Barrister Issue 138 - Fall 2023 - War Stories In Court

the

Barrister FALL 2023

ISSUE #138

War Stories from the Courtroom

? f I t a Wh WHY CHOOSE CASEMARK • Interest rate DECREASES at the two-year mark • Flat $250 administration fee • Legal fees & disbursements always take priority • No complicated application forms • Approval within 24 hours

-RHITIRHIRX VIZMI[ SJ IEGL ÁPI

• No hidden fees or recurring charges

• Sustainable and responsible lending decisions

'EWI1EVO IQTPS]W E XIEQ SJ WTIGMEPM^IH GEWI EWWIWWSVW [LS VIZMI[ IZIV] ETTPMGEXMSR ERH QEOI PIRHMRK HIGMWMSRW XLEX EWWMWX ]SYV GPMIRXW FSXL MR XLI WLSVX XIVQ ERH XLI PSRK XIVQ 3YV MRHMZMHYEPM^IH ERH LSPMWXMG EWWIWWQIRX ETTVSEGL IRWYVIW XLEX XLI ÁRERGMEP EWWMWXERGI [I TVSZMHI [MPP RSX FI HIXVMQIRXEP EX XLI XMQI SJ VIWSPYXMSR ;I FIPMIZI XLEX TPEMRXMJJW ERH XLIMV PE[]IVW WLSYPH RSX LEZI XS WIXXPI JSV PIWW

ÿ Ćþþ ąĄā þþĀă

[[[ GEWIQEVOÁRERGMEP GSQ

We’ve got your back, so you can

MOVE FORWARD

ÿ Ćþþ ąĄā þþĀă

[[[ GEWIQEVOÁRERGMEP GSQ

FEATURES ACTLA Government Relations Update

By Keith McLaughlin (New West Public Affairs)

14

ACTLA Submission to the Auto Insurance Rate Board

16

Raffles Go Better With Coke

20

By Mark Feehan

The Changing Face of Private Mediation

By David Stark

Courtroom Stories: Vicki J. Edgar

23 29

Courtroom Stories: Norm Assiff

30

Courtroom Stories: Robert G. Bissett

32

Courtroom Stories: Justice Robert Graesser

34

Courtroom Stories: Constantine Pefanis

37

Courtroom Stories: Walter W. Kubitz, K.C.

41

Denial of Coverage & Diligence by Insured in Rebuilding After Property Loss

By Patricia Tiffen & Linda Jensen

Case Law Corner: Herniated Disc Results in 1.4 Million for Future Loss of Earning Capacity

43 50

By Priscilla Cicek

22

The The Barrister Barrister

COLUMNS Letter from the Executive Director

8

Letter from the Board Chair

9

Letter from the Editor

10

Letter from Member Services

11

Barrister Case Law Review

57

THE BARRISTER EDITORIAL BOARD

Nash Calvert Editor in Chief

Amani Abdu

Committee Member

Peter Trieu

Committee Member

Justin Monahan Committee Member

The contents of The Barrister are for informational purposes only and do not constitute legal opinions by the Alberta Civil Trial Lawyers Association, its members or contributing authors, and should not be relied upon as such.

Statements and opinions expressed by the editors and contributing authors are not necessarily those of ACTLA. The official position or views of the Alberta Civil Trial Lawyers Association will be stated as such. Copyright © 2022 by the publisher, ACTLA. All rights reserved. Reproduction of any material herein without permission of the publisher is prohibited.

All advertising enquiries should be directed to the Editor-in-Chief at communications@actla.com Publication Mail Agreement No. 40064387 Return undeliverable Canadian addresses to: Alberta Civil Trial Lawyers Association 777-10339 124 Street, Edmonton, AB, T5N 3W1

The Barrister is published quarterly by the Alberta Civil Trial Lawyers Association 777-10339 124 Street, Edmonton, AB, T5N 3W1 T: 780.429.1133 | 1.800.665.7248 | www.actla.com

Fall 2023

3

Thank you to our

Supporters

SPONSORS

CaseMark Financial Platinum Sponsor 2023 Integra Gold Sponsor 2023 Bridgepoint Financial

DONORS Platinum Donors Norm Assiff

Yanko & Popovic

Cuming & Gillespie

Joseph Nagy

Rodin Law Firm

McLeod Law

Edwards Injury Law

Cassidy Hea Injury Law Gold Donors KMSC Law

Brian Conway

Vic Vogel

Tarrabain Law

Jane Lang

Pipella Law

LT Lawyers

CAM LLP

Crash Injury Lawyers Silver Donors Jackie Halpern Ryan Berget

Harman Toor

Walter Kubitz

Grover Law Firm

Grace Parrotta-King

Safi Law Group

Cameron Brightman

McKellar Structured Settlements

Waverly Muessle Angie Mijalska

Ryan O'Fee

Hollick Chipman

Norma Mayer

Heather Steinke-Attia

Bronze Donors Jillian Gamez Gillian Clarke

Christopher Rappel Shawn Sipma Assessmed

Stephanie Whyte

Paul Anderson

Izaak Atnikov

Viewpoint

Thanks to you, ACTLA can continue to support Access to Justice across Alberta 4

The Barrister

ACTLA Mission Statement: Advocating for a strong civil justice system that protects the rights of all Albertans.

2023-24 BOARD MEMBERS

PAST CHAIRS

Chair: Owen Lewis Past Chair: Angela Saccomani, KC Vice Chair: Mike McVey Secretary: Jillian Gamez Treasurer: Laura Comfort

Angela Saccomani, KC - 2022-23 Maia Tomljanovic 2021-22 Jackie Halpern, KC, 2020 - 21 Shelagh McGregor, 2019-20 Mark Feehan, 2018-19 Michael Hoosein, 2017-18 Maureen McCartney-Cameron, 2016-17 Nore Aldein (Norm) Assiff, 2015-16 Craig G. Gillespie, 2014-15 Donna C. Purcell KC, 2013-14 George Somkuti, 2012-13 Constantine Pefanis, 2011-12 James M. Kalyta, 2010-11 James D. Cuming, 2009-10 Richard J. Mallett, 2008-09 Arthur A.E. Wilson KC, 2007-08 Walter W. Kubitz KC, 2006-07 William H. Hendsbee, KC, 2005-06 Kathleen A. Ryan KC, 2004-05 Ronald J. Everard KC, 2002-04 Stephanie J. Thomas, 2000-02 James A.T. Swanson, 1998-2000 Gary J. Bigg, 1996-98 Stephen English KC, 1994-96 Anne Ferguson Switzer, KC, 1992-94 Terry M. McGregor, 1990-92 J. Royal Nickerson KC, 1988-90 Derek Spitz KC, 1986-88

Members-at-Large: Jackie Halpern, KC Joseph A. Nagy Peter Cline Geographical District Representatives: North West: Leah Paslawski North East: Waverly Mussle Edmonton: Amani Abdu Calgary: Sarah Coderre Central: Ronke Omorodion South East: R. Travis Bissett ACTLA STAFF Executive Director Joy Jeong | executivedirector@actla.com Communications and Events Services Administrator & Editor-In-Chief, The Barrister Nash Calvert | communications@actla.com Finance & Member Services Administrator Lochlin Zhao | membership@actla.com

Fall 2023

5

Ready to Write?

CONTRIBUTE TODAY The Barrister is delivered quarterly to hundreds of law firms across Alberta.

Whether you are an experienced trial lawyer, a law student, or an expert witness, contact communications@actla.com to contribute an article and get published.

the

Barrister

6

The Barrister

YOUR AD

HERE

Advertise your business to hundreds of legal, business and government professionals with an ad in our magazine!

Receive discounted rates when you sign onto a multiple issue agreement.

To learn more contact communications@actla.com

Letter from the

EXECUTIVE DIRECTOR H

appy Autumn ACTLA Members. While the weather has started to cool down, our work at the ACTLA office has done anything but.

We have many events happening this fall, from our regular Lunch n' Learns, to mixers with the university and our large Masterclass Seminar. Our team is hard at work ensuring that we’re able to continue delivering high quality events, and we hope to see all our members at all of them.

Additionally, we are looking to grow our membership at ACTLA, to add to our already outstanding network. While we at ACTLA are working hard to spread information about our association, encouraging people to join and be part of the association, we would also greatly appreciate any of our existing members reaching out to their colleagues and letting them know about the great benefits of our association. Whether it be the events we put on, the Barrister magazine, our active Listserv or the advocacy work we do on behalf of the profession, all litigators can greatly benefit from being a part of ACTLA. We also want to better serve you, our existing members. If you have suggestions for what further benefits to membership you’d like to see, please reach out to myself or our Member Services Administrator at membership@actla.com.

Joy Jeong, Executive Director ACTLA On the government relations front, we have been very active. We had positive meetings with senior officials of both the UCP and NDP in July. Most recently we met with Finance Minister Horner and his office, to discuss insurance affordability and reform, and we have been assured that we are a key stakeholder and will continue to be consulted. We have shared our messaging with all of the UCP Caucus, and we encourage our membership to go out and meet with your MLAs to further share our message. The FAIR Alberta Campaign also remains active as we work to educate the public on the issue, and we ask that members continue to donate if they are able to help us in spreading that campaign. If you are interested in making a donation, you can do so on our website at www.actla.com or by reaching our to our Finance Administrator at admin@actla. com.

Our office is very active, and we will continue to work hard for you, our members.

As always, if you have any questions or comments, I welcome you to reach out to me at executivedirector@actla.com.

Sincerely, Joy Jeong Executive Director 8

The Barrister

Letter from the

BOARD CHAIR

A

s we return from the summer season and the recent election of a new UCP Government, I want to draw your attention to the critical issue that affects not only our profession but the fundamental rights of all injured Albertans. In this Edition of The Barrister, we delve into "War Stories from Court", which includes many interesting anecdotes from our members relative to their court appearances over the years. These stories also highlight the essential role we play as lawyers in ensuring access to justice for our clients.

Over the course of the past 20 years, we have had to defend the rights of our injured clients against the continual erosion of their common law rights in the face of relentless demands for “reform” by the Insurance Bureau of Canada (“IBC”). Recently IBC has been actively lobbying the new UCP Government to implement changes that could lead to a potential hybrid no-fault system in our province.

These proposed changes, if implemented, would significantly reduce our clients' rights to access justice through the court system.

Owen Lewis, Board Chair ACTLA

It is imperative that we, as legal advocates, stand firm in our commitment to protect the rights of our clients. The cornerstone of our justice system is the ability for individuals to seek redress through the courts when they have been wronged. Any shift towards a hybrid no-fault system threatens this essential right and undermines the principles of justice for which we as an organization and profession promote on behalf of Albertans.

I urge each one of you to take this matter seriously and to become well-informed about the issues at hand. Educate yourself on the IBC proposals and potential consequences of these proposed changes and their impact on our clients and our profession. Knowledge is our most potent weapon in this battle, and we must equip ourselves accordingly. We are the ones on the ground who know the challenges faced by our clients and the unfairness of IBC’s proposals. It is incumbent upon us to convey that message to the public and our elected Members of the Legislative Assembly.

Accordingly, I encourage ACTLA members to engage with your respective MLAs and voice your concerns about the injustice of IBC's proposals. Make them aware of the potentially dire consequences these changes could have on injured Albertans' lives and their access to justice.

Our collective action is crucial. The rights of all injured Albertans depend on our immediate advocacy. We must be unwavering in our commitment to safeguard the integrity of our justice system and the rights of those we represent. The Government has indicated that changes are forthcoming. We need to assure that these changes do not negatively affect the rights of injured Albertans.

Let us stand united as members of ACTLA, leveraging our collective strength to protect our clients' access to justice and uphold the principles of fairness and accountability that are the bedrock of our tort system.

Thank you for your dedication to this cause. Together, we can counteract the efforts of the IBC and assure that injured Albertans retain their ability to seek redress from responsible parties for their injuries, without further deterioration of their rights.

Sincerely, Owen Lewis, Board Chair

Fall 2023

9

Letter from the

Editor T

his issue is one that I am particularly proud of, though it took time to get there.

October marks my first full year of working for ACTLA, and in that time I can confidently say I've learned more about the realities of the legal profession than any work I've done adjacent to the profession before. It was with this appreciation for your work that I set about making this edition one of the biggest yet.

When I put out the call for stories from lawyers across our membership I had dreams of putting together a massive collection of stories of all kinds, but what I did not expect was to read many of them and come away with a sincere appreciation for the people behind them. Whether it was how the submissions were written, or the content, or the glimpses into the motivations of people I now work with regularly, it has been truly incredible to put this all together.

Some highlights from this issue include an update on our FAIR Alberta campaign efforts and ACTLA's submission to the Alberta Insurance Regulatory Board, the full document of which can be found linked in the article (for those reading digitally) or provided by contacting the ACTLA office.

Nash Calvert Editor-in-Chief, The Barrister Communications & Event Services Admin, ACTLA

The theme of this edition is "Courtroom War Stories," and the ACTLA membership certainly delivered. Whether it's Mark Feehan's retelling of the infamous Edward Brennan Raffle suit (one I might add I had heard about quite a few times through the course of my Marketing degree) or Norm Assiff and Robert Bissett's multiple short stories, there is quite a lot of meat to digest in our theme this time around. I would like to thank profusely Justice Robert Graesser, Vicki J Edgar, Constantine Pefanis, and Walter Kubitz for their contributions. Those individuals who I reached out to who indicated interest but were unable to submit due to busy schedules - I look forward to fielding your stories in a future edition.

Of course, it would not be an edition of The Barrister without a contribution from Bottom Line Research. Their paper, Denial of Coverage and Diligence by Insured in Rebuilding After Property Loss I suspect will be an ever more relevant resource as ever more inclement weather continues to cause damage to property across the country.

I feel I can safely say that this Edition is the best one I have put together yet, and that is in no small part thanks to the continued effort of my peers in the Editorial Committee, without whom I would frankly have no idea where to even start. It feels fitting that the best work comes on the anniversary of my starting here, and I hope to remain here for many more years to come.

Sincerely, Nash Calvert Editor-In-Chief

10

The Barrister

Letter from

Member Services D

ear Member(s) of the Alberta Civil Trial Lawyers Association,

I am writing to share my experiences and enthusiasm about my role as Finance and Member Services Administrator at the Alberta Civil Trial Lawyers Association (ACTLA). As I approach my fourth month in this position, I am thrilled to contribute to the success of our organization and work closely with our dedicated team.

Since joining ACTLA I have been fortunate to immerse myself in various aspects of financial management and member services. This role has allowed me to combine my passion for finance with my commitment to providing top-notch support to our members. One of the aspects I cherish most about my job is the opportunity to engage with our members, ensuring they receive the best service possible.

As the Finance and Member Services Administrator, my responsibilities include:

Lochlin Zhao Membership & Finance Coordinator, ACTLA

1. Financial Management: I oversee all financial aspects of ACTLA, ensuring that our budgets are accurately maintained, expenses are efficiently managed, and financial records are kept up to date. This entails working closely with Joy, our Executive Director, to make informed financial decisions that align with our organization's mission.

2. Membership Services: My role involves handling all inquiries and concerns from our members, ensuring that they have a seamless experience with ACTLA. I facilitate membership renewals, provide information about upcoming events and benefits, and continuously seek ways to enhance the value we provide to our members.

3. Event Coordination: Collaborating closely with Nash, our Communications and Events Administrator, has been a highlight of my time at ACTLA. Together, we plan and execute various events, from seminars and webinars to social gatherings. Nash's expertise in communications and my financial acumen allow us to create successful and well-attended events that benefit our members.

4. Administrative Support: In addition to the specific roles mentioned above, I provide general administrative support to ensure the smooth operation of our association. This includes managing correspondence and assisting with special projects as they arise.

I must emphasize how fortunate I feel to work alongside Joy and Nash, who share my dedication to ACTLA's success. It is a pleasure to be part of a team that is passionate about serving our members and advancing the interests of civil trial lawyers in Alberta.

In conclusion, my experience as a Finance and Member Services Administrator at ACTLA has been incredibly rewarding, and I look forward to continuing to contribute to the growth and success of our association. I am grateful for the opportunity to work closely with our entire team, and I am excited about the promising future ahead for ACTLA and its members.

Thank you for being a part of ACTLA. I hope that my reflections on my role here provide valuable insights into the inner workings of our organization and the dedication of our team.

Sincerely, Lochlin Zhao Finance and Member Services Administrator Alberta Civil Trial Lawyers Association

Fall 2023

11

DAVID P. STARK B.Ed., LLB., FCIP Barrister, Solicitor, Mediator, Arbitrator, Conflict Resolution Trainer Member of the Canadian Academy of Distinguished Neutrals and Member of the BC Mediation Roster Society Member of the Law Society of Alberta

Contact Information

146 Wedgewood Dr SW Calgary, AB T3C 3G8 403.969.7967

starkd@shaw.ca

www.starkmediation.ca

AssessMed

®

Quality Assessments – Timely Reporting

ALBERTA: (Servicing Calgary, Edmonton & surrounding areas) Suite 338 – 11808 St. Albert Trail Edmonton, AB T5L 4G4

BRITISH COLUMBIA: (Servicing Vancouver & surrounding areas) Suite 1080 – 777 Hornby Street Vancouver, BC V6Z 1S4

(F) 905-678-2939

(F) 905-678-2939

(P) 780-328-6476

(P) 778-330-2080

refer@assessmed.com

Government Relations Update

Now is the time to connect with MLAs as auto insurance reforms will be announced this fall

By Keith McLaughlin New West Public Affairs

ACTLA is committed to working openly and constructively with the Alberta government on ways to make auto insurance more affordable while protecting the fundamental right of Albertans to seek justice through our court system.

W

ith the looming expiry of the auto insurance rate freeze,

care systems.

the Alberta government has an ambition to ensure that

There are many aspects of no-fault systems that MLAs must

premium rates go down and become more affordable, rather than

understand. No-fault insurance systems do not reduce premiums.

go up as insurance companies say they must, unless of course,

Studies have shown private, no-fault systems are consistently

government legislates their requested reforms.

among the highest-cost auto insurance jurisdictions. No-fault insurance is also designed to help insurance companies control

ACTLA is of course concerned that auto insurance reforms

costs, not to better treat Albertans injured in automobile acci-

contemplated by the Alberta government and recommended by

dents. IBC proposals would thus punish good drivers and injury

the Insurance Bureau of Canada ("IBC") will put the interests of

victims, while rewarding bad drivers and necessitating a WCB-

highly profitable insurance companies ahead of Albertans. MLAs

style auto insurance compensation system run by private insurers.

will be discussing reforms this fall with an announcement regard-

These concepts are antithetical to Albertan values of personal

ing changes to the auto insurance system expected before the end

responsibility, liberty, and the civil right to hold insurers account-

of the year.

able through the court system.

MICHEL V. LAVOIE

IBC proposals include measures that will reduce consumer

M.D., F.R.C.S. (C)

protections and rights of Albertans to access the court system via no-fault insurance type systems. The majority of all injury claims – about 65 – 70% - settle for less than $5,000. IBC proposals to limit appropriate compensation for injury victims through no-fault insurance schemes would target those who most deserve compensation for injuries where they were not at-fault, and result in greater costs to taxpayer-funded social assistance and health14

Certified Independent Medical Examiner

Orthopedic Surgeon Suite 109, 11910-111 Avenue Edmonton, AB 780-483-8311 Fax: 780-930-2121 mvlavoiemd@shawbiz.ca

The Barrister

Industry-friendly reforms that benefit the bottom line of insurance

stability and affordability to policyholders. To enhance consumer

companies have not served Alberta consumers in the past, and

protection and foster industry transparency, a comprehensive

ACTLA believes it is time for a different approach. Albertans

reform of the Alberta Insurance Rate Board (AIRB) mandate

deserve more consumer protections and financial transparency

is imperative. A prompt review of the Direct Compensation for

in the insurance industry. A reform package based on consumer

Property Damage model is also necessary to ensure that it is

protections would be supported by Albertans and instill consumer

working effectively. Lastly, the grid system pertaining to experi-

confidence in the insurance market.

enced drivers should be modified to reflect current realities and maintain the balance between risk and affordability in the auto

Alberta auto insurance premiums are designed to target a 7%

insurance market. These measures collectively aim to create a

profit for insurance companies. But insurers have been regularly

more secure and consumer-friendly auto insurance landscape in

exceeding that without consequences. In 2021 alone, profits in

Alberta.

the insurance industry were $1.1 billion over the target. And yet driver premiums remain high.

ACTLA is committed to working openly and constructively with the Alberta government on ways to make auto insurance more

Had a seven percent profit cap been applied since 2020, taking

affordable while protecting the fundamental right of Albertans

into account investment income on premium capital, Alberta

to seek justice through our court system. ACTLA leadership is

households would have seen a reduction in premiums and paid

involved with direct discussions with the Minister of Finance

on average $527 less in premiums in 2020, $830 less in 2021,

Nate Horner and his department, but it is necessary to expand this

and $700 less in 2022. If this benchmark is applied in 2023, this

outreach into local constituencies by meeting with local MLAs.

analysis indicates a premium reduction is required resulting in an average decrease of $430 per household in private passenger auto

If you would like support in scheduling a meeting with your

premiums.

MLA, please contact Joy Jeong at executivedirector@actla.com for copies of supporting materials including ACTLA’s recom-

A consumer-friendly reform package would include legislating

mendations for reforms. With reforms imminent and the need to

the implementation of a 7% profit benchmark and establishing an

ensure the rights of Albertans are protected – the time is now to

Alberta Auto Insurance Premium Stabilization Fund to provide

connect with your MLA.

Fall 2023

15

Submission to the Alberta Automobile Insurance Rate Board 2023 Annual Review July 27, 2023

Alberta Civil Trial Lawyers Association 777, 10339 - 124th Street, Edmonton, Alberta T5N3W1 1-800-665-7248 admin@actla.com 16

The Barrister

The following piece was presented to the Alberta Insurance Rate Board (AIRB) on behalf of the association by Board Chair, Owen Lewis, in mid-August.

Utilizing the actuarial data from Craig Allen, and in collaboration with Keith from New West Public Affairs, ACTLA put together a comprehensive presentation outlining the increased profits of the insurance industry and demonstrating the need for regulation in the auto insurance industry.

Based on our findings, ACTLA made the following conclusions: 1. The seven percent profit target for insurance companies is appropriate if calculated with inclusion of investment income; 2. The effects of Direct Compensation for Property Damage warrant further review; and 3. Recognition of Oliver Wyman's "New Normal" in the consideration of any proposed rate increase.

Our full presentation and written submissions are now available online on the AIRB website, and the executive summary of our submission can be read below. Thank you to Owen, Keith, and Craig for their exceptional and important work.

If you have any questions regarding the FAIR Alberta campaign or the contents of ACTLA's submission to the AIRB, please contact executivedirector@actla.com.

The Alberta Civil Trial Lawyers Association (ACTLA) appreciates the opportunity to participate in the Alberta Automobile Insurance Rate Board’s (AIRB) 2023 Annual review process.

ACTLA comprises legal professionals and represents thousands of Albertans across the province. As civil trial lawyers, we are committed to advancing a strong justice system that protects the civil rights of Albertans. We advocate and work with government in a range of areas including auto insurance, administration of justice issues, and other topics such as legal aid funding.

ACTLA has retained Mr. Craig A. Allen, an independent consulting actuary with extensive experience in the Canadian insurance industry, to conduct a review of the draft Oliver Wyman report and associated historical data. Our submission is comprised of Mr. Allen’s technical analysis and this summarizing foreword which provides additional commentary on Mr. Allen’s findings from an ACTLA perspective.

Affordability is a key issue facing Alberta families. Albertans have seen dramatic increases to their auto insurance premiums since 2018. Along with inflation and rising energy costs, large premium increases for auto insurance have been a major strain on many Albertans who continue to struggle with the ongoing affordability crisis. At the same time as Albertans struggle to afford premium increases, from our analysis, auto insurance companies operating in Alberta continue to experience healthy profits in excess of AIRB benchmarks.

throughout the last number of annual and semi-annual reviews has shown the insurance industry is experiencing significant profits in the Alberta auto insurance market while most cost-drivers for the industry continue on a downward trajectory.

