ABlawg

Mediation: A Warning Not to Bully a Client into Settlement

Posted on September 21, 2020 by Deanne Sowter

PDF Version: Mediation: A Warning Not to Bully a Client into Settlement

Case Commented On: Raichura v Jones, 2020 ABQB 139

If a lawyer fails to prepare his client for mediation, and bullies her into a settlement, a court may find the lawyer negligent and award damages to the client amounting to the difference between what she settled for and what she likely would have obtained in court (or arbitration). That is what happened in Raichura v Jones, 2020 ABQB 139, a recent decision from the Alberta Court of Queen’s Bench. In this case, the lawyer was ordered to pay damages of $131,939. In other words, this case is a lawyer’s nightmare. The facts may be uncommon, but the decision includes important warnings. The case has naturally provoked interest from the family law bar and has already been blogged about by Lorne Wolfson here, and by Aaron Franks and Michael Zalev in the June 1, 2020 edition of This Week in Family Law (paywall). As both blogs pointed out, the decision is being appealed. My primary interest with Raichura v Jones is the resounding message that lawyers should not bully their clients into a settlement.

Continue reading →

Posted in Dispute Resolution, Family | Comments Off

Revisiting the Doctrine of Spoliation in the Age of Electronic Documents

Posted on September 15, 2020 by Gideon Christian

By: Gideon Christian

PDF Version: Revisiting the Doctrine of Spoliation in the Age of Electronic Documents

The COVID-19 pandemic has driven us deeper into the virtual world. In our “new” work environments, conversations which were previously had one-on-one in office settings are now carried on by phone calls and emails. Meetings previously held in person are now substantially held virtually in Zoom, Microsoft Teams, WebEx, etc., and they are often recorded in electronic format. One of the impacts of this change is the fact that more than ever before, evidence of our work or business interactions, discussions and transactions will exist in this electronic format. We are generating more electronic documents than ever, and some of these documents may become the subject of discovery in future litigation arising from present transactions. The inability to produce these documents when they become relevant in future litigation may give rise to spoliation. Although the doctrine of spoliation was developed in the age of paper documents, the courts have increasingly applied it in the context of electronic documents. It is important to revisit this common law doctrine to identify the proper approach in its application to electronic documents, and its limits in addressing issues relating to preservation of electronic documents in litigation.

Continue reading →

Posted in Civil Procedure | Comments Off

Private Health Care and the Law Part 1: Litigation Challenging Limits to Private Care

Posted on September 14, 2020 by Lorian Hardcastle

By: Lorian Hardcastle

PDF Version: Private Health Care and the Law Part 1: Litigation Challenging Limits to Private Care

Case Commented On: Cambie Surgeries Corporation v British Columbia (Attorney General), 2020 BCSC 1310 (CanLII)

On September 10, Justice Steeves released his decision in Cambie Surgeries Corporation v British Columbia (Attorney General), which addresses the constitutionality of BC’s limits on private health care. The plaintiffs argued that if the government could not provide timely care, it could not prevent patients from accessing private care (at para 27), while the government argued that limits on privatization are necessary to protect the public system and ensure equitable access. This blog post summarizes the 880-page ruling, with a focus on section 7 of the Charter. It omits other issues, including a brief analysis of section 15 of the Charter (at paras 2804-2874) and a discussion of the impartiality and independence of expert witnesses (at paras 1064-1152). For readers who are unfamiliar with constitutional law, this document briefly outlines the approach courts take in adjudicating Charter claims. A second blog post will discuss the relevance of this case in Alberta.

Continue reading →

Posted in Constitutional, Health Law | Comments Off

MSA Announces Investigation into the Bidding Practices of the Balancing Pool

Posted on September 10, 2020 by Nigel Bankes

By: Nigel Bankes

PDF Version: MSA Announces Investigation into the Bidding Practices of the Balancing Pool

Proceedings and Announcements Commented On: (1) MSA News Release, “MSA has issued a formal notice of investigation to the Balancing Pool related to offer strategies undertaken at PPA units”, September 2, 2020; and (2) AUC Decision 25809-D01-2020, Market Surveillance Administrator, Application to Make Public a Record that Identifies a Market Participant by Name, September 2, 2020

On September 2, 2020, the Market Surveillance Administrator (MSA) announced that it was initiating an investigation into the bidding practices of the Balancing Pool (BP) in relation to the remaining power purchase agreements (PPAs) for which it still has offer control. This follows an earlier MSA investigation into the BP’s bidding practices that resulted in a settlement agreement between the BP and the MSA that was ultimately approved (on the second go-around) by the Alberta Utilities Commission (AUC). For the two AUC decisions see: AUC Decision 23828-D01-2019, Market Surveillance Administrator, Application for Approval of a Settlement Agreement Between the Market Surveillance Administrator and the Balancing Pool, August 1, 2019; and AUC Decision 23828-D02-2020, Market Surveillance Administrator, Application for Approval of a Revised Settlement Agreement Between the Market Surveillance Administrator and the Balancing Pool January 14, 2020. The settlement agreement itself, from October 1, 2019, is posted here (you will need a free AUC account to access).

Continue reading →

Posted in Energy | Comments Off

Exercising the Discretion to Allow Late Family Maintenance and Support Applications

Posted on September 9, 2020 by Jonnette Watson Hamilton

By: Jonnette Watson Hamilton

PDF Version: Exercising the Discretion to Allow Late Family Maintenance and Support Applications

Case Commented On: Lamont Estate, 2020 ABQB 449 (CanLII)

A family member has a limited amount of time in which to apply to the Court of Queen’s Bench of Alberta when seeking a greater share of a deceased person’s estate than the share given to them in that person’s will or on intestacy. Under section 89(1) of the Wills and Succession Act, SA 2010, c W-12.2 (WSA), the family member must apply within six months after the grant of probate or administration. Nevertheless, a court may allow a late application for a greater share of any part of the estate not yet distributed: section 89(2). This decision of Justice Nicholas Devlin appears to be the first time that a court has looked at what factors it should consider when exercising its discretion to allow or disallow a late application.

Continue reading →

Posted in Wills and Estates | Comments Off