Edited by Amanda Kostek
Last week’s Court Rulings from the Alberta Court of King’s Bench, Court of Appeal and SCC.
Macdonald v Parkland (County), 2024 ABKB 738
Municipal Liability | Single Vehicle Collision | Summary Dismissal
Carbone v Dawes, 2024 ABCA 405
Test for Exclusion of Parties at Questioning
Carbone v Dr Jeffrey C Dawes, 2024 ABCA 404
Striking Opinion Evidence
Kendall Estate (Re), 2024 ABKB 729
Privilege over Notes for Counsel
Macdonald v Parkland (County), 2024 ABKB 738
In Macdonald v Parkland (County), 2024 ABKB 738, the Plaintiff suffered serious personal injuries when he crashed his bicycle while riding at night in the Summer Village of Seba Beach. He alleged that the crash was caused by a temporary speed bump the Village had installed with no lights or warning signs. The Village brought an application for Summary Dismissal on the basis that the Plaintiff could not recall how the accident occurred and therefore could not meet his burden of proof with respect to causation. The Village relied on a biomechanical expert, who concluded that the Plaintiff was found 159 feet north of the speed bump. In contrast, the Plaintiff relied on his personal observations of the speed bump, and argued that it was open to a trier of fact to infer that the speed bump caused his accident. He disputed the expert’s findings. Ultimately the Court was not prepared to dispose of the claim on a summary basis and dismissed the application noting that it was up to a trier of fact to determine the matter.
Carbone v Dawes, 2024 ABCA 405
In Carbone v Dawes, 2024 ABCA 405, a personal injury claim arising out of a cosmetic procedure, the Defendant doctors brought an application for security for costs. In the context of cross examining on the Affidavit in Support, the Plaintiff sought to exclude one Defendant from attending the examination alleging that if parties were allowed to attend, they might “tailor their evidence”. The Court of Appeal dismissed the Plaintiff’s appeal citing authority that there must be a “reasonable apprehension of testamentary misconduct” to exclude a party from Questioning. The Court accepted that the Plaintiff had failed to meet this threshold test.
Carbone v Dr Jeffrey C Dawes, 2024 ABCA 404
In Carbone v Dr Jeffrey C Dawes, 2024 ABCA 404, a related appeal involving a personal injury claim arising out of a cosmetic procedure, the Plaintiff filed an affidavit containing a personal opinion of the Defendant doctors. The Doctors sought to strike that opinion under Rule 3.68(4)(a) on the basis that the Plaintiff was not qualified to give that opinion. They were successful before the Chambers Judge, but the Plaintiff appealed. On appeal the Court noted that the current rule does not require the statement to be ““scandalous, irrelevant or otherwise oppressive” as the old rules required. Instead, the current version of the rules provides that a Court may “strike out all or part of an affidavit that contains frivolous, irrelevant or improper information”. The Court of Appeal dismissed the appeal and confirmed that the Plaintiff’s statement was neither admissible as she was not an expert, nor relevant to the costs issue.
Kendall Estate (Re), 2024 ABKB 729
In Kendall Estate (Re), 2024 ABKB 729 the Court was tasked with determining whether privilege attached to notes made by one of the respondents at the request of his counsel. The Court canvassed the law on litigation privilege and noted that for litigation privilege to apply, the dominant purpose of the notes must be in contemplation of litigation:
[46] In summary, the onus is on David to prove on a balance of probabilities that the “dominant purpose” for the creation of the Notes was in anticipation of litigation: CNOOC CA 2024 at para 25; Blank v Canada (Minister of Justice), 2006 SCC 39 at paras 59-60 [Blank]. A record “will not be protected by litigation privilege simply because litigation was one of several purposes for which the record was created”: Canadian Natural Resources Limited v ShawCor Ltd, 2014 ABCA 289 at para 83 [ShawCor]; Dow Chemical Canada ULC v Nova Chemicals Corporation, 2014 ABCA 244 at para 38. A person claiming privilege must do more than just make a bare assertion of privilege; evidence must substantiate the claim: Hudye Inc at paras 22 and 33; R v Fast, 2009 BCSC 1671 at paras 30-31; R v Chan, 2002 ABQB 753 at para 41; Salvation Army v Dhaliwal, 2022 ONSC 1447 at para 15.
[47] The Notes will only fall within the protection of the litigation privilege where “the dominant purpose for their creation was, at the time they were made, for use in contemplated or pending litigation”: CNOOC CA 2024, at para 24, citing Moseley Spray Lakes Sawmills (1980) Ltd, 1996 ABCA 1414 at para 24.
While litigation may have been contemplated, the Court concluded that the onus to prove the dominant purpose test had not been met. However, solicitor client privilege applied to some of the notes.