Last Week’s Court Rulings from the Alberta Court of King’s Bench, Court of Appeal and SCC.
Edited by Steven Graham
Jackson v Cooper, 2022 ABKB 609
Motor Vehicle Accident | Damages Assessment | Pre-Judgment Interest | Minor Injury Regulation
Thomson v Ivari, 2022 ABQB 598
Life Insurance | Termination | Contractual Interpretation | Maturity
Jackson v Cooper, 2022 ABKB 609
Motor Vehicle Accident | Damages Assessment | Pre-Judgment Interest | Minor Injury Regulation
The Plaintiff was injured in a motor vehicle accident, and the Court was asked to provide an assessment of his damages. The Plaintiff was 31 years old at the time of the accident on October 21, 2015.
Following the accident, the Plaintiff attended a walk-in clinic where he was diagnosed with general symptoms of soft tissue strain or sprain. The Plaintiff attended a chiropractor where he was diagnosed with a sprain 1, strain 1, and WAD 2. The Plaintiff was approved for treatment through his Section B benefit provider. In total, he received eight chiropractic treatments, two massage therapy treatments, and 8 physiotherapy treatments, all of which were concluded by May 2016. A physiotherapy discharge report concluded that the Plaintiff was reporting no remaining symptoms with a full range of motion and normal strength. No further treatment was sought.
The Plaintiff produced Dr. Boucher as an expert, who diagnosed the Plaintiff with the following:
1. Cervical myofascial strain (WAD II injury) with chronic myofascial pain;
2. Thoracic myofascial strain with chronic myofascial pain;
3. Lateral chest wall/rib contusion, predominately on the left side;
4. Query adjustment disorder with depressed mood and anxiety (with predominant pain); and
5. Sexual dysfunction/loss of libido.
While Dr. Boucher gave an opinion in his report that the Plaintiff had a 10% impairment rating, he admitted under cross-examination that using the 6th edition of the AMA Guidelines for impairment, the Plaintiff’s whole person impairment would fall within 4-6%.
The Court first considered whether the Minor Injury Regulation (MIR) applied to limit the Plaintiff’s recovery of general damages for pain and suffering. The MIR stipulates that where an injured party has a ‘serious impairment’, the limit on general damages for minor injuries will not apply. The Court relied on the following criteria to determine whether a serious impairment exists:
1. Is a physical or cognitive function impaired?
2. Is the sprain, strain, or WAD injury “the primary factor contributing to the impairment”?
3. Does the impairment cause substantial inability to perform:
a. Essential work tasks,
b. Essential facets of training or education, or
c. “Normal activities of the claimant’s daily living”?
4. Has the impairment has been “ongoing since the accident”? and
5. Is the impairment not expected to “improve substantially”?
The Court was satisfied on the evidence of both expert witnesses that the Plaintiff continued to suffer chronic myofascial pain, satisfying the physical function impairment. While the experts were at odds on whether the subject accident was the cause of the chronic pain, the Court concluded that it was, finding the Plaintiff to be a credible witness whose testimony supported the accident being the cause of his pain.
Regarding any substantial inability to perform the enumerated activities, the Court accepted the Defendant’s argument that the Plaintiff had no substantial inability to perform his essential employment tasks, as he only missed a nominal amount of time from work. However, the Court did find that the Plaintiff had impairment to his activities of daily living and ability to perform household tasks, relying on the Plaintiff’s evidence at trial and the evidence of Dr. Boucher.
Notwithstanding the concluding report from the Plaintiff’s physiotherapist that his symptoms had resolved in May 2016, the Plaintiff’s evidence at trial was that he continued to experience injury symptoms over time, though the degree of dysfunction varied. The Court rejected the Defendant’s argument that the Plaintiff’s trial evidence contradicted his evidence at questioning, where he stated that his injuries resolved in December 2017 or January 2018:
 Mr. Jackson’s explanation about “active pain”, his understanding of “resolution”, and his reporting of his ongoing chronic pain at trial is subjective. Mr. Jackson’s reporting is a reporting of his intermittent symptoms at different points in time. He did not exaggerate. He is not a malingerer. I accept Mr. Jackson’s evidence, because I find Mr. Jackson to be a credible witness.
