is partially defended action: gives D who admits liability a chance to ensure he is not held liable for more than he should. In this case: D filed DfN and realized there is an issue of liability – want to submit SoD Test for withdrawing DfN is same as overturning default judgment

- 1) IS there arguable defence or good defence on merits? AND - 2) Was not filing a SoD unintentional (accidental)? AND - 3) Did D bring this application to have DfN withdrawn ASAP?

Court found here that D didn’t have good defence on the merits and dismissed the appeal.

Statements of Defence Rule 3.31 – Statement of Defence

- (1) If D files SOD statement must; o Be in Form 11, and o Comply with the rules about Pleadings in Part 13, Division 3

- (2) D must file the SoD and serve it on the P within the applicable time after service of the SoC - (3) Time is

o (a) 20 day (b) 1 month (c) 2 months

NOTE: Statement of defence is another pleading so it MUST also be in accordance to Rule 13.6, under Rule 13.6(2)(b) states a

the defendant must raise a matter that defeats or raises a defense. You don't have to plead every defence that is available to

you BUT if you don't, you will not be able to use it at trial (you must plead Limitations Act if that is your defence)

Rule 13.12 - Denial of Facts

- (1) Every fact in the pleading is denied if the fact is not admitted in another pleading filed by a party opposite in interest.

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- (2) A denial of a fact in a pleading must be the point of substance

- Rule 13.6 – must set out facts you will rely on, set out the matters that defeat or raise a defence to the claim, must set out

remedies you want (costs, etc)

o 13.6(3): must plead any matter used so as not to take other party by surprise

C(L) V Alberta New Rules: D is required to disclose their position and state their defence sooner than later

- Can no longer have a blanket denial that say “D denies all allegations in the SoC and puts P to strict proof there” Barcellona v Einarson Facts: House in Westlock rented by P, D giving money to pay for rent, didn’t always make it to landlord so D bought house and paid mortgage instead of paying P. P sent D 4k demanding that house transferred, D refused but kept money, P filed action. SoC filed/served, SoD filed not served. Issue :when SoD is filed not served – what’s the status of the file? Held: Once SoD has been filed it freezes or suspends it D was instructed to file new SoD within 30 days and must file affidavit of records and must file a litigation plan

Reponses in a Statement of Defence 1) Admissions: D must admit allegations in the SoC that areu true (even if they entitle P to judgment)

a. No need to prove these at trial, once admitted, deemed true. 2) Denials: D denies the truth of allegations or may be uncertain as to whether it’s true or not

a. Must be proven at trial (unless later admitted) 3) Affirmative Defenses: D may admit a fact but may provide further facts that, if true, would allow D to avoid the claim

a. Must be proven (unless later admitted) b. Ex: D can admit there was K and that goods received, but later agreement with P that removed obligation to

pay. c. If D raises new allegations in their SoD the P may be able to file a reply

Rule 3.32 – Additional Option for Defence

- (1) File a claim AGAINST A CO-DEFENDANT in accordance with rule 3.43 - (2) File a 3P CLAIM in accordance with rule 3.44 - (3) File a COUNTERCLAIM in accordance with rule 3.56

Third Party Claims and Notices to Co-Defendant(s)

Co-Defendant(s) Rule 3.43 – Claim against CO-DEFENDANT

- (1) How to make a claim against co-D – D liable but so is another D (must already be in action) o To have Co-D claim – Tortfeasors Act or the Contributory Negligence Act must apply (only apply in Tort

cases) – statutory claim These statutes require that damage suffered be result of tort or contrib neg, means that, Co-D claim

cannot arise from K. o Contributory Negligence Act – instead of baring action if P’s contributed, court can apportion fault and reduce

amount P receives when they’re partially at fault o Tortfeasors Act: concurrent tortfeasors jointly and severable liable for the same amount of damages to P

Move risk and enforcement of judgment from Ps to Ds - D can claim contribution or indemnity, or both, against a Co-D

o Contribution – Co-D must contribute towards the judgment obtained against the D, may or may not include costs

o Indemnity – The Co-D fully indemnify the D for what the D paid to the P, plus cost of all parties o Arises out of certain relationship (K, agent/principal, guarantor/principle debt, insurance, vicarious liability

of employers. - A defendant who wants to make a co-defendant claim may file and serve on a co-defendant a notice claiming a remedy

under the above acts under Rule 3.43(1)(a) o (a) Defendant may file and serve on a co-defendant a notice in Form 15 claiming a remedy under either or

both of the Acts

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o (b) Neither the defendant nor the co-defendant need file a pleading in respect of a claim or defense under those Acts unless the Court otherwise orders, and

o (c) A third party claim need not be filed and served on the co-defendant. - (2) The notice claiming contribution must be filed and served on the co-defendant within 20 days after the date on

which the defendant files the statement of defense OR demand for notice. NOTE: This is not a pleading it is just a notice, but it still has to be filed and served by pleading and the co-defendant does not have to file any defence. It is just a notice because the co-defendant is already in the action, the notice is filed with 20 days from SOD or Demand for Notice, that is a partial defence on quantum NOT liability.

Third Party Claims - D must be found liable for 3P to be liable - 3P Liability flows through the interaction - Is against a person who is not party to action

Rule 3.44 – When a 3P Claim may be filed (brought by D against someone else)

- (1) Where D or 3P D believes that o (a) Contribution/Indemnity: the 3P is responsible for all or part of the claim against that party (under CL

(arises when 3P breaches duty in K, CL Duty of Care, or statutory obligation owed by 3P to D) or under Contrib Neg Act & Tort Act(the third party claim must allege facts that could support a finding that the third party's breach of duty caused the plaintiff to suffer the same damage that the plaintiff claims it suffered as a result of the defendant's breach of duty to the plaintiff))

because it’s a claim for contribution it stands or falls based on outcome of the Ps claim against D If for contribution under Tort Act must also establish that 3P would would, if sued, be liable for the

damage suffered by P o (b) Independent Claim: When 3P breaches duty owed to D which causes D to suffer losses. The 3P is liable

for an independent claim arising out of (i) transaction or occurrence between the P and the D OR (ii) a related transaction or occurrence.

Is not dependent on the outcome of the P’s action against the D

o (c) Binding: the 3P should be bound by a decision regarding an issue between the P and the D (Ex. res judicata – if you don’t bring them in as a party, they wont be bound by decision)

NOTE: This is a pleading, rules are extensive when it comes to this. The rule stipulates that you can bring a claim against a person who is NOT a party to the original action.

- Ex. A buys light and blows up injured him from B, A sues B, B turns around and filed claim from C who is manufacturer. This 3P is liable for ALL or PART of P’s claim.

o Think CL of negligence, who owed a duty of care, there is also a breach of K claim between B and C which is an entirely independent claim, and this rule allows that, in itself it’s NOT contingent on the original claim. The court wants to joinder to save time/money, which Is why these causes of action are grouped together

Two way to bring someone in as a 3P

- 1) Common Law o Where you have a duty to one individual to indemnify the other o Four areas under CL

Breach of K Breach of warranty Negligence Misrepresentation

- 2) Statute (Tortfeasors Act) o Allows one tortfeasor to claim contribution against another who has caused damage to the P even though the

P has not sued them directly o Act calls this “derivative claim” – therefor the D is enforcing a claim that the P has chosen not to enforce.

Purpose of TF and Contrib Neg Act

- Trying to overrule the CL rules - Ex: at CL if there was ANY contrib neg on the aprt of P their claim would be defeated - P is able to sue any one of the D’s and collect their judgment from any one of the Ds – they never had to sue ALL

potential Ds

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- If there is loss or damage involving a tort, then the court can apportion the liability between the D/P based on degree of fault

- Makes Ds jointly and severally liable Rule 3.45: Form of 3P claim

- 3P claim is a pleading - Served and Filed within 6 months of filing the SoD or DfN and before judgment or before D noted in default. - 3P must be served with copy of SoC - D may participate in 3P claim OR can participate in the claim against P - 3P can apply to set aside service

Rule 3.46: 3P D Becomes Party – A 3P is a party to the action - Important because of Res Judicata - 3P claim must be tried with the other claims in the action unless the court otherwise orders under Rule 3.71

(separating claims) Rule 3.47: 3P Party Defendant’s Options

- (1) A 3P D may do one or more of the following o a) set aside service 11.31 o b) apply to court for an order 3.68 (deal with significant deficiencies) with respect to the 3P claim o c) apply to court for order 3.68 (deal with significant deficiencies) with respect to SoC o d) File a SoD or DfN

Rule 3.48: Plaintiff’s options o P, where 3P claim filed, may apply to Court for an order under 3.68 (significant deficiencies) with respect to 3P claim.

Note: Under Rule 3.47 3P can apply to set aside service because they are acting like a D, they can say you didn’t file and serve me with 3P notice. Can also bring order under 3.48 or make an application and they can claim that there were deficiencies either on the 3P claim or the SoC Rule 3.49 – 3P Statement of Defence and Additional Options

o 3rd party may defend BUT also participate in the main action and defend claim against the plaintiff

o 3rd party may file a statement of defense disputing the defendant’s liability to the plaintiff or its liability as set out in the third

party claim

o The 3rd party can also make its own co-defendant claim or counterclaim Rule 3.49(4)(a) & (b)

o As a result, the 3rd party appears to wear 2 hats and can pursue a claim/defense against the plaintiff and defendant

(1) A statement of defence by a 3P defendant

(a) MUST be in Form 17, AND

(b) MUST comply with the rules about pleadings in Part 13 [Technical Rules], Division 3 [Pleadings], AND

(c) May dispute either or both of the following:

i. the defendant’s liability to the plaintiff, OR

Defendant not liable so I’m not either

ii. The third party defendant’s liability described in the third party claim.

Defendant is liable but I’m not liable

(2) If a third party defendant files a statement of defence, the third party defendant must file it and serve it on each of the other

parties within the applicable time after service of the third party claim on the third party defendant.

(3) The applicable time is

(a) 20 days if services is in Alberta

(b) 1 month in Canada

(c) 2 months outside Canada

Rule 3.52: (1) If 3P does not file SoD disputing liability as between the original P or D they are admitting the validity of the judgment that the obtains against the D ((2)this also occurs if they don’t dispute liability between themselves and D) Rule 3.53: Judgment against 3P D

- Judgment against D must be satisfied before enforced against 3P Canadian Natural Resources Ltd v Arcelormittal Tubular Environment Inc v MEC OP LLC – pg 178 Outlines what 3P claim is and how to deal with it Tortfeasors Act allows one TF to recover contribution from another (not known at CL) Two conditions that the TF Act requires you to make

- 1) Claim has to be in respect to the same damage - 2) Tortfeasor against whom contribution is sought is liable

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Example: Had a car accident and the lawyer did not file SoC on time, so cannot sue D at all, tried to sue lawyer for negligence and 3P claim car accident D. BUT could not do this because not in respect to the same damages. O’Connor Associates Environmental Inc. v MEC OP LLC 2014 ABCA Deals with Rule 3.44(c) Facts: P hires C to give them advice to due diligence regarding an asset from D. C was hired directly by P. What happens is that the P have hired these outside consultants when the matters hit a roadblock and when the purchasers sue the D who tries to third party C who was actually hired by P to inspect and evaluate the asset. D said C owed us a duty of care because they should have done their job (claim negligence), should properly do job for P and wouldn’t have issue. The 3PD moves to strike out the claims against them on the basis that they disclosed no cause of action Test for striking out under Rule 3.68: “whether there is a reasonable prospect of success” Held: 3P had no duty to D because 3P had no relationship to D, so D cannot use 3P claim for defence. 3P claim can arise from beach of contract, warranty, negligence, or can be tort Ratio: An independent duty of care must be owed to the defendant by the third party to support a 3rd party claim. At a minimum, the third party notice must disclose a legally recognized claim by either the plaintiff or the defendant against the third party.

Counterclaim Want to have counterclaim because it’s better than new action, costs payable immediately and don’t want to have to wait for a new action to recover these. In a counterclaim you’re D in initial action and P by counterclaim, and P becomes D by counterclaim Rule 3.56 – Right to Counterclaim

- (1) A D may, by counterclaim, file a claim against o (a) The P o (b) The P and another party, whether other person is a party to the action by the P or not

- (2) A 3P D may, by counterclaim, file a claim against the P, D or 3P plaintiff, or any combination of them, with or without any other person, whether the other person is a party to the action or not

Rule 3.57: Contents of Counterclaim

- (1) A counterclaim MUST o (a) be in form 21 o (b) Comply with rules about pleadings in part 13 (Technical Rules), Division 3 (Pleadings), and o (c) Be filed and served on the D by counterclaim within the same period that a P by counterclaim must file a

SoD under rule 3.31(2) SoD 20 days fie/serve, 1 month, 2 months

Rule 3.58 – Status of Counterclaim - A counterclaim is an independent action. Therefore, if the initial claim is discontinued the counterclaim lives on Note: Independent action important because if P decides to discontinue action D has counterclaim alive. If P withdraws can both do it and no costs for anyone. Generally withdrawal other party gets costs.

Lil Dude Ranch Ltd v 1229122 Alberta Inc No ability for someone who is a stranger to the action to file a counterclaim Issue: Court looks whether non-party to action can be added as a P in a counterclaim (that’s being amended) Held: Rule 3.56 says only D can counterclaim, court says amendments to pleadings unlimited unless there is prejudice to other party, if its compensable then maybe allow it still. Under 3.56 stranger has no ability to counterclaim but keep in mind Rule 3.73 that says no action can fail just because two or more parties did not join when they could/should have.

If Ps had applied to add a new D there would be no bar in the rules (e.g. can add as an amendment)

Set Off Rule 3.59 – Claiming Set-Off

- Claiming set-off can be done via counterclaim or by pleading it as a defence. Two types that are recognized at CL o Legal Set-Off: Allows only mutual debts to be set-off. Could not apply it to any debts that have debt

assignment

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Can be used both CC and Defence (as defence more common) o Equitable Set-Off: The relationship is such that it would be inequitable to allow one party to proceed without

taking into account the other debt. The debts need to arise from the same or interrelated-related K’s. If set-off is the defence, you are going to have one judgment in the action

If D’s right to set-off is equal to the P’s claim, and in doing so, judge will dismiss P’s claim If set-off is counter-claim, you are going to have two separate judgments

Holt v Telford – equitable set-off T sold land to CS, CS gave 165k in cash + 100k mortgage owing. CS sold land to T, T gave 115k in cash + 150k mortgage Each party owed 50k in initial scheme CS assigned mortgage to H, H argued they were owed 150k, T argued only owed H 50k Held: Court said this is not legal set-off because it is not mutual debt and one of the K’s has been assigned HOWEVER equitable set-off applied because arose from interrelated K’s, it is up the H to make sure they get their money from CS, CS will pay H instead of paying T.

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Part III: PRE-TRIAL EVIDENCE GATHERING AND DISCLOSURE Evidence Gathering – Two Types:

- 1) Discovering records, examining and reviewing records of opposing parties o Applies to all parties o Purpose is to prevent surprise – determining what the case of each party is

- 2) Questioning parties (discovery of persons): questioning parties to the action who are adverse in interest – can be both oral or written

o Parties are required to file an affidavit or records, then questioning of parties adverse in interest

Ch 16: Disclosure of Records

Summary of discovery of Records – What to Disclose

What is a Record?

- A representation of, or a record of, any information, data or other thing that is, or is capable of being, represented or reproduced visually or by sound, or both.

o Records can include FB Profiles, where party must produce any of his FB postings that relate to any matter at issue in an action (Leduc v Roman)

Steps of Disclosure

- 1) Disclosure of Records o always need affidavit or records o you have no right to refuse to answer questions, unlike in a criminal trial o if you do not produce all records that are relevant and material then can have consequences ranging form

fines to striking the action - 2) Question Parties in the Action

o Can’t start until after parties have served their affidavit of records o Always between parties adverse in interest

Rule 5.1(1) – Five reasons for disclosure of information

- a) to obtain evidence that will be relied on in the action (you tyr to turn information into evidence) - b) to narrow and define the issues - c) to encourage early disclosure of the facts and records - d) to facilitate evaluation of the parties’ positions and if possible resolution of issues in dispute - e) to discourage conduct that unnecessarily or improperly delays proceedings or unnecessarily increase the cost of

them Under (2) court can do whatever it needs to achieve (1) Rule 5.2: When something is Relevant and Material

- (1) Question, record, or information is relevant and material if answer of record could reasonably be expected: o (a) significantly help determine one or more of the issues raised in pleadings OR o (b) To obtain evidence that could help determine one or more issues raised in pleadings

Must disclose records or questions which are

"relevant and material" under Rule 5.2

Broad disclosure of "records"

But disclosure does not mean "use" since information isn't

automatically evidence

Exceptions to disclosure are privilege (Wigmoretest for non-lawyers):

solicitor-client, settlement, litigation

Can waive privilege purposefully or

inadvertently but once waived, everything is

disclosed

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Records Under a Party’s Control Western Union Insurance Company v Nihill Facts: insurance company claim against drunk driver that killed ppl. Blood sample sought but wasn’t in affidavit of D. Issue: must he disclose this blood sample document?? Decision: Yes, he has the power to obtain the document, must be discovered in affidavit. Document being shown in affidavit of production is different than being produced for inspection. McInerney v MacDonald Medical records under physicians control (physician is the owner), if not provided with access after request by patient, can be ordered to be released by court regardless of physicians refusal. A patient has a right to copy the records not take it off the premises.

