The Barrister - Winter 2022: All About Advocacy

WINTER

the

Barrister

By Keith McLaughlin

By Shelagh McGregor

By Kerry Gellrich

By Eugene Meehan, K.C.

By Walter Kubitz, K.C. & Linda Jensen

By Philip Tinkler

By Harris Hanson

By Amani Abdu

THE BARRISTER EDITORIAL BOARD

The contents of The Barrister are for informational purposes only and do not constitute legal opinions by the Alberta Civil Trial Lawyers Association, it’s 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

Nash Calvert Editor in Chief

Amani Abdu Committee Member

Kerry Gellrich Committee Member Justin Monahan Committee Member

Peter Trieu Committee Member

ACTLA Mission Statement:

Advocating for a strong civil justice system that protects the rights of all Albertans.

2022-23 BOARD MEMBERS

Chair: Angela Saccomani, KC

Past Chair: Maia Tomljanovic

Vice Chair: Owen Lewis Secretary: Mike McVey Treasurer: Jillian Gamez

Members-at-Large: Jackie Halpern, KC Joseph A. Nagy Michael Hoosein

Geographical District Representatives: North West: Michael Hussey 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

Bookkeeper

Leonie Philp | admin@actla.com

PAST PRESIDENTS

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

Letter from the EXECUTIVEDIRECTOR

What a year 2022 has been.

The ACTLA office has seen some significant change this year. In the last issue, I had the opportunity to announce my appointment as Executive Director. In this issue, I am pleased to welcome to our new Communications & Event Services Administrator - Nash Calvert. Nash joined our organization in mid-October and has already done some excellent work - including the execution of our most recent in-person Masterclass events.

2022 was filled with an array of both challenges and victories. We were able to return to in-person learning events for the first time in years, getting to network with our colleagues and hear from speakers from across the country. We held multiple high quality online learning events through the year, ranging from Lunch & Learns to HalfDay webinars. We’ve learned about our strengths as an organization and our abilities to persevere through challenging times.

Jeong, Executive Director ACTLA

A common tradition every new year is that of New Year’s Resolutions: asking ourselves what new habits we want to build or setting new goals for ourselves. As our organization heads into 2023, we are doing exactly that. We recently sent out a Membership Satisfaction Survey to ask our members what we can do to better serve them (if you haven’t filled it out yet be sure that you do!). In 2023 we aim to set this organization up for long-term success in any way that we can.

I’m looking forward to everything we get to offer our members next year, and I am grateful for all those who continue to support our organization. So, with that being said, I wish you all a healthy and happy holiday season, and I’m looking forward to continuing to connect with our membership in the new year.

Sincerely,

Joy Jeong Executive Director

ACTLA

executivedirector@actla.com

Joy

Letter from the BOARD CHAIR

Colleagues and Friends,

The magazine rounds out the year with an important topic: Advocacy. It’s what we do. As lawyers, we represent clients no matter their individual status, ability, career choice, or business success. As your Board, we unequivocally endorse the principles of inclusion, diversity, and equity. More broadly, we advance the concerns of our members and advocate for access to justice. To these ends, we choose to speak for those not able, in the moment or in life and society, more generally.

As the calendar draws to a close, it is natural to reflect on the year that has been.

Over the last many months, we have experienced a period of transition as people adjusted to changing work environments impacted by COVID.

At the outset of the pandemic, ACTLA was a frontrunner in initiating learning and training as we helped colleagues to use virtual platforms and get on with the practice of law. We brought ACTLA’s voice to discussions with the LSA, CBA and the Court and regularly reported to our membership. We appreciated the positive changes at the Court and continue to welcome that onward movement.

Members of our ARC committee worked with ALIA to promote a change to Rule 4.31 that requires consideration of the actions of defendants in a delay analysis.

We raised issues with ALIA and met in person with our colleagues at the LSA regarding the Innovation Sandbox and welcome an open dialogue on this topic moving forward.

We wrote letters to key government ministers on points of access to justice. We support our criminal defence counsel colleagues and their request for fair and sustainable legal aid funding to be at par with inflation and in keeping with higher paying provinces. We support a Unified Family Court on behalf of our family law members and the families they represent. We support a revision to the Oath of Allegiance and request a legislative change to the Oaths of Office Act to allow articling students the option of pledging allegiance to the King.

We have asked our government for a seat at the table when auto insurance tort reform is considered and continue to advocate against no-fault or any hybrid no-fault system.

As an association of trial lawyers and members of a long-standing profession, we are called to uphold the administration of justice in what we say and how we say it. At this time of year when a disparity of riches and disadvantage may be more apparent, we advocate for those who can not always find their voice. While that responsibility is significant, it is also rewarding.

On behalf of the Board, thank you for your commitment and support of our organization. It is a privilege to represent you.

Merry Christmas and happy holidays to all.

Angela V. Saccomani, K.C. Chair

Angela V. Saccomani, KC, Board Chair ACTLA

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Letter from the Editor

Greetings ACTLA Members,

I would like to take a moment to congratulate Joy once again on her appointment to Executive Director of ACTLA. Having worked with her these last few months of the year, I am beyond excited to see what 2023 brings for the organization under her leadership.

As for me, I am taking over from Joy as communications & event services administrator for ACTLA, as well as Editor-In-Chief of The Barrister. This release marks the first of what I hope will be many issues helping to build this magazine. I have lofty goals, not the least of which are to lead efforts in digitization and help establish The Barrister as a more widely accessible resource.

I studied Commerce and received my bachelor’s degree from MacEwan University where I majored in Marketing and minored in “legal studies in business,” which is just a fancy way of saying I read a lot of CanLII and wrote some papers. I have worked for Bell Media, various promotional products distributors, and am also communications “director” for the Edmonton Cosmopolitan Music Society – once upon a time I even ran a podcast. All this to say my background is certainly not what would traditionally be expected within a Lawyer’s Association, but my hope is that I can take advantage of the range of things I’ve had experience in to help expand upon ACTLA’s communications and improve upon The Barrister to the benefit of everyone.

In this issue, Keith McLaughlin (New West Public Affairs) speaks to the power and importance of advocacy and working with the government, while Walter Kubitz (Kubitz Law) and Linda Jensen (Bottom Line Research) present an incredible research paper on “Obtaining Leave for Non-Parties to Attend Questioning”. Shelagh McGregor (Weir Bowen LLP) and Kerry Gellrich (North & Company) look to the past for “A Letter to my Past Self” and “An Astoundingly Brief History of Western Advocacy” respectively. Eugene Meehan (Supreme Advocacy LLP) provides a humorous commentary in “Don’t Argue With An Idiot,” and I have selected two articles from 2006 that I felt spoke to the importance of the legal profession and advocacy within our society.

I hope you enjoy this issue of The Barrister, and if you have any questions or would like to submit an article for a future issue, please do not hesitate to contact me at communications@actla.com

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

Seminars Committee Update

December is always a time to look back on the year that was and look forward to the year to come.

Over the past year, ACTLA’s Seminars Committee, which includes myself; Sarah Coderre, Co-Chair and Geographical Representative for Calgary; Ronke Omorodion, Geographical Representative for Central Alberta; Travis Bissett, Geographical District Representative for South East; new member Areezah Jiwa; Executive Director, Joy Jeong; and Communications and Event Services Administrator, Nash Calvert, have been working hard to bring our members exceptional seminars, webinars, and lunch ‘n’ learns.

We started 2022 off with a bang with two great lunch ‘n’ learns: Tax Law for Non-Tax Lawyers and 2021 Personal Injury Case Law and Review.

Our eagerly awaited Litigation Potpourri half day webinar occurred in March, followed by two webinars focused on our paralegal and assistant members: Paralegal e-discovery and Good Relationships with Assistants. Other webinars included topics such as Accident Injury & Healthcare Innovation; Concussions and Mild Traumatic Brain Injuries, co-presented with Integra; Civil Enforcement; and Technology. In September, we hosted our second half day webinar of the year, focused on Trial Advocacy.

We were very happy this year to return to in-person events, with our May

Treasurer, ACTLA

Board

of Directors seminar focused on Questioning, and our fall Masterclass focused on areas of interest to litigators. It was great to connect with our members and sponsors, safely, in person.

As we look forward to 2023, we also look back to what made ACTLA’s seminars so successful in the past. Based on the results of the Membership Survey, our members have a deep interest in personal injury topics, as well as practice management topics. They are interested in a mix of in person and virtual events.

Well, our members spoke, and we listened.

We are proud to return to two in-person full day events in 2023, along with two half day virtual webinars.

Mark your calendars for the below dates and topics:

March 21 (Calgary) and March 23 (Edmonton): Plaintiffs’ Only Full Day Seminar

May 11: All Things Expert

June 15 :Junior Lawyers’ Half Day Webinar

October 2 (Calgary) and October 4 (Edmonton): Masterclass

In addition to these seminars and webinars, there will be a number of lunch ‘n’ learns focused on medical topics and other topics of interest to personal injury lawyer, including a case law update.

We have also partnered with the Alberta Legal Coaches and Limited Services Society to facilitate training sessions for their members.

Thank you for your continued support of ACTLA, through your membership, donations, and attendance at our seminars. See you in 2023!

Jill Gamez Co-Chair, Seminars Committee

Thank you to all our Speakers!

We would like to thank all our speakers for our 2022 CPD offerings:

Kenneth Keung; Maia Tomljanovic; Craig Good; Steven Thannhauser; Ronald Matthezing; Samantha Rabatich; Dean Das; Holly Keen; Melissa Preston; Bryan Hooking; Darrin Hannaford; Michael W. Jones; Dr. Salma Mitha; Amy Lind; Christopher Samuel; Michael Kirk; Dr. Shawnda Lanting;

Mark Jones; Amber Poburan; Benjamin Kormos; Joyce Bolton; Jeff Sermet; Clint Docken, KC; Joe Miller, KC; Mona Duckett, KC; Lance McClean; Craig Floden; Howard Levitt; Cara Brown; David Stark; Richard Mallett; and Angela Bespflug.

The Power of Advocacy & How it is Done Right with Government

By Keith McLaughlin New West Public Affairs

Advocating for a strong civil justice system and working with government to ensure the voice of plaintiffs is heard and the rights of Albertans are protected is a core function of the Alberta Civil Trial Lawyers Association. Effective advocacy is the essence of successful government relations, but the question ishow is it done well?

Effective advocacy with government is about persistence, clarity, flexibility and adaptation, relationship-building and ally-making. Some of these elements may seem contradictory – persistence and clarity and flexibility and adaptation are not exactly synonyms of one another - but government relations is more of an art than a science.

When we talk about persistence, we mean being omnipresent as a stakeholder. We’re not referring to being dogmatic in a position or necessarily dogged in the pursuit of it. Persistence means practicing government relations consistently, every month and every year. If stakeholders only engage intermittently when there

is a new problem or when there is a specific niche request, the chances your problem will become a reality and your request unrealized are high. This is because you don’t have ongoing relationships and allies in government.

Ally-making is a result of relationship-building, and relationship-building only happens through persistent government-relations activity. To be a true ally of government, no matter its political stripe, is to be flexible and adaptable. Certainly, organizations must be rigid and not compromise their core beliefs or betray their institutional mandate, but to be a trusted partner with government is to be solutions-oriented and that requires an ability to adapt to changing circumstances and be open to different ways of solving a problem.

Clarity of messaging and intent is important, too. Clarity of intent refers to the philosophical orientation to working with government. Being adversarial with government is a road to nowhere and burnt bridges and can cause long-term, multi-year damage to

“If stakeholders only engage intermittently when there is a new problem or when there is a specific niche request, the chances your problem will become a reality and your request unrealized are high.”

the reputation of an organization with government. Conversely, if an organization is clear that it seeks to work with government, be solutions-oriented, and can be trusted not to wage wars of aggression – there is then a foundation for a long-term positive relationship with government. Clarity of messaging is fairly straightforward. It means are you communicating in a way that others can understand you. It’s about knowing your audience and tailoring how you speak to what you know about that audience.

With these high-level aspirations noted, another question becomes how is ACTLA doing on these scores? (Let’s remember – “scores” in this context isn’t like a sports game and points – it’s more akin to a symphony). I would say ACTLA is doing fairly well but as part of the team that consults for and advises ACTLA on its government relations strategies and activities, I am unquestionably biased.

I think ACTLA is doing well as it is broadening the issues on which it engages with government. For example, consider ACTLA’s discussions with the Ministry of Justice on issues like Legal Aid and a Unified Family Court, which demonstrate how ACTLA is being omnipresent with government and identifying new areas on which to work with government.

At the same time, ACTLA is being very clear with all areas of government on its views on auto insurance and how discussions there are fundamentally about civil rights. ACTLA is clear that a no-fault auto insurance system is wrong for the province and its residents, but also is a willing party to work with government as a trusted partner to think about ways to ensure affordable premiums.