Ultimately, the Court concluded that the Plaintiff’s chronic myofascial pain was not a ‘minor injury’ under the MIR, such that the cap did not apply.
With respect to quantifying the Plaintiff’s injuries, the Court provided the following explanation in support of its award of $55,000:
 I conclude that, although Mr. Jackson received treatment for his injuries for only 7 months after the motor vehicle accident and was able to continue full-time employment, he has sustained a significant and ongoing negative impact on his normal activities of daily living and his enjoyment of life. Given Mr. Jackson’s injuries and the impact that it has had on his life, his general damages for pain, suffering, and loss of enjoyment of life are assessed at $55,000.
The Plaintiff also argued that he suffered a loss of earning capacity as a result of the accident. The Plaintiff argued that the accident injuries prevented him from pursuing part time employment to supplement his income, and will prevent him from doing so in the future. The evidence at trial was that the Plaintiff worked for Shell Canada between November 2019 and Spring 2021. In October 2020, Shell reduced wages for all contractors, including the Plaintiff, as a result of the COVID pandemic. While some past losses were established for a period where the Plaintiff could not pursue supplementary part-time work, no future earning capacity claim was proven:
 There is no evidence that Mr. Jackson cannot continue to be employed and earn income in the future in his chosen field of employment as a contract specialist or contract manager. The medical experts and occupational therapists all agreed that Mr. Jackson could perform all of his essential duties in his chosen field of employment as a contract specialist. In fact, he has worked uninterrupted as a contract specialist or contract manager with 6 different employers since the accident.
 In my view, it would be speculative to envisage scenarios in which Mr. Jackson would be suffering a loss of earning capacity in the future, because there are no restrictions on Mr. Jackson’s ability to earn income in his chosen field of employment. As such, Mr. Jackson has not proven on a balance of probabilities that he has suffered a loss of future earning capacity.
With respect to the Plaintiff’s claim for loss of housekeeping capacity, the Court concluded that the accident caused the Plaintiff to perform approximately 20% less than he previously did. The court awarded $10,000 for past loss of housekeeping capacity.
The Court further considered future care costs the Plaintiff may have to incur. Occupational therapy reports were provided by both parties. The Court accepted the following as reasonable:
- Interdisciplinary chronic pain clinic ($12,000);
- Ergonomic workplace chair ($2,230);
- Tiger balm ($820 lifetime)
- Seasonal cleaning replacement labour ($6,087) for 4 hours twice per year;
- Self-propelled lawn mower ($512);
- Snow removal replacement labour ($10,000)
The Court also considered the Plaintiff’s entitlement to pre-judgment interest on his non-pecuniary damages. The parties disagreed over whether interest for the period prior to December 9, 2020, which is when the Insurance (Enhancing Driver Affordability and Care) Amendment Act came into force, should be calculated according to s.585.2 of the Insurance Act or the amendment.
The Court first concluded that pre-judgment interest is a substantive right, rather than a procedural one, and as such, there is a presumption against retroactivity:
 In Gosche, Veit J followed Somers and held that in Alberta pre-judgment interest is a statutory and substantive right. She acknowledged that, while the amount can be varied or displaced based on statutory factors, the entitlement to pre-judgment interest is not a matter of judicial discretion. It exists independently of a judge choosing to grant or award it: at para 3.
 With this in mind, I agree that pre-judgment interest is a substantive right. Pre-judgment interest recognizes the value of the damages award and, specifically, the use the money could have been put to had it been paid at the time the claim arose. As such, it goes to the substance of the cause of action asserted and, even though it is only awarded after a judgment has been given, there is no sense in which pre-judgment interest governs the manner in which a litigant asserts a cause of action so as to make it procedural. Accordingly, I conclude that pre-judgment interest is a substantive right, and the presumption against retroactivity applies.
