Civil Procedure 2015 Donna Molzan

Transcription

1 Civil Prcedure 2015 Dnna Mlzan 1

2 Part I: FUNDAMENTALS... 6 Ch 1: Intrductin... 6 A. Why are there Rules f Curt?... 6 B. Purpse and Intentin f These Rules... 7 C(L) v Alberta 2011 ABQB... 8 Hryrniak v Mauldin... 8 Nafie v Badawy... 8 Ch 2: Jurisdictin... 9 Sectin 96 Curts... 9 Nn Sectin 96 Curts... 9 Specialized Tribunals and Judicial Review... 9 Ch 3: Csts and Fees Ch 4: Prfessinal Respnsibilities Change f Slicitrs r Withdrawal Undertakings B&J Petrleum Ltd. v Rhim Witten, Vgel, Binder & Lyns v Leung 1983 ABQB Part II: PLEADINGS Ch 5: Cmmencement f Actin Limitatins Perids Byd v Ck 2013 ABCA Statement f Claim Originating Applicatin Dash Distributrs Inc. v Pwlik Ch 6: Parties Business Entities ) Crpratins ) Partnerships ) Sle Prprietrships ) Scieties Persns Lacking Legal Capacity ) Deceased Persns Under FAA & SAA Infants Persns f Unsund Mind ) Appintment and Rle f Litigatin Representative Champagne v Sidrsky L.C. v Alberta (Metis Settlement Child & Family Services, Regin 10) Trust and Estate Prceedings ) The Crwn Canada Depsit Insurance Crp v Prisc Class Prceedings & Representative Actins Class Prceedings Act: Representatin Befre the Curt Self-Represented Litigants Lameman v Alberta Chapman Estate v Ramjhn Alberta Ltd v Alberta Ltd Ch 7: Pleadings General Rules Lax Kw alaams Indian Band v AG Canada Paniccia Estate v Tal Mazepa v Embree Ch 8: Interest Aetna Insurance C v Canadian Surety C Alberta Ltd v ExxnMbil Canada Ltd (ABQB) Ch 9: Venue Siver v Siver 2010 ABQB Ch 10: Jinder f Parties and Causes f Actin Jining Parties and Claims Res Judicata Cahn v Franks Cause f Actin Estppel Angle v Minister f Natinal Revenue Issue Estppel Penner v Niagara Issue Estppel Camec Crp v Insurance C f State f Pennsylvania Sears Canada Inc v C&S Interir Designs Ltd Amendment f Pleadings Attila Dgan Cnstructin and Installatin C Inc v Amec Americas Ltd Pff v Great Nrthern Data Supplies

3 Jining and Separating Claims and Parties JOINING CLAIMS AND PARTIES SEPERATING CLAIMS (Egg Lake Farms) CONSOLIDATING CLAIMS Egg Lake Farms Ltd v Alberta (Minister f Envirnment and Sustainable Resurce Develpment) INCORRECT PARTIES ADDED TO CLAIM Parties Added n Own Mtin/Interveners University f Alberta v Alberta (Infrmatin and Privacy Cmmissiner) Ch 11: Service Purpse f a Service Butkvksy v Dnahue Hw d yu service the Dcument? Service f Nn-Cmmencement Dcuments in Alberta Service utside f Alberta but in Canada Mrgaurd Investments v Desavye SCC 1997 BIG CHANGE TO CL Metcalfe v Yamaha Pwer Mtr Prducts ABCA Service Outside f Canada (See Club Resrts) Club Resrts Ltd v Van Breda What date was service Effective n? Prviding Evidence f Prper Service Overcming Service Prblems Substitutinal Service R v Gdhart Dispensing with Service Validating Service Alberta Ltd v Redecpp Ch 12: Renewal f Statement f Claim Brusseau v Janz Estate 3.27(1)(a)(i/ii) McGwan v Lang 3.27(1)(c) Ch 13: Particulars Alberta v Atria Grup Alberta Ltd v Bazinet Ch 14: Prcedure n Default Time fr Defending Statement f defence Demand fr ntice by defendant (Mre detail in Ch. 15 f CAN) Default Judgment Liquidated Demand Rule TLA Fd Services v Nting in Default Argent v Gray Terper v Hard Setting Aside Default Judgment Palin v Duxbury Ch 15: Pleadings Subsequent t Statement f Claim Defendant s Prcedure Demand fr Ntice (DFN) Bell v Grande Muntain Apartments Statements f Defence C(L) V Alberta Barcellna v Einarsn Repnses in a Statement f Defence Third Party Claims and Ntices t C-Defendant(s) C-Defendant(s) Third Party Claims Canadian Natural Resurces Ltd v Arcelrmittal Tubular Envirnment Inc v MEC OP LLC O Cnnr Assciates Envirnmental Inc. v MEC OP LLC 2014 ABCA Cunterclaim Lil Dude Ranch Ltd v Alberta Inc Set Off Hlt v Telfrd equitable set-ff Part III: PRE-TRIAL EVIDENCE GATHERING AND DISCLOSURE Ch 16: Disclsure f Recrds Recrds Under a Party s Cntrl Western Unin Insurance Cmpany v Nihill McInerney v MacDnald Recrds Which are Relevant and Material Alberta Ltd v Adderley Leduc v Rman Kaddura v Hansn The Exceptin fr Privileged Recrds AM v Ryan