Consumers care a great deal about affordability, but they also care about things like insurance industry transparency and general concepts of fairness. With an election approaching in Alberta where affordability will be an issue, it is critical to share information with the public and political parties about how auto insurance works, how profitable the industry is, and how important it is to protect fundamental civil rights. ACTLA is working on executing a comprehensive pre-election strategy in 2023 and it will be one that is designed to achieve long-term success and position the association as a trusted partner

of government. It will also be consistent with how we know advocacy is done well. Advocacy done well is powerful. Advocacy done poorly is also powerful. By embracing a long-term, forward-looking, and value-driven government relations philosophy ACTLA can ensure it is on the positive side of that outcome.

A Letter to My PastSelf

By Shelagh McGregor Weir Bowen LLP

This job is hard. It sounds like a simple concept, but until you do it, you have no idea just how hard it can be. Advocating for people who are going through crisis and catastrophic circumstances is not easy. Sometimes it feels like the Rules of Court, case law and legislation are all stacked against the little guy. There will be many times where you wonder whether it's worth the effort and sacrifice. It is not easy to run trials where defendants are automatically given more credibility than your clients due to their social status, and the burden is much more heavily on you than your defense counterparts. But that's where the satisfaction lies, if you win. It is not easy to win the kinds of cases that you've taken on and if you lose, it's expected. It's not easy to get used to that, but it's reality, and you will get used to it.

The satisfaction comes when you win a case that you didn't expect to win, where the odds are against you. It will happen

to you more than once. Those cases are the ones where your advocacy skills, and all the time you spent learning how to put together a case and present it, could be the difference maker. It's worth spending that time and extra effort to learn how to be the best lawyer you could be. Clients deserve it, and so do you.

It is amazing how rapidly one goes from being the mentee to being the mentor. All of a sudden, you become a leader to people, and you actually know a thing or two! In order to get there, take time to identify the people who you want to emulate, seek them out, and be persistent in seeking their mentorship.

This job defines who you are. You are never “not a lawyer”. From this point forward, you can't close your laptop at the end of the day and turn off “being a lawyer.” When you do work for individuals who are going through the kinds of crises that your clients go through, the burden will be heavy at times. The ethical obligations of being a lawyer also carry more weight. Seeking societal change through the work you do is an additional weight. Make sure you spend the time determining what you

can, and cannot, do for people. It does not help anyone to take on every cause that comes your way. Spend the time becoming competent to assist people in a certain way, and then devote your time and energy in helping people in that way. It will be better for you, and for your clients. You will not be able to help everyone, and that's OK. You are just one person. The goal is to make a difference for the people that you are meant to help. You are not meant to help everybody.

The satisfaction that comes from getting results for your clients when the chips are stacked against you balances out the tough moments. It is important to always keep the bigger picture in view. Your role is to try to balance out the incredibly uneven odds that your clients face. Most of the time it is a slog that you cannot change, but, every once in a while, you CAN make a difference, which feels triumphant. There's no better feeling in the world, and it is a privilege to be able to do that for people.

This job defines who you are. You are never “not a lawyer”. From this point forward, you can't close your laptop at the end of the day and turn off “being a lawyer.”

An Astoundingly Brief History of WesternAdvocacy

By Kerry Gellrich Partner, North & Company

Like most good things (toga parties, wine, comfy sandals) the legal profession’s origins are in ancient Greece and Rome. The earliest lawyers were arguably the orators of ancient Greece. However, in Greece it was illegal to take payment for pleading the cause of another. Ironically, this law was generally ignored by the early lawyers, but it did mean that no one could publicly hold themselves out as a professional advocate. The work around was to proclaim themselves a ‘friend’ of the litigant, who was simply involved in the case out of the charity of their heart.

Roman Emperor Claudius, who you may remember as the old guy from the Gladiator movie, abolished the ban on legal fees, but limited payment to 10,000 sesterces. Apparently a sesterce had a value of 2.5 donkeys. What a lawyer would do with 0.5 of a donkey remains a mystery to me. I tried to do a currency

conversion of sesterces to Canadian dollars, but math is not my strong suit on the best of days, and once farm animals are involved, it all goes to nuts. The bottom line is that then, as now, lawyers did not make much ‘chedda’.

During the reign of Emperor Augustus (63BC – AD14), the first law school was established in Beirut. The law school was meant to be a repository of imperial constitutions, laws, and jurisprudence. A course of study there was 5 years, and everything was done in Latin. A graduate was awarded a certificate that allowed them to work as Court advocates or in the imperial civil service. The law school of Beirut developed a respected reputation and was known as the “Mother of Laws”. Rumour has it the first Carbolic Smoke Ball was hosted there in 42BC. This beacon of ancient legal learning came crashing down, literally, in 551AD when Beirut was smacked with a massive earthquake. Assumedly there was some kind of problem with their insurance policy because the law school was never rebuilt.

After the fall of Rome in 476, the legal profession pretty much collapsed along with the rest of Europe. Everyone was too

busy dying of disease and starvation to really add much to jurisprudence. Starting in the early 1200’s, a small number of clergy began to specialize in canon law, usually as part of their service to the church.

In 1218, a papal bull prohibited clergy from practicing in secular courts. After that, a shift took place, where some laymen began to practice law as its own profession, separate from the church. Lawyers organized themselves based on the trade guild models, which eventually became the four famed Inns of Court. Towards the end of the 1200’s, the trend towards legal professionalization led to government oversight. King Edward I (also known as Longshanks) enacted statues that prescribed rules of conduct, admission to the bar, legal procedures, and requiring oaths of loyalty from lawyers. However, Longshanks did not appear to support the universal right to counsel, at least not when it came to Scots. William Wallace, of Braveheart fame, in his trial for treason and civilian atrocities, allegedly “sparing neither age nor sex, monk nor nun”, was not afforded a lawyer. Poor Wallace was hanged, drawn, and quartered. A good lawyer may have gotten him off with a simple hanging.

“After the fall of Rome in 476, the legal profession pretty much collapsed along with the rest of Europe.”

1685 was a big year for the legal profession, because that is when everyone started wearing black robes. Previously, in 1327, King Edward III declared that all judges had to distinguish themselves by following a dress code when attending the royal court, which was a black or violet robe lined in silk or fur, and topped with a cute little chapeau. Lawyers, being free-spirited fashionistas, could still wear whatever they wanted; the usual attire were brightly coloured robes, saving red robes for special occasions.

In 1637, the Privy Council, likely annoyed with the flamboyance of lawyers, ruled lawyers needed to dress in accordance with their status in society, and lawyers were required to wear long dark gowns made from a rough blend of silk and wool. In 1685, King Charles II died, and all lawyers donned black mourning robes. Lawyers then realized black cloth was much cheaper and more stain-resistant than other colours, and the tradition of black robes stuck.

Skipping ahead a few hundred years and jumping across the Atlantic pond, the Law Society of Upper Canada was founded in 1797 at Wilson’s Hotel, likely in the bar. Ten lawyers, which represented 60% of all lawyers in Canada at the time, had gotten together to read “An Act for Better Regulating the Practice of the Law”. The six oldest lawyers there proclaimed themselves the first Benchers.

In 1905 the Alberta Act carved our province out of the greater North-West Territories. Since we were getting all official about things out here, the Alberta Law Society was founded in 1907. The rest, as they say, is history.

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Don’t Argue With An Idiot

By Eugene Meehan, K.C. Supreme Advocacy LLP, Ottawa

1. Don’t argue with an idiot

People watching may not be able to tell the difference.

2. When told to ‘F’ off And this, after sending Motion materials to your opposite number (here a Federal Government lawyer) in advance as a courtesy. Record it (you’ll need a dictaphone, or use your smart phone). When you next see him (it was a “he”) you tell him:

• you recorded it

• if he’s not civil and appropriate during the trial you will send the recording to a Court Reporter to be transcribed, then will send to the Discipline Committee of the Law Society

• you tell your client(s) to report any bad behaviour during trial to you

• (trial was 78 days, in Federal Court)

• he behaved.

Yes, a bully, but now a bully that had to behave.

No, don’t record, not now. Against Law Society rules now.

So, either you do an affidavit, or someone else “overhears” the conversation on speakerphone, and they do the affidavit.

3. To most judges bad behaviour makes bad advocacy Belligerent and discourteous behaviour in the eyes of strong judges is not persuasive. In fact, discourtesy in delivery can undermine an otherwise strong argument.

Points are won by being personally attacked, and you standing your ground, saying little or nothing, and instead of responding to the attack, responding only to the issues.

Judges know some people blow out other people’s candles so theirs burn a little brighter. Remember: judges are just lawyers with a whistle—they know what it’s like to be a lawyer.

4. Ask for costs, personally In Best v. Ranking1

• a lawyer was ordered to pay costs of over $84,000 personally under Ontario Rule 57.07

• and appeal costs of a further $30,000.

5. In the Court of Appeal, let go of the little stuff

Minor misstatements of the law or facts by the Court below aren’t going to win your appeal. Don’t set out just to whack the Court or judge below, rather identify major mistakes and criticise the rationale of the lower court’s decision.

Don’t whack the other side either — use courtesy. Advice given to Ed Bayda, former Chief Justice of Saskatchewan, during his first summer job (selling “waterless” cooking pots door to door): “People buy things from people they like.”

I co-argued Ledcor2. The Alberta C.A.3 judgment being appealed, twice referred to the “parole evidence rule”4, i.e., the criminal law spelling, not the contracts spelling. Because I was trying to overturn the Court of Appeal, I was so tempted to find a way in Q & A during Oral Argument to say “and not only that, the parole evidence rule, it went to jail, bad rule clearly, but now it’s out, who knew?” I bit my tongue. Tongue now recovered. I had to bite down hard.

1. Best v. Ranking, 2015 ONSC 6269

2. Ledcor Construction Limited v Northbridge Indemnity Insurance Company, 2016 SCC 37; Dennis Picco, K.C. of Dentons (Edmonton) for the other co-appellant

3. 2015 ABCA 121.

4. In paras. 12 & 13.

6. Practical reasons why civility is important

The harder you argue, the less persuasive you are. The more you press, the more you hype, and the more you urge, the more sales resistance you create and the more you start to sound like the guy from Fred’s Water Beds on Saturday night TV.

Real persuasion takes place when the reader thinks the conclusion is his or her own idea. Your job as an advocate is to help the judge find the right ideas herself that will lead her to decide the case your way. Offer a reasoned solution to the judge instead of arguing: here’s why I am right and here’s why you the judge must agree with me. The “I’m always right” technique doesn’t work with a teenager (my wife and I raised four), why expect it to work with a 50-year-old? Change your overall strategy over to the following: here’s the problem, but here’s also a reasoned solution.

7. Never respond in kind Remember the two Pig Rules:

Pig Rule # 1: Never wrestle with a pig—you only get dirty; and the pig enjoys it.

Pig Rule # 2: Never try to teach a pig to dance – it wastes your time; and it only annoys the pig.

8. When your opposite number keeps poking and provoking. Remember your self-esteem does not depend on affirmation from this person. Accept that some days you’re the statue, and some days you’re the pigeon. One day a rooster, next day a feather duster.

9. Getting Shouted Over.

When a lawyer I know (later appointed a judge) gets shouted over in discoveries her standard response is to say: “Shouting your questions and your responses doesn’t give the force of your statement additional weight beyond that of additional noise. Madame Reporter we’ll take a 10-minute break so Mr. X may compose himself”, and walks out with the client. And the transcript so records.

10. When you get the “shocked and appalled” letter

When you get a letter full of invective, the person sending it to you because they’re shocked and appalled, you may want you to respond the same way. Don’t. Respond, saying only: “I am in receipt of your letter of [date].” Don’t sign it yourself, have your secretary initial it. A personalized attack letter from an attackdog lawyer has all the credibility of a disbarred lawyer on a book tour. Don’t join the book tour.

11. When extreme hostility Respond to extreme hostility and baiting (as one Alberta judge did when called a “Motherf___g b_____d” by an accused) with “Lucky guess”.

12. When someone is “none the wiser” Last, hope for the opportunity that once in your legal career another lawyer (or perhaps a judge) will say to you: “Mr./Ms. ____, I have read your material and I must tell you I am none the wiser” – just so you can respond: “Perhaps, your Honour, but certainly better informed.”

If you stop to kick at every barking dog, on the way to where you’re going, you won’t get there.

Obtaining Leave for Non-Parties to Attend Questioning

By Walter Kubitz, K.C. Kubitz Law & Linda Jensen, Bottom Line Research

A number of decisions affirm the principle that questioning or examination on discovery is not open to the public, and therefore the right to attend is normally limited to the parties and their counsel. However, the case law also clearly recognizes that courts have discretion to make orders permitting a non-party to attend, where the circumstances make that appropriate and in keeping with the ends of justice.