ACTLA believes the seven percent profit target for auto insurance companies is an appropriate benchmark. It should also be noted that profit on premiums is not the primary way insurance companies make money. Insurers hold large sums of capital from which they generate interest and investment income. The seven percent profit benchmark should account for this reality in its calculation.

Since 2020, the auto insurance industry in Alberta has experienced billions in profits in excess of the seven per cent provision.

In today’s climate of rising costs for everything, it is not acceptable for Albertans to be paying higher premiums while insurance companies regularly exceed the profit benchmarks established by the regulator.

With supporting actuarial data included in Mr. Allen’s appended findings, ACTLA wishes to highlight the following findings for the AIRB regarding the most recent review of industry experience from Oliver Wyman: •

For the past three years in testimony to the AIRB, ACTLA has correctly predicted what has occurred in the auto insurance market and advised the rate board not to permit insurance rate increases. We have advised in previous submissions that the effect of increased premiums in the face of leveling bodily injury claims and other costs, and significantly reduced total claim costs due to COVID-19 would either lead to decreased premiums for consumers, or excess profits for insurance companies. Experience Fall 2023

Bodily injury claim costs continue their trend of stabilization and decline From 2015 to 2019, the loss and LAE cost per vehicle for third party liability bodily injury coverage and all coverages combined remained relatively stable, considering general inflation. However, starting in 2020, the loss and LAE cost for "moving" coverages experienced a significant decline due to the reduced vehicle traffic resulting from the COVID-19 pandemic. Additionally, with the implementation of Bill 41, the loss and LAE cost per vehicle for bodily injury coverage decreased, starting from accident year 2021. As a result, this has contributed to a further reduction in the rate of increase in bodily injury claims costs.

17

•

The insurance industry continues to experience significant profits Our analysis indicates industry is expected to achieve pre-tax profits of around $800 million each in both 2022 and 2023, which is higher than the analysis provided by Oliver Wyman. Higher profits under the Allen estimates are due to differing projections for the value of bodily injury and direct compensation claims. These projected profits of 17.6 percent and 16.3 percent respectively surpass the benchmark profit margin of seven percent. To align with the benchmark, a reduction in premiums is anticipated for 2023.

•

Driving patterns have changed effecting accident frequency Until now, there has been understandable concern that the frequency of claims could return to pre-pandemic levels as the population resumes activities interrupted by pandemic-related closures. Our review indicates that changes in working and driving practices are permanent. Any projections which now continue to anticipate a full recovery to pre-pandemic claim frequency should be dismissed.

•

The observed effect of Direct Compensation for Property Damage raises significant and concerning questions In 2022, a notable increase in the frequency of third-party property damage coverage, including Alberta's newly implemented direct compensation system for not-at-fault accidents, has been observed. This increase has surpassed the frequency for collision coverage, which raises questions since both coverages are expected to mirror the overall rate of auto accidents in Alberta. As more than 70% of vehicles in Alberta carry optional collision coverage, the divergence in frequency rates is puzzling. Despite the fact that the average premium rate per vehicle for collision coverage has remained unchanged since 2019, the before-tax profit margin has risen significantly from 10 percent to 29 percent. In contrast, average premium rates for basic coverages such as bodily injury, property damage - direct compensation, accident benefits, and underinsured motorists have seen a steep 20 percent increase since 2019. Interestingly, this increase is much higher than that for collision coverage, while the pre-tax profit margin has only increased moderately from -4% to 15%. These developments warrant further examination and analysis to understand the factors contributing to these trends.

In summary, the most recent Oliver Wyman report continues to demonstrate that claim costs are stable, and in some cases, declining.

Combined with the effects of increases in premiums paid by consumers, the enduring impact of COVID-19 on driving patterns, industry savings associated with Bill 41 and other Government of Alberta policies, that the auto insurance industry in Alberta continues to experience profits well in excess of the AIRB benchmark.

In consideration of the above-described trends, ACTLA recommends the following: •

The seven percent profit target for insurance companies is appropriate if calculated with inclusion of investment income on capital The return on the investment on capital is not included in the seven percent profit on premium calculation. It is our position that this investment return should be included in any assessment of insurance company profits.

•

Review the effects of Direct Compensation for Property Damage One of the primary responsibilities of the AIRB is to safeguard the interests of consumers and to prevent unfair pricing practices.

The observed effects of the Direct Compensation for Property Damage model are concerning from a consumer perspective and warrant further investigation from the regulator.

•

Recognition of Oliver Wyman’s New Normal The AIRB consider the assessment of Oliver Wyman’s “New Normal” in the consideration of any proposed rate increases.

18

The Barrister

Are you using law firm capital to fund disbursements?

Stop hindering the ability to take on new files, manage operating expenses, and invest in growth.

The answer: specialized law firm funding solutions.

Unlike traditional lenders, we fully understand the litigation practice business model. Deferred legal fees, unpredictable file durations and increasingly onerous disbursement requirements result in unique funding challenges that banks cannot address. We can.

Expert search and report funding.

File specific disbursement funding.

Expert Access combines two essential services for lawyers: sourcing

A flexible tool law firms can use to finance any disbursement, on

qualified experts using our proprietary Expert Search tool and

any file, at their discretion. Repayment is deferred until settlement

deferring payment until settlement with no interest for two years.

of the underlying file, perfectly in line with a firm’s cash flow.

BridgePoint not only understand the contingency fee business model better than any bank, their disbursement funding solutions are tailor designed for it, with payments perfectly mirroring my settlement cashflow.

Whatever your practice size or funding needs, we can help.

Learn more and book an information session today: bridgepointfinancial.ca/law-firm-funding | 1 888 800 4966 Consistently Voted Canada’s Top Litigation Funding Company bridgepointfinancial.ca

Raffles Go Better With Coke

By Mark Feehan, Feehan Law Office

W

hen I was a young lawyer (these events occurred in about 1994 to 1996), I did a lot of various kinds of legal cases, including defending criminal charges. One memorable case was that of Ed Brennan. Ed passed away many years ago now, but while he was alive he spent his last years in a wheelchair. He was 60 years old then, but he couldn’t work, and he had no money.

But he did have some ingenuity. He got the idea that he should sit in his wheelchair in a mall and give out tickets to a raffle on a car along with selling copies of his book of poetry, to promote the sales of his book. No one would be the wiser if he let on like the draw was for charity. So he did this, and sold quite a few tickets/ poetry books, but then some keen-eyed prospective purchaser noticed that this scheme seemed to not be related to any particular charity, even though the seller was in a wheelchair, and they were right.

allows for a number of exceptions to this general prohibition.

Specifically, it permits “lottery schemes” provided that they are: •

Conducted and managed by the province in accordance with any law enacted by that province (s. 207 (1) (a));

•

Conducted and managed by a charitable or religious organization in accordance with any law enacted by that province; or

•

Conducted and managed by a person licensed by the province to do so.

You may have suspected this already, but Ed did not fall into any of those exceptions. But then neither did Tim Horton’s. So I took a close look at the provisions in the Criminal Code, and it was

Ed was keeping the profits of course, and had decided that if he ever did make enough money, he would draw a ticket and give away the car, but things never really got that far. The offended keen-eyed observer called the police and they came by and had a look at what it was that Ed was up to. Ed had all the token hallmarks of it being for a charity, including in particular that he was in a wheelchair, but truth be told there was no charity behind his activities, just him, and so of course the police, not knowing what else to do, charged him with running an illegal lottery.

Somehow I got the case. I don’t remember if it was through legal aid or if Ed just came to see me and brought along $500, but I took the case on, and I have to admit that I was quite intrigued by the whole thing. I had watched various lotteries go by in my life to that point, but I had not ever looked behind the surface and examined why this lottery was legal and that one wasn’t (remember those high school students raffling off the Texas mickey? Now that was illegal! But why?)

At the time, many big companies, including Coca-Cola, Safeway, the Edmonton Air Show and Tim Hortons (Roll up the Rim to Win) were running lotteries using the same rules, and the same provisions in the criminal code, as Ed Brennan was, but they weren’t being charged, only he was. In Canada, the Canadian Criminal Code prohibits gaming in general, but section 207 20

The Barrister

clear that it is illegal in Canada to run a lottery where the chances of winning are simply based on random chance that your ticket will be drawn out of the hat (remember the high school kids).

The criminal code makes it clear that it has to be a skill-testing enterprise to be exempt; you can’t win based on pure luck. That’s why you see in these lotteries that the winner has to correctly answer a skill-testing question (usually a simple math quiz).

You also had to give away a free ticket if it was asked for, and without you being a charity (like Tim Hortons is a charity, haha), how do you do that? Tim Horton’s is selling the cups, not giving them away. You have to buy the cups in-store.

So strangely enough, Ed had been doing this correctly.

If you look carefully at the rules of the Roll up the Rim to Win contest, if you send in a letter to Tim Hortons, they will send you back a scratch card that you can use to get a chance at winning a prize, with the same odds, and you don’t have to pay for it.

They will send it to you, for free. That’s a second criteria of an illegal lottery, you can’t sell the tickets, you have to give away free tickets that you can use to take a chance at winning a prize, and you don’t have to pay for them. If you just sell the tickets, that is illegal. But Ed Brennan had been aware of these rules and he followed all the same criteria as any of the big players did.

He gave away the tickets when you bought his book, and he was willing to give anybody that wrote him a letter a free ticket. He also had the requirement that to win you had to correctly answer a skill-testing question. Usually a math question, and Ed followed suit with that requirement. Ed did not fail to notice that people would purchase the book and ticket but would throw away the book, or simply not take it. They just wanted the ticket, they told him. I read some of the poems; I don’t think they were missing anything.

Things looked very promising for us as we headed to trial, but then our luck ran out. We drew a particular provincial court judge who was renowned for never seeing much reasonable doubt in cases he sat on. This particular judge was an old crony of my father’s back in the day, and one day I was with my father walking down the street when we came across this judge and my dad looked at him and said “Jim, I heard something about you the

other day, I don’t believe it myself, but I heard something about you recently." Jim said “What was it Ned?" My dad said, with a straight face, “I heard you actually found somebody not guilty! I didn’t believe it myself, but that’s what I heard!” And this judge gave out an uproarious shout and carried on down the street, chuckling.

So he was our trial judge, and, of course, he found Brennan guilty. But we weren’t done, we headed next to the Court of Appeal (it was a strictly indictable offence, so it went straight to the CA). I was confident in our legal position but I felt that we needed some more horsepower. Clearly, Ed had followed the rules of running a lottery legally, but he was also doing it and keeping the money. It didn’t seem right, but isn’t that exactly what Tim Hortons does?

So I resolved to bring the big players in on this, to tilt the field in our favour a bit, and I wrote several letters to Tim Hortons, Safeway, Coca-Cola, the Air-Show and even the Canadian Manufacturers Association, and some other well-known lottery playing companies in Canada at the time. At first, they just ignored me, but then I sent them a copy of the decision and said this is now the law in Alberta and if it gets upheld by the Court of Appeal, then it is also in Canada, and your lotteries will be illegal too, and you are going to have to stop using them. That got their attention. Apparently I had something like 100 of them all on board by the time we got to the Appeal, at least that’s what the newspaper articles of the day said.

Truth be told, I was really also trying to get some extra money to help pay for the appeal books and the trial transcript. My initial $500 retainer was long ago exhausted. I was hoping these bigwigs would hire me to represent their interests as well. But CocaCola, Tim Hortons, and the Manufacturers all got together and apparently feeling that they needed more horsepower too, hired senior Edmonton lawyer, Jim Redmond QC, (from Fraser Milner at the time), and he was a crusty old walnut. He called me up, or I called him up, and I said are you going to contribute to the appeal books and the transcript from the trial? And he said “Well we’re going to get our own set of appeal books”. I said “Well I have a set here that I’ve already paid for. If you want to give me

Fall 2023

21

some money I can share those with you”, and his response was, knowing that he had Coca-Cola and Tim Hortons backing him financially, “We will make our own way, thanks very much”.

Drat!

So the group including Coca-Cola and Tim Hortons applied for intervenor status in the Court of Appeal, and of course were granted the right to appear and make arguments in favour of having the conviction overturned. I remember that crown counsel on the case was Jack Watson, who himself was eventually elevated to the Court of Appeal.

As it turned out, we didn’t actually get anywhere near argument.

Jack Watson took a look at the law and his opponents (me included, I assume!), and decided he would consent to the conviction being overturned. The Court agreed and that’s how it went; we didn’t have to actually appear and make argument at all.

it’s still one of my favorite stories about my career in law.

It would not be a complete story if I were not to mention that it was very stressful for Ed Brennan. After the Appeal was over he told a newspaper reporter he felt like “he had been financially and emotionally raped”. He was doing it correctly, as was ultimately affirmed by the Court of Appeal, but he was still charged by a couple of cops that did not stop to first consider the law, and also unfortunately he ran across a provincial court judge who convicted him, and made him spend 8 hours in the Remand Centre and then a month on house arrest.

But it exemplifies our jobs as lawyers in a complex world of laws and regulations and imperfect people, that every once in a while we can bring about a little bit of justice, even if we don’t get paid.

I was still out some money of course, for the appeal books, and I hoped that Ed would be able to pay me someday. He had hoped he would be able to go back to the mall and sell his books again, but unfortunately he passed away not long after, and I never did get any more money. For me, it was a wonderful experience, and

22

The Barrister

The Changing Face of Private Mediation

By David Stark Stark Mediation

“There is nothing permanent except change” -Heraclitus.

When mediation was first introduced in the early 1990s. At that time it was largely unknown process and my initial involvement was accidental as opposed to deliberate.

where when parties to a dispute start to agree on some of the issues, start to a reach an agreement, and the parties will work complete or finish the deal. When parties to a dispute go through an interest-based ADR process with open communication, there is a greater chance that the compulsion to complete will be triggered and the case will be settled.

It was so different from litigation. Some lawyers were sceptical of mediation producing predicable results. Still others said what about developing precedents. There was some unspoken fear and also a bit weariness in an unknown process lawyers had not been trained in.

To help set the stage, imagine a world that is just being introduced to the speed of email, and Her Majesty’s post is referred to as snail mail. Telex is recently gone. Many of you will not remember the cumbersome machines of communication like Telex and the early fax machines with the magic fading paper.

Most participants to the process were uncomfortable, to say the least.

In this environment try to imagine how slow it was to book a mediation. One of the first companies to specialize in this process was Canadian Dispute Resolution Company. CDRC would facilitate mediation, by booking a mediation and arranging for the Mediator, the parties to the dispute, and counsel to meet at their office and go through a mediation. There was a bit of a process involved in arranging all this ie, phone calls and letters and faxes.

The writer has been involved, one way or another, with Mediation and other forms of ADR since 1991.

This article is a brief overview of my thoughts about some of the changes that have occurred in the Mediation process and delivery of Mediation services over the last 30 plus years. Some of these changes have been driven by widespread acceptance of mediation in the legal practice. Lawyers have become more knowledgeable of mediation and experienced in its implementation by choice, others have been forced to adapt rather than be left behind. More mediation leads to more expertise, and that in turns leads to more mediation. A great rising virtuous cycle that produces win win results.

Some changes have happened because we know more about communication, group interaction and social psychology. In my experience, mediation draws from many areas including Law, Psychology, and Sociology and produces very predictable results, often resulting in settlements over which the parties have more control.

In my experience parties to a dispute respond with fixed patterns.

In reciprocal gift giving, and tit for tat negotiation processes: if I do something nice, the other party will respond in kind. This is the basis of “Getting to Yes”. When parties start to agree, it produces a phenomenon called, “the compulsion to complete”,

At this point most Mediators carried a legal practice either on their own or with a firm, and Mediation may have been a bit of a side practice that allowed for some of the first lawyer/mediators to have an interesting perspective on the process of negotiation.

Eventually this also changed.

What are some of the changes?

1.

Widespread acceptance of Mediation in most Civil Litigation practice areas.

The general widespread acceptance of mediation, I believe, is based on the fact it helped solve some of the chronic problem of litigation. Litigation is very helpful for parties to discover the rights they have, produce documentation and have parties follow a process guided by the Rules of Court. While these were positives, there was widespread dissatisfaction by the consumers

Fall 2023

23

of litigation (i.e., litigants and their counsel) over the litigation process.

Litigation is costly, time consuming, and the parties become entrenched in positions that prevent them from having meaningful settlement discussions. There is also the unpredictable nature of litigation and the trial process. Over my legal career, I have spoken to a number of lawyers that say” I won cases I thought I was going to lose and have lost cases I thought I was going to win.” How does one advise a client about strategy? Again, in many situations, matters were concluded either just before trial, (by Getting to Yes) or after Trial or an Appeal.

Enter Mediation, an amazing game changer. Some say it was a Sea Change. With the power of a well-trained Mediator, skilled in the process of helping parties listen, discover interests, and explore settlement options other than win/lose or lose/lose (this results when both parties are worse off that before the dispute started). Parties were introduced to the concept of win/win, that cases could settle where both sides felt they received something of value, be it money or something else. It was a revolution to have a long standing dispute settled after one day’s mediation.

2.

Mediation without sufficient information doesn’t allow the parties to make informed decisions in dispute settlement.

litigation produced the documents and mediation brought basictenant listening and the use of open-ended questions to produce the best results.

For example, after all the questioning had finished, undertakings produced, you have received all the expert reports anticipated, and produced your settlement position, it would now be a good time for the parties to think about settlement with or without mediation. With a date for mediation each side gets primed for settlement discussion.

3.

Initially, at least in Alberta, some of the first training programs were run by Mediators who had been trained in mediation and practiced day-to-day as lawyers. Some training was also done by companies that specialized in setting up mediation. Eventually Universities and other organizations started to offer Mediation training. Eventually this led to mediation training programs to be offered by all sorts of organizations. There has been an increase in the number of programs and books on Mediation, and parties could be affiliated with provincial and/or national organizations Mediation training became part of the professional development, and part of the CPLED program.

4.

Mediation too soon is problematic, and so is mediation held too late.Experience and trial-and-error taught that the most effective practice was to pursue litigation and mediation simultaneously:

24

As the demand for Mediators ramped up so did the training programs.

The Barrister

As a result of the unbridled success of mediation, and wide spread mediation training, this led to more specialized mediators with a wider skill set and more resolution tools in the mediation tool kit.

Some firms went so far as to set up a Mediation or Dispute Resolution departments. Some of the lawyers in these departments, after a number of years of practice, would announce their intention to leave their firm and become a full time Mediator. This gave rise to the stand-alone Mediation practice, not supported by a litigation practice, which further reinforced the Mediator’s neutrality. The rise of the stand-alone mediation practice goes a long way to reinforce the notion of neutrality and credibility.

and Estates, Family Law, etc.). Further, due to the terms in most mediation agreements, it is confidential, off the record, and without prejudice. Is a very forgiving process. If the parties go a little off track, nothing is carved in stone, and the Mediator can help get the process back on track.

Books like, “Getting to Yes”, “Getting Past No”, “The Power of a Positive No”, and “Difficult Conversations” allow parties to see how important communication is in conflict management.

Mediation, Arbitration and other ADR processes are found in the

“The change it had to come; we knew it all along” -The Who 5.

Two changes that acted together, more specialization of Lawyers having a mediation practice, and changes in technology, i.e., the internet and other technology lead to the widening development of lawyers with Mediation practices, (it was very easy to advertise) websites, and the development of specialized Mediation panels.

Both of these changes allowed the consumers of mediation services, usually other lawyers, to quickly shop the mediation market place and find a Mediator with the right skill set.

I am a member of two such panels, Canadian Academy of Distinguished Neutrals, or CADN and the BC Mediation Roster. In conjunction with these sites, I have a website, www. starkmedation.ca, that has a number of articles and forms that can be downloaded and used, and a calendar function where you can see at a glance the days I am free and book from my website. Virtual meeting technology received a huge shot in the arm with Covid 19, in that it allowed mediations to continue and in my opinion expand the reach of ADR because now the cost to travel was not a major factor in the decision whether to attend a mediation. There is now a Canada-wide reach, and in some cases North America, the middle east, and Australia.

Insurance Act, and the Fence Line Act, and in many commercial contracts where the parties have ongoing. relationships.

With AI waiting in the wings to be the next big disruptor, are we going to dealing with Settlement Robots? Will AI write briefs and be consulted in the Mediation process? Will mediations be conducted with humans, AI Programs, and Robots programed with the three laws of robotics? There are Online Dispute Resolution forums and companies like Cybersettle, which had a presence in Canada at one time, with a settlement algorithm to allow parties to settle at a distance without human contact, without seeing other parties offers or demands.

I am not sure what the future holds, but I think it is fair to say, Mediation will be with us, in one form or another when ever and wherever companies or individuals (and maybe robots) have a dispute.

Where are We Going?

While this brief article has attempted to show how the face of private Mediation has changed, the Mediation process itself, with the four-stage model, and interest based process has changed less so. There may be more sophistication in the approach of the parties and effective active listening going on. There is greater client satisfaction and compliance in the resolution of disputes, were the parties participate as opposed to having the solution imposed on the parties. I see, where appropriate, heartfelt apologies to the injured or hurt party proffered, now that the Evidence Act has been amended to allow for apologies. This has had a tremendous positive effect on Dispute Resolution.

Mediation has shown that it is a process that is adaptive and inclusive in terms of the disputes that can be resolved and in terms of the practice areas in which it can be used (e.g., Wills Fall 2023

25

Clae Willis

MHA MSc FAAPM CRTWC CCVE CLCP CVRP(F)

An experienced, credible, objective expert; serving all of Canada

Vocational Analysis & Reintegration Services Life/Future & Attendant Care Cost Assessments Forensic Critiques: Reviews & Tasks Assignments

1-877-CARE PLAN (227-3752) clae@bellnet.ca

COURTROOM STORIES

W

VICKI J. EDGAR

hen I was a first year lawyer, I went before the Honourable Chester Misener to

get an interim settlement of an access issue approved.

Justice Misener was renowned as a brilliant Judge who loved to play country bumpkin to toy with unsuspecting counsel. My first appearance before him put me in good stead with him forever.

I was acting for the father of the child at issue and negotiated supervised access to a 3 year old girl. There was counsel for the mother and also the child. Counsel, knowing Justice Misener, all too well, felt I was the one who should speak to the consent agreement.

I was asked politely what our agreement was. When I advised that it was an agreement for supervised access through Merrymont Children’s Centre twice a month for an hour each time, Justice Misener looked at me disapprovingly. Then he quietly said that he was very disappointed in me as a lawyer and that I fell short of the mark. Because everyone knew HE would NEVER order supervised access.

I then equally quietly advised that Justice Misener would probably like to consider the fact that my client had recently been released from prison for sexually assaulting his then 1-year old daughter. The child did not know who he was as she had not seen him in two years and the risk to reoffend was real.

Justice Misener simply advised that he would sign the consent order and thanked me for my appearance. I trembled a bit as I sat down but knew I had won over Justice Misener.

A

s a young lawyer, I had to travel to Goderich to argue a summary judgment matter. I was on for the respondent and was listening intently to the applicant's counsel when the sound of loud snoring startled both of us.

Looking up from my Factum, I was horrified to see that the judge had fallen asleep. Applicant’s counsel looked at the court reporter and watched helplessly as the reporter cleared her throat as loudly as she could to no avail. She then loudly stated that she needed to turn her tape over. Nothing woke the very tired judge up.

The reporter then asked the Applicants counsel to continue. He argued admirably without any response from the sleeping judge.

By the time I stood up, the Judge had been asleep for nearly an hour. I argued my case for about an hour and then sat down. The court reporter shut off her tape and then the three of us sat in the courthouse and waited for another half hour until the Judge woke up.

Without missing a beat, the Judge thanked us for our advocacy and advised that he was going review our Factums and provide us with his opinion as soon as possible.

We walked out of the courtroom confused and somewhat stressed about the outcome. A week later, I received a well written and carefully thought out decision. And of note, the judge complemented both counsel on our eloquence. I suspect he added that as a cheeky reference to the fact that we all know he did not hear a word we said. Justice was however done.

Vicki practises civil litigation with an emphasis on insurance and personal injury law. Vicki has courtroom experience at all levels including the Ontario Court of Appeal and Supreme Court of Canada. She has also been involved extensively with the Ontario Insurance Commission’s Arbitration and Mediation process. Vicki has participated in the Moot Court Program at Western University Law School. She has given in-house seminars to clients on a variety of issues such as the arbitration process and insurance legislation. In addition, Vicki is involved in the horse industry as a breeder and has written several articles in horse publications on sport and liability issues.