4 Canadian Natural Resurces v Shawcr Ltd Bellatrix Explratin Ltd v Penn West Petrleum Ltd Syncrude Canada Ltd v Babcck & Wilcx Canada Ltd The Affidavit f Recrds Sun Life Assurance Cmpany f Canada v Tm Limited Partnership # Chevalier v Sunshine Village Crp University f Calgary v JR Ch 17 Questining Turta v CPR Glden Estate v Neilsn Cgent Grup v EnCana Leasehld Ltd Partnership Tremc Inc v Gienw Building Prducts Ltd Rzak Estate v Demas Kwk v Canada (Natural Sciences and Engineering Cuncil) Wesley First Natin v Alberta (ABQB) Psychlgists Assciatin f Alberta v Schepanvich Discvery Abuse Hlwaychuk v Lpishinsky Landes v Ryal Bank f Canada Prcedure t Read In Alberta Inc v Trail Suth Develpments Inc Juman v Ducette Hall v Wilcx Edmntn (Plice Service) v AB Ch 18: Admissins Dwyer v Fx Andriuk v Merrill Lynch Canada Inc TS v Stazenski Ch 19: Experts Expert Reprts Hendersn (Estate) v Arnett Nystrm v Ransm Drapaka v Patel Adasci v Amin Preservatin and Inspectin f Prperty Referees Ch 20: Other Evidence Affidavit Evidence at Trial Tliver v Kepke Preserving Evidence fr Future Use Part IV: LITIGATION MANAGEMENT & STRATEGIES Ch 21: Managing Litigatin Respnsibilities f the Parties Curt Assistance in Managing Litigatin Dispute Reslutin by Agreement Ch 22: Chamber Practice Interlcutry Applicatins On Mtin Ex Parte withut the ther party (nt ging t be present) Appearance in Masters Chambers Jurisdictin Suth Side Wdwrk (1979) Ltd v RC Cntracting Ltd (1989) Janvier v Schaffer v Lalnde Appeals Bahcheli v Yrktn Securities Inc Standard f review nt n exam Affidavits Byer s Transprt v Terra Mining Barker v Budget Rent-A-Car f Edmntn Ltd Questining n Affidavit Saveva v Flight Centre Rzak Estate v Demas Smith v Cperstne Capital Inc Medicine Shppe Canada Inc v Devchand Kahara Budas Cmpany, LLC v PLN (Perser) Ch 23: Civil Cntempt f Curt Cary v Laiken Ch 24: Alternative Rutes Striking Out Pleadings R v Imperial Tbacc Canada Ltd Jly v Pelletier

5 Chutskff v Bnra Summary Judgment Hryniak v Mauldin Windsr v Canadian Pacific Railway Ltd Alberta Ltd v Alberta Ltd Alberta Ltd v Ostrwercha Stut v Track Summary Trial Westjet v ELS Marketing Inc (ABCA) Mansn Insulatin Prducts Ltd v Crssrads C&I Distributrs Trial f Particular Questins r Issues Bailey v Guaranty Trust C f Canada Gallant (Litigatin Gaurdian f) v Farries Edmntn Flying Club v Edmntn Reginal Airprt Authrity Delay Empsn v Wenzel Dwnhle Tls Ltd Dejanvic v Axa Pacific Calih v Canada (AG) Charik Custm Hmes Ltd v Sara Develpments Inc Security fr Csts Amex Electrical Ltd v Alberta Ltd Kerner v Capital Health Authrity Discntinuance f Actin Newel Pst Develpments Ltd v Alberta Ltd Ch 25: Settlement Frmal Offers Trde Realty (Edmntn Ltd v Winfield Pwer C) Snihur v Grace Infrmal Offers Paniccia Estate v Tal IF YOU SETTLE, GET A RELEASE Part V: TRIAL AND JUDGMENT Ch 26: Entry fr Trial and Trial Entry Tan v Swyrd Attendance f Witnesses at Trial Mde f Trial Jury Trial Fwler v Din Ch 27: Judgment What is the Difference between an Order and a Judgment? What is the Frm fr Judgment and Orders? Wh Drafts, Signs and Enters the Judgment r Order? What is the time limit fr filing/entering the judgment r rder? Can a judgment OR rder be varied? Variatin Befre Entry Lewis Estates v Brwnlee LLP Variatin After Entry Administrative Agencies, Bards, and Cmmissins (ABCs)

6 Part I: FUNDAMENTALS Ch 1: Intrductin - What is Civil Prcedure? Rule f law that curts will fllw in adjudicating civil claims A set f rules that create a means t access the civil claims prcess in fair, timely, and cst effective way. A. Why are there Rules f Curt? Need rules and expectatins abut what happens next need sme level f 1) certainty, 2) repse/finality, 3) fairness, 4) rder, 5) avid surprises. Different set fr each jurisdictin in Canada. Principle f the Rules Natural Justice and Natural Fairness - Rule f Law law shuld nt be arbitrary, shuld be accessible, individuals must knw the law. - Natural Justice has Tw Basic Cncepts The rule against bias (fr impartiality) N ne shuld be the judge in his r her wn cause Members f tribunals, etc shuld be independent frm the cause The right t a fair hearing has 3 assumptins 1) Sufficient Ntice (t allw case t be prepared) Allw fr adequate preparatin Can invlve relaxing time limits with agreement f ther party. 2) Knw what evidence will be prduced against them Knw the case against them but nt the arguments n trial by ambush 3) Right t cntest, crrect r cntradict evidence against yu Right t state yur wn case and invlves the right t btain reasns fr judgments, right t cunsel, presumptin f ral hearings, right t crss examine witnesses, etc. 6

7 Chambers Applicatin Shrt hearing befre a Master in Chambers r a Justice in Chambers t reslve a prcedural questin. Trial Alternatives [1] Striking Out [2] Default Judgment [3] Summary Judgment [4] Discntinuance Prcess f Civil Actin STEP 1: PLEADINGS The curt and ther parties are given written ntice f the cmplaint and the psitin/allegatins regarding the cmplaint. STEP 2: EVIDENCE GATHERING (DISCOVERY) Parties discver evidence each party might bring t the actin via dcuments r ral questining. Each party must make any unprivileged, relevant dcuments in its pssessin available t the ppsing party. Each party may be questined under ath by the ppsing party. Expert reprts are exchanged prir t trial. Settlement [1] Parties may settle utside f litigatin [2] Parties may settle under the Rules f Curt ( Frmal Settlement ) [3] Parties may settle in Mediatin r Arbitratin STEP 3: TRIAL Curt hears all admissible evidence and arguments which will allw a judge t rule n the claim. New Rules VS ld Rules - Old Rules adversarial prcess: expectatin f impsed slutin, nt necessarily mutual agreement emphasis n disagreement impartiality was highly expected - New Rules Emphasis n cperatin: wrk tgether t slve the issues and cme t an agreeable utcme but still adversarial in nature. Came int effect Nv. 1, 2010 New rules allw fr rm t argue a new interpretatin f the rule OR argue that rule shuld be interpreted in accrdance t prir case law. B. Purpse and Intentin f These Rules Rule 1.2 Purpse and Intent sectin 7