The case law is not entirely consistent in identifying criteria to be satisfied in permitting attendance by a non-party. In some cases, the courts have taken a fairly narrow view and insisted that permission should be limited to circumstances where the nonparty’s attendance would serve the overall ends of justice, and not merely the interests of one party. However, most decisions show more flexibility, and have been willing to allow a non-party to attend where the person will be of assistance to counsel, will not interfere with the orderly conduct of the questioning, and is not him or herself anticipated to be called as a witness.

In the cases where non-party attendance was sought for medical reasons, the courts appeared to be influenced by affidavit evidence attesting to the medical condition of the party and the need for support during questioning, as well as letters or other relevant documentation from appropriate medical professionals. The case law also indicates that the burden to demonstrate a reasonable basis for permitting a non-party to attend questioning

lies with the party seeking their attendance. If that demonstration is made, the opposing party then has a burden to demonstrate reasons to the contrary, including any prejudice likely to arise.

Alberta Authorities

The Alberta Rules of Court, Alta Reg 124/2010 (“Rules”) provide that courts retain discretion and general oversight in relation to questioning, which gives them a general power to modify or waive rights arising under Part 5:

5.3(1) The Court may modify or waive any right or power under a rule in this Part or make any order warranted in the circumstances if [. . .]

(b) the expense, delay, danger or difficulty in complying with a rule would be grossly disproportionate to the likely benefit. [. . .]

(2) In addition to making a procedural order, the Court may do any one or more of the following: [. . .]

(d) make any other order respecting the action or an application or proceeding the Court considers necessary in the circumstances. [Emphasis added]

Although the Rules do not specifically address the question of who may be present during questioning, there is some guidance in the case law. An early decision on the point is Lynn v Toronto General Trusts Corp, [1945] 3 WWR 361, [1945] AJ No 45 (SC). In that case, the question was whether an elderly defendant, who wished to attend during examination of the plaintiff, could be accompanied by her son. The Court held that it was appropriate to permit the son to attend, as it would help calm the mother, both during the examination of the defendant and during her own examination which was expected to be required in the future. The Court identified two guiding principles: (i) examination for discovery is not open to the public; but (ii) there is a discretion to admit or exclude persons, according to circumstances and to secure the ends of justice:

1. The plaintiff herein is being examined for discovery by Mr. S.J. Helman, K.C., of the defendants’ solicitors on the record. Mrs. Georgieanna Cuddie, one of the defendants, is attending on the examination, as is her right. She is a very old woman, said to be over 80 years of age, and wishes to be accompanied by her son, Frank Cuddie. […] Mr. Helman […] urges that the son should be allowed to attend because his presence is likely to have a tranquillizing and composing effect on his aged mother, so that she will probably be better able to grasp the proceedings and appreciate the evidence to be given. This is a view with which I entirely agree, and it therefore remains to consider whether I have power to permit his attendance.

2. I am not aware of any Alberta cases on the subject. There have been a number of cases, however, in the Ontario Courts, […] which I have read, and which are doubtless applicable to cases under the Alberta Rules of Court. They hold two principles to be firmly established:

(1) That an examination for discovery is not open to the public (in fact one case goes so far as to hold that the examiner has no discretion to admit the public): In re Western of Canada Oil, Land and Works Co. (1877) 6 Ch. D. 109, at 110, 46 L.J. Ch. 683;

(2) That the examiner has a discretion to admit or exclude persons desiring to be present according to the circumstances of the case and to what he considers calculated to secure the ends of justice.

3. I am firmly of the opinion that it will secure the ends of justice to admit Frank Cuddie to this examination, for the reasons advanced by Mr. Helman, and for two others that occur to me. One is that this defendant, Georgieanna Cuddie, will doubtless require to, herself, submit to examination for discovery in the near future, and she will likely acquit herself more creditably thereon if she is induced to maintain a cool and composed attitude on this examination. The other is that Frank Cuddie himself may be considered to have an indirect but very real interest in this action. For all these reasons, I shall permit the said Frank Cuddie to attend. [Emphasis added]

Other cases in Alberta that cite Lynn have arisen in circumstances that did not involve a party with a health issue. For example, in Austec Electronic Systems Ltd v Mark IV Industries Ltd, 2001 ABQB 99, 284 AR 386, the defendant sought permission for its Ontario corporate counsel to attend during examination on discovery in order to assist defendant’s counsel of record. Although agreeing with the principles from Lynn, Burrows J refused the request, finding that in the case before him, the benefits of allowing corporate counsel to attend would apply to the defendant only, and would not have any benefit to the ends of justice overall:

12. Mark IV submits that though Ms. Bevan is not counsel of record she is counsel for Mark IV and is therefore entitled to attend by right. I reject the submission. The persons entitled by right to attend are the parties to the litigation and the counsel they have engaged to represent them in the litigation. If other persons, including lawyers retained by the party for purposes other than to be counsel of record are to be permitted to attend, it can only be by consent or by leave of the examiner (the clerk) or the court: Abulnar v. Varity Corp.

13. Austec does not consent to Ms. Bevan’s participation. It is not my role to judge the reasonableness of its refusal to consent and I do not do so. My role is to judge whether Mark IV’s reasons for wanting Ms. Bevan to participate are sufficient to justify deviation from the normal rulethat only the parties, counsel and persons present by consent can attend at examinations for discovery.

essentially as an observer. He obviously would not be there to assist counsel for the plaintiff. Nor would he be there to assist or coach the defendants in answering questions put to them by counsel for the plaintiff. It may be true that certain questions might be asked that the defendants could not answer but could answer if the adjuster was there to provide them with information. That might be of some assistance to examining counsel, but it would not be sufficient reason to allow the adjuster to be present when the examining counsel did not want him to be there.

2. There is no compelling reason why Marty Schmidt should be present at the examination for discovery of the defendants and I accordingly order he is not entitled to attend.

3. […] I take it that he wants to be in attendance when counsel for the defendants conducts an examination for discovery of the plaintiffs.

[…]

14. In my view deviation from the normal rule is not justified in these circumstances. From Mark IV’s point of view Ms. Bevan would no doubt perform a useful function and her participation would be efficient and economical. It is not, however, a service that can only be provided by Ms. Bevan. McCarthy Tétrault certainly has the resources to provide lead counsel with assistance if that is required. Furthermore, the anticipated benefits of Ms. Bevan’s attendance are one sided - they enure to Mark IV alone. I cannot see that the ends of justice would be advanced in any respect by Mark IV being allowed to enjoy those benefits over Austec’s objection. [Emphasis added]

The Lynn decision was also referred to in Brown v La France, [1995] AJ No 1371. Master Quinn took the view that a non-party might be allowed to attend examination for discovery where his/her presence would be helpful to examining counsel. In Brown, the defendants sought permission to have the adjuster for their insurers attend examinations for discovery of both the plaintiffs and the defendants. Master Quinn held that he could not attend the defendants’ examinations, since in that situation he would be merely an observer. However, Master Quinn took a more generous view than in the Austec decision, and granted permission for the adjuster to attend the examination of the plaintiffs, since his purpose in that case he would be to provide assistance to defence counsel:

1. Counsel for the plaintiff objects to the adjuster for the defendants’ insurers being present when he conducts his examination of the defendants. If the adjuster can attend at that examination he would be there

6. Some of the cases seem to say that if a non party can be helpful to examining counsel such non party should be allowed to attend to assist counsel. Other cases seem to say that unless it can be shown that the presence of a non party is necessary for the assistance of examining counsel such non party should not be allowed to attend.

7. There is not much Alberta law on this subject, but what there is appears to favour what may be helpful to examining counsel rather than the more draconian view that it is only what is necessary for examining counsel. The main case in point is Lynn v. Toronto General Trust Corp. and Luddie, [1945] 3 W.W.R. 361.

8. I would therefore hold that the insurance adjuster Schmidt be allowed to attend with counsel for the defendants when the plaintiffs are being examined for discovery. [Emphasis added]

In Foundation Group Mergers & Acquisitions Ltd v Norterra Inc, 1999 ABQB 442, 246 AR 79, Master Funduk did not refer to Lynn, but provided some indication concerning the reasons that may justify attendance by a non-party, and the burdens that apply in determining whether permission should be granted. Master Funduk indicated that the initial burden was on the party seeking permission to show why the non-party should attend, and then the burden would shift to the party opposing permission, who might object on grounds of prejudice. In the case before him, the initial burden was not satisfied:

23. […] I do not accept Brown’s view that the discretion by the court to let a non-party be present at the officer’s examination is to be decided by whether there will be prejudice if the non-party is allowed to be present. That is a wrong test. It is a right test, or part of a right test, when

exclusion of a litigant is sought. It is the wrong test to apply when the issue is whether a non-party should be present. Because there is no basic right for a non-party to be present the test enunciated by Brown converts the “no right” to a “right”.

24. If the Defendant makes out a case for Burnett and Russell being present at Anderson’s examination for discovery the burden then shifts to the Plaintiff to show why that should not be so and, if it wants, it can argue prejudice. But the Plaintiff need not show prejudice unless the Defendant first makes out a case for attendance.

[…] 26. The Defendant has not satisfied me that it would be appropriate to let Burnett and Russell be present at Anderson’s examination for discovery. Convenience is not a sufficient reason. […].

27. It is not suggested, and more important there is no evidence to support it, that Burnett and Russell are “experts” or would be present at Anderson’s examination for discovery to assist him in “very technical matters”, a phrase used in our Civil Procedure Guide previously referred to. [Emphasis added]

A more recent Alberta case indirectly indicating the possibility to have a non-party attend questioning for medical reasons is Bourque v Tensfeldt, 2017 ABCA 356, [2017] AJ No 1130. The decision making the order to permit attendance of the non-party does not appear to be reported; however, the above decision refers to the existence of that order:

3. On December 8, 2016 the appellant was ordered to attend for questioning. On May 18, 2017 the appellant was found to be in contempt by another chambers judge for failing to attend. That chambers judge, however, created an opportunity for the appellant to purge her contempt. He directed that counsel for the respondent should be accompanied at questioning by a female colleague, and that the appellant could have somebody accompany her as well. The appellant appealed that order, which is the appeal that the respondent now applies to strike. The appellant’s application for a stay of that order was dismissed: Bourque v Tensfeldt, 2017 ABCA 236. […].

In the subsequent decision dismissing the application for a stay of the order to attend questioning (Bourque v Tensfeldt, 2017 ABCA 236, [2017] AJ No 901), the Court confirmed that the original order arose after the plaintiff failed to attend for questioning, allegedly for reasons related to her state of health:

[10] Ms. Bourque argues that Ackerl J erred by finding her in civil contempt for failing to attend questioning because she had a reasonable excuse for not attending: she suffers

from various medical conditions (including osteoarthritis, scoliosis and angina) and attending questioning in person would pose a significant risk to her health.

While these Alberta authorities are limited in number, they do provide support for the general proposition that courts may grant permission for non-parties to attend questioning over the objection of opposing counsel. Further, they may also suggest that an order permitting attendance may be appropriate where doing so would serve the ends of justice.

Decisions from Courts Outside Alberta

Decisions from courts outside Alberta also provide support for allowing a non-party to be present during questioning.

In Ormiston v Matrix Financial Corp, 2002 SKQB 257, [2002] 9 WWR 374, the Court criticized the Austec decision, discussed above, as a being overly restrictive and “inconsistent with the majority of non-Alberta authorities prescribing the requirements for allowing a non-party to attend at a discovery” (at para 15). Ormiston dealt with an application by the plaintiff for an order allowing a financial planning expert to assist her counsel at examinations for discovery, and the analysis was therefore focused on the presence of experts at questioning. The Court provided a list of principles derived from case law that described circumstances where attendance of a non-party might be admissible, and the burden borne by each party:

16. From the aforementioned and other authorities reviewed, I have extracted the following general principles

Linda Jensen, LL.B., B.C.L., LL.M.

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linda@bottomlineresearch.ca

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applicable to the presence of nonparties at examinations for discovery:

1. Only the parties and their respective counsel, or in the case of the corporation, its agent, may attend an examination for discovery unless the parties have consented to the presence of a non-party, or the examining officer has granted the non-party leave to be present. In this jurisdiction, the local registrar or deputy registrar would normally be the examining officer, and failing them, a judge of this Court.

2.The examining officer and/or judge may exercise his or her discretion by granting leave for a non-party to assist at an examination in any of the following circumstances, which are not intended to constitute an exclusive list or to limit the discretion of aforementioned persons:

(a) where the level of expert knowledge, technical, scientific or otherwise, relevant to the issues in an action is beyond the level of skill and knowledge normally expected of legal counsel and therefore legal counsel may be unable to conduct a proper examination without the assistance of an expert, specialist or technician. […].

