ABLawg

Counsel Shall Not Bear Witness: Clarifying the Obligation of Counsel to Withdraw When Required to be a Witness

During divorce litigation the Plaintiff and Defendant disputed the existence of a settlement respecting distribution of matrimonial property. The dispute was directed for trial by Justice Moreau of the Alberta Court of Queen’s Bench, at which point counsel for the Defendant (who was newly appointed and therefore had not been involved in discussions related to the settlement) brought an application to remove counsel for the Plaintiff. The application was brought on the grounds that Plaintiff’s counsel was a potential witness at the trial of the settlement issue. Justice Eric Macklin of the Court of Queen’s Bench granted the application.

“www.JustAnswer.com… or How the Alberta Courts Respected the Market Surveillance Administrator’s Just Exercise of Jurisdiction”

By Alice Woolley

On March 3, 2008

In Energy

Cases Considered: Alberta (Market Surveillance Administrator) v. Enmax Energy Corporation 2008 ABQB 54

PDF Version: “www.JustAnswer.com… or How the Alberta Courts Respected the Market Surveillance Administrator’s Just Exercise of Jurisdiction”

Regulation of the functioning of the market for electricity poses difficulties. The price for electricity in Alberta is determined through the mechanism of the Power Pool on an hourly basis. Generators bid the electricity they will have available for dispatch into the Power Pool during a given hour, and the Power Pool selects electricity in merit order (from the lowest price bid to the highest price bid) as required to meet demand in that hour. The price of electricity in each hour is the level of the highest bid of the last unit of electricity required to meet demand in that hour. Every in merit generator in that hour is then paid at that price, regardless of the level of the bid initially made by that generator.

Fading to Brown: Limits on Evergreen Discovery in Alberta

By Alice Woolley

On March 3, 2008

In Civil Procedure, Ethics and the Legal Profession

Case 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).

Two cases concerning the Statute of Frauds (1677, U.K.)

By Jonnette Watson Hamilton

On February 26, 2008

In Property

Cases Considered: Leoppky v. Meston, 2008 ABQB 45, Wasylyshyn v. Wasylyshyn, 2008 ABQB 39

PDF Version: Two cases concerning the Statute of Frauds (1677, U.K.)

A statute enacted over 350 years ago by a Parliament sitting in London, England was the basis of two decisions of the Alberta Court of Queen’s Bench handed down the week of January 21, 2008. The decision of Madam Justice D.C. Read in Leoppky v. Meston, 2008 ABQB 45, was released January 17. The decision of Mr. Justice E.A. Marshall in Wasylyshyn v. Wasylyshyn, 2008 ABQB 39, was released January 18.

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

By Jonnette Watson Hamilton

On February 26, 2008

In Civil Procedure

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.