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.
Lesenko v Wild Rose Ready Mix Ltd., 2024 ABKB 333
Standard of Review on Appeal
ADM Agri Industries Company v Solar Turbines Canada Ltd, 2024 ABKB 352
Negligent Provision of Goods | Competing terms and conditions in contract vs. Purchase Order
Moman v Bradley, 2024 ABKB 351
Dismissal for Long Delay | Impact of Criminal Proceedings on Civil Action
Hawreschuk v Condominium Plan No 782 2678, 2024 ABKB 350
Dismissal for Long Delay
Mo’Allim v Gallant, 2024 ABKB 368
Production of Settlement documents from Prior MVA Settlement
Lesenko v Wild Rose Ready Mix Ltd., 2024 ABKB 333
In Lesenko v Wild Rose Ready Mix Ltd., 2024 ABKB 333 Justice Feasby called for the Alberta Court of Appeal to revisit the standard of review for and appeal from a decision of an Applications Judge (formerly Master). In his view, permitting new evidence on appeal was an inefficient use of Court Resources:
[16] In my view, permitting new evidence on appeal together with a non-deferential standard of review is an inefficient use of resources at a time when the Court struggles to meet public demand as reflected in long lead times for special applications.[1] I respectfully suggest that it is time to reconsider whether the reasons that inform the Alberta approach to appeals of Applications Judge decisions continue to justify our practices.
Justice Feasby proposed using the normal appellate standard from a Justice to the Court of Appeal, and argued that this would make frivolous appeals less attractive:
[79] Forcing parties to put their best case forward in the first instance by eliminating the right to adduce new evidence on appeal promotes efficient use of court resources and consensual resolution of disputes. Adopting the normal appellate standard of review makes frivolous appeals less attractive to litigants. In turn, reducing lead times will make the system less vulnerable to exploitation by delay-seeking litigants. I recognize that appeals of Applications Judges have historically been a relatively small part of the Court’s caseload, but as the number of Applications Judges increases, so too will the volume of appeals. Reforming the approach to Applications Judge appeals is an important way in which litigation practice can be changed to provide the public with more effective, expeditious, and less expensive justice.
ADM Agri Industries Company v Solar Turbines Canada Ltd, 2024 ABKB 352
At issue was whether the agreement between the parties was governed by terms and conditions printed on the back of a purchase order, or if the governing terms were contained in a 2013 Field Services agreement, which was signed by the authorizing party. In this case, the buyers purchase order was required only to confirm the booking. As a result, on appeal, the Court concluded that the 2013 Field Services agreement prevailed. The court’s conclusion was bolstered by the fact that no one signed the Purchase Order.
Moman v Bradley, 2024 ABKB 351
At issue was whether collateral criminal proceedings were a thing that materially advanced a civil action. In this case the civil claim was stayed pending the conclusion of criminal proceedings. Ultimately the defendant plead guilty to theft in relation to an investment scheme. The Court concluded that although the criminal proceedings are not determinative, the two matters were inextricably linked such that:
[27] The elements of Mr. Bradley’s criminal charge are not perfectly co-extensive with the civil causes of action pleaded by the plaintiffs in the present action and, it must be recalled, the charges against Mr. Becker were dropped. The outcome of the criminal proceeding is not legally or factually determinative of the civil action. Likewise, the admitted facts do not satisfy all the elements of the civil causes of action. So, in that sense, the admissions in the Agreed Statement of Facts are not legally determinative of the civil claims. However, the criminal charge and the civil causes of action arise out of the same factual matrix and Mr. Bradley’s admissions are, at least in a practical sense, likely to be determinative of some essential facts in the civil action. Mr. Bradley’s admissions that he was the day-to-day decision-maker for the corporate entities and that he caused investor funds to be fraudulently transferred to other corporate entities and used for projects unrelated to the Crowsnest pass project without colour of right contradict the position of the Applicants pleaded in their Statement of Defence. Mr. Bradley’s admissions materially advance the action by conceding important elements of the asserted causes of action likely making the trial of this matter less complicated.
[28] The parties agreed to stay the present action for the duration of the criminal proceeding. The Applicants may have agreed to the stay during the pendency of the criminal proceeding for any number of reasons, but the agreement was made in the face of the Respondents’ application for a stay which stated, “[t]he issues in this Action are inexorably and sufficiently interrelated to a number of issues arising in the Criminal Action to a degree as to be the circumstances in which this Court should exercise its discretion to grant a stay of this Action.” The Respondents’ application further raised a concern about the possibility of inconsistent findings of fact if the two actions proceeded in tandem. So, while the existence of the criminal proceeding was not, strictly speaking, a legal barrier to continuing with the civil action it was not practical for the two to proceed in parallel. Indeed, it would not have been a good use of court resources for the two matters to proceed at the same time.
[29] I am satisfied that the criminal proceeding against Mr. Bradley was inextricably linked to the present action and that Mr. Bradley’s conviction and the Agreed Statement of Facts in the criminal proceeding constituted a significant advance in the present action for the purposes of Rule 4.33. The clock for calculating delay accordingly started to run once the stay expired on October 11, 2020. Since the Respondents attempted to take several steps prior to October 11, 2023 that would have advanced the action but for the Applicants giving notice of their intention to bring a Rule 4.33 application and subsequently filing that application, the delay period falls short of the three years required to trigger mandatory dismissal.
Hawreschuk v Condominium Plan No 782 2678, 2024 ABKB 350
In an application for long delay the Court Concluded that the dismissal of a claim against other defendants, but not the delaying defendant, significantly advanced the action.
Mo’Allim v Gallant, 2024 ABKB 368
Mo’Allim v Gallant, 2024 ABKB 368- the Plaintiff was involved in 2 collisions, the second of which settled. The Defendant in the first collision sought production of the settlement documents on the basis that the injuries from the two collisions were overlapping and indivisible. The Plaintiff resisted on the basis of settlement privilege. The Court concluded that given that the injuries were indivisible, the Defendant was entitled to the information:
[25] But what remains in issue is whether the Defendants are entitled to the Second Action Settlement Information at this time. I am of the view that they are. The fact that the Defendants say that the injuries from the two actions are indivisible makes the Second Action Settlement Information potentially relevant to this case. If the trial judge ultimately concludes that the injuries are not indivisible, the Second Action Settlement Information will be irrelevant and the trial judge will not have to consider it. But until that issue is determined in trial, the Defendants’ argument about indivisibility of injuries makes the Second Action Settlement Information relevant.
Caution should be used in relying on this decision as the Court relied on case law out of B.C., where joint and several liability is treated differently than in Alberta.