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Monday Morning Case Bites for January 7, 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

Capital Power PPA Management Inc v TransAlta Corporation, 2018 ABQB 1036
Summary Dismissal l Limitation Period l Discovery of Material Facts

Green v Fiess, 2018 ABQB 1044
Costs l Schedule C l Inflationary factor

Korpiniski v Tarleton, 2018 ABPC 294
Provincial Court Limits l Perringer Agreement l Full Indemnification l Reduction of award at Trial


Capital Power PPA Management Inc v TransAlta Corporation, 2018 ABQB 1036

This was a successful summary dismissal claim on the basis that the claim was issued after the limitation period expired. The Plaintiff delayed in suing, because it did not have complete certainty of its claim. It later issued a claim five years after the date of loss. The Court noted that limitation periods are not about certainty:

[14] CP considered making a claim against TA in 2011, but believed it did not have certainty about whether it would win: para. 40 of TA’s Brief, and references embedded therein. At the risk of telescoping ahead, limitations are not about certainty of winning a claim advanced, or to be, potentially, advanced, but about whether you have knowledge of an injury for which there is a potential claim.

The Court noted that it is the discovery of material facts that trigger a limitation period and not their legal significance:

[27] It is the discovery of the knowledge of material facts, not their legal significance, which starts the limitation clock: Hill, at paras. 8 – 9.

[28] In determining whether the plaintiff “ought to have discovered”, the test is whether a reasonable person in the circumstances of the plaintiff would have known that the injuries occurred, were arguably attributable to the defendant, and warranted bringing a claim. A plaintiff must exercise due diligence and investigate facts that suggest it may have a claim, and take appropriate action: Ewing v. Allen, 2015 ABQB 264 (CanLII), at para. 32 (Master Hanebury).


Green v Fiess, 2018 ABQB 1044

This was a determination of the appropriate costs award after a successful summary dismissal application. The Court considered whether it should exercise discretion to award an inflation factor for costs. The Court noted that costs are discretionary, and discretionary cost awards should only be awarded on a principled basis:

[5] Let me first state the obvious: costs are discretionary and I have the discretion to award an inflation factor on schedule C costs.

[6] However, discretionary decisions should be made on a principled basis.

In this case there were no unusual factors to deviate from the usual costs set out in the Rules of Court. As a result, the Court was not prepared to award an inflation factor for costs:

[13] In the case of the costs sought by the SV defendants, there are no other factors pointing to a result different that a standard award of schedule C costs. I decline to award an inflation factor because there is presently no guidance by way of prior case law concerning chambers applications to indicate that, in this circumstance, an inflation factor should be awarded.

However, the Court suggested that if case authority develops to allow inflation factors in Chambers, then the consumer price index should be referenced:

[14] If case law develops indicating that an inflation factor should be awarded with respect to schedule C costs resulting from chambers applications, I respectfully suggest that the consumer price index be referenced, lest a cottage industry be established for economists submitting affidavits regarding inflation. Setting up a system requiring evidence, and argument, every time an inflation factor is sought in my view is not consistent with the goal set out in Rule 1.2 to have litigation conducted in a timely and cost-effective way.


Korpiniski v Tarleton, 2018 ABPC 294

In this case some Defendants settled before Trial pursuant to a Pierringer Agreement. The Plaintiff’s claim exceeded the $50,000 Provincial Court limits, and therefore, at the conclusion of Trial, Judgement was reduced to $50,000. The remaining Defendants then sought to further reduce the award by money paid pursuant to the Pierringer Agreement. The Court declined to do so, because the Plaintiff was not fully indemnified:

[4] The leading Alberta decision on interpreting the rule against double recovery in is now Canadian Natural Resources Limited v Wood Group Mustang (Canada) Inc (IMV Projects Inc), 2018 ABCA 305 (CanLII) (“CNRL”) (see also, Bedard (Next Friend of) v. Martyn, 2010 ABCA 3 (CanLII)). The Court of Appeal describes the Pierringer agreement at paragraph 119:

Under a Pierringer agreement, the plaintiff enters into final settlements with some of the defendants, who withdraw from the litigation. The plaintiff then proceeds to trial against the non-settling defendants: Pierringer v. Hoger, 124 N.W.2d 106 (U.S. Wis. S.C. 1963). The settling defendants agree to pay a sum of money, they are no longer parties to the action, and the plaintiff agrees not to pursue the non-settling defendants for more than their proportionate liability. Since the non-settling defendants cannot be liable for more than their proportionate share of the damage, the settling defendants are not exposed to any claim for contribution from the non-settling defendants.

[5] The reason for deduction of any monies paid by a settling Defendant from the ultimate judgment granted by the court is to prevent Plaintiffs from recovering more than their actual loss, as this would breach the rule against over-compensation. The CNRL case confirms that until such time as a Plaintiff has received full indemnification for its loss (which includes costs the Plaintiffs incurred in pursuing the settling Defendant) there is no breach of the rule. The rule against over-compensation is a rule of law and doesn’t depend upon the party’s intentions or actions as set out in the written settlement agreement (see paragraph 156).

[6] There is no reason to effect a deduction where the Plaintiffs have decided, likely for purposes of simplified and expeditious proceedings, to limit their recovery by bringing their action in Civil Claims and in effect, give up any opportunity for full indemnification.