Edited by Amanda Kostek
Last week’s Court Rulings from the Alberta Court of King’s Bench, Court of Appeal and SCC.
Mackie v Drewes, 2025 ABCA 218
Whether owner of firearm liable for unauthorized and risk use of firearm by third party
Droog v Hamilton, 2025 ABCA 228
Dismissal for Long Delay
Debut Developments Incorporated v Redcliff (Town), 2025 ABCA 223
Dismissal of Claim for Corporation’s failure to have counsel
Mackie v Drewes, 2025 ABCA 218
The Appellant suffered life altering injuries by a bullet fired by a 22 calibre rifle, which was fired by a third party in an attempt to scare the Plaintiff. The Appeal concerned the liability of the owner of the gun, Brent Drewes. The evidence was that the parties, all experienced in firearms, and holding firearms certifications, were at a rural isolated cabin. The men had been on a dock taking turns firing shots from the rifle. They returned to the cabin to eat, and the respondent “placed the rifle, unloaded, in plain sight on a bench. The bolt was left in place. The ammunition was next to the rifle on the bench.” The Appellant and gun owner decided to climb the roof of the cabin to view the lake. While on the roof the third party picked up the gun, loaded it, and fired it into the roof to scare the two men. The bullet hit the Appellant. At issue was whether the owner of the gun was liable, and specifically whether the gun was loaded. The gun owner deposed that he was “sure it was unloaded”, but on cross examination could not be absolutely certain. He testified that his normal practice was not to carry a loaded weapon. The Chambers Judge concluded that absolute certainty was not required and accepted that on a balance of probabilities the gun was not loaded.
On appeal the Appellant argued that the judge erred in drawing an inference from habitual practice. The Court of Appeal noted that findings of fact, including inferences, are reviewed for palpable and overriding error. In this case the Appellant failed to demonstrate any palpable and overriding error with respect to whether the gun was loaded. Although it was accepted that there was a duty of care owed to the Appellant, the gun owner met the standard of care given that there were “four experienced men in a social situation with an unloaded rifle placed on a bench”. There was no concern about anyone’s impairment, and the Court of Appeal concluded that a “reasonable person would not foresee that if he stepped away from the rifle for a few minutes another person, experienced in the use of firearms, would pick up the rifle, load it, and discharge it through the roof.” Since the risk was not foreseeable, the gunowner was not required to take steps to eliminate the risk of such an action.
Congratulations to CBM’s Tom Schmit on this successful appeal.
Droog v Hamilton, 2025 ABCA 228
May 22, 2021 which was a Saturday of a long weekend, marked 3 years without a significant advance in the action. The following Tuesday the appellants delivered a defectively commissioned Affidavit of Records listing 12 records by email. That same day, the respondents filed an application for dismissal for long delay. At the initial hearing of the matter, the appellants relied on section 22(2) of the Interpretation Act, and argued that since the deadline fell on a weekend, they could serve the Affidavit of Records on the next business day. At issue was whether section 22(2) of the Interpretation Act extends the 3 year deadline for bringing a delay application. The Court of Appeal concluded that there is nothing in wording of Rule 4.33 that would suggest that the 3 year ‘drop dead’ rule could be extended if the last day fell on a weekend. The Court noted that nothing prevented the appellants from serving the Affidavit of Records on the Saturday by fax or email. The Court affirmed that the Interpretation Act “only applies on a Saturday when an enactment requires that an “instrument or thing” be “registered, filed or done” by or on that day, at an office or place, and that “instrument or thing” cannot be “registered, filed or done” because the office or place is not open.” This was not the case in this instance.
Debut Developments Incorporated v Redcliff (Town), 2025 ABCA 223
At Trial the Plaintiff corporation did not have legal counsel and sought to adjourn the Trial. The request was denied and the action dismissed for want of prosecution. On appeal, the Court of Appeal noted that a pre-trial application before the case management judge to allow the principal of the corporation represent it was dismissed on the basis that she was personally invested, it would be challenging for the principal to conduct the litigation in an orderly, professional and economic manner, and there was a risk of potential “ill-thought out and late last minute applications and communications”. As a result, the presumption that the corporation should have counsel was not rebutted:
[5] The case management judge noted there is a presumption that a corporation must be represented by a lawyer before the court, but that the court has the discretion to grant a right of audience to a non-lawyer to speak on behalf of a corporation in appropriate circumstances: Vuong Van Tai Holding v Alberta (Minister of Justice and Solicitor General), 2020 ABCA 169 at para 15. The court considered the circumstances and observed, with respect, that Ms. Prpick had demonstrated “that she is very personally invested in this litigation, and it will be challenging for her to conduct the litigation in a [sic] orderly, professional and economical manner.” In addition, “if allowed to represent the corporation, a series of potential ill-thought out and late last minute applications and communications will occur.” The case management judge stated that she was not confident that Ms. Prpick would be able to speak on behalf of Debut during the trial in way that respected the boundaries between the individuals who are granted the right of audience and other participants in the legal system. The case management judge concluded that the presumption that Debut as a corporation should be represented by counsel had not been rebutted. Thus, while Ms. Prpick was permitted to speak to an upcoming interlocutory application on behalf of Debut, the case management judge was clear in denying Ms. Prpick the right to conduct the trial on behalf of Debut.
The Court concluded that the trial judge was correct to dismiss the action as a result of the corporation’s failure to retain counsel.