(b) a non-party who is not a professional expert concerning a particular complex issue before the court but who has the knowledge or abilities that will make the discovery process run smoothly and expeditiously, usually will be allowed to attend an examination for discovery in the capacity of an expert assistant. The ability to manage documents in an action involving a substantial number of documents, or familiarity with financial records, may be sufficient to warrant such person being given leave to assist at an examination;

(c) where a party requires the assistance of a nonparty in special circumstances; for example, an aged mother might be accompanied by her son or daughter.

3. The burden of establishing that a specific non-party should be allowed to attend at an examination for discovery rests with the party seeking the non-party’s assistance. In most circumstances an affidavit setting out the applicant’s needs, counsel’s concerns and how the non-party can assist will be essential.

4. Where the applying party has met the requirements set forth in paragraphs 2 and 3, the burden of proving prejudice or other ground for excluding the nonparty rests with the party opposing his or her inclusion from the examination for discovery process.

17 What constitutes prejudice will vary from case to case. […]

The decision in Benson Construction Management Corp v Great Canadian Casinos Inc, 2003 BCSC 1406, [2003] BCJ No 2141 provided support for allowing a non-party to be present for reasons related to the health or well-being of a party in attendance. The Court granted permission for the daughter of a person, Bell, who was described as the “moving force” of the corporate plaintiff, to attend the examination on discovery of the defendant’s representatives. Bell was 73 years old, obese and in ill health, and his daughter wished to be present in order to attend to Bell’s medical needs. The Court noted the affidavit evidence attesting to Bell’s medical condition, and granted permission, on condition that the daughter give an undertaking that she would not herself testify as a witness in the proceedings:

13. Filed in support of the application is the affidavit of a paralegal from Mr. Rubin’s office. She said that she was advised by Ms. McLeod that she was fearful of leaving Mr. Bell alone. Secondly, she noted Mr. Bell is 73 years of age and that he is some 400 pounds in weight and that he has difficulties moving around their office. Appended to her affidavit is a letter from a Dr. Alexandrious who says Mr. Bell has been his patient for the past five years. Mr. Bell’s health has deteriorated recently, and he requires assistance with supplemental oxygen, pharmaceuticals and respiratory treatments and he has a list of various problems including congestive heart failure and obesity. The doctor feels with the severity and fragility of Mr. Bell’s health it is advisable to have a family member available to assist him in the discovery.

[…]

16. It is further said that Ms. McLeod is not going to be a witness at trial. Is Ms. McLeod going to be called as a witness?

17. THE COURT: That is my concern here. I think that is, in my view, rather key in the picture. If Ms. McLeod will provide an undertaking that she is not going to be a witness at the trial then, she may sit in and be discrete

and quiet in the examination room. Should there to be any misconduct on her behalf, that would mean a different picture for Mr. Butler. If she does not give that undertaking then I see no reason why she cannot sit outside the room and be close at hand. [Emphasis added]

Ozerdinc Family Trust v Gowling Lafleur Henderson LLP, 2015 ONSC 2366, [2015] OJ No 1873 dealt with an application by the defendant to be examined by written interrogatories rather than oral questioning. The defendant’s evidence indicated he was on long-term disability due to a debilitating medical condition that caused him chronic pain, skeletal muscle spasms and loss of control. He submitted that he could not tolerate an oral examination for discovery. The Court emphasized the presumptive right of a party to oral discovery, and insisted that the defendant participate in oral questioning, but allowed for some accommodations. In particular, the Court ordered that the examination could take place at the defendant’s home or some other location where he felt comfortable, that frequent breaks should be permitted, and he should be entitled to have his physician or psychologist present:

32 I do not agree with the plaintiff that the evidence shows the defendant is improperly trying to evade discovery. I do not doubt that the advice he is receiving from his physicians is that it would be preferable to avoid the stress of oral discovery and to answer questions in writing. But the evidence does not persuade me that oral discovery properly managed would likely produce physical or psychological harm.

[…] 34. I am of the view that similar safeguards may be appropriate in this case. The evidence is that the defendant may need to take frequent lengthy breaks and that he is stressed by worrying about when he will have to take such breaks, keeping people waiting, and that he can be distracted by pain and involuntary muscle contractions. The discovery should therefore take place in an environment in which the plaintiff is comfortable, either at his home or at his lawyer’s office. The discovery is also to be conducted in several short sessions with provision for breaks as necessary. The defendant may have his physician or psychologist present if he wishes. [Emphasis added]

Similarly, in McLaughlin v. McLaughlin, 2020 ONSC 5666, [2020] OJ No 4680, the Court denied a request by a 93-yearold woman who sought to be examined through written interrogatories instead of oral questioning. However, the Court did allow similar accommodations to those that were adopted in Ozerdinc:

66. Patricia is 93 years old. She suffers from edema in her legs, atrial fibrillation, and as of April is recovering from a Staphylococcus infection. She recently had a health scare when she was tested for Covid-19. She suffers from chronic

high blood pressure. She continues to live in the home that she and her husband owned, with assistance from her long-time caregiver. Patricia also relies on private nursing services who visit her at her home twice daily to take vital signs and report to her physician.

67. Patricia has been under the care of a cardiologist since 1995.

68. Patricia says that an oral cross-examination would put an enormous amount of stress on her, which can aggravate her atrial fibrillation and blood pressure problems with potentially deadly consequences. Furthermore, her edema makes getting and staying comfortable for extended periods of time extremely difficult. Her age, recent infections, and other health issues limit Patricia’s energy and her ability to focus. Finally, her need for regular health monitoring would require interruption of cross-examination. Patricia, however, is willing to submit to cross-examination via written interrogatories.

[…]

84. In order to accommodate Patricia’s medical or health conditions, I impose the following conditions:

(a) her examination will be held, remotely, with Patricia participating from her home or other place she feels comfortable;

(b) Patricia will be under oath or solemn affirmation;

(c) she may have present with her a support person and/ or medical person;

(d) she may have present with her counsel or another legal representative to assist her with documents; […]

(f) the cross-examination will be limited to four hours for all parties, over two days. Each day shall comprise a one hour cross-examination followed by a 30 minute rest break, followed by another hour cross-examination.

[Emphasis added]

In Haida Helicopters Ltd v Deltaire Industries Ltd, [1978]

BCJ No 1235, 87 DLR (3d) 758, the Court allowed in-house counsel for the defendant to be present during questioning of a representative for the defendant, finding that the request was reasonable and did not interfere with the fair conduct of the discovery:

9. There is no basis for any suggestion that Mr. Dashfield’s presence conflicts with the fair and proper judicial conduct of the discovery proceedings. Although counsel for the plaintiff at the discovery stated that in his opinion the only reason for Mr. Dashfield’s attendance was

to permit Mr. Dashfield to go back and brief other Bell employees and other Bell officers on the matters in question, I do not consider that a sufficient reason to exclude Mr. Dashfield. Bell Helicopter is entitled to know what one of its officers says on the occasion of an examination for discovery and to take such proper subsequent steps to prepare its defence as it may be advised.

[…]

11. In my opinion the position taken by Bell Helicopter in wishing to have one of its head office attorneys present upon an examination for discovery of one of its officers is a reasonable position. That attorney is not going to be a witness at the trial or on the discovery and there is no suggestion that his presence will interfere with the fair conduct of the discovery. The assertion that his presence would inhibit the cross-examination of Mr. Brindley is not supported by any affidavit or other evidence. [Emphasis added]

In keeping with the Alberta case law, these decisions affirm the general power for courts to order that a non-party may attend questioning in appropriate circumstances, which may include circumstances related to the health or well-being of a party or witness, or where the non-party has particular skill and expertise that will be of assistance to counsel.

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Note from the Editor:

As the incoming Editor-In-Chief, I have felt it important to look back on what makes ACTLA so important, and what characterizes the work that you, our members, perform. I am not a lawyer, but I feel I can safely say that the work you do each and every day is vitally important to our communities, both as Albertans and Canadians. As we close out 2022, a year characterized by the growing pains of returning to “normal” after a global pandemic, I wanted to highlight past articles from The Barrister, both as a way for myself to learn what ACTLA has done and to understand the trajectory of the future.

To that end I have selected two articles published in 2006. I hope you find them as inspiring as I have.

From Basic Needs to Basic Rights

JusticeVs.Survival,SustenanceandPoverty

By Philip Tinkler

Curtis Roth knew that the letter he received from the government on September 18, 2000 would change his life. He had no idea it would lead to a precedent-setting class action settlement that would affect the lives of tens of thousands of poor and disabled Albertans.

At the time, he struggled to understand the magnitude of the debt he owed: overpayments totaling more than $16,000 debt because of an administrative error. The message in the collection letter, however, was clear: he’d have $85 deducted from his handicap benefit each month to recover it.

He did his best to put the implications of the decision into perspective in the Notice of Appeal he filed from the assessment declaring the debt: “The loss of $3744 per year from a net income of $21,100 for a family of four will certainly be a hardship. To lose another $1020 per year for the next 15 years will make life even more difficult. The extra stress of financial adjustment will be difficult with costs of living increasing and my budget decreasing.” Despite his pending appeal, the deductions started the very next month. Along with the correction to his handicap benefit, this reduced his monthly AISH cheque almost overnight to about $40.

* * *

When I first met with Mr. Roth in February 2004, two law firms had already declined his retainer. They hadn’t been long telephone calls. He was on AISH and he had little money to pay them — he’d been living at 51% of the Stats Can low income cut off since 1993. And his problem wasn’t exactly inspiring for lawyers who had their own challenges paying the rent. He'd lost his appeal almost four years earlier from the assessment that he had to repay the overpayments as a debt to the Crown.

The matter had then gotten mired in some kind of discretionary review process. His case worker had put in a last-ditch request for the program Director’s approval “to determine there was no

debt from the overpayment’. But the Director finally responded just before Christmas: “There is debt. The AISH recipient benefited directly from the extra money and the error was clearly administrative error. With these factors the Director concluded the overpayment occurred and must be repayed (sic).”

Roth thought his treatment was unfair, because four years earlier the Department had discovered it had made a mistake in calculating his AISH benefit which resulted in his being underpaid from February 1994 until August 1996. But in that situation AISH policy stated that retroactive payments could only be made going back six months — even though he had been underpaid for thirty two months. It was when his case worker went to fix the underpayment that the overpayment was mistakenly set up.

The first lawyer Roth had consulted, a partner in this firm, agreed it all seemed unfair but concluded the matter was too small to warrant his involvement. He suggested that Mr. Roth seek the assistance of a more junior lawyer, given his limited financial means. The next lawyer had declined for much the same reasons, although she seemed to suggest that if he had in fact been overpaid then didn’t it seem likely he’d have to pay back the money?

His real problem wasn’t so much the merits of the case but his prospects of finding counsel to take it on. Even if he succeeded in defending himself somehow and be was relieved of having to repay the government, there would stil be no contingent source of funds from which a lawyer representing him might recover fees and expenses. No rational lawyer, other than perhaps one who was of independent means, would accept a retainer in the case.

So when I met Mr. Roth in February 2004, my firm was the third he had had to contact but felt as though we might as well have been the last. Somehow “the buck stopped here”. We had a responsibility that could not be shifted to try to find a solution

rather than let the economics of the situation dictate whether or not he obtained legal representation.

I felt Roth had been deprived of an opportunity to advance an equitable defence of change of circumstances (he hadn’t even been accorded a hearing) which would preclude recovery if it succeeded and could entitle him to restitution of the amounts deducted to recoup the debt to that point. But the potential of recovering some $340 was insufficient economic incentive to justify a lawyer accepting a retainer to commence litigation. (Roth had finally persuaded ATSH officials in January 2001 he shouldn’t have to repay the debt while his case was being reviewed.)

Class proceedings legislation was designed to help overcome this kind of impediment. If we could frame the problem as a civil claim, rather than an administrative review, and if the claim could be framed as a class claim, then the potential value of the matter might exceed the threshold that would make litigation feasible from an economic standpoint, at least before taking the risks of litigation into account.

The only problem was, because the series of blunders giving rise to Roth’s predicament seemed uniquely idiosyncratic, it wasn’t until Roth described a telephone conversation he’d had recently with his benefits supervisor that an opening came into view. After the Director’s refusal to exercise discretion in Roth’s favour, the official had called to advise that the Department would begin collection efforts once more. In the course of that conversation Roth learned the reason he’d never been given notice of any kind of hearing. His Notice of Appeal had been reviewed and administratively denied by his case worker’s supervisor, but it had never in fact been sent to the Appeal Secretariat.

The official explained there was no point in doing so: a citizens’ appeal panel did not have the jurisdiction to forgive a debt to the Crown. Only the Lieutenant Governor in Council could do so under the Financial Administration Act. He had read Roth the pertinent sections of the Policies and Procedures Manual setting all of this out. An appeal panel could only adjust the amount of the monthly recovery, which was the very issue the supervisor wanted to come to agreement about directly with Roth. The official had seen it countless times before; appealing the debt to a citizen’s appeal panel was hopeless. Applying for a special Directors’ dispensation held more promise so he had tried that instead, but now that last avenue of appeal had been exhausted.

