Go to Top

Monday Morning Case Bites for March 25, 2019

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.

Edited by Amanda Kostek & Christie Dewar

994552 NWT Ltd v Bowers, 2019 ABQB 195
Dismissal for Long Delay | Defendant’s Failure to Answer Undertakings

Paul Rains Design Build Ltd v Choma, 2019 ABQB 187
Dismissal for Long Delay | Multiple Steps

McElhone v Indus School, 2019 ABCA 97
IME | Restrictions by a Court

Hall v Stewart, 2019 ABCA 98
Tort l Director | Personal Liability

Beazer v Tollestrup, 2019 ABCA 101
Costs | Solicitor-Client Costs

Jager Estate v. Deadman, 2019 ABCA 99
Stay Order Pending Appeal | Forum l Attornment

994552 NWT Ltd v Bowers, 2019 ABQB 195

This was an unsuccessful application to dismiss an action for long delay. The Court considered whether the Defendants’ failure to provide undertakings precluded a subsequent application for delay. In this case, a Consent Order requiring answers to undertakings was never complied with.  The Court concluded that although an application for contempt was never brought, Rule 4.33 needed to be viewed in light of the foundational rules:

[41]           At the same time, the Respondents disagree with the Master’s statement made at 2017 ABQB 741 (CanLII) at para 7 when he stated as follows:

Although I do not need to decide the case on this basis, in my view the principle ought to be this: A person in breach of a Court Order to do something that, if completed, would count as a significant advance, cannot rely on Rule 4.33. This is simply an extension of the principle that you can’t’ rely on your own delay to strike an action under Rule 4.31 or old Rule 244 (Maligne, Dressler), or that a court should not assist a person in contempt of its orders (eg Phillips at para 14, Horrey).

[42]           For the reasons that follow, I find myself in broad agreement with this statement of principle stated by the Master. Although Rule 4.33 does not permit any discretion beyond the enumerated exceptions to the Court upon a finding that three years have elapsed since the plaintiff took his last significant step, the drop dead Rule must be read contextually in accordance with the foundational rules as set out in Rule 1.2.

The Court elaborated that a Defendant cannot purposefully stall or delay the action.   The Defendants could not rely on their own failure to provide undertakings as part of the time frame of inactivity:

[46]           An apropos example of this principle at work is arguably found in the Alberta Court of Appeal decision in Turek v Oliver, 2014 ABCA 327 (CanLII). In that decision, the Court of Appeal upheld the dismissal of an application to strike an action for want of prosecution under Rule 4.33 in circumstances where the defendants failed to file their affidavit of records, and the plaintiff brought an application to compel production and then agreed to further extensions. The defendants brought an application to dismiss for delay without ever providing the affidavit of records. Slatter J.A., writing on behalf of the Court, upheld the dismissal of the application to strike the proceedings for delay and concluded at paragraph 5 as follows:

The drop dead rule, R. 4.33, is designed to bring an end to actions that have become inactive and should be deemed to have been abandoned. It was not unreasonable for the chambers judge to conclude that his action dose not fall within that category. The respondent had persistently pursued production of the appellant’s affidavit of records, a document required by the Rules of Court. It was the appellants who were in default throughout, both of the Rules and their undertakings. The appellants argue that obtaining agreement from opposing counsel that something will be done by a particular deadline does not significantly advance the action, unless that agreement is performed. This seems to imply that it is unreasonable, foolish or naïve for one barrister to rely on the undertaking of another.

[47]           For similar reasons, I find that it is not open to the Respondents to complain that the agreement to provide the response to the undertakings did not significantly advance the Appellant’s action. It seems to me that the Court should not seek to ignore the unfulfilled promise of legal counsel to provide the undertakings, and more importantly the order of this Court to provide the undertakings by July 31, 2013. Quite obviously, the order of this Court must be obeyed, regardless of whether or not the disobedience was contemptuous. Nor, should the unfulfilled promise of legal counsel for the Respondents to keep the Appellant updated as to the progress of production be lightly ignored by this Court.