8 - Rule 1.2(1): The purpse f these rules is t prvide a means by which claims can be fairly and justly reslved in r by a curt prcess in a timely and cst-effective way. - Rule 1.2(2) Rules are intended t a) Identify the real uses in dispute b) Facilitate quickest means t reslutin at the least expense c) Encurage parties t reslve claims themselves (cperatin) d) Oblige the parties t cmmunicate hnestly and penly e) Prvide effective, efficient and credible system f remedies and sanctins t enfrce rules rders and judgments - Rule 1.2(3): T achieve the purpse and intentin f these rules the parties must, jintly and individually during an actin: a) Identify r make an applicatin t identify the real issues in dispute and facilitate the quickest means f reslving the claim at the least expense b) Peridically evaluate dispute reslutin prcess alternatives t a full trial, with r withut assistance frm the Curt. c) Refrain frm filing applicatins r taking prceedings that d nt further the purpse and intentin f these rules, and d) when using publicly funder Curt resurces, use them effectively. - Rule 1.2(4): The intentin f these rules is that the Curt, when exercising a discretin t grant a remedy r impse a sanctin, will grant f impse a remedy r sanctin prprtinal t the reasn fr granting r impsing it. - Rule 1.4 T implement the purpse and intentin f the rules referred t in Rule 1.2, the Curt may make any rder with respect t practice and prcedure - Rule 1.4(2)(g) Curt may give advice including guidance, suggestins and recmmendatins C(L) v Alberta 2011 ABQB Facts: P brings applicatin under 1.2 because D s actins incnsistent with the New Rules (nt abiding by the purpse f fairness and penness). 4 grunds fr applicatin f Rule 1.2-1) D actins nt cnsistent with 1.2-2) D actins relate t prcedural technicalities - 3) D nt using quickest methd t settle claims - 4) D nt using pen and hnest cmmunicatin Decisin: 1.2 is a guiding principle f new rules, des nt change adversarial nature f civil litigatin. - Purpse and intent f 1.2: arguably this changes the flavr and intent f all the rules and must be kept in mind when interpreting each rule (even thse that are wrded as the ld rules) - New Rules DO NOT change the adversarial nature f litigatin - D is nt required t assist the P in making their case against them - Sme f the principles f fair and just reslutin are cnflicting aspects - N need t jump ver prcess - N time frame under which yu need t bring an applicatin under 1.2 There are new requirements f D D s must disclse their psitins and prvide their defenses at the beginning and cannt just deny all allegatins in a statement f claim. They can still use any defence that is nt frivlus r untenable thugh. Hryrniak v Mauldin - Increasingly there s a recgnitin that culture shift is required t prmte timely and affrdable access t civil justice system. - Shift includes simplifying pre-trial prcedures and mving emphasis away frm cnventinal trial in favur f prprtinal prcedures tailred t the needs f the particular case. - New mdels f adjudicatin can be fair and just. Nafie v Badawy - Respnse t Hryniak: despite scarce judicial resurces we must nt cast aside established prcedures and practices expressly prescribed by the rules fr sake f expediency. 8

9 Ch 2: Jurisdictin Fur questins t ask regarding jurisdictin: 1. Des the decisin-maker have territrial jurisdictin? 2. Des the decisin-maker have jurisdictin ver the persn appearing? 3. Is the subject matter f the litigatin within the scpe f the decisin maker s authrity? 4. Is the amunt f damages r remedy sught within the mnetary limits r scpe f the decisin maker s authrity? Tw Types f Actins Which Gives the Decisin Maker Jurisdictin - 1) In persnam (against the persn) D is served within territrial bundaries f the curt Jurisdictin depends n the ability f the curt t summn smene befre it (ie resident f Alberta r accepts service f the SC in Alberta. - 2) In rem (actin against land) Curt has jurisdictin if immvable is situatin in the territrial bundaries (cannt acquire jurisdictin ver these types f actins. Jurisdictin is where the land is Sectin 96 Curts Sectin 96 superir curts include ABCA and ABQB they have inherent jurisdictin (CL cncept) - Jurisdictin ver all matters except thse delegated t specialized tribunals - Inherent jurisdictin cannt be used t verride existing statues r rules Why have inherent jurisdictin? Ensures fairness, prevents steps that wuld make ineffective. - ABQB must als abide by Judicature Act and Curt f Queen s Bench Act - Rules f Curt apply t ABQB and ABCA, Prvincial Curt Rules apply t ABPC. Alberta Queen s Bench Masters Chambers Created by statute and NOT sectin 96. Nn Sectin 96 Curts - Prvincial Curts & Tribunals - Called inferir curts set by statute d nt have inherent jurisdictin. - Small Claims Matters have increased t $50k Prvincial Curt Act: under 9(1)(i) may prescribe an amunt nt in excess f 50k fr purpses f 9.6 (which utlines General Justice Matters). If claim exceeds 50k party can abandn a part f their claim t have their matter heard in small claim curt (s. 9.6(4)). - Federal Curts Created by statute can nly d what the prvisins in the statute say Have exclusive jurisdictin t hear: Crwn land issues Trt actins invlving the Crwn Tax Curt Why allw pwer t create prcedure? - 1) S yu knw the rules - 2) Prevents steps that makes things ineffective - 3) Prevents abuse f prcess (judges are impartial) aka ensures fair prceedings, prevents ineffective steps, ensures decisins can be enfrced, prevent abuse Why care abut inherent jurisdictin? - Gives leave t Curt t fill gaps and make changes that better serve civil prcedure (e.g. class actin all the rules used t say is that yu culd bring representative actins (2 r mre peple) said nthing else, nt true anymre.) Specialized Tribunals and Judicial Review - Statutes place authrity in hands f tribunals, jurisdictin fr them is statute-specific and may have effect f limiting the jurisdictin f the curt. - Examples: Wrkers Bard, Surface Rights Bard, Develpment Appeal Bard and the Land Cmpensatin Bard. 9