Then the conversation turned into the kind of good cop / bad cop routine so often featured in American police dramatizations on television. The official had urged Roth to see that if was in his interests to enter into a repayment agreement to repay the debt. That way he would have some input into the level of recovery each month, and his benefits worker would retain control over the collection. Otherwise it would be referred on to others with whom Roth had no relationship to draw on and who would not be as flexible in dealing with him.

This seemed to point to a way forward that grouped all AISH recipients into a to a legal archetype for purposes of class litigation. They had all established they suffered from severe and permanent disabilities which substantially and permanently impaired their ability to earn a livelihood. They had all met the financial criteria qualifying them for a handicap benefit, and they all bad the same means because of the way AISH was structured to top up their means to a basic floor: $850 per month to meet basic needs.

We would show on a balance of probabilities that, having subsisted for years on a maximum of $850 a month, those who had received additional benefits they had been paid in error had the benefit of a legal presumption that they had detrimentally changed their position. They

their benefits to recover such claims. It was a bit of a flyer, but it was a theory for proceeding.

Those equitable principles underlying the proposal stood us in good stead, however, and led us in the right direction. Without an initial theory we would not have gone on to find that the process of appeal to the citizen’s appeal panel was a fiction set up by the government to mislead targets and to extract nonvoluntary agreements from them. We would not have determined it was the government’s legal onus to prove its claim to repayment of an overpayment following a procedure established in the Income Support Recovery Act for liquidating the debt in the Court of Queen’s Bench. We would not have discovered old social assistance program manuals prior to

is more of an illusion than it is real. In the wake of the settlement, it saddened Curtis Roth to know a program like AISH had caused such grief. “It seems almost inconceivable that 30,000 people have been affected by this over the years and it never came out.”

It is saddening. For most people the legal response came late, in the form of pecuniary redress that can never compensate for the injury. The case raises issues about our justice system on a number of levels — the attempt to replace the judicature of the courts with an administrative system of appeals with disastrous results, the remedial objectives class action procedure helps to promote in the more equal administration of justice, the role civil trial lawyers in upholding the honour and dignity of the profession of law.

had made expenditures towards their own sustenance they would not otherwise have made in the absence of receipt of the overpayments to which they believed they were entitled, and this detrimental reliance could be established based on the objective attributes of the class, without requiring its individual members to identify or “receipt” the particular items of extraordinary expenditure.

The key contention would be to establish a duty on the Program Director and the Appeal Secretariat for Alberta Human Resources and Employment in fulfiling the objectives of the AISH Act - ensuring basic needs were met - to consider such equitable defences as an AISH recipient might have in the determination of their obligation to repay an overpayment arising from administrative error, and that this duty had been breached for lack of an effective system of citizen appeal.

lt was this central claim that could support a class action (and unlock improved economics for Roth and others in his situation), invalidate the overpayment recoveries taken against such persons and ground a claim for damages for the return of amounts that had been deducted from

1989 which disclosed that the government understood the onus and complied with that Act, until the late 1980s when increasingly strident criticism in relation to the operation of Alberta's income security programs exploded into scandal: the Auditor General of Alberta’s audit of the programs disclosed that overpayments of social allowances were running at $35$37 million annually, due to weaknesses and deficiencies in the systems and procedures used to process social allowance payments.

We would not have discovered that those program manuals were then completely rewritten so as to re-interpret the legislation and bypass the oversight of the Queen’s Bench in establishing the rights and obligations of income support recipients in the collections process. And we would never have discovered that this was not just adopted by the Director for AISH alone, but adopted and condoned by the Directors for various social assistance programs under the Social Development Act and the Widows’ Pension Act and the Director of the Appeals Secretariat.

There would seem to be good reason to inquire into who inside the programs knew, what did they know and when did they know it; but that is unlikely to happen. Those of us who are committed to promoting the administration of justice in the public interest also have reason to ask, where were the lawyers all that time? There are no easy answers. it’s a complex question about everything from social policy to systems design to professional responsibility.

Where we fit in continues to be an issue because the epilogue to this story is that the law in this area was amended in 2004 via Part 6 of the Income and Employment Supports Act, apparently without much discussion, to bring the law in line with the previous practice. Its provisions limit low income Albertans’ access to the courts and to equity. There are good reasons to believe the effect of their provisions make them constitutionally invalid. Bad things are just as likely to happen. It is unrealistic to expect those who are subject to these provisions to marshal the resources necessary to overcome their disadvantage. But there is reason to be hopeful.

Bad things happen when access to the law

After the settlement of the class action became public, ACTLA’s president, Bill Hendsbee, emailed me to pass on ACTLA members’ congratulations. I replied that I

“Bad things happen when access to the law is more of an illusion than it is real...”

* * *

was frankly overwhelmed and more than a little moved by the sheer number of non-lawyers and lawyers who were taking the time to call simply to convey their congratulations and their admiration for taking on this kind of case:

“It’s a real contrast to before, when it often felt like lonely work. Apparently the consensus (among non-lawyers at least) is that no one is willing to accept this kind of case. I’ve been telling them why I have to disagree. Equality before the law is meaningless without access to the law, and although the case certainly posed its challenges, we were simply taking our own step forward in the best traditions of the bar to assist the plaintiffs as best we knew how — like many lawyers have done in the past, and many lawyers continue to do to this day.”

I believe that. l am hopeful, partly because as our Supreme Court observed in a recent case, in our constitutional climate the administration of justice thrives on exposure to light, and withers under a cloud of secrecy. Mostly it’s because there are trial lawyers.

In reflecting on the work of civil trial lawyers in this anniversary edition of the Barrister it seems fitting to recall the thoughts Lord Macmillan developed in an address to Scottish law agents on “Law and History” to help guide the way as we step forward info the next phase of ACTLA’s history:

We call ourselves a learned profession. Let me remind you that we are also a liberal profession. The difference between a trade and a profession is that the trader frankly carries on his business primarily for the sake of pecuniary profit, while the members of a profession practice an art, their skill in which they no doubt place at the public service for remmmeration, adequate or inadequate, but which is truly an end in itself. The professional man finds his highest rewards in his sense of mastery of his subject, in the absorbing interest of the pursuit of knowledge for its own sake, and the contribution which, by reason of his attainments, he can make to the promotion of the general welfare. It is only by the liberality of our learning that we can hope to merit the place in public estimation which we claim to render to the public the services which they are entitled to expect from us.

Epilogue

Effective April 30, 2004 the recovery of overpayments under the AISH and Income Support programs is governed by Part 6 of the Income and Employment Supports Act, S.A. 2003, c.1-0.5 and the Regulations enabled under it. Its provisions limit low income

Albertans’ access to the courts and to equity both in the manner that debts are declared to exist, and in the manner those debts are executed

Debts: section 35

Section 35 of the Income and Employment Supports Act authorizes a procedure for establishing a recipient’s indebtedness to the government pursuant to which the Director is required to deliver to the recipient notice that an overpayment under s. 35 has been assessed. Once this occurs the normal onus of proof is reversed. Barring an appeal by the recipient within 30 days, or a successful appeal, the assessed amount is a debt due to the government by operation of s. 35(3) (a “s. 35 Debt”).

The legitimacy of a s.35 debt must rest on the existence of an adequate administrative procedure established in the Act that affords a recipient the right to respond to the claim and advance substantive defenses in the determination of that person’s liability. Otherwise the section is, arguably, a constitutionally impermissible grant to the executive branch of government as judge in its own cause of powers reserved to a s. 96 court under the Constitution Act, 1867.

But under the Income and Employment Supports Act the appeal panel cannot make a decision in an appeal that the Director would not have authority to make under the Act and regulations: s. 46(1). The Director does not have the authority to decide that a person who receives assistance to which they are not entitled is not required to repay it; s. 35(1) explicitly states the contrary and subsections 35(3) and 38(2) reinforce this circumscribed statutory jurisdiction; an amount repayable under s. 35(1) is a debt due to the government which the Director is not authorized to forgive but is duty-bound to collect by any action necessary. An appeal panel is therefore precluded from entertaining such defenses as an appellant may have, including defenses of mistake, estoppel or change of position, and the appellant is correspondingly deprived in the statutory appeal process of procedural and substantive rights and defenses.

Given a recipient’s limited means of securing the basic necessities of life for themselves, this power of the government to unilaterally create a final and enforceable liability deprives them of their security of the person in violation of the principles of fundamental justice contrary to s. 7 of the Canadian Charter of Rights and Freedoms (the “Charter’’).

The government’s power to unilaterally create a final and enforceable liability by means of a bare administrative assessment without a real hearing on substantive defences or the necessity of judicial endorsement also violates recipients’ guarantee of equality protected by s. 15 of the Charter. Solely on the ground of their status as persons in need of social assistance, the statute deprives recipients of procedural and substantive rights and protections accorded to other persons alleged to have received monies or services without statutory authority. This diminishes their human dignity, since denying them a determination of their rights and obligations amounts to denying they have the rights at all.

Execution: section 38(2)

The second concern has to do with the manner in which debts are executed. Section 38(2)(b) of the Income and Employment Supports Act provides as follows:

(2) The Director shall take any action the Director considers necessary to collect any debt due to the Government under this Act or a former Act, including entering into an agreement with the debtor, bringing an action in debt or (a) with respect to an amount owing under a former Act, under section 35(1) of this Act or under the Assured Income for the Severely Handicapped Act, by deducting the amount owing from further assistance for which the person is eligible under this Act, the Assured Income for the Severely Handicapped Act or any other enactment or program under the Minister’s responsibility to which the person is otherwise entitled, in an amount determined in accordance with the regulations until the amount owing has been paid, and

(b) subject to subsection (3), by filing with the clerk of the Court of Queen’s Bench at any judicial district a certificate of the Minister certifying the amount owing.

The Act provides that filing a Minister’s certificate has the same effect as if it were a judgment obtained in the Court of Queen’s Bench for the recovery of a debt in the amount specified in the certificate.

The section is ambiguous about whether the word “and” separating subsection (2)(a) from (2)(b) should be read conjunctively or disjunctively. Certification and registration could be read as linked conditions precedent for a garnishment proceeding, or they may be regarded as separate and unrelated procedures.

The government takes the latter view. Once the time to appeal has expired, or the appeal has been denied, it asserts the legal authority to begin deducting the amount owing from further assistance for which the person is eligible without more, and in particular without filing a Minister’s certificate.

The concern is that if s. 38(2)(a) of the Income and Employment Supports Act authorizes the Director to enforce a debt due to the Government by taking deductions from further assistance payable absent a judgment or a Minister’s certificate registered with a superior court pursuant to s. 38(2)(b) then arguably the statute violates sections 7 and 8 of the Charter.

Seizure before judgment is a draconian procedure and is an exception to the ordinary rules of law: Theberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34 at para 77. A judgment serves both to signify an enforceable liability as well as establish the court’s jurisdiction over enforcement proceedings. Absent registration of a Minister’s certificate establishing the court’s jurisdiction, the low-income debtor / recipient who faces hardships owing to the garnishment process itself has no equitable recourse to the court. The garnishment in this sense is inherently arbitrary - an arbitrary

seizure in violation of 8. 6 of the Charter that is not mitigated by the fact that the government's policy manuals instruct officials to take into account the debtor’s ability to pay.

Given the severity of the consequences for the individual concerned, a power to seize the income a person requires to meet basic necessities is sufficient to engage a right to fundamental justice guaranteed by section 7 of the Charter and the execution of a debt by means of a purely administrative attachment without recourse violates the principles of fundamental justice contained in that section. The statute should therefore be construed so as to require certification and registration as a precondition to garnishment under 6. 38(2) (a), which must in turn respect the rules of court.

The real mischief in s. 38(2) is that while clear and comprehensible legislation is espectally important in legislation with a social purpose, s. 38(2) is not clear and the community served by this legislation can rarely afford the costs of legal advice in the matter.

In fact, as Kelly J. expressed in Skinner v. Nova Scotia (Social Assistance Appeal Board) (1992), 112 N.S.R. (2d) 197 at 204 (S.C.), if the rights or entitlements of claimants are not defined clearly, they are liable to be lost:

The legislative scheme, regardless of who has the obligation of drafting, must be drafted in a manner that is clear and comprehensible. The obligation to provide well drafted and clear policies is not only an obligation to the needy Applicant, it is also an obligation to the staff who apply the policy, to the appeal board who must review it, and to the citizens of the community who must ultimately pay for this increasingly costly but nevertheless important social service.

Finding Satisfaction As A Lawyer

By Harris Hanson

This Article was originally published in the September 2006 Edition of The Barrister

If recent statistics are correct, many lawyers are not happy with their work lives.

Looking back, do you remember what you aspired to when you became a lawyer? Was it status? Money? A desire to make the world a better place?

It has been said that people in our society today have more of everything, except happiness.