Records Which are Relevant and Material Rule 5.2(2) – When something is [NOT AUTOMATICALY] relevant and material

- The disclosure and production of records is not to be considered as an agreement or acknowledgement that the record is admissible or relevant and material

o When you produce, it is bare disclosure with no guarantees (not evidence) no claim regarding its admissibility or that it’s even R&M. Disclosure does not equal admission. Not even saying whether its relevant

- Because this is so broad, 5.3 gives court additional powers Rule 5.3:

o (1) If a party acts in a way that is abusive or threatening then court can make order remedying this (do not have to disclose, make a cost award, order future questioning before a judge, increase amount of interest)

o (2) if expense, delay, danger or difficulty complying with rules under section grossly disproportionate to the likely benefit court may modify or waive any right or power under a rule in this section.

1400467 Alberta Ltd v Adderley Looks at Rule 5.1 D produces 13000 unidentified records, other D’s wonder if they can just adopt the affidavit of record, the court looks at whether there is anything that can be done when disclosure is obviously excessive Held: Rule 5.1 is not consistent with dumping of records. Costs can be awarded when party fails to meet requirements but nothing to suggest excessive amount warrants costs, other D’s have to go through each record and cannot just adopt affidavit of records “In all the circumstances, the appropriate remedy here is to require all defendants other than Pro-Canada to amend the affidavits

of records already filed by identifying from amongst the 13,000 pages of disclosure those pages which deal specifically with their

own actions”

Leduc v Roman Facebook profiles are documents and party must produce any of his FB postings relate to any matter in issue in an action Kaddoura v Hanson Not necessary at this stage of litigation to determine whether trial judge will or will not be prepared to draw inferences from circumstantial evidence put forward Respondents don’t have to demonstrate conclusively that discovered records will in fact contain any evidence of assistance Underlying records may significantly help determine one or more of the issues In questioning answering questions can’t be objected to because the other party already is said to know the answer. Trying to narrow the issues in dispute. Just because information can be attained by other means doesn’t matter, discovery is about efficient, structured, and comprehensive method of obtaining relevant and material information.

The Exception for Privileged Records 3 Type of Privilege

- 1) Solicitor-Client privilege - 2) Litigation Privilege - 3) Settlement Privilege

Even where info is relevant and material under Rule 5.2 an exception is legal privilege

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- Legal privilege belongs to client who can waive the privilege - Under the AB Code of Professional Conduct a lawyer has a duty to keep their client’s business, interest, and affairs

acquired in course of professional relationship = o Anything and everything client tells you as a lawyer is a secret, cannot tell anyone unless consent obtained

from client - Solicitor Client Privilege

o Not merely a rule of evidence but a fundamental civil and legal right Reasons for Legal Privilege

- Allows lawyer to do their job more effectively and in turn promotes public interest in the proper and fair administration of justice

- A right to privacy, a right to be let alone, a right to unfettered freedom, civil, in narrowly prescribed situations/relationships

When Legal Privilege Applies - Where legal advice of any kind is sought from a professional legal advisor in his capacity as such. Communication

relating to the purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by legal advisor except if the protection is waived.

- Applies to corporate and commercial transactions, family relationships, civil litigation or criminal charges and includes family secrets, company secrets, and personal indiscretions (Smith v Jones)

- Must still list records that are privileged and briefly describe why they are in affidavit of records Elements of the Duty of Confidentiality Wigmore Test: Test for Non-Lawyer Duty of Confidentiality

- Non-lawyers disclosure of potentially relevant and material information under Rule 5.2 will not be required when the following elements are present:

o 1) Communications must originate in confidence; AND o 2) Element of confidentially must be essential to the relationship between the parties, AND o 3) Relationship must be one which ought to be fostered, AND o 4) The interests served by protecting the communications from disclosure outweigh the interest of

pursuing the truth and disposing correctly of the litigation. Injury by the disclosure of the communications must be greater than the benefit gained for the

correct disposal of litigation. AM v Ryan Application of Wigmore Test Facts: patient brought civil action for damages in an alleged sexual assault by her doctor (Ryan). Sued him for mental trauma/suffering. Issue: Are new psychiatrist notes and records between the P and him required to be disclosed? Decision: First 3 elements of Wigmore are satisfied but D’s right to relevant material testing the P’s case outweigh P’s expectation of privacy Reasons: Decided that interest of preserving confidentiality was important but outweighed by need to dispose properly of the litigation. Note: Regarding the fourth element, must consider the disclosure and its relation to s.8 and s.16 of Charter (right to privacy and right to equal treatment under law). Suggests that it would not be fair to allow general rule regarding automatic disclosure for sexual assault victims. Documents released only to lawyer, not Dr. Ryan. Test for Solicitor Client Privilege (Solosky v The Queen)

- 3 Elements o 1) a communication between a solicitor and a client o 2) which entails the seeking or giving of legal advice, AND o 3) which is intended to be confidential by the parties

- There are two exceptions where solicitor-client privilege will not be respected o 1) communications which are in themselves criminal or which counsel a criminal act o 2) information that isn’t communication but is evidence of an act done by counsel or a statement of fact

What Solicitor-Client Privilege Applies To:

- 1) Notes - 2) Correspondence - 3) Conversations

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- 4) Producing records and questions What is “Continuum of Legal Advice”

- Legal privilege remains intact for legal advice communicated within a client organization - Not necessary that the communications specifically request or offer advice, as long as it can be placed within a

continuum of communication in which the lawyer tenders advice. Other Types of Privileges that are Exceptions to Disclosure

- Litigation privilege – applies where dominant purpose for creating the records was for litigation (although this does not need to be only purpose)

o Don’t need to have a legal action started – ex. reconstruction of an accident prior to being sued. - Settlement privilege (Phillips): any communications written for the purpose of attempting to reach a settlement

are privileged. o Cannot be disclosed without consent of both parties o Privilege applies to records released “without prejudice” as long as in hopes that it will lead to settlement or

where there is a contractual agreement they remain privileged Canadian Natural Resources v Shawcor Ltd Each privileged record should be numbered and briefly described why privileged in affidavit of records. Facts: CNRL sued Shawcor. Shawcor applied for order for CNRL to provide better affidavit of records. CNRL claimed subject to either solicitor-client privilege or litigation privilege. Shawcor contends that they just used blanket statement and that they waived privilege over records by referring to them in SoC. Issue: Should they have to provide the records? Decision: Yes Reasons: 5.1 and 1.2 work together to provide an environment that promotes access to justice. Must number and briefly describe each record in the disclosure, for privileged records must identify grounds of the objection to production for each record in order to assist other parties in assessing validity of the claimed privilege. CNRL records do not comply with this requirement Bellatrix Exploration Ltd v Penn West Petroleum Ltd Deals with “without prejudice” Confirms importance of settlement privilege as one of the three classes of privilege (others solicitor client and litigation privilege). Public policy rationale for the rule is that “parties should be permitted to freely put cards on the table without having to worry that they may be prejudiced should negotiations fail to resolve their dispute.”

- Hint of potential compromise or negotiation must be in the communication for privilege to attach - Adding words “without prejudice” does not create privilege and absence doesn’t waive privilege.

Waiving Solicitor-Client Privilege

- Must be waived by client and can be done in 2 way o 1) Purposeful intention o 2) Inadvertently – ex by client bringing into question the client’s state of mind OR by relying on privileged

communications in pleadings (Syncrude) (such as by referring to legal advice not previously disclosed) - Waiver tends to be all or nothing where if you waive privilege, you must disclose the entire record. - Lawyers can’t waive on clients behalf.

Syncrude Canada Ltd v Babcock & Wilcox Canada Ltd Cases require an intention to waive, however the client may inadvertently waive privilege by bringing into question his state of mind (ie reliance on legal advice) or relying on privileged communication in pleadings

The Affidavit of Records What is it?

- Sworn document that must be sworn by client – solicitor has a requirement to explain to the client what is material/relevant (Rule 5.6 specifies what must be in the affidavit)

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Disclosing and Identifying Relevant and Material Records Rule 5.5: When affidavit of records must be served

- (1) Every party must serve affidavit of records on each of the other parties in accordance with the time period specified bellow

- (2) The P must serve an affidavit of records on each of the other parties within 3 months after date P is served with SoD, or the first SoD if more than one served.

- (3) D must serve affidavit of records on each of the other parties within 2 months after date D is served with P’s affidavit of records.

- (4) A 3P D who filed SoD must, within 3 months after filing that, serve affidavit of records on each of the parties. Note: Can be varied with consent under rule 13.5 Rule 5.6: Form and Content of Affidavit of Records

- (1) Must be in: o (a) Form 26 o (b) Disclose all records relevant and material to the issues in the action, AND are or have been under the

party’s control - (2) Affidavit of Records Must:

o (a) disclose records that are under your control o (b) disclose which of the records that are objected to being produced, and gounds for objection (be careful

how much information releasing when identifying these records) o (c) For records which there is no objection to being produced, a notice stating

(i) The time when the record may be inspected, which must be within 10 days after affidavit is served, AND

(ii) The palce where the record may be inspected, which may be (A) address for service of the party serving affidavit (B) Place agreed upon by parties or ordered by Court, or (C) If record is in constant use, the place where it is usually kept.

o (d) disclose which relevant and material records were previously under your control, the time and manner in which they ceased to be, and current location

o (e) state that you don’t have and never had any other relevant and material under your control. Timeline and Contents of the Affidavit of Records

- Steps for the process and delivery of documents o Stress to client the broad test of relevance o Find out who else was involved on both sides of the matter and insist on seeing all their papers o Ask client what routine paperwork was likely involved on both sides, and use your own knowledge to

determine what would’ve been required o Once you have docs, determine if everything is present, if there are gaps, if original files missing, etc… Arrange

in chronological order

Sidenote: 3P has 3 months to file an affidavit of records after filing their SOD

Rule 5.32: Don’t file affidavit or records, only time you will file is if you decide to use it as evidence for “read-ins” to impeach or cross. The records are not the evidence of the party so you are not putting the other parties records in filing. Cases talk about how you have to identify the records and when not wanting to waive privilege you need to identify the records and see what kind of privilege you are claiming. However, you have to be careful not to reveal anything. Even revealing a date can be detrimental. Rule 5.7: Producible records (Reasoning from Canadian Natural Resources v Shawcor Ltd)

Plaintiff receives SoD Plaintiff serves affidavit of records

Defendant serves affidavit of records

3 mos. 5.5(2)

2 mos. 5.5(3)

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- Records must be numbered and briefly described - Bundled only if the are in the same nature and are described in sufficient detail - Even if privileged, must still number and ID type of privilege you’re claiming

Rule 5.9 – Who Makes Affidavit of Records

- Must be sworn by a) party, b) corp rep c) lit rep, OR - a) suitable person if it is inconvenient for the previously mentioned person to do so AND b) parties agree or court

orders - Client must do thorough search and disclose all relevant info, duty on lawyer to let client know what they have to do.

Subsequent Disclosure of Records Rule 5.10 – Subsequent Disclosure

- If after party has served affidavit of records the serving party find, creates, or controls a relevant and material record not previously disclosed, the party must:

o (a) immediately give notice to the other parties o (b) supply other parties with the record o (c) serve supplementary affidavit of records to all the other parties.

Getting Records from Non-Parties Rule 5.13 – Obtaining records from others

- (1) Court may order a person who is not a party to produce a record o (a) if the person has control o (b) the record is relevant and material o (c) person who has control might be required to produce it at trial

- (2) The person requesting the record must pay the person producing it an amount determined by the Court - Important Note: Doesn’t apply to Crown, only has obligation to produce records if they are aprty to litigation,

Proceeding Against the Crown Act says that in that case you treat Crown like corporation. o May be able to get record through FOIP though

Authenticity of Affidavit of Record Rule 5.15 – Admissions of Authenticity of Records (this is what you DO admit)

- (2) Subject to subrules 3,4,5, a party who makes an affidavit of records or on who’s behalf an affidavit of records is filed and a party on whom an affidavit of records is served are both presumed to admit that:

o (a) A records specified or referred to in the affidavit is authentic, and o (b) If a record purports or appears to have been transmitted, the original was sent by the sender and was

received by the addressee. - These are rebuttable presumptions that must be rebutted within one month of being made.

Failure to Disclose Record in Affidavit of Records Rule 5.16 – Undisclosed Records not to be used without Permission

- If failure to disclose the party who failed to disclose cannot use the record in evidence in the action unless the parties agree OR the court otherwise order on the basis that there was a sufficient reason for the failure to disclose.

Essentially a failure to disclose they cannot rely on it as evidence for their action, which can be critical because they may want these records to bolster their case. PENALTIES for failing to serve affidavit of records Rule 5.12 – Not Serving Affidavit of Records

- Court can award DOUBLE COSTS if party fails to, without sufficient cause: o (a) Serve an affidavit of records in accordance with Rule 5.5 o (b) Comply with rule 5.10 – subsequent disclosure of records o (c) Comply with Rule 5.11 – order for a record to be produced

Rule 5.11 On application, the Court may order a record to be produced if the Court is satisfied that: Relevant and Material or privilege has been incorrectly claimed.

Sun Life Assurance Company of Canada v Tom 2003 -1 Limited Partnership #2 Deals with Double Costs Held: to avoid being penalized with double (Rule 5.12) costs you must have shown the court an extreme circumstance where due diligence was difficult, to which they had “no practical control” Note: Even if D brings a motion to strike out SoC under Rule 3.68, they still need to file a proper affidavit of records

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Chevalier v Sunshine Village Corp Deals with Double Cost under Rule 5.12(1)(a) Court can punish party who “without sufficient cause” fails to file and serve an affidavit of record on time. Just because you bring application to strike doesn’t mean you can ignore time limits. Like any time limits, if you want to vary use Rule 13(5) agreement or court order. Freedom of Information and Privacy Act [FOIP] Part One: Access to Records of a Public Body What does it apply to? Act applies to all records of information that are recorded or stored by a public body and are within that public body’s

control. Public bodies include governmental departments, agencies, boards, commissions, education bodies, health care bodies and local government bodies.

o MUSH – act always applies to municipalities, universities, school boards, and hospitals Act does not apply to court files, land title records, judges’ personal notes, etc. and does not require a public body to

provide oral information or answer questions. o Records outside the scope of the Act o Act does not require a public body to provide oral information or answer questions posed by an applicant

Anyone can make a request; the public body must sever information that cannot be disclosed. What Public Bodies are under the Act?

o AB government departments, agencies, boards, commissions, local public bodies (educational bodies, health care bodies and local government bodies)

Exceptions to mandatory access under the Act: o 3P commercial information o 3P personal information * o Law enforcement information that is an offense to release * o Cabinet or treasury board certificates o Information subject to legal privilege that relates to person other than public body. *

Discretionary exceptions to access under the Act: o Information harmful to individual or public safety o Confidential evaluations, local public body confidences o Information harmful to law enforcement, intergovernmental relations, economic interests, or other interests of

the public body. o Advice from government officials o Testing procedures, tests and audits o Information subject to legal privilege * o Information harmful to conservation of heritage sights o Information that is or will be available to the public.

Part Two: Protection of Privacy of Personal Information Held by a Public Body Act creates rules for the collection, use and disclosure of 3P personal information that applies at all times. Personal information is recorded information about an identifiable individual including race, religion, marital status,

fingerprints, genetic information, education history, people’s opinions about the person, and the person’s own views. Personal information can be collected where:

o It is expressly authorized by AB or federal statute. o It is collected for law enforcement purpose. o It relates directly to and is necessary for an operating program or activity of a public body.

Personal information can be used: o For the purpose it was collected for. o If the individual consents to the use. o For a purpose for which the information may be disclosed.

The Information and Privacy Commissioner can review/investigate anything under the Act related to access to information or privacy of personal information.

When Will You Use The FOIP?

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As a last resort the Rules and other legislation provides much broader disclosure than the FOIP. The commissioner decides, and you are not at a better advantage just because you are a plaintiff or defendant. It is possible sometimes to sever records.

Use it as a parallel tracking system e.g. if you want to check that all relevant records that are in the custody and control of the public body have been produced by the other party.

If you want to get information pre-discovery remember that until plaintiff receives the SOD, they do not need to provide an affidavit of records (and therefore neither does the defendant). Use the FOIP where you want to get information before defendant has served their SOD.