Fall 2023

29

COURTROOM STORIES

A

NORM ASSIFF

s a lawyer who loves the courtroom and the adrenaline rush of trial—the late nights, the early mornings, the comradery, the battle—all of it, I got to thinking just how much things have changed over the past 25 years. I reflected on the past decade, and certainly the last 5 years of my own practice where trials are so rare and often non-existent in a particular year of practice. Sad. Nowadays, you have to hope, beg, and pray that all the stars align such that you can get a trial date. As such, the vast majority of my “war stories” come from very early on in my career. While I have spent all of it doing personal injury litigation, I did have plenty of criminal and civil trials that are memorable. I had trouble narrowing this down—I could easily write a book about this stuff.

The most memorable moments are not the wins, but the less flattering and more memorable moments. Thankfully, many of these are not published.

The Elephant in the Room: No Crash, No Cash [The Choucair trial 1999, Veit, J] My principal, Jake Chadi was and still is a brilliant trial lawyer. In this case, we were actually defending (not something we do) a client who was attending his dad’s funeral and caused an accident. He forgot to renew his insurance. This was one of my favorite trials because I basically did nothing. I sat down and listened. Mr. Chadi’s close: “My lady, this is a case of an elephant being hit by a mouse (our client was driving a civic and the plaintiff a large truck). And as they say in the industry, ‘no crash, no cash’.

Mme. Justice Veit agreed. A small award was given. I would detest hearing that phrase for my entire career and knew it would come back to bite me one day, and it did….

Veit, J, Part 2: “No Crash, No Cash” [Chehimi v. Drinkwater, 1999, jury trial, Veit, J].

I begged my boss to allow me to take this thing to trial against my friend Walter Remondini. Terrible idea—in hindsight.

You see, I had already won a few small claims and criminal trials and had a “perfect” record. As a student and young lawyer, I was getting a bit cocky. I was raised to be humble and boy did this trial bring me down to earth. Everything that could have gone wrong did: An old defendant on a ventilator beloved by the jury; a plaintiff who slept in for 3/5 trial days, including my closing statement; the GP failing to attend; 30

a car door that had a tiny scratch on it and the clincher—I brought in the scales of justice to demonstrate to the jury the concept of “balance of probabilities” and it fell to the ground, spilling water all over my notes. I managed to quickly say: “this is how overwhelming the evidence is”—that resulted in a collective chuckle, but a devastating loss/ dismissal.

My first defeat, a few months into my call. Not to worry, Mme. Justice Veit consoled me when we were talking about costs: “Mr. Assiff, you had a tough case and as you know from your other trial, no crash, no cash!” Then she laughed uncontrollably.

I loved Mme. Justice Veit.

Ha! No Crash, With Cash [Monahan v. Edmonton, 2006] This is one of my favorite cases because Judge Skitsko gave my client pretty much everything I asked for and because the bus stopped suddenly, no accident, causing my client’s knee to hit a metal bar. No crash; denial, etc. From Grade 7 to University I always found this annoying—you fall asleep and the bus stops suddenly. Revenge is so sweet.

I wish I showed this case to Mme Justice Veit before she retired.

My Late Dad: Part 1 [2000]: You Need Practice My late dad was a charismatic, well-dressed, no -nonsense man.

A true gentleman. He was always honest. Perhaps too honest. He accompanied me to Didsbury—the first and last time he ever saw me in a courtroom. I was defending a mother who used profanities and threats in a school. My dad in the courtroom made me the most nervous I had ever been in my career. Of course, BEFORE her examination in chief and well after all prosecution witnesses took the stand, my client whispers some new facts in my ear. We get completely rocked. As if I did not feel bad enough, my dad, cigarette in hand, kept repeating: “Boy, you need practice.” The 2 ½ hour ride home felt like an eternity.

My Late Dad: Part 2 [2002 ish]: Your Win is not a Win at All From a young age, I always wanted to impress my parents.

This case was my way of showing my dad that I “practiced” and was now a master of my craft. My client was a cab driver.

My dad was also a cab driver in the 70s and early 80s. I thought, what better case to take on then one with all the papers and TV folks packing the courtroom. My guy, for supposed religious reasons, (apparently unfounded ones) refused to take a fare from a poor blind man because he has a seeing eye dog

The Barrister

COURTROOM STORIES

A

NORM ASSIFF

with him.

My brilliant question to the complainant in cross: “rush Canof trial—the the International Classification of Diseases. s a lawyer who loves the courtroom and the adrenaline late nights, the early mornings, the you identify the accused”.

The courtroom was packed with blind Each was almost a meter thick.

The was comradery, the battle—all of it, I got to thinking just how much things have changed over the past 25ICD years. people and their dogs and all sorts of media… ”no, I cannot”.

I implemented in the DTPR andrare MIR wasnonI reflected on the past decade, and certainly the last 5 years of my own practice where trials are so andand often called for a directed verdict of acquittal and got it.

I felt great confusing and contradicted itself at times.

It was existent in a particular year of practice. Sad. Nowadays, you have to hope, beg, and pray that all the stars align such that until I got home and told my dad about it.

He would not talk to evident that the author of the MIR and DTPR didI not you can get a trial date. As such, the vast majority of my “war stories” come from very early on in my career. While have me foralla week.

Howpersonal could I injury take onlitigation, such a case? even read relying on.

Shelley, J. spent of it doing I didHow have could plentyI of criminal and the civilvery trialsthing that he arewas memorable.

I had trouble go against a nice blind man/ I was taught better than that etc.?

I narrowing this down—I could easily write a book about this stuff. sure did. This is my favorite part of the case (par 140 felt like crap. onwards if you have time). After this trial, I had an even appreciation formoments. the time and effort a trier of fact The most memorable moments are not the wins, but the less flatteringgreater and more memorable Thankfully, many of these Amerey v.

R [2005, Federal Court of Appeal]: Your Loss in puts forth in writing a decision. are not published.

Not a Loss at All Mid-stream, myinfriends askedNo meCrash, to act for the Federal What I have learned The Elephant the Room: Nothem Cashin[The Choucair trial 1999, Veit, J] at trial over the years is that even a win can Court of Appeal on a 3.5M audit.

I did my best and we were be a loss; even a can be a win; never take your parents My principal, Jake Chadi was and still is a brilliant trial lawyer. In this case, we were loss actually defending (not something we do) to a cliactually winning until Rothstein JA (just before he got appointtrial; and always work your hardest and do your best because ent who was attending his dad’s funeral and caused an accident. He forgot to renew his insurance. This was one of my favorite trials ed to theISCC) asked “Mr. Assiff, why and exactly do you want you never landofon lap—even is an extra because basically didme: nothing.

I sat down listened.

Mr. Chadi’s close: “Myknow lady, what this iswill a case anyour elephant being if hititby a mouse to win this appeal?

It appears your clients will be worse off metre of paper! (our client was driving a civic and the plaintiff a large truck). And as they say in the industry, ‘no crash, no cash’. “ [tax-wise]…” For the first time in my career I was speechless. I asked a brief to askaward my clients why exactly Mme. for Justice Veitadjournment agreed. A small was given.

I wouldwedetest hearing that phrase for my entire career and knew it would come wanted the win because I found myself agreeing with Justice back to bite me one day, and it did….

Rothstein. Crazy stuff. (BTW We lost! Yay?!)

Veit, J, Part 2: “No Crash, No Cash” [Chehimi v. Drinkwater, 1999, jury trial, Veit, J].

Sparrowhawk v Zapoltinsky [2012, Shelley, I begged my boss to allow me to take this thingJ]to trial against my friend Walter Remondini. Terrible idea—in hindsight.

Finally, I can talk about a win for a change. This is probably my favorite has ahelped thousands Albertans You see,case I hadbecause alreadyitwon few small claimsofand criminaland trials and had a “perfect” record. As a student and young lawyer, I was hundreds of my clients over the years.

What you probably do not getting a bit cocky. I was raised to be humble and boy did this trial bring me down to earth. Everything that could have gone wrong know about case ison something thatbeloved almost seems did: An old this defendant a ventilator by the like jury;obiter a plaintiff who slept in for 3/5 trial days, including my close; the GP failing in written when fact,scratch it is probably what to the attend; a cardecision door that had in a tiny on it and the resulted clincher—I brought in the scales of justice to demonstrate to the jury the in the win.

I cannot of tellprobabilities” you how many I spentspilling water all over my notes. I managed to quickly say: “this is how concept of “balance andcountless it fell to hours the ground, prepping for this It wasis”—that my 3rd or 4th attempt to bring the overwhelming thetrial. evidence resulted in a collective chuckle, but a devastating loss/ dismissal. issue at hand into a courtroom and attack the Minor Injury Regulation and the Diagnostic and into Treatment Protocols Regulation.

My first defeat, a few months my call.

Not to worry, Mme.IJustice Veit consoled me when we were talking about costs: “Mr. went the had U ofaAtough Medical library made 4 copies of no crash, no cash!” Then she laughed uncontrollably.

Assiff,toyou caseSciences and as you knowand from your other trial, I loved Mme. Justice Veit.

Nore Aldein (Norm) Assiff practices exclusively in the area of Plaintiff personal injury litigaton, helping victims of accidents and negligence. He has done so since 1998. He Ha! No Crash, With Cash [Monahan v. Edmonton, 2006] has appeared at all levels of court in Alberta (Provincial Court, Queen’s Bench and This is one of my favorite cases because Judge Skitsko gave my client pretty much everything I asked for and because the bus stopped the Alberta Court bar. of Appeal) as well as the Court7of Columbia andfound the suddenly, no accident, causing my client’s knee to hit a metal No crash; denial, etc.Supreme From Grade toBritish University I always Federal Court ofRevenge Appeal.isHe an avid soccer fan and has played and coached at many this annoying—you fall asleep and the bus stops suddenly. soissweet. levels over the years. He is a proud father and husband. Mr. Assiff has given lectures to several I wish I showed this case to Mme Justice Veit beforeorganizations she retired. including doctors and lawyers over the years and written numerous papers on insurance and tort law in Alberta.

Norm prides himself in always fighting for the little guy and has had the honour of successfully representing thousands of victims in his career and continues to fight vigorously for individual rights.

Fall 2023

31

COURTROOM STORIES

ROBERT G. BISSETT Edited by R. Travis Bissett

I

am now age 71, on the cusp of full retirement, and I have decided that I have enjoyed helping people in the trenches of their lives, and through it all have truly enjoyed the party. I hope you can all say the same.

Here are some stories as requested.

It Pays to Ask In 1979 I was a newly minted articling student in a firm that encouraged students to meet with clients, handle their own files, and see them through to conclusion. I completed pleadings, document disclosure, and questioning, and wanted to set it for trial in Queen's Bench. Two weeks before the trial I was made aware that articling students were not allowed to wear a gown, and could not act on trials in high court. I attended before the trial Justice in his office and asked if an exception could be made.

He replied that he would permit me to run the trial if another admitted lawyer from our firm would sit with me at the trial. I persuaded an admitted lawyer one year my senior to do so, and was able to run the trial without him saying a word. And we won! It pays to ask.

Hear Both Sides?

As an articling student I represented a client defending an application. After a senior lawyer completed his submission the learned Justice granted the application, at which point, being young and impetuous, I stood and asked the Court respectfully to " withhold judgement until he had heard both sides." Unaccustomed to such tenacity, the learned Justice turned his chair around and while I and the other counsel stood in abject silence for about 2 minutes, one could hear a pin drop in the Courtroom.

I was sure I was going to jail for such insubordination. After what seemed an eternity the learned Justice flipped his chair around, faced me, and replied that he was prepared to hear me now. I proceeded to make my arguments, and the learned Justice reversed himself and dismissed the application. I was elated that I had stood up for my client and been successful.

"Come Back with either the Money or your Toothbrush and Pajamas" Many years ago I acted for a woman who was owed arrears for many years' worth of support. In my mind it was less than $10,000, which was quite a bit back in the 1980s.

Under that legislation one could set a show cause hear32

ing, before a Justice, put the payor on the witness stand and cross him in front of the Justice.

The fellow in this case made a few mistakes, including the revealing that he had purchased a new travel trailer, and had a few recent vacations. The learned Justice was not amused. After my examination and hearing the responses, the learned Justice leaned over to the fellow in the witness box and said "It's about 11:30 and we are going to reconvene at 2:00 pm. I want you to come back with either the money or your toothbrush and pajamas. I'll see you at 2:00." He came back with the money. Funny how that works.

I Don't Claim to be God! As a respondent in an application, opposite counsel asked the learned Justice to take a certain course of action without setting out the legislative authority. The learned Justice replied that he would like to have the authority legislation put forward by the lawyer to confirm not just his inherent jurisdiction, but on what basis in law he was authorized to grant the relief sought. His words were to the effect, "If you want to you can check with Justice [deleted] in the adjacent courtroom, since he thinks he's God and can do whatever he wants, but in my courtroom you need to spell out by what authority I can grant the relief sought." Entertaining to say the least!

Little Deceptions Matter At issue was how much of the increase in value of the farm lands due to inflation the wife should receive, where the wife was mostly not involved in the farming operation.

The first witness called by the Plaintiff wife was a jewelry valuator. He testified that the somewhat large diamond ring was not really a diamond at all, but a cubic zirconia, or a fake diamond.

The wife testified that when she asked him how much it cost, he said it was about the same price as a load of grain, which at that time, was likely true. Unfortunately for the husband, the learned trial Justice was clearly miffed at the husband's behavior in holding out the ring to be a "real diamond", as well as the fact that she only signed the pre-nuptual agreement without ILA on the day of the wedding, that he decided that she was entitled to 45% of the increase in value of the farm lands over the 10 year period.

When I started to suggest to the Court of Appeal that the 45% Trial Court award was punitive because of the fake diamond,

The Barrister

COURTROOM STORIES

ROBERT G. BISSETT Edited by R. Travis Bissett

the Court of Appeal responded that they knew very well why the 45% was awarded at trial and reduced her reward substantially.

The point is that little deceptions and ILA matter!

Innocent Until Proven Guilty I had an older rancher in his 80's come in to do his will.

He said he had a question for me first, and so I invited him to fire away. He asked me if I represented guilty people.

After a moment's pause, I affirmed to him that I never represented any guilty people, that all my client's were white as the driven snow, just like him. He smiled, nodded, and got the message. We proceeded and I prepared his will.

The Tooth Fairy When S. died her only son had predeceased her leaving his widow. But rather than give anything to her, S. chose to leave everything to her own siblings. The former daughter-in-law took umbrage and applied for proof in solemn form. On behalf of my client, I argued that she lacked standing, given that if the will were held invalid, the former daughter-in-law would not have stood to inherit regardless. The learned chamber's Justice said that if the tooth fairy whispered in his ear that there might be something amiss, he had the right to order a trial to clear the air.

any law, but went on and on about what a scum sucking bottom dweller my client was.

After listening for the better part of an hour, I was frustrated and, rightly or wrongly, I started off by saying "My Lord, I want to assure you that my client is not oneof the species of mammals that eats their babies."

The Justice responded with great surprise and asked "what did you just say?" So I repeated the my client was not one of the species of mammals that eats their babies. Shocked, he asked me why I would say such a thing. I responded that I had been sitting here for the better part of an hour listening to opposing counsel rail against my client without offering a single piece of probative or persuasive evidence as to why he should be restricted from having all the normal and usual parenting rights to which a father who pays his support should be entitled The Judge agreed and dismissed the application. I'm not sure if my opening frustrated comment helped or not.

And so we held a trial, the will was upheld and both my client and I were well paid, thanks to the tooth fairy.

Species of Mammals I was acting for the father in defending an application by the mother to terminate his right to see the children. In the application, wife's counsel did not give any specific behaviours, nor cite Robert was born and raised in Lethbridge and has been practicing law at Stringam for many years. He was admitted to the Bar in 1980 and has been continuously practicing law ever since.

Robert has gained expertise in a wide range of legal areas but specializes particularly in the areas of Divorce and Family Law, Personal Injury, Real Estate, Wills and Estates, Municipal Law, Elder Law including Public Guardian, Dependent Adult and Criminal Law. Robert is proud to have survived parenthood to 8 children and delights in considering himself a general nuisance to injustice. When he is not busy with his legal practice, Robert enjoys boating, skiing, motorcycles, golf, traveling and spending time with his wife. He is also fluent in Dutch.

Fall 2023

33

COURTROOM STORIES

JUSTICE ROBERT GRAESSER The Swipe King

I

have often bemoaned the drying-up of non-family civil trials in the Courts. I recognize that this may be more of an Edmonton thing than a Calgary thing. Private arbitrations and mediations offer a speedier and less costly alternative to obtaining a final resolution in civil disputes. As a result, most of my “memorable” cases over my 17 years as a judge have been criminal matters. An exception to that is Foote Estate (2009 ABQB 654).

The story of a successful Edmonton barrister turned entrepreneur led me into the fascinating but arcane world of domicile.

Few judges in the 20th Century, let alone the 21st Century, have been treated to a lawsuit where the leading cases are found in the English Reprints. It has the potential to be a television series along the lines of the Waltons and Little House on the Prairie in a Gilligan’s Island setting, with shades of Peyton Place.

The mid 1960s saw Eldon Foote as a senior partner in what is now Bryan & Company. Mid-life saw him leave his wife and family of 5 children for a seductive paralegal. The family was rescued by a friend and client who was involved with a new “multi-level marketing scheme” – Texas based “Swipe”. Swipe was an industrial engine degreaser and cleaner used mainly in the oil patch. Its inventors found that it could be diluted into useful household products and it became a competitor to another cleaning product organization, Amway. The way these schemes worked was to get housewives to market products to their friends and neighbours. The products were standard household products like detergents and cleaners, the things every householder bought every time they went to the grocery store.

The purchasers would be encouraged to set up their own network of marketers, so the initial purchaser might sell products to a dozen people, who might in turn each sell to a dozen of their friends and neighbours, and so on down the chain. Everyone would benefit from their own sales, as well as all the sales in levels below them in the pyramid.

Eldon’s friend persuaded him to join him in buying the rights to Swipe for Australia and Japan. That meant leaving Edmonton to begin the colonization of Australia.

One of the friend’s objectives was to reunite Eldon and his family. Reconciliation resulted and the family left for Sydney. The story has all the makings of 34

a TV show. I heard testimony from first wife Lois and the children as to them spending most of their waking hours in Sydney putting together marketing packages to be distributed to potential purchasers. A happy family working together in the growing family business.

The business took off in Australia. A woman had been recruited to start Swipe in Japan, which had not previously been introduced to household multi-level marketing, and it caught on very quickly there too.

Within a year, Eldon and his partner were among the top vendors in the Swipe world. They were offered the opportunity to introduce Swipe to Europe. The older Foote children came back to Canada for university, and the younger children were put in boarding schools, and Eldon and Lois headed for Paris and Geneva. Unfortunately, Europe turned out to be a disaster, as France and Switzerland considered these kind of enterprises to be illegal.

Eldon had to retreat back to Australia.

At a family holiday after shutting down the European operation, Eldon announced to Lois and the assembled children that he was leaving them again, this time for Val, the head of Swipe Japan.

From a business perspective, Japan was the home run. At its peak Swipe Japan had over forty thousand Japanese housewives involved in the enterprise. Swipe was credited with liberating Japanese women from household work. Money poured in. Eldon found that Norfolk Island, a former convict island a thousand miles east of Sydney in the middle of the Pacific Ocean, was not only a tropical paradise but also a tax haven. He and Val built a mansion Foot Nort, where they holidayed and entertained friends and associates. Foot Nort also became a place for reconciliation between Eldon and his children.

Sadly for Val, who was instrumental in the success of the Japanese operations, Eldon had found Anne, a New Zealander whom he met in Sydney. Val was banished (literally) from Japan, and Eldon and Anne settled into a comfortable life going between their places on Norfolk Island, Sydney Australia, Victoria BC, and business in Tokyo and Hong Kong. The Foote fortune was safely invested in the Caribbean, and all that was left for a happy retirement was the sale of the Swipe business. It was eventually sold to the Dutch cake maker Sara Lee (I haven’t looked at the ingredients on their packages to see what Swipe products have been added to their cakes and pastries).

The Barrister

COURTROOM STORIES

JUSTICE ROBERT GRAESSER Ultimately, Eldon wanted to move back to Canada.

He had never sold his cottage on Pigeon Lake near Edmonton, although he had not been there in decades. He had usually come back to Edmonton in the fall when he and his sons went hunting. Eldon and Anne purchased a condo in Victoria and had spent a couple of months there for several summers. Two of Eldon’s children were in Victoria. Anne wasn’t so keen on Canadian winters and was apprehensive about moving to Canada. She had grown to love Norfolk Island and had purchased property there in case life in Victoria didn’t work out.

Final complications to moving back to Canada were the sale of Foot Nort, and the sale of a fitness business Eldon had started on Norfolk Island. Foot Nort was the grandest place by far on Norfolk Island and Eldon had invested significant money in it.

Non-Norfolk Islanders could not buy property, and there was no market on Norfolk Island for Foot Nort. Eldon had approached Richard Branson and others regarding setting up a business there, without success. He concluded that he would have a better chance selling it if he could also sell a Norfolk Island business, so he bought a fitness facility and was working to turn it into a successful, saleable enterprise.

Unfortunately, before that could be completed, Eldon was diagnosed with cancer. He rushed back to Edmonton to be treated at the Cross Cancer Clinic (to which he had generously donated) but he died within a couple of weeks of returning home.

Eldon had three wills: his Norfolk Island will, his Alberta will, and his “worldwide will”. He had told his wife Anne that there wasn’t much in his will for widows and orphans. He was true to his word. Most of his $US250 million fortune was divided between the Edmonton Community Foundation and the Lord Mayor of Melbourne’s Charitable Fund (the Melbourne equivalent to the ECF). He and Anne had already donated substantial sums to charitable causes in Edmonton and Hanna, Eldon’s home-town.

The U of A’s football field is named for them: Foote Field.

All of the wills provided that if a beneficiary challenged the will, they would lose any benefit from the will. The children, joined by Anne, brought an application for the determinition of domicile. That would determine the law relating to dependents’ relief. There were three choices: Norfolk Island, Victoria BC, or Alberta. Alberta law is favourable to widows, but not friendly to non-dependent children. Norfolk Island is governed by Austra-

lian Law (New South Wales) but appeared to be a bit of a wild card. BC was the home run for the children: their estate legislation recognizes “moral claims”, making it difficult for someone domiciled in BC to disinherit their children.

The first fight before me saw the Estate and the two charities oppose any application in Alberta, saying the appropriate forum was Norfolk Island. I rejected that argument (at 2007 ABQB 654) finding a close connection to Alberta (Eldon was born here, died here, and had property here). I also recognized the reality that Anne and the children had won the race to a court house by filing here in Alberta first. There were some significant consequences to Alberta being the lex fori but I won’t go into them here. For conflicts aficionados check out the decision.

The domicile fight was then on. I heard all about Eldon’s life, his relationships with his mistress and his three wives, his relationship with his children, his life on Norfolk Island and in Japan, and about Swipe. All of his ex-wives testified, as did his children.

Val’s children were included in the claim, as Eldon had adopted them. I heard from friends who had visited them on Norfolk Island. I heard video evidence from a couple of witnesses who testified from Norfolk Island. In those days, it was rare to have trial testimony through video-conferencing.

Anne and the children argued that Eldon never lost his Alberta domicile, as he always spoke of Alberta as “home”, he came back to hunt with his boys every fall, donated money to innumerable causes in Alberta, and kept his cabin; in the alternative, they said that if he acquired Norfolk Island domicile, he abandoned it with his certain plan to move back to Canada for his retirement.

He implemented that plan by purchasing property in Victoria, spending his summers in Victoria, selling his Swipe business, and putting Foot Nort up for sale. The final alternative was based on a 19th Century English decision that held a man reacquired his English domicile by “going home to die”, which the family said is what Eldon had done.

