Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.
Royal Bank of Canada v Independent Electric and Controls Ltd, 2019 ABQB 217
Settlement Privilege | Exceptions
Brenenstuhl v Caldwell, 2019 ABQB 210
Expert Report l Admissibility l Change of Opinion
ABB Inc v Thurber, 2019 ABQB 203
Summary Trial | Conflicting Affidavit Evidence
This was a decision on whether settlement privilege applied. The Court found that it did apply, and it did not fall within an exception to the privilege. The Court confirmed that once settlement privilege is established, it cannot be unilaterally waived by one party:
 I am satisfied that the conditions for settlement privilege are met in this case and the communications in relation to the Settlement Agreement are prima facie inadmissible. This privilege is a class privilege: Sable at para 12. The privilege belongs to both parties and cannot be unilaterally waived or overridden by either party: Bellatrix at para 26. Therefore, unless an exception is made out, the communications between the Receiver and Pembina are protected by settlement privilege.
An exception exists where the public interest outweighs the goals of promoting settlement:
 To come within the exceptions to settlement privilege, a party must show that on balance “a competing public interest outweighs the public interest in encouraging settlement”: Sable at para 19 citing Dos Santos (Committee of) v Sun Life Insurance Co of Canada, 2005 BCCA 4 (CanLII) at para 20. The proper analysis is whether the reason for disclosure outweighs the policy in favour of promoting settlement: Sable at para 30.
This has been made out only in exceptional circumstances:
 In the civil context, such exceptions have been found to include allegations of misrepresentation, fraud or undue influence, preventing a plaintiff from being over compensated, in relation to costs, or where exclusion would facilitate an abuse of the privilege: Sable and Ballatrix. In the criminal context, such exceptions have been found to include reference to the fact of an offer to plead guilty in relation to sentencing: Schyback; or addressing alleged prosecutorial misconduct amounting to an abuse of process: R v Delchev, 2015 ONCA 381 (CanLII).
The Court noted that there is always a conflict between full disclosure and settlement privilege:
 While there is, clearly, an interest in litigants having full information regarding the case which they face, this interest is always in conflict with settlement privilege. As stated by our Court of Appeal “as settlement privilege operates to preclude admission of evidence that might otherwise be relevant, it competes with the court’s truth-seeking function”: Bellatrix at para 26.
However, in this case the parties had sufficient information such that an exception to settlement privilege was not made out:
 Therefore, while it is true that Wesco and ECS may not have available to them all of the communications between the Receiver and Pembina which led to the Settlement Agreement, Wesco and ECS do have the communications in the relevant time frame and evidence from the Receiver, as an officer of the Court, as to whether it was acting as Pembina’s agent.
This was a ruling on the admissibility of two expert reports at trial. One expert report was found to not be admissible, and the other was found to be admissible because it was based on factual experience rather than as an opinion.
At Trial the Plaintiffs’ objected to the introduction of the following opinions from the Defendant’s expert:
- evidence from Dr. Williams, who is qualified as an expert in the area of cardiology, in relation to a theory of causation, which had not been contained in either his initial expert report of October 17th, 2006 or his rebuttal report of January 29th, 2017;
- evidence from Dr. Hons regarding the turn-around time in Alberta in the year 2000 in relation to a renal biopsy report ordered by a nephrologist.
The Defendant’s expert, Dr. Williams’, concluded that he could not determine causation in his initial report, and rebuttal report. However, shortly before Trial, he thought of a new theory of causation. Five days before Trial, Defence counsel notified Plaintiff counsel as follows:
Because I take the position that sandbagging with medical literature is inappropriate, I am advising you at this stage, well before Dr. Overgaard is set to give his evidence, that he should bone up on atrial septal defects, ASD, or patent foramen ovale, PFO, present in approximately ¼ of population, and paltypnea orthodeoxia syndrome.