Use it to get relevant business information FOIP protects personal privacy but not privacy of businesses (3rd Party) ex. public bids, negotiations

OR Only resort Use where only the public body has the records University of Calgary v JR Facts: Board of U of C appeal decision by FOIP Commissioner to order disclosure of certain records so that commissioner could determine that those records were subject to solicitor-client privilege. Held: Solicitor-client privilege must be explicitly overruled in legislation in order for it to compel parties to breach it. This conclusion comes from requirement for strict interpretation of statute. FOIP provision in question: 56(2) The Commissioner may require any record to be produced to the Commissioner and may examine any information in a record, including personal information whether or not the record is subject to the provisions of this Act.

Ch 17 – Questioning

INFORMATION EVIDENCE Obtained through questioning Only that which you can put before the court (filed

or oral answers at trial) May be oral or written General rule at trail is oral evidence only Only test for gathering is that its relevant and material

Rules of evidence apply (ex. hearsay)

Answers are not required to be filed or put before the court

Answers become the evidence of the party who puts them before the court

Answers may be used in an application or at trial (put before the court) and then it becomes evidence of the questioning party

- Questioning is more like cross-examination than examination in chief - Questions asked broaded than trial – rules of evidence don’t apply, it’s process of collecting information. - A lawyer must not obstruct another lawyer without reason (must have reasonable grounds to object).

o Cannot talk to client on breaks about answers or questions. o Can only seek facts, not law. (can’t ask how the law will apply to the facts. If you don’t think SoC is clear you

can apply to have it struck or for better and further particulars. What Questions May be Asked? Rule 5.17(1) – Questions asked must be about relevant and material records and information

o Cannot decline to answer a question even if the answer is adverse to your case - Alberta Evidence Act – Section 6(1),(2)

o (1) A witness won’t be excused from answering questions which may incriminate the witness OR establish the witness’ liability, whether that’s used at trial is a different story

o (2) However, a witness who testifies in any proceeding has the right not to have any incriminating evidence used to incriminate them in another proceeding, except in the prosecution for perjury or for the giving of contradictory evidence.

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Who Can be Questioned? Rule 5.17: People who may be questioned: A party is entitled to ask the following persons questions under oath about relevant and material records and information:

- (a) A party Adverse in Interest o A party to the lawsuit, they must be named in the pleadings, AND be adverse in interest based on the

pleadings – cannot question a non-party – See Turta o Exception: family members may be considered adverse in interest if an action is brought against an estate,

and therefore may be question because of the Fatal Accidents Act – see Golden Estates - (b) Officers and Corporate Representatives if adverse party is corporation

Corps have obligation to name a corp rep, but this choice may be challenged This evidence will be deemed to be the evidence of the corporation A corp rep can be any person, but have a duty to inform themselves of the relevant facts of the case Officers and former officers can also be examined but this evidence can’t be considered

evidence of the corporation Note: Makes sense to question employees and officers PRIOR to questioning corp rep, as you can put

the statements of the employees/officers to the corp rep. o Rule 5.29: acknowledgment of corporate witness evidence given by a corporate witness that is NOT the corp

rep CANNOT be read in during trial UNLESS adopted under oath, as evidence of the corp rep. - (c) Litigation Representatives who are appointed for a Party

o (i)Opposing party has auto right to question lit rep o (ii)Can also seek court order to allow questioning of the actual party, if they are competent to take part in

questioning. o Children: If they don’t understand nature of an oath the evidence of the child MAY still be used if

determined they understand the duty of speaking the truth Evidence Act Section 19(1) – in legal proceeding where child of tender years does not understand

the nature of an oath, the evidence of the child may be received if, in the opinion of the judge, the child possessed sufficient intelligence to justify taking the evidence AND understand the duty of speaking the truth (ex: 5yo wouldn’t 12yo would)

- (d) Employees or Former Employees of Adverse Parties o Employees being examined must have some information that is relevant and material to the lawsuit

because of their employment o Can include independent contractors, volunteers, or anyone in relationship that is akin to employment (Cana

Construction). o Establishing employment relationship is on party questioning the employer o A former employee may be examined on their knowledge touching on the matters in issue, even though the

information was acquired after their employment ended outside their employment (Tremco) o Rule 5.18: If a party can’t obtain relevant and material information from an officer or employee or former

officer or employee adverse in interest AND unfair to continue to trial without questioning AND questions will not cause undue hardships, expense, or delay to any party or person questioned then:

Party may question, under oath, a person who has provided services for the corporation and who can provide the best evidence on the issue

- (e) Auditor of Party of Adverse Interest o An auditors or former auditor engaged by a party adverse in interest BUT NOT an auditor or former auditor

engaged solely for the purpose of the action (can’t be hired just for for the action). - (f) Partner if adverse party is a Partnership

Turta v CPR Officer of corp questioned, stopped questioning and claimed the other party not adverse in interest Must be adverse in interest. Golden Estate v Neilson Question of whether the deceased’s mother and spouse could be questioned.

- Yes, because under Fatal Accidents Act s.3(1) they have a cause of action conferred on them (they can also bring action themselves if administrator doesn’t within a year or if there is none)

- They are also adverse in interest. Cogent Group v EnCana Leasehold Ltd Partnership Deals with Rule 5.18

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Facts: Cogent entered K with Ecana, P, and Encana L. EP terminates their K with Cogent and then EL does as well. Cogent brings action against EL for wornful termination and wrongful interference. Wants to question employee of EP but EP not part of action. EP’s employee had provided services for EL in the past. Issue: can EP’s employee be questioned as a contractor for EL? Decision: No Reasons: Services were provided to EL in the past but not in relation to the issues in the litigation and thus not a service provider and not a party adverse in interest. Held: purpose of the rule is to allow questioning of persons akin to employees who have gained relevant and material knowledge as a result of providing services to that corporation, therefore there MUST be some connection between the questions for the contractor and the issue of the litigation, but just because they know something does NOT necessarily mean they are questionable. Tremco Inc v Gienow Building Products Ltd Scope of questioning should be given broad application. Questions asked in discovery should always meet the relevance threshold, allows the parties to assess the information properly, and encourage settlement, admissibility will ultimately be for the trial judge, which comes later. Even information obtained outside employment is relevant and must be answered. Rozak Estate v Demas Repetitive and abusive questioning have never been allowed – questions must be relevant and material to the application and should narrow the issues. Kwok v Canada (Natural Sciences and Engineering Council) Relevant and material only if it could reasonably be expected to help determine the issues raised in the pleadings. What are the requirements that have to be met prior to Questioning? Rule 5.20: When questioning is to take place

- (1) Both the P and the D can only question after they have served affidavit of records on the party adverse in interest – questioning party must serve on questioned party (keep in mind Rule 13.5, can delay questioning if you delay filing)

- (2) (a) P – may question after SoD has been served on them OR the period for serving the SoD has expired (b) D and every other party – may question any time after SoD is served.

What is the Process of Questioning? Rule 5.21 – appointment for questioning

- (1) In order to question someone must serve the person with notice of appointment for questioning in Form 29. - (2) Unless parties agree otherwise notice for appointment for questioning must be served at least 20 days prior to

date of appointment. Rule 6.17 – Payment of allowance

- (1) When you serve a notice of appointment you have to pay party allowance - (2) If you don’t pay, don’t have to show up unless court orders them to - (3) Amount of allowance to be paid set out in Schedule B of Division 3

Rule 6.38 – requiring Attendance of Questioning - If person doesn’t show up court can order them to

How is Questioning Conducted? Rule 5.22: Questioning Options: Subject to Rule 5.24 (if more than one party is entitled to question a person, questioning must be done orally. Otherwise, you must pick either oral or written) questioning may be conducted:

- (a) Orally, under oath, or - (b) By written questions, answered under oath, subject to Rule 5.28 (written questions: numbered/succinct, given by

affidavit and state question in answers, must serve written answers to each party) Rule 5.23: Witness must be reasonably prepared and bring any records they are likely to be required to provide. Rule 5.26: the questioning must be recorded – transcript not filed but may use part of it (“read in”)

- Must always have a recorder there. What are the Grounds for a Witness to Object to Answering Questions?

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Rule 5.25: Appropriate questions and objections - (1) MUST answer all questions that

o (a) are relevant and material, AND o (b) questions in which an objection isn’t upheld under subrule (2)

- (2) Can object when o (a) Privilege o (b) Not relevant and material o (c) Unreasonable or unnecessary o (d) Any other ground recognized at law (ex spousal privilege)

- (4) If objection to question cannot be resolved the court must decide its validity Wesley First Nation v Alberta (ABQB) Categories for impermissible questions

- Questions of expert opinions - Questions of law or mixed law and fact - Questions that ask witnesses to interpret a document they didn’t author - Questions that require witness to hypothesize, speculate, or reach conclusions - Questions that offend the rules of privilege

Generally Crown’s rep is treated like officer of corporation in proceeding Witness must

- 1) inform themselves of relevant materials - 2) bring records likely to be required - 3) give appropriate evidence of the relevant and material records and information

Can a Person be Questioned by a Party for Whom They are Acting as a Witness? Rule 5.25(5): Appropriate Questions and Objections

- After questioning party is finished person may be questioned by their own counsel in order to explain, elaborate, or provide context for an answer initially given.

Rule 5.27: Continuing Duty to Disclose - Party who was questioned must, by affidavit, correct an answer if the answer was incorrect or misleading or became

incorrect or misleading. The affidavit must be served as soon as practicable. What does a Person do if they Don’t Know the Answer During Questioning? Rule 5.30: Undertakings

- If person doesn’t know the answer they must undertake to inform themselves the answer within reasonable time, after undertaking discharged they may questioned on the answer given or record provided.

Psychologists Associat ion of Alberta v Schepanovich Situations where undertakings can be withdrawn

- If given inadvertently - And it should not have been given (must prove this with evidence) - and the other side will not be prejudiced

Discovery Abuse Holowaychuk v Lopishinsky When you question on affidavit then not as broad as questioning in discovery. It’s like being before a court not the client or opposing part. Judge will ask if they would have allowed such questioning. Affidavit questioning is filed with the court Landes v Royal Bank of Canada Counsel should allow cross-examination of his client to be carrid aout without undue interruption, counsel can’t object to question on grounds that they can’t understand it. Questions are directed at client not counsel. Counsel should never answer questions for client. How are the Answers Used?

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Rule 5.32: When information may be used - Don’t file transcript unless you want to use portion of it for an application, proceeding or at trial - Court only interested in questions which relate to particular issues which will arise either at trial or a particular

application When not? Same question is asked at trial and answered in the same way (prior consistent statements are excluded) Rule 5.31: Use of Transcript and Answers to Written Questions

- (1) You can use answers from questions to support an application or at trial as long as the person questioned was adverse in interest

o So can’t use own witness’ answers from questions that you asked them - (2) This evidence can only be used by the questioning party, and is evidence only against the party was questioned. - (3) IF you only use part of the transcript, the court can direct that the entire transcript be entered as evidence

Procedure to Read In 410675 Alberta Inc v Trail South Developments Inc Can use answers in questioning to clarify answers in trial. If it is contradictory then you can use questioning to address credibility of witness in cross-examination. Can use questioning for admissions, if confirmed in questioning then don’t need to refer to them in trial. Are the Answers Confidential? Rule 5.33: Confidentiality and the use of information – Implied undertaking rule

- (1) The transcripts of information are treated as confidential and can only be used by the recipient for the purposes of carrying on the specific action for which it was disclosed, unless:

o (a) The court orders otherwise o (b) The parties otherwise agree, or o (c) It’s otherwise required or permitted by law

Note: Questioning is different than an interlocutory application as affidavit used in support must be filed and becomes evidence. Juman v Doucette Deals with Rule 5.33 – Implied Undertaking Rule Facts: P sued daycare operator for child’s brain injury in civil action. Separate investigation the RCMP argued that implied undertaking rule didn’t apply and they could obtain transcript of daycare operator being questioned. Police looking into criminal assault charges Issue: Can these records be obtained by police Decision: No, but if they’re not privileged so can get warrant but need cause and couldn’t use in proceedings but could inform them of where to direct their investigation. Reasons: Implied undertaking rule important because we want truth and if they don’t have protection truth less likely. Must how some public interest to accessing document – public interest, safety – don’t need immediate protection of child here. For public safety must need clear and imminent threat to identifiable group. If criminal charges brought then can require her to provide copy. Hall v Wilcox Common law implied undertaking rule applies to affidavit records, records produced, examination for discovery, undertakings on examinations and records produced arising out of the discovery process. Implied undertaking does not apply to cross-examinations on affidavits, which are treated as being akin to testimony in court to which open court principles applies Edmonton (Police Service) v AB Facts: Edmonton Police challenge decision that contents of evidentiary record prepared by Chief became public use at conclusion of hearing could be used in subsequent complaint to the Chief. Decision: Implied undertaking of confidentiality over information in the Record existed but was exhausted as that information became available to the public at the close of the hearing

- Records here are more like publicly available transcript of the evidence heard at trial.

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Ch 18: Admissions Where Can Admissions Be Found? Oral Admissions:

- Admission at trial, oral testimony of evidence (Best Evidence Rule) - Admissions during questioning – contradictions, inconsistency - Questions on affidavits – as soon as it is filed the person can be questioned on the information provided

Written Admission - Admissions of Affidavits - Admissions in Pleadings - Agreed Statement of Facts - Notice to Admit Facts – get the other party to admit to certain things and file it with the Court under Rule 6.37.

Process for Admissions Rule 6.37: Notice to Admit

- (1) A party may by notice in Form 33, call on the other party to admit for the purposes of an application, originating application, summary trial or trial, either or both of the following:

o (a) any fact stated in the notice, including any face regarding a record o (b) any written opinion included in or attached to the notice, which must state the facts on which the

opinion is based - (3) Matters presumed to be admitted unless within 20 days after the date of service, the party to whom the notice

was served (rebuttable presumption) o (a) Denies a fact or opinion, provides a reason why, or o (b) objects on some or all matters of the admission based on the fact that they are privileged or irrelevant,

improper or unnecessary - (5) Denial by a party must specify the facts or opinions that are admitted and deny only the remainder

o ex: deny some rest will be presumed true, can’t blanket statement deny everything – must be specific or you can be penalized under Rule 10.33(2)(b).

- (6) A party can amend or withdraw an admission or denial made under this rule ONLY if o (a) the court gives permission, o (b) agreement of the parties o HOWEVER, catch is you will be penalized with costs from the Court.

- (7) Admission is only good for the specific purpose for which it is made, can’t be used in favour of any other person other than the person requesting the admission, unless the party agrees.

- (8) On application, the Court may set aside a notice to admit. NOTE: A party may call on any other party to admit and this CAN apply for an application for a summary trial or a trial and includes any fact about a record or any written opinion included or attached to the notice. Everything is presumed to be admitted unless the party basically denies the fact or opinion or sets out details of the reasons why they would not admit it, or set out an objection on the ground that it is privileged or whether its relevant or necessary. Rule 10.32(2)(b): Court considerations in making cost award

- In deciding whether to impose a costs award the court may consider a party’s denial of or refusal to admit anything that should have been admitted (if you deny obvious facts).

Dwyer v Fox Ratio: Even if admission consciously/deliberately made, the Court can still allow the admitting party to withdraw under Rule 6.37(6) if there is evidence adduced whether the admitted fact is true or not and it’s a real issue. Court concerned with “what is the real truth” HOWEVER COSTS WILL GET YOU Andriuk v Merrill Lynch Canada Inc Deals with Rule 6.37(8) Facts: D asked to admit certain things in Notice to Admit. Applied for it to be struck because was still waiting for certification of class action and SoD hadn’t been filed. Issue: Can a Notice to Admit be required prior SoD? Decision: Yes Reasons: Rules don’t say can’t be used in these circs, rule is broad. Can use admissions to crystalize the real issues.

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In order to strike Notice to Admit you need really good reason (very unfair, abuse of process, strike at the heart of administrative justice). TS v Stazenski Facts: D wants to set aside Motion to Admit, D says P can’t serve after commencement of trial. Issue: can Motion to Admit be served after trial starts? Decision: No Reasons: Once trial starts you don’t have 20 days to respond anymore and thus impliedly can’t admit.

- You must Notice to Admit at least 20 days before trial - You can’t call something a fact when the other side is being asked an opinion.

Ch 19: Experts

- Expert is someone who is proposed to give expert opinion evidence (in Appendix)

Expert Reports

- Purpose of expert reports o Prevent disruption of the trial process when litigants are taken by surprise o Allows parries to know ahead of time what they will encounter can adjust accordingly o Save expense of calling expert witnesses when there is no real dispute

What is an Expert Report? Rule 5.34: Service of an expert’s report

o (a) Report must be in Form 25 and contain info required and modifications agreed upon o (b) Must be served in accordance with Rule 5.35 (sequence of exchange of experts reports)

- Form 25 – Expert report must contain, at minimum o Experts name and qualifications o Information and assumptions on which the expert’s opinion is based, and o A summary of the expert’s opinion

How is the Expert Report Served? Rule 5.35: Sequence of exchange of expert’s reports

- (2) Unless parties otherwise agree or court otherwise order: o (a) Party who bears the primary onus of proof must serve on the parties the expert’s report o (b) Other party must serve their expert’s rebuttal, including issues not raised in initial report o (c) The party who served the initial report can serve a surrebuttal expert’s report only addressing new

issues raised in the rebuttal report. How does a party object to an expert Report? Rule 5.36: Objection to expert’s report

- (1) A party who receives expert report must notify the serving party of: o (a) Any objections that they intend to raise at trail, AND o (b) Reasons for the objections o Note: Objection must be done prior to trial.