I found that Eldon had abandoned his Alberta domicile when he built Foot Nort and was very careful at the time to cease to be a Canadian resident for tax purposes. There was a several year period after he married Val when Eldon did not return to Canada at all. I found that he had voluntarily acquired Norfolk Island domicile and had not yet abandoned it.

Fall 2023

35

COURTROOM STORIES

JUSTICE ROBERT GRAESSER He was not going to sever his ties to Norfolk Island until he had actually sold everything there and carefully planned his re-entry to Canada for tax purposes. He had not done enough to complete his plan to moveback to Canada.

As for coming home to die, I found that Eldon had come home to live, as he felt that he would get better medical care here than on Norfolk Island or in Sydney. He had no idea he was dying, until after he got to Edmonton and was fully assessed at the Cross. He had no choice but to stay.

As a result of my ruling, family relief claims had to be decided in Australia. Anne and the children appealed my ruling, but the Court of Appeal found at 2011 ABCA 1 that I had made no egregious errors (damned with faint praise!). A leave application to the Supreme Court was denied.

My ruling on costs , 2010 ABQB 197 (giving Anne and the Children solicitor and client costs despite losing), made news in Melbourne, as I was critical of the two charities for their request for solicitor and client costs against Anne and the children.

Ultimately, I learned that after some legal wrangling in Australia, the matter settled.

Professor Annalise Acorn, the U of A’s conflicts professor, had me speak to the class about Foote Estate when it came time for her to teach domicile. My decision covered the waterfront with all of the twists and turns of that case. She would introduce me and it, referring to the decision as the “leading case” on domicile. As far as I can tell, it’s the only case on domicile, at least in the 21st Century.

For me, though, it remains one of my favourite trials.

Mr. Justice Graesser was appointed as a judge of the Alberta Court of Queen’s Bench in December 2006. In August 2020, Justice Graesser elected supernumerary status. He remains active in that capacity.

Before his appointment, he practiced law with Reynolds Mirth Richards & Farmer LLP and its predecessor firms for over 32 years. He received his Queen’s Counsel appointment in 1996 and his Chartered Arbitrator designation in 2005. As counsel, he appeared in all levels of court, including the Supreme Court of Canada. Throughout his legal career, he taught law at the University of Alberta in the faculties of Extension, Business and Law. In the Faculty of Law, he lectured on construction law and employment law.

Justice Graesser’s interests include sailing, cycling, traveling, reading and music. A former bassoonist with the Edmonton Symphony Orchestra, he met his wife Brandy Goody through music. They have two sons, Michael (a chiropractor in Calgary) and Paul (a social worker in Calgary), and five grandsons.

36

The Barrister

COURTROOM STORIES

CONSTANTINE PEFANIS There was bad blood between the Dufresnes and the Baxters.

They were neighbours, living side-by-side in a Calgary cul-desac. Street parking was at a premium as is often the case in a cul-de-sac. The Dufresnes, being the bigger family consisting of husband, wife, and their four teenage children, were the more gregarious of the two, regularly hosting get-togethers running all day into the night. This was a bone of contention with the Baxters because vehicles would clog up the cul-de-sac while they lay sleepless in bed from the noise next door.

Not only were Frank Baxter and his wife not well-rested, it was upsetting to them that a had to make frequent turns and adjustments when backing from the driveway to navigate past the vehicles parked in front. If the Dufresnes gave a damn, it certainly didn’t show as their music blared late into the night.

I puffed my chest with pride though I didn’t yet know what this was all about. I beamed as I reached out to shake their hands. I was Mitch’s man? Right! I’d do it, whatever it was.

But oh boy, Darryl was putting me on a pedestal with that introduction. Would I meet expectations? Yes, sure I would.

This is what I trained for, after all. I brushed away doubts like crumbs off my shirt.

Mitch told his story.

The fence separating the properties was not high enough. Words flew over it. “Keep your f’n cars outta my way!”, and “I’m gonna put my fist through that stereo if you don’t turn it off!” a red-faced Frank Baxter would shout. The Dufresnes would yell back. Their oldest son, 19-year-old Mitch Dufresne, was particularly vocal. “What’s your problem, a**hole?” he’d say raising a middle finger, “better shut your mouth!” Exchanges like this grew in frequency.

Their feud was not limited to slinging words. The Baxters had a large sloppy dog. The Dufresnes, who had no pets of their own, found dung of mysterious origin in their back yard. The Baxters returned home to soaked-through lawn furniture and a dripping barbecue even though it hadn’t rained. The Dufresnes discovered their vehicles covered with rotting food scraps, maybe from rummaging racoons, maybe not. Three or four shattered eggs slowly dripped down the Baxters’ siding. And when members of the two families happened to be outside at the same time, clashes were certain as a crack follows lightning. One time, words escalated to a shoving match between Frank Baxter and Mitch Dufresne. They were separated before fists could actually fly.

Each swore that the other had started it.

I knew none of this until one morning when my principal, Darryl Raymaker, called me into the boardroom to meet Mitch Dufresne and his parents. Back then I was a young, naïve, and eager new lawyer, having been called to the Bar only a month before.

“Constantine, I want you to meet my good friends, the Dufresnes,” said Darryl. Turning to them he added in a loud

voice that carried to our firm’s lobby, “Constantine’s a prince of a lawyer. I taught him everything he knows.

Mitch, you’re in great hands. Constantine’s your man!”

“So I’m working as an usher at the Saddledome. We’re playing Edmonton, right? Yeah, it’s always a good game. I’m leading people to their seats, all is good.

“Then, I see my neighbour Frank Baxter coming down the hall,” Mitch continued. “I hate that guy. But I’m not going to do anything, right? I’m just standing there as he walks towards me. Then he sees me. He’s got a stupid smirk on his face. He’s walking, then he angles over and bang! He hits his shoulder into me as he walks by. Oh sorry, he says, as if he didn’t mean it.

Then he laughs and walks off to his seat.

“I think to myself, he just assaulted me. That’s illegal you know, Mrs. Foster taught us that in Law and Society. So I follow him to his seat and politely tell him that he can’t assault game staff, it’s against the law, and he’s got to leave the Saddledome.

“He flicks his hand at me. He doesn’t move. I tell him again, but he just sits there. So I go back and I find a couple of cops. I tell them what happened and that this guy won’t leave. I lead the cops back to his seat. I tell him okay, now the cops are here, you’ve got to leave. The cops make him stand up, then they escort him down the hall and kick his ass out! Serves him right, he shouldn’t have bumped me.

“So, now it’s a couple of weeks later and I’m chillin’ at home.

There’s a knock on the door. I answer. It’s this lady who says she’s got some papers for me. I’m, like, what do you mean?

She gives me this envelope and I open it. It’s from that jerk next door. He’s suing me for wrongful confinement! Can you believe it? I don’t know how he can do that, ’cuz he hit me!”

Fall 2023

37

COURTROOM STORIES

CONSTANTINE PEFANIS

Mitch thrust a crumpled Originating Notice towards me. Sure enough, Baxter had filed a civil suit alleging that Mitch abused his position by kicking him out of the Saddledome, with an escort of two policemen who made sure Baxter could go nowhere other than the exit door. The Notice said this constituted the tort of wrongful confinement. A hearing was scheduled for next week.

I was to defend Mitch Dufresne in court! I’d gotten the odd sub service order before, but this was the first time I’d have to present an argument of any real substance. I would have to persuade a judge that Mitch Dufresne was the victim here, not that scoundrel Baxter.

Mitch and his parents shuffled out, leaving me and Darryl in the boardroom. Darryl Raymaker QC, my boss, mentor and idol, was a legend in the profession. He’d seen and done it all with style and panache. He was the Frank Sinatra of lawyers. A folk hero, an impossible standard, the best lawyer I knew and ’til now have known. He leaned back in his chair and narrowed his eyes.

“What do you think, Constantine, you up for this? Ready to take on a case of wrongful confinement?”

“Yes sir!” I yelped.

“Swell. Kid, this is your chance to give ’em a show they’ll never forget. Step up to the plate and swing for the stars. Be confident.

Remember, it’s not just what you say, it’s how you say it. If you believe it yourself, they’ll believe it too. Now get hopping. Hit the road and make your mark.”

The next days went quickly. Though the hearing was always on my mind, there were other things that needed attention. Phones to answer, letters to write, lunches with classmates, newspapers to browse, shopping to be done and maybe some cufflinks in case I ever got the right kind of shirt. Amidst it all I visited the courthouse library. I skimmed through several plainbound volumes, searching the law on wrongful confinement.

"Aha," I said upon discovering a case that looked about right. "An oldie but a goodie. This will help." I absorbed it, wearing out my yellow highlighter.

Now well versed on the law of wrongful confinement, I approached Michael Kiss, an associate with whom I liked to swap ideas, or at least, commiserate. We 38

were about the same age, but Mike’s experience at the criminal bar gave him an edge in advocacy. “Talk to the judge like you’d talk to me,” suggested Mike. “Be folksy. Use stories. They like that,” he said. I furrowed my brow and nodded thoughtfully.

I spent a restless night before the hearing. My argument was written in a notebook left over from bar ads, but it swirled through my head as I lay fidgeting in bed. Wrongful confinement. That was the tort I had to disprove. I wasn’t sure of the stakes but vaguely believed Mitch’s liberty was at risk.

Should I call the judge “My Lord” or “My Lady”, or was Sir or Madame better? How about my hands, should I punctuate my argument or just hold tight to the podium? Smile, or serious and straight faced? I deliberated these things and more. Eventually, sleep came.

I woke up the day of the hearing. Full of nervous excitement, I rushed through my morning routine. Picked out a tie. Ironed the parts of my shirt that would show. Put on my jacket. Rubbed scuff marks from my shoe. Grabbed my bag, and ran outside to catch the bus downtown.

The door to the courtroom was still locked when I got there.

The clerk hadn’t realized the gravity of this hearing, I thought, annoyed. No matter. I sat cross legged with my notebook open and went over my notes.

Soon, my opponent arrived together with Frank Baxter. Baxter was a tall, thin, balding man, with dark almost-black eyes that were set too close together. He fixed these on me and scowled, figuring I must be Mitch’s lawyer. Good thing Mitch stayed home, I thought, or Baxter’s simmer would have been a fullblown boil. Mitch didn’t have to be there, as the hearing was scheduled to be heard on affidavit evidence alone. I was glad Mitch wasn’t around. Baxter’s presence had already made things tense, and it needn’t be any worse.

I looked from Baxter to his lawyer. This was a man named Clarke, known for his slow, measured, ponderous speech. Perfect for me to flex my folksy style against. Clarke would one day get his own QC, but then and there, I thought him a lightweight because my research showed that he never should have framed his client’s case as one of wrongful confinement.

The doorlatch rattled as the clerk opened it from inside. We entered the courtroom. Clarke and his client went left, I went

The Barrister

COURTROOM STORIES

CONSTANTINE PEFANIS

right. I nervously spread my notes on the table in front of me and waited.

A rear door opened. I swallowed, hard. “All rise, the Honourable Justice Dennis G. Hart presiding!” said the clerk.

Hart! What luck! Not only was Justice Hart a fraternity brother of my principal, Darryl Raymaker, but this was the very same justice who had called me to the bar only the month before. His reputation was that of a no-nonsense, stern and demanding judge under whose gaze more than one lawyer had wilted. He had the gravity of the bench, which he wielded like a hammer. But surely he remembered the nice things Darryl had said about me a few short weeks ago, and come to think of it, Justice Hart had said some nice things as well.

“Proceed, Mr. Clarke,” said Justice Hart to my opponent.

Clarke stepped to the podium and began. He explained in detail how my client, Mitch Dufresne, harboured a grudge against Baxter and couldn’t wait to get the better of him. He described the events at the Saddledome, leading up to Baxter’s unceremonious dump at the exit. Clarke emphasized that Baxter was marched by the police straight out of the stadium, one on each side. He was unable to stop for the bathroom, or to call his wife, or even to tie his shoelace for Pete’s sake. That was humiliating and an affront to his dignity, let alone that he missed a good game. Clarke argued that Dufresne had orchestrated the whole thing, culminating in Baxter’s wrongful confinement as the two officers forced him to leave the stadium.

I could see Baxter nodding vigorously in my periphery whenever Clarke hit his highlights. Baxter’s eyes even glimmered with moisture when his lawyer described his march from the Saddledome.

Clarke sat down.

Hart’s gaze turned to me. “Mr. Pefanis. Your response?”

I stood and approached the podium. “Well, here we are Your Hon–…My Lord, um, I mean Sir…in the case of Baxter versus Dufresne. An interesting case, if I may say so, given your leave.”

I smiled, hands gripping the podium.

“Wrongful confinement,” I said. “Let’s examine that. For a wrongful confinement, you need two things. One. There has to be confinement. The definition of confinement is…,” looking down at my notes, “the state of being confined. My Lord, this is

important because it’s an essential element of the tort. So essential that it’s even in the name.” I paused to let that sink in. “The second element is that the confinement has to be wrongful. It can’t be rightful. It’s called ‘wrongful’ confinement, right?” I smiled again.

“Let’s put these two important words together to see where we end up.

“You’re at a barbecue, and you notice that a sausage is missing.

There was four there, but now there’s just three. You blame Charlie the dog. But it’s your cousin who pinched the sausage, you just didn’t know it. So, not knowing, you yell git! Charlie Boy, and make that poor dog go to his kennel. Then you lock him in. What do we have? There’s confinement, because you locked him in. And its wrongful, because Charlie didn’t pinch the sausage, it was your cousin done it all along. That’s a wrongful confinement. Charlie can’t go anywhere, and you were wrong (begging your pardon) for blaming him in the first place.

In this case, Charlie Boy could sue you (begging your pardon) because all the elements of a wrongful confinement are there.”

“The dog can sue me?” said Justice Hart.

“You bet!” I exclaimed, warming to my argument. “And Charlie Boy would win, too! Let me explain using a case you might find interesting. It’s the earliest case I could find on wrongful confinement, so it’s the one that leaded all the others. Gilmour versus the RCMP, from 1872. Gilmour was accused of stealing Fenwick’s prize goat. The RCMP went and got him, and put Gilmour in jail, just like that,” I said. “Gilmour said he didn’t do it, and it was a mangy goat anyhow that he’d never steal in a thousand years, but no one believed him. So there he sat. Just before they decided whether to give him hard labour or just lynch him on account of his age, Father Ben from the town parish came along with the prize goat in tow, surprising everyone! Father Ben said he’d found it munching on some grass on the far side of Fenwick’s creek. Turns out the goat had gone for a wander, just to see what it was like over there across that creek, and Gilmour had nothing to do with it. He hadn’t persuaded that goat or anything. So they let Gilmour go.

Gilmour was understandably upset, seeing how they had locked him up – confined him – and the confinement was wrongful because he never stole that goat at all, just like he had said all along. He sued the RCMP. The court found both elements of the tort were established, so they had to pay Gilmour

Fall 2023

39

COURTROOM STORIES

CONSTANTINE PEFANIS

$10 plus a week of tobacco, and the RCMP ended up with egg all over its face. “Now, let’s contrast that to Mr. Baxter at the Saddledome. Was he confined? No, he wasn’t, because the Saddledome does not have a jail or anything resembling one, far as I know. So how could he be confined? He was not.

Rather than confining him – that is, putting him in a place where he was boxed in on all four sides – they were getting him out. He had a way forward! He wasn’t confined at all!”

I whooped, triumphantly.

Justice Hart shifted a couple of papers around on his desk. He sat back in his seat. I noticed him moving his jaw, almost like he was chewing. He seemed deep in thought. I stood there, waiting.

“Mr. Pefanis. I’ve listened carefully to what you’ve said but I have a question. Is it your position that Mr. Baxter’s situation is the antithesis of a wrongful confinement?”

Antithesis? I didn’t know what that word meant. If I had ever heard someone say “antithesis” before that day, it wasn’t when I was paying any attention. But now Justice Hart was asking me if Baxter’s situation was the antithesis of a wrongful confinement, and I had to give him some sort of response.

I looked at him for clues. Justice Hart looked back. His face gave away no hints on what the right answer to his question might be. I paused, knowing instinctively that with his question, Justice Hart had got to the very crux of my argument.

Well, he had seemed receptive up until then, and I thought I connected with him with my story about the sausage. I remembered the good things he had said at my bar call. Now, I thought, he must be nudging me to put the cherry on the sundae when asking if this was the antithesis of a wrongful confinement.

Though I didn’t know what he meant, I grew increasingly sure that he wouldn’t have asked if he thought I was on the wrong track.

“Why yes, My Lord, you’ve got it exactly! It’s the antithesis of a wrongful confinement!” I declared, punctuating this with a sharp nod. Justice Hart leaned forward, looking down at me over his glasses. “Counsel, that’s the most ridiculous thing I’ve ever heard. But carry on,” he said, rolling his eyes while dropping his pen with a clatter.

With a profound sinking feeling, I knew my ship had foundered, tipped its bow to the sky and disappeared beneath the waves.

“Oh, wait, did you say ‘antithesis,’ My Lord?” I stammered.

“I must have heard you wrong. No, no, of course it’s not the antithesis, it’s the exact opposite of antithesis,” I pleaded, but the damage was done. I sloughed through the rest of my submissions knowing that Clarke, sitting triumphantly beside me, had stopped taking notes.

I had to tell Mitch about it afterwards. I relayed how Hart’s decision, which was to find Mitch liable for wrongful confinement for which he had to pay damages of $500 plus costs, came down to a very technical and hard to explain point of law. I told Mitch about the intangibles that are always present in court.

“You really should have been there. Things would have been different if he had a face to the name,” I said.

What became of our litigants? Mitch Dufresne grudgingly paid his fine. A couple of years later he joined the police force. One night he fired his gun at what he claimed to be “night stalkers,” but turned out to be a coyote doing nothing other than minding its own business by the side of the road. I don’t know what became of him after that. As for Frank Baxter, he never did cash Mitch’s cheque, but mounted it on his kitchen wall instead. He remained a miserable wretch, turning into the proverbial old koot that would shake his fist at kids stepping too close to his lawn. One day he broke some fingers in his right hand when struggling with a pop machine that wouldn’t discharge his soda. I understand he hired Darryl, who got him a whopping sum.

With over 27 years as a personal injury lawyer, Constantine has a great deal of experience helping people injured in motor vehicle collisions, slip and falls, pedestrian collisions and other accidents. He cares about his clients. It is important to Constantine that he be approachable, practical, candid and an empathetic human being.

He is an avid reader, an aspiring photographer, enjoys a good movie, canoeing mild whitewater (but nothing too crazy), and west coast salmon fishing. Most importantly, Constantine is proud to be a husband to his wife of over twenty years and a father to two wonderful boys.

40

The Barrister

COURTROOM STORIES

WALTER KUBITZ, K.C Story 1 Many years ago when we could get a judicial mediation at the courthouse in an injury matter, we had a multi-party matter involving numerous plaintiff and defence counsel. We dutifully filed our briefs and showed up in the large courthouse boardroom waiting for the Justice to enter. In due course, the Justice entered, looked at us and said, “I’ve read your briefs and I don’t think I can help you as you’re too far apart.” The Justice then left the room. One counsel looked around at our stunned faces and said, “Now that the major impediment to settlement has left, let’s discuss this matter.” We then settled the matter between ourselves without the Justice’s involvement.

Story 2 I was acting for a wife in a family law matter and was about to question the husband. I asked the usual initial question, “You’ve taken an oath to tell the truth today. Will you tell the truth?” The husband leaned back in his chair and answered, “What is truth?”

I knew then that no matter what the husband said, his evidence would have very little weight. We were able to resolve the matter on terms favourable to my client.

Story 3 I had a client who had injured his left middle finger in a sideswipe car collision driving down Deerfoot Trail when his left hand was knocked off the steering wheel and hit the side window. His job involved manual labour and this injury affected his ability to use a shovel to dig. The defence adjuster called me and asked, “What are the injuries?”

I said, “Hold your hand away from yourself with a palm facing away from you. Lower your first, second, fourth and fifth digits”. The adjuster did so, and then exclaimed, “Walter!” He later asked, “How does this affect his function?” I answered, “It’s obvious. He can no longer drive down Deerfoot Trail during rush hour.”

Story 4 I acted for a lady who had a severe burn to her left heel. The defence lawyer did not like my client and my client did not like him. At questioning, they were getting a little bit snarky with each other. The defence lawyer asked if my client had attended at a particular doctor’s office. His next question was, “Were your feet with you?” I thought to myself, “No, she obviously mailed them in and stayed home”.

Walter W. Kubitz, KC (King’s Counsel) is a senior Calgary lawyer who is well known and recognized in the area of personal injury and wrongful death litigation. a Walter was born and raised in Calgary, Alberta. He graduated from the University of Calgary Law School in 1987, and has been a lawyer since 1988. Walter has extensive experience in litigation, negotiation and judicial and private mediation. He is ranked as “consistently recommended” in the Canadian Legal Lexpert Directory, which is based on an extensive annual peer survey.

Walter has served as the President of the Alberta Civil Trial Lawyers Association and as the President of the Canadian Bar Association Personal Injury Section. He has served on numerous board and other volunteer positions in the legal profession and in the community. He regularly mentors other lawyers and has spoken at numerous legal conferences.

Walter was appointed a Queen’s Counsel on December 31, 2010. The appoint ment by the Lieutenant Governor of Alberta recognizes Walter’s “loyalty, integrity and ability”, and appoints him “to be One Of Our Council Learned In The Law For Our Province of Alberta”.

Walter is married to Carmen and they have three children.

Fall 2023

41

ACTLA MEMBERS, MEET ERICA ENSTROM

Co-Owner and Managing Director, British Columbia & Alberta

Erica is known for building strong, lasting relationships based on mutual trust and solid advice. She works transparently and honestly to connect assessment and rehabilitation allies. With over 20 years experience in the medical assessment industry, she is a court-qualified medical legal expert, clinical consultant, and evaluator in the areas of functional capacity and cost of future care.

t 403.621.1179 e erica@integraconnects.com

OUR SERVICES Our core assessment services include:

Our core consultation service include:

• • • • • •

• • • • • •

Independent medical evaluation Psychological and neuropsychological assessment Vocational rehabilitation evaluation Functional capacity evaluation In home assessment Cost of future care assessment

THE INTEGRA WAY

Integrity

We are a business that places integrity at the foundation of how we work.

Expert opinion review and responsive opinions Expert testimony preparation and delivery Clinical triage of complex medical issues Brief medical review of standard of care and causation matters Cognitive functional assessment File Reviews

Learn more about our capabilities and our roster of experts and professionals at www.integraconnects.com

Support

We understand our role supporting, guiding and advising throughout client relationships.

Accountability

We are focused on trust-based relationships that deliver transparency and fairness.

WE ARE HERE TO GUIDE AND SUPPORT YOU t 403.621.1179 e erica@integraconnects.com w www.integraconnects.com CALGARY | EDMONTON | KELOWNA | VANCOUVER | TORONTO | HALIFAX

An insured property owner who suffers damage or loss of the property – for example, due to fire or flooding – will normally turn to their insurer for coverage and indemnification to assist in rebuilding. If the insurer denies coverage, however, the lack of insurance funds may delay the insured’s efforts at rebuilding, and in the case of a commercial property, may also result in loss of revenues.

While property insurance policies often provide that an insured must act with diligence in rebuilding as a condition of receiving indemnity, courts have held that an insurer may not be entitled to invoke delay against the insured to reduce or avoid indemnity, either for replacement costs or lost revenues, where the insured lacked funds to carry out the rebuild due to a denial of coverage that is later found to be without justification. Punitive damages are unlikely to be awarded in the absence of bad faith by the insurer; however, courts have sometimes allowed pre-judgment interest on the basis that the insurer had the use of the money while denying coverage, and therefore suffers no prejudice from such an order.

building, the insurer may not be able to resist or reduce payment on the basis of delay. A leading decision setting out this principle is Olynyk v Advocate General Insurance of Canada, [1984] MJ No 80, 32 ManR (2d) 171 (QB), affirmed [1985] MJ No 91, 33 ManR (2d) 234 (CA). The insured’s property was destroyed by fire in suspicious circumstances, although ultimately it could not be established that the insured was involved in the arson. The insurer had argued that she was entitled only to the value of the property at the time it was destroyed, which was $28,000. The court held that the insured was entitled to the replacement costs up to the limits of the policy, which was $75,000, and dismissed the insurer’s objection based on lack of diligence in rebuilding: 17 […] an insurance company which wrongfully repudiates the contract and refuses to make any payment at all cannot defeat the claim of the insured to be indemnified against the costs of actual replacement simply because the insured has not exercised due diligence in getting on with the rebuilding. The breach by the insured is overshadowed by the much more basic breach by the insurer. In this case the repudiation by the insurance company, however understandable, turned out to be unjustifiable, and it is very much a smudged finger which the company points at the insured for delaying the decision to rebuild. It is not inequitable that an insured person who has paid the premium set by the company for replacement indemnity should be able, when the risk materializes, to have a fair opportunity of deciding what to do in the light of the funds which will be available. Complete repudiation by the insurance company cripples the anticipated freedom of action of the insured.