The Court concluded that the new opinion on causation was not admissible on the basis that it did not comply with the Rules of Court with respect to changes in expert opinions, and in the alternative, if it was, it would have been given little weight in any event on the following basis:
 Rule 5.38 reads:
If, after an expert’s report has been provided by one party to another, the expert changes his or her opinion on a matter in the report, the change of opinion must be (a) disclosed by the expert in writing, and (b) immediately served on each of the other parties.
 I concluded that the Plaintiffs’ position in relation to this issue was the correct one. I agree that Rule 5.38 was not complied with. Having had twelve years to think about the issue of causation, and having provided two written opinions that he could not determine a cause for the asystolic arrest, Dr. Williams’s development of a new theory on the eve of trial required more in the way of communication than the vague email sent by Mr. Hembroff on January 30th. At a minimum (and indeed it would have been a minimum), the January 30th email ought to have advised that the reason Mr. Hembroff was suggesting that Dr. Overgaard consider this medical condition was that Dr. Williams was going to advance this as a new theory of causation, contrary to his prior written opinions.
 Contrary to the Defendants’ position that not allowing this new theory to be advanced by Dr. Williams would be prejudicial to the Defendants, I concluded that to permit it would be prejudicial to the Plaintiffs. In the circumstances of this case, it would not be a proper exercise of the Court’s discretion to permit the admission of this expert evidence.
 Furthermore, if I am incorrect in that regard, and if I ought to have admitted this evidence, I would have placed no weight on it, since there is no evidentiary foundation to support the theory. As Dr. Overgaard observed, the echocardiogram had not disclosed the presence of any defect in Ms. Brenenstuhl’s heart. There was also no evidence of a blood clot on the post-arrest images. Dr. Overgaard rejected this as a possible cause given that Ms. Brenenstuhl’s blood pressure readings would, in his opinion, have made it hard for the blood to go in the direction required for the theory to be engaged. Finally, Dr. Williams did not provide an unequivocal opinion that this indeed caused Ms. Brenenstuhl’s asystolic arrest. Rather, he indicated that, having thought about this case a great deal, he thought this might be a possible cause that he had not previously (i.e. in the preceding 12 years) thought of. Without any evidence to engage a theory, it remains just a theory. In this case, in the absence of any evidence that Ms. Brenenstuhl had this condition, I could not have concluded, had the evidence been admissible, that this was the cause of her asystolic arrest.
The Court allowed Dr. Hons’ evidence on turnaround time, because it was based on his factual experience, and not an opinion:
 In the result, I found that Dr. Hons was providing evidence on a factual matter, not an opinion on whether the turn-around time experienced by him was in breach of a professional standard. For that reason also, and in the context of binding jurisprudence, I concluded that the evidence was admissible.
This was a Summary Trial where the Plaintiff’s claim was dismissed entirely. The Court considered the preliminary matter of conflicting Affidavit evidence, and confirmed that this can be addressed through common sense, and other admissible evidence where the facts in conflict are inferences, or are immaterial to the issues:
 As noted, the parties have agreed that the question of liability can properly be determined through the Rule 7.5. process. They were right to do so. The Court of Appeal in Imperial Oil v Flatiron Constructors Canada Ltd, 2017 ABCA 102 (CanLII), held that a summary trial is appropriate where the factual questions can be properly resolved through the summary trial procedure, and where doing so is not unjust. Here, the factual issues raised by this case can properly be resolved by way of affidavits and the record before me. The factual disputes go largely to inferences, rather than to the underlying facts or, in the end, are not material to the issues that need to be resolved.
 As noted by the Court of Appeal in JN v GJK, 2004 ABCA 394 (CanLII) at para 42, conflicting affidavit evidence can be addressed through common sense inferences, using other admissible evidence to find the facts necessary for judgment or by weighing the consistency between one witness’s evidence and the other evidence available. Those methods can be employed on the record before me to make the factual findings necessary to determine the liability of Pronghorn and the Individual Defendants.