Case Bites for June 10, 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.

Hourie-Peebles v Dinosaur Trail Golf, 2024 ABKB 324
Application to strike personal injury claim for delay

Caterall v Condominium Plan No. 752 1572 (Park Towers), 2024 ABKB 329
Use of Expert Reports on Application

Smith v Tuchscherer, 2024 ABCA 186
Consequences of failing to update Address for Service

Giesbrecht v Prpick, 2024 ABCA 187
Test for Stay of Enforcement Pending Appeal

Hourie-Peebles v Dinosaur Trail Golf, 2024 ABKB 324

In Hourie-Peebles v Dinosaur Trail Golf, 2024 ABKB 324, the Plaintiff personal injury claimant failed to advance her claim on a timely basis.  In 2023 the Defendant sought to strike the claim for inordinate delay.  Instead of striking the claim, the Master issued a procedural order for completion of next steps.  On Appeal, Justice Funk noted that the injury stemmed from an event nearly 10 years ago.   He noted the following chronology:

  • [6]               In late August 2014, the Plaintiff was injured when a golf ball struck her in the face.
  • [7]               In May 2016, the Plaintiff filed her Statement of Claim; the Defendant filed its Statement of Defence in June.
  • [8]               In April 2017, the Defendant filed a Third-Party Claim. In May, that person was noted in default. 
  • [9]               In February 2018, the Plaintiff served her Affidavit of Records; in June, the Defendant served its Affidavit of Records.
  • [10]           In October 2018, the parties exchanged some communications about scheduling Questioning.
  • [11]           Between February – July 2019, there were more discussions about scheduling Questioning, which was ultimately scheduled to take place in late September.
  • [12]           Before Questioning took place, the Defendant presented an offer to the Plaintiff, requested further medical records from the Plaintiff, and sought to adjourn Questioning. The Plaintiff consented to the adjournment request.
  • [13]           In February 2020, the parties again discussed scheduling Questioning.
  • [14]           In February 2020, the Defendant golf course was placed into Receivership and the within action was stayed until October.
  • [15]           Between January – June 2021, the parties communicated about settling the matter; the Plaintiff served a supplemental Affidavit of Records.
  • [16]           Between July 2021 and January 2023, the Defendant made several attempts to touch base with the Plaintiff, largely to no avail.
  • [17]           Later in 2023, the Defendant brought its application pursuant to Rule 4.31.

The Plaintiff argued that her counsel was appointed as an MLA and her file misplaced.   When the firm was served with the delay application, the firm realized her file had been overlooked.   On Appeal, the Court considered whether there was a compelling reason not to dismiss the claim.  The Court concluded that while the Plaintiff deserved sympathy for the inaction of her former counsel, that was not a reason to avoid dismissing her claim.  As a result, her claim was dismissed.  

This appears to be one of the first times a Court has applied rule 4.31 to a personal injury claim.

Caterall v Condominium Plan No. 752 1572 (Park Towers), 2024 ABKB 329

In Caterall v Condominium Plan No. 752 1572 (Park Towers), 2024 ABKB 329, the Applicants sought to tender extensive opinion and engineering evidence in an application against their Condominium Board by attaching those reports to Affidavits of others.   Since none of the reports outlined the engineers’ individual expertise, other than to confirm they were engineers or engineers in training, the evidence was deemed inadmissible:

[45]           Several of the affidavits filed in this action attach reports recording the observations of people other than the affiants about the condition of the building. Those reports often contain opinions of professional engineers or engineers-in-training. Some of the reports are signed, sealed and stamped with an engineer’s permit to practice. None of the reports sets out the author’s qualifications other than that he or she is a professional engineer or engineer-in-training. None of the authors of those reports swore or affirmed an affidavit filed in this action and none was questioned on his or her reports.

[46]           In that form, as exhibits to affidavits of others, the engineers’ reports are inadmissible because they are hearsay and they include opinion evidence without the authors having been properly qualified by the Court. I am not saying the authors of those reports are not qualified engineers nor I am saying they could not be qualified to give expert opinion evidence in court. I am saying they have not been qualified to give expert opinion evidence in this action in accordance with the procedure for doing so.

[47]           An affidavit attaching an engineer’s report is not admissible for the truth of the opinions in the report: Condominium Corporation No. 0613782 v Country Hills Landing Limited Partnership 2018 ABQB 963 at paras 9 – 13. As Price, J holds in DH v Woodson 2020 ABQB 367 at para 71:

An expert report attached to an affidavit is hearsay evidence; the expert has neither sworn the evidence nor can the expert be cross-examined on it: Sturgeon Lake Indian Band v. Canada (Attorney General)2016 ABQB 384 (Alta. Q.B.) at para 186, aff’d [Goodswimmer v. Canada (Attorney General)2017 ABCA 365 (Alta. C.A.), leave to appeal to SCC refused, 37899 (5 July 2018) [2018 CarswellAlta 1331 (S.C.C.)]; Fong v. Tinga, [1995] A.J. No. 1454 (Alta. Q.B.) (QB Master) (QL).

The Court concluded that since the relief sought was final in nature, the expert reports were inadmissible.

Smith v Tuchscherer, 2024 ABCA 186

In Smith v Tuchscherer, 2024 ABCA 186 the Plaintiff’s claim was struck, unbeknownst to him, because he failed to update his address with the Court after his counsel ceased to Act. The Defendant obtained an order for substitutional service, and ultimately obtained judgment. Following attempts to collect on the Judgment, the Plaintiff became aware of the action, and sought to set aside the orders for substitutional service, order striking pleadings, and the judgment. The original chambers justice was not prepared to interfere with the prior orders and put significant weight on the Plaintiff’s failure to update his address. On Appeal, the court noted that deference was warranted, and the Court of Appeal was not prepared to interfere.

Giesbrecht v Prpick, 2024 ABCA 187

In Giesbrecht v Prpick, 2024 ABCA 187 the Court of Appeal directed that a stay of enforcement is discretionary, and subject to the following test:

[13]           The exercise of the court’s discretion to grant a stay is guided by the three-part test set out in RJR-MacDonald Inc v Canada (Attorney General)1994 CanLII 117 (SCC), [1994] 1 SCR 311:

1.      Is there a serious question to be tried?

2.      Will the applicant suffer irreparable harm if the stay is not granted?

3.      Does the balance of convenience favour granting a stay?

The applicant for a stay bears the burden of establishing each element of the test on a balance of probabilities: County of Stettler No 6 v Earl Marshall Trucking Ltd2023 ABCA 362 at para 52Irwin v Alberta Veterinary Medical Association2015 ABCA 176 at para 4.

[14]           However, the fundamental question is whether a stay is a just and equitable remedy in all the circumstances of the case: Google Inc v Equustek Solutions Inc2017 SCC 34 at para 25Piikani Nation v McMullen2020 ABCA 183 at para 15. As a result, if an applicant has failed to satisfy the tripartite test, a stay may still be granted if exceptional circumstances are established: O’Kane v Lillqvist-O’Kane2023 ABCA 251 at para 3Santoro v Bank of Montreal2018 ABCA 264 at para 4Blacklaws v Morrow1998 ABCA 119 at para 6.