Case considered: Polis v. Edwards, 2009 ABQB 520

PDF version: A Custodian of a lawyer’s practice is like a . . . [what?]

There are very few written decisions on the powers, rights and duties of custodians appointed by the Court of Queen’s Bench at the request of the Law Society of Alberta (LSA) pursuant to the Legal Profession Act, R.S.A. 2000, c. L 8, section 95. Unfortunately, this decision does not add to that small body of precedents. Although the question of whether a custodian is entitled to tax the accounts of the member of the LSA whose legal business they were appointed to manage or wind up was squarely before the court, Madam Justice Jo’Anne Strekaf declined to answer the question, deciding it instead on a more factual basis. This is to be regretted, not only because there is so little law in the area, but also because, in answering these types of questions, the courts have tended to rely on interesting analogies with others in roles that require them to stand in the shoes of another person and because the answer to the question about taxation seems like an easy one.
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Case considered: Conway v. Zinkhofer, 2009 ABQB 417

PDF version: Not Your Usual Self-Represented Litigant?

The perception within the justice system is that self-represented litigants have below average literacy and comprehension levels: see the Alberta Self-Represented Litigants Mapping Project, Final Report, January 12, 2007 at 10. However, according to recent research, members of any social group may become self-represented litigants and between 60 and 65% had at least some post secondary education. One group of self-represented litigants is the group who could access representation but prefer to self-represent (Final Report at 15). Although a small percentage of the self-represented litigants (5% or less), the group includes those often referred to as “vexatious litigants” and judges report that this group of self-represented litigants are particularly time consuming and difficult to deal with (Final Report at 16). This appears to be an apt summary of the male respondent in this case, Fred Zinkhofer.

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Cases Considered:  J.S. v. D.J.K., 2009 ABQB 426.

PDV Version: A Clarification of Evidentiary Requirements under the Protection Against Family Violence Act

Justice Donald Lee is a prolific author of judgments posted to the Alberta Courts website, and one of the only Alberta judges to post decisions made under the Protection Against Family Violence Act, R.S.A. 2000, c. P-27 (PAFVA) (see my earlier post Family Violence Cases in Alberta: A Snapshot). In one of his recent decisions, Justice Lee helpfully clarifies the evidentiary requirements for hearings to confirm emergency protection orders made under the PAFVA.

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Cases Considered: Westra Law Office (Re), 2009 ABQB 391

PDF version: Solicitor-Client Privilege in Westra and Wyoming – Artificial Linguistic Pigeonholes and the Inappropriate Prioritization of Truth-Seeking

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

In Westra Law Office (Re), 2009 ABQB 391 (”Westra“), the Alberta Court of Queen’s Bench recently had an opportunity again to consider the scope of solicitor-client privilege. The decision was founded on several grounds, only one of which interests us here, namely that involving the scope of solicitor-client privilege.

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Cases Considered: Smorag v. Nadeau, 2008 ABQB 714

PDF Version: The Spectre of Personal Liability for Guardians of Dependant Adults

The decision in Smorag v. Nadeau is noteworthy because the Workers’ Compensation Board (WCB) argued that the defendant was personally liable for a health care decision she made in her role as the guardian of an adult who lacked the mental capacity to make that decision for herself. Madam Justice June Ross appears to have accepted this novel argument. She found that the Dependant Adults Act, R.S.A. 2000, c. D-11, under which the defendant had been appointed guardian and granted the power to make health care decisions for the dependant adult, did not protect the defendant from personal liability. Although Justice Ross did, in the end, strike down the lawsuit against the defendant personally, she did so only because she was not prepared to find a duty of care owed by the defendant to an employee of the extended care facility where the dependant adult resided. That part of the decision - an Anns analysis - raises some interesting issues in itself. However, I want to focus on the fact that the law suit against the defendant in her personal capacity got as far as the Anns analysis. I will also look at whether Bill 24, the new Adult Guardianship and Trusteeship Act, S.A. 2008 c. A-4.2 that will replace the Dependant Adults Act later this year, removes the spectre of personal liability for guardians.

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Cases considered: Stack v. Hildebrand, 2008 ABQB 668.

PDF Version: Investors should be cautious about investing in viatical settlements

As a result of the credit crunch, investors have become wary of risky investments. In its 2006 study, the BC Law Institute noted that, like many asset-backed instruments, viatical investments (or viaticals) are very risky investments. A typical viatical settlement occurs when an insured person sells his or her entitlement to receive a life insurance policy’s death benefit to a financial company who later sells a fractionalized portion of the entitlement to an investor. The financial company typically pays the premiums of the insurance policy. The primary risk is that the insured person will exceed his or her life expectancy. Another risk is that the financial company does not pay the premiums. Stack v. Hildebrand, 2008 ABQB 668 is a reminder that investors need to be cautious when considering investments in viaticals.

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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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