Cases Considered: F.H. v. McDougall, 2008 SCC 53

PDF Version:  The civil standard of proof confirmed: Always proof on a balance of probabilities but now mindful of the mysterious “inherent” probabilities or improbabilities

* Brett Code acknowledges the able assistance of Shankar Kamath, a student-at-law at Bennett Jones LLP.

In F.H. v. McDougall, released October 2, 2008, the Supreme Court of Canada has confirmed that there is only one standard of proof in a civil case: proof on a balance of probabilities. A mixed series of cases over the last 50 years had caused uncertainty as to the applicable standard of proof when trying allegations of morally blameworthy conduct, for example, of fraud, of sexual assault in the civil context or of dishonesty in the context of professional conduct by lawyers (see for example Bater v. Bater, [1950] 2 All E.R. 458 at 459 (C.A., Lord Denning); H.F. v. Canada (Attorney General), [2002] B.C.J. No. 436, 2002 BCSC 325 at para 154; R. v. Oakes, [1986] 1 S.C.R. 103 at 138; Continental Insurance Co. v. Dalton Cartage Co., [1982] 1 S.C.R. 164 at 169-171). What had evolved was an apparently sliding scale, sometimes requiring plaintiffs to meet a higher standard of proof, a standard often said to be commensurate with the occasion. That uncertainty is now resolved, perhaps finally.

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Cases Considered: Provident Energy Ltd. v. Alberta (Utilities Commission), 2008 ABCA 316

PDF Version:  Obtaining Leave to Intervene in a Leave to Appeal Application

This decision deals with a unique and interesting point of civil procedure. It answers the following question: what is the test for obtaining leave to intervene in a leave to appeal application before Alberta’s Court of Appeal?

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Cases Considered: Alberta v. Fjeld, 2008 ABQB 558

PDF Version: Is Proof of Irreparable Harm to the Plaintiff or Proof of Wilful Delay by the Defendant Required to Defeat an Application to Set Aside Default Judgment?

Some debtors seem to think they can avoid being held accountable for money they owe if they refuse to answer the phone, or pick up registered mail, or accept documents being served upon them. They act as if, by mimicking the proverbial ostrich and hiding their head in the sand at the first hint of collection efforts, they will be able to make their debts go away. The taxpayers of Alberta should be pleased to know that the ostrich approach did not work in the case of Alberta v. Fjeld. Ignoring collection efforts merely resulted in the provincial government obtaining an easy default judgment against Rhonda Fjeld, which was upheld by a Master in Chambers, Rod Wacowich, and then, on appeal, by Mr. Justice Keith Yamauchi of the Court of Queen’s Bench.
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Cases Considered: Hein v. Barrett, 2008 ABQB 548

PDF Version: Leisurely Pace, Standstill and Drop Dead: A Lawsuit’s Journey

An application by a party for an extension of time is a very common application in a lawsuit. There is nothing especially note-worthy about this particular application by two Defendants, David Barrett and Chinook Accounting and Tax Services Ltd., for an order extending the time to file and serve a third party notice on two other Defendants, William Herman and Ross Todd and Company, save and except that seven years had gone by since Barrett and Chinook should have filed and served their third party notice. Nevertheless, the judgment by Master Judith Hanebury of the Alberta Court of Queen’s Bench includes a nice summary of the relevant principles to be applied to applications such as this. It also includes a striking trio of metaphors used to refer to the progress or lack of progress of a lawsuit, the “leisurely pace,” “standstill,” and “drop dead” used in the heading for this post.

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Cases Considered: Brentech Services Ltd. v. Sunray Manufacturing Inc., 2008 ABQB 301

PDF Version:  Something Happened (with apologies to Joseph Heller)

“Want of prosecution” is a curious and old-fashioned phrase. It refers to an absence of steps taken in a court action by the person who started the lawsuit. It is an allegation and finding of indefensible and excessive delay in carrying a lawsuit through to its conclusion.

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Cases Considered: Wheeler v. 1000128 Alberta Ltd., 2008 ABQB 70,

PDF Version: Jurisdiction In Personam and the Rules for Service Ex Juris

Introduction
Wheeler v. 1000128 Alberta Ltd., 2008 ABQB 70, was a complicated case in which the plaintiff alleged that he, and other members of a proposed class, had incurred losses as a result of the breach by the various defendants of the insider trading rules under Alberta’s Securities Act, R.S.A. 2000, c. S-4. More specifically, the plaintiff alleged that, in a series of steps, China National Petroleum Corporation (CNPC), acting through its subsidiaries, and in particular 1000128 Alberta Ltd. (Alberta Co.), purchased the shares of PetroKazakhstan Inc. (PKZ), an international energy company with its head office in Calgary. He further alleged that, in the course of these steps, various of the defendants, with the knowledge of and in conspiracy with the other defendants, became aware of, acted upon, and disclosed to Alberta Co. certain material facts in breach of the Securities Act. According to the plaintiff, Alberta Co. then used this information to purchase shares in PKZ with money supplied by CNPC International Ltd. (CNPCI), a subsidiary of CNPC.

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Cases Considered: Dabrowski v. Robertson, 2007 ABQB 680

PDF Version: Fading to Brown: Limits on Evergreen Discovery in Alberta

This decision by Madam Justice Joanne Veit of the Alberta Court of Queen’s Bench clarifies that counsel and parties to litigation in Alberta do not currently have an obligation to provide “evergreen” oral discovery. Counsel may have an obligation to disclose “after-acquired information” if it is requested by opposing counsel, and may have an obligation to correct misleading evidence provided by a witness. However, neither of those obligations requires them or their clients to disclose that the witness’s evidence at trial will be different from that given at discovery because the witness’s memory of events has now improved. The case also clarifies that while the Law Society remains the “best authority on compliance by its members with its Code of Professional Conduct,” “a lawyer’s ethical responsibility exists at common law, independently of any Code of Conduct” (para. 22 and 26).

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Cases Considered: Canada (Attorney General) v. Chak, 2008 ABQB 103

PDF Version: The Standard of Review on Appeals of Masters’ Decisions to the Court of Queen’s Bench

Canada (Attorney General) v. Chak appears to be the first written decision by our former colleague, Keith Yamauchi, who was appointed to the Court of Queen’s Bench of Alberta on December 14, 2007. That fact alone might make it worthy of a comment here. However, within his decision concerning a rather mundane student loan collection matter, the Honourable Mr. Justice K.D. Yamauchi also raises one interesting point.

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Cases Considered: Opal v. White, 2008 ABCA 25

PDF Version: Security for Costs on Appeals by Impecunious and Vexatious Litigants

The very short judgment of Mr. Justice Frans Slatter in Opal v. White is an unlikely candidate for a comment. It is barely more than a page - a scant seven paragraphs - and it cites neither rules nor precedents in deciding three applications for security for costs. Nevertheless, the judgment’s treatment of the issue of security for costs on an appeal of an order declaring the appellant to be a vexatious litigant is noteworthy.

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Cases Considered: R. v. Hardy, 2007 ABQB 747

PDF Version: Anthropomorphic Justice: The Case of the Cute, Yet Menacing Dog

Erin is a 10 year-old who loves dogs. One morning while in the Kensington district of inner-city Calgary with her parents, Erin’s affection led to an unfortunate encounter with Paul Hardy’s young German pointer leashed to a sidewalk post. As she attempted to pet the dog, it unexpectedly lunged upwards and bit her mouth. She required plastic surgery to treat the severe injuries inflicted upon her lips.

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