[48]           I am also of the opinion that the unfulfilled undertaking responses, had they been provided, would have constituted a significant advance in the Plaintiff’s application. As I have earlier discussed, I am of the view that the undertaking responses were of significance to the Plaintiff in providing important corroboration of Carol-Ann Bower’s admission of having received funds from Terrance Bowers, and that the evidence was useful for the potentiality of tracing the stolen money. In addition, as I have previously noted, the evidence the Appellant sought as to the opening of the account may be useful in resolving a credibility conflict between Terrance Bowers and Kathleen Morris-Melenka.

As a result, the Applicants could not rely on Rule 4.33:

[56]           I conclude therefore that the failure of the Respondents to provide the undertakings that they promised, especially in present circumstances where they have not complied with an order of this Court to do so, disentitles the Respondents from the relief granted by the Master. As a consequence, the Respondents are not entitled to dismissal under Rule 4.33 as ordered by the Master. In the circumstances, I need not consider the alternate arguments made by the Appellant concerning the correctness of the dismissal of the claim under this Rule.

The Court also considered whether the claim should be dismissed for inordinate delay.  Although 8.5 years had passed since the filing of the claim, this delay was not inordinate:

[67]           Although 8 ½ years is long for litigation of this type, I do not conclude that the delay is inordinate in the circumstances because the delay is in my view not past the point on the litigation spectrum that litigation acting reasonably would have obtained.

[68]           In coming to this conclusion, I note that unlike criminal matters there is no prescriptive or presumptive ceiling beyond which the delay might be said to be presumptively long.

[69]           Having said that, there is a theme in Alberta law that a useful starting point is ten years where an action is not yet on the eve of trial: M L Bruce Holdings Inc v Ceco Developments Ltd, 2015 ABQB at paras 37-38. Although I do not consider this sentiment or rough judicial survey to create a presumptive ceiling, the complexities of the present lawsuit including the number of defendants, and the existence of a collateral criminal investigation lead me to the conclusion that 8 ½ years to the point in time the application was filed to strike this action for delay is not inordinately long.

Further, part of the delay was due to the Defendants:

[70]           I am also of the view, unlike the situation considered by the Court of Appeal in Humphreys, that the Respondent’s contribution to the delay by failing to provide undertakings in a timely fashion, excuses the delay even if it would be considered to be inordinate.

[71]           In considering the factual circumstances, the Court notes that the Respondent Carol-Ann Bowers undertook at Questioning in May of 2013 to provide responses to the undertakings she made. At the time this application for dismissal for delay was brought in 2016, the undertaking responses still had not been provided. In these factual circumstances, the delays in this action are excusable given the contribution to the delay occasioned by the Respondents. In these particular factual circumstances, I cannot conclude that the difference between the actual progress of the expected progress of the litigation is so large as to be unreasonable given the Respondents’ contribution to the overall delay.

Finally, the Court concluded that the criminal action was inextricably linked to the civil action:

[72]           I am also of the view that the criminal proceedings, although not a concurrent civil action, were inextricably linked factually such that they were significantly advancing the action: Calgary (City) v Chisan, 2000 ABCA 313 (CanLII). The Appellants benefited from the criminal proceeding by obtaining a comprehensive Agreed Statement of Facts, which acknowledged the theft by Terrance Bowers and the distribution of monies to the various Respondents. The collateral proceedings advanced the action measurably and it was not unreasonable for the Appellant to await the completion of those proceedings as the civil action advanced. Nor, can it be said that the civil action was without benefit as the removal of Terrance Bower as a Defendant based upon the Criminal Restitution Order operating as a judgment in the Appellant’s favour will significantly shorten the civil proceedings.