Whatever your reasons for entering the profession, here are some important questions for you now: how can you sustain your interest and enthusiasm, year after year? How can you avoid burnout, and continue to be committed and productive in your profession?

How can you find happiness in your career?

Happy people seem to have purpose in their lives, autonomy, positive relationships, personal growth, and self-acceptance, They seem to believe there is a purpose on earth for them to be here doing the things they do.

A sense of purpose gives people meaning in their lives and that (all joking aside) really is more satisfying than just pleasure-seeking.

The desire for meaning is part of our nature as human beings. Without faith in a purpose for what we do, our motivation deteriorates. Finding personal meaning is a key to maintaining your enthusiasm and avoiding burnout at work.

We are intrinsically motivated when we do things because we want to, and not hecause we have to - when our work is fulfilling and meaningful to us and we are good at it. It is intrinsically rewarding to us when we see ourselves as innovative and progressive, with commitment to our chosen organizations.

Being appreciated is important too. Extrinsic rewards, whether monetary or in our working conditions, will always be important in making us feel appreciated - but they are not enough. They are not very important as sources of meaning. For more meaning, we need to look inward.

Meaning comes from giving your best effort, being faithful to your values, believing that you are setting a good example, feeling a sense of accomplishment, being appreciated by the people that you help, attaining and utilizing knowledge in a positive way and feeling a sense of progress.

Think about the people and organizations you are helping, and the people that rely on them. Without legal services, many people would not be able to protect and enjoy their rights, their property, and the results of their work. Remember, each day, that you are making a difference in the lives of your clients. You are having a positive impact on their quality of life, as well as the quality of life of those who rely on them.

It’s not all about being appreciated. People may not notice or understand the contribution you are making. When you are a professional in a field that requires alot of specialized training and experience, the people you serve will never fully understand what you do and how you do it. The only people who really understand are other professionals in your field, with similar experience. The meaning and satisfaction that you feel when you help belongs to you, whether anybody applauds or not.

Our laws are for acknowledging and protecting the rights of our fellow human beings. Just as when we began our careers, people need us to employ our understanding of the law and legal processes to advocate for them.

It can be discouraging when impediments arise, to interfere with our helping those who need us, whether the interference is economic, political, legislated, personal or institutional. But we are problem solvers. We adapt and adjust, so that we can continue helping people and make a living doing so. Helping people by providing legal service is an honourable thing to do. Without looking too hard, you can still find satisfaction and fulfillment in your chosen profession.

How Can You Develop Better Writing Skills?

By Amani Abdu CAM LLP

I thought that being a great writer was an innate quality. A person was magically born with the knowledge to write clearly, concisely and – if we are talking about handwriting – legibly. But over time, I have seen that it really is just a skill. And like other skills, if you practice and take the time to learn from others, it will improve. Slowly, yes… but any improvement is better than none.

Having good writing skills is one part of being a successful advocate. Effectively using the written word may not necessarily win a client’s case but failing to clearly explain your case may contribute to losing one. But what should you do if you never overcame your younger self’s (inexplicable) sense of dread in English classes and you want to improve your writing skills? The key to becoming a better writer is to keep practicing and learn from other writers.

A short background of my experience with writing and the English language should start with a statement that my past English/writing teachers were excellent at their jobs. However, I was never an engaged student. My family came to Canada when I was 6(ish) years old. I was immediately put in English as a Second Language (ESL) classes. Few memories remain of that time, but I do remember learning the lyrics to The Twelve Days of Christmas at one point. I did not know what a partridge was and did not question why it was in (or on?) a pear tree – but the song was catchy and easy to memorize. A few years later, I was glad to enter the standard English classes – until we began learning about prepositions and conjunctions. One day, the teacher would present a “rule” to the class on how to write/read in English. We were told we must follow this rule, unless an exception applies. I wondered why it was called a rule if there were always many exceptions. A few years ago, I came across a book: “The Mother Tongue: English and How it Got that Way” by Bill Bryson. Mr. Bryson authored an amusing book about the history of the English language and gives some insight on why learning it can be a struggle:

To be fair, English is full of booby traps for the unwary foreigner. Any language where the unassuming word fly signifies an annoying insect, a means of travel, and a critical part of a gentleman’s apparel is clearly asking to be mangled. Imagine being a foreigner and having to learn that in English one tells a lie but the truth…1

After learning some basic knowledge about the English language, I recall the introduction of the concept of an “essay”. Specifically, the five-paragraph essay consisting of an introduction, three body paragraphs and a conclusion. More rules followed – don’t forget an outline; an introduction must have a thesis statement; the body of the essay should start with a topic sentence followed by three to five sentences to support your position. Although reading books for English class was interesting, I could never understand why writing felt like a chore. Entering university, I found that the science programs put little value in being able to write well. Law school should have been the perfect opportunity to further develop my writing skills. Although my skills did get better, I still somehow manage to avoid most classes that had a paper writing component.

1. Bill Bryson, The Mother Tongue: English and How It Got That Way, (USA: HarperCollins Publishers, 2001) at 2.

It was only after law school that I developed an interest in understanding why certain pieces of writing are “better”: more enjoyable to read and persuasive. After attending seminars and reviewing various books and articles, I felt a lightbulb go off after reading a book by Bryan A. Garner (thanks Peter Trieu for the recommendation!). Sometimes you need to keep searching until you find an author who explains a concept in a way that works for you. Currently, I have read two books: “The Winning Brief” and “Legal Writing in Plain English.” I especially enjoy reading and re-reading “The Winning Brief” as Mr. Garner not only provides 100 tips (which are only guidelines), but also provides quotes from other authors. “Legal Writing in Plain English” is also an excellent learning tool as it provides many examples of legal writing both before and after the editing process.

I am now at a difficult stage in the learning process which is using the tips and tricks in my writing. The only way to improve is to continue to write – and write often. The process of writing clearly, simply and persuasively is hard work. Learning how to write clearly, simply and persuasively is also hard work. But it feels rewarding to create something unique that reflects your thoughts.

I would encourage others in the ACTLA membership to also share their thoughts by writing for the Barrister. We are always looking for more contributors!

The Alberta Weekly Law Digest

Originally published by Thomson Reuters in the Alberta Weekly Law Digest

Knelsen Sand & Gravel Ltd v. Harco Enterprises Ltd AWLD 12-1125

Civil practice and procedure --- Practice on appeal — Staying of proceedings pending appeal — Stay of execution

Applicant corporation was subject to money judgment, in favour of respondent company — Corporation claimed that judgment should be stayed, pending appeal — Corporation applied for this relief — Application granted; stay of execution imposed — Test for stay of money judgment was tripartite test, established for other stays — Appeal raised serious issue to be tried — Appeal could change amount owing by corporation, even if only partially successful — Were enforcement steps to be taken before appeal, irreparable harm to corporation could take place — This met second part of test — Although company would be denied funds for period of time pending appeal, this harm was not irreparable — Company did not need funds to cover cost of appeal — Balance of convenience favoured corporation, meeting third part of test.

Knelsen Sand & Gravel Ltd v. Harco Enterprises Ltd 2021 ABCA 362, 2021 CarswellAlta 2716, [2022] A.W.L.D. 1125, [2022] A.W.L.D. 1205, 14 P.P.S.A.C. (4th) 207, 341 A.C.W.S. (3d) 133, 36 Alta. L.R. (7th) 231

1921645 Alberta Ltd v. FCT Insurance Company Ltd AWLD 12-1172

Insurance

--- Actions on policies — Practice and procedure — On

appeal

Applicant insurers challenged order awarding respondent numbered company $1,412,000 plus interest (money judgment) — On summary judgment application, numbered company successfully claimed it was entitled to coverage for local improvement levies against its lands pursuant to title insurance policy it had with insurers — Insurers brought application for stay of enforcement of money judgment in favour of numbered company pending appeal — Application granted — Issues under appeal were not frivolous or vexatious — Insurers had established they would have suffered irreparable harm if stay was not granted — Unlike authorities on which numbered company relied, here there was evidence supporting insurers’ contention.

1921645 Alberta Ltd v. FCT Insurance Company Ltd 2022 ABCA 45, 2022 CarswellAlta 404, [2022] A.W.L.D. 1172, 19 C.C.L.I. (6th) 213, 341 A.C.W.S. (3d) 74

Monaghan

v. Optrics Inc. AWLD 12-1206

Professions and occupations --- Lawyers — Fees — Agreements for fees — Form of agreement

Dispute arose between appellant and its insurer over latter’s duty to defend appellant in contracts litigation commenced against it in United States — Appellant retained various counsel to examine its entitlement to insurance coverage — Appellant alleged that respondent lawyer had offered to review documents without charge in hopes of being retained to conduct insurance litigation — Parties were unable to reach agreement regarding services for insurer’s coverage dispute and lawyer issued invoice for $15,210 plus GST — Review officer ultimately reduced account to $10,090 plus GST — Appellant appealed, arguing that review officer exceeded his authority by finding that portions of time recorded by lawyer were properly recoverable — Review officer’s certificate fairly reflected entitlement to compensation within scope and terms of retainer for parties, subject to one adjustment for duplicate disbursement — Role and jurisdiction of review officer are prescribed by Part 10 of Alberta Rules of Court — As prescribed by R. 10.18(1)(a), any dispute regarding terms of retainer agreement must be referred to court for decision or direction — It was clear that parties had oral agreement for lawyer to provide legal services — Assertion of offer to serve pro bono, even for limited period, was question about term of retainer agreement within scope of R. 10.18(1)(a) — There was no need to direct trial; time and expenses incurred had already subsumed

Professionally selected from the Alberta Weekly Law Digest by Royal J. Nickerson, K.C.

$6,715 differential in positions — At no time in volume of emails did it state that review of materials and preparation was to be non-billable — $10,090 plus GST was properly payable by appellant.

Monaghan v. Optrics Inc.

2022 ABQB 16, 2022 CarswellAlta 20, [2022] A.W.L.D. 1206, 342 A.C.W.S. (3d) 187, 76 C.P.C. (8th) 376

that it was not written at same time as first page — There was no clear and convincing evidence that second page was intended to reflect deceased’s testamentary intentions or form part of will — While deceased was drinking alcohol when document was made, he understood what he was doing, he recalled specific items that were valuable to him and made provisions in alignment with promise he made to his sister, it was orderly disposition of property, and deceased had testamentary capacity when he signed will — There was no reason to remove respondent as personal representative, and residue of estate was to be divided per applicable terms of Act dealing with intestacy.

Meunier Estate

2022 ABQB 83, 2022 CarswellAlta 318, [2022] A.W.L.D. 1342, 343 A.C.W.S. (3d) 177, 45 Alta. L.R. (7th) 168

Zarooben v. Workers’ Compensation Board

Meunier Estate

AWLD 14-1342

Estates and trusts --- Estates — Testamentary instruments — What constituting testamentary instrument

Deceased was predeceased by his spouse and his parents, and he had no children — Respondent, deceased’s brother, successfully applied for grant of administration stating that deceased died intestate — Applicants, deceased’s nieces who were children of deceased’s sister who predeceased him, claimed that written document that named them specific beneficiaries of deceased’s home constituted his valid will — Deceased signed document approximately six months prior to his death when he was at friend’s house — Applicants applied to have document validated pursuant to s. 37 of Wills and Succession Act and for grant of administration to be issued — Application granted — Document may be validated pursuant to s. 37 of Act if there was clear and convincing evidence that writing set out testamentary intentions of testator and was intended by testator to be his will — Document did not contain specific reference to being will, appoint personal representative or revoke prior will, but it contained some typical elements of will — Document addressed distribution of property and contained clear funeral instructions — First page of document was signed and witnessed by two witnesses, only one witness made formal acknowledgement, but both witnesses had capacity to witness will — First page of document clearly contemplated what deceased wanted to happen with certain items in estate — There was no evidence there was any other will or that deceased intended any other testamentary disposition — There was clear and convincing evidence that deceased intended first page of document to reflect his formal testamentary intentions for disposition of his estate, as well as for his bodily remains — Deceased did not take necessary steps to formally revoke it — First page of document constituted valid will pursuant to s. 37 of Act — Second page of document did not constitute part of deceased’s valid will as it was not signed, it did not contain deceased’s name, it was confusing, inconsistent and incomplete, and there was risk

AWLD 16-1460

Administrative law --- Judicial review — Curial deference

Applicant was truck driver with BF Inc. and suffered injury when he slipped on icy running board of his work truck, and fell approximately eight feet onto ground below, striking his head on pavement — Applicant alleged that since accident, he continued to experience headaches, dizziness, loss of balance, depression, and was now completely disabled from performing pre-accident work — In 2017, Workers’ Compensation Board case manager accepted benefits claim for applicant’s mild traumatic brain injury and authorized wage replacement benefits in form of temporary total disability benefits — In 2018, case manager issued finding that applicant’s symptoms were not related to work accident and decision was upheld on review — Applicant brought application for judicial review/statutory appeal of decision — Appeal dismissed; application granted; matter remitted for reconsideration — Preliminary issue arose as to whether proceeding was properly filed as either judicial review or statutory appeal — If this was intended to be statutory appeal pursuant to Workers’ Compensation Act, it should have been filed as Originating Application using Form 5 (R. 3.2 of Alberta Rules of Court); if it was intended to be judicial review of Appeals Commission’s Decision, it should be filed as Originating Application using Form 7 (R. 3.8 of Rules) — In this case, pleading did not technically meet requirements for either process — Order was issued to treat proceeding as though applicant filed Originating Application seeking both statutory appeal and judicial review under R. 3.2 (6) of Rules, which was curative provision — Right of appeal under Workers’ Compensation Act did not preclude applicant from bringing originating application for judicial review in respect of those aspects of decision that did not fall within scope of s. 13.4 of Act, and therefore, Court may hear application for both statutory appeal and judicial review in this proceeding.