- (2) Cannot object to the admissibility of an expert’s report at trial UNLESS: o (a) There was reasonable notice of objection given to the other party, OR o (b) The court permits it.

Who can Question an Expert? Rule 5.37: Questioning an Expert Before Trial

- (1) Parties may agree, or Court may direct, that an expert be questioned by any party adverse in interest to the party proposing to call the expert witness at trial

- (2) Questioning limited to expert’s report (4 corners of document) - (3) Court may impose conditions:

o (a) limiting length of questioning

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o (b) Specifying place of questioning o (c) Directing payment of costs incurred o (d) any other matters

How is the evidence of an Expert Treated? - (4) Evidence of expert will be treated as if it were the evidence of an employee of the party who intends to rely on

the expert (about weight of expert’s evidence, not more important than employees who may have direct evidence) Use Expert Report or Expert Witness at Trial Rule 5.38: Continuing Obligation of an Expert

- Changes in expert opinion must: o (a) Be disclosed by the expert in writing, AND o (b) Immediately served to each of the other parties

What are the Options for the use of an Expert Report at Trial? Rule 5.39: Use of expert’s report at trial without expert

- (1) Party serving expert report may also serve notice of intention to have the report entered as evidence without calling the expert witness

- (2) No objection can be made at trial to entering there report as evidence unless, within 2 months after its service, the other party

o (a) Serves a statement of objection and reasons for objecting, OR o (b) Serves a request that the expert attend the trial for cross-examination

- (3) Agreeing to have the expert’s report entered into evidence without calling the expert as a witness is not an admission of the truth of correctness o the expert’s report

Rule 5.40: Expert’s Attendance at Trial - (1) Party who agrees to having an expert’s report admitted as evidence may, at the same time as responding to the

notice of intention, serve a request that the expert appear for cross-examination - (2) The expert whose entire report is entered at trial must not give oral evidence unless

o (a) A request that the expert attend for cross-examination has been served, OR o (b) The court permits

- (3) Party who requests the expert’s attendance for cross-examination must pay the costs of the expert’s attendance unless the court orders otherwise

- (4) If the party proposing to enter the expert’s report receives a request that the expert attend cross-examination, the party proposing to enter the report may question the expert at trial.

Who can Conduct Medical Examination? Rule 5.41 – Medical Examinations

- (1) The parties may agree that the mental or physical condition of a person is at issue in an action and agree on a health care professional to conduct a medical examination

- (2) On application, the Court may, in an action which the mental or physical condition of a person is at issue, do either or both of the following:

o (a) Order that a person submit to a mental or physical medical examination o (b) Appoint a health care professional to conduct medical examination

- (3) The Court may order a second or further medical examination by a health care professional - (4) If P has been subject of medical examination by a health care professional of the P’s choice who will or may be

proffered as an expert, the Court may order that the P be the subject of a medical examination by one or more health care professionals of the D’s choice.

o 9 things when considering whether they should limit or restrict a party’s ability examine other party by medical experts

1) Are the proposed experts competent? 2) Is the test reliable and useful? 3) What is the degree of relevance of the test to the action? 4) How much does the test intrude into the privacy of the individual? 5) Are there health risks involved? 6) Is it reasonable in terms of the amount of time/effort the individual is being asked to give? 7) What sort of demands will the tests make on the individual being examined? 8) How does the cost balance with the result being achieved?

o Rule 5.44: Conduct of examination

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- A health care professional conducting a medical examination may ask the person being examined questions relating to that person’s mental and physical condition and medical history, and the person being examined must answer the questions.

- (2) If the person to be examined agrees in writing, or if the Court so orders, the examining health care professional may

o (a) take or obtain samples from the person being examined, and make an analysis of the samples, and o (b) perform any test recognized by medical science.

Are there any other Experts who can give Evidence? Rule 6.40: Appointment of Court Expert

- (1) Court may appoint a person as a court expert to give evidence on a matter - (2) Court expert must give independent evidence to Court - (3) If possible, parties must agree on the court expert to be appointed under (1) - 94) The appointment of a court expert doesn’t affect the right of a party call a party’s own expert as a witness. - (5) If court expert is a health care professional, the court expert has all the authority and responsibility conferred on a

health care professional by these rules. Rule 6.43: Costs of Court Expert

- Costs are to be paid by the parties in equal proportion unless the Court otherwise orders. Note: If you are going to question an expert you can only question them on the 4 corners of the document. Henderson (Estate) v Arnett Facts: P excessively files 7 expert reports and intended to call them all as witnesses Held: You are required to serve expert opinions on other parties, BUT, not supposed to file them unless parties CONSENT or Court APPROVES it.

- Notice of intention is required to introduce expert report as evidence. Otherwise just being served between parties - When you are trying to determine real issues in dispute you have to refrain from doing anything that does NOT

further the purpose of litigation. Rules reflect policy of efficiency and economy. Nystrom v Ransom About Rule 5.41(d) Who can conduct a medical examination?

- Rule 5.41: anyone that’s a health care professional o Broad category (psychologist included)

P claims physical injuries from car accident, P tenders expert evidence from occupational therapist and vocational therapist D wants to have P do medical examination by occupational health therapist and vocational counselor and qualified psychologist for 9 hours. Court looked at 9 things when considering whether they should limit or restrict a party’s ability examine other party by medical experts

1) Are the proposed experts competent? 2) Is the test reliable and useful? 3) What is the degree of relevance of the test to the action? 4) How much does the test intrude into the privacy of the individual? 5) Are there health risks involved? 6) Is it reasonable in terms of the amount of time/effort the individual is being asked to give? 7) What sort of demands will the tests make on the individual being examined? 8) How does the cost balance with the result being achieved?

Court says 9 hours is not overly intrusive The onus is on P to established a real risk of injury Drapaka v Patel Conflict over whether D needs to schedule medical expert before P produce medical reports it intending to rely on at trial. Expert reports are subject to litigation privilege, but is waived when they are used in Court P has duty to move the litigation along, must disclose expert evidence prior to D booking a medical examination of the P. Helps D know what they’re up against and won’t bias the P. Adasci v Amin About rule 5.44 Court can order for samples be taken from party.

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In this case it was about damages and potential of having Huntington’s disease, required her to have a blood test.

Preservation and Inspection of Property

Referees

Ch 20: Other Evidence

- Looked at questioning and expert evidence, what other evidence can be used at trial?

Affidavit Evidence at Trial Proving Facts Rule 8.17: Proving facts (this is a general rule)

- (1) A fact to be proved at trial by evidence of a witness must be proved by questioning the witness unless: o (a) The Rules or a statute otherwise provide (Ex. Expert report under Rule 5.39) o (b) The parties agree to that fact, OR o (c) The court otherwise orders

Note: Generally 8.17 is going to bind that if trying to prove fact we have to do it orally at trial because judge/jury wants to test credibility and be available for cross-examination. Generally the case that you may use the affidavit at trial, so general the rule is oral evidence only. If mater not controversial then no cross-examination is needed. If good reason the witness can’t attend, below are the exceptions to the general rule. Toliver v Koepke Litigant’s responsibility to tender evidence it wishes entered into the record. Rule 8.17 says presumption that evidence at trial is given viva voce (oral rather than written) and if the appellant wanted to enter affidavit evidence it was incumbent upon him to provide an acceptable reason for doing so.

Preserving Evidence for Future Use Preserving Evidence and Obtaining Evidence Outside of Alberta

- What happens if you can’t get someone to testify? Rule 6.21/22 in conjunction with rule 8.14 o Two types of commissioned evidence

1) Inside Alberta Where evidence is taken outside of court as if it was in front of a Court, not information but

actual evidence Rule 6.21: Preserving evidence for “future” use inside Alberta

o (1) The court may order that a person be questioned, under oath, (a) for the purpose of preserving evidence, or (b) For any other purpose satisfactory to the court

o (2) Orders may be made under (1)(a) if the person is unable to give evidence before the court due to an accident, illness, disability, likelihood of death, may be out of the jurisdiction during trial, or the expense of bringing person in is not warranted, etc. – or any other purpose court sondiers appropriate

2) Outside Alberta Rule 6.22 – Obtaining Evidence Outside Alberta

o (1) Court may order the evidence be taken outside Alberta for the purpose of questioning, an application, an originating application, trial, or any other purpose.

o (2) The court may make such an order considering the convenience of the person to be questioned, whether there is an accident, illness, disability, likelihood of death, whether person is outside jurisdiction at time of trial, expense and inconvenience of bringing the person in, whether they should even give evidence in person, or any other reason

o (3) Court may determine date, time, place, minimum notice, allowance of questioning

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o (4) Must follow Form 31 (apply to justice and solicitor general and they set up process where person can be questioned.

Rule 6.23: Duties of the person authorized to take evidence o If you’re questioning someone outside Alberta, the law of Alberta will apply. The

examiner could be from another jurisdiction. Unwilling Witness or One that has Died Rule 8.14 – Unavailable or Unwilling Witness

- (1) With judge’s permission, read into evidence all or part of the evidence given at questioning conducted under Part 5 (disclosure of information) as the evidence of the person questioned, to the extent that it would be admissible if the person were giving evidence in Court, if the person questioned:

o (a) Is dead o (b) Is unable to give evidence before the Court because of accident, ill health or disability, o (c) Refuses to take an oath or to answer proper questions, or o (d) for any other sufficient reason cannot be required to attend at the trial

- (2) Before deciding whether to give permission, the judge must consider o (a) The general principle that evidence should be presented orally in court o (b) How thoroughly the person was questioned under Part 5 (disclosure of information), and o (c) Any other appropriate factor

- (3) The judge may grant permission under this rule only if o (a) The fact of facts sought to be proved through the questioning under Part 5 (disclosure of information) are

important aspects of the parties case, o (b) The fact or facts cannot be proved in any other manner, AND o (c) The permission is restricted to the portion or portions of the questioning that relate to the fact or

facts.

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Part IV: LITIGATION MANAGEMENT & STRATEGIES

Ch 21: Managing Litigation This is a new concept introduce in new rules – no one thought of the parties as being managers

Responsibilities of the Parties Rule 4.1: Responsibilities of Parties to Manage Litigation

- The parties are responsible for managing their dispute and for planning its resolution in timely and cost-effective way Rule 4.2: What the responsibilities include (What does managing the dispute include?)

- Parties must manage their dispute and plan its resolution. o (a) Act in a manner that furthers the purpose and intention of the rules (Rule 1.2)

Identifying issues and being timely o In a standard case, respond in a substantive way and within a reasonable time to any proposal for the

conduct of an action o (c) In a complex case, meet or adjust dates in a timely way o (d) Where it’s complex or where nature of action requires it, apply to the court for direction or request

case management Rule 4.12 o (e) Consider dispute resolution process Rule 4.16(1)

Standard or Complex Cases Rule 4.3: Categorizing the Court Action

- (1) Actions are either: Standard Cases OR Complex Cases - (2) When categorizing a case as a standard or complex case, the court of the parties must consider the following

factors: o (a) Amount of claim, number and nature of the claim, complexity of the action o (b) Number of parties o (c) Number of documents involved o (d) Number and complexity of issues and how important they are o (e) How long the questioning will take o (f) Whether expert reports are needed o (g) Whether medical examination will be required o (h) Any other matter that should be considered o (i) Whether a 3P claim has been or is likely to be made

- (3) General Rule: If the parties can’t agree within 4 months of filing (Rule 4.3(3)), the rule creates a rebuttable presumption that an action will be categorized as standard

Obligations for Standard Cases Rule 4.4: Standard Case Obligations

- (1) The parties to an action categorized as standard case must, within a reasonable time considering the nature of the action, complete each of the following steps or stages in the action:

o (a) Complete the close of proceedings o (b) Disclosure of information o (c) At least one of the dispute resolution processes described in Rule 4.16(1) has been completed, unless

the court waives the requirement. o (d) Application for a trial date.

- (2) If they can’t agree, party to an action may serve on the other party a proposed litigation plan or proposal for the completion or timing of any stage or steps in the action, and if no agreement is reached, they can apply to the court for a procedural or other order respecting the plan or proposal.

Obligation for Complex Cases Rule 4.5: Complex Case Obligations

- (1) For complex case, parties have to, within 4 months o (a) agree to a complex case litigation plan, and o (b) Unless reasons are given in the plan not to do so:

(i) set times to identify real issues

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(ii) agree to the production of records (iii) dates for disclosure (iv) dates for questioning (v) dates for expert reports to be exchanged (vi) dates for medical reports to be exchanged (vii) agree on an estimated trial date

- (2) Must file and served on all parties the complex case litigation plan. Rule 4.6: Settling Disputes about Complex Case Litigation Plans

- (1) If no agreement is reached on a complex case litigation plan within the period referred to in Rule 4.5(1), or if parties cannot agree on an adjustment to a date in the plan, the Court may:

o (a) Establish or amend a complex case litigation plan for the action, OR o (b) Make a procedural order with respect to the action generally or to deal with particular issues or

issues that may arise.

Court Assistance in Managing Litigation 3 Things the Court Can Do:

- 1) Rule 4.9: Order to Facilitate Proceedings o (a) Party can apply for a procedural order OR o (b) Court can grant a procedural order

Set dates or times for: 1) Questioning 2) Disclosure 3) Etc

- 2) Rule 4.10: Assistance by the Court o (1) Court may direct parties and any other person to attend a conference with the Court o (2) The participants in the conference may consider (with a Judge or Master)

1) Clarifying issues, pleadings, questions 2) Modifying litigation plans 3) Talking about whether you want case management 4) Deal with procedural Issues

- 3) Rule 4.12: Request for Case Management o (1) Request for case management order must be made in writing to the Chief Justice and a copy of the request

must be served on all parties o (2) Request must state

(a) Reason for request, and (b) Whether any o the other parties agrees with the request

1) goes on for a time period 2) always the same judge

o Has to hear every application for that particular action, BUT Cannot hear an application for summary judgment or the trial unless the

parties and the judge agree (Rule 4.15) - Rules 4.12-4.15: Talks about what the case management judge does

o Any time you have an issue, you go back to the same judge. o Case management judge must hear every application for that particular action o Rule 4.14: Once appointed the case must hear every application filled in the action.

- Note: Rule 4.7: Monitoring and adjusting dates. EXAMPLE LITIGATION PLAN

this example assumes that pleadings have already closed and that this is a standard (simple) case.

Steps Days Comments

Stage One: Disclosure of documents (filing

of both plaintiff's affidavit of records and

4 months Plan starts from the date of filing of the last

Statement of Defence.

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defendant's affidavit of records)

At the end of this state, the issues should be

clear; the parties determined; and the

nature of the dispute understood.

Stage Two: Discovery (oral or written,

transcripts, undertakings); Interlocutory

applications all filed; expert reports

This information is more or less complete

and the parties can perform a

comprehensive evaluation of their case

(settlement possible?).

5 months from the

end of Stage 1 (9

months total)

At this point, the parties pretty much know what

their cases are (and how strong they are). You

should be at a point where you can evaluate

whether or not you should be settling.

Stage Three: Application for trial date 1 month from the end

of Stage 2 (10

months total)

Getting to this step does not mean that settlement

options are off the table.

Dispute Resolution by Agreement Suspended by Court due to lack of resources.

Ch 22: Chamber Practice – Interlocutory Applications Interlocutory Applications: What are interlocutory Applications?

- Decided a matter or point but is NOT a final decision of the whole issue o Form of evidence is by way of affidavit (contrary to trial where the general rule is oral evidence)

- Applications that take place between the filing of the pleadings and prior to the trial of the action. - Decided some point or some matter that arises during the course of the action but they are NOT a final decision on the

merits of the whole controversy. - Some interlocutory applications mean that the matter ends (summary trial) but it doesn’t mean that the merits

have been determined.

On Motion Rule 6.3: Applications Generally When are interlocutory applications allowed?

- (1) An application may only be filed during an action or after judgment is entered (not before SoC is filed and served)

o Can bring an IA after judgment to enforce the judgment, still considered an IA - (2) Unless Court otherwise permits, an application to the Court must

o (a) be in the form of Schedule A o (b) State briefly the grounds for filing the application o (c) Identify the material or evidence intended to be relied on o (d) Refer to any provision of an enactment or rule relied on o (e) Specify any irregularity complained of or objection relied on o (f) State the remedy claimed or sought, and o (g) State how application is proposed to be heard or considered under these rules.

- (3) Minimum time limit for notice of the application is 5 days before application is scheduled to be heard o Rule 13.5 can extend time limit. While there may be no requirement in some cases to give notice, it may be

appropriate to informally advise, out of courtesy, that you are bringing an application.