Paul Rains Design Build Ltd v Choma, 2019 ABQB 187

This was an unsuccessful application for dismissal for long delay. The Court dismissed the application for delay because multiple litigation steps had occurred:

[15] In the three years preceding the motions, there was (inter alia) continued questioning, document production, an expert attendance and answers to undertakings. Even if I might have doubts about whether one of the events listed in the chronology might have counted as an advance on its own, it is my view, that taken together, the lawsuit was significantly advanced in the three years prior to the motions. The action had not truly died (Ursa para 10).

However, the Court also looked at inordinate delay, and whether, overall, the claim took too long to get to Trial. It noted that the claim was commenced under the Builder’s Lien Act, which requires expeditious hearing:

[20] Lien matters are supposed to proceed expeditiously (questioning is not permitted without leave). Failure to get a lien action to trial within two years can be a ground for dismissal under the Builder’s Lien Act (s 46). All of the efficiencies meant to be incorporated in the lien action were lost when there was a counterclaim about the quality of the work and parties were added.

[21] The delay in this case is just under ten years from commencement to application. The Plaintiffs/Respondents say they are ready for trial. From their perspective, little would remain other than to convert their expert reports into Form 25.

Additional Questioning and experts were required. The Court was critical about the pace of the litigation, but ultimately concluded that the delay was excusable, although just barely:

[25] Has this litigation reached the stage that it should have reached in the litigation spectrum? In my view, the answer is no. The matter should have been set for trial, or other form of resolution sometime in the 2013-2014 timeframe (at least).

[26] Is the delay inordinate? In my view, the answer to this question is yes. Part of it appears to be attributable to the plaintiff’s desire to treat this lawsuit like a line of credit, drawing it down over time as they could afford to make repairs. This is not a proper way to conduct litigation. It is no answer to a loss of future income claim, for example, to ‘wait and see’. The alleged value of all of the deficiencies should have been proved by expert opinion, long ago.

[27] Is the delay excusable? As indicated, there appears to be very little left to do from the plaintiff’s perspective. Post-2011, the ball was mainly in the Defendants’ court. The Defendants have not furnished any expert evidence informally or otherwise, in response to the Plaintiff’s three expert reports. The Plaintiff was compelled to obtain an order compelling the Rains Defendants to answer undertakings. That party appears to have been chronically behind in its obligations.

[28] The Applicants said they would like further questioning but, despite ample opportunity, have failed to initiate this. While it is my view that the delay is inordinate, it is, in all circumstances, excusable; though just barely.

[29] On this basis, neither the actual prejudice nor the presumption of prejudice in r 4.31 need be addressed. I agree with the Respondent that this is primarily a ‘documents case’, or an ‘experts case’, rather than a ‘memories case’.

McElhone v Indus School, 2019 ABCA 97

This was a successful appeal of an application where restrictions were placed on an IME. The issue was what questions a vocational psychologist could ask at an IME, and what tests could be administered.  The Court confirmed that an expert should be given the ability to control their own examinations:

[9]               As a basic principle, health care professionals ought to have the ability to control their own examinations. Courts should be able to rely on the professional integrity and responsibilities of health care professionals, absent evidence which should override such trust. I agree with the comments of Acton J in Crone v Blue Cross Life Insurance Company of Canada, 2001 ABQB 787 (CanLII) at para 26, 297 AR 351:

[I]t seems eminently reasonable that defence medical examiners, indeed all medical professionals, should be left to conduct their medical examinations as they see fit unless there is a compelling reason for the court to interfere or the rules permit it, as for example the rule allowing the presence of a medical nominee chosen by the plaintiff. The court cannot, in any event, compel a doctor to conduct an examination under circumstances which the doctor objects to, so if the courts begin to place constraints on how particular plaintiffs are examined, the predictable effect is that the number of doctors willing to perform defence medical examinations will decline, raising both the price and length of time to complete the discovery process in personal injury actions.