10 - Typically up fr review by the curts but nt generally fully re-litigated at curt level. - Tribunal prceedings usually nt bund t Rules f Curt. Ch 3: Csts and Fees - Csts d nt usually include thse incurred prir t the actin being started - One party generally required t pay csts t the ther party - Types f cst awards Usually partial indemnificatin basis ( party and party csts ) Being cmpensated fr actual csts (Full indemnity basis)( slicitr and client csts ) is rare. On a punitive r deferential basis which exceeds indemnificatin. Curt can als say n rder with respect t csts (cmmn fr matrimnial cases/child custdy cases) - Csts will fllw the cause csts wn t be awarded until the whle matter is cmpleted at trial - Tribunals can als award csts creatures f legislatin s pwer t award csts fund in statute - If hiring mediatr may say in K with them whether r nt can ask fr csts as well Purpse fr awarding csts: - Take sme burden ff the victrs - Deter thse wh are wrng frm ging t curt, t encurage the wrng party t settle Types f csts that can be claimed Filing fees, faxes and phne calls, disbursements (prcess servers, curiers, etc), witness expenses (t appear and give evidence), expert fees, lawyers fees Disbursement csts are flw thrugh csts (csts mney t file a SC, mney t get medical reprts, mney t mail things) Lawyer fees amunt lawyer charges fr their services (running law ffice, paralegals, etc hurly rate) Rule 10.9: reasnableness f a lawyers charges can be reviewed by a review fficers (emplyee f curt services) either by the client r a lawyer (Rule 10.11) (generally lawyer wh wrks and is emplyed in AB) Can be reviewed despite any agreement t the cntrary Rule 10.10(2): lawyers charges cannt be reviewed after 6 mnths pass after date that the charges were sent t the client Rule 10.12: Yu have t pick a jurisdictin (usually clsest t where the lawyer practices) If lawyer wants it reviewed, lawyer must live r have ffice in Alberta t get it reviewed by Review Officer in Albert. If client wants reviewed in Alberta, client must live in Alberta. Must have sme cnnectin t jurisdictin. Rule 10.20: the decisin f the review fficer can be entered as a judgment r rder therefre if have a client that will nt pay bill can set up a review and have curt fficer review it can have an instant judgment in hand (can get curt rder t pay) Dn t have t file a SC r g after them in small claims curt. Csts f the curt curt will require ne party t pay the ther 3 Principles Belnging t Csts - 1) Indemnificatin Party cannt recver mre csts than they incurred in their expenses (nt damages) Level f indemnificatin is subject t curts discretin a) On a partial indemnity basis = party and party csts usual award Schedule C Tariff r recverable fees: sets ut the fees yu can recver Schedule B - Amunts that apply t experts. Rules nt nly require that yu send witness ntice but als must give allwances (bus/plane fare) r else the ntice isn t sufficient b) On full indemnity basis = slicitr and client csts csts fr all expenses Usually dne when ne party has dne smething inapprpriate c) On a punitive r deterrent basis which exceeds indemnificatin (nt really indemnificatin) 4.29(1) Example: frmal ffer t settle frm P and D declines. If judgment fr P is mre favurable than ffer then entitled t duble csts. 10

11 Rule 10.33(2)(b): there are certain factrs the curt can cnsider when determining csts can vary award csts if the party failed t admit smething they shuld have admitted Rule 10.50: curt can rder a lawyer t pay a csts award if the lawyer engaged in serius miscnduct Rule 10.53(2): curt can rder csts against a persn in civil cntempt (wilful disbedience t any judgment, decree, directin, rder, writ r ther prcess f a curt r wilful breach f an undertaking given t a curt) - 2) Csts belng t client and nt lawyer Client can cntract t pay csts t lawyer wh then pays - 3) Rule 10.29(1): General rule is that successful party is entitled t csts immediately Applicatin Questin: Why wuld D bring cunterclaim and nt new actin? Because cunterclaim will determine bth right away and culd balance ut (rather than paying and having new actin) Party may nt recver mre csts than actually spent in expenses Trying t put party back in their riginal psitin If curt is silent n csts this is default psitin Authrity fr Csts: - Curt f Queen s Bench Act S.21 and Curt f Appeal Act S.12 Subject t an express prvisin t the cntrary in any enactment, the csts f and incidental t any matter authrized t be taken befre the Curt r a judge are in the discretin f the Curt r judge and the Curt r judge may make any rder relating t csts that is apprpriate in the circumstances Rule 10.29: applies if parties d nt speak t csts and states that csts are payable immediately by lsing party t winning party Schedules B and C f the Rules utline csts that a party can claim Rule Penalty fr Cntravening Rules - 1) The curt may rder party, lawyer r ther persn t pay t the curt clerk a penalty in an amunt determined by the curt if (a) the party, lawyer r ther persn cntravenes r fails t cmply with these rules r practice nte r directin f the Curt withut adequate excuse, and; (b) the cntraventin r failure t cmply, in the Curt s pinin, has interfered with r may interfere with the prper r efficient administratin f justice. Rule 10.29(1) General Rule fr Payment f Litigatin Csts - A successful party t an applicatin, a prceeding r an actin is entitled t csts award against the unsuccessful party. This is subject t a number f cnsideratins including Rule Rule Curt-Ordered Csts Award - After cnsidering matters in Rule 10.33, the curt has the discretin t rder ne party t pay the ther ne r a cmbinatin f: The reasnable and prper csts f litigatin Any amunt the Curt cnsiders apprpriate, including an indemnity t party fr that party s lawyers charges, r a lump sum instead f, r in additin t, assessed csts. Rule Curt cnsideratins in making csts award - (1) In making a cst award, the Curt may cnsider: (a) Result f the actin and degree f success f each party (b) Amunt claimed and amunt recvered (c) Imprtance f issues (d) Cmplexity f actin (e) Apprtinment f liability (f) Cnduct f a party that tended t shrten the actin, etc. (g) Anything else the curt wants - (2) In deciding whether t impse, deny r vary cst award, the Curt may cnsider: Cnduct f the parties A party s denial f r refusal t admit anything that shuld have been admitted See rule fr 5 ther factrs, the ne we went thrugh in class is bellw (b) A parties denial r refusal t admit anything that shuld have been admitted Operatin f Rule 4.29 n Awarding Csts via Schedule C Rule 4.29(1): Plaintiff makes ffer which is nt accepted. If the plaintiff gets a judgment that s equal t r better than the riginal ffer, the plaintiff is entitled t duble csts. 11

