Case Bites for December 2, 2024

Edited by Amanda Kostek

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

KJM v Kuc, 2024 ABCA 388
Examination of Non-Party Parties | Medical Malpractice

Husky Oil Operations Limited v Technip Stone & Webster Process Technology Inc, 2024 ABCA 369
Whether non-parties can be bound by arbitration clauses where they claim under a warranty

Antiquarian Bookstore Ltd., v. Villetard’s Eggs Ltd., 2024 ABKB 699
Delay Application


KJM v Kuc, 2024 ABCA 388

The Defendants in a medical malpractice claim appealed an order disallowing the Questioning of the Plaintiff child’s mother, who was not party to the action. The child was represented by it’s father as the Litigation Representative, but following the father’s death, the Court appointed a lawyer as the Litigation Representative. The father had been examined prior to his death, but the Defendants took the position that the Questioning was incomplete. They wanted to examine the mother “about the care she received from the defendants, her consent to the treatment given to her, and her knowledge about the infant plaintiff’s present and future situation.” They alleged that they would be ambushed at Trial if they could not examine her. The Defendants noted that the mother had an ‘in trust’ claim, and argued that she was an “other party” who could be examined under the Rules.

[9]               The appellants argue that the infant plaintiff’s mother can be questioned under R. 5.17(1)(a) as an “other party” who is “adverse in interest” because the infant plaintiff has advanced an “in trust” claim to reflect the care given by her mother. The law, however, treats the “in trust” claim as being a claim of the injured plaintiff, not of the person who provided the care: Benstead v Murphy1994 ABCA 272 at paras. 25-26, 23 Alta LR (3d) 251, 157 AR 198; Labrecque v Heimbeckner2007 ABQB 501 at para. 251, 434 AR 181; Forsberg v Naidoo2011 ABQB 252 at para. 337, 516 AR 201; K.S. (Litigation Representative of) v Willox2016 ABQB 483 at para. 661, 32 CCLT (4th) 1; K.Y. (Litigation representative of) v Bahler2023 ABKB 280 at para. 1685. Even if it could be argued that the “in trust” claim will indirectly benefit the mother, that does not make her a party so as to permit questioning her. In any event, this argument would not justify questioning the mother beyond the four corners of the “in trust” claim itself.

[10]           The appellants also rely on Golden Estate v Neilson2011 ABCA 338, 65 Alta LR (5th) 119, 519 AR 165. Golden Estate, however, was a fatal accident claim, which is a form of representative action under which the estate or one dependent can claim on behalf of all dependents of the deceased. Therefore, the mother and spouse of the deceased were described as “true parties” to the action, because they had an independent claim for relief. This decision is not about examining non-parties.

[11]           Golden Estate suggested:

16  A person for whose benefit an action is prosecuted is regarded as a party to the lawsuit: Re Cantalini and Hirtz.

The decision in Re Cantalini (1965), 1965 CanLII 527 (AB KB), 49 DLR (2d) 518 (Alta SC) also concerned a fatal accident claim. Further, both Cantalini at p. 521 and Hirtz v Alberta (Public Trustee)2000 ABQB 326 at para. 21, 267 AR 52, aff’d 2002 ABCA 29 at para. 1, 99 Alta LR (3d) 1, 303 AR 25 rely on the old Rules that specifically allowed discovery of a person “for whose benefit an action is prosecuted”. As previously noted, these provisions were omitted from the new Rules when they were enacted in 2010.

The Court of Appeal was unsympathetic, and noted that the Rules of Court set out a comprehensive scheme of who can be examined. Further, the cases referenced by the Defendant did not stand for the proposition that any witness who may benefit and who may have evidence that enhances the speed, economy, fairness and disclosure could be examined.

[12]           It follows that despite the broad wording used in Golden Estate, it should not be read as holding that any witness who stands to benefit from the action and who has evidence that would enhance speed, economy, fairness and disclosure can be questioned. That would be contrary to the rule that questioning of mere witnesses is not permitted under Alberta practice and would revive the repealed rule that parties for whose benefit the action is being prosecuted can be questioned.


Husky Oil Operations Limited v Technip Stone & Webster Process Technology Inc, 2024 ABCA 369

Husky Oil sued two equipment suppliers for breach of warranties and negligent manufacturing. The contract between Husky’s general contractor and the two suppliers provided that Husky could enforce warranty claims directly against the respondent suppliers directly.  It also contained an arbitration clause. The suppliers argued that Husky was bound by the arbitration clause, because it sought to enforce the warranty claim eventhough Husky was not a signatory to the contract. The Court of Appeal concluded that “if a non-party can be bound to arbitrate a right granted by contracting parties, and thereby be precluded from accessing the courts, the contracting parties must make that requirement clear and explicit.” Since the contract did not specifically provide that Husky had to arbitrate, it was not bound by that provision even though it could enforce the warranty claim.


Antiquarian Bookstore Ltd., v. Villetard’s Eggs Ltd., 2024 ABKB 699

The Court directed that the period before a Statement of Claim is filed is not to be taken into account in assessing the overall period of delay in the litigation:

[74]           I will first note that the Applicants have cast their submissions on delay as running from the time of the fire in March 2015.  In view, and as noted in Alberco, the time preceding the filing of the Statement of Claim should not count towards the overall period of delay.  As noted by the Respondents, they were entitled, by virtue of the Limitations Act, to a period of two years before deciding to file their claim.  In my view, the assessment of delay should be viewed from the point at which the Statement of Claim was filed on March 29, 2017. 

In this case the Court dismissed the application for inordinate delay noting that the Defendant took two and a half years for the pleadings to close by the time all the Statements of Defence and Third Party Claims were filed, and therefore, the Defendants were responsible for almost half the period of delay complained of:

[79]           Given that the pleadings took two and a half years to close after the filing of the Statement of Claim and given that this was a period of time where the ball was in the Applicants/Defendants’ court it appears clear to me that the Applicants participated or contributed to the delay in the early years of the action.  If we consider that from the point that the Statement of Claim was filed on March 29, 2017 to the point that the Affidavit of Records was filed on February 9, 2023 is a period of just under six years, it appears that the Applicants were responsible for almost half of that period of delay. 

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