[10]           To similar effect is the comment of Read J in Feniak v Backhouse, 2010 ABQB 332 (CanLII), 534 AR 1, who observed that “[i]n the course of his or her examination, an examiner must be permitted to conduct such diagnostic tests as the examiner considers necessary in order to enable them to reach their conclusions and form their opinion”: at para 59. Although these cases were decided under the old Rule 217, the rationale remains sound. See also Wong v Wong, 2006 BCCA 540 (CanLII) at para 43, 227 DLR (4th) 220.

[11]           Given this rationale, what must the party seeking to limit the examination (who I will refer to as the plaintiff) establish and how does the plaintiff meet its onus?

The Court of Appeal set out the following test for limiting IME examinations:

[18]           For a reason to be compelling it must be examined in light of the purpose of Rules 5.41 to 5.44. The discovery provisions in Part 5 arise from the foundational principle that lawsuits should be decided on the merits. A party must disclose all relevant and material records and answer all relevant and material questions, whether helpful or unhelpful. There is no need to curtail an examination by limiting it to relevant and material questions, because that limit is implicit. In the context of an examination by a health care professional, a plaintiff cannot put her health in issue and then fail to disclose her medical condition.

[19]           With these principles in mind, a reason to limit an examination is compelling if the plaintiff’s interest in maintaining the confidentiality of the information or otherwise curtailing the examination (a) significantly overrides the objectives of full pre-trial discovery, and (b) does not unfairly prevent the defendant from responding to the claim.

[20]           As the onus is on the party seeking to limit the examination, it is that party’s obligation to adduce evidence in support of the need for limitations. This might include an affidavit of a medical professional or of the plaintiff, deposing to the circumstances which could justify the limitations. The burden could be met by presenting relevant evidence from a cross-examination of a proposed health care professional.

The Court directed that the approach taking by the original master was flawed in light of the Rules:

[21]           Here, the chambers judge limited the medical examination based on what appeared to be no more than the names of the tests themselves, based on her own interpretation of their merit. The plaintiff did not adduce any affidavit evidence to show why the tests proposed were harmful to her, or any expert evidence to show the tests would be beyond the scope of a typical vocational assessment. The only evidence adduced was the cross-examination of the psychologist whose evidence did not provide any compelling reason to limit the examination. The respondent submitted that because the psychologist changed his mind about the number of tests that he needed to perform, this indicated that some of the tests were unnecessary. The chambers judge seems to have accepted this. It is important to note that when the psychologist swore his affidavits and was cross-examined, he had no information about the respondent beyond what was contained in the pleadings. He could only indicate what he might need to ask her or what tests he might perform. This was not a sufficient evidentiary basis upon which to limit the examination.

[22]           The respondent is concerned about a particular question which the medical professional might ask. At the cross-examination on his affidavit, the psychologist was asked whether he would inquire of the respondent if she took birth control. He initially indicated that he would not, but then later stated that he might, as this could affect emotional functioning. Rule 5.44(1) provides that the medical professional may ask questions that relate to the plaintiff’s medical and physical condition, including medical history and the plaintiff must answer the questions. In my view, and mindful of the fact that the psychologist is not yet familiar with the respondent, the court must rely upon the professional expertise and judgment of the expert as to whether he needs this information. Moreover, there is no evidence on the record to support any compelling reason to limit the question. Similar considerations apply to questions the psychologist suggested he might ask about the respondent’s relationship with her twin sister. She has put that relationship in issue. It is not the court’s role to second guess.

The Court of Appeal cautioned against relying on a dated 1994 decision, which was decided under the old Rules of Court, and directed that options such as a nominee or videotaping are available to a Plaintiff:

[23]           The chambers judge relied on Tat v Ellis, 1994 ABCA 260 (CanLII), 155 AR 390, and the respondent urges us to do so in this case. However, reliance on Tat is misplaced. Tat was decided according to the old Rules and on a “narrow and precise issue” of whether the court could order a test by someone other than a physician, when the physician stated that the test was a necessary preliminary to his opinion. On appeal, this court held that the lower court could order such a test and set out a number of factors to be considered. Tat is not applicable where one seeks to limit the parameters of testing conducted by a health care professional. At most, the Tat factors might be used as a threshold test to determine whether the proposed assessment should be ordered at all. For example, in Phillips v Posein, 2005 ABCA 318 (CanLII), 380 AR 390, this court set aside an order requiring the plaintiff to attend for a psychiatric assessment where the plaintiff did not allege any injuries of a psychiatric or psychological nature. This court concluded that the defendant had not laid an evidentiary foundation to demonstrate that a psychiatric examination was necessary.