12 E.g. If under Schedule C they wuld ve gtten $5,000 they nw get $10,000. Rule 4.29(2): If defendant makes an ffer that isn t accepted and gets a judgment equal r mre favurable, the defendant will get csts fr all steps taken after serving the frmal ffer. If the claim is dismissed cmpletely, the defendant is entitled t duble csts [Rule 4.29(3)]. Ch 4: Prfessinal Respnsibilities Wh is Lawyer f Recrd: Rule 2.24: - (1) The lawyer f recrd is the persn respnsible fr cnducting the actin and fllwing the rules. Establishes that when yur name r name f yur firm appears n a cmmencement dcument, pleading, affidavit, etc then yu becme lawyer f recrd (2) When there is a lawyer f recrd, the party fr whm the lawyer f recrd acts may nt self-represent unless the Curt permits. (3) A lawyer f recrd remains a lawyer f recrd until the lawyer ceases t be a lawyer f recrd under these rules Under 2.24 yu are respnsible fr cnducting the actin and fllwing the rules Ties int purpse and intent statement in rule 1.2: Have t facilitate quickest means t reslve claim, have t cmmunicate penly, hnestly and in a timely way, rules have t create an effective, efficient system fr remedies. Rule 11.17(1): A cmmencement dcument may be served n a party by being served n the lawyer f recrd fr the party - (a) by being left with the lawyer, being left at the lawyers ffice, r being left at anther address specified by the lawyer, r - (b) by being sent by recrded mail, addressed t the lawyer, t the lawyer s ffice. Duties f the Lawyer f recrd: Rule 2.25(1)(a): Lawyer f Recrd must abide by rule 1.2 Verifying Lawyer f Recrd: Rule 2.26(1): If a persn wh is served with a cmmencement dcument, pleading r ther dcument asks a lawyer r firm f lawyers if the lawyer/firm is a lawyer f recrd in an actin, applicatin r prceeding, the lawyer must respnd t the questin in writing as sn as practicable (with directin frm the client) Rule 2.26(2): If a lawyer/firm whse name appears as the lawyer f recrd in an actin denies being the lawyer f recrd - (a) every applicatin and prceeding in the actin is stayed, and - (b) n further applicatin, prceeding r step may be taken in the actin withut the Curt s permissin. Nte: Rule 2.27: Retaining lawyer fr a limited purpse. Change f Slicitrs r Withdrawal Changing a lawyer f Recrd Rule 2.28(1): T change lawyer f recrd, the client must: (a) Serve a ntice f change (Frm 3) (b) File an affidavit f service - (2): Self-rep has t serve ntice t all parties if they get a lawyer - (4): Ntice is nt required when (a) a party is nticed in default, r (b) if there is a default judgment Getting Off the Recrd Prir t Trial Date Scheduled Rule 2.29: Fr the lawyer t get ff the recrd, lawyer must: (a): serve n the client and parties a ntice f withdrawal (in Frm 4) that states: (i) Clients last knwn address (ii) That n expiry f 10 days after the filing f the affidavit f service, the lawyer will n lnger be the lawyer f recrd AND 12

13 (b) File an affidavit f service f the ntice - (2): Still n the recrd fr 10 days Lawyer can t simply leave client, must advise client n getting a new lawyer Lawyer cannt simply leave client must advise client n getting new lawyer After Trial Date Set Rule 2.31: After a trial date is scheduled, a lawyer cannt withdraw withut the curt s permissin - Nte: Rule 2.30: nce lawyer withdraws frm the recrd, yu can t serve the frmer lawyer after the 10-day perid - Nte: Rule 2.32: when lawyer autmatically ceases t be lawyer f recrd (a) In the case f an individual lawyer (i the lawyer dies, (ii) the lawyer is suspended r disbarred frm practice as a lawyer, r (iii) the lawyer ceases t practice as a lawyer; (b) In the case f a firm f lawyers, the firm disslves. Law Sciety f Alberta Cde f Cnduct Rules - Rule 2.07(1): Lawyer can t withdraw frm acting fr client except with gd cause and upn reasnable ntice Right f Lien: - Cunsel has a lien n a client s file. If client chses t leave cunsel s ffice, nrmally file belngs t client and client take file with them. But if n pay n file because cunsel wh hasn t been paid has a lien n it. Undertakings - Rule 5.30: Undertakings - A prmise t d smething any srt f prmise a lawyer makes (written, ral r implied) that s relied n, in sme manner, by anther party Presume the utmst gd faith Must persnally be fulfilled - Any ambiguity as t whether the undertaking was a persnal ne n the part f the lawyer is reslved AGAINST he lawyer and in favur f finding persnal liability against him - Curt takes these very seriusly - B&J Petrleum Ltd. v Rhim Law Sciety f Alberta Cde f Cnduct Rules (7) A lawyer must strictly and scrupulusly fulfill any undertakings given and hnur any trust cnditins accepted in the curse f litigatin (13) A lawyer must nt give an undertaking that cannt be fulfilled and must fulfill every undertaking given and hnur every trust cnditin nce accepted 6.02(13) Cmmentary: Undertaking shuld be written and be abslutely unambiguus. If lawyer des nt intend t accept persnal respnsibility, this shuld be stated clearly in the undertaking itself. If there is n such statement, the persn t whm the undertaking is given is entitled t expect that the lawyer giving it will hnur it persnally. Trust Cnditins: requirements that must be met befre bth parties are deemed t have cmpleted their rles. Undertakings must be fulfilled by the lawyer the bligatin is abslute! Never give an undertaking fr smething that yu can t cntrl. Trust cnditin applies t the lawyer regardless f what client instructs yu t d, they can advise yu therwise, but lawyer cannt ignre an undertaking. Yu shuld nt accept undertakings that require anther party t cmplete certain requirements yu culd be held respnsible fr their failure t cmplete the requirement - If yu cannt accept trust cnditin exactly as it is in the trust dcument then yu must reply t the ther lawyer and say yu can t. Yu can t negtiate, must arrive at a whle new set f trust cnditins. 13

14 If yu can t fulfill then yu must reprt it t the Law Sciety Curt can enfrce in the frm f a judgment fr damages thrugh inherent jurisdictin Curt claims inherent jurisdictin t enfrce undertakings (enfrcement is nt fund in the Cde f Prfessinal Cnduct, nly the duty). Curt enfrces undertakings thrugh a judgment fr damages (via inherent jurisdictin) Witten, Vgel, Binder & Lyns v Leung 1983 ABQB Facts: D firm breached trust cnditin f undertaking regarding returning 2 cpies f executed dcuments within 10 days. Client tld lawyer nt t return dcument within time frame. Decisin: Slicitr must cmply with any trust cnditins that they have accepted - trust cnditins cannt be varied and are set in stne - Parties must cmply with the trust cnditins withut any questins. The bligatin is abslute. Once yu have accepted trust cnditins yu are bund. If yu dn t think yu can fulfill trust cnditin, r trust cnditin yu accept requires yur client t d smething, ask t vary the cnditin s it s up t yu t carry ut the cnditin, s yu can ensure yu fulfill it. - Als nt what yur clients wants yu t d. If yu agree t trust cnditin, yu must fulfill the bligatin regardless f whether yur client screwed up. - Nte: Lawyer is fficer f the curt, yu have higher duty t the curt than the client. 14