Leading Authorities In Insurance Law in Canada (Toronto: Carswell, looseleaf, at §11:5), the authors discuss the requirement for an insured to exercise due diligence in rebuilding in order to claim replacement costs: Although replacement cost endorsements provide customers with better protection, they are not necessarily free of problems. […] problems have arisen out of insurers' typical requirement that payment for replacement depend on actual replacement (or repair) having been made and that it has been done with due diligence. Provisions such as these may create a catch-22 for a customer if s/he is unable to finance the repairs without insurance money.

In practice, insurers often pay actual cash value before the work is done and then make further payments to meet additional bills. But it seems that the insurer can meet its obligation by merely undertaking to pay on completion of the work because with that undertaking the customer can obtain credit to finance the work. But if the insurer refuses to pay for other reasons, such as an allegation of arson, that turn out to be invalid, the insurer cannot defeat the claim for replacement cost on the ground that the customer failed to exercise due diligence. […].

[Emphasis added] Cases have affirmed that where the insurer’s unjustified denial of coverage has meant that the insured lacked funds to carry out re-

44

[…]

19 In the present case, having deliberately sought and obtained replacement coverage, the insured has been compelled, because of the refusal to pay on the part of the defendant insurer, to undertake several years of litigation to establish that she has any right whatever under the policy. The company has shown no more diligence about performing its obligation to indemnify than she has in taking steps to replace. I am not prepared, therefore, to infer from her lack of diligence that she has abandoned the expectation, on the basis of which she contracted, of replacing the building. I have therefore concluded that her delay has not dissipated or negated her entitlement to rebuild. [Emphasis added] In addition, the court found the plaintiff was entitled to indemnity

The Barrister

for lost rental income, up to the maximum period contemplated by the policy: 23 […] Rental recovery, according to the policy, is limited to "such length of time as would be required with the exercise of due diligence and dispatch to rebuild, repair or replace ..." and that period commences with the date of destruction and is absolutely limited to 12 consecutive calendar months from that date. In the ordinary course, a period of four or five months would be adequate. However, having repudiated liability under the policy, the insurer cannot demand that the rental loss be restricted to an arbitrary and fictional four-month period. Accordingly I have concluded that the plaintiff is entitled to the rental loss for the maximum period of 12 months contemplated by the policy, namely $4,200. [Emphasis added] However, the court did not consider that pre-judgment interest should be awarded, given the highly suspicious circumstances of the fires, which warranted judicial evaluation of the matter: 26 The plaintiff sought prejudgment interest on the sums awarded. I do not consider that the case calls for the award of such interest. Although the insurer has failed to meet the high demands imposed by the jurisprudence, the circumstances gave rise to such grave suspicion that the case required subjection to critical examination in a public forum. […]

The Olynyk decision was followed in another interesting decision, Smith Building and Development Ltd v Wynward Insurance Group, 2021 SKQB 54, [2021] SJ No 92, affirmed 2023 SKCA 57, [2023] SJ No 178. The insurer’s denial of coverage after a fire destroyed the insured’s commercial building was based on a material change in risk argued to result from the fact that the insured had rented the premises to a motorcycle club which the insurer alleged was affiliated with Hell’s Angels. That allegation was not proven at trial, and the court similarly rejected the insurer’s argument that the

45

Fall 2023

insured was not entitled to replacement costs due to a delay in rebuilding: 48 All of this aside, it ill lies in the mouth of the insurer to rely on a failure to rebuild when the failure to provide coverage has effectively kept the necessary construction funds out of the hands of the plaintiff. Were this as the insurer has submitted, an insurer would potentially avoid paying replacement coverage simply by always denying a claim advanced. Their denial then becomes a self-fulfilling prophecy on the inability to rebuild. This is not the way insurance coverage is intended to be applied. Based on the evidence presented here, I decline to apply it in this case. [Emphasis added] The court in Smith Building also held that the insured was entitled to indemnity for one year of lost rental income, the maximum under the policy. The insurer had argued against that compensation on the basis that the insured had not offered to rent any of its other commercial premises to the displaced motorcycle club, which indicated it recognized the undesirability of that tenant and would not have re-rented to them in any event. The court again pointed to the insurer’s own conduct as an obstacle to accepting that argument, and the likelihood that the insured would have found other tenants: 53 In addition, very quickly after the fire the plaintiff learned, in no uncertain terms, this insurer was declining any risk associated with this motorcycle club. Indeed, the defendant cancelled all of its outstanding insurance contracts with the plaintiff. As a result of that, it appears disingenuous for the defendant to now suggest the plaintiff was recognizing the error of its ways. It had been told this rental was not acceptable.

54 Furthermore, the evidence does not permit me to conclude, on a balance of probabilities, the plaintiff would have been unable to rent its other premises to a third party. As this is so, the plaintiff

45

would have lost out on the one year's rental by renting to the motorcycle club. This would result in its very real loss of rental revenue being ignored. [Emphasis added]

this judgment has dealt with the evidence. Indeed, it could have done much more. Its lack of diligence is not considered to be malicious or high handed. The word "negligent" likely more appropriately fits here.

Finally, the court held that although the insurer’s conduct in poorly investigating and denying the claim was open to some criticism, it was not so egregious as to offend the court’s sense of decency and warrant an award of punitive damages. Solicitor-client costs were similarly denied; however, the court did allow pre-judgment interest, though provided no explicit reasons for that award: 125 […] the test for punitive damages is much more rigorous than merely an insurer failing to properly do its investigation, or even improperly concluding to deny coverage for a loss. It is conduct which is malicious, oppressive and high handed. It is conduct such as to offend the court's sense of decency. It is behaviour deserving of punishment. It is, and should be, available only in exceptional cases.

126 I have determined this is not one of those clearest of cases, offending the court's sense of decency. […]

That the insurer was wrong in its determination to deny the claim has been determined by this judgment. That it could have done more, and a more effective, investigation, is also an undercurrent that runs through these reasons.

And, that it perhaps ought to have seen the shortcomings in the extent of its investigations can be taken from how

127 There is nothing in those shortcomings which suggests either misconduct or a need to punish the defendant. The clear tenor of the evidence, to the court, is the insurer was honestly concerned about the nature of this motorcycle gang and that honestly, but mistakenly, held belief resulted in the denial of coverage.

There is nothing to suggest it was being malicious or oppressive. [Emphasis added] On appeal, the trial judge’s conclusion concerning entitlement to replacement costs despite the delay in rebuilding was expressly affirmed: 2023 SKCA 57 at paras 113-114, [2023] SJ No 178.

A similar approach was adopted in the Alberta case of 319107 Alberta Ltd v New Hampshire Insurance Co, [1993] AJ No 315, 9 Alta LR (3d) 151 (QB). The insured’s hotel was destroyed by fire. Under the insurance policy, the insured was required to effect replacement with "due diligence and dispatch” in order to be entitled to indemnity for replacement costs. Following the fire, the plaintiffs learned that they would not be permitted to rebuild due to a land-use bylaw. They therefore sought to purchase a new property, but the insurer took the position that the purchase would not fall within “replacement costs”. Attempts to bring the ques-

S|M Bespoke The finest custom suits for men and women Perfectly fit custom shirts, waistcoats, trousers.

Made-to-order knitwear. Handcrafted custom shoes.

S.M Bespoke is your destination for exquisite men’s and women’s garments and shoes.

Discover the difference custom tailoring can make.

Visit our showroom Tuesdays and Thursdays from 11 a.m. to 2 p.m.

smbespoke.ca | 780-722-0237 9880 Jasper Ave N.W, Edmonton, AB

46

The Barrister

tion to trial to obtain a resolution of that dispute, which ultimately favoured the insured, took several years. The court rejected the insurer’s argument that the delay should bar the insured’s claim to the full replacement cost:

valuable consideration and upon which he has relied.

An insurer is required to engage in some kind of meaningful dialogue with an insured seeking information as to what will be covered under the policy.

Three principles which emerge from the cases cited above are applicable to the issue of due diligence in this case.

One is that the insured should have had a "fair opportunity of deciding what to do in the light of the funds which will be available" (Olynyk). The second is an extension of the statement in Olynyk that refusal to pay any sum "cripples" the anticipated freedom of action of an insured: outright refusal on the part of the insurer to agree to pay the full sum when confronted with a specific proposal to purchase a replacement hotel similarly impaired the ability of this insured to effect replacement. A third principle is that the insured, faced with a disputed interpretation of coverage, would be foolhardy to go ahead with a purchase (Foley). […]

It is true that there is no express term in the contract requiring the insurer to consult with the insured concerning what constitutes replacement under the contract. However, the business reality is that it would be imprudent, and sometimes impossible for an insured to replace an item or building worth large sums of money when there is uncertainty as to whether he will be reimbursed by the insurer. The insured has contracted and paid the required premium for an endorsement which will permit him to fully replace his loss, up to the policy limit. It is therefore reasonable to imply terms which facilitate or enable the insured to make use of the replacement cost endorsement for which he has given

Thus an insurer may not rely on lack of due diligence of an insured in replacing a loss if the insurer has failed to cooperate with the insured in a substantive way to determine whether a proposed replacement might or would qualify under the contract. This would include consulting with an insured concerning whether a generic type of replacement, such as an existing hotel, or a specific proposed replacement, such as the Barrhead Neighborhood Inn, would qualify under the contract. If an insurer wrongly informs the insured that a replacement does not qualify, failure of an insured to follow through with that replacement cannot be construed as lack of due diligence. [At p 8 (QL), emphasis added] On the question of pre-judgment interest, the court distinguished Olynyk, noting that the decision with respect to interest in that case turned on the fact that the insured’s conduct was highly suspicious and the insurer was justified in litigating the issue.

Although the policy in 319107 did not entitle the insured to payment until replacement actually occurred, which on the facts had been significantly delayed, the court noted that the insurer had, during the period of delay, had the use of the money, and thus would suffer no prejudice from being required to pay pre-judgment interest. The court relied on s. 2 of the Judgment Interest Act to award interest from the date at which the insurer’s conduct gave rise to a cause of action.

Olynyk was also followed in 3764525 Manitoba Ltd v CGU

Fall 2023

47

Insurance Co of Canada, 2004 MBQB 95, 183 ManR (2d) 13, affirmed 2006 MBCA 35, 205 ManR (2d) 19. The court in that case determined that the principal of the insured company was involved in the arson that caused the explosion destroying the property, and therefore dismissed the insured’s claim to indemnity. However, the court also set out what its reasoning as to damages would have been, had it found the insurer liable on the policy. The insured would have been permitted to choose from replacement costs at present day value, or cash value at the time of fire, with pre-judgment interest being allowed only in latter case:

breach. [Emphasis added] In O'Byrne v Farmers' Mutual Insurance Co, 2012 ONSC 468, [2012] OJ No 2056, affirmed 2014 ONCA 543, 121 OR (3d) 387, the principle established in Olynyk was applied to a claim for coverage for costs of repairing damages caused by oil leaking from a furnace. The insurer denied coverage on the basis of a pollution exclusion. At trial, the exclusion was found not to apply, and the insurer’s argument that the insureds had not carried out repair work with due diligence was rejected:

140 I, too, am prepared to accept this approach and, in fact, would enlarge somewhat on the reasons of Scollin J. and comment that there is in fact no breach at all by the insured of its policy obligation to exercise due diligence in getting on with rebuilding, in the face of a wrongful repudiation by the insurer. That obligation only comes into force when there exists, in the words of Scollin J. "a fair opportunity of deciding what to do in the light of the funds which will be available". That opportunity no longer exists in the event of repudiation. It is not a question then of a breach by the insured being overshadowed by a much more basic breach on the part of the insurer; rather, the unjustified repudiation is the only

44 The position of Farmers' is that the plaintiffs' failure to perform the work bars recovery by the O'Byrnes. Mr. Forget's position was that even if the O'Byrnes were impecunious, and so unable to effect the repairs, that is irrelevant.

The contractual bar to recovery is absolute. […]

47 I […] conclude that, to paraphrase Insurance Law in Canada and Olynyk, the refusal of Farmers' to pay means that Farmers' cannot rely upon the failure to effect repairs to defeat the O'Byrne's claim to damages based on replacement cost. [Emphasis added] The decision in JILM Enterprises & Investments Ltd v INTACT Insurance, 2017 ONSC 357, [2017] OJ No 436 applies the principles from Olynyk, but also goes further on the particular facts of that case to award the insured damages beyond the policy limits, based on a finding that the insurer failed to act in good faith and was in breach of contract for denying coverage and persisting in investigating the fire as a suspicious fire long after police had concluded to the contrary. The insured sought indemnity from the insurer for the cost to rebuild, lost profits and punitive damages after its hotel and restaurant building were partially destroyed by fire. The court found that it was reasonable for the insurer to delay payment of indemnity for one year while it conducted its investigation, but there was no justification for the addition two years it waited before paying out the actual cash value of the property, and doing so was a breach of contract:

Linda Jensen, LL.B., B.C.L., LL.M. PHONE: ( 403) 6 8 8 - 2 11 9 linda@bottomlineresearch.ca

RESEARCH AND COMMUNICATIONS

48

The Barrister

68 Within five or six months of the fire, INTACT did not have much to go on to support arson. Nevertheless, INTACT, through Mr. Bourett, continued down that path. Based on my review of the adjuster's reports, I conclude that Mr. Bourett was not "balanced and reasonable" but, in fact, adversarial. Even as late as his discovery in September 2010, Mr. Bourett was adamant that the investigation was ongoing. This was notwithstanding

the opinion of the second adjuster on the file, Mr. McKay, that the causation investigation had been concluded by the spring or early summer of 2010.

70 I acknowledge that, where grounds exist, an insurer is entitled to conduct an appropriate investigation.

How long the investigation will take will depend on the circumstances. […] I accept that in these particular circumstances it was within reason (but close to the limit) to delay the decision to pay for one year. The ACV payment therefore should have been available to J.I.L.M.

by May 2010. I find that the failure to pay until almost two years later is a breach of the contract. [Emphasis added] Based on this finding, the insurer was required to indemnity the insured for replacement costs up to the policy maximum, less the amount it had already paid out as the actual cash value (ACV) of the property. However, taking note of the increase in construction costs that had occurred over the period of time that the insured was forced to delay construction because the insurer would not accept the new location as a “replacement”, the court increased the replacement cost limit under the policy by 3% for each year of delay. At the same time, the court noted that once the ACV was paid out, the insured had the funds to commence reconstruction, and the failure to do so at that time was a failure to mitigate (at paras 75-76).

ed for indemnity for a period of 12 months after the fire, but held that damages outside the policy were warranted, and awarded compensation for lost profits for the entire period of delay attributable to the insurer’s unwarranted denial of coverage (at paras 82-85). The court also found that punitive damages, assessed at 10% of the ACV that should have been paid, were warranted based on the insurer’s breach of its obligation of good faith. In particular, the court was influenced by the insurer’s conduct in persisting in attempts to prove arson in the absence of any credible reason to do so (at paras 87-94).

Conclusion As these cases illustrate, the insured’s obligation to proceed with diligence in rebuilding its property will generally not be found to prevent indemnification where the insured’s delay in carrying out construction resulted from an unjustified denial of coverage. In assessing the overall compensation owed, including pre-judgment interest and punitive damages, courts will be particularly influenced by the reasonableness of the denial of coverage. Conversely, however, courts also remain alive to any continued delay by the insured once financial or other obstacles have been removed, and are likely to take such conduct into account in considering whether there has been a failure to mitigate.

With respect to lost profits, the court noted that the policy provid-

Fall 2023

49

Case Law Corner HERNIATED DISC RESULTS IN 1.4 MILLION FOR FUTURE LOSS OF EARNING CAPACITY

By Priscilla Cicek

In a recent decision in British Columbia, published April 11, 2023 and referenced as Pidwerbesky v Brunetti, 2023 BCSC 556 (CanLII), we are going to review the future loss of income capacity in which the Court awarded $1,457,193.00 to the claimant under this head of damage.

The claim involved a young female Plaintiff who was 32 years old at the time of the collision which took place on December of 2018. The Defendant vehicle ran a red light causing the claimant’s vehicle to strike it in a t-bone type crash. The impact was severe, causing the Defendant vehicle to roll-over.

Prior to the collision, the claimant was an active, happy and motivated individual who was in good health and had no physical limitations. She worked in medical clinics doing administrative work, and transitioned into a senior leadership team assistant at a local hospital. Her interest in the medical field grew, and returned to school to become a licensed practical nurse with intentions of becoming a registered nurse. Just prior to the collision, in fact, the claimant had registered for an 18 month LPN Program. Her goals were to pursue a Bachelor of Science in Nursing Degree.

The claimant sustained a permanent disability in this crash. The key injuries suffered by the claimant was a herniated disc at L5-S1 causing severe low back pain in which two surgeries for repair were unsuccessful. This specific injury has rendered the claimant completely and permanently disabled from working.

The arguments raised at trial by the defence related to causation of the herniated disc. The Defendants argued, that, on the basis that the herniated disc is caused by the collision, the value of this claimant’s claim is in the range of $550 to $660K in total.

The Plaintiff’s position regarding quantum for loss of future 50

The Barrister

earning capacity alone was $2.4 million. The Court awarded $1,457,193.00 under this head of damage primarily because it accepted the contingency that there was a 75% likelihood that the claimant would be able to return to part-time, sedentary work in her field.

The Court was of the view that the motor vehicle collision was the sole cause of the claimant’s herniated disc and awarded a total of $1,793,168.47, the breakdown of which is noted below: Non-pecuniary Damages Past loss of Income Future loss of income earning capacity Cost of future case Special damages In-Trust Claim Total

2.

3.

4.

5.

$220,000.00 $90,301.68 $1,457,193.00 $17,110.00 $3563.79 $5,000.00 $1,793,168.47

Ploskon-Ciesla v. Brophy, 2022 BCCA 217 at paras. 7 – 10 Dornan v. Silva, 2021 BCCA 228; Rab v. Prescott, 2021 BCCA 345; Lo v. Vos, 2021 BCCA 421; Kringhaug v. Men, 2022 BCCA 186

Steinlauf v. Deol, 2022 BCCA 96; Dornan v. Silva, 2021 BCCA 228;

There were two competing reports from Occupational Therapists. The Court accepted the OT evidence of the Plaintiff for the following reasons: 1.

2.

3.

• •

Less able to compete; Less valuable to herself as a person capable of earning income in a competitive labour market; Less marketable; Less attractive as an employee to potential employers.

The Court concluded that there has been a significant impairment of the capital asset in this case. The Claimant will no longer be able to pursue her education to become a registered nurse. She is unlikely to ever work full time. Therefore, the test that must be established, that there is a real and substantial possibility of a pecuniary loss, has been met.

The cases references to establish the third step of the relatively likelihood of future events or contingencies are: 1.

2.

The functional limitations noted are:

• •

Future loss of income earning capacity Referenced cases that identify the approach under this category are noted below: 1.

that in the Defence OT assessment, there was evidence that the Claimant did not meet all the strength demands of a LPN other than “light” duties.

The Defence OT did not reassess the Plaintiff after the second surgery; Second, there was a Physiatry assessment after the assessment of the Defence OT. The said Physiatrist opined that the Claimant was wholly impaired from most life activity.

Finally, the opinion by the Defence OT that the Plaintiff may work in her capacity of LPN (which was based on evidence of self-report, was inconsistent with the fact that the Claimant had actually stopped working as an LPN as a direct result of the injuries. The Court also indicated

In determining the value, the Court needs to assess the relative likelihood of future events or contingencies. We will extract the arguments raised by both counsel: Plaintiff Arguments •

• • • • • • • • •

Had intentions of pursuing higher education and definitive plan for career path – and income for that path should be used to assess this loss; LPN education would have completed, allowing her to work full time by as an LPN in Jan 2020; Two years as an LPN would have followed; Four years Bachelor of Science would have followed after that for an RN; Would have worked as an RN until age 65.

Claim for 10% in overtime pay in each year; Claim for 10% in other premium pay; Claim for Municipal Pension Plan as contributions would have continued.

Claimant is competitively unemployable in any capacity as a nurse Claimant is competitively unemployable in any other capacity, including sedentary work.

Risk only contingencies and choice contingencies were discussed.

What is the difference between these two contingencies?

Risk only contingencies: account for the probability that a BC female will be forced into unemployment or part-time work

Fall 2023

51

Choice contingencies: account for a person choosing not to participate in the workforce. This type of contingency may not apply in situations where one can prove that the Claimant was committed to their career and have continued to work and that a Claimant would not have “voluntarily” left the work force.

Defence Arguments • • • • • • • • • •

•

The Claimant would not have pursued a Bachelor of Science in Nursing degree; Would not become an RN (as she was doing her LPN at age of 32) therefore unlikely; Would not have returned to school at 36 for a 4 year program; There is no evidence to suggest she would have gained admission into such a program; Should deduct both Risk and Choice contingencies; The Claimant has demonstrated a good work ethic and motivation; The Claimant has significant administrative experience and skills; No expert has expressed the opinion she will never work again; There are routinely available for workers in the health sector of sedentary job with accommodations; There is evidence that the administrative jobs the Claimant has had in the past in the health sector have paid about 75 percent of an LPN position.

Defence position is that the award under this category should be in the range of $327,500 and $433,000.

This decision offered very detailed reasons by the Court which stated that the defence analysis does not adequately reflect the impact of the claimant’s functional limitations and guarded prognosis.

The Court used the earnings approach.

Below, is the analysis of the Court which is a good read: [132] I will start my analysis by assessing Ms. P’s likely without-Accident future earnings.

[133] In my view, there is a real and substantial possibility that Ms. P would have achieved an RN degree in accordance with the timeline posited by her counsel, but the likelihood she would have done so is far from certain. I accept that she is a hard-working, motivated, and determined person, and that she has the intellectual capacity required to complete a nursing 52

degree. However, she is also realistic and practical, as reflected in her decision to start with an LPN diploma because of a concern about making the four year commitment to become an RN, which would have required her to incur significant student loan debt.

[134] I am doubtful that Ms. P could have worked more than the odd shift as an LPN while also completing the degree. Ms. S, who is a clinical instructor of nursing degree students, testified that it would be very challenging to work part-time as an LPN and also complete the degree requirements. It is very likely that Ms. P would have had to incur significant student loan debt to complete the degree and, given her age, there is a real and substantial possibility she would have decided against doing that. This conclusion is also supported by the evidence of Mr. W who identified Ms. P’s age and the cost of education as barriers to her retraining.

[135] There is no evidence in the record on which to assess the likelihood of Ms. P getting into a degree program, but it is reasonable to infer that gaining admission is not a certainty.

Accordingly, even if she was prepared to incur the cost, there is a real and substantial possibility that she would not have gained admission.

[136] In all the circumstances, I assess the likelihood that Ms. P would have completed a degree in nursing and become an RN had the Accident not occurred, at 25 percent. I am satisfied that absent the Accident there is a near certainty that Ms. P would have completed the LPN program by late 2019 and started working full time as an LPN in January 2020.

[137] I am satisfied that it is a near certainty that but for the Accident, Ms. P would have chosen to work full time to age 65, would have taken advantage of some overtime opportunities and opportunities to earn premium pay, and would have remained a member of the MPP. I accept her evidence about her commitment to work in general, and in the health care sector in particular. She has proven herself to be a committed and hard-working person, who valued her career. There is very little chance she would have voluntarily pursued a different type of work or left the workforce. In all the circumstances, I am satisfied that when assessing her without-Accident capacity it is necessary to apply risk-only contingencies. In my view, it would not be appropriate to also apply negative-choice contingencies unless positive contingencies associated with future promotions are also applied. I am also satisfied that it is necessary to include an additional amount of earnings for overtime and other premium pay, but it is not reasonable to quantify this at 20

The Barrister

percent each year solely on the basis that this is the amount she earned in 2021.