The Defendant argued that the purpose of the Insurance Amendment Act was to protect the public by lowering insurance premiums, and with this policy goal in mind, it falls within an exception to the presumption that legislation is not retrospective. The Court rejected this argument, finding that such an exception exists only within the penal context:
 I do not think it is necessary to discuss this argument at length. Quite simply, the presumption against the retrospective application of legislation only applies in the penal context: DDS v RH (1993), 1993 ABCA 146 (CanLII), 141 AR 44 (CA); see also Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed (Markham, Ont: LexisNexis Canada, 2014) at 25.76. By corollary, the exception to the presumption against retrospectivity that applies to protective legislation also applies only in the penal context. So, I do not need to consider this presumption in the context of pre-judgment interest awarded in a motor vehicle accident claim, which is decidedly not penal.
 As a consequence, I conclude that the presumption against retrospectivity does not apply in this case. By contrast, the presumption against retroactivity does apply, for the reasons discussed above.
Finally, the Court emphasized that there is nothing in the language of section 585.2(2) that suggests it should be applied retroactively. The Court therefore awarded pre-judgment interest at 4% from the date of loss up until December 9, 2020.
The Plaintiffs commenced this action in 2011 seeking damages arising out of alleged design and construction deficiencies to a condominium project, for which the Defendant was the developer. The project in question had two phases, which were completed in 2005 and 2007 respectively. The Defendant commenced third party claims against various subcontractors in 2013. The Defendant and Third Party Defendants brought the within application to dismiss the claims against them for inordinate delay.
The Chambers Justice set out the timeline of litigation steps, noting that several steps necessary for the matter to proceed to trial remained outstanding, including the filing of Third Party Statements of Defence, completion of document production, questioning of all parties and undertakings, exchange of expert reports, pre-trial conferences and filing a Form 37. The Court noted given the number of parties and the type of matter, a multi-week trial would likely be necessary.
The Chambers Justice cited well-established principles regarding litigation delay and the need for all parties to participate in advancing any action:
 Put another way, parties conducting litigation in Alberta courts must act in a timely, cost-effective way, determining the issues, finding the quickest means to resolve the claim and communicating with each other throughout.
The Court first considered the application under Rule 4.31 for inordinate delay, emphasizing that there are many considerations but no specific or mandatory formula:
 Post-Humphreys, the Court of Appeal has clarified that although general principles have been established governing delay, each action is slightly different—there is no universal mandatory formula: Transamerica Life Canada v Oakwood Associates Advisory Group Ltd, 2019 ABCA 276 at para 15 (Transamerica). Parts of the Humphreys test may be difficult to apply to particular cases given the factual diversity of individual claims, and the unique procedural journeys that particular litigation may follow, which may render the Humphreys test untenably theoretical from time to time: Transamerica at para 19.
 Applicants in a delay application have the onus to prove, on a balance of probabilities, that the delay has resulted in significant prejudice. If an applicant establishes that the delay is inordinate and inexcusable, the delay is presumed to have resulted in significant prejudice. The respondent can attempt to rebut the presumption of significant prejudice. However, in the end, the decision whether to dismiss for delay remains within the Court’s discretion.
The Chambers Justice determined that the relevant time period for consideration of the period of delay began when the Statement of Claim was filed, as that is when the litigation commenced and the duty to proceed expeditiously arose. The Court rejected the Plaintiff’s argument that the time period commenced when the Defendants filed the Third Party Claim.
With respect to whether the non-moving party (the Plaintiff, in this case) advanced the action reasonably, the Court found that the evidence showed the Defendant was the far more active party in advancing the action. The Court noted that the Defendant was pressing for disclosure and for the Plaintiff to complete certain steps, all of which contributed to the Court concluding the Plaintiff’s approach to the action “lacked fervour”.
The Court further found that the delay was inordinate, even in the context of a complicated construction matter. The Court emphasized that eight years had elapsed between the filing of the Statement of Claim and the filing of the delay application, and document production and questioning had not occurred. The Court found that the Defendant’s refusal to engage in questioning until the Plaintiff amended its Statement of Claim (which the Plaintiff represented that it would do) was reasonable:
 One apparently key stumbling block, which caused major delays in the Main Action, was the Condo Corp’s failure to amend its Statement of Claim, despite representing that it would take that step. Discussions about amendment went on for approximately a year. Eventually, based on the fact that Carrington would not agree to a Consent Order for the amendments on a without costs basis, the Condo Corp advised that it would seek the amendments through a Court application. The Condo Corp never made that application, nor did it ever advise that it was no longer interested in the amendments.
