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Monday Morning Case Bites for October 22, 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

Ma v Kwan, 2018 ABQB 852
Dismissal for Long Delay l Time Between Filing and Hearing Application

Dion v Security National Insurance Company, 2018 ABPC 242
Summary Dismissal l Diminished Value l Section C Coverage


Judgment Highlights

Ma v Kwan, 2018 ABQB 852

This was an unsuccessful application for dismissal under the 3 year drop dead rule. The Court considered an application for delay that was filed too early but heard after three years since the last significant advance. The Court determined that the time between filing and hearing the application does not count as it is considered institutional delay which acts as a kind of standstill period:

[12] The rationale for not counting the time between the filing of the application under Rule 4.33 and the hearing of that application is described in two cases.

[13] The first case is Kehew Construction Ltd. v Kehewin Cree Nation, 2017 ABQB 673 (CanLII), 2017 CarswellAlta 2611 at para 7, where the following is stated:

The time between the date of the application and the time it is heard should not count. Any delay, especially for a special application, is essentially an institutional delay and should not be counted against the Respondent. The time between the date of the application and the time that it is heard counts as a kind of standstill period to be tacked on to the end. (emphasis added).

[14] The second case, which cited Kehew, is 330626 Alberta Ltd. v Ho & Laviolette Engineering Ltd., 2018 ABQB 398 (CanLII), 2018 CarswellAlta 954 at para 36, where the Court stated:

Time since the filing of the moving parties’ applications do not work against the plaintiff; that period is institutional delay. (emphasis added)

The Court also considered whether filing a second application a few days later but prior to the original application date could cure the problem. It concluded that it would be unfair to allow this because the first application brings the litigation to a standstill:

[18] To rule otherwise would allow a defendant to effectively cause an action to be held in abeyance, by filing the first Rule 4.33 application, and then use the delay so caused to justify success on the second Rule 4.33 application.

[19] I say ‘effectively’ because a plaintiff could still move forward with an action in light of the pending first Rule 4.33 application, but this would be to invite the plaintiff to effectively waste the plaintiff’s legal fees, and the defendant’s legal fees, by proceeding with an action which may shortly be struck under the first Rule 4.33 application.

[20] Foundational Rule 1.2(1) states that the purpose of the rules is to provide a means by which claims can be resolved in a timely and cost-effective way.

[21] Pressuring litigants to carry on with an action while a dismissal delay application is pending is not a cost-effective interpretation of Rule 4.33.


Dion v Security National Insurance Company, 2018 ABPC 242

This was a summary judgment application by an insurer that was successful in part. The insured Plaintiff was in a single vehicle collision with a moose. The Plaintiff brought a claim against his insurer for the diminished value of his SUV. The insurer argued that the Policy did not provide coverage for diminished value of the SUV. Specifically, the Insurer relied on the following provision:

“The Insurer shall not be liable for more than the actual cash value of the automobile at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to that actual cash value with proper deduction for depreciation, however caused, and shall not exceed the amount that it would cost to repair or replace the automobile, or any part thereof, with material of like kind and quality …”

The Court dismissed the claim on the following basis:

[25] I agree with the court in Taylor, that even if this diminished value claim were capable of being proven, such a loss is not covered by the subject policy of insurance as it is excluded by those words in Statutory Condition 4(5), that the liability of the insurer “shall not exceed the amount that it would cost to repair or replace the automobile, or any part thereof, with material of like kind and quality”. A claim for diminished value is a claim for additional depreciation arising from the accident and not a claim relating to the actual cash value of the vehicle immediately before the accident or the cost of repairs. Therefore, it is not a claim that can be made against a party’s own insurer pursuant to SECTION C of the Alberta Standard Automobile Policy S.P.F. No. 1. Regardless of whether any claim for depreciation is related to a value of total loss or repair, the liability of the insurer is capped at an amount not to exceed the cost of repair or replacement of the automobile with material of like kind and quality.

[26] Furthermore, Barbara Billingsley, General Principles of Canadian Insurance Law, 2nd ed (Markham, Ont. : LexisNexis Canada, 2014) at 275, refers to Leger v Royal Insurance Co, 1968 CanLII 733 (NB CA), 70 DLR (2d) 344 (NBCA) and states:

“Canadian courts have made it clear that, regardless of whether an open policy provides coverage on the basis of actual cash value or on the value of replacement cost, a proper valuation of property on the date of loss should not take into account possible future events”.

The Insurer also sought to pre-emptively have an expert on diminished value excluded. The Court declined, noting that a motions Judge’s role is not to weigh evidence or assess credibility. The Court also noted that even if an expert has been disqualified previously, or may have a financial interest in the outcome, that does not meant that an expert should be disqualified from giving evidence in future litigation:

[34] While the Defendant cited previous cases in which Mr. Grieve has been involved where in some instances his expertise regarding diminished value has not been accepted, or he has been found to have had a vested financial interest in the outcome of the decision, those are not issues that have been raised specifically in this application. Simply because an expert may have been disqualified at a previous trial because of a financial interest in the outcome, or because his area of expertise in a particular area was not accepted, does not mean that subsequently that expert should be disqualified in future litigation from giving, or attempting to give, expert opinion evidence. In White Burgess, the issue regarding lack of qualification of the expert was very case specific, which is not the situation in this application. That is to say, in White Burgess, the application was to disqualify the expert in that case. Here, the request is to disqualify this expert in the area of his alleged expertise, that is diminished value.

[35] In my view, this is not a decision to be made by a chambers judge at a pre-trial application based on affidavit evidence.

The balance of the Plaintiff’s claim against his insurer was permitted to proceed to Trial.