Edited by Amanda Kostek
Last week’s Court Rulings from the Alberta Court of King’s Bench, Court of Appeal and SCC.
Child v CNH America LLC, 2025 ABKB 180
Product Liability
Basaraba v College of Chiropractors, 2025 ABKB 176
Professional Liability / Judicial Review of College of Chiropractor’s decision to suspend
1199096 Alberta Inc v Imperial Oil Limited, 2025 ABCA 108
Security for Costs
Bains v Adam, 2025 ABCA 104
Right to Examine on Affidavit
Child v CNH America LLC, 2025 ABKB 180
In Child v CNH America LLC, 2025 ABKB 180 the Court dismissed a claim against the manufacturer of a tractor as a result of a tractor fire that occurred during heavy harrowing, which involved breaking up long and tall straw. The Court canvassed the law extensively on product liability cases and accepted that both circumstantial evidence and factual inferences are often required in cases against a manufacturer. In this case, the Court accepted that the fire started in the area of the articulating joint. However, the experts disagreed on the cause of the fire. The focus of the Trial related to the dust guard cover, which had 2 broken welds. The dust guard contained a defect, but the evidence was that the defect would not have caused the loss.
In terms of design, there was no evidence that the defect contravened the intended design, or that the dust cover itself was defectively designed. Although there was evidence that the incident dust cover was different than ones manufactured later, there was no expert evidence connecting what that difference would mean for the safety or function of the dust guard:
[330] Further, the Plaintiffs has not proven on a balance of probabilities that the dust guard cover had a defective design. There was evidence before the Court that the incident dust guard cover was different from later dust guard covers; however there was no expert evidence, or any evidence at all, addressing what that difference would mean for the safety or function of the dust guard cover. The Court cannot infer that a heavier and thicker dust guard cover would have been safer, nor that the incident dust guard cover design was a clear safety issue. These are not common sense inferences.
In addition, no expert was tendered to suggest that the welds were defective. No metallurgical analysis was conducted on the welds. Similarly, the evidence did not establish how or why the welds failed. Without this evidence, the Plaintiffs were unable to meet their standard of proof. Even if there was a defect in the weld guards, there was no evidence that the manufacturer knew, or ought to have known, of any risks related to the guard covers.
The Court was not satisfied that causation was made out. The experts testified that following the breaking of the welds, there would be an initial imbalance, but no heat or sparking would have been generated. The expert metallurgist found no telltale signs of friction or heat in the metal microstructure of the dust guard. During exemplar testing the only time a spark was generated was when external pressure was placed on the dust guard cover. However, there was no evidence of external pressure on the incident dust guard when the fire happened.
Basaraba v College of Chiropractors, 2025 ABKB 176
Basaraba v College of Chiropractors, 2025 ABKB 176 involved a judicial review of a suspension imposed by the College of Chiropractors. In setting aside the suspension, the Court affirmed that the basic requirement of fairness required particulars of the case to be met as well as the opportunity to respond. In this case, the complaint simply said the Applicant “has not consistently adhered to the requirement to always have direct in-person supervision by a regulated health professional when providing treatments as a chiropractor for all areas of practice” and “Preliminary information from the appointed investigator supports that Dr. Basaraba is not consistently adhering to the CCOA Supervision Requirements and the Court-Ordered requirements. For example, Dr. Basaraba was reportedly in a separate treatment room with a patient without the supervisor present.” The Applicant was required to respond within 5 days and his request for additional time and an oral hearing was denied by the College. The Court accepted that under these constraints all the Applicant could do was issue a bare denial. As a result, the Court concluded that he was denied procedural fairness:
51. I conclude that the Applicant was denied procedural fairness since the allegation that he breached the supervision condition was devoid of every detail that would have allowed him to prepare an intelligent response. Consequently, he was not notified of the case to be met. The Applicant had been practicing under conditions for some 3.5 months, and the allegations could have related to any of his contacts with any of his patients. When did this happen? Who was the patient? Where did it happen? How long did it happen for? Who was the supervisor? Without answers to these questions, the Applicant could only provide a bare denial of the sort contained in his written submissions. As Hugessen J. put it in Demaria, the Applicant’s right to respond was rendered “wholly illusory”.