[138] Ms. C’s methodology was not challenged by the defence. Given the findings outlined above, it is appropriate to assess Ms. P’s without-Accident earning capacity by starting with Ms. C’s estimates for the LPN to age 65 scenario, adjusted for risk-only contingencies but adding only a total of 10 percent for overtime and premium pay, and then grossing that up by 25 percent of the difference between that amount and the estimates for the RN scenario, but including only 10 percent for overtime and premium pay, to reflect the 25 percent likelihood that Ms. P would have become an RN. [139] Ms. C’s estimate of without-accident future earnings (base pay) with risk-only contingency deductions in the LPN scenario is $1,330,405. I add 10 percent, or $133,041, to reflect the overtime and premium pay; Ms. C’s estimate of the net present value of the loss of MPP benefits in the LPN scenario adjusted for risks only which I calculate at $222,887 ($267,805 – $44,918); and Ms. C’s estimate of the net present value of the loss of CPP benefits in the LPN scenario adjusted for risks only which is $64,189. The sum of these amounts is $1,750,522.

To that I add $131,260, which is 25 percent of the difference between that amount and Ms. C’s RN scenario but with only 10 percent for overtime and premium pay (($2,275,563 – $1,750,522) X .25), to reflect the 25 percent likelihood that Ms. P would have become an RN. On this basis, I assess Ms. P’s without-Accident capacity at $1,881,782.

[140] I turn now to Ms. P’s with-Accident, or residual, capacity.

[141] As I have said, I accept Ms. P’s evidence about her commitment to work in general, and in the health care sector

in particular. She is a dedicated and hard-working person with initiative, who places a high value on a career. I am satisfied that she will be motivated to work, even with some ongoing pain. From the evidence of Ms. E and Ms. S it is apparent that she is highly regarded by her colleagues. Mr. W acknowledged that accommodations are routinely available for workers in the health sector. It is apparent from Ms. P’s evidence that casual and part-time positions are available in the health sector. In the circumstances, I am satisfied that opportunities to work will be available to Ms. P if she is physically capable of working.

[142] The expert evidence overwhelmingly supports the conclusion that Ms. P was not capable of working, in any capacity and to any degree, at the time of the trial. Dr. C opined that as at the date of his second report (July 6, 2022, two months after the second surgery), she was completely disabled from nursing and also not able to work in any job. After the first surgery but before the second, Dr. G expressed the opinion that Ms. P was no longer competitively employable as an LPN full time and was unlikely to be competitively employable full time in the future. At that time, he suggested it might be best for her to upgrade to an RN or find a job in home care or other types of nursing that do not require heavy lifting or repetitive bending.

However, when he reassessed Ms. P two months before the second surgery but after the MRI showing a recurrence of the herniated disc, he considered her wholly impaired from most life activity. Ms. W’s opinion, expressed following a reassessment about six weeks after the second surgery, was that Ms. P no longer met the minimum functional capacity to work in any competitive occupation in a full or part-time capacity, including sedentary work.

[143] The more difficult question is whether there is a real and substantial possibility that Ms. P’s condition will improve enough to allow her to work to some extent. I have found that

Fall 2023

53

there is a real and substantial possibility that she will experience some improvement in her condition by about May 2024. No expert expressed the view that she is unlikely to ever be able to work again. She returned to the LPN program about six months after the first surgery. It is clear she was not able to meet all the physical demands of nursing on a sustainable basis at that time, but she was able to work to some extent. In June 2021, Ms. W’s view was that she could manage full-time work in a flexible, sedentary job. In March 2022, Mr. W’s view was that she would likely be able to obtain and maintain casual shortterm administrative employment. In July 2022, after the second surgery, Dr. C’s view was that she probably would remain “permanently significantly disabled due to her chronic pain” and not able to return to working as an LPN or in any position with similar physical requirements, but he did not rule out sedentary work. This evidence satisfies me that there is a real and substantial possibility that her condition will improve enough to allow her to work in a flexible sedentary job on a part-time basis.

[144] Determining the likelihood of that outcome is very difficult. However, because of Ms. P’s motivated nature, I assess the likelihood to be relatively high. In all the circumstances, I find that there is a 75 percent chance that by about May of 2024,

Ms. P will be capable of half-time, flexible, sedentary work.

[145] I turn now to quantifying that residual capacity in dollar terms. As mentioned, there is evidence that the administrative jobs Ms. P had in the past in the health sector paid about 75 percent of an LPN position. Ms. C estimated the future earnings of an LPN, including pension benefits, but excluding overtime and premium pay, at $1,617,481. From this, I conclude that a full-time, sedentary, administrative position in the health sector would generate future earnings (including pension benefits) of about $1,213,110 (75 percent of $1,617,481). If Ms. P worked half time, that would generate future earnings of about $606,555. I have found that there is a 75 percent chance that Ms. P will be capable of earning at this level by about May of 2024.

In all the circumstances, I assess her with-Accident earning capacity at 70 percent of $606,555, or $424,589, to reflect the 75 percent likelihood that she will return to this capacity, the delay in her getting there (to about May 2024), and the likelihood that she will have future periods of unemployment due to pain flareups.

[146] A comparison of Ms. P’s likely without-Accident future earning capacity ($1,881,782) and her likely with-Accident earning capacity ($424,589) leads me to assess her damages for loss of future earning capacity at $1,457,193.

Case Law Corner is the personal blog of Priscilla Cicek. Any views or opinions represented in this blog are personal and belong solely to the blog owner and do not represent those of people, institutions or organizations that the owner may or may not be associated with in professional or personal capacity, unless explicitly stated. All content provided is for informational purposes only. The writer makes no representations as to the accuracy and completeness on any information. Legal advice should always be sought.

We’re here to help you grow.

Services offered Malpractice Standard of Care Assessments Personal Injury Functional Capacity Evaluation/Cost of Future Care Wills & Estates Capacity Assessments Criminal Independent Psychiatric Evaluation Employment Return to Work/Disability Assessment Family Psychological Assessment

Receive expedited access to the best expert assessors in the country, when and where you need it.

Viewpoint court-qualified experts are credible, highly experienced and well respected in their fields.

Contact us today at 1-877-462-4216 ViewpointWest@vp-group.ca 54

The Barrister

CLIENT-CENTRED. SOLUTION FOCUSED. ALWAYS DEPENDABLE.

YOUR TRUSTED PARTNER FOR IME SERVICES Supports Designed For You: Responsive staff that keep pace with your busy practice Subject matter experts providing quality recommendations for all cases 24/7 access to your files with our secure web portal and booking system Scheduling support: Examinee appointment scheduling and automated appointment reminders, diagnostic testing services and more

CONTACT US TODAY - intake.ab@nyrc.ca | (780) 229-5200 | nyrc.ca VANCOUVER

|

EDMONTON

|

CALGARY

|

TORONTO

|

MONTREAL

|

POINTE-CLAIRE

|

HALIFAX

For quite some time, The Barrister has presented case updates to readers in the form of the Alberta Weekly Law Digest (AWLD) roundup. Recently, our AWLD roundup contributor Roy Nickerson retired and Thomson-Reuters stopped the publication of AWLDs. Thank you to Roy for his efforts in preparing the digest, and thank you to Thomson-Reuters for their assistance in publishing the digest.

With that in mind, we would like to thank JSS Barristers for their generous offer to republish select entries from their quarterly case law review newsletter going forward. If you have questions or concerns, please contact communications@actla.com.

DISCLAIMER: No part of this database, and the contents therein, may be reproduced without the prior written consent of JSS Barristers. JSS Barristers and all individuals involved in the preparation and publication of JSS Barristers Rules make no representations as to the accuracy of the contents of this database. This database, and the contents herein, are provided solely for information and do not constitute legal or professional advice from JSS Barristers or its lawyers.

RICK BALBI ARCHITECT LTD V CONDOMINIUM CORPORATION NO 0824320, 2023 ABKB 241 (FEASBY J) Rule 3.26 (Time for Service of Statement of Claim) The Appellant applied in Application Judge’s Chambers for Summary Dismissal of the Action on the grounds that it had been added as a Party after the expiry of the relevant limitation period. The Application was dismissed, and the Appellant appealed.

Justice Feasby considered whether the limitation period had expired prior to service, being the two-year limitation period under the Limitations Act, RSA 2000, c L-12, plus the one year for service provided by Rule 3.26.

The issues alleged in the Statement of Claim were first discovered in late 2014. Reports were obtained from consultants in the fall of 2015 indicating potential liability. The Statement of Claim was filed in September 2016, and was amended to add the Appellant in October 2018. The Amended Statement of Claim was served on the Appellant in November 2018, a little more than three years after the delivery of the reports from the consultants.

Justice Feasby held that there was some evidence that the Respondent had exercised reasonable diligence in attempting to learn the proper Parties to the Action. He found that such steps may not have been possible until after the other Parties defended, which would have been some time after the claim was commenced in 2016. He therefore held that there was a triable issue, and the Appeal was dismissed with Costs.

WANG V ALBERTA HEALTH SERVICES, 2023 ABCA 186 (GROSSE JA) Rules 4.10 (Assistance by the Court) and 14.5 (Appeals Only with Permission) The Applicants filed an Appeal of an Assessment Officer’s decision fixing costs at $300,000 (the “Bill of Costs Appeal”). In another Action, the Court restricted the Applicants’ access to the Court which had the effect of cancelling the Bill of Costs Appeal hearing and an Endorsement was later issued in which the Court declined to grant leave to proceed with the Bill of Costs Appeal but did grant leave for a hearing for advice and directions pursuant to Rule 4.10 to address whether the Respondent was obliged to provide information that had been redacted on the Bill of Costs. The Court had noted that at the Rule 4.10 hearing, the Court was entitled to give leave to proceed with the Bill of Costs Appeal, which neither Party ultimately sought.

Later, after Court access restrictions had been vacated, the Applicants applied for an Order setting a special Application date for the Bill of Costs Appeal, which was denied and they were instead directed to apply for leave to extend the time for the Bill of Costs Appeal. The Applicants sought permission to Appeal this decision on the issue of determining whether the Chambers Judge erred in requiring the Applicants to apply for leave to extend the time for the Bill of Costs 58

The Barrister

Appeal (the “Leave to Extend Time Issue”).

The Court set out the applicable test in accordance with Rule 14.5(1)(e) for Permission to Appeal a decision as to Costs which requires that: (1) the Applicant must identify a good, arguable case having enough merit to warrant scrutiny by the Court; (2) the issues must be important, both to the parties and in general; (3) the Appeal must have some practical utility; and (4) the Court should consider the effect of delay in proceedings caused by the Appeal.

The Court noted that (1) an error as to the Leave to Extend Time Issue was important to the Applicants, (2) the Applicants may not have been able to satisfy the criteria for leave to extend time and would accordingly lose the ability to challenge the $300,000 Costs award on the merits; (3) the requisite general importance existed with respect to the applicable framework for addressing delay in an Appeal from an Assessment Officer’s decision and more generally in ensuring that requirements imposed on parties that could deprive them of an Appeal are justified; (4) the proposed Appeal had practical utility; and (5) the Court was not aware of any proceedings that would be delayed by the proposed Appeal to this Court.

The Application for permission to Appeal was accordingly allowed with respect to the Leave to Extend Time Issue.

JS V JD, 2023 ABKB 288 (BERCOV J) Rules 4.29 (Costs Consequences of Formal Offer to Settle), 10.29 (General Rule for Payment of Litigation Costs) and 10.33 (Court Considerations in Making Costs Award) This was a Decision on Costs following a mixed success family Trial. Both Parties claimed Costs on the basis that they were substantially successful at Trial, pursuant to Rule 10.29. The Plaintiff sought double Costs for steps taken following service of a Formal Offer, pursuant Rule 4.29.

The Court listed several principles applicable to the determination of Costs Awards, namely: the successful Party is presumptively entitled to Costs, which presumption applies equally to family matters; success in a family matter means substantial success, not absolute success; assessment of substantial success measures ultimate outcomes against relief initially sought; a finding of success may be based on a finding that a Party was successful on the most important issue litigated; enhanced Costs may be awarded where there has been misconduct in the litigation; Rule 4.29 provides for double Costs where a Plaintiff’s Formal Offer to settle is more generous than the ultimate outcome and the Plaintiff’s Formal Offer is not accepted by the Defendant; Costs Awards are discretionary, subject to principled exercise of the Court’s discretion; and Rule 10.33 provides a non-exhaustive list of factors, which help to guide the Court’s discretion.

Reviewing the Parties’ respective requests for relief and results at Trial, the Court held that neither Party had achieved substantial success. While the Plaintiff was successful in certain respects, the Defendant was successful in others, some of which were significant.

Simi¬larly, the Plaintiff’s Formal Offer was not more generous than the ultimate outcome, which provided for less parenting time, a less generous division of matrimonial property and a less generous spousal support award, accounting for payments made just prior to Trial. Finally, the Court held that the Plaintiff’s allegations of litigation misconduct, which included frequent changes of counsel, failure to accept the truth of certain documents, and other issues the Court had previously indicated it would not consider, were insufficient to justify an award of Costs.

In the result, each Party was responsible for their own Costs. Fees borne by the Plaintiff for an expert assessment in regard to parenting were ordered to be shared equally.

CONDOMINIUM PLAN NO 7920829 V ACADEMY CONTRACTORS INC (ABALON CONSTRUCTION) 2023 ABKB 233 (APPLICATIONS JUDGE SUMMERS) Rules 4.31 (Application to Deal with Delay) and 7.3 (Summary Judgment) This was a Special Chambers hearing involving Cross-Applications. The Defendants applied for Summary Dismissal under Rule 7.3, alleging that the Action was not commenced within the limitation period; or alternatively, dismissal pursuant to Rule 4.31, on the basis that there had been inordinate delay, which had significantly prejudiced the Defendants. The Plaintiffs cross-applied for Summary Dismissal of the Defendants’ Counterclaim, also under Rule 7.3.

Fall 2023

59

The case involved Abalon Construction, who installed concrete friction piles under the Tudor Manor building to prevent it from settling. The Plaintiff initiated a legal Action in 2010, and successive counsel provided Affidavits of Records between 2013 and 2016. The Defendants found the Plaintiff’s document production inadequate. In 2019, the Defendants filed an Application for Summary Dismissal, claiming that they could not remember specifics or timing of events due to the Plaintiff’s delayed document production. The Plaintiff filed its own Affidavit of Records nearly a year later, the Plaintiff’s materials for a Cross-Application were not provided for over a year, and an Application was brought to force the issue.

The Court first dealt with the Plaintiff’s Cross-Application, dismissing it because the Plaintiff did not have an expert report to provide an opinion on the duties of care of the Defendants, whether those duties were breached, and if so, whether those breaches cause the damages claimed by the Plaintiff.

The Court then turned to the Defendants’ Rule 7.3 Application. The Defendants argued that the limitation period for the Plaintiff’s cause of action started before 2008, leaving to Court to determine whether the Plaintiff had knowledge, constructive or actual, before 2008, through the exercise of reasonable diligence, of the material facts upon which a plausible inference of liability on the part of the Defendants could be drawn.

The Court held that based on the evidence before the Court, it was not able to determine if the Plaintiff had actual or constructive knowledge of the facts that could have reasonably inferred liability on the part of the Defendants. The Court found that the Defendants had not met the test set out in Weir-Jones Technical Services Incorporated v Purolator Courier, Purolator Inc. and Purolator Freight, 2019 ABCA 49, and held that there was a triable issue as to whether the Plaintiff commenced the Action within the limitation period. Therefore, the Defendants’ Rule 7.3 Application was dismissed.

Turning to the Defendants’ Rule 4.31 Application, the Court followed the six-part analysis set out in Humphreys v Trebilcock 2017 ABCA 116. The Court found that the Plaintiff failed to advance the case to the point on the litigation spectrum that a litigant acting reasonably would have attained within the time frame under review, and the delay was inordinate. The Plaintiff’s explanation that the delay was not intentional or willful was of little significance, and the Defendants’ contributions to the delay did not outweigh the Plaintiff’s inordinate delay. The Court found no compelling reason not to dismiss the Action.

For the reasons set out in the above paragraph, the Court exercised its judicial discretion and granted the Defendants’ Application, striking the Plaintiff’s claim pursuant to Rule 4.31.

VASILJEVIC V KOTUR, 2023 ABKB 292 (POELMAN J) Rules 4.31 (Application to Deal with Delay) and 4.33 (Dismissal for Long Delay) The Appellants appealed their Applications that had been before an Applications Judge for dismissal of the Action or part of the Action on the basis of delay under Rule 4.31 and 4.33 (the “Dismissal Applications”). The Court also considered a second set of Applications which sought the same relief (the “Second Applications”). Both the Dismissal Applications and Second Applications had been dismissed by thde Applications Judge.

On Appeal to a Justice of the Court of King’s Bench, the Court considered the factors under Rule 4.31, and determined that there had been an inordinate delay of seven years. More specifically, the Court noted that there had been no general Questioning, expert reports, and no efforts to enter the Action for Trial in seven years. The Court additionally noted that the Action was not a complex lawsuit and that the timeline was far longer than one for a reasonably similar lawsuit.

Although the Court determined that the delay was inordinate, it found that it was excusable. The Court noted that the period consumed by the Summary Judgment Application and its aftermath, the need to obtain amended Statements of Defence and then schedule Questioning, all without the cooperation of the Defendants, were an adequate excuse for a significant portion of the delay.

Furthermore, the Court found that the Defendants had not suffered the type of significant prejudice that would justify dismissing the Action. The Court noted that each Defendant asserted in Affidavits: frustration with what they asserted 60

The Barrister

was the Plaintiff’s failure to prosecute the Action in a timely and cost-effectively way; inability to move forward with their lives, despite having pleaded guilty and served time in prison; and aspects of their respective family lives were put on hold because of the uncertainty associated with the pending lawsuit. The Court additionally noted that the Defendants were in long term relationships, had families, and had not sought medical attention for stress.

The Court considered Rule 4.33, noting that a deadline cannot be the basis for measuring the relevant period for a significant advance in an Action. The Court found that settling the terms of an Order and filing amended Statements of Defence did not narrow or clarify the issues in the Action.

The Court found that the production of additional Affidavits of Records, each with some new, relevant and material records demanded by the Defendants constituted an advance. The Court specified that one supplementary Affidavit of Records was a significant advance, noting that it included prior and new records, which were in a form with evidentiary significance. The Court accordingly found there had been no period three years without a significant advance.

The Court additionally noted that the amended Pleadings were filed on compulsion of the Respondent and efforts to arrange Questioning without ever settling upon agreed dates, did not constitute participation as contemplated in Rule 4.33(2).

The Court dismissed the Appeals.

TORONTO-DOMINION BANK V PALISADE SECURITY GROUP IN, 2023 ABKB 307 (APPLICATIONS JUDGE SCHLOSSER) Rules 4.31 (Application to Deal with Delay) and 4.33 (Dismissal for Long Delay) The Applicant applied to dismiss the Action for long delay pursuant to Rules 4.31 and 4.33.

The Court dismissed the Application under Rule 4.33, which requires the Court to dismiss an Action against a party if three or more years have passed without a significant advance in the Action. The Court noted that a significant advance in an Action is sufficient for the purpose of Rule 4.33 and that it is unnecessary to have completed a significant advance as against each Defendant. The Court determined that the Respondent obtaining Judgment against another Defendant constituted a signifi¬cant advance in the Action.

The Court also dismissed the Application under Rule 4.31, which is discretionary and allows the Court to dismiss an Action for long delay that results in significant prejudice to a party. The Court noted that an Applicant can show signif¬icant prejudice by either: (1) proving inordinate and inexcusable delay, in which case the Applicant enjoys a rebuttable presumption of significant prejudice; or (2) proving significant prejudice arising from the delay.

The Court found no significant prejudice arising from delay. The Court was not satisfied that the delay in the Action was inordinate and inexcus¬able. The Court also determined that the death of one of the Applicant’s potential witnesses did not constitute significant prejudice as there were other witnesses available that could shed light on the issues concerning that witness. The Court therefore determined that there was no prejudice rising to such a level as to require the Court to dismiss the Action under Rule 4.31.

TAKACS V INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 955, PENSION TRUST FUND, 2023 ABKB 248 (MAH J) Rule 4.33 (Dismissal for Long Delay) The Plaintiff, Mr. Takacs, applied for an Order that a Judicial Dispute Resolution (JDR) be directed. The Defendant Pension Trust Fund cross-applied for mandatory dismissal of the Action for long delay, pursuant to Rule 4.33.

The Action arose from a discrepancy in the commuted value of Mr. Takacs’ union pension plan due to a regulatory change made under the Employment Pension Plans Act, SA 2012, c E-8.1. Mr. Takacs filed a Statement of Claim on August 31, 2018 and an Amended Statement of Claim to substitute the Pension Trust Fund as Defendant, rather than the union local, on February 28, 2019. The Pension Trust Fund filed its Statement of Defence to the Amended Statement of Claim on March 7, 2019. Mr. Takacs’s and the Pension Trust Fund’s Affidavits of Records were filed on August 20, 2019 and October 18, 2019, respectively. Mr. Takacs filed an Application on September 29, 2022 to set the matter down for Trial, which was eventually dismissed by Justice Mah on January 18, 2023. Mr. Takacs filed the current Application on February 28, 2023, returnable April 5, 2023, requesting that the Court direct a JDR, and the Pension Fall 2023

61

Trust Fund filed a cross-Application returnable the same date seeking dismissal of the Action for long delay. For the purpose of the cross-Application, the Parties agreed that the three-year period in Rule 4.33 was extended by 75 days through Ministerial Order because of the pandemic and lapsed on January 3, 2023.

Justice Mah agreed with the Pension Trust Fund’s submission that the long delay Appli¬cation had to be decided first to see if there was any Action that survived that could go to JDR. He did not make a finding on Mr. Takacs’ complaint about deficient service of the cross-Application and concluded that any defi¬ciency had been waived based on Mr. Takacs’ desire to proceed with both Applications.

Mr. Takacs argued that his Trial Application should count as a step that advanced the Action. Alternatively, he argued that the Pension Trust Fund acquiesced to his delay by taking part in his Trial Application. On the latter point, given that the Pension Trust Fund’s deponent opposed the Trial Application in his Affidavit, Justice Mah held that the Pension Trust Fund was not waiving its position with respect to the delay by simply defending the Application.

Considering Mr. Takacs’ first point, Justice D.R. Mah stated that the question was whether functionally the Trial Application had any mean¬ingful effect in advancing the Action. Citing Jacobs v McElhanney Land Surveys Ltd, 2019 ABCA 220, Justice Mah held that the dismissed Trial Application was not a significant advance in the Action because nothing was accomplished: the state of knowledge and the positions of the Parties were the same after the Application was heard, and the Court was in no better position to adjudicate - the Action was in the identical state it had been before the Trial Application. In addition, Mr. Takacs’ Application for a JDR after January 3, 2023 could not resuscitate his Action.

In the result, the Court granted the Pension Trust Fund’s Application under Rule 4.33.

(Bercov J) SWALEH V LLOYD, 2023 ABKB 262 (SULLIVAN J) Rule 4.33 (Dismissal for Long Delay) The Appellant appealed an Applications Judge’s Decision to decline to dismiss the Plaintiff’s claim under Rule 4.33.

The Court found no error in the Applications Judge’s Decision and dismissed the Appeal. The Appellant argued that the last significant advance in the Action occurred when the Plaintiff served its Amended Statement of Claim.

However, Applications Judge Birkett had noted that there had been an Application to further amend the Amended Statement of Claim to add additional Parties and the Appeals of that Decision. The Court found no error in Applications Judge Birkett’s reasoning that knowing who the Parties are is a significant advance in the Action as it is something that needs to be determined before the Action can move forward.