15 Part II: PLEADINGS Ch 5: Cmmencement f Actin Fur Steps - 1) Determine wh the ptential parties are See Ch 6 Must have cause f actin against each D, if yu dn t then D can strike entire SC (and can seek csts against P) Must have facts that supprt every single claim If yu can t identify claim but think there might be smething then yu have t file SC against D (can claim and lk fr mre facts later) r risk lsing limitatin perid) rules n ammendments are very liberal, can add D s later (must nly be a scintilla f evidence ) - 2) Determine whether plaintiff has capacity t sue See Ch 6 Individual and crpratin can sue, if crpratin sues then there is prcedure that must be fllwed Are children invlved? Dn t have capacity t bring actin in Alberta Incapacitated Adults (mental ability)? Deceased Peple Culd strike claim Rule 2.11 litigatin representative: LR is required fr: individuals under 18, an adult wh lacks capacity as determined by Alberta Guardianship and Trustees Act, an individual wh is represented under the AGTA, r a persn wh is dead. Executr f an estate can bring r defend an actin. - 3) Cause f actin must arise prir t bringing the actin Cannt bring an actin until after the breach E.g. Business Crpratin Act s. 119 It wuld be premature t bring an actin against the directrs fr unpaid wages befre bringing an actin against the crpratin Must exhaust all actins against crp befre ging after directrs. E.g. If landlrd has tenant that can t pay, landlrd can t d anything until the rent payment date has passed befre an actin can be brught. - 4) Cnsider bars t actin 1) Cntractual Agreement Cntract ut f settling disputes mst insurance liability cntracts say that n actin can be cmmenced against the insurer until a judgment has been entered against the insured, fllwing the trial f an actin. Arbitratin Act s.7(1): arbitratin must be gne thrugh befre an actin can be brught befre the act curt will stay the prceedings in rder fr arbitratin t prceed. Can t be used t bar an actin thugh. Labur Dispute labur law requires arbitratin. Labur arbitratin hears claim, nt the curt. 2) Res Judicata Prevents re-litigating smething that has already been decided Als knwn as Estppel by Res Judicata = rule f evidence applies when yu have the same claim, same matter, same parties and there has been a final judgment. If there is administrative decisin already decided and then brings actin t the curt, this is barred Cncept f smene wh has been remved frm curt rm because disruptive bring claim against plice, claiming unnecessary and dn t need t be remved, decided under plice admin prcedure nt jurisdictin questin, questin is whether are we re-litigating the same manners (ie already decided by Cllege f Physicians but want t g thrugh curt because nt happy with decisin) 3) Bars against the particular cause f actin Smething that s against public plicy Can t bring cause f actin fr gambling Can t enfrce K s fr servitude, prstitutin, illegal acts, slavery. 15

16 4) Failure t btain essential prerequisites If there is a debt it usually requires demand If have a case f guarantee usually must make request against the debtr befre can g against the guarantr. E.g. Student lan and have guarantr must g after yu first. 5) Statutry Bars generally abslute bars Limitatins Act SEE BELLOW Wrkers Cmpensatin Act means cannt bring actin against emplyer, claim is determined by wrkers cmpensatin bard. Freedm f Infrmatin and Prtectin f Privacy Act Infrmatin Privacy Cmmissiner deals with access t inf, if smene in their ffice accidently revealed inf that they shuldn t have, yu can t sue the cmmissiners ffice r any f his staff. N actin n a Cmmissiner wh acted in gd faith: FOIPP s 69 Many Acts abut bars against particular peple (like masters f QB) N actin n Master wh made an rder utside his jurisdictin- Sectin 14 f the QB Act n actin can be brught against a Master if he actins utside his jurisdictin, unless he acted maliciusly Als, n damages can be awarded against a party wh acted n an rder given by a master withut jurisdictin (s. 14(2)) Limitatins Perids - Three reasns fr Limitatins Act 1) Evidentiary reasns deciding a dispute depends n applying the law t the facts which requires evidence. D may nt knw what recrds t keep and hw t prtect themselves if the actin happened a lng time ag. Especially apply t D s wh supply gds t peple witnesses may frget/die/get lst D s are mre vulnerable than P s 2) Peace and Repse D is entitled t have their legal issue reslved in a timely manner. Want t ensure judges are dealing with current disputes. 3) Ecnmic Reasns If D is vulnerable t a claim/actin it may affect their ability t enter int future business transactins. - Tw Cre Cncepts in the Limitatins Act (Sectin 3) (a) Knwledge (aka discverability) limitatin perid des nt cmmence until claimant has discvered the claim: sectin 3(1)(a) = Claimant ught t have discvered 3 things i) Injury Occurred ii) Attributed t cnduct f D iii) That it is sufficiently serius t warrant bringing a prceeding After discvery claimant has 2 years t bring claim (discvery limitatin perid) D nt have t have knwledge f full extent f yur damages, just sme damages (b) Repse r Finality (sectin 3(1)(b)) incrprates certainty by prviding abslute cutff date. Desn t mean claim is extinguished but D entitled t immunity frm claim culd be anywhere frm 2-10 years. Aside: if brught in anther jurisdictin with anther time perid yu may be able t bring claim there E.g. Bwes v City f Edmntn hmes in Edmntn slid int the river, unfrtunately damage ccurred 11 year prir. - Alberta has new limitatins act changed frm prir limitatins which limited particular types f claim medical negligence, persnal injury, cntract all different BC, ON, SK, NB all use new cncept - D is entitled t a limitatin defense either t the discvery limitatin r the ultimate limitatin. This is therefre nly a shield and nt a swrd. Due t this yu MUST plead limitatins act in SD. If D successful, then D has immunity frm liability under the claim Key Pints in Limitatins Act - Shield nt Swrd 16