[24]           It is important to note that there are other protections for a plaintiff who undergoes a medical examination. Rule 5.42(1) permits a plaintiff to nominate a health care professional to be present during the examination, to videotape the examination and to make a word-for-word recording of the examination. The chambers judge encouraged the plaintiff to make use of these protections.

The appeal was granted and the restrictions on the IME were removed.

Hall v Stewart, 2019 ABCA 98

This was a successful appeal of a successful summary dismissal application, leaving the matter to be explored further at trial or another dispute resolution forum. The Court of Appeal considered whether a Director could be held personally liable for his tortious conduct as an employee and director of his closely held corporation.  The Director/Employee was personally involved in installing a prefabricated staircase that collapsed:

[2]               The respondent was a director of DWS Construction Ltd., which was retained by Fekete Homes as a sub-contractor to perform work on the construction of a new home. Part of the scope of its work was to install a temporary staircase into the basement of the new home. The claimants were employees of another sub-contractor. The staircase installed by DWS Construction collapsed underneath them, causing them injuries.

[3]               The staircase in question was prefabricated off-site by a third party and supplied by Fekete Homes, but was installed at the new house by DWS Construction under the supervision of and with the actual participation of the respondent. He denies that there was any negligence involved in the installation, and alleges that the staircase failed because it was overloaded, or because other unidentified workers removed the bracing holding it in place.

In this case Section 16 of the Workers’ Compensation Act excluded coverage for a director performing the corporation’s work, unless additional coverage as a Director was purchased:

[9]               The dual regime of statutory no-fault compensation and immunity from suit does not, however, apply to “directors” of “employers”, unless they purchase additional coverage from the Board:

15(1)   Subject to section 16, an employer, a partner in a partnership, a proprietor and a director of a corporation are not workers for the purposes of this Act unless they apply to the Board in accordance with the regulations to have the Act apply to them as workers and the Board approves the application. . . .

16(1)   Where an individual performs any work for any other person in an industry to which this Act applies, that individual is deemed to be a worker of the other person, except when the individual

(c)  is a director of a corporation and is performing the work as part of the business of the corporation, whether by way of manual labour or otherwise, . . .

The Director did not purchase additional WCB coverage as a director.   His corporation did, so the issue was whether the claim could proceed against him personally as a Director/Employee.  In this case the Court commented that the individual was acting as both a director and employee.

[17]           Neilsen Estate included an extensive discussion on whether the director Epton’s conduct “as a director” had caused the damage, and whether a director owed a duty of care to individual workers. That discussion is not necessary to resolve this appeal for two reasons. First of all, the respondent Stewart was actively involved in the installation of the staircase, and so was involved in the accident both as a director and as an employee. Secondly, amendments to s. 16 of the Workers’ Compensation Act make this analysis unnecessary. At the time Neilsen Estate was decided, s. 16(1)(c) excluded a director from the system if he or she was “performing the work for the principal in the individual’s capacity as a director of the corporation”. Section 16(1)(c) was subsequently amended to broaden the exclusion to whenever the work was a “part of the business of the corporation”. It is therefore no longer necessary to identify whether the work was being done “as a director” or in some other capacity.