Zarooben v. Workers’ Compensation Board 2021 ABQB 232, 2021 CarswellAlta 750, [2021] A.W.L.D. 1830, [2021] A.W.L.D. 1880, 330 A.C.W.S. (3d) 655, 84 Admin. L.R. (6th) 96

Dugandzic v. Law Society of Alberta AWLD 18-1582

Administrative law --- Judicial review — Prematurity

Complaints received by Law Society of Alberta (“LSA”) about lawyer remained unresolved — Lawyer was subject to administrative suspension for failure to pay annual professional indemnity levy and his application to be reinstated by LSA as active member remained unresolved — Lawyer brought application for judicial review seeking order quashing decision to refer lawyer to Conduct Committee and Practice Review Committee, order compelling lawyer’s reinstatement, compelling LSA to produce materials, and declaration that LSA’s conduct was abuse of process — LSA referred application as candidate apparently vexatious application or proceeding pursuant to Civil Practice Note No. 7 (“CPN7”) — Application stayed — Application was suitable candidate for review per CPN7 and lawyer was to answer how application was not abuse of court as premature proceeding — Application for judicial review was premature given processes had not reached final conclusion — It was abuse of process to pursue judicial proceedings without first exhausting administrative regime.

Dugandzic v. Law Society of Alberta 2022 ABQB 49, 2022 CarswellAlta 168, [2022] A.W.L.D. 1582, 343 A.C.W.S. (3d) 1

this action seeking damages from subcontractor alleging that fire was caused by subcontractor’s negligence in engaging sub-subcontractor to perform staining and painting work as sub-subcontractor’s employee improperly disposed of rags used for staining and caused them to catch fire — Subcontractor applied for summary dismissal of claim brought against it, alleging it was unnamed insured under relevant builder’s risk policy and was protected by subrogation clause against any action by builder or its insurer — Master dismissed application — Subcontractor appealed — Appeal allowed; action dismissed — Based on record before court, it was possible to fairly resolve action on summary basis — This was not complex factual scenario with outstanding credibility concerns — Subcontractor had proven facts on which it relied on balance of probabilities — Parties agreed on core facts of case, and matters parties disagreed on were not material facts relevant to decision on appeal — Considering facts, record and law, on merits of case, there was no genuine issue requiring trial — Subcontractor was entitled to summary judgment — Only issue before court was contractual interpretation of standard form insurance policy, which was precisely type of matter that could be fairly resolved summarily — Better evidentiary record would not be expected at trial — Main parties in action each submitted two affidavits and attended questioning — Time and expense that would be incurred for trial would not produce any better evidence than that on record before court.

Duri Homes Ltd v. Quest Coatings Ltd 2022 ABQB 166, 2022 CarswellAlta 599, [2022] 5 W.W.R. 536, [2022] I.L.R. I-6340, [2022] A.W.L.D. 1589, [2022] A.W.L.D. 1616, 2022 A.C.W.S. 172, 21 C.C.L.I. (6th) 6

Top v. Foothills (Municipal District No. 31) AWLD 18-1592

Constitutional law --- Charter of Rights and Freedoms — Nature of rights and freedoms — Freedom of expression — Advertising

AWLD 18-1589

Civil practice and procedure --- Summary judgment — General principles

Plaintiff was custom home builder who was hired by owners to construct custom built residential home, and builder and owner entered into construction management agreement — Defendant subcontractor was hired to perform painting and staining work on home, and it engaged sub-subcontractor — Home was destroyed by fire while it was still under construction — At all material times home was insured, builder’s insurer paid cost of builder remediating damage to home, but it advised that it would be pursuing recovery for damages caused by fire — Builder commenced

Municipality’s land use by-law prohibited vehicle signs on trailers parked on land — Applicant T continued to display signs expressing deeply-held religious beliefs on abortion — Applicant S Inc. was outdoor advertising company that leased commercial advertising space on semi-trailers placed on private property adjacent to roadways, and paid applicant M for hosting trailers on their property — Municipality demanded applicants to remove signs in accordance with by-law — By-law listed permissible signs for which approval could be sought, required individuals to obtain development permits for signs, directed all signs comply with applicable provincial legislation, and permitted residents to apply for exemptions from requirements — Municipality conceded by-law infringed applicants’ right to freedom of expression under Canadian Charter of Rights and Freedoms — Judge dismissed applicants’ s. 2(b) Charter challenge to municipality’s by-law regarding prohibition against vehicle signage, having found that vehicle signs were protected by s. 2(b) of Charter, but restriction was reasonable limit under s. 1 of Charter — Applicants appealed — Appeal dismissed — Applicants’ assertion that judge’s

Duri Homes Ltd v. Quest Coatings Ltd

decision minimized strong Charter protection of freedom of expression and too readily upheld by-law’s limitation to applicant T’s s. 2(b) Charter rights was challenge to weighing of evidence, exercise of which was entitled to deference on appeal; there was no error in judge’s weighing of evidence — It was not legal error for judge to consider reason, logic, and common sense in analyzing rational connection; judge did not err in concluding that bylaw was rationally connected to its objective of maintaining rural aesthetic and was not arbitrary — Prohibition on vehicle signs was not total ban; judge did not err in concluding that prohibition was within reasonable range of minimally impairing options available to municipality to achieve its objectives — Applicants’ arguments on proportionality improperly asked this court to re-weigh evidence — Prohibition in by-law sought to improve visual aesthetic of municipality and did so by placing restriction on use of one type of medium for outdoor signage without creating limits on content — Freedom of expression protected messages on signs, which applicants were permitted to erect subject to obtaining necessary approvals, but it did not protect parking of trailers, strapping of vinyl to steel, or ability to make money.

Top v. Foothills (Municipal District No. 31)

2022 ABCA 62, 2022 CarswellAlta 485, [2022] 6 W.W.R. 371, [2022] A.W.L.D. 1592, [2022] A.W.L.D. 1623, 24 M.P.L.R. (6th) 1, 342 A.C.W.S. (3d) 340, 39 Alta. L.R. (7th) 246, 467 D.L.R. (4th) 677

McCarthy Estate (Re) AWLD 18-1605

Estates and trusts --- Estates — Testamentary instruments — Miscellaneous

Dispensation — Deceased died suddenly and unexpectedly and found among her effects in her home office was five-page typed document entitled: “This Is the Last Will and Testament of me, Pamela Beverly McCarthy”, signed and dated six weeks earlier — Document was typed on deceased’s home computer with its first four pages in form of will and last page being “Memorandum of Personal Property” — Fourth page was signed, and all five pages were initialed — While fourth page had place for signature of witness writing was not witnessed by two people as required by s. 15 of Wills and Succession Act (WSA) — Applicants invoked dispensing power in s. 37 of WSA but chambers judge ruled that document was not valid will under s. 37 — Applicants appealed — Appeal allowed — Requirement in s. 37 of WSA for “clear and convincing evidence” should not be read as elevation of burden of proof, but as signal to court that quality of evidence should carefully be considered when deciding if burden of proof has been met — Use of term “clear and convincing” evidence did not signal that wording of statute should be narrowly construed — Testamentary intention of deceased had to be recognized — “Clear and convincing evidence” had to be directed towards authenticity of document as element that was missing and applicants had sought to correct was lack of witnesses — Requirement that will be witnessed by two witnesses was to ensure that will was genuine document so as long as authenticity of deceased’s signature on writing was admitted or proven, need for witnesses could be overlooked safely — There was clear and convincing evidence demonstrating authenticity of writing, notwithstanding absence of witnesses, including information from deceased’s friends on her statements about will, metadata from her computer on when document was finalized and last changed — Writing was entitled as Last Will and Testament of deceased, was signed and initialed on every page and typed in formal way and was found among deceased’s effects in her home office — As such objectives of formal execution could be dispensed with under s. 37 of WSA Wills and Succession Act, S.A. 2010, c. W-12.2, s 37.

McCarthy Estate (Re) 2021 ABCA 403, 2021 CarswellAlta 3108, [2022] A.W.L.D. 694, 340 A.C.W.S. (3d) 288, 34 Alta. L.R. (7th) 259, 465 D.L.R. (4th) 127, 73 E.T.R. (4th) 1

Valstar v. Vstar Enterprise Ltd

AWLD 18-1612

Guarantee and indemnity --- Guarantee — Right of guarantor against principal debtor

Valuation had been ordered of V Ltd., business owned by husband and wife — Proceeds of sale of chattels owned by V Ltd. were to be held in trust pending determination of parties’ entitlements — Mortgage guaranteed by wife’s mother B was ordered to be paid from money in trust as long as husband was satisfied that mortgagee had valid general security agreement (GSA) over assets of V Ltd. — Husband was now satisfied as to validity of mortgagee’s security and agreed that mortgage should be paid, but B had made payments of $3,350 to mortgagee to avoid foreclosure — T had been bookkeeper for V Ltd., she provided services through numbered company, V Ltd. executed loan agreement and promissory note in favour of numbered company and T, and it also executed GSA in favour of numbered company — T and numbered company commenced action against V Ltd. and husband on loan agreement and promissory note; and husband filed counterclaim as derivative action — Wife and B applied for relief, including reimbursing mother for payments made to mortgagee — Application granted in part — B was entitled to be indemnified by V Ltd. for payments she made to mortgagee on mortgage to avoid proceedings against her on guarantee — Guarantors were entitled to be indemnified by debtor in event guarantor was called on to answer for debtor’s default — It was clear that V Ltd. was in default, B’s actions were reasonable, and she was entitled to full indemnification from V Ltd., which included her solicitor and client costs in bringing application as well as reimbursement of $3,350 she paid to mortgagee — B was forced to participate in application because of delay of husband acknowledging validity of mortgage, she was forced to incur legal costs to protect her position, and she paid funds to mortgagee which were responsibility of V Ltd. and not her responsibility.

Valstar v. Vstar Enterprise Ltd 2022 ABQB 10, 2022 CarswellAlta 7, [2022] A.W.L.D. 1583, [2022] A.W.L.D. 1610, [2022] A.W.L.D. 1612, [2022] A.W.L.D. 1643, 26 B.L.R. (6th) 24, 343 A.C.W.S. (3d) 101

Engen v. Hyundai Auto Canada Corp. AWLD 22-1915

Civil practice and procedure --- Class and representative proceedings — Representative or class proceedings under class proceedings legislation — Certification — Plaintiff’s class proceeding — Fair and adequate representation

Plaintiff alleged that when designing and promoting panoramic sunroofs (PS), defendants failed to meet engineering and manufacturing challenges resulting in PS being installed that were susceptible to spontaneous shattering — Plaintiff alleged that defendants knew that PS were shattering; they failed to disclose that PS were susceptible to shattering; they failed to disclose that shattering of PS endangered proposed class members and others; they made

certain representations about vehicles; they provided certain warranties which they breached; and they breached Sale of Goods Act, Consumer Protection Act, Competition Act and Fair Trading Act — Plaintiff applied to certify action as class action under Class Proceeding Act — Application granted — There was no challenge to qualification of plaintiff to be representative plaintiff — There was no challenge to plaintiff’s ability to fairly and adequately represent interest of class and follow workable litigation plan, and there were no conflicts in interests of other class members.