17 - Definitin f a claim s.1(a): claimant seeks remedial rder - Remedial Order s.1(i): judgment r rder made by curt which requires D t cmply with the duty and pay damages Limitatin Act des nt apply t declaratins, an rder fr enfrcement f remedial rder, judicial review f pwers that are cnferred n the administrative bdy by statue Sectin 2(4)(b): Act desn t apply where it is usted by limitatin perids in ther enactment there may be limitatin prvisins in ther enactments that deal with particular types f claims which are excluded frm the limitatins act (e.g. municipal gvernment act municipality leaves a hazard and smene gets hurt, if suing city f Edmntn yu have 6 mnths frm the time accident ccurred t bring claim) - Special Circumstances that mdify limitatin perid bth discvery and ultimate perid can be suspended Sectin 4 if smene fraudulently cncealed the injury fr which remedial rder is sught. Sectin 5 suspended when a persn is under a disability (example minr time perid des nt start running until 18, (can start running if D gives ntice t minr) r adult unable t make reasnable judgment. defendant delivers ntice t guardian r Public Trustee + pays the Public Trustee s fee limitatin perid will begin t run nce ntice is received. Disability can include depressin Sectin 6 claims added t a prceeding after limitatin perid has expired Ntwithstanding the expiratin f the limitatin perid, where a claim is added, the D is nt immune frm liability. Requirements fr Amending pleadings (adding parties r claims) after expiratin f Limitatins perid Threshld Requirement: Prceedings previusly cmmenced within limitatin perid 1. N Change f Party (sectin 6(2)) Changing the types f things yu are claiming Relatinship Requirement: has t relate t the cnduct, transactin r events described in riginal pleading Ex. adding an additinal injury t a previus injury claim (where additin injury may nt have shw up right away) 2. Change f Claimant (sectin 6(3)) Use: misnamed the claimant, put dwn the wrng P 3 Requirements: 1. Relatinship Requirement 2. N Prejudice t D (limitatin + service time) D needs sufficient knwledge f claim that they will nt be prejudiced by added claim Sectin 6(3)(b) says the defendant must have received sufficient knwledge f claim within limitatin perid plus time fr service (culd be a shrter gvernment limitatin perid t)) 3. Needed t determine the riginal claim Ex. smene dies and need t name persnal representative Cat add in a true stranger (ex passenger in MVA, nt needed t determine drivers claim) Change f Defendant (sectin 6(4)) Need relatinship requirement N prejudice t D (limitatin + service) N requirement t shw its smehw related * Claimant prves: 1. Relatinship requirement 2. Needed t determine riginal claim (nt needed fr (6(4)) Defendant Prves: 1. Prejudice (n ntice in limitatin perid +service time) Sectin 7 Standstill agreements which suspend the limitatin perid. Can suspend but nt reduce it. Sectin 8 If D acknwledges the claim r makes a part payment (debts, rents, incme, etc) befre the expiratin f the applicable limitatin perid, the peratin perid begins again at the time f the acknwledgement r part payment Sectin 11 judgment fr payment f mney if within 10 years after claim arse, claimant desn t seek a remedial rder in respect f a claim based n a judgment r rder fr the payment f mney, the D is immune frm this liability. Sectin 12 Cnflict laws 17

18 The Act applies t any prceeding cmmenced in Alberta Exceptin: where a prceeding wuld be determined in accrdance with the law f anther jurisdictin if it were t prceed, and that jurisdictin prvides a shrt limitatin perid, then the shrter limitatin perid applies. E.G. AB cuple gets int accident in Califrnia (Castill case) If Cali limitatin perid shrter then this limitatin perid applies If lnger bring actin in Cali and argue fr their limitatin perid. Summary: If appears ut f time ask 8 questins: - 1) Are the criteria under sectin 3 met (P knew r ught t have knwn) - 2) Has there been a perid f disability (e.g. physical injury/depressin) - 3) Was the P a minr at the time the actin arse? - 4) Was there an agreement t suspend the running f the limitatin perid? (e.g. standstill agreement) - 5) Culd a claim be added under S.6 f Act An added claim is ne based n different and distinct events giving rise t different and distinct lss when cmpared t thse pleaded riginally (as ppsed t amendment which is same facts pleaded differently and are nt cncerned with limitatins) - 6) Culd a different case f actin have arisen at a later time? - 7) Is there anther jurisdictin where the limitatin law differs when actins may be brught? - 8) Has there been fraud? (i.e. t stp the limitatin perid frm running) Byd v Ck 2013 ABCA Test nt whether P knew situatin warranted suing, rather it is whether he knew r whether in the circs ught t have knwn. Facts: D and P knew each ther, D tried t get P t invest in certain land develpment prjects. P always rejected, finally D induced P t invest mney in mrtgage cmpany. Later P fund ut 60% was invested in rejected develpment prject. P suffered lsses as a result f the develpment ging under. D tld P after discvery f fraud nt t wrry and he wuld get his mney. Issue: Had limitatins perid expired? Decisin: Yes. Reasns: Sectin 3(1)(a) f Act says that 2-year limitatin perid nly starts t run when the P knws (r ught t have knwn) three things - P suffered injury - Injury was frm D s cnduct - The injury assuming liability n the part f D warranted bringing a preceding This was in dispute Liability was nt smething which the P had t knw, it is assumed. What P had t knw was that the injury warranted suing. The P did nt really believe that he wuld get his mney back and n reasnable persn wuld have. - Reasns fr Limitatins statutes generally: Prvides certainty in their lives t all thse wh may at sme time be sued It is a nuisance and expense t have t keep vluminus recrds in perpetuity it is unjust t sue peple nce their frmer ability t defend themselves has evaprated Generally Hw t Start an Actin Rule 3.2(1) An actin may be started nly by filing in the apprpriate judicial centre determined under rule 3.3 (determining the apprpriate judicial centre) - a) a statement f claim by a P against a D - b) riginating applicatin by an riginating applicant against a respndent - c) a ntice f appeal, reference, r ther prcedure r methd specifically authrized r permitted by an enactment. Statement f Claim Rule 3.2(2): A statement f claim must be used t start an actin unless - (a) There is n substantial factual dispute - (b) There is n persn t serve as the D - (c) A decisin, act r missin f a persn r bdy is t be the subject f judicial review 18