The Court of Appeal discussed the availability of insurance:

 [19]           The competing policy objectives of tort law and corporate law must be reconciled in context. One important factor is the ready availability of insurance for property damage and personal injury. One obvious source of personal injury insurance is the workers’ compensation system itself. However, even if a corporation does not elect to purchase director’s insurance within the workers’ compensation system, general commercial liability insurance coverage is widely available for personal injury and property damage. In assessing whether a corporate representative should be exposed to personal liability for corporate torts, it must be acknowledged that the underlying risk can readily be managed and diverted through the purchase of appropriate insurance. Balanced against this factor is the reality that mere employees (unlike directors like the respondent) have little control over corporate decisions to insure. Whether the respondent actually purchased commercial general liability insurance is not the point; the point is that such insurance was available to him, and if he did not purchase it he must have elected to assume the underlying risk himself. He could not, by his decision, seek to pass the risk of recovery of personal injury damages onto injured claimants like the appellants.

The Court ultimately imposed liability on the following basis:

[23]           The deciding factor in this case, however, is the nature of the damage: personal injury. A number of the cases where individual liability has been found for corporate torts concern physical damage or personal injury: Peracomo Inc.; London Drugs; Nielsen Estate. There is clearly a “duty of care” to avoid injuring one’s co-workers, and no residual policy considerations to exclude liability: Rocky Mountains Slate at paras. 127-8. Anyone who agrees to install a staircase clearly owes a duty of care to those who are likely to use that staircase. Although the respondent’s tort was not at all “independent” of the corporation DWS Construction, the modern corporation was not designed to be a method of providing immunity to corporate actors for this sort of loss. There are strong public policy reasons to ensure that physically injured plaintiffs are compensated. Claims for pure economic loss raise different issues.

[24]           A similar situation would arise if the respondent had been moving a piece of equipment owned by DWS Construction from one construction site to another. If he negligently ran over someone with that equipment, he would properly be responsible for the personal injuries that resulted. He could not successfully argue that he was only operating the equipment in his capacity as an employee or director of DWS Construction, and that he was not personally liable for what he had done. It also should not matter whether the person he ran over was a third party civilian, or a “worker” covered by the Workers’ Compensation Act. The separate corporate personality was never designed to immunize tortfeasors in that situation. (Of course, if the corporate equipment was a “motor vehicle”, it should properly be covered by the mandatory insurance required for such vehicles, but the underlying common law principle is the same.)

[25]           It follows that the respondent cannot escape personal liability for any personal injuries he caused to the claimants as a result of a negligent act, even though his involvement in the construction of the staircase was a part of the business of the corporation DWS Construction.

Beazer v Tollestrup, 2019 ABCA 101

This was an unsuccessful appeal of costs awarded on a party and party basis. The Applicants argued that full solicitor-client costs were warranted. The Court noted that pursuant to Rule 14.5(1)(e) of the Alberta Rules of Court, an appeal on costs only requires permission to appeal.

The Court noted that on appeal from a costs award, the standard of review is highly deferential, and solicitor-client costs are rarely awarded:

[3]               A highly deferential standard is applied when reviewing a costs award: British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71 (CanLII) at para 42, [2003] 3 SCR 371. Cost awards are discretionary and absent an error in principal, are reviewable on the standard of palpable and overriding error: Jackson v Canadian National Railway Company, 2015 ABCA 89 (CanLII) at para 9, 599 AR 237; 1985 Sawridge Trust v Kenedy, 2017 ABCA 368 at para 8, 2017 ABCA 368 (CanLII), [2017] AJ No 1164.

[4]               Costs are usually awarded on a party and party basis to the successful party. Solicitor-client costs are awarded on very rare occasions, such as when a party has displayed reprehensible, scandalous or outrageous conduct, or for reasons of public interest: Young v Young, 1993 CanLII 34 (SCC), [1993] 4 SCR 3 at 134, 108 DLR (4th) 193; Mackin v New Brunswick (Minister of Finance); Rice v New Brunswick, 2002 SCC 13 (CanLII) at para 86, [2002] 1 SCR 405.

