Category: Civil Procedure Page 10 of 12

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.

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

By Brett Code, Q.C.

On November 13, 2008

In Civil Procedure, Supreme Court of Canada

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.

Obtaining Leave to Intervene in a Leave to Appeal Application

By Nickie Nikolaou

On October 15, 2008

In Civil Procedure, Constitutional, Natural Resources

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?

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?

By Jonnette Watson Hamilton

On October 6, 2008

In Civil Procedure

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.

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

By Jonnette Watson Hamilton

On September 20, 2008

In Civil Procedure

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.

Category: Civil Procedure Page 10 of 12

Investors should be cautious about investing in viatical settlements

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

Obtaining Leave to Intervene in a Leave to Appeal Application

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?

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