Case commented on: Lameman v Alberta, 2011 ABQB 40
Alberta and Canada brought applications under the old Rules to strike the plaintiffs’ statement of claim in the summer of 2009. The matter has been in case management for over two years. The applications to strike were originally set to be heard March 15 – 19, 2010. This was subsequently adjourned until December 6 – 10, 2010 with deadlines fixed for filing briefs. The plaintiffs did not raise a concern about these deadlines at a case management meeting in September 2010 but subsequently brought an adjournment application on October 19, 2010, principally on the basis that they lacked adequate financial resources to proceed.
Justice Yamauchi first held that Rule 15.12 of the new Alberta Rules of Court did not apply to the adjournment application. Even assuming that the New Rules established a new test or criteria (the principal trigger for Rule 15.12), Rule 15.12 could not apply since this was not an application that had been made but not heard prior to the Rules coming into force. In this case, the application was initially heard before the New Rules came into effect (at para. 40).
In the alternative, Justice Yamauchi concluded that counsel for the plaintiffs had breached the Foundational Rules by failing to communicate openly and in a timely manner (Rule 1.2(2)(d)). Counsel was aware that there were serious financial concerns before the October case management meeting and this was not brought to the attention of the Court. This is one factor that the Court would take into account in deciding whether to grant the adjournment (at paras. 41-2).
Justice Yamauchi ultimately concluded that the adjournment should be granted given the importance of the issues and the risk of irreparable damage to the plaintiffs’ case if the adjournment application were not granted. The plaintiffs should not have to bear the consequences of the failings of their lawyers.
Anonymous
There have been a few cases addressing transition provisions, interestingly this is the second from Justice Yamauchi. On December the 12th 2010 both he and Justice Marceau put out decisions involving new Rule 15.12. In Alberta (Attorney General) v. United Food and Commercial Workers Union, Local No. 401, 2010 ABQB 777 Yamauchi J. took a different approach than he has in Lameman and actually decided whether the new Rule set out of new test and held at para. 28 that new Rule 7.1 was essentially the same as former Rule 162. Conversely, in Broers v. Real Estate Council of Alberta, 2010 ABQB 774 Marceau J. Held that he did not need to determine whether the new and former Rules imposed the same test because the proceeding had commenced but not concluded and therefore under Rule 15.12 it fell under the new Rules in any event.
Lameman seems to suggest that in cases involving the application of Rule 15.12, the Court will likely decline to rule on whether the tests are the same, unless their hand is forced.