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.
Hupper v Howatt, 2024 ABCJ 141
Recovery for depreciated value of vehicle
Great North Equipment Inc v Penney, 2024 ABKB 391
Questioning of Non-Parties
Quikcard Benefits Consulting Inc v MP Benefits Inc, 2024 ABKB 367
Inordinate Delay | Evidence of Prejudice
Hupper v Howatt, 2024 ABCJ 141
The Plaintiff sought recovery for the depreciated value of his rare collector vehicle after a collision. The claim was defended by the at-fault driver on the basis that Section 585.1 of the Insurance Act precluded the Plaintiff from suing anyone but his insurer for damage to his vehicle. The Plaintiff also sought to amend his claim to sue his insurer for the depreciated value of his vehicle. His insurer argued that the amendment should not be permitted on the basis of Statutory Condition 4(5), which states:
The insurer is not liable for more than the actual cash value of the automobile at the time any loss or damage occurs, and the loss or damage must be ascertained or estimated according to that actual cash value with proper deductions for depreciation, however caused, and must not exceed the amount that it would cost to repair or replace the automobile, or any part of the automobile, with material of similar kind and quality, but if any part of the automobile is obsolete and unavailable, the liability of the insurer in respect of the automobile is limited to the value of that part at the time of loss or damage, not exceeding the maker’s latest list price.
The Court noted that the threshold for amendments is low, and that on an amendment application the Court is not asked to interpret Statutory Condition 4(5). As a result, the Amendment was permitted without prejudice to the Insurer’s ability to bring a Summary Dismissal application on the basis of Statutory Condition 4(5).
After considering 585.1 of the Insurance Act, the Court noted that Section 585.1 was brought into force in 2022 to simplify and streamline vehicle damage claims in Alberta. The Court concluded that the statutory conditions barred the Plaintiff’s claim against the at-fault driver and dismissed the claim against the driver.
Great North Equipment Inc v Penney, 2024 ABKB 391
In Great North Equipment Inc v Penney, individuals who were not parties to the litigation were examined in advance of an application and were asked by way of undertaking to produce all relevant and material records related to the action including emails, test messages and financial disclosure. At issue was whether these sorts of invasive undertakings were appropriate when questioning non-parties. The Court concluded that while strategically this may make sense for the Questioning party, witnesses who are not parties to the litigation are not required to comply with intrusive and onerous requests:
[24] The Notices to Attend requested that the non-party witnesses bring “all records in respect of relevant and material matters….” The Notice to Attend went on to describe the nature of the issues in the action to which the records must be relevant and material. Through the undertakings the Applicants seek to have the non-party witnesses produce bank records, cell phone records, “copies of all emails, text messages, or other communications” with the Respondents and others, social media messages, and calendar invitations. These are onerous and intrusive requests to make of any witness on a questioning in advance of an application, let alone a non-party witness. These requests fundamentally seek Part 5 record disclosure from these non-parties in the context of an interlocutory injunction application.
[25] Even if I had found that undertakings may be required in an examination pursuant to Rule 6.8 in a fashion analogous to Rule 6.7, I would have found that the requests in the present case are too intrusive and onerous. Producing the requested records will put the non-party witnesses to significant inconvenience. Further, I am not convinced of the necessity of many of the requests. Many of the records sought may be available from existing parties to the action. Most of the communications records sought involve the Respondents and should be available from the Respondents.
In rendering the decision, the Court distinguished between witnesses who swear and Affidavit and those who are complete strangers to the action and concluded that non-parties who swear an Affidavit implicitly consent to taking an active role in the litigation:
[16] There is a fundamental difference between witnesses examined pursuant to Rule 6.7 and Rule 6.8. Witnesses who have sworn an affidavit have consented to taking an active role in the litigation; they are either parties or have agreed to assist a party. It is reasonable to ask such witnesses to answer undertakings in the circumstances stated by Master Prowse in Dow Chemical. Indeed, their choice to provide an affidavit implies their consent to provide information and records referred to in their affidavit and to provide other information that would significantly assist the Court so long as it is not overly onerous to do so.
Quikcard Benefits Consulting Inc v MP Benefits Inc, 2024 ABKB 367
In Quikcard Benefits Consulting Inc v MP Benefits Inc, the Court concluded that the death of a witness combined with the loss of documents, and lack of direct knowledge of others amounted to significant prejudice warranting dismissal of the claim for delay under Rule 4.31.