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Adjourn Sine-die - to an undetermined date Note: When using 6.3 fill out Form 27

Ex Parte – without the other party (not going to be present) Rule 6.4: Applications Without Notice

- Despite any other rule to the contrary, notice of an application isn’t required to be served if an enactment provides or permits or the Court is satisfied

o (a) No notice is necessary, OR Ex. Substitutional service applications (because there is no one to serve)

o (b) Serving notice might cause undue prejudice to the applicant Ex. You are garnishing a bank account of someone because if you gave them notice then they would

probably close the account to avoid paying Code of Professional Conduct – Section 8

- In an ex parte proceeding, a lawyer, subject to confidentiality rule, must inform the court of all material facts known to the lawyer that will enable the court to make an informed decision, whether or not the facts are adverse.

o Have to tell the court everything Procedure of Interlocutory Applications: Masters and Judges

- Parties can ask the Master to listen to an application for stay, generally you would go to a judge for this. There are areas that they have no jurisdiction over and that is a trial.

- Master appointed by provincial legislation Jurisdiction of Masters: Court of Queen’s Bench Act – Section 9

- Sets out that Masters will have the same powers and exercise the same jurisdiction as QB judge sitting in Chambers (note diff between judges in trial and in Chambers), except;

o Appeals, applications in the nature of appeals, applications concerning the bearing of appeals and applications to vary or rescind an order made by a judge (go to judge who made order in first place)

o Master does not have any jurisdiction in trials, criminal matters, don’t hear bail actions, civil contempt applications, injunctions, judicial review, surrogate court matters (ex. states of deceased person), anything under the divorce act, judgments or assessment of damages in un-liquidated debt claims

o Masters can (and usually do) hear landlord tenant applications, amendments to SoC/SoD, applications for security for costs

Can’t do anything a statute/rules otherwise would require a judge to do. If a statute refers to judge, not the Court, then it has to be done by a Justice in Chamber or a

Judge, cannot be done by a Master. If statute refers to small c court then it can likely be done by a Master.

Not always true but true for Rules. Statute can say court and define it further. Rule 6.14: Appeal from Master’s Judgment or Order (form 28)

- (1) If a master makes a judgment or order, the applicant or respondent to the application may appeal the judgment or order to a judge – appeal de novo

- (2) A notice of appeal must be filed and served within 10 days after the judgment or order is entered - (3) Appeal from a Master’s judgment or order

o Appeal from masters will be an appeal on the record (* - still use de novo despite the wording) Appeal De Novo Can bring new evidence Appeal On The Record Can’t bring new evidence: look for mistake of law or fact ONLY

o However, judge may permit new evidence to be hear if it is relevant and material - (4) The record of proceedings includes: original application to the Master, any affidavits filed before the master,

any transcripts of the proceedings, and the master’s order with any written reasons. - (5) The appellant must file and serve on the respondent to the appeal, within one month after service of the notice of

appeal: o (a) Any transcripts of the proceedings described in 6.14(4)(c) o (b) Any additional evidence refereed to in 6.14(3), and o (c) Any further written arguments

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Appearance in Masters’ Chambers

Jurisdiction South Side Woodwork (1979) Ltd v RC Contracting Ltd (1989)

- Master is bound by decisions of QB judges, decisions of the AB CA, and decisions by SCC - Masters in Chambers of a superior trial court occupy the bottom wrung of the superior courts judicial ladder (cannot

overrule decisions of a judge of that court) Janvier v 834474 What is the standard of review that a QB judge is going to apply to the Master’s Order?

- For questions of law, the standard of correctness - For questions of fact, judge’s ask whether master was reasonable

o Ultimately, the judge asks whether the Master made a palpable and overriding error. - Master does not have jurisdiction to determine disputed or contentious questions of fact. - If there remains a dispute on material facts at the time of the application, there must be a trial - One exception: where one party’s evidence on material facts is destroyed/rendered completely non credible by

evidence of the other side. Schaffer v Lalonde

- D is bringing summary judgment application to dismiss o Talks about how master doesn’t have jurisdiction to determine contentious or disputes matters of fact.

Master Schlosser talks about if evidence is destroyed by cross-examination on affidavit then master can accept certain facts, no dispute left really. Court agrees that action against D is dismissed – double costs awarded against.

Masters are gatekeepers Master Schlosser held that the powers of a Master bearing a summary judgment application should be broadly interpreted and exercised at the Masters level which was also recently affirmed as a “culture shift” by the SCC SCC also said Masters act as gatekeepers, performing triage function to separate meritorious form unmeritorious lawsuit and that the rules are worded broadly enough to allow a Master to weigh evidence, evaluate credibility, and draw inferences to see if a disposition that is fair and reasonable to both parties can be made on the existing evidentiary record.

Appeals Bahcheli v Yorkton Securities Inc – Standard of review not on exam Generally call standard of review for a master “deferential” and/or for appeal do novo they say that it is of correctness, which is the lowest standard of review. A master is deferential because all they look at is whether the Master gave the right decision on facts, where evidence is the same, correctness is matter of fact and law, when they are given evidence the Master did not have, final and deferential standard does not apply to questions of law alone.

Affidavits Affidavits: A written deceleration or statement of facts made voluntarily and affirmed by oath before a person authorized to accept an oath (ex. public notary)

- Not like an expert opinion – these are FACTS Types of Affidavits: Personal Knowledge OR Information and Belief Rule 13.18: Types of Affidavit

- (1) An affidavit may be sworn o (a) On the basis of personal knowledge, OR o (b) On the basis of information known to the person swearing the affidavit and that person’s belief.

Ex. Information that one person believes to be true - (2) If sworn on the basis of information and belief the source of information must be disclosed in the affidavit.

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- (3) If affidavit is in support of an application that may dispose of all or part of a claim, must be based on personal knowledge.

Note: If affidavit evidence would end matter, the it has to be based on personal knowledge (not hearsay/information and belief). Note: Can’t get summary judgment on information and belief. If you bring an application that relates to delay rules can end a matter as well so you need personal information.

- Information and Belief generally only used for interlocutory applications (because it’s an intermediate step) E.g. If you are getting an order to amended then you can have that based on information of belief which under the strict rule will be hearsay but it is allowed in the interlocutory applications. Byer’s Transport v Terra Mining Lawyer can make affidavit on the basis for information and belief so long as they set out the source of this information. Barker v Budget Rent -A-Car of Edmonton Ltd D wants to strike paragraph in P’s affidavit that D claims is hearsay Held: Court says allowed to use affidavit based on information and belief as long as you disclose the source of the information.

- Here only application to amend a SoC and not disposing of the matter entirely, so affidavit based on information and belief is fine per Rule 13.18(3)

Affidavits are Sworn Documents Notaries Public Act

- Section 6(1)(a): A notary public may administer oaths and take affidavits, affirmations and declarations attested by the notary public’s signature and seal.

- A lawyer or a student-at-law is automatically a notary public in AB. No appointment. - Commissioners can be appointed - Can swear information for use in AB

Molzan Method: - Do it the same way every time because if you get into a habit of doing it the same way then if you are asked to testify

under oath you are not going to remember every person but what you can say if you were questioned is that you know this is what you did every time.

How to Administer an Oath to a Person making an Affidavit

- (1) Ask person appearing whether person named in affidavit is person making the affidavit - (2) Ask person to sign affidavit, if signed ask if its their signature - (3) Hand person Bible or religious test or ask person to raise right hand - (4) “you swear that the contents of this your affidavit are true, so help you God” - (5) Person responding should say “I do” while holding bible or hand - (6) You must then complete the Jurat.

WHEN AND HOW TO ADMINISTER AN AFFIRMATION TO A PERSON MAKING AN AFFIDAVIT When a person appears before you to make an affidavit but objects to giving an oath (being sworn) From conscientious scruples, or On the ground of his religious belief, or On the ground that the taking of an oath would have no binding effect on his conscience, the person may give an

affirmation, instead of an oath, and the affirmation has the same force and effect as if the person had taken an oath. The affirmation should be administered in the following manner: Before administering the affirmation, you must amend the words “make oath and say” in the introduction to the affidavit to read “solemnly affirm and declare”.

Questioning on Affidavit Rules Regarding Questioning Person who has Sworn an Affidavit Rule 6.7: Questioning on affidavit in support, response and reply to application

- A person who makes an affidavit in support of an application may be questioned on the affidavit by a person adverse in interest.

o (a) Rules 6.16-6.20 apply for the purposes` of this rule, AND

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o (b) Transcript of the questioning must be filed by the questioning party Note: Entire transcript of questioning on affidavit must be filed by the questioning party (unlike questioning) because it automatically becomes evidence, must be more careful about what questions you will ask. Can’t be as broad as during questioning. Questioning a Non-Party (Ex: someone who filed the affidavit of service) Rule 6.8: Questioning a witness BEFORE hearing

- Allows one to question any person (even if the non-party has not filed an affidavit) for the purposes of obtaining a transcript to sue at an application. The entire transcript must be filed.

- These parties can’t be required to undertake to provide additional information. They are only questioned about the truth of their statement or their credibility

Note: may use 6.8 in matrimonial case - Molzan Example: Spouse trying to get child support reduced, questioned his affidavit that said he was paying for

everything and his new girl was loaded but he claimed in affidavit that she paid nothing. o Molzan brought person in for questioning of what she’s paying. o Risky because person can mess it all up and it’s on the case.

NOTE: Allows someone to be questioned even though they have not filed an affidavit, but this rule should be used with caution, because you have no idea what their answers will be, and whatever they say is stuck to your case.

Part 5 Questioning Interlocutory Applications

Information is obtained through questioning Evidence is provided in sworn affidavits which must be filed

May be oral or in writing Affidavit evidence only; no oral evidence

Only test for gathering it is whether it is “relevant and material” Only test for gathering it is whether it is “relevant and material”

Answers are not required to be filed or put before the court Answers on questioning on affidavit must be filed by the

questioning party

Answers may be used in an application or at trial

(put before the court) and then it becomes evidence of the

questioning party

Answers become the evidence of the party who puts them

before the court

Saveva v Flight Centre P was had carbon dioxide poisoning from Resort, wants to question affidavits but Resort wants conduct money Generally P has onus and must pay conduct money, D also willing to do video conference. In these circumstances, the Resort Defendants will have the onus of showing that Alberta is not the appropriate

forum. They will have to rebut the presumptions arising from Rule 11.25(3)(i) It is up to the master to decide conduct money or allowance, and its very fact dependent and they will decide what is

fair in the circumstances. o The court will look at the financial abilities of the parties, whether there are domestic representatives that could

serve the same purpose. They said conduct money is to ensure people show up for questioning, in the end they will award costs based on the action.

Rozak Estate v Demas Deals with whether undertakings can be required on questioning of an affidavit Held: Court should be more reluctant to direct that undertakings be required by party proffering a deponent who is unable to answer all the questions put to deponent during questioning on an affidavit, it should be more difficult to have undertakings directs on questioning affidavits than at examinations for discovery. Undertakings should ONLY be directed on questioning of affidavits where:

- (1) Deponent has referred to information or documents in the affidavit, or could only have made the assertions contained in the affidavit after having reviewed the information or documents beings sought, OR

- (2 ) Undertaking relate to an important issue in the application, and the provision of such information o (i) Would not be overly onerous, and o (ii) Would likely significantly help the court in the determination of the application.

Smith v Coperstone Capital Inc Appeals refusal of chambers judge to grant adjournment so it could examine respondent on his affidavit

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- adverse party has very broad right to cross-examine an applicant for summary judgment on his affidavit, can’t say other party will be inconvenienced, must allow it to question.

Medicine Shoppe Canada Inc v Devchand

While the scope of questioning is NOT restricted to the four corners of an affidavit, there are limits however concerning the relevance and materiality, ultimately its up to the court to control the process of a proceeding

Kahara Budas Company, LLC v PLN (Persero)

- While court holds discretion in allowing questioning on an affidavit, it should use it sparsely. Here non-party submitted affidavit and said he didn’t have a lot of knowledge, however should still be subject to cross-examination.

Ch 23: Civil Contempt of Court What is contempt?

- Any action which is intended to hinder justice OR show disrespect to the Court. o Contempt in the fact of the court

Occurs in front of the court, where judge witnesses the action (ex: disrupting trial, refusing to answer a question, threatening a witness)

o Contempt not in the fact of the Court: Happens outside of the Court

(can attack the integrity or impartiality of the judge, improper publication, breaching a Court Order either willfully or negligently, interfering with a witness, juror, or other counsel, encouraging the fabrication of evidence, counseling perjury, etic.)

o Derives from CL, since inherent jurisdiction of S.96 Courts can enforce. Charter applies

- Two Types of Contempt o 1) Civil Contempt: considered a private injury – damages are usually the remedy (can be more severe

punishment) Can become criminal if disobeying the order involves public defiance of the court order Civil contempt is quasi-criminal since there is a possibility of imprisonment.

o 2) Criminal Contempt: someone does something to obstruct the administration of justice (outlined in Crim Code)

Rule 10.52: declaration of Civil Contempt - (3) A judge may declare a person to be in civil contempt of Court if:

o (a) Person, without reasonable excuse, (i) Does not comply with an order, other than an order to pay money (ii) Is before the Court and engages in conduct that warrants a declaration of civil contempt of Court (iii) Does not comply with an order to appear before the Court to show cause why the person

should not be declared to be in civil contempt of Court (iv) Does not comply with an order to attend for questioning or to answer questions the person is

ordered by the Court to answer (v) Is a witness in an application or at trial and refuses to be sworn or refuses to answer a proper

question, or (vi) Does not perform an undertaking given to the Court.

Who Can be Found in Contempt?

- Can be found in contempt EVEN IF the person is not a party to the action o Any person can be found in contempt

- Lawyers, witnesses, or other persons can be found in civil contempt o Rule 10.49 – Penalty for contravening rules

(1) Lawyer, party or other person may pay to the clerk a penalty if they (a) fail to comply with rules or direction, and (b) it has interfered with the administration of justice

o Rule 10.50 – Costs imposed on a lawyer If a lawyer for a party engages in serious misconduct, the court may order the lawyer to pay a costs

award to a person named in the order. How is Civil Contempt Dealt With?

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Rule 10.51: Order to appear - The Court, using Form 47, may require a person to appear before it to show cause why that person should not be

declared in civil contempt – appear in front of Court for natural justice You only have to show that their actions were designed to obstruct justice/disobey a court order The court orders police to bring the person to Court. Don’t need specifics. Defective Orders

- Generally person must follow a Court order regardless of whether it is defective - A person brought before the Court for contempt cannot argue that the order is defective – Court is only concerned

with whether person breached the order - Only option as a lawyer is to have the invalid order set aside before your client is brought into court for contempt.

Penalties for Contempt Rule 10.53: Punishment for Civil Contempt of Court

- (1) Every person declared to be in civil contempt is liable for any one or more of the following o (a) Imprisonment until person purges their contempt o (b) Imprisonment for not more than 2 years o (c) A fine, or if in default, imprisonment for not more than 6 months o (d) If the person is a party to an action, application, or proceeding, an order that:

All or part of the commencement document, affidavit or pleading be struck out Action or application stayed Claim, action, defence, application or proceeding be dismissed, or judgment entered or an order

made A record or evidence be prohibited from being used

- (2) The court may also make a costs award against the person in civil contempt - (3) The Court may waive or suspend the penalty or sanction if contempt is purged - (4) Court can increase, vary or remit the penalty or sanction.

Molzan Note: Typical case is when someone refuses to produce a document or refrains from doing something they are ordered to do. All the other party has to show is there was disobedience. Who can hear contempt applications?

- Only judges. Master and admin bodies are statute creations and can’t hear it – because it’s part of inherent jurisdiction and Masters are created by statute

o Master may kick you out but will send you to judge to find you in contempt Cary v Laiken Lawyer breaches injunction Peter sends 500k to lawyer for settlement, doesn’t happen, Mareva injunction in place. Knew of injunction.

- Client tells lawyer to pay other debts with money – refuses because of injunction - Lawyer takes fees (allowed) and sends the rest (440k) to client - P got judgment and claimed there’s injunction so money shouldn’t have moved.

P brings action for contempt of court - Must prove 3 things BARD

o 1) Show order states clearly what should and should not be done o 2) Party has knowledge of order o 3) Party in breach must have intentionally done what is prohibited or failed to do which is compelled (don’t

need intention, just actus reus) - Generally contempt rulings are final

Ch 24: Alternative Routes Different Options:

1) Striking Out Pleadings 2) Default Judgment – see Default Judgment pg. 45 of CAN 3) Summary Judgment 4) Summary Trial

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5) Determination of Points of Law or Fact 6) Discontinuance 7) Delay 8) Security for Costs

Striking Out Pleadings Note: One of the penalties for contempt under Rule 10.53 is striking out pleadings. Rules allow it to be done by Masters When will the Court Give an Order Under Rule 3.68? Rule 3.68: Ask Court to Strike All or Part of the claim due to “significant deficiency”

- (1) If the circs warrant and condition under (2) applies a court may: o (a) Strike out all or part of the claim or defence o (b) Amend or set aside a commencement document or pleading o (c) Enter a judgment or an order o (d) Stay the proceedings, action or application

- (2) A court may act under (1) if one or more conditions are present: o (a) Court has no jurisdiction o (b) Discloses no reasonable claim or defence o (c) is frivolous, irrelevant or improper claim o (d) Constitutes an abuse of process (ex: res judicata, improper collateral purpose, two or more actions) o (e) Contains an irregularity that is so prejudicial that it is sufficient to defeat the claim

- (3) Once an application has been made under this section, no (OTHER) evidence may be submitted if (2)(b) commencement document or pleading makes out no reasonable claim or defence to claim.

