Case Bites for May 27, 2024

Edited by Amanda Kostek and Kristen Hansen

Last week’s Court Rulings from the Alberta Court of King’s Bench, Court of Appeal and SCC.

Sansom/Smith et al v Bilodeau et al, 2024 ABKB 279
Summary Judgment

Dedrick v Foothills Medical Centre, 2024 ABKB 276
Use of Experts at Trial

Sansom/Smith et al v Bilodeau et al, 2024 ABKB 279

In Sansom/Smith et al v Bilodeau et al, 2024 ABKB 279 the Court directed that a Summary Judgement application should be adjourned to allow Questioning of two witnesses. The Court directed that the factual record was not yet complete, because procedural fairness dictated that the Plaintiff be given an opportunity to examine two parties. The Plaintiffs were precluded from examining these parties pending a criminal appeal for both.

[22]           It is well established that the non-moving party to a summary dismissal application has to put its best foot forward and must respond with evidence as opposed to speculating about what evidence it may call at trial: Weir Jones at para 37. This is not a situation where the non-moving party failed to respond and is engaged in the speculation that Weir Jones admonishes, but instead is a situation where they sought to respond to the moving party but were unable to.

[23]           Dismissing Joseph’s application on the basis that the factual record is deficient would not be consistent with the objectives underlying r 7.3 or the culture change that is promoted by Hryniak v Mauldin2014 SCC 7 [Hryniak]. Significant time and effort has been expended by both the moving and non-moving parties bringing and responding to this motion.

[24]           Justice Wakeling in Anglin v Resler2024 ABCA 113 [Anglin] reviewed some of the considerations inherent in determining whether a summary judgment should be granted and noted that adjourning proceedings may be appropriate. At para 274 he held:

There may be cases that justify adjourning a summary judgment application until the moving party has filed a statement of defence and an affidavit of records and the nonmoving party has had an opportunity to question the moving party. This may be so “if there is reason to believe that the moving party alone has access to the relevant information that directly relates to the merits of the dispute between the parties. The moving party may be seeking summary judgment to forestall discovery”.

[25]           In the present case Joseph is not, in my view, seeking to forestall discovery. However, the Plaintiffs are unable to fully respond to Joseph’s application as a result of their inability to question Anthony and Roger.

Dedrick v Foothills Medical Centre, 2024 ABKB 276

In Dedrick v Foothills Medical Centre, 2024 ABKB 276 counsel for doctors defending a medical malpractice suit were relying on an expert obtained by the Defendant AHS. Prior to Trial, AHS reached a settlement agreement with the Plaintiffs. At issue was whether counsel for the doctors could compel AHS standard of care expert evidence at Trial. The court conclude that it could not compel a party to lead evidence. Nothing prevented the physicians from leading their own evidence, and the Court was not prepared to adjourn the Trial:

[11]           I do not have the power to compel a party to lead evidence when it chooses not to do so. Nor can I force one party to marshal its own evidence on behalf of another. In this case, the Physicians were relying on the Plaintiffs to lead the same opinion evidence the Physicians could themselves have obtained had they commenced third party proceedings against the AHS Defendants. As far as I am aware, there is nothing that prevented the Physicians from commencing those proceedings. In my view, it cannot reasonably be said that the Settlement unfairly curtailed any of the Physicians’ pre-trial procedural rights. The AHS Defendants will make AHS personnel available to give evidence at trial and as there is no property in a witness, the expert who prepared the Opinion Evidence presumably could be called by either the Plaintiffs and the Physicians although the scope of her evidence is at this time unclear.

[12]           I appreciate that without the Opinion Evidence, there may not be any evidence to establish that the AHS Defendants failed to meet the standard of care or that they caused the Plaintiffs’ loss. Consequently, I may find that the Physicians are solely responsible for the Plaintiffs’ loss for no other reason than that there is insufficient evidence to establish contribution by the AHS Defendants. As unfair as this result may be, this trial has already been adjourned once and I am not prepared to grant any further adjournments. Accordingly, the trial will proceed on the basis of the evidence that each party has available to it to call.