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Monday Morning Case Bites for June 11, 2018

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

Edited by Amanda Kostek & Christie Dewar

Wage v Canadian Direct Insurance, 2018 ABQB 352
SEF 44 | Territorial limitation

Pe Ben Oilfield Services v WCB, 2017 ABQB 678 and 2018 ABCA 139
WCB barred action | Extra-provincial effect

Sutherland v Brown, 2018 ABCA 123
Dismissal for long delay | Settlement proposal

Kent v Martin, 2018 ABCA 202
Costs | Hidden redactions


Judgment Highlights

 

Wage v Canadian Direct Insurance, 2018 ABQB 352

This case is now being appealed. The original case was released April 30, 2018, and the issues were whether an Alberta SEF 44 applies to an accident in the Philippines, and whether or not the territorial limitation in the SPF No.1 applies to exclude to coverage under the SEF 44. At the original hearing, the Court was not prepared to extend the territorial limit in the SPF1 to the SEF 44 on the following basis:

[23] Endorsements are generally intended to extend coverage beyond what is covered or excluded by the underlying policy. I am not prepared to limit coverage, especially in the legal climate just described, by writing in an exclusion and thereby rewriting the endorsement because I might think this might produce a sensible commercial result. I decline to follow the LaPierre decision, which is not binding on me; though I do so with the greatest respect to the careful analysis provided by the learned trial judge there.

The Defendant insurer’s application for summary dismissal was dismissed and the parties agreed that the Master was free to declare that the territorial limit did not apply to the SEF 44. The SEF 44 insurer was therefore not let out of the action.

Stay tuned for the final decision.


 

Pe Ben Oilfield Services v WCB, 2017 ABQB 678  and 2018 ABCA 139

This case is also being appealed. The Plaintiff was an Alberta resident working in BC when she was rear ended. She was granted WCB benefits in Alberta, but brought a collateral personal injury claim in BC. The issue was whether the Plaintiff could bring a claim in light of Section 22 and 23 of the Workers’ Compensation Act. At the original hearing in 2017 the Court Concluded that the legislation was not meant to have extra-provincial effect. Although employers in Alberta pay into the Alberta scheme, the immunity they are offered is limited to liability in Alberta:

[71] I am also not persuaded by the Applicant’s interpretation of the “historic trade-off.” It is well established that this trade-off does not operate inter-provincially: see e.g. MacDougall at para 43. Alberta and BC each have their own workers’ compensation schemes. Alberta employers pay into the Alberta scheme in exchange for immunity from liability in Alberta. That immunity does not extend to BC. If this Court were to accept the Applicant’s interpretation of sections 22 and 23, and thereby unilaterally impose the “historic trade-off” inter-provincially, it would create the same type of conflict of laws rejected in Glavin and Byers.

[80] Section 23 of the Alberta WCA does not bar Ms. Arlint from continuing the BC Action. She is entitled to exercise her legal right to seek tort compensation in BC. Pe Ben Ltd. clearly operates in BC and is capable of defending itself there against the BC Action. Further, there is also nothing barring the WCB, if it is an equitable plaintiff, from commencing or benefiting from the BC Action. The “historic trade-off” was never intended to apply across provinces. Conversely, sections 22 and 23 were designed to allow the WCB to recoup the value of benefits-paid through the vesting of an injured worker’s cause of action.

In the 2017 decision, an application for an anti-suit injunction was denied, which allowed an action barred by the WCA in Alberta to proceed in BC. In the 2018 decision, the application to extend the time to file a notice of appeal was granted. As a result, the 2017 decision may now be appealed. Stay tuned.


 

Sutherland v Brown, 2018 ABCA 123

This was an appeal of a Chambers decision dismissing the claim for long delay, formerly known as the “drop dead” rule. The issue was whether a 12 page settlement offer advanced the action. The offer was detailed and proposed that liability be split 50/50 between the Plaintiff and Defendant, but it was not accepted. The Alberta Court of Appeal concluded that the offer did not significantly advance the action and dismissed the appeal.


 

Kent v Martin, 2018 ABCA 202

This was an appeal on costs in a highly contentious action involving defamation. Routine matters required court intervention. In total there were 39 pre-Trial Applications. The Plaintiff appealed the costs award on the basis that Defence Counsel had possession of key relevant and material evidence that was not disclosed for 1 year, and when it was disclosed, it was redacted. The Trial Judge described it in the following manner:

There was no indication on the document that anything had been redacted, nor was there any indication in the description in the affidavit of records or the covering letter that any of the documents produced contained redactions. Moreover, the deletion of the page numbers on the document appears to reflect an attempt to conceal the fact that redactions had been made to the documents. Such conduct was clearly inappropriate. (emphasis added, para 32)

At trial, the Plaintiff was awarded $200,000 in damages and $250,000 in costs. Only costs were appealed. The appeal was successful in part and the cost award was increased to $450,000.