Go to Top

Tuesday Morning Case Bites for April 23, 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

Brace v McKen, 2019 ABCA 135
Service issues | Long delay

Case v Canaccord Genuity Corp, 2019 ABQB 257
Exceptions to Spousal Privilege

Brace v McKen, 2019 ABCA 135

The issue on appeal was long delay, and whether the Plaintiff had significantly advanced the action within 3 years. Although the Defendant’s law firm sent their Defence by express post, regular mail, and registered mail in December, 2014, the Plaintiff testified that he did not receive it until the spring of 2015 when he returned from out of province. The Court noted that the express post was refused, and the registered mail was returned unclaimed:

[5] Brace’s address for service on the Statement of Claim is a Post Office box in Grande Prairie. On December 12, 2014 McKen sent the Statement of Defence to this address in three different ways: regular mail, registered mail and express post. The registered mail was returned to Canada Post “unclaimed” and the express post was returned to Canada Post indicating “refused.” The regular mail was not returned. The affidavit of a legal assistant deposes to this.

The Court accepted that service was effected in December, 2014 on the following basis:

[15] Rule 11.22 provides that a document may be served on a party by “recorded mail”, addressed to the party at the address for service provided in the most recently filed document in the action.

[18] Accordingly, the Statement of Defence was served because Rule 11.2(c) and (d) provide that service by recorded mail is not invalid by reason only that the addressee refuses to take delivery of the recorded mail or no longer resides or is otherwise not present at the address and has not provided the postal service with a current mailing address. The assistant deposed that the Statement of Defence was sent by recorded mail on December 12, 2014. That is sufficient proof of service under Rule 11.30. A plaintiff who commences an action and gives an address for service must appreciate that documents will be served upon him at that address, whether he is there or not and if he does not provide the postal service with a current mailing address, he cannot say he has not been served in accordance with the Rules.

The Court also noted that although in some circumstances settlement offers may advance an action, offer sent in this case did not. The claim was dismissed for long delay.

Case v Canaccord Genuity Corp, 2019 ABQB 257

The Court directed that where discussions between spouses are implicated by virtue of the claim full disclosure outweighs policy considerations in favour of spousal privilege:

[49] Both Stanley and Maryann are plaintiffs in this action and have exposed themselves to the possibility of being questioned to matters directly relevant to their claim. A strict interpretation of the spousal privilege rule would suggest that each spouse can be questioned regarding facts known to them, however, not questioned on the discussions taking place between them with respect to those facts. The Plaintiffs recognize in their pleadings that Stanley was authorized to administer the Case Accounts for the family. In my view, the facts disclosed during discussions between Stanley and Maryann with respect to the managing of the Case Accounts, are crucial to both the Plaintiffs’ action, and the Defendant’s defence and third party claim.

[50] This is an appropriate situation to apply the exception to spousal privilege described in Whyte. Regardless of whether the discussions between Stanley and Maryann were explicitly raised by the Plaintiffs, they are necessarily implicated by virtue of the claim. They have put into issue the very matters which are then sought to be clothed with the privilege. I conclude full disclosure of all relevant information in this case outweighs the policy rationale for spousal privilege. This conclusion is to be consistent with the Alberta Court of Appeal’s commentary on the Court’s power under r 5.1(2) in Alexander v Sun Life Assurance Company of Canada, 2016 ABCA 2 (CanLII), O’Ferrall, dissenting:

Rule 5.1(2) authorizes the court to give directions or make any order required to achieve the purposes of Part 5 of the Rules which deal with disclosure of information. The purposes of Part 5 are that of obtaining evidence, encouraging disclosure of records, facilitating the evaluation of the parties’ positions, resolving issues in dispute and discouraging conduct which unnecessarily or improperly delays proceedings or unnecessarily increases costs.

[51] Spousal privilege is waived in these circumstances. The facts discussed during the discussions between Stanley and Maryann should be disclosed.