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Monday Morning Case Bites for February 3, 2020

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

Edited by Amanda Kostek & Steven Graham

Nova Pole International Inc. v Permasteel Construction Ltd., 2020 ABCA 45
Dismissal for Inordinate Delay and Long Delay

Annett v Enterprise Rent-A-Car Canada Ltd, 2020 ABQB 74

Franiel v Toronto-Dominion Bank, 2020 ABQB 66
Undertakings taken “under advisement” | Improper Objections at Questioning

Nova Pole International Inc. v Permasteel Construction Ltd., 2020 ABCA 45

This application for delay involved claims filed in 2005.  Questioning was only partially complete by the time the Defendants applied to have the claim dismissed for delay in 2016.  The Master hearing the application concluded that the delay was inordinate, but that since this was a claim relying heavily on documents instead of memories, and the claim was “virtually ready for trial”, the Master declined to dismiss the claims for delay.  On appeal before a single Judge, the claims were dismissed for delay.  The Plaintiff appealed.  

The Court of Appeal concluded that the delay was a result of all parties’ actions, and on that basis, the delay was excusable: 

[39]           It is clear that Nova Pole’s delay in obtaining an expert on damages and finalizing the report was the major contributing factor in the delay of the actions. However, all parties bear some responsibility in failing to move these actions forward. The matter was not ready for trial in 2016, when the expert report was provided, in part because of the position taken by the defendants and third parties that they would not complete their questioning until they received the report, although this was not a requirement in the rules. The overall delay was of all parties’ making. Moreover, having suggested and agreed to the process, and having failed to proceed with their questioning when delivery of the Plaintiff’s expert report was delayed, the defendants then brought an application to dismiss one month after the report was finally served. 

[40]           In the unusual circumstances of this case, it is our view that Nova Pole has established that the delay was excusable. As a result, the presumption of significant prejudice does not apply and it is therefore not necessary to consider whether that presumption has been rebutted. 

The appeal was allowed and the parties were directed to attend before a Justice to address whether an procedural order was appropriate. 

Annett v Enterprise Rent-A-Car Canada Ltd, 2020 ABQB 74

This was a costs decision following a Trial in a personal injury action.  The Plaintiff discontinued its claim against Calgary Police Service in January, 2019, but the Defendant, Enterprise Rent-A-Car Canada Ltd., issued a Third Party Claim against CPS on April 5, 2019.  The Trial commenced in May, 2019.   At Trial the Court concluded that CPS was not negligent, and therefore not required to indemnify the Defendant.   The Court directed that Enterprise pay all of CPS’s costs from the beginning of the litigation notwithstanding that the Third Party Claim was issued just before Trial: 

[57]           The Plaintiff reasonably sued both Enterprise and CPS. As between CPS and Enterprise, CPS was the successful party and costs follow success. I can discern nothing in the Plaintiff’s conduct, CPS’s conduct, or Enterprise’s conduct that disentitles CPS to costs from the beginning of the litigation. 

[58]           I therefore order that Enterprise pay all of CPS’s costs, from the beginning of the litigation, under column 3 of Schedule C of the Rules of Court. 

Franiel v Toronto-Dominion Bank, 2020 ABQB 66

An application was flied to compel the Defendant Bank to answer undertakings refused at Questioning.   Master Robertson noted that many of the questions refused were based on the Defendant’s belief that it had a good case.  The Court directed that it is the Pleadings that inform the scope of questions, and not one party’s belief in the strength of their case: 

[21]           Before addressing the specific questions and request for undertakings, I make the observation that it seems to be the Bank’s unstated position that since it is confident that it owes no duty of care at all to see why a customer is withdrawing or investing her money and no duty to decline to act on the customer’s instructions, it is not obliged to provide candid answers to questions as to the Bank’s level of knowledge of these sorts of frauds generally, or its specific level of knowledge of the plaintiff’s behaviour.  

[22]           If this has guided the objections, it is an error.  There has been no application to strike under rule 3.68 or an application to dismiss summarily under rule 7.3.  The scope of questions which a party is entitled to ask in questioning is determined by the pleadings, subject to the additional consideration of materiality.  It is not determined by one party’s confidence in the strength of its central argument. 

The Court was critical of counsel repeatedly taking undertakings “Under Advisement”: 

[23]           It is extremely difficult for litigation counsel to deal with requests for undertakings being “taken under advisement” repeatedly.  When an objection is made, there is usually a discussion between counsel as to the basis of the objection, and sometimes the debate is resolved.  When a request for an undertaking is “taken under advisement”, the undertaking is actually being refused, but usually no reason is given, because the objecting lawyer is not clear on whether an objection is proper.  That phrase, which has no particular legal meaning, is simply a way of alerting the questioning lawyer that the lawyer representing the witness is not certain of the validity of the objection, and is willing to give it further thought. 

[24]           However, until the lawyer representing the witness actually advises that the undertaking will be answered, the questioning lawyer is entitled to proceed on the basis that the undertaking has not be given, because it has not.   

[25]           Furthermore, it is not appropriate to “take under advisement” a host of requests for undertakings where the result is that the questioning has substantially been frustrated.  That sets up the dynamic for what is, in essence, written interrogatories.  Questions are asked.  Answers are deferred until the witness has at least given it more thought and possibly has had a discussion with legal counsel about what the answer is and whether it should be given.  They are then provided as answers to the undertakings. 

One complaint raised on application was the argument by Defence counsel that the Plaintiff was required to conclude her questions at Questioning, and could not adjourn.  However, the Court noted that where answers are “taken under Advisement”, that party has frustrated the examination: 

[26]           Without getting an answer as to whether several undertakings will or will not be given, a complaint that the questioning lawyer cannot adjourn his or her questioning and must conclude it rings hollow.  The statement that a request for an undertaking is “taken under advisement” is intended to be a non-answer and non-commitment to whether the topic can even be explored.  Having frustrated the questioning, the claim by that party that the questioning is over carries little strength. 

[27]           Similarly, where a multitude of objections are made to questions that are later found to be proper, the assertion that the questioning lawyer has “concluded” also rings hollow.  By making an improper objection, the lawyer representing the witness has frustrated the examination.  Had the question been answered, the questioning lawyer may have gone in a variety of directions exploring the subject.  Questions are often determined based on the answer just received.  But once the question is objected to, and perhaps a month later ruled upon, the witness has then had plenty of opportunity to consider the question and the answer, and likely had the opportunity to formulate an answer based upon the arguments made in the course of the application. This also frustrates the questioning process.  I do not accept the proposition that the questioning lawyer should have listed all the questions he or she wanted answered and waited for a ruling on whether they were proper.  Very often, the questioning lawyer does not know what the questions will be until there has been an answer to the previous question. 

The Court noted that the questioning party is entitled to an efficient examination with proper answers.  Frequent objections interfere with that right: 

[28]           A lawyer conducting questioning is entitled to a reasonably efficient process of asking proper questions and obtaining proper answers.  Rule 1.2 specifically directs the parties, their lawyers, and the Court to use the rules “to provide an effective, efficient, and credible system of remedies and sanctions to enforce these rules and orders and judgments.”   

[29]           I agree with Farrington, J. in NEP Canada ULC v MEC Op LLC, 2016 ABQB 186.  At paragraph 33, he said this: 

It is fundamental to our system that questioning by a party adverse in interest be permitted to continue without interruption within reason for the purpose of discerning the facts in the litigation. That is the nature of the adversary system. 

[30]           At paragraph 51, he made the point that the questioning party is entitled to have a useful transcript.  Frequent and intrusive and mostly unfounded objections interfere with that right.