 As indicated above, it was reasonable for Carrington to not proceed with Questioning until the Amended Statement of Claim was filed and it could respond meaningfully with its own pleadings.
The Court further emphasized that a significant portion of the delay was due to the Plaintiff’s failure to respond to correspondence:
 As well, Carrington takes the position that failures by the Condo Corp and its Counsel to provide substantive responses to correspondence or provide agreed follow-up correspondence in a timely manner cumulatively resulted in 38.5 months of delay, or 40% of the time between the filing of the Statement of Claim and filing of the first delay Application. The evidence of delay in communication and correspondence is concerning. It is not acceptable to have three plus years of delay attributed to failure to provide timely responses.
While the parties appeared to have had some meetings and communications which resulted in some discontinuances being filed, the Court rejected the Plaintiff’s argument that these meetings meant there had not been delay and found them no excuse for the delay:
 I cannot accept the Condo Corp’s argument, which is based partly on meetings – of which the Condo Corp says there have been no fewer than 16 – and communications between the parties throughout (which resulted in some Discontinuances being filed) that there was no inordinate delay. The Condo Corp argues that the parties essentially had “informal discoveries” during on-site meetings with counsel and experts. However, I note, and the Rules provide, that once a plaintiff initiates a court process, they are expected to move that process along in a timely and efficient manner. That has not happened in this case. “Informal discoveries” that are not followed by actual Questioning or other genuine steps of advancement, do not comply with the language, or spirit, of the Rules.
Having found delay, the presumption of significant prejudice was triggered by the Rule. The Court was not satisfied that the Defendant had suffered actual significant prejudice outside of the presumption, but concluded that the Plaintiff had not rebutted the presumption of significant prejudice, having provided no evidence to support an alternative conclusion.
The Court retains ultimate discretion and can refuse to dismiss a claim under Rule 4.31 if there are compelling reasons not to do so. The jurisprudence has outlined many such reasons, including defence delay, acquiescence in delay, among others. The Court rejected the Plaintiff’s argument that the Defendant contributed to and participated in the delay, and found no compelling reason not to dismiss the action:
 Considering the factors set out by Lema J in 422252 Alberta Ltd and taking into account the evidence and facts in this action, I cannot find any compelling reason not to dismiss the action.
 I cannot find acquiescence or complicity in delay in the Main Action on Carrington’s part, either express or implied. As Lema J noted, mere silence or inactivity does not found waiver or acquiescence. While case management was entered into by consent, that was done primarily for the purpose of dealing with the delay applications in an efficient manner.
Having concluded Rule 4.31 was satisfied, the Court dismissed the Plaintiff’s claim. The Court provided some general comments, emphasizing that informal actions outside the litigation spectrum should not be taken as an excuse or reason to ignore the responsibility to advance the action itself on a timely basis:
 It follows that parties must continuously move their matter forward on the “litigation spectrum”. The purpose and effect of litigation timeline indulgences and informal processes and perhaps all conduct that waives or otherwise falls outside of the Rules must be absolutely clear, with as little ambiguity or room for interpretation as possible. In most if not all cases, this would have the salutary effect of eliminating the need to interpret disputing parties’ conduct – proactive, reactive or non-reactive – after the fact.
 Notwithstanding informal indulgences and processes, formal Rules-based steps must occur in tandem with any informal activities. Parties must focus on either settling their matter or going to trial: those are the only outcomes once the litigation route has been chosen. Everything that is done must be utterly concentrated on those outcomes.
Thomson v Ivari, 2022 ABQB 598
Life Insurance | Termination | Contractual Interpretation | Maturity
The Plaintiff was the owner of a 10 year life insurance policy with the Defendant which covered the life of her estranged husband. The term was due to expire in December 2017 and would automatically renew unless written instructions to the contrary were given. The Plaintiff also had the option to convert the policy into a universal life policy with a lower premium and reduced death benefit (“the converted policy”). The contract had a 10-day cancellation period, during which the Plaintiff could return the converted policy, rendering it void.