Engen v. Hyundai Auto Canada Corp. 2021 ABQB 740, 2021 CarswellAlta 2262, [2022] A.W.L.D. 671, [2022] A.W.L.D. 672, [2022] A.W.L.D. 673, 339 A.C.W.S. (3d) 306, 36 Alta. L.R. (7th) 115

LDS v. SCA AWLD 22-1919

Civil practice and procedure --- Practice on appeal — Miscellaneous

In high conflict litigation between applicant and respondent, applicant was granted summary judgment and was awarded costs — When applicant attempted to file writ of enforcement to enforce costs award, she was advised that writ could not be filed against pseudonym — Respondent’s notice of appeal from summary judgment was filed before deadline but not served on applicant until after — Applicant applied for amendment of style of cause to identify respondent with full name rather than initials and applied to strike respondents appeal for failure to service notice of appeal in time — Applications granted — Allowing litigation to proceed by pseudonym required strong public interest to justify abridging open-court principle — It was just and reasonable that applicant be entitled to proceed against respondent for costs and, while this might have been more easily accomplished by order directing issuance of writ in his name, style of cause would be amended as sought by applicant — Litigation involved five years of case management and 39 court orders, and there was evidence that respondent adopted litigation strategy of trying to “bleed applicant dry”, threatened to resign job to avoid enforcement of summary judgment, and took steps to transfer assets to his father — There were no exceptional circumstances for respondent’s failure to serve notice of appeal and no reasonable justification for delay as it could simply have been emailed to applicant’s counsel — Notice of appeal would be struck as respondent’s appeal had little chance of success and he had engaged in litigation misconduct.

LDS v. SCA 2021 ABCA 429, 2021 CarswellAlta 3255, [2022] A.W.L.D. 1919, 2021 A.C.W.S. 63

Ingram v. Alberta (Chief Medical Officer of Health) AWLD 22-1921

Constitutional law --- Charter of Rights and Freedoms — Nature of rights and freedoms — Equality rights — General principles

Respondent Chief Medical Officer of Health (CMOH) made orders in response to COVID-19 pandemic — Applicants brought this application alleging, inter alia, that delegation of order-making authority in ss. 29(2)(b)(i) and 29(2.1)(b) of Public Health Act (PHA) contravened s. 92 of Constitution Act, 1867 and unwritten constitutional principles; CMOH exceeded authority delegated to medical officers of health by ss. 29(2)(b)(i) and 29(2.1)(b) of PHA; impugned sections of PHA and CMOH orders offended ss. 1(a) and/or 1(b) of Alberta Bill of Rights; and CMOH orders violated s. 15 of Canadian Charter of Rights and Freedoms — Respondents applied to strike out parts of application as disclosing no reasonable claim; applicants applied to amend application — Applications granted in part — Pleaded facts supported that CMOH orders made distinctions that denied equal benefit or imposed unequal burden on different age groups — It could not fairly be concluded that pleading disclosed no reasonable claim that CMOH orders in relation to attendance at school violated s. 15 of Charter — Whether applicants could establish that their s. 15 Charter rights had been infringed in this way and whether respondents could show that infringement was demonstrably justified as required under s. 1 of Charter were issues that would be determined when merits of claim were adjudicated — Reading application generously, it appeared that distinction applicants challenged as having been made unconstitutionally by CMOH orders in relation to business closures was distinction between small business owners and other business owners — Distinction based on size of business owned, which was all that was pleaded, was not distinction made on any of enumerated grounds in s. 15 of Charter — Business ownership was not personal characteristic, and it lacked element of functional immutability that was required for it to be analogous ground — It was not alleged that it was ground that impacted individuals stereotypically or that reinforced prejudice or disadvantage — Claim that CMOH order business closure requirements unconstitutionally discriminated against applicants contrary to s. 15 of Charter had no reasonable prospect of success and was struck out.

Ingram v. Alberta (Chief Medical Officer of Health) 2021 ABQB 343, 2021 CarswellAlta 1077, [2021] A.W.L.D. 2579, [2021] A.W.L.D. 2580, [2021] A.W.L.D. 2602, [2021] A.W.L.D. 2664, 29 Alta. L.R. (7th) 132, 333 A.C.W.S. (3d) 78

Elkassem Estate (Re) AWLD 22-1940

Estates and trusts --- Estates — Testamentary instruments — Holograph wills — Validity

Mother, who had three children, passed away in 2020, leaving will executed in 2017 dividing estate equally amongst children —

Earlier will executed in 2007, and draft unsigned will created in 2020, also divided estate equally among children — Son claimed to find handwritten note allegedly written by mother with directions for estate different from those in will — Daughter brought application for advice and directions and sought to have other two children removed as personal representatives — Handwritten note did not contain deliberate or fixed and final expression of intention as to disposal of property upon death — There was no date on note; it did not deal with personal representatives or residual beneficiaries; it did not refer to will to indicate intention to change or revoke it; note was not located with will; note reflected completely different distribution of property from three other documents — Note was not valid holograph will or codicil — Will should be submitted to probate.

Elkassem Estate (Re) 2022 ABQB 279, 2022 CarswellAlta 1035, [2022] A.W.L.D. 1939, [2022] A.W.L.D. 1940, 2022 A.C.W.S. 1225

Secure Resources Inc v. Wilson AWLD 22-1958

Labour and employment law --- Employment law — Termination and dismissal — Practice and procedure — Miscellaneous

Employee who was subject to non-competition clause left employment — Employer claimed that employee resigned and sought enforcement of non-competition clause — Injunction and Anton Piller order was granted — Employee appealed order — Appeal allowed — There was possibility of constructive dismissal, regarding which employer had not been forthcoming but rather presented only materially incomplete position that employee had resigned — Order set aside.

Secure Resources Inc v. Wilson 2021 ABQB 744, 2021 CarswellAlta 2268, [2022] A.W.L.D. 1958, 2021 A.C.W.S. 13

Parties’ matrimonial home was purchased by wife’s parents who transferred property to wife — Wife later transferred title to matrimonial home to her parents as joint tenants, with husband consenting to transfer by releasing his dower interest — On death

Morrison v. Moe-Villa Investments Ltd AWLD 22-2028

Real property --- Registration of real property — Certificate of pending litigation (lis pendens) — Definition of interest in land

of wife’s mother, wife’s father became sole owner of former matrimonial home — Post-separation, property was registered in name of wife’s father, and wife continued to reside in it — Husband filed lis pendens and gave notice that he claimed interest in another property (SG property) owned by wife’s parents’ corporation under s. 10 of Matrimonial Property Act — On corporation’s application to discharge lis pendens, chambers judge allowed husband to file caveat on former matrimonial home — Corporation appealed — Appeal allowed — Filing of caveats as authorized by s. 130 of Land Titles Act is premised on claimant having interest in land — Requirement of “interest” in land means legally recognized proprietary interest in that land, not mere claim, contractual right or expectation — Spouse with claim for division of matrimonial property does not acquire any propriety interest in that property until division is made — Until order for dividing matrimonial property is made, there is no interest in land to support caveat — There is nothing in Matrimonial Property Act which grants spouse proprietary interest in real property of other spouse — Accordingly, spouse in matrimonial property dispute may file lis pendens under s. 35 of Act but cannot file caveat merely based on claim to division of property under Act Land Titles Act, R.S.A. 2000, c. L-4, s 130.

Morrison v. Moe-Villa Investments Ltd 2022 ABCA 159, 2022 CarswellAlta 1082, [2022] 7 W.W.R. 181, [2022] A.W.L.D. 1944, [2022] A.W.L.D. 2028, [2022] A.J. No. 562, 2022 A.C.W.S. 314, 41 Alta. L.R. (7th) 222, 469 D.L.R. (4th) 537, 71 R.F.L. (8th) 133

Betser-Zilevitch v. Prowse Chowne LLP AWLD 26-2307

Civil practice and procedure --- Trials — Conduct of trial — Restrictions or bans on publication — Miscellaneous

Client brought application regarding fees charged by law firm — Review officer made determination upholding fees — Client appealed decision regarding findings of review officer — Appeal affirmed review officer’s assessment of legal fees charged by law firm — In course of review and appeal, information protected by confidentiality order was disclosed to court — Applicant brought application for order limiting access to court records — Application granted in part — Court had jurisdiction to decide who had access to court records — No one had come forward seeking access to court file to answer application — Federal court decision had been on internet for over one year — Balance of values justified limited and reviewable order for access and disclosure restrictions.

Betser-Zilevitch v. Prowse Chowne LLP

2022 ABCA 134, 2022 CarswellAlta 891, [2022] A.W.L.D. 2307, 2022 A.C.W.S. 952, 45 Alta. L.R. (7th) 59, 86 C.P.C. (8th) 276

DY v. KY AWLD 26-2308

Conflict of laws --- Family law — Children — Custody — Child removed from jurisdiction by spouse or spouse refusing to return child — Miscellaneous

Father was primary caregiver of child, now 13 years old, in United States with mother not having any meaningful contact with child — Respondent, who was step-grandmother until paternal grandfather’s death, helped care for child until she remarried and moved to Canada — Child spent summer holidays with respondent and, when father lost home requiring him and child to stay with friends and sometimes sleep in different homes, she reached out to respondent to ask if she could stay with her in Calgary — Father authorized temporary move of several months, but respondent obtained interim guardianship and then applied for permanent guardianship — Father’s application for return of child to United States was dismissed — Father appealed — Appeal dismissed — There was no reviewable error in application judge’s determinations, including that child objected to returning to father — In keeping with jurisprudence, application judge considered wide range of factors including child’s age and maturity, possibility of influence by respondent, concerns about harm, child’s prospects in United States, reasons for objection, and circumstances leading to child’s move — Application judge’s thorough consideration did not support father’s argument that she treated child’s objection as controlling factor or neglected other important considerations, or that she failed to address father’s concerns about respondent’s conduct and possibility of undue influence — Application judge’s conclusion that child’s objection was independent was supported by expert opinion and child having her own counsel — Application judge weighed factor of respondent’s influence and concern that she would gain benefit from misconduct as she was entitled to do — While respondent as non-parent could not be applicant under Hague Convention, there was no limitation as to who could be respondent and case law did not support argument that retaining party being non-parent was significant factor as it was nature of relationship with child that mattered — Application judge was alive to issue of respondent’s non-parent status and weighed it in her overall balancing of factors — Application judge did not make any reviewable error in declining to order child’s return.

DY v. KY 2022 ABCA 90, 2022 CarswellAlta 688, [2022] 10 W.W.R. 122, [2022] A.W.L.D. 2308, 2022 A.C.W.S. 530, 43 Alta. L.R. (7th) 261

Mitchell v. Reykdal AWLD 26-2425

Statutes --- Interpretation — Extrinsic aids — Miscellaneous

G and Da began romantic relationship in 1999, and G lived in homes that he rented or purchased, giving up her full-time job to be homemaker — Da was already married to his wife Di and he carried on both relationships without either woman knowing of other — When relationship ended, G was awarded spousal support of $4,750 per month — Judge ruled that G had standing as adult interdependent partner (AP), was entitled to support and there should not be any repayment of support paid and that relationship satisfied test set out in Adult Interdependent Relationships Act — Judge ruled that s. 5 of Act did not operate to invalidate claim — Da appealed — Appeal allowed — Trial judge reasonably concluded Da was “living with” G and that she would have qualified as his AP, but for operation of s. 5 of Act — However, G’s entitlement to relief under Act was subject to s. 5 — Section 5(1) of Act clearly stated that person could not at any one time have more than one AP and s. 5(2) of Act explicitly stated that married person could not become AP while living with his or her spouse — Objective of Act was to provide relief to those living in interdependent, marriage-like relationships but it did not purport to cover 100 per cent of such relationships — Trial judge erred by trying to extend reach of Act by interpreting “living with” in s. 5 to mean that person could only be living with one person in marriage or adult independent partner-like relationship at one time — On proper interpretation, Act did not purport to cover multiple simultaneous relationships — Trial judge erred by extending reach of Act by incorporating comparative analysis of with whom Da was de facto “living with” — Extraneous sources can have role in resolving ambiguities in statutes, but it was not legitimate technique of statutory interpretation to use extraneous sources to extend legislation to situations it clearly was not intended to cover — Trial judge erred in doing so — “Narrow and comparative” interpretation of “living with,” which was said to be “remedial,” did not necessarily have that effect.

Mitchell v. Reykdal

2022 ABCA 105, 2022 CarswellAlta 751, [2022] A.W.L.D. 2330, [2022] A.W.L.D. 2425, 2022 A.C.W.S. 604, 470 D.L.R. (4th) 396, 71 R.F.L. (8th) 257

Westerveld v. Cineplex Entertainment Corp.

AWLD 26-2426

Torts --- Practice and procedure — Summary judgment

Individual plaintiff brought personal injury action against defendant — Plaintiff suffered trip-and-fall incident at defendant’s movie theatre — Plaintiff claimed defendant was negligent and breached Occupiers’ Liability Act — Defendant claimed it had taken reasonable steps to ensure accidents would not happen — Defendant asserted theatre seating and lighting complied with required building permits and code — Defendant claimed there was no merit to plaintiff’s action — Defendant brought application

for summary dismissal of plaintiff’s claim — Application granted — Defendant acted reasonably to keep premises safe and abided by its regular system of maintenance — Court was satisfied on balance of probabilities that defendant did not breach Act and was not negligent — No extra warning was necessary as plaintiff ought to have been aware of potential hazards in theatre.

Westerveld v. Cineplex Entertainment Corp. 2022 CarswellAlta 920, [2022] A.W.L.D. 2426, 2022 A.C.W.S. 699

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