The College argued that underlying details were not disclosed in order to “preserve the integrity of the ongoing investigation”. The Court found this position vague and lacking in specificity, and concluded that without more, these considerations did not outweigh the Applicant’s right to fair treatment:
54. Finally, I have considered the Complaints Director’s evidence that she did not disclose the underlying details to the Applicant since she needed to “preserve the integrity of the ongoing investigation” and since doing so “is not good investigative practice”. But like the allegations themselves, this justification lacks sufficient particularity. As Hugessen J. wrote in Demaria a “blanket claim” of this nature “is simply too broad to be accepted by a court charged with the duty of protecting the subject’s right to fair treatment.” In saying this, I acknowledge that the early disclosure of information may sometimes have a negative impact upon an investigation: Kalia at para. 46. There may be grounds to believe that the investigated party will alter or destroy evidence, and it may be advantageous for an investigator to spring an allegation for the first time during an interview. But these considerations must be weighed against the subject’s right to fair treatment, and there is no specific basis in the present case to believe that the Applicant might have tampered with or destroyed evidence. Further, the Respondent’s professed reliance upon “good investigative practice” rings hollow given that redacted copies of the underlying reports were provided to the Applicant less than 30 days after the suspension was imposed, and before any investigative interview had been conducted.
The Application to set aside the interim suspension was granted.
1199096 Alberta Inc v Imperial Oil Limited, 2025 ABCA 108
In 1199096 Alberta Inc v Imperial Oil Limited, 2025 ABCA 108, the Plaintiff’s claim was dismissed for delay under Rule 4.31 and the Plaintiff was ordered to pay costs of $34,304.75, which remained unpaid. An appeal to a Justice was dismissed, and the Plaintiff appealed to the Court of Appeal. Imperial Oil brought an application for security for costs of the appeal under Rules 4.22 and 14.67 of the Rules and Section 254 of the Alberta Business Corporations Act. Imperial pointed to the fact that the Plaintiff had not provided financial information, save for an Affidavit of Default with respect to the forclosure of lands that was the subject of the underlying action, and Imperial deposed that it was not aware of any assets owned by the Plaintiff to satisfy a costs award. In contrast the Plaintiff argued that it was an active corporation and that Imperial’s view of its financial circumstances was mere speculation. However, the Court noted that without an explanation with respect to why the previous costs award remained unpaid, and the failure to adduce meaningful evidence opened the door to an adverse inference. The Court of Appeal concluded that these factors favoured Imperial:
[18] Lacking concrete financial information and any explanation of why the existing costs order remains unpaid, Imperial is rightly concerned about its ability to enforce any order for costs. It may be that what 1199 calls prejudice can be managed by extending the deadline to post costs.
[19] I am satisfied these factors favour Imperial.
Bains v Adam, 2025 ABCA 104
In Bains v Adam, 2025 ABCA 104 the Court confirmed that the right to examine on an Affidavit is almost absolute:
[2] In Alberta, the right to question on an affidavit is almost absolute, but not absolute: The Point on the Bow Development Ltd v William Kelly & Sons Plumbing Contractors Ltd, 2004 ABCA 53; recently cited in Anglin v Resler, 2024 ABCA 113 at para 22. Although the Rules of Court provide for questioning on an affidavit without a court order, a “request to cross-examine may be denied in instances where the examination would be totally frivolous or is only designed to forestall the proceedings”: The Point on the Bow at para 7.
In this case the party swearing the Affidavit in support resisted the examination on Affidavit on the basis that there was nothing controversial deposed to and the conduct of proceedings to date suggested that the questioning would be abusive. The Court accepted that the questioning may be fruitless, but was not prepared to deny the Appellant the opportunity to examine eventhough the Appellant was self represented and had previously been declared a vexatious litigant. However, the Court imposed the following restrictions:
- Questioning would be conducted by Zoom or another videoconferencing platform as electronic questioning reduces the risk of conflict;
- Questioning would be restricted to 1 hour per witness;
- The Appellant was responsible for booking and paying the Court Reporter and was required to retain an accredited Court Reporter;
- The Appellant would be given 3 dates per witness and was required to confirm within 72 hours which date they would proceed on; and
- The Appellant was responsible for paying for the transcript and filing it with the Court.
The Court cautioned that questioning on Affidavits may also increase the costs for which security for costs was sought.
[6] I have already cautioned the appellant that evidence elicited through the questioning may be used against him. It goes without saying that questioning on affidavits may also increase the costs for which the respondents seek security when the security for costs application is heard.