Edited by Amanda Kostek
Last week’s Court Rulings from the Alberta Court of King’s Bench, Court of Appeal and SCC.
Thai v Condominium Corporation No 9610243, 2024 ABCA 326
Solicitor Client Costs v. Enhanced Costs | Enhanced Costs against Self Represented Party
Ewashko v Hugo et al, 2024 ABKB 621
Use of Multiple Standard of Care Expert Reports
Lauzon v Edmonton (Police Service), 2024 ABKB 612
Setting Aside Application for Extension of Time for Service
Thai v Condominium Corporation No 9610243, 2024 ABCA 326
The Court awarded Enhanced Costs on the basis that the self represented litigant has the same obligation as a lawyer to act scrupulously honest and be accurate in representations. In this case unfounded allegations of fraud and dishonesty were advanced:
[17] The Condominium Corporation seeks costs of the appeal on a solicitor and client basis but has not provided details of the amount of costs they seek. Solicitor and client costs are generally garnered only in the case of demonstrated reprehensible, scandalous or outrageous conduct by a party: Goldstick Estates (Re), 2019 ABCA 508 at para 24 (citing Young v Young, 1993 CanLII 34 (SCC), [1993] 4 SCR 3 at 134, 108 DLR (4th) 193), leave to appeal to SCC dismissed, 39063 (14 May 2020). We do not find that the very high threshold for an award of solicitor and client costs has been demonstrated in this instance.
[18] We find, however, that enhanced costs are warranted. Lawyers and self-represented litigants alike are expected to be scrupulously honest and accurate in their representations to the court. That has not been case in this matter. Rather, Ms. Thai has made unfounded allegations of fraud and dishonesty against the Board and Mr. Chu. Of particular concern is Ms. Thai’s representation to this Court that the chambers judge’s order regarding production of documents created a “loophole”. The chambers judge ordered that she receive any documents described in s 20.52 of the Condominium Property Regulation upon payment of any required fees. Ms. Thai advised the panel that she wishes to obtain certain documents, but the Board will not tell her what fee she must pay and therefore there is no way of enforcing the order.
[19] During the appeal hearing, we were advised that Ms. Thai had brought an unsuccessful application to hold the Condominium Corporation in contempt of the chambers judge’s order based, at least in part, on the same argument advanced on appeal. We requested and reviewed a copy of the affidavit of the property manager sworn April 24, 2024. Not only does the affidavit indicate that condominium documents are available to Ms. Thai though an online portal, on August 14, 2023, she was sent a Document Request Form and a detailed list of fees totalling $210. This demonstrates that Ms Thai’s representation to this Court was factually false and cannot be condoned.
Ewashko v Hugo et al, 2024 ABKB 621
The Plaintiff obtained a standard of care report on on pre-delivery and delivery standard of care from one obstetrician-gynecologist, but sought to rely on a different expert in the same field to respond to the Defence standard of care expert. At issue was whether the evidence of the Plaintiff’s second expert could be admitted. The Defendants argued that the surrebuttal report needed to come from the expert that authored the initial report. The Court disagreed noting that Rule 5.35 “does not say or imply that a surrebuttal must come from the initial expert, and the defendants pointed to no case so holding, whether on that rule or generally.” Functionally, it should not matter who the report comes from, and the second report was rebuttal in nature. On that basis the report was admissible.
Lauzon v Edmonton (Police Service), 2024 ABKB 612
The Plaintiff filed a Statement of Claim October 6, 2021, and served one defendant December 9, 2021. October 6, 2022 an application for an extension of time to serve the claim was filed by desk application, but the application did not identify the relief sought and the section for written submissions was left blank. The accompanying Affidavit marked as an Affidavit in support of Substitutional Service. A second Affidavit was filed in support of an order for an extension of time against Andrew Donald, but not EPS. The Applications Judge responded indicating that the Substitutional Service Application would be dismissed, but that she was prepared to grant an extension of time for service. A revised order extending time for service was submitted to the Court, and the Applications Judge signed it October 7, 2022.
The Court concluded that the application submitted October 6, 2022 was for substitutional service and not an extension of time for service. Had the application mentioned that it sought an order for an extension of time it would have met the requirements of the rule for extending time even if the Judge signed it the next day:
[28] I agree that the Blank Desk Application and the Substitutional Service Affidavit were both filed on October 6, 2022. Having carefully reviewed the materials, I conclude that the Respondent did not apply for an extension of time to serve the Appellants; the Respondent applied for a substitutional service order. Had an application for an extension been submitted on October 6, 2022, it would have met the requirements of Rule 3.26 regardless of when the Applications Judge reviewed and/or signed the Extension Order: Patkaciunas v Economical Mutual Insurance Company, 2021 ONSC 5945 at paras 9, 13; Sabir v Gill, 2023 ABKB 679 at para 45.
Although a Court can act on it’s own motion in exceptional circumstances, the Court concluded that these were not exceptional circumstances that warranted it. Further, the Judge did not have jurisdiction to invite an extension order, because the limitation had expired:
[41] A Court may act on its own motion in exceptional circumstances, however, given the risks associated with doing so, this should not be the norm.
[42] The Court of Appeal has observed that a judge “should not take jurisdiction to grant an order that has not been sought by either party with a properly filed application and supported by evidence”: Cold Lake First Nations v Alberta (Tourism, Parks and Recreation), 2012 ABCA 36 [Cold Lake] at para 35, citing Hicks v Kennedy, 1957 CanLII 276 (AB CA); Wagner v Wagner, 2014 ABCA 428 [Wagner] at para 27.
[43] In the absence of a properly brought application, a party cannot know the case that must be met and is unable to make full answer: Cold Lake at para 36. The relief sought should be stated precisely in the application and “not left to be divined from other documents filed”: Wagner at para 27.
[44] Related to the need for a proper application is the requirement for an evidentiary foundation: Deiure v Deiure, 2000 ABCA 328 at para 3. A court “should not grant relief without evidence to support the order”: Cold Lake at para 38. As will be discussed later in these Reasons, I am of the view that there was insufficient evidence to grant the Extension Order.
[45] The importance of having a proper evidentiary foundation is heightened when a Court is acting of its own motion, particularly when the application is dealt with ex parte. Absent exceptional circumstances, a Court should not act on its own motion as doing so risks compromising the role of an impartial arbitrator: Malton v Attia, 2016 ABCA 130 [Malton] at para 41; Jensen v Ross, 2014 BCCA 173 at paras 24-27.
[46] While the decision in Malton leaves open the possibility of a Court acting on its own motion in exceptional circumstances, I am not satisfied that the circumstances before the Applications Judge either permitted or warranted intervention. The circumstances before the Applications Judge were not exceptional. Further, as will be reviewed in the next sections, the Applications Judge did not have jurisdiction to invite the Extension Order because the limitation period had already expired, and the materials filed by the Respondent were misleading. In short, the risks associated with a Court acting on its own motion in an ex parte application were at play in this case.