The Court affirmed the following test for permission to appeal on costs:

[5]               The test for permission to appeal a costs award established under the former appellate Rules continues to apply: Jackson at para 10. The following applies on such an application:

(i) the applicant must identify a good, arguable case having enough merit to warrant scrutiny by the court;

(ii) the issues must be important, both to the parties and in general;

(iii) the appeal must have practical utility; and

(iv) the court should consider the effect of delay in proceedings caused by the appeal.

[6]               In Sawridge Trust at para 5, this court observed that an appeal may be justified where a costs award raises more general issues, or issues of principle.

The applicant’s argued that the allegations of misconduct contained in the pleadings were not established.  The Court disagreed that this was a basis for granting leave to appeal on costs:

[11]           First, it is clear from the trial judge’s reasons at trial and on the issue of costs, that he did not view the actions of the estate as constituting misconduct that might attract solicitor-client costs. This finding is entitled to deference and shows no reviewable error.

Jager Estate v. Deadman, 2019 ABCA 99

This was a successful application to stay an Order pending appeal.  The Court confirmed the following test for a stay:

[6]               The parties agree that the test that applies to this application is the tri-partite test from RJR-MacDonald Inc v Canada (AG), 1994 CanLII 117 (SCC), [1994] 1 SCR 311, 111 DLR (4th) 385 [RJR MacDonald]. The Court must ask if the applicant has established that: there is a serious question on appeal; irreparable harm will result if the Court does not grant a stay; and the balance of convenience would justify a stay.

The Court  confirmed that the threshold for the first part of the test is low:

[7]               When considering whether there is a serious question on appeal, the threshold is low. Rather than considering the merits of the appeal, a Court need only consider whether the appeal is frivolous or vexatious: RJR MacDonald at 335. The Deadmans argue that their appeal is neither frivolous nor vexatious, and in fact addresses serious legal issues. They argue that their chance of success on appeal is reasonable.

The second part of the test considers whether the harm alleged can be compensated through damages:

[10]           The onus to show irreparable harm lies on the Deadmans. Relevant is the nature of the harm alleged, rather than with its magnitude. It is harm that cannot be compensated in damages: RJR MacDonald at 341.

The final part of the test is a weighing of prejudice:

[17]           The balance of convenience analysis considers whether the Deadmans will suffer greater harm if the stay is denied than the Jagers will suffer if the stay is granted: RJR-McDonald at 343.

In this case the issue was whether Alberta was the correct forum to bring the action.  If the Applicants were required to defend, then they would have attorned to the jurisdiction.  Although the Respondent offered to give an undertaking that appeal steps would not prejudice the applicant, the Court concluded that this was not sufficient.  A stay was granted on the following basis:

[21]           The tripartite test assists the court in determining if it is in the interests of justice to grant a stay. I grant the stay because I find that attorning to the jurisdiction would be irreparable harm, and the risk of such harm is not completely removed through an undertaking. In my view, the delay will cause minimal inconvenience to the Jagers.

The Court also considered whether to grant a cross application for security for costs.   In this case there were no assets in Alberta, but it was argued that this is the chance taken when the Plaintiff sought to sue in Alberta instead of Mexico.   Ultimately the Court declined to grant security for costs on the following basis:

[32]           First, I find that the Jagers gave no undertaking not to apply for security for costs. There was a discussion about this concept in the Court below, nothing more. Further, while the Rules contemplate that any party can apply for security for costs, it is unusual for a plaintiff to do so. Nevertheless, a plaintiff is entitled to do so, but has the onus to establish the requirements. I find that the Jagers have not established that the Deadmans are unlikely to pay a future costs award. The evidence is they paid the costs from the appearance before the Master, and that they are disputing the costs from the court below. They have not refused payment. Lastly, it is difficult for the Jagers to complain about not being able to collect on costs because there are no assets in this jurisdiction, when they have chosen to commence a lawsuit against the Deadmans in this jurisdiction.