The Plaintiff elected to convert the policy and provided instructions to that effect. Unexpectedly, her husband died during the cancellation period. The Plaintiff attempted to exercise the option to cancel the Converted Policy during the 10 day window, thereby reviving the original policy and higher benefit. The Defendant denied her claim to the higher benefit, contending that the cancellation period expired when the husband died.
The Court considered whether the Plaintiff could cancel the converted policy after her husband died. The Plaintiff argued that her right to cancel within the cancellation period was unconditional apart from the 10 day limit; the Defendant argued that the language needed to be read in the context of the entire agreement and the nature of the contract for life insurance.
Having regard to the wording of the contract, including the termination clause for the contract itself, the Court determined that while the death of the insured would terminate the policy, it would not bring an end to the contractual rights held by the policy owner:
 The final words of the Termination Clause, however, demonstrate that termination of the policy does not necessarily extinguish all of the policy owner’s contractual rights. For example, if the policy terminates because of a lapse in paying premiums, the policy owner still has the contractual right to reinstate the policy by paying the outstanding premiums during the defined grace period.
 Moreover, IVARI’s position is predicated on the Cancellation Attachment forming part of the “policy”. While I accept that the Cancellation Attachment forms part of the insurance contract, I find that it is not part of the Converted Policy.
 The Termination Clause expressly references the termination of the “policy”, not the “contract”. An insurance policy is not equivalent to an insurance contract: Barbara Billingsley, General Principles of Canadian Insurance Law, 3d ed (Toronto: LexisNexis Canada Inc, 2020) at 54.
The Court further referenced wording in the Converted Policy which acknowledged that it is distinct from the contract.
 The Converted Policy acknowledges that the policy and the contract are distinct. The General Provisions at section 22 define the insurance contract as follows:
Contract: The entire contract between the Owner [Ms. Thomson] and ivari consists of this policy together with any endorsements, Riders and other documents attached to it by ivari on the Issue Date, the Application and any application for reinstatement or policy change approved by ivari at the Head Office, including any medical evidence form and any written statements and answers furnished as evidence of insurability, and any amendments made in accordance with this policy after it is issued (the “Contract”). […] [emphasis added]
 Section 22 contemplates that “other documents” may be attached to the policy, which are thus separate from it. That contractual distinction mirrors s 642(2) of the Insurance Act which distinguishes between the “policy” and “any document attached to the policy when issued.”
The Court concluded that the Converted Policy was terminated on the death of the insured, but the contract was not, and as such, the Plaintiff’s contractual right to exercise the cancellation option within the 10 day period survived.
The Court rejected the Defendant’s argument that the Plaintiff’s contractual rights were extinguished by ‘maturity’, again emphasizing that contractual rights held by the Plaintiff are not extinguished by the insured event – maturity only creates an end to the insurer’s obligations and triggers their obligation to pay:
 The Converted Policy contains examples of contractual rights and covenants for the benefit of the insurer that survive maturity, including in the General Provisions: a) the insurer’s ability to demand proof for the claim; b) a limitation period for commencing any action or proceeding against the insurer for the recovery of insurance money; and c) the insurer’s ability to adjust the death benefit if the life insured’s age or gender was misstated. The contractual rights and covenants after maturity are therefore not confined to the insurer paying the death benefit.
The Court further rejected the Defendant’s argument that once the Plaintiff knew of her husband’s death, she could no longer cancel the Converted Policy as doing so is contrary to the principle of ‘fortuity’. The Court concluded that principles of fortuity do not override the Plaintiff’s clear contractual rights:
 The clause states unequivocally that Ms. Thomson was allowed to cancel the Converted Policy at any time within ten days after receipt of that policy. No restrictions or conditions were mentioned, except for the 10-day time limit. Nothing was stipulated about the life insured still being alive or the policy owner being unaware of the death of the life insured.
 Fortuity does not override freedom of contract. While insurance contracts are presumed not to cover a loss that is certain, that outcome can arise where “the words are very clear that the contrary is intended”: Insurance Law in Canada at 1-4.
The Court concluded that the Plaintiff was entitled to exercise the cancellation clause, such that the Converted Policy was rendered void. Finding that no new policy existed, the term policy automatically renewed, which entitled the Plaintiff to the full benefit of the original term policy.