- (4) Court can o (a) Strike out all or part of an affidavit that contains frivolous, irrelevant, or improper information.

What Grounds are used for Striking Out?

- (1) Non-existent party (ex: unincorporated entity, dissolved company, deceased person) - (2) Unauthorized action or defence (Ex: where company doesn’t authorize the action by directors’’ resolution) - (3) Statutory prohibition or lack of jurisdiction (WCB or Labour Relations Board) - (4) Contempt of Court (Rule 10.53) - (5) No cause of action or ground of defence (cause must be clear and free from doubt although it may be novel)

What May a Court Order? Rule 3.68(1): Court can:

- (a) Strike out all or part of a claim or defence - (b) Amend or set aside a commencement document or pleading

o Including affidavits - (c) Enter a judgment or an order - (d) Stay the proceeding, action or application

Rule 3.68 (4) Court may also

o Strike out all or part of an affidavit o Strike all or any pleading if a party does not

Serve an affidavit of records according to the rules Disclose a record found after the affidavit or records is served Produce a record ordered to be produced

R v Imperial Tobacco Canada Ltd Deal with Rule 3.68

- Gov’t bring action to recover money from cigarette company for healthcare costs, because smoking kills you and their packaging was deceptive

Held: SCC strikes claim and any appeal, they say if you’re going to use 3.68 it must be plain and obvious that there is no reasonable cause of action.

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Can’t bring in any NEW evidence under 3.68(3), (TEST:) has to be plain and obvious assuming facts are true, there is no reasonable cause of action. No valid claim here. Court has a number of options, striking out, amending pleadings, so P can use this section to challenged the SoD. Joly v Pelletier Deals with rule 3.68(1)(a), 3.68(2)(b,c), 3.68(4), and 3.69(2)(d) Joly believed he was Martian and said doctors, medical facilities and gov’t agencies were conspiring to eliminate him and eliminate his right to live freely as a Martian. D applied to strike out Pleadings. Held: Court found that pleadings:

- Did not disclose a reasonable cause of action - Were frivolous and vexatious and constituted an abuse of process of the Court - No damages were claimed and many D’s were not legal entities capable of being sued - Joly was not legal entity capable of bringing an action because he was a Martian

Ratio: On motion to strike pleadings, court must accept the facts alleged in the SoC are true. Chutskoff v Bonora Vexatious Litigation: Rule 3.68(2)(c/d) Can include conduct both inside and outside courtroom. Signs of vexatious litigation – any can be basis for classifying as vexatious

- collateral attack o Bringing proceedings to determine an issue that has already been determined by a court of competent

jurisdiction o Using previously raised grounds and issues improperly in subsequent proceedings o Conducting a proceeding to circumvent the effect of a court order

- Hopeless proceedings - Escalating proceedings - Bringing proceedings for improper purpose

o Without legal basis o With ulterior motive o Extract a settlement o Revenge, harassment, or oppress o Retaliation

- Initiating “busybody” lawsuits to enforce alleged rights of third parties. - Failure to honour court-ordered obligations - Persistently taking unsuccessful appeals from judicial decisions - Engaging in inappropriate courtroom behaviour - Unsubstantiated allegations of conspiracy, fraud, and misconduct - Scandalous or inflammatory language

SLAPP – Strategic Litigation Against Public Participation A lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition These began around 2000, some provinces considered litigation.

- Quebec is only province that has anti-SLAPP legislation - Alberta has dealt with these actions under Rule 3.68

o Can’t use 3.68(2)(b) because 3.68(3) states you can’t provide extra evidence under this. o However, can use 2.68(2)(c) – constitutes improper or irrelevant cause of action or 2(d) abuse of process

for collateral purpose.

Summary Judgment When can Summary Judgment be Used? Rule 7.2: Application for Judgment

- Court may at any time give judgment or an order when:

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o (a) Facts are admitted (in pleadings, notice to admit, agreed statement of facts, transcripts in questioning, etc,) OR

o (b) The only evidence consists of records (not oral evidence) and an affidavit that is sufficient to prove the authenticity of the records (note: must be based on personal knowledge under Rule 13.18(3))

Note: If any issue as to credibility then you can’t apply for summary judgment because oral evidence will be required. Can’t use hearsay – must be based on personal knowledge because it can potentially end the matter. Used when the facts in the pleadings are sufficient

- Records and affidavits are used – affidavits (based on personal knowledge) are used to prove records - Need personal knowledge, can’t use information and belief

What grounds apply for Summary Judgment?

- Test: “Any issue of merit that generally requires a trial” - Rule 7.3: application and decision

o (1) Party may apply to the court for summary judgment regarding all or part of a claim on one or more of the following grounds

(a) There is no defence to a claim or part of it (b) No merit to a claim (c) The only issue to be tried is the amount to be awarded.

o (3) The court can do one or more of the following: (a) Dismiss one or more of the claims (b) IF the only real issue is the quantum, determine the amount. (c) If judgment is given for part of a claim, refer the balance of the claim to trial for determination by

a referee. Hryniak v Mauldin All the various parties involved in an investment scheme. Mullen group brings action against them Held: SCC says that access to justice is a crisis facing whole justice system.

- Need to get away from “got to trial mindset” - Summary judgments are a tool that should be used by lower courts and when a case is document driven, contains

few witnesses, limited in contentious fact, etc should use summary judgment. - Will not focus on whether later evidence can be adduced, will look at what is available now. - The myth of a trial should no longer govern civil law

Summary judgment motions must be granted whenever there is no genuine issue requiring a trial. - There will be no genuine issue when judge is able to reach a fair and just determaiton on the merits on a motion for

summary judgment o This will be the case when the process:

Allows for a judge to make the necessary findings of fact Allows the judge to apply the law to the facts Is a proportionate, more expeditious and less expense means to achieve a just result.

Windsor v Canadian Pacific Railway Ltd Test is whether there is “a reasonable prospect that the claim will succeed” not whether it is “plain and obvious”. If it’s primarily about an issue of law then summary judgment should suffice, trials are mostly about facts. Adopts Hryniak into Alberta. 1214777 Alberta Ltd v 480995 Alberta Ltd Roadmap for 6 steps that you need to go through in order to have summary judgment. Standard of proof is “beyond a doubt” not BoP

- 1) Presume best evidence is before the court on both sides - 2) Court should ask whether negative inference can be adduced from the absence of any evidence - 3) Whether all evidence is admissible – if it’s a final determination it has to be information ONLY, not hearsay, only

personal evidence - 4) Is there any conflict in the evidence – can it be resolved OR is it self-serving - 5) Judge or master is to examine all evidence whether it is admissible and reliable - 6) If the D has no defence the P should be able to get a summary judgment

o Very difficult to bring appeal SCC in Hryniak: “summary judgment rules should be interpreted widely, that the approach should favour proportionality, along with affordable, timely and just adjudication” (317)

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Hryniak approach has been endorsed by AB CA in Windsor, where Court observed that the approach chosen in Hryniak was consistent with the AB Rules. This approach has been endorsed by AB CA for 3.68 applications. 776826 Alberta Ltd v Ostrowercha Girl gets run over on race track, sues for negligence, D tries to go for summary judgment saying no merits

- Court says while trend towards allowing summary judgments to be made, can’t here because there’s disputed facts and test wasn’t met.

Stout v Track

- Moving (seeking summary judgment) party’s probability of success must be very high. - Non-moving party’s chances of success must be close to zero - If they are generally equal then summary judgment is not appropriate.

Summary Trial

- If you don’t get summary judgment, you proceed to trial - Summary trial, however, results in a final decision, it is heard on the merits and once granted the only option is

to appeal Summary judgment VS Summary Trial Summary Judgment Summary No determination on the merits: not strictly interlocutory; if successful, becomes final order; if unsuccessful, action proceeds to trial

A final decision on the merits of the action, once granted can only appeal

Affidavits on personal information only Affidvatis, cross-exam on affidavits, discovery transcripts, answers to written questions or admissions may be sued. NO ORAL EVDIENCE, unless Court permits

Affidavit evidence, no oral evidence Rule of evidence apply Rules of evidence not pertinent Question is whether the Court can adjudicate or

determine the issue Test for summary judgment is “no genuine issue to be tried”

When Can a Person Apply for a Summary Trial? – It’s 1 step (Manson Insulation Products) Rule 7.5: Application for judgment by way of summary trial

- (1) Party may apply for summary trial on an issues, a question, or generally - (2) Application must:

o (a) Be in Form 26 o (b) Specify the issue, question or claim to be determined o (c) Include reasons why the matter should be determined via summary trial

(Factors court will rely on in determining whether something is appropriate – Manson Insulation Products)

o (d) Be accompanied with an affidavit or evidence o (e) Specify a date

- (3) Applicant may not file anything else for the summary trial application except o (a) To adduce evidence that would be admitted as rebuttal evidence, OR o (b) With Courts permission.

Response to application Rule 7.6: The respondent to an application for judgment by way of a summary trial must, 10 days or more before the date scheduled for the hearing of the application, file and serve on the applicant any affidavit or other evidence on which the respondent intends to rely at the hearing of the application.

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Application of other rules Rule 7.7(1): Part 5 [Disclosure of Information] Division 2 [Experts and Expert Reports] applies to an application under this Division unless the parties otherwise agree or the judge otherwise orders. (2) Part 6 [Resolving Issues and Preserving Rights] applies to an application under this Division except to the extent that it is modified by this Division. Rule 7.8: Objection to application for judgment by way of summary trial (Westjet v ELS)

- (1) The respondent may object to the application before or at the hearing for the application of a summary trial on the following grounds:

o (a) The issue, question, or claim is not suitable for summary trial o (b) A summary trial would not facilitate resolution of the claim or any part of it.

Westjet v ELS Marketing Inc (ABCA ) Case could clearly be determined on the record Deals with summary trial Deals with a breach of contract where ELS was not remitting money to Westjet as they should have, the counterclaim for

breach did not have any merit or evidence Held: The court who is objecting to party who objects to the summary trial process under Rule 7.8, objects to the

summary process, the parties must look at o (1) the suitability of the process they are actively engaged in for answering the questions before the Court; o (2) whether the process they are actively engaged in is, in fact, operating to facilitate resolution of the claim being

advanced; o (3) whether the evidence being presented is sufficient to decide issues of fact and law; and o (4) whether justice is being served.

Although a matter is complex that does not mean it’s a matter is barred from summary trial, judge can decide on some of the issues, not all of them, and summary trial can be brought even if there is significant money involved Manson Insulation Products Ltd v Crossroads C&I Distributors Used to be 2 steps, if proper for summary trial then merits

- Now it’s 1 step, at Summary Trial you decide if appropriate for summary trial Factors court will rely on in determining whether something is appropriate:

- Amount involved - Complexity - Urgency - Prejudice from delay - Cost of taking to conventional trial - Course of proceedings - Whether witnesses will need to be cross examined (if credibility issue then full trial) - Whether possibility can bolster through discovery - Whether resolution will depend on credibility findings

Trial of Particular Questions or Issues Rule 7.1: Application to Resolve Particular Questions or Issues

- (1) On application, a court may order o (a) A question or an issue to be heard or tried before, at or after a trial for the purpose of

(i) Disposing of all or part of the claim (ii) Substantially shortening a trial, OR (iii) Saving expense

o (b) On application the Court may in the order, or in a subsequent order (i) Define the question or issue, or (ii) In the case of a question of law, approve or modify the issue agreed by the parties A chambers application is scheduled to hear the question or issue

- (2) If the question is a question of law, the parties may agree on the question of law, or the remedy, or on the facts - (3) If the court is satisfied that their determination of a question or issue disposes of a claim or makes

examining the issue unnecessary, the court can do the following

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o (a) Strike out the claim or order an amendment of the pleadings, o (b) Give judgment for all or part of a claim o (c) Decide a question of law that will affect the outcome of the case o (d) Make a finding of fact that will affect the outcome of the case

Five considerations when deciding whether a determination on a point of law or fact is appropriate

1) What will the effect on the action be (will it end)? 2) Will determination save time or money? 3) If a question of law or fact is determined, will this result in injustice? 4) Are the issues complex or difficult? 5) Would the determination result in a delay to getting to trial?

Bailey v Guaranty Trust Co of Canada Once parties have asked for and obtained by the Court a determination of a point of law under Rule 7.1 it is not open for another judge to reach a different conclusion on the same point in the final judgment at trial. In Alberta on the personal covenant the bank has option to go after dirt (land) or money (full amount)

- When it’s a corporation it can go after both, can go after shortfall Whether Bailey’s somehow assumed liability for a mortgage debt – whether took it out personally (not liable for shortfall) or on behalf of corporation (liable for shortfall)

- Judge decided that they were not personally liable and affirmed at CA Bank tries to bring new info and have it re-litigated

- Once you’ve determined something then you can’t go on to do anything else - Even if it doesn’t determine all the issues in the litigation, you can’t revisit that issue – res judicata applied Gallant (Lit igation Gaurdian of) v Farries 20yo dependent adult, wisdom teeth out and claims brain injury sustained

- Had brain damage from birth, question is whether surgery worsened it. - Want to split hearings, liability first and quantum later

o Particular question is liability, quantum is too closely related to only hear liability. Edmonton Flying Club v Edmonton Regional Airport Authority

Held: Severance is for exceptional circumstances only, its all about saving money. Also talks about how injunctions under the Judicature Act are equitable relief and are also for exceptional circumstances. Your ordinary relief is damages.

Wanted 1 issue dealt with first - Court said you can’t deal with one issue, must deal with them at the same time - Generally if you have some kind of issue you can sever off (like if you have a group of people you can take part and

figure out liability)

Delay Two types of Delay Rules:

- 1) Rules 4.31 and 4.32 – Delay in General o If delay occurs in an action, the court may, upon application

(a) Dismiss all or part of the claim if the delay caused significant prejudice to a party Need to prove inordinate delay (unnecessary) and inexcusable delay

(b) Make a procedural order or any other order provided for by the Ruels Ex: Limit the # of persons P can question, compel someone to answer question

3 Part test (Raven): Inordinate delay Inexcusable delay If first 2 then presumption of serious prejudice to a party

Empson v Wenzel Downhole Tools Ltd Deals with 4.31 and 8.15 Witness dies, 4.31 will probably be used

- Witness was already questioned (Rule 8.14) so transcript was allowed to be used - Case reverse CL that said if witness dies then that ends the action.

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- Also says prejudice is rebuttable.

- 2) Rule 4.33 – Dismissal for Long Delay (drop dead rule) o (1) If 3+ years have passed after the last thing done that significantly advances the action, the court may,

upon application, dismiss the action against the applicant, unless one of the following occurred (a) Parties expressly agreed to the delay (b) The action was stayed or adjourned by order (c) The applicant failed to respond to a “litigation plan” outlining that the next thing done would

occur 2 years or more after the last thing done” (asking for agreement under Rule 4.32). (d) The applicant has participated in action or proceedings since the delay (acquiesced)

o THING: Did it move the action along in a meaningful way? Any procedural step, procedural step contemplated by rules but not required, things done by the complainant party seeking to have the claim dismissed, might include undertakings if they are relevant to advancing an action and not perfunctory

o NOT THING: delivery of document (may or may not), actions that satisfy prior commitments (Morash), settlement discussions (but might if it narrow issues, agreement to certain facts – requires functional

analysis of importance of info, extent of info, quality of info, whether opposing party knew info (Rothmans)

Unlike 4.31/4.32 dismissal is not dependent on prejudice to a party, only the passage of time. Other NOT THINGS (Calihoo v Canada (AG))

Change to lit rep Starting a step that you don’t complete Unilateral request for case management Housekeeping such as filing affidavit of records Gathering info when other party doesn’t know Any even that occurs after 3 years is not a thing A reply to SoD that just denies it isn’t a thing Notice of constitutional question is not a thing

o Rule 13.5 DOES NOT APPLY TO THIS RULE Can’t agree that Rule 4.33 won’t operate for 4 years.

Rule 4.32 – Agreement about delay

- The parties can agree to delay an application or proceeding so long as a notice of the agreement is served on each other outlining the nature and extent fo the delay

- Parties may do this to freeze an action (thus preventing Rule 4.33 from operating) when they are looking to settle). How to avoid the “drop dead” rule:

- 1) Express Agreement: Before 3 years is over can enter into agreement in regards to delay o Can build contingencies into litigation plan

Can agree that things are a thing - 2) Order: Can get order for a stay - 3) Litigation plan

o Plan providing for delay o Draft delay into litigation plan o Refer to what is a significant thing and what happens in the event of non-compliance

- 4) Written proposal o Proposal setting out delay to D o Prove service and prove whether they responded

- 5) Acquiescence o Did D participate in proceedings after 3-year delay and before the app to strike?