WHITSON CONTRACTING LTD V PACIFIC WEST SYSTEMS SUPPLY LTD, 2023 ABKB 309 (APPLICATIONS JUDGE SCHLOSSER) Rule 4.33 (Dismissal for Long Delay) The Applicant applied to dismiss a construction lien Claim for delay pursuant to Rule 4.33.

The Court began by surveying the procedural history of two parallel proceedings, which included: (1) the filing of a lien and com¬mencement of a Calgary-based Action by the Respondent; (2) a Edmonton-based Originating Application, filed by the Applicant pursuant to section 48 of the Prompt Payment and Construction Lien Act, RSA 2000, c P-26.4, seeking the removal of the lien from title; (3) the payment into Court of the lien amount, within the Edmonton-based Originating Application and the corresponding removal of the lien from title; and (4) a successful Application for dismissal by one of two Defendants in the Cal¬gary-based Action. No further steps occurred in the Calgary-based Action.

The substance of the Court’s analysis focused on the procedural errors which led to this Application being brought within the Edmon¬ton-based Originating Application, and the problems which had arisen accordingly.

62

The Barrister

Because these proceedings were commenced by Originating Application, there were no Plead¬ings. The Court noted that the starting point for the delay analysis is to measure progress against the issues defined in the lawsuit, as set out in the Pleadings. Furthermore, Rule 4.33 governs Parties to an “Action”, and the Respondent to an Application under Rule 4.33 must be the Party which filed the commencement document.

Here, the Court observed that the Applicant (1) was not a Party to an Action “in the conventional sense”; and (2) was itself the Party which filed the relevant commencement document. The result, per the Court, was that the Applicant was effectively applying to strike out its own Application.

The Court further reviewed Rule 4.33(2), which refers to an absence of “a significant advance in an Action”. Again, the Court noted that there was no “Action” here and therefore held that Rule 4.33 had no direct application in the circumstances.

The Court dismissed the Application.

MULHOLLAND V RENSONNET, 2023 ABCA 175 (MARTIN, ANTONIO AND JO JJA) Rule 4.33 (Dismissal for Long Delay) This was an Appeal of an Order dismissing an Action for long delay under Rule 4.33.

The Appellant, Ms. Mulholland, filed a State¬ment of Claim against the Respondent, Ms. Rensonnet, in September 2013. The following year, the Respondent filed a Statement of Defence and a Third Party Claim against the other Appellant, Mr. Uttl. In 2016, Cross-Ap¬plications for partial Summary Judgment and Summary Dismissal were dismissed. An Appeal from the dismissal of partial Summary Judgment was dismissed in January 2018.

In January 2022, The Respondent filed a Rule 4.33 Application. Both Appellants filed detailed Affidavits setting out the steps they believed had significantly advanced the Action. The Application was heard in morning Chambers on February 11, 2022, wherein the Chambers Judge granted the Respondent’s Application and awarded Costs.

On Appeal, the Appellants asserted that the Chambers Judge committed procedural errors by proceeding in morning Chambers rather than adjourning to a Special Chambers hearing and by not allowing them a full opportunity to be heard. Additionally, the Appellants alleged that the Chambers Judge failed to apply the correct legal test, overlooked evidence, and erred in drawing conclusions of mixed fact and law.

In dismissing the Appellants’ claims, the Court of Appeal first noted that a decision to adjourn to a Special Chambers hearing was discre¬tionary and would be reviewed on a standard of reasonableness. Despite the voluminous materials involved in the underlying Action, the evidence on the Rule 4.33 Application was straightforward. Therefore, the Chambers Judge’s decision to proceed in morning Chambers was within his discretion and was not unreasonable.

Further, the Chambers Judge did not deny the Appellants an opportunity to be heard since both Appellants filed written materials and made oral submissions. The Chambers Judge committed no error by direct¬ing Mr. Uttl to focus on relevant issues rather than reciting his prepared submissions or by taking the unusual step of allowing Mr. Uttl an oral sur-reply.

The Court of Appeal also found there was no reviewable errors in the Chambers Judge’s conclusion that the following three events did not significantly advance the underlying Action: (1) discontinuance of case management; (2) an ex parte Order allowing service by email; and (3) the filing of a Notice to Admit and a Response. This was based on a functional examination of the Notice to Admit and the Response in this case, which revealed that nothing had changed to advance the Action or to narrow the issues. In addition, the Court of Appeal noted that the Chambers Judge’s decision to award Costs to the Respondent was discretionary and based on evidence from the entirety of the circum¬stances.

In the result, the Court of Appeal dismissed the Appeal.

64

The Barrister

TERRIGNO V BUTZNER, 2023 ABCA 124 (MARTIN, HO AND KIRKER JJA) Rules 5.2 (When Something is Relevant and Material) and 5.13 (Obtaining Records from Others) The Appellant brought a defamation claim against the Respondent arising out of an alleged incident between the Parties. Because the Appellant was a Student-at-law at the time of the alleged incident, the matter was inves¬tigated by the Law Society and a report was prepared. Here, the Appellant appealed a Case Management Judge’s Order for the production of excerpts of the Law Society report in the defamation Action.

The Application for production of the Law Society report was brought under Rule 5.13, which addresses third-party production.

The Court may order a third party to produce a record if the record is under control of that person, there is a reason to believe that the record is relevant and material, and the person who has control of the record might be required to produce it at Trial. The test for relevance and materiality is governed by Rule 5.2, both in general and under Rule 5.13.

The Appellant argued that the Case Manage¬ment Judge applied the wrong legal test by considering whether the Law Society report was “potentially relevant” rather than simply “relevant and material”. The Appellant also raised concerns with respect to prejudice, privacy interests, and inefficiencies being introduced into the litigation.

The Court found it clear that the Case Management Judge was alive to the proper requirements regarding relevance, materiality, and privilege. The Court did not agree that the use of the words “potentially relevant” meant that the wrong legal test was applied. The Court found no error in the Case Management Judge’s Decision given the content of the Law Society report and the scope of the Pleadings in the defamation Action.

Based on that analysis, the Court dismissed the Appeal.

The Court further reviewed Rule 4.33(2), which refers to an absence of “a significant advance in an Action”. Again, the Court noted that there was no “Action” here and therefore held that Rule 4.33 had no direct application in the circumstances.

The Court dismissed the Application.

JACOBSEN V WAWANESA MUTUAL INSURANCE CO, 2023 ABCA 122 (SLATTER, HUGHES AND KIRKER JJA) Rule 6.14 (Appeal from an Applications Judge’s Judgment or Order) The Alberta Court of Appeal considered whether an Appeal of an Applications Judge’s Order was filed in time. Kachur J. of the Alberta Court of King’s Bench had previously allowed the Respondent’s Appeal (the “Decision”) of an Applications Judge’s Order declining to dismiss the Appellant’s claim for inordinate delay under Rule 4.31. The Appellants appealed the Deci¬sion.

The Alberta Court of Appeal noted that Rule 6.14 requires a Notice of Appeal from an Applications Judge’s Order to be filed and served within 10 days of its entry and service. The Court also noted that Rule 6.14 assumes that the winning party will file and serve the Notice of Appeal. However, in this case, the Applications Judge had directed that the losing Respondent prepare the Order. As such, the Appellants argued that the Notice of Appeal should have been filed within 10 days of the date that the losing Respondent filed the Order rather than the date that the Respondent served the Order on the Appellants.

The Alberta Court of Appeal disagreed and dismissed the Appeal. The Court noted that the Notice of Appeal was filed outside the expecta¬tions of the Rules, but in literal compliance with them. As such, the Court found no reviewable error in the Decision.

MURRAY V WINDSOR BRUNELLO LTD, 2023 ABKB 275 (SIDNELL J) Rule 6.37 (Notice to Admit) Two days before the Trial commenced, the Defendant, WBL, served a Notice to Admit Facts on another Defendant, AEL. The Plaintiffs applied under Rule 6.37(8) to set aside WBL’s Notice to Admit Facts. The Application was granted.

WBL argued that since the admission was only as between WBL and AEL, the Plaintiffs had no standing to apply to set aside the Fall 2023

65

Notice to Admit Facts. Sidnell J. disagreed with that argument. Subsections (2) and (4) of Rule 6.37, in requiring a Notice to Admit be served on all Parties to the Action, show that Rule 6.37 contemplates that a Notice to Admit may be relevant to, and affect, other Parties to the Action.

When determining whether a Notice to Admit Facts can be served after the commencement of Trial, Sidnell J. cited TS v Stazenski, 2011 ABQB 508 for the proposition that Rule 6.37 should be read as limiting its use to a period that is at least 20 days before a Trial commences. However, Sidnell J. noted that under special circumstances, a Notice to Admit can be served after the Trial has commenced.

Relying on Stazenski and Andriuk v Merrill Lynch Canada Inc, 2011 ABQB 59, Sidnell J found that the non-exhaustive considerations on an Appli¬cation to set aside a Notice to Admit under Rule 6.37(8) include whether the Notice to Admit: (a) achieves the intention of the Rules, as set out in Rule 1.2; (b) should be set aside for a reason set out in Rule 1.4(2)(b): for being contrary to law, an abuse of process or is undertaken for an improper purpose; or (c) affects trial fairness or is prejudicial to other Parties.

Sidnell J. found that the Plaintiffs would be prej¬udiced by the Notice to Admit Facts because it was served, and replied to, on the eve of Trial such that the Plaintiffs were unable to properly prepare for it.

Further, having noted that WBL submitted that if it could not rely on the Reply to Notice to Admit documents, it would call an individual a witness to give evidence, Sidnell J held that if this individual is called as a witness by WBL, the Plaintiffs would have the opportunity to cross-examine him on his evidence. On the other hand, if the Notice to Admit Documents were accepted, this individual’s evidence would not be subjected to cross-examination, which plays a very important role in the adversarial system.

Sidnell J. further found that the use of the Notice to Admit documents would preclude some Parties from testing that evidence by cross-examination, which would be contrary to Trial fairness and be prejudicial to those Parties.

ENVIRONMENTAL DEFENCE CANADA INC ET AL V KENNEY ET AL ABKB 304 (INGLIS J) Rule 7.3 (Summary Judgment) The Defendants filed an Application for Summary Dismissal pursuant to Rule 7.3, arguing that the alleged defamatory statements were not “of and concerning” the Plaintiffs.

The claim arose from statements made by former Premier Jason Kenney and statements published on Government of Alberta websites regarding the findings of a public inquiry, conducted by Commissioner Steve Allan, to investigate allegations that environmental campaigns against Alberta’s oil and gas sector were being funded by foreign interest groups. The Commissioner’s final report confirmed the existence of well-funded, decade-long campaigns based on misinformation that had impacted the lives and livelihoods of Albertans.

The Plaintiffs claimed that four statements were defamatory: a Facebook post and an identical tweet posted to Jason Kenney’s respective accounts (the “Social Media Post”); statements on the “Inquiry Webpage” and statements in the “Key Findings Document”. The Social Media Post did not name the Plaintiffs but contained a link that directed the viewer to an Alberta Gov¬ernment web page titled “Foreign funding hurt Alberta’s energy development”, which included the Inquiry Webpage that linked directly to the Key Findings Document that incorporated a list of 36 names, including the names of the Plaintiffs.

The Court first cited the key considerations set out in Weir-Jones Technical Services Inc. v Purolator Courier Ltd., 2019 ABCA 49, confirming that to succeed in the Application, the Defendants must show that there were no uncertainties in the facts, the record, or the law, and that Summary Dismissal would be appropriate when the Plaintiffs’ claim had no merit based on the facts proven on a balance of probabili¬ties.

The Court then dealt with the question of what constituted a defamatory statement and found that the only issue before the Court was whether the alleged defamatory statements referred to the Plaintiffs. The Court further noted that defamatory statements did not need to refer to a Plaintiff explicitly or directly. Whether the statements were “of and 66

The Barrister

concerning” the Plaintiffs would depend on whether a reasonable person, informed of the general context of the statements and the surrounding circumstances of the Plaintiffs and Defendants, would understand that it was the Plaintiff to whom the Defendant referred.

The Defendants argued that the statements did not refer to the Plaintiffs because: (1) the footnote in the impugned sentence of the Key Findings Document referred to the Tar Sands Campaign, not the Plaintiffs; (2) the Plaintiffs were not singled out from the larger group of 36 organizations named in the Key Findings Document; (3) the social media posts and Inquiry Webpage did not identify the Plaintiffs explicitly; (4) because reaching the Key Findings Document from the Social Media posts required following two links, the posts were not sufficiently connected to the list of 36 names in the Key Findings Document; and (5) a reasonable person aware of the surrounding circumstances would not know the statements referred to the Plaintiffs.

On the other hand, the Plaintiffs argued that: (1) the Key Findings Document named each of them individually; (2) the statements that did not include the names of the Plaintiffs contained links to the Key Findings Document where their names were easily found; and (3) a reasonable person aware of the surrounding circumstances would know that at least some of them were the targets of the public inquiry.

The Court found that the Key Findings Document, when considered as a whole, clearly linked the alleged defamatory statements to the campaigns involving the listed Plaintiffs. Furthermore, the Court determined that social media links allowed a reasonable person to understand to whom the impugned statements referred. When social media posts contained links to another document, allowing a party to separate the defamatory statement from the identity of the defamed and offer a defence of no sufficient connection would defeat defamation law.

In the result, the Application for Summary Dismissal was denied as the Defendants had not established that the impugned statements did not refer to the Plaintiffs.

RKY V BAHLER, 2023 ABKB 280 (RENKE J) Rules 8.8 (Notice to Attend as Witness at Trial) and 8.15 (Notice of Persons Not Intended to be Called as Witnesses) This was a Judgment in a medical negligence Action. The Defendant physicians were alleged to have breached the standard of care appli¬cable to them in connection with medical treatment rendered to a pregnant mother and her then-unborn twins. The mother and twins were the Plaintiffs.

In argument, the Defendants urged that an adverse inference be drawn against the Plaintiffs for failing to call witnesses. The Court noted that, pursuant to Rule 8.15(4), an adverse interest may be avoided if a party serves notice on every other party indicating the names of individuals not intended to be called as witnesses and the other party does not respond. The Court added that, even absent compliance with Rule 8.15, the drawing of an adverse interest is subject to the Court’s discretion, having regard to whether: (1) there is a legitimate explanation for the failure to call the witness; (2) the witness has material evidence to provide; (3) the witness is the only person or the best person who can provide the evidence; and (4) the witness is within the exclusive control of the party against whom the inference is sought, and is not equally available to both parties.

The Defendants sought that an adverse inference be drawn against the Plaintiffs as a result of their failure to call the Plaintiff mother’s mother, who had been present for an import¬ant medical examination. The Court noted that notice had not been served pursuant to Rule 8.15 but concluded that an adverse inference should not be drawn since evidence of the examination was otherwise available through the Plaintiff mother. The Court noted that the Defendants could have served notice on the witness pursuant to Rule 8.8(1), which was not done.

The Court also rejected the Defendants’ con¬tention that an adverse inference should be drawn in light of the Plaintiffs’ failure to call a medical expert who had been consulted in connection with the Plaintiffs’ treatment. Again, no notice was served pursuant to Rule 8.15. However, the Court held that the documentary record, which closely documented the expert’s fleeting involvement in the events in issue, was sufficient to cover any evidence that the expert might have provided. As a result, the Court held that it was not appropriate to draw an adverse inference.

Fall 2023

67

ELLIOTT V ELLIOTT, 2023 ABCA 191 (SLATTER JA) Rules 9.4 (Signing Judgments and Orders) and 14.5 (Appeals Only with Permission) The Applicant sought permission, pursuant to Rule 14.5(1)(a), to Appeal a Scheduling Order and extend the time to file that Appeal. The Scheduling Order was granted on March 24, 2021. The Applicant failed to file the Notice of Appeal until April 20, 2023. Justice Slatter, considering the chronology, concluded that the delay was inordinate and that allowing the Appeal would result in further delay, expense, and prejudice to the Respondent.

Justice Slatter also ruled that the Applicant’s approval of the Order granted was dispensed with pursuant to Rule 9.4(2) (c).

UHRIK V TERRIGNO, 2023 ABKB 223 (BOURQUE J) Rules 9.4 (Signing Judgments and Orders), 10.29 (General Rule for Payment of Litigation Costs) and 13.7 (Pleadings: Other Requirements) The Court considered whether to impose Court access restrictions on the Respondents, who cross-applied requesting that the Court impose access restrictions on the Applicants.

The Court determined that the Respondents were vexatious litigants and imposed Court access restrictions on them.

The Court noted that determining whether to impose Court access restrictions involves consideration of the litigation record of an abusive litigant to evaluate whether that person has engaged in litigation misconduct. The Court reviewed decisions criticizing the Respondents’ litigation conduct, including a decision holding that one of the Respondents had advanced bald, unsub¬stantiated allegations of defamation contrary to Rule 13.7(f).

The Court dismissed the Respondents’ Cross-Application to impose Court access restrictions on one of the Applicants.

The Court found that the Applicant had a pattern of making offensive, ill-considered statements and conducting litigation in an inefficient or aggressive manner. However, the Court noted that this conduct was not a consistent or predominant pattern as the Applicant was an important actor in taking steps to identify and mitigate a large-scale fraud. The Court determined that the Applicant’s litigation was manageable by steps less extreme than Court access restrictions such as Security for Costs or case management.

The Court determined that the Applicants were presumptively entitled to Costs pursuant to Rule 10.29(1) as they were entirely successful. The Court required the Applicants to prepare an Order and dispensed with the requirement for the Respondents to approve that Order in accordance with Rule 9.4(2)(c).

LEIA V STYLES, 2023 ABKB 213 (DARIO J) Rules 10.2 (Payment for Lawyer’s Services and Contents of Lawyer’s Account), 10.9 (Reasonableness of Retainer Agreements and Charges Subject to Review) and 10.41 (Assessment Officer’s Decision) A lawyer sought to Appeal the decision of a Review Officer to reduce his fees. In particular, he argued that the Review Officer erred by applying a student rate to hours billed for research, correspondence, and reporting letters, when a higher rate was agreed upon in the retainer agreement. He argued that the Review Officer also failed in interpreting the retainer agreement.

Justice Dario held that, pursuant to Rule 10.9, Review Officers have the jurisdiction to assess the reasonableness of a retainer agreement. The retainer agreement provided that, where possible, work would be delegated to para¬legals and articling students at a lesser rate. Justice Dario found this to be a representation that an articling student would be available when this work arose. The fact that the lawyer did not ultimately have an articling student did not change the accuracy of the Review Officer’s findings that some hours should be reduced to the lesser promised rate for work that ought to have been delegated.

68

The Barrister

The Court further held that, pursuant to Rule 10.9, even where a retainer agreement definitively sets out an hourly rate, a Review Officer has authority to assess the reasonableness of that rate. It is an assessment of the value the client received for the work, regardless of what level of counsel performed the task. Similarly, pursuant to Rule 10.41, a Review Officer can remove line items that are unnecessary to achieve the purpose of the retainer.

Justice Dario looked to Rule 10.2 for the factors to be considered in assessing bills. These include: the time and effort required, the diffi¬culty of the matter, the nature, importance, and urgency of the matter to the client, the client’s circumstances, whether some special skill or service was required and provided, the results obtained, the experience and ability of the lawyer, and the client’s prior consent to fees.

Ultimately, Justice Dario found no error in the Review Officer’s decision, and the Appeal was accordingly dismissed with Costs to the Respondents

STANCHFIELD V DOE, 2023 ABKB 273 (MARION J) Rules 10.2 (Payment for Lawyer’s Services and Contents of Lawyer’s Account), 10.7(Contingency Fee Agreement Requirements) and 10.8 (Lawyer’s Non-Compliance with Contingency Fee Agreement) This case arose from a minor Plaintiff’s involve¬ment in two car accidents, the second of which involved an unidentified driver, and the Admin¬istrator of the Motor Vehicle Accident Claims Act, RSA 2000, c M-22 became part of the case. On her own behalf and as her son’s litigation repre¬sentative, the mother retained counsel for the lawsuit arising from the second accident. She then applied for the approval of a settlement relating to the second lawsuit under s. 4(2) of the Minors’ Property Act, SA 2004, c M-18.1.

In the course of this Application, the Plaintiff’s counsel also sought Court approval for the payment of his fees out of the settlement funds pursuant to the terms of a Contingency Fee Agreement (“CFA”). The Public Trustee agreed that the settlement should be approved but objected to the amount of fees that the Plain¬tiff’s counsel sought.

The Court found that the CFA was unenforce¬able because it did not comply with Rule 10.7 and 10.8, which sets out requirements to ensure the terms of a contingency fee are clear and that the client had executed and been provided with a copy of the agreement. The Court noted that the CFA failed to include: a statement that “… no fee, calculated as a percentage or otherwise, may be payable on disbursements or other charges recovered” as required by Rule 10.7(2)(e)(i), and instead stated the opposite; the statements required by Rule 10.7(2)(f) if the lawyer was to receive any amount from a Costs Award, even though it provided that counsel would receive a portion of a Costs Award; a statement regarding the client’s notification needed to terminate the CFA as required

by Rule 10.7(2)(g), and instead contained an awkwardly-worded provision that only potentially covered a portion of that Rule’s requirements; and a statement regarding the review of the CFA and counsel’s charges, as required by Rule 10.7(2)(h).

The Court added that the invoice appended as Exhibit G to the mother’s updated Affidavit failed to include a statement that at the client’s request a Review Officer may determine both the reasonableness of the account and the reasonableness of the CFA, as required by Rule 10.7(7).

The Court also noted that Courts must be careful not to reward counsel, or prejudice clients, for counsel’s non-compliance, especially when counsel act on behalf of minor children.

Fall 2023

69

As a result, the Court approved the settlement of the minor Plaintiff’s claims but found that the Plaintiff’s counsel was only entitled to “a lawyer’s charges determined in accordance with Rule 10.2”, including goods and services tax and disbursements and other costs, which was around $2,700 less than counsel claimed. No Costs of the Application were awarded.

BROSSEAU ESTATE V DUBARRY ESTATE, 2023 ABKB 378 (APPLICATIONS JUDGE SCHLOSSER) Rules 10.2 (Payment for Lawyer’s Services and Contents of Lawyer’s Account), 10.31 (Court-Ordered Costs Award) and 10.33 (Court Considerations in Making Costs Award) This was a Costs Decision arising from a successful Summary Dismissal Application by one of several Defendants.

The Applicant sought 50% of its actual Costs (a total of approximately $250,000) based on the Decision in McAllister v. Calgary (City), 2021 ABCA 25 (“McAllister”). The Respondents objected to that scale of Costs, asserted that Costs should be payable at the conclusion of the entire lawsuit, or sought contribution or indemnity from the unsuccessful Defendants.

The Court observed that McAllister did not supplant Schedule C of the Rules with a de facto 40–50% indemnity model.

Rather, per the Court, McAllister is simply a reminder of the variety of choices in awarding Costs, depending on the circumstances of a given case and the considerations under Rules 10.33 and 10.2 (with respect to scale) and Rule 10.31 (with respect to options). The Court emphasized that Costs remain wholly discretionary.

With respect to this particular case, Appli¬cations Judge Schlosser observed that the Applicant’s ultimate argument on the Summary Dismissal Application was available at the outset of the lawsuit in 2012. The Court did not impugn the Applicant for taking a cautious approach, but found it inappropriate to require the Respondent to pay the expenses related to that approach.

In the result, the Court awarded the Applicant Costs under Schedule C, payable forthwith.

SUNRIDGE NISSAN INC V MCRUER, 2023 ABCA 128 (MARTIN, ROWBOTHAM AND PENTELECHUK JJA) Rules 10.2 (Payment for Lawyer’s Services and Contents of Lawyer’s Account), 10.33 (Court Consid-erations in Making Costs Award), 14.27 (Filing Extracts of Key Evidence) and 14.90 (Sanctions) In the context of a series of Appeals and Cross-Appeals involving multiple Parties, Sunridge Nissan Inc. (“Sunridge”) and Ms. McRuer (“McRuer”) appealed the Trial Judge’s Costs Award. The Trial Judge awarded Sunridge indemnification of 10% of its incurred expenses (and 20% following service of a Formal Offer to Settle). The Trial Judge’s Costs Award took into account: Sunridge’s success being based on a limitation defence which could have been determined summarily, the aforemen¬tioned Formal Offer to Settle, and Sunridge’s unproven allegations of fraud against McRuer. After assessment by an Assessment Officer, Sunridge’s Costs Award amounted to approxi¬mately $28,000.

The Court of Appeal began its analysis by noting that Costs Awards are highly discre¬tionary and afforded considerable deference on Appeal—a Costs Award should only be set aside if the Trial Judge made an error in princi¬ple or if the Costs Award is plainly wrong. The Court also noted that the awarding of Costs based on a percentage of solicitor and client fees involves the consideration of many factors, including those set out under Rules 10.2 and 10.33.

Ultimately, the Court stated that although a higher figure could have been awarded, it could not be said that the Costs Award was plainly wrong. The Court therefore dismissed the Appeal and Cross-Appeal.

With regard to the Costs of the Appeals and Cross-Appeals, the Court ordered Costs in Sunridge’s favour as the substantially success¬ful Party. However, pursuant to Rule 14.90(1)(a)(ii), the Court refused to award Sunridge the Costs of preparing its Extracts of Key Evidence, as it had done so in a manner contrary to Rule 14.27(1).

70

The Barrister

MIKISEW CREE FIRST NATION V RATH, 2023 ABKB 321 (GRAESSER J) Rules 10.7 (Contingency Fee Agreement Requirements), 10.8 (Lawyer’s Non-Compliance with Contingency Fee Agreement), 10.10 (Time Limitation on Reviewing Retainer Agreements and Charges) and 10.18 (Reference to Court) This was a referral to the Court, pursuant to Rule 10.18, from an appointment with a Review Officer challenging contingency fee agreements (“CFAs”) made between the Plaintiff First Nation and Defendant solicitor.

The Plaintiff alleged that the CFAs were not properly approved by Band Council and that the CFAs were uncertain and overbroad.

The Plaintiff also alleged that the Defendant had failed to prove satisfactory compliance with the requirements set out in Rule 10.7.

As such, the Plaintiff argued that the CFAs were invalid, pursuant to Rule 10.8. The Defendant argued that the CFAs complied with applicable Rules in all necessary respects and were otherwise proper. The Defendant further argued that the Plaintiff was out of time for review of the CFAs pursuant to Rule 10.10 and that the Review was premature since no event triggering payment under the CFAs had yet occurred.

Having concluded there was insufficient evidence that the CFAs were not properly approved, the Court considered the validity of the CFAs in light of applicable Rules. Rule 10.7(3) requires that a CFA be signed and wit¬nessed and that the witness swear an Affidavit of Execution. The Court found that the CFAs were properly signed by the Plaintiff’s Chief and Council and that Affidavits of Execution had been sworn. Any irregularities in the Affidavit of Executions were insufficient to invalidate the CFAs. Rule 10.7(4) requires service of a signed copy of the CFA within 10 days after the date on which the agreement is signed. The CFAs were not served until two-and-a-half months after their execution. However, having regard to the circumstances, which included the Plaintiff’s significant experience in legal matters, past dealings with the Defendant, and substantial opportunity to revisit and annul the CFAs following service, the Court held that imperfect compliance had not caused any harm to the Plaintiff and was not fatal to the CFA’s validity.

Finally, the Court held that statements in the CFA as to the nature of the claim and circum¬stances under which fees were to become payable, required pursuant to Rule 10.7(2)(c) and (d), were sufficiently clear to enable enforcement.

As to the Defendant’s technical defences, the Court held that the review was not out of time since it was filed within 6 months from the date on which the CFAs were terminated, notwithstanding that review documents were not served on the Defendant within that time. The Court did not agree that the review was premature, since the Plaintiff was entitled to seek clarity as to its obligations prior to a triggering event. Since the CFAs were valid, the Defendant’s failure to establish the technical defences argued was inconsequential.

In the result, the CFAs were upheld.

LUTZ V LUTZ, 2023 ABKB 224 (ROTHWELL J) Rules 10.29 (General Rule for Payment of Litigation Costs), 10.31 (Court-Ordered Costs Award) and 10.33 (Court Considerations in Making Costs Award) Justice Rothwell issued a Costs Decision fol¬lowing a two-day Summary Trial regarding parenting, child support, and the division of matrimonial property. The Plaintiff did not participate in the Summary Trial or make submissions regarding Costs.

The Court considered Rule 10.29, which sets out the default rule that the successful Party is generally entitled to Costs. Justice Rothwell also considered Rules 10.31 and 10.33, which set out factors which the Court may consider when making a Costs Award and when deciding whether to deny or vary an amount in a Costs Award.

The Court held that the Defendant was entirely successful and took reasonable positions on the issues, which were issues of great signifi¬cance to the Parties. Justice Rothwell held that the Plaintiff, on the other hand, deliberately refused to provide and required disclosure and did not cooperate in the proceedings that he had commenced. Justice Rothwell observed that the Plaintiff’s refusal to participate needlessly complicated proceedings, necessitated extra steps, and impacted the Court’s ability to award an accurate quantum of child support.

In the result, Justice Rothwell ordered partial indemnity Costs in favour of the Defendant, in the amount of $20,000.

Fall 2023

71

LC V ALBERTA (CHILD WELFARE), 2023 ABKB 334 (GRAESSER J) Rule 10.29 (General Rule for Payment of Litigation Costs) The issue before the Court was whether wit¬nesses who were non-parties could be held responsible for Costs arising from certain Applications they pursued. Justice Graesser answered in the affirmative.

Previously, several prospective witnesses for the Defendant applied before Graesser J. to cancel or postpone scheduled Questioning on the basis that it was premature for them to be questioned in the lawsuit. The witnesses had filed their own Application and submitted their own Brief. The Defendant, their former employer, took no position on the witnesses’ Application. Justice Graesser dismissed the witnesses’ Application and directed that Ques¬tioning proceed.

However, his Decision was silent on Costs.

The Plaintiffs argued that because they were successful on the Application, they were enti¬tled to Costs under Rule 10.29(1), which holds that a successful Party to an Application is enti¬tled to Costs from the unsuccessful Party. The Defendant submitted that witnesses neither pay nor receive Costs when they are involved in other people’s litigation.

Justice Graesser found that the Rules dealing with Costs apply only to Parties. Witnesses are not affected by the Costs Rules, as they are entitled “to receive conduct money, witness fees, and reimbursement for reasonable costs of their attendance for travel, accommodation, and meals”.

However, the Rules do not expressly make a non-party witness liable for Costs, the common law does.

Justice Graesser referred to Thomas J.’s deci¬sion in Shefsky v California Gold Mining Inc, 2015 ABQB 525 (“Shefsky”), a case that discussed the Court’s jurisdiction to award Costs against a non-party in three scenarios: (a) where the non-party was the person ultimately liable; (b) where the non-party was the real instigator of the litigation and the one which would have received the fruits; and (c) where the non-party was guilty of serious misconduct in relation to the lawsuit.

Justice Graesser held that the scenarios out¬lined in Shefsky were not exhaustive and that Costs are always in the Courts’ discretion. He found that there was no reason why the non-party witnesses should be exempt from paying Costs after being unsuccessful on their Application. When witnesses involve themselves in the litigation, file their own Applications and submit their own Brief, they are generally pursuing their own interests and not the litigants’, thus increasing the actual Parties’ Costs.

GHEBREMESKEL V TESFU, 2023 ABKB 356 (SULLIVAN J) Rule 10.29 (General Rule for Payment of Litigation Costs) In a complex matter that had been extensively litigated by the Parties, Sullivan J. issued a global Costs Endorsement in July 2022. Since the issuance of the Costs Endorsement, one of the Defendants had repeatedly asked the Court for assistance regarding the Plaintiff’s failure to satisfy a Costs Award with funds held in trust by the Plaintiff’s lawyer.

Justice Sullivan referenced Rule 10.29, which states that an unsuccessful party to an Action must pay a Costs Award forthwith. To determine what “forthwith” meant, Sullivan J. canvassed the case law and held that it meant “immediately”, and Justice Sullivan found that the words in Rule 10.29 meant that “costs are to be paid immediately and that practically courts seem to allow up to a month for that to occur”.

Here, the Plaintiff was well outside the one-month time-frame and was directed to satisfy the Costs Award immediately, meaning within two days after the Parties appeared before Sullivan J.

72

The Barrister

ELLINGSON V HALL, 2023 ABKB 275 (GILL J) Rules 10.31 (Court-ordered Costs Award) and 10.33 (Court Considerations in Making Costs Award) The Court considered the appropriate Costs Award after dismissing the Plaintiffs’ Applica¬tion for an Interim and Interlocutory Injunction to prevent the Defendants from compelling the Plaintiffs to vacate premises on which some of the Plaintiffs conducted business (the “Deci¬sion”).

The Court awarded full indemnity Costs to the Defendants. The Court noted that Costs Awards are discretionary under Rule 10.31 and the Court may consider the factors in Rule 10.33 when making a Costs Award. The Court noted that solicitor-client Costs may be awarded where one party has engaged in litigation misconduct. In the Decision, the Court found that the Plaintiffs: (1) failed to establish any of the elements required for injunctive relief; (2) brought an Application that was frivolous and vexatious; (3) proceeded in a non diligent and obstructionist manner; (4) filed repetitive and unnecessarily voluminous materials; and (5) flagrantly disregarded Court policy, the Rules, and directions regarding filing timelines.

As a result, the Court found that Schedule C Costs were not appropriate and did not repre¬sent an adequate indemnity of the reasonable and proper Costs of the Defendants

Then there were three. marneylutzmediation.com 403-612-7214 Marney Lutz, K.C., David Kitchen and Don Detomasi are proud members of

davidkitchenmediation.com 403-620-2194

detomasi.ca 403-830-8257

Connecting People. Finding Solutions.

Suite 303, 620 12th Avenue SW, Calgary, AB Fall 2023

73

TERRIGNO V FOX, 2023 ABKB 190 (JONES J) Rule 10.33 (Court Considerations in Making Costs Award) This was a Costs Decision following an Applica¬tion Judge’s Decision on an Application brought by the Respondent for the Applicant’s breach of the obligation to produce a satisfactory Affidavit of Records, breach of the implied undertaking rule, and the Appeal from that Decision (the “Appeal Decision”).

The Applicant in the underlying proceeding sought party-party Costs on Column 2 of Schedule C of the Rules and a reduction of $1,000.00 in the fees payable because the Respondent failed to provide his proposed Bill of Costs in a timely fashion.

The Respondent in the underlying proceeding sought enhanced Costs and argued that (1) the Applicant’s improper conduct necessitated the Application and the Appeal; (2) the Appeal was more complex as new evidence and new issues were involved and argued; (3) the issues considered in the Appeal were important; and (4) while the Respondent did not Appeal the Applications Judge’s Costs Award, the Court has jurisdiction to impose enhanced Costs in light of the Applicant’s litigation misconduct (abusive and disrespectful communications). The Respondent also sought a stay of the Applicant’s Action until any Costs awarded in relation to the Appeal Decision were paid.

The Court rejected the Respondent’s request for additional Costs arising from what the Respondent described as a failure of the Appli¬cations Judge to account for the Applicant’s litigation misconduct, and held that the Justice who hears the Trial in a matter is at liberty to address a broader spectrum of litigation behaviour and to award Costs accordingly. The Court also rejected the reduction requested by the Applicant.

In the result, the Court awarded the Respon¬dent Costs of the Appeal, pursuant to line item 8(1) of Column 2 of Schedule C, and declined to order a stay of the Applicant’s Action until the Costs Award was paid.

RANDHAWA V REHILL, 2023 ABKB 202 (JONES J) Rule 10.33 (Court Considerations in Making Costs Award) After reviewing written submissions from the Parties, the Court considered the appropriate Costs Award after dismissing the Applicants’ Application in Commercial Chambers.

Relying on Rule 10.33, the Respondents sought full indemnity Costs of $5,946.35 or, in the alternative, Costs of $4,130 in accordance with Column 4 of Schedule C. The Applicants offered to pay what they refer to as enhanced Costs of $2,973.18. The Appli¬cants argued, and Jones J. agreed, that there was no justification for a significant departure from the normal indemnification of approxi¬mately 40% - 50% of solicitor-and-own-client Costs in favour of the successful Party. The Court noted that the Respondents’ request for Costs of $4,130 would amount to 69% of the Respondents’ alleged solicitor-and-own-client Costs.

Jones J. determined that the Applicants’ attempts to resolve the matter were not blameworthy and therefore held that no further enhancement of Costs was appropri¬ate. Though the Application was dismissed, there was no finding on the merits that the Applicants’ claims lacked substance or validity. Although Jones J. held that the matter would be inappropriate to be heard in Commercial Cham¬bers, the Applicants were allowed to pursue their requests through the normal civil litiga¬tion process which might entail Questioning on Affidavits and a viva voce hearing or Trial.

MA V XU, 2023 ABKB 346 (ANGOTTI J) Rule 10.33 (Court Considerations in Making Costs Award) This was a family law matter regarding ret¬roactive child support and property division upon divorce. There was a 74

The Barrister

mixed result, but the Plaintiff, Ms. Ma, was substantially successful. Justice Angotti therefore held that she should be awarded Costs pursuant to Rule 10.33. Costs were submitted by Bill of Costs reflecting Costs per Schedule C, Column 1, along with disburse¬ments.

Justice Angotti accepted these numbers.

Ms. Ma also sought enhanced Costs of $15,000 for the Defendant’s behaviour during the litigation pursuant to Rule 10.33. Mr. Xu refused to comply with Court Orders, causing Ms. Ma to make multiple Applications prior to Trial. Mr. Xu also failed to meet his obligations of disclosure in the litigation, impeding the ability of the Parties to proceed on the merits. Mr. Xu’s efforts appeared aimed at enticing Ms. Ma to settle, to her detriment. Mr. Xu was also dishonest throughout the proceedings, failing to disclose financial documents.

Based on what Justice Angotti termed “signifi¬cant and reprehensible litigation misconduct”, she awarded the $15,000 in enhanced Costs.

FORD V JIVRAJ, 2023 ABKB 331 (GRAESSER J) Rule 10.53 (Punishment for Civil Contempt of Court) The sentencing decision concerned the Defen¬dant, a contemptor (the “Contemptor”) who had been found guilty of breaching an Order made in July 2020 restricting him from pub¬lishing any comments about the Plaintiff, Ms. Ford (the “Nixon Order”). The Court noted that the Contemptor sent a letter to a media outlet containing derogatory things about Ms. Ford in October 2020 (the “Letter”).

The Court noted that the applicable Rule for determining the consequences of civil Contempt is Rule 10.53 and that it had a very wide discretion in determining what is a fit and proper consequence for a contemptor. After reviewing the applicable jurisprudence, the Court noted that it would not impose a period of imprisonment on the Contemptor.

The Court noted that the Contemptor: (1) delib¬erately set out to circumvent the consequences of the Nixon Order; (2) had commenced a campaign to cause harm to Ms. Ford based largely on jealously of her successful political career and his failures; (3) had made an apology to Ms. Ford, which was mitigating; (4) was in poor financial circumstances, but that the Contemptor’s claim that the underlying proceedings resulted in him being unemploy¬able was exaggerated; (5) was highly educated which included a law degree and he could not have been said to not understand the Nixon Order or the consequences of committing civil Contempt of Court, which had the effect of removing potential mitigating circumstances; and (6) caused no serious harm to Ms. Ford via the Letter.

The Court found that a fine of $10,000 was appropriate and noted that it would be inap¬propriate to send the Contemptor to jail for his first offence.

CANADA (ATTORNEY GENERAL) V 18335898 ALBERTA LTD (WHITECAP ENERGY INC), 2023 ABKB 357 Rule 13.6 (Pleadings: General Requirements) The Attorney General of Canada (the “AGC”) applied to revive a dissolved corporation to issue a Notice of Assessment in respect of tax amounts owing to the Canada Revenue Agency.

The Court noted that a “creditor” has standing to ask that a dissolved corporation be revived pursuant to s 206.1(a) of the Alberta Business Corporations Act, RSA 2000, c B-9 (the “ABCA”). However, the Court determined that the AGC did not have standing to revive the corporation under section 206.1(a) of the ABCA because tax liabilities do not become debts until the taxes are assessed and a Notice of Assessment is issued. The AGC was therefore not a creditor because, while an assessment had taken place, no Notice of Assessment had been issued.

The Court then considered whether the AGC was an “interested person” pursuant to s 206.1(d) of the ABCA. The Respondent objected to relief being granted under s 206.1(d) as only s 206.1(a) was named as the basis for the AGC’s Originating Application. The Court noted that Rule 13.6(3)(r) requires a party to state the provisions of an enactment that may take another party by surprise. However, the Court determined that, absent a requirement to plead a specific enactment, relief supported by the facts pleaded is available even where a wrong statute is pleaded. The Court allowed the AGC’s Application.

Fall 2023

75

KLASSEN V CANADIAN NATIONAL RAILWAY COMPANY, 2023 ABCA 150 (SLATTER, WAKELING AND ANTONIO JJA) Rules 13.6 (Pleadings: General Requirements) This was an Appeal from a Case Management Decision certifying a Class Action and denying Summary Dismissal of that Action. The Defen¬dant was a railway company. In the Statement of Claim, the proposed class Plaintiffs alleged that the Defendant’s sounding of train whistles at grade crossings in the County of Parkland amounted to a private nuisance.

To achieve certification of the Class Action, the proposed Plaintiffs were required to demon¬strate, among other things, that the Statement of Claim disclosed a reasonable cause of Action. In that respect, the Court observed that the applicable test is whether it is plain and obvious, assuming the facts pleaded to be true, that each of the Plaintiff’s pleaded claims dis¬close no reasonable cause of action. The Court added that a Court may refer to any documents or facts that are referred to in the Pleadings and that a Statement of Claim must always be assessed against the legal background, noting that the Statement of Claim pleads only facts, pursuant to Rule 13.6(2).

Applying the test, the Court held that the State¬ment of Claim did not disclose any reasonable cause of Action. As a result, the Appeal was allowed, and the certification Order was set aside. The Court did not consider the Defen¬dant’s Appeal of the Summary Dismissal Order, since its conclusion on the certification Order rendered the issue moot.

SULTAN MANAGEMENT GROUP (RE), 2023 ABCA 110 (WATSON, CRIGHTON AND HO JJA) Rules 13.14 (Endorsements on Documents) and 13.15 (When Document is Filed) The Defendant appealed from a Decision grant¬ing a Bankruptcy Order to the Plaintiff. Having found that there was no merit to the ground of Appeal, the Court dismissed the Appeal.

The Defendant had borrowed substantial funds from the Plaintiff. Upon events of default, the Plaintiff filed a Statement of Claim against the Defendant seeking Judgment for the out¬standing amount. The Parties later entered into a Forbearance Agreement acknowledging the debt. A repayment schedule was agreed upon. The Defendant consented to a Judgment against it for the full amount owing in the event of the expiry or termination of the forbearance period.

On November 2, 2020, the Plaintiff informed the Defendant that another default had occurred. Seeing that the Defendant did not cure the default, the Plaintiff submitted a Bankruptcy Application (the “Application”) to the Court on July 8, 2021. Due to a processing backlog in the Court of Queen’s Bench at that time, the Application was not stamped filed until September 7, 2021. The stamp date was contrary to a confirmation email from the Court on July 8, 2021, which stated: “If accepted, it will be filed with the date that it was received, regardless of processing times”.

The Chambers Judge determined that, for the purpose of assessing whether there was an act of bankruptcy during the six-month period set out in section 43(1) of the Bankruptcy and Insolvency Act, RSC, 1985, c B-3 (the “BIA”), the Application was filed on July 8, 2021. Relying on Rule 13.15, the Defendant argued that the Chambers Judge had erred in making such finding.

The Court found that the Application was a commencement document and therefore was subject to Rule 13.14(1), which requires the Court, upon being presented with a commence¬ment document for filing, to complete the filing process, stamp the Application, and provide a bankruptcy number.

Noting that the delayed filing was caused by a processing backlog, and that the Plaintiff used diligent efforts to follow up with the Court of Queen’s Bench, the Court held that there was no error in the Chambers Judge’s determina¬tion that the filing date was July 8, 2021, which was supported by evidence and the procedural history. Furthermore, dates relied upon by the Plaintiff with respect to the act of bankruptcy and the estimated value of the Defendant’s assets in the Application would remain the same and were within six months of either July 8 or September 7, 2021, thus satisfying sections 42(1)(j) and 43(1) of the BIA. As such, there was no substantial injustice to the Defendant.

76

The Barrister

ACTLA Sustaining Members The Alberta Civil Trial Lawyers Association wishes to acknowledge the following members who have shown their support through becoming Sustaining Members of the Association

Daniel Alvarado

L.D. Todd Litwiniuk

Nore Aldein (Norm) Assiff

James Ludwar

Ryan Berget

Robert J. MacKay

R. Travis Bissett

Megan L. McMahon

Maurice J. Blain

Robert G. McVey KC

Tara Cassidy

Joe V. Miller KC

Hollick Chipman

Waverly Muessle

Conor J. Clark

Joe A. Nagy

Brian Conway

Dana C. Neilson

Terrence A. Cooper KC

James Royal Nickerson KC

Meghan Gellein Corrin

Michael O’Brien

Robert L. Duke KC

Branislav (Brad) Popovic

Mark E. Feehan

Donna Cheryl Purcell KC

Gary R. Frank

Greg Rodin KC

Jackie Halpern

Kathleen A. Ryan KC

Sandra L. Hawes

Ari Schacter

James A. Hea

Martin Schulz

William H. Hendsbee KC

Mark Alexander Smith

William K. Horwitz

Senia Tarrabain

Cheryl L. Hostyn

Edward Tawkin

Ross A. Kaplan KC

Urvil Thakor

Walter W. Kubitz KC

Brian E. Thompson

Mark Lawson

Timothy R. Wood

Roy E. Link

David G. Yanko

Fredric Litwiniuk

Fall 2023

77

ADVERTISERS INDEX FC | CaseMark Financial 1 - 800 - 763 - 0025 www.casemarkfinancial.com

48 | Bottom Line Research 403 - 688 - 2119 www.bottomlineresearch.ca

8 | ACTLA Office Space executivedirector@actla.com

48 | Viewpoint 1 - 877 - 462 - 4216 viewpointwest@vp-group.ca

12 | Stark Mediation & Training 403 - 969 - 7967 starkd@shaw.ca

55 | Grover Law Firm 403 - 253 - 1029 www.groverlawfirm.com

13 | AssessMed 780 - 328 - 6476 refer@assessmed.com

56 | NYRC 780 - 229 - 5200 www.nyrc.ca

14 | Michel V. Lavoie 780 - 483 - 8311 mvlavoiemd@shawbiz.ca

63 | McKellar Structured Settlements 1 - 800 - 265 - 8381 www.mckellar.com

19 | Bridgepoint Financial 1- 888 - 800 - 4966 www.bridgepointfinancial.ca

69 | Envista Forensics www.envistaforensics.com

20 | MDD Forensic Accountants 780 - 497-0109 www.mdd.com

73 | Marney Lutz Mediation 403 - 612 - 7214 marneylutzmediation.com

26 | Wahkohtowin Law & Governance Lodge wlgl@ualberta.ca

73 | David Kitchen Mediation 403 - 620 - 2194 davidkitchenmediation.com

27 | Clae Willis 1-877 - 227 - 3752 clae@bellnet.ca 28 | Donna Purcell KC Law 1 - 833 - 377 - 2529 www.dpqclaw.com

73 | Detomasi Dispute Resolution 587 - 349 - 5691 detomasi.ca

42 | Integra 403 - 621 - 1179 erica@integraconnects.com 46 | S.M Bespoke 780 - 722 - 0237 smbespoke.ca

77 | Joseph Nagy Injury Law 825 - 480 - 4452 www.josephnagy.com www.centre101.com BC | Assiff Law 587 - 524 - 3000 www.assifflaw.com

Interested in advertising in the Barrister?

Email communications@actla.com

78

The Barrister

CALL FOR

ARTICLE SUBMISSIONS The Winter Edition of The Barrister is coming!

Continue to submit your stories from the courthouse, or submit an original article for our end-of-year edition! The theme is Animals In Tort Law. To learn more, email communications@actla.com

Barrister

the

80

The Barrister