Will prevent them relying on 4.33 Dejanovic v Axa Pacific Two motor vehicle claims, was suing own insurance on 2 actions and 2 against drivers of vehicles. Did nothing to move things along in insurer claim.

- Court says progress in related action can also advance this claim

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o Central issue was identical in all four actions, makes sense that if one is moving along it’s sufficient to defy delay.

Calihoo v Canada (AG) Band member bring claim, 2008-2014 nothing happens Canada brought action for long delay under Rule 4.33 Things that do not advance action:

- Change to lit rep - Starting a step that you don’t complete - Unilateral request for case management - Housekeeping such as filing affidavit of records - Gathering info when other party doesn’t know - Any even that occurs after 3 years is not a thing - A reply to SoD that just denies it isn’t a thing - Notice of constitutional question is not a thing

Court recognizes 4.33 is not fair but it’s the law Responsibility of P to move action along, not D. Charik Custom Homes Ltd v Sara Developments Inc Question of whether request for time to defend, agree to by P’s, can defat an application to dismiss for long delay

- Requested that no default proceedings take place without reasonable prior notice. Agreed upon by P - P claims this is a standstill agreement and 4.33(1)(a) applies - Wasn’t an undertaking and 4.33(1)(a) doesn’t apply, simply asking P to give notice of bringing default application

is not an agreement. Alberta Code of Professional Conduct Section 2: A lawyer must use reasonable efforts to expedite the litigation process.

- Ethical obligation; must expedite litigation unless delay is warranted (e.g. agreed upon by parties). - Note that a defendant, unlike a lawyer, does not need to advance the claim but does have an obligation to take

whatever steps are required of the defendant; cannot frustrate or delay the claim. Limitations Act Section 5.1(2) – stays the action if the person is a minor until they turn 18, however the action can be brought earlier.

- You can as the defendant serve the guardian to get the limitations period started

Security for Costs Can avoid trial if party files application under this rule

- General rule in costs jurisdiction is that “costs follow the event”. o AKA – loser in legal proceedings must pay the legal costs of the successful party.

- Where D has a reasonable apprehension that its legal cots will not be paid for by the P if the D is successful, the D can apply to the court for an order that the P provides security for the costs.

Rule 4.22: Considerations for Security for Costs Order When will Rule 4.22 Apply

an application by a D if it appears that if the P is unsuccessful they will not be able to pay the costs of the successful defendant

What factors must the Court consider? (4.22) - The court may order a party to provide security for payment of a cost award if it would be reasonable to do so. Must

consider: o (a) If applicant will not be able to enforce an order or judgment against assets in AB (Does P have assets

in AB?) o (b) The financial ability of the respondent to pay a costs award to the applicant o (c) The merits of the action – nuisance claim or a genuine issue? o (d) Whether security for costs would prejudice the ability of a party to bring the action

Will security for costs order be the end of the action? o (e) Anything else the Court deems appropriate

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Rule 4.23(1): Contents of Security for Costs Order when you apply for it - (a) What type of security it will be

o Usually $$$$ paid into court, or a bond - (b) Time period for when they have to provide the security

o Ex: That security will be provided within 2 months from the order - (c) Ask the Court to stay the proceedings until security provided

o Some or all proceedings are stayed until security is paid o This is interlocutory, so if security is never paid, action is stayed and can be struck

- (d) Consequences of failing to provide security o Ex: all or parto f the action dismissed OR a claim or defence is struck out

Business Corporation Act

- Section 254: Security for Costs o Court may order the body corporate to furnish security for costs on any terms it thinks fit if the D thinks the

P’s body corporate will be unable to pay the costs. Ends an action but does not deal with merits, just strikes it

- like summary judgment and others discussed - Can still bring claim again, no res judicata.

Amex Electrical Ltd v 726934 Alberta Ltd There are many applications for questioning however P refuses to make any defence, she has her applications struck and she appeal, the D in this case sought security of costs order and she was required to pay 1500$. Held: You should be brining applications for Rule 4.22 as soon as possible, not later. The test is “a security cost order is just and reasonable”.

- Court said you can’t bring this for something that you have already done. - Can also use it in Appeals as well.

Koerner v Capital Health Authority Security to be paid was 1500, had to be paid by June 29, everything is stayed until money is posted. If amount not paid into court then appeal is going to be struck. P had long history of bringing applications and losing his appeals. D wanted to get security of costs for appeal. Can get security of costs for appeals.

Discontinuance of Action Rule 4.36: Discontinuance of Claim

- (1) Before a date is set for trial, a P may discontinue all or part of an action o P need not notify other parties, just must file and serve discontinuance.

Caveat: D is entitled to cost award under Rule 4.36(4) – Applies to all situations (before, after date set and after trial starts)

- (2) After a trial date has been set but before trial a P may discontinue all or part of an action so long as: o (a) All parties agree in writing OR o (b) Court allows it.

- (3) After the trial has started a P may discontinue all or part of an action only with courts permission - (4) IF P files a discontinuance it MUST

o (a) Be in Form 23 o (b) Be served on all parties (notice of discontinuance) o (c) D is entitled to a costs award against the P

- (5) The discontinuance of the action may not be raised as a defence to any subsequent action for the same or substantially same claim.

o Ex: P can change their mind and file a new claim and D can’t say, “you discontinued it” as a D (unless they get a waiver)

Ie discontinuing an action and refilling the same action is not res judicata Rule 4.37: Discontinuance of a Defence

- (1) A D may discontinue their defence by filling a notice of discontinuance in Form 24 and serving it on the P

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- (2) On filing the notice of discontinuance, the D is said to be in default of defence and the P is entitled to a costs award against the D for costs arising since the D filed their SoD.

Newel Post Developments Ltd v 1402801 Alberta Ltd

- Development profit agreement… bring judgment against company and it goes into receivership and P realizes that chances of getting money out of it are small

- They don’t think claim is bad one but want to discontinue without costs because they wont get money o Would have to line up at the back to get part of money

- Court says P is going to have to pay costs o Look at whether P claimed bona fide cause action, are the circs outside control that

Court said bona fide action But not convinced wont get some money and so says that if you choose to discontinue then must still

pay costs for D Court says generally P will pay costs if action is discontinued BUT when we have to decided whether a P can discontinue without costs consider 2 criteria

- 1) Did P disclose a bona fide cause of action that was not vexatious - 2) Are there any circs that are beyond the P’s control that would render continuing the action to judgment

meaningless?

Ch 25: Settlement Three Ways to Settle

- 1) Informal Settlement Agreement o Subject to Contract Law so CL applies o Can generally be made any time – parties est. what they think the terms of the settlement should be – they

are masters of the agreement - 2) Formal Settlement Offer under Rule 4.24

o Not subject to CL (is an exception to CL principles of offer/acceptance) o Only settlements that bring into action the costs consequences under the Rules (can be costs consequences to

P and Ds) - 3) Dispute Resolution, Arbitration or Mediation

o Discussed later

Formal Offers Rule 4.24:

- (1) At any time after a statement of claim or an originating is filed, but 10 days or more before o (a) an application for judgment by way of a summary trial is scheduled to be heard, o (b) a trial is scheduled to start, or o (c) an application is scheduled to be heard or considered, one party may serve on the party to whom the offer

is made a formal offer to settle the action or a claim in the action. - (2) Requirement for formal offer:

o (a) name of offeror o (b) Name of offeree o (c) what the offer is and any conditions attached to it; o (d) whether judgment interest is included o (e) whether costs are included o (f) the requirements to accept offer o (g) a form of acceptance of the offer; o (h) What the cost consequences are under Rule 4.29.

Rule 4.29(1): Plaintiff makes offer which is not accepted. If the plaintiff gets a judgment that’s equal to or better than the original offer, the plaintiff is entitled to double costs.

Rule 4.29(2): If defendant makes an offer that isn’t accepted and gets a judgment equal or more favourable, the D will get costs for all steps taken after serving the formal offer. If the claim is dismissed completely, the defendant is entitled to double costs

- (3) Three time limits for how long a formal offer will remain open: o a) expires 2 months after the date of the formal offer’s service o b) Expires after the date set out in the offer itself

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o c) Expiries at the start of the hearing - (4) To withdrawal an offer

o a) Need the courts permission, which may be given only if the court is satisfied that there are special circs that justify withdrawal

o b) The party who made the offer serves a notice of withdrawal on all the other parties Rule 4.24 also applies to appeals. If you appeal QB to CA and want to make an offer to settle prior to being hear by CA, you can. However offer from prior to trial doesn’t live on. Offer must be accepted voluntarily, with legal advice, without influence from the other party Torode Realty (Edmonton Ltd v Winfield Power Co)

There was an offer made for $42K, and P was successful a trial for the same amount. The court looks at whether or not they should be able to get double-costs, whether it was a genuine offer.

Held: The court looks at whether the offer was for the precise amount they were trying to recover, whether it’s the same amount and if its going to appeal. For “genuine” offer the court said it MUST include an element of compromise. If the offer doesn’t represent the merit, it is not an genuine offer. That means if there is a very strong case, and they still make an offer to settle, the court would say that’s more genuine, if a weak case, that is less genuine, you were trying to be sharp. They look at whether or not the offer was made in good faith, whether it is realistic and reasonable in the circumstances, or was it made just to obtain double costs in the end.

The offer made was determined to be genuine, so they get double costs. Snihur v Grace

Informal Offers Paniccia Estate v Toal Whether an informal offer has cost effects and what those are, are in the discretion of the trial judge Even if informal offer there can be consequences Offer was made less than 10 days before trial so not a formal offer

o Appeal to CA because the trial judge still awarded double costs Issue: On an informal offer what kind of discretion do judges have in awarding costs? Can they award double costs? Decision: Yes, court can award it, don’t reverse trial judge decision Reasons:

o There was a a good reason P delayed with offer beucase original P just died, ended up having to amend SoC to name Personal Rep

o Said that offer was actually counter offer from Ds original offer o If double costs not awarded then Ps offer would have been of no consequences, trying to promote settlements.

IF YOU SETTLE, GET A RELEASE Release: Generally part of a condition for a settlement offer. This is really just another form of contract. It prevents one party from bringing any additional action against the other party for anything pertaining to or arising from the original action. Often times the money will be held in “trust” before signing.

(1) The person signing is basically acknowledging that this is a full and comprehensive settlement of all claims and that they will forgo any future claims for the same action.

(2) You cannot claim res judicata because you didn't get a final determination by the Court. However, the Release can still be an absolute defence to future claims by the signee.

(3) To cover yourself from liability, always have the individuals signing the release to seek independent advice from a tax accountant.

NOTE: You have to make sure your client knows when you have a settlement offer, and you must ALWAYS get instructions from the client. Even if you know your client will not settle for that amount. You have to warn them to costs, and if complex you need to draft a memo to explain everything to them, it’s a cover your ass letter, that becomes public. You also can do a consent judgement, ie. “we have arrived at a decision my lord”.

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Settlement Process Rule 8.6(2) where a trial date is scheduled it cannot be adjourned or abandoned unless:

- a notice of discontinuance is filed; 4.36 - a memorandum of settlement signed by the parties is filed OR - the judge permits

Must communicate all offers to your client, even if the offer was way less than what the client said he would take Rule 8.6(4)

- The rule applies even if parties consent to an adjournment or change in the duration of the trial NOTE – professional responsibilities of a lawyer regarding settlements Alternative to discontinuance is a consent judgment – see Rule 3.35(1)- effectively ends the other party from being able to bring forward the matter again If you are going to settle it yourself you will commonly use a release. (see previous page) • Must write that it is full and final payment • This is a document of a contractual nature • Person is voluntarily signing this • Need to get the opposing lawyer to sign a discontinuance Rule 3.35(1) – Consent Judgment An alternative to a discontinuance is a consent judgment. Both parties must sign it and then bring it before a Judge. The Judge must then sign the consent judgment.

The advantage here is that it is a judgment! A discontinuance does not mean that it was adjudicated on the merits - there is no res judicata - it is simply a binding

contract. In a consent judgment, res judicata does apply.

Code of Professional Conduct

o Rule 3: Every offer that you receive from the opposing party must be presented to your client regardless of whether your client has given you earlier instructions as to what type of settlements they’ll accept.

Part V: TRIAL AND JUDGMENT

Ch 26: Entry for Trial and Trial

Entry Rules 8.4(3) and 8.5(1)(a): requires a judge to be satisfied that the parties participate in ADR

- HOWEVER, QB practice note released Feb 2013 says these two rules would not be enforced in QB, said they don’t have enough resources to do ADR for everyone.

o SUSPENDED but should still be used Rule 8.4 – Sets out requirements for setting a trial date by court clerk.

- (1) Use Form 37 to request trial date - (2) Request must contain at least the following information unless otherwise directed by the court:

- the anticipated number of witnesses, including the number of expert witnesses; - the anticipated length of trial; - a copy of the pleadings and particulars, if any, for the judge’s use at trial; - if applicable, the order directing that the trial be by jury; - the certifications required by subrule (3); - any administrative requirements for the trial;

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- any potential conflict of interest a judge may have and the reasons for it. - (3) Set out that all undertakings have been completed, all medical examinations have been done, questioning is

complete, etc. - Also states that you took part in one form of dispute resolution (suspended)

Tan v Swyrd

o Entry for trial under 8.4(3)- when you certify this, it MUST be true. Go through your action and ensure all the things you are certifying are accurate.

o With respect to 8.4(3)(c): “a party may file a Form 37 request only if her counsel has carefully considered whether expert reports are needed and, if they are a necessary part of her client’s case, she has served on the other party all the expert’s reports on which the client intends to rely on at trial. A declaration that is not the product of deliberation is of no value.” (400)

o Applies to all the requirements under 8.4(3) o Court denied P her costs for the contested experts’ reports to show disapproval of the lawyer’s conduct; “P must suffer

for the sins of her counsel” Rule 8.7 – Confirmation of trial date

- Three months or more before the scheduled trial date, each party must (a) confirm to the judge, in Form 39, that the party will be ready to proceed with the trial on the scheduled

trial date, and (b) verify or modify the estimated number of witnesses and the estimated duration of the trial.

Rule 8.5 – Scheduled by the judge If you can’t get the other side to agree, you can ask the court to set a date (use form 38) Rule 8.10(1) – Order of presentation at trial

1. Plaintiff makes an opening statement 2. Defendant can make an opening statement or wait 3. Plaintiff puts in their case 4. Defendant puts in their case 5. Plaintiff may make statement rebutting Ds evidence 5. Closing statements

Rule 8.20 – Application for dismissal at close of plaintiff’s case 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.

i.e. D can apply to dismiss if the P has not made their case Rule 8.16: Number of experts - you normally only get one expert witness, so must apply to court for permission to have more, if you need more Rule 8.17 – Proving facts (1) A fact to be proved at trial by the evidence of a witness must be proved by questioning the witness unless:

(a) The Rules or a statute otherwise provide (e.g. expert reports under Rule 5.39) (b) The parties agree to that fact, or (c) The court otherwise orders.

Rule 5.31: how to bring in transcripts and questioning - the party who questioned the witness may read in portions of the witnesses answer at trial:

1. If it improves your case (refreshing the memory) – evidence that advances your client’s case 2. If it destroys the other party's case (impeaching the witness) – conflicting evidence

Used on cross-examination because it was the party adverse in interest that did the questioning. Why use this for refreshing? Perhaps on their examination in chief the person did not provide all the answers they had during questioning - you present them with the answer they had given (what, when, where, etc) and then ask them if they remember giving the answer. Why use it for impeaching? A person gives an answer that is contradictory to the answer given in questioning. This effects the credibility of the witness in the eyes of the Court.

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Alberta Evidence Act – Proof of Contradictory Statement Section 23(1) If a witness on cross-examination with regards to a former statement made by the witness about a matter in question, and inconsistent with the witness’ present testimony, does not distinctly admit that the witness made the statement, proof may, subject to subsection (2), be given that the witness did in fact make that statement. If the witness, during cross-examination, says something different then he did during questioning, and does not admit he

made that statement at trial, proof can be given that he did make that statement (2) Before that proof is given, those circumstances of the alleged statement that are sufficient to designate the particular occasion shall be mentioned to the witness, and the witness shall be asked whether the witness did make the statement. Must go through the process of reading prior transcript of where you got their answer in order to impeach their

credibility. Can't just say: That's not what you said at questioning. Must say: do you remember on this date and time when I questioned you and we talked about this? Well, let me read in what you said. Must remind them enough about the circumstances when they gave that answer

Getting Witnesses to Trial

Rule 8.8 – Notice to attend as witness at trial

(1) allows you to issue a notice to attend on any party that you want to give evidence at trial.

(2) if they have a lawyer, notice must also be given to their lawyer

(3) notice must be served 20 days before the trial date

(4) notice must be served in the same manner as a commencement document (i.e. personal service)

- Rule 11.5: is for commencement document is personal service on the individual or by recorded mail that they have to sign

for.

- Rule 11.16: Can serve commencement document on lawyer and he has to accept it in writing – notice to attend can be served

on lawyer

(5) notice must be accompanied with the appropriate allowance (schedule B) or else they don’t need to attend

Attendance of Witnesses at Trial Rule 8.9 – Requiring attendance of witnesses

(1) Court may order a person to attend trial as a witness, or direct a peace officer to apprehend a person anywhere in Alberta if:

(a) proper service of the notice to attend and payment of an allowance, which may be proved by an affidavit, were

effected in compliance with 8.8

(b) the person did not attend, and

(c) the presence of the person is necessary

Rule 8.11 – Absence of witnesses at trial

If a person who is served with a notice to attend at trial as a witness, with or without records, does not do so, the Court may:

(a) give judgment or make an order against the party whose witness does not attend,

(b) continue the trial in the absence of the witness, or

(c) adjourn the trial.

Rule 8.14 – Unavailability or unwilling witness

(1) You can, with judge’s permission, read into evidence all or part of questioning, if the person questioned (a) is dead, (b) is in poor

health, or (c) they refuse to take oath or to answer questions

(3) judge may grant permission under this rule only if (a) the facts sought to be proved are important to their case, and (b) the facts

cannot be proved in any other manner, and (c) the permission is limited to the parts of the questioning that relate to the facts.

NOTE: The major issue is that you cannot cross-examine the person. The facts that are proven this way must NEED to be

proven and you must show that they cannot be proven any other way. Likely, the judge will limit the read-in to the facts

relevant to the issue.

Mode of Trial Rule 8.1 – Trial without jury Unless the Chief Justice directs that the mode of trial be by jury, or in part by jury and judge, the trial must be by judge alone But Chief Justice can make it part by jury, or all by jury, with a request. Jury trials don't exist as of right See Jury Act to find out the requirements for a jury/jury trial - not very common in civil litigation (or Canada in general).

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Jury Trial Rule 8.2 – Request for jury trial – NOT on Exam

(1) An application for a jury trial under section 17 of the Jury Act must be made (a) by written request to the Chief Justice, and (b) before an application is made to the court clerk or a judge to set a trial date

(2) The request must be accompanied with an affidavit that addresses the following issues: (a) whether expert evidence will be called, how many experts (b) areas of knowledge or experience on which the experts will give evidence (c) whether interpreters will be required (d) the number of court days required for the trial if a jury trial is ordered

Fowler v Dion

The Jury Act sets out times when jury trial is likely not going to work and particular criteria is s 17(2) talks about how jury trials will likely not be acceptable where there is prolonged scientific examination of documents, or accounts, or a lot of documents. The point is that judges are more able and better suited to be able to listen to complicated arguments. If it includes counterclaim, that has prolonged examation.

Ch 27: Judgment

1. What is the Difference between an Order and a Judgment? A judgment is a decision that finally determines the question(s) in issue in the action between the parties.

o E.g. whether defendant was negligent and what damages are. o Res judicata applies

Orders relate to preliminary or subsidiary questions of procedure for gaining or enforcing a judgment. o E.g. Form 5.31: Order that can be obtained to have evidence taken outside of AB (previously known as

commissioned evidence. o E.g. Form 37: Order to appear before the court and show cause as to why they shouldn’t be held in contempt. Not

interlocutory so cannot vary unless particular rules followed. o Res judicata does not necessarily apply o May need an order to enforce a judgment o Judgment more final than an order – order can be overturned by another judge o Form of judgment & order is the same

2. What is the Form for Judgment and Orders? Rule 9.1 – Form for judgment and orders

(a) Date it is given. (b) Name of the judge or master who made it. (c) Date that it is entered (i.e. filed)

3. Who Drafts, Signs and Enters the Judgment or Order? Rule 9.2 – Preparation of judgments and orders

(1) The court will direct which party is to prepare a draft of the judgment or order. If not, the successful party is responsible for preparing the draft.

(2) The following rules apply: (a) 10 days to make the order and serve it on every party. (b) The parties who are served have 10 days to either approve or object and apply to the Court to “settle the

judgment.” Basically they tell the court what they don’t agree with.

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(c) If party does not approve or object within 10 days the judgment or order may be signed by the successful party and entered.

Rule 9.4:(1) A judge or master may sign a judgment or order when it is pronounced.

- (2) If a judge or master does not sign a judgment or order when it is pronounced, the court clerk may sign the judgment or order in any of the following circumstances:

o (a) in a proceeding which a party adverse in interest did not attend; o (b) if the party adverse in interest approves the form of the judgment or order or waives approval of its

form; o (c) if the Court directs that approval of the form of the judgment or order by a party is not required; o (d) if the Court directs the court clerk to sign the judgment or order.

- (3) In any circumstance other than those described in subrule (2), a judgment or order must be signed by a judge or master.

4. What is the time limit for filing/entering the judgment or order? Rule 9.5 (1) Subject to subrule (2), every judgment and every order is entered by filing it with the court clerk, who must make a note in the court file of the entry and the date of entry. (2) – Entry of judgments and orders

o Judgments and orders must be entered by filing it with court clerk within 3 months after pronouncement unless the court otherwise permits. If you do not, you need the court’s permission to file it

Rule 9.6 – Effective date of judgments and orders

o The judgment is in effect from the date it is pronounced. The fact that it is in filed does not mean the judgment is not in effect.

o OR if the Court orders the judgment or order to come into effect before or after the date of pronouncement, the date so ordered.

5. Can a judgment OR order be varied? Substantive errors Named the wrong party, for example, or haven't indicated costs

Variation Before Entry Rule 9.13 – Re-opening case (before pronouncement) At any time before a judgment or order is entered, the Court may

(a) vary the judgment or order, or (b) on application, and if the Court is satisfied there is good reason to do so, hear more evidence and change or modify its

judgment or order or reasons for it Lewis Estates v Brownlee LLP

Deals with Rule 9.13 Facts: Community League sued law firm. Accounts were served by the law firm on the league.

Firm then wanted to include other bills owed by the client to extend accounts This was a substantive error Original order on the account had not yet been filed Judge: even if 9.13 does apply, issue was if the judge should exercise his discretion to apply it. Applicant firm wanted

to add in additional accounts- adding in could only be done upon application by a party and court would have to be satisfied that there was good reason for varying the order

9.13 not really a vehicle to simply allow an applicant to get a new judgment; dismissed the application; the firm knew at the time they were dealing with the one account that other accounts existed and should have brought forward earlier (at the same time)

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Variation After Entry Rule 9.14 – Further or other order after judgment or order entered (after pronouncement & appeals) On application, the Court may, after a judgment or order has been entered make any further or other order that is required, if:

(a) doing so does not require the original judgment or order to be varied, and (b) the further or other order is needed to provide a remedy to which a party is entitled in connection with the

judgment or order 10.30(1)(c) court can deal with costs after judgment is given

Rule 9.12 – Correcting mistakes or errors (clerical errors) SLIP RULE

On application, court may correct a mistake or error in a judgment or order arising from an accident, slip or omission Rule 9.15 – Setting aside, varying and discharging judgments and orders (special circumstances) On application, the Court may set aside, vary or discharge a judgment or an order, whether final or interlocutory, that was made

(a) without notice to one or more parties, or (b) following a trial or hearing at which a party did not appear because of an accident or mistake or because of insufficient

notice of the trial or hearing Rule 9.16 – By whom applications are to be decided Application under 9.12-9.15 must be decided by the judge or master who granted the original judgment or order unless the Court otherwise orders See Civil Enforcement Act section 27

judgment lasts for 10 years from the date the judgment takes effect (10 years to enforce it) during the 10 year period, you can apply to have the judgment renewed for 10 more years

Varying Substantive Errors in Order or Judgment

Before Filing Rule 9.13 – Re-opening case

At any time before a judgment or order is filed, the Court can:

(a) vary the judgment or order, or

(b) on application, and if the Court is satisfied there is good reason to do so, hear more evidence and change or modify its

judgment or order or reasons for it.

Generally has to be for a good reason - it doesn't just mean clerical errors - only substantive mistakes

Common law: A judge who gave the order has unlimited jurisdiction to vary the order/judgment. Therefore, before it’s filed, can

go back to the judge or master, put in more evidence and ask them to correct.

After Filing: Must Appeal Order Only option after the order is filed is to appeal it.

o Master: Appeal to QB.

o Judge: Appeal to CA.

This is because once it’s filed, the judge becomes functus loses all ability re: the order or judgment.

Note the exception to this is Rule 9.14 – when you’re OK with the original order but it’s just missing the remedy.

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After Entering: Exception to Applying for Appeal Rule 9.14 – Further or other order after judgment or order entered

o Allows the court to make a further order so long as it does not vary the original order, and the further order is

required to provide a remedy to the party that’s entitled to it.

Varying Clerical Errors in Order or Judgment

Rule 9.12 – Correcting mistakes or errors “The Slip Rule”

o The court may correct a mistake or error in a judgment or order arising from an accident, slip or omission.

o This can be used before and after filing

Varying Orders or Judgments in Special Circumstances

Rule 9.15 – Setting aside, varying and discharging judgments and orders in special circumstances

o Applies to both final and interlocutory orders.

o Only applies to orders that remain without notice to one or more of the parties (e.g. ex parte orders) OR where one of the

parties did not appear at trial because of a mistake (e.g. insufficient notice).

o Have to bring the application within 20 days of the service of the judgment or order on you OR the date that the

judgment or order came to the attention of your client.

Administrative Agencies, Boards, and Commissions (ABCs) Who is the Client? You could be counsel for:

o The agency, board or commission (ABC). o The decision-makers themselves. Tell them of what the law is that applies to their decision, and review their

decision to make sure it stands up according to the law. o The disciplinary board to prosecute the professional who is being brought up on charges. o A private party (the professional) required/wishes to participate in the ABC. o A public interest group that has standing to intervene in an ABC hearing.

Jurisdiction and Statutory Compliance General rule: ABCs are creatures of statute and therefore have no inherent jurisdiction. Any powers they possess must

be found in some enactment: o Bell v. Canada. When Parliament has failed to vest an administrative body with such a jurisdiction, then it is

not the role of a court to create such jurisdiction. Administrative bodies and tribunals are creatures of statute; the will of the legislature as it appears therein must be respected.

i.e. the court can’t expand the jurisdiction of the administrative body However, ABCs will have some implied powers, otherwise they couldn’t function at all.

o All powers that are reasonably necessary to accomplish the object they are intended to accomplish. This common-law principle has been codified in the Interpretation Act, s. 23(2). E.g. A provincial court judge has an implied power to receive oral evidence under the Provincial Offences

Procedures Act (R. v. Van Straten (1994) CA)). E.g. Alberta Hospital has the power to care and treat patients which includes the power to do so without

their consent (Re Osinchuk (1983) QB)). Even if the tribunal lacks power, it may be possible for a superior court to make an order in aid.

o E.g. Edmonton Police Service person conducting the hearing may apply to QB judge to compel someone to attend the hearing under the Police Act, bring an application to QB and hold someone in contempt as if they were in breach of a court order. See ss. 45(3) or 46(4).

Where do you determine the jurisdiction and statutory requirements for an ABC? o Look at the relevant statute AND READ IT governing the board or subject matter in question. o Look at the Administrative Procedures Act which has a specific list of entities it applies to. o Look at the Interpretation Act. o Consider whether there are any regulations, orders-in-council, ministerial orders, or written rules, policies or

procedures by the tribunal. Distinct Characteristics of ABCs

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1. No uniform set of rules that apply to all tribunals. Don’t assume that you always have the right to cross-examine or receive oral evidence.

2. A tribunal may also have investigative powers 3. Procedural efficiency is highly valued. 4. Intervention by the public. Concept that Applies to All ABCs: Natural Justice and Procedural Fairness The principle of natural justice applies to all ABCs. Rules of natural justice generally follow a court process but are less formal/rigid then those followed by a court. The more the ABC is judicial or quasi-judicial, the more the rules of natural justice will apply. Natural justice and procedural fairness refer to: Notice, adjournments, right to counsel, right to cross-examination,

knowing the case against you, right to adduce evidence on your own behalf, right to make submissions, the requirement that only the tribunal members take part in the decision-making process (3Ps cannot be presented or consulted).

The duty to act fairly depends on three factors:

1. Nature of decision to be made by the administrative body. 2. Relationship existing between the body and the individual. 3. The effect of that decision on the individual’s rights (Knight v. Indian Head School Division No. 19, [1990] 1 SCR

653) Procedure and Evidence Enabling legislation and general rules may say nothing about the precise process to be followed in conducting a hearing. Most statutes will state when a hearing is open to the public or held in camera (closed to the public). Enabling legislation will generally indicate who may call evidence at the hearing, including who has the onus or burden of

proof. Rules for admissibility of evidence are more lax than for a court of law; much is left in the discretion of the decision-maker. Many enabling statutes state that you can only use the evidence taken in that proceeding for that proceeding only. Cannot

use for any other trial or proceeding outside of it, except for perjury proceedings. ABCs versus Courts

ABC Court Rules of evidence relaxed Minimal advance notice of evidence Not bound by previous decisions Informal process; less adversarial Written or oral submissions Cannot answer constitutional questions Self-representation common Intervention by public – what you and your client say can

easily be released to the public – must think more of how you will represent yourselves. Someone being disbarred

Rules of evidence do apply Completely discovery prior to trial Stare decisis applies Formal process; adversarial Primarily oral Constitutional questions Self-representation less common Usually, private disputes where only parties participate –

no one cares about your contractual issues or MVA. Someone getting divorced

Presentation – Administrative Professional Discipline Matters: Blair Maxston 1. Administrative law – How ABCs Work Generally speaking, less formal and procedural move forward at a greater pace (production of documents, calling

people to attend) but also a huge pitfall if unfamiliar with the governing statute. 2. Jurisdiction and Legislative Context Jurisdiction is a function of the legislation. Represent a dentist under Health Professions Act? READ the act, regulations, by-laws! Look at entire legislative framework.

Also look at the contextual surroundings – standards of practice, code of ethics, guidelines or policies that relate to the proceedings. Ask for prior decisions of the ABC.

Know who the panel members are – how did they handle themselves in the past? Get context in terms of actual decision-making.

Ask about costs what’s involved with obtaining the documents and getting them to you? How current are they (have guidelines changed)?

3. Health Professions Act – How Does Process Get Started?

1. File a written complaint.

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o Know what constitutes a complaint e.g. written, signed, dated. o Unique to the Act is no limitation period re: when you file a complaint.

2. Consider how long the commission has to respond. o For example, College must respond within 30 days.

3. Appointment of an investigator. o Can have wide range of powers compel production of documents, can remove documents, and if someone

fails to comply they can apply to QB compelling production (then the Rules apply to how the application will be made).

4. Hearings director sends out notices of hearing. o Notices of attend to witnesses, notices to produce documents, etc. Process under legislation on how to do

these actions, and may have a QB remedy re: compel. o Legislation will set out who does serving, how it’s done and when it’s effected. o Will also state what quorum is.

5. Note right to legal counsel and how they can and cannot represent client or decision-maker. 6. Consider whether hearing can proceed in the absence of the “accused.”

o Unique to the HPA, if the College can prove good service, the hearing can proceed and findings of guilt and penalty orders can be made.

7. Compellability of witnesses. o Required to attend, at law. If they don’t attend, contempt of court and breaching the legislation. o Types of questions that must be answered can be laid out by the enabling statute.

8. Consider whether the formal rules of evidence apply. o Rules of evidence may not apply! For example, the Police Act states that formal rules of hearing do apply to

discipline hearings under the Act, while the HPA states that it does not. o Problem where rules of evidence don’t apply discipline proceedings have a level of formality. You’ll have to

gauge the level of formality that the particular committee wants in a hearing. 9. Public versus private proceedings

o Check the legislation. If it’s public, can you turn it into a private proceeding? Can you do this partway? o However, if you declare part of a hearing private, may prohibit you from calling rebuttal witnesses.

10. Standing o For example, HPA doesn’t allow “victim impact statements.”

11. Internal appeals o Can you appeal to the council or governing body of the tribunal before you go to the courts? o Will lay out process, timelines, who prepares documents, how you go to the next step, and cost. o Will also lay out who has the right of appeal – e.g. if the council issues a decision under the HPA, only the

member, and not the College, can appeal to the CA. 12. How is good service effected?

o Under the HPA, can be effected by registered mail at their last known address. 13. Costs function of legislation and who wins

o Under the HPA, if a College is successful and there’s a finding of guilt, the member can be required to pay all of the College’s costs, a portion, percentage or flat amount.

o If it goes to the CA, they can review costs and the Rules will apply to the costs re: appeal.

1. Final Comments Legislation doesn’t deal with ability to file judicial review application or file a complaint with an ombudsman. Don’t forget

these potential remedies!