19 - (d) An enactment authrizes r requires an applicatin, an riginating applicatin, an riginating ntice, a ntice f mtin r a petitin t be used. - (e) An enactment prvides fr a remedy, certificate, directin, pinin r rder t be btained frm the Curt withut prviding the prcedure t btain it, r - (f) An enactment prvides fr an appeal t the Curt, r authrizes r permits a reference t the Curt, r prvides fr a matter t be put befre the Curt, withut prviding the prcedure t be used, - in which case an riginating applicatin may be used t start the actin. Cntents f SC Rule 3.25: SC Must - a) be in frm 10 - b) State the claim and basis fr it - c) state and specify the remedy sught - d) cmply with the rules abut pleadings in Part 13 Requirements f a Statement f Claim/Defence Be substantively adequate 1. A statement f claim must set ut facts which if true entitle the P t the legal relief claimed If the statement f claim fails t d this, the D can attack the pleading thrugh a mtin t strike 2. A statement f Defence must als set ut facts that if true prvide the defendant with a valid defence t the P s claim If the Statement f Defence fails t d this the P may bring an applicatin t strike ut the Defence Originating Applicatin - In apprpriate circs an riginating applicatin may be mre cnducive t expedite reslutin f a matter. - It gets yu int curt n a specific date t have the matter heard, and where its use is apprpriate, dispenses with many steps that wuld fllw a SC (Dash Distributrs) Dash Distributrs Inc. v Pwlik Originating applicatins cannt be used when there are factual disputes. Facts: Claimant wanted t cmmence claim against D n summary basis (nt a lt f facts in dispute), therefre they did s by an riginating applicatin, because can be fast slutin if case can be slved Issue: Can they bypass a SC? Decisin: Substantial factual dispute, therefre culd nt be determined summarily, must cnvert t a SC Ch 6: Parties - 1) Crpratins - 2) Partnerships LLP s - 3) Sle Prprietrs - 4) Scieties - 5) Deceased litigants (FAA, SAA) - 6) Interveners - 7) Litigatin Representative - 8) Crwn - 9) Self represented litigants ties Business Entities 1) Crpratins Alberta Business Crpratins Act (ABCA) & Partnership Act - In rder fr a crpratin t bring an actin, it must first authrize that actin t be named as a P. Must d s by lking at bylaws/directrs. - Crpratin must retain cunsel t be represented under 106(1) - Sectin 9: Crps cmes int existence n the date shwn n the certificate f crpratin A crp must be registered in rder t bring/defend an actin - Sectin 16: Once crp is registered it has all the rights and privileges f a natural persn 19

20 - Sectin 227(2)(a&b): Crp can bring actin r D an actin befre it is disslved and the actin survives the disslutin A crp can be sued fr up t 2 years after it is disslved 227(2)(b): any prperty still available can be used t satisfy the judgment - Liability f Sharehlders Sectin 227(4): Available prperty includes prperty a sharehlder received n the liquidatin as lng as an actin has been started at least 2 years after disslutin Sectin 46: Otherwise sharehlders prtected frm liability - S 46(1)- Sharehlders prtected frm persnal liability - Liability f Directrs Sectin 118: Directrs can be jintly and severally liable t a crp if they authrize a transactin that results in a lss Sectin 119: Directrs may be jintly and severally liable fr 6 mnths f emplyees wages Sectin 122: Directrs can als be sued fr breaching statutry standards f care requiring them t prtect the best interest f the crpratin (fid duty) 2) Partnerships - Generally liable fr their wn actins, actins f ther partners, liable fr the firm - Nt purely statutry existence, CL des apply t partnership as well - Rule 2.1(1) an actin against tw r mre persns acting as partners may be brught using the partnership name (e.g. Smith Jnes LLP can sue law firm d nt have t name each partner) If an actin is brught using partnership name, any party can require them t disclse names and addresses f all the partners under rule 2.4 May be prudent t name every partner because rule 2.3 says must persnally serve the partner with the cmmencement dcument and the ntice that they are a partner during time f cause f actin arse t enfrce any rder against them. If ne partner is mre wealthy may want t enfrce judgment against the ne and nt thers. Limited Liability Partnerships (LLP) - Sectin 12 f Partnership Act: LLP partner in LLP is nt individually liable fr debts, bligatins r liabilities f the partnership r anther partner that arise thrugh negligence, wrngful acts, missins, malpractice r miscnduct f anther partner r emplyee r anther agent that ccur while carrying n practice in an eligible prfessin If negligent, etc r desn t things purpsely wrng then ther partners will nt be liable. Only exceptin is if ther partner knew what the ther ne was ding. E.g. smene in partnership decides t take trust mney, yu are nt liable fr that lss. Desn t apply if partner knew abut ther persns actin, r didn t take reasnable steps t prevent it, r emplyee was required t be supervised. - 12(1) Subject t subsectins (2) and (4), a partner in an Alberta LLP is nt individually liable, directly r indirectly by means f indemnificatin, cntributin, assessment r therwise, fr debts, bligatins r liabilities f the partnership r anther partner that arise frm the negligence, wrngful acts r missins, malpractice r miscnduct f (a) anther partner, r (b) an emplyee, agent r representative f the partnership that ccur in the rdinary curse f carrying n practice in an eligible prfessin within the meaning f sectin 81 while the partnership is an Alberta LLP. - (2) Subsectin (1) des nt perate t prtect a partner frm liability (a) where the partner knew f the negligence, wrngful act r missin, malpractice r miscnduct at the time it was cmmitted and failed t take reasnable steps t prevent its cmmissin, r (b) where (i) the negligence, wrngful act r missin, malpractice r miscnduct was cmmitted by an emplyee, agent r representative f the partnership fr whm the partner was directly respnsible in a supervisry rle, and (ii) the partner failed t prvide such adequate and cmpetent supervisin as wuld nrmally be expected f a partner in thse circumstances. - (3) A partner in an Alberta LLP is nt a prper party t a prceeding by r against the partnership that claims relief in respect f negligence, wrngful acts r missins, malpractice r miscnduct referred t in subsectin (1). - (4) The prtectin frm liability given t a partner under subsectin (1) shall nt be cnstrued as ffering any prtectin frm claims against that partner s interest in the partnership prperty. 3) Sle Prprietrships Rule 2.5: A persn can carry n business under their name r under a trade name and bring r defend actin in that name - Want t name sle prprietr and name his business jerry jnes and jerry jnes she renew - Want t be able t enfrce against prprietrship and jerry jnes persnally. Rule 2.5(2): Can give them ntice requiring the persn t disclse, in writing, the legal name f the persn carrying n the business r peratin. 20

21 4) Scieties If incrprated sciety they can bring r defend actins in their wn name. Scieties Act: - Sectin 3 Grup f five r mre persns that exist fr the purpse f nt carrying n a business - Sectin 13: Sciety exists frm the time f incrpratin, nt prir t registratin. If nt registered then nt able t name that entity. - Sectin 14: Sciety has all the rights and pwers f a regular crpratin - Sectin 21: N member f a sciety is, in the member s individual capacity, liable fr a debt r liability f the sciety. Persns Lacking Legal Capacity 5) Deceased Persns Under FAA & SAA - Deceased litigants are nt legal entities and neither is their estate, s actin can t be brught in their name. - Need Persnal Representative: must have either executr r administratr t bring r defend an actin as a representative f an estate; d nt need t name the beneficiaries (a deceased persn nr an estate is a legal entity). - Executr is generally named in a will - Curt can appint a representative if estate des nt have a persnal representative can appint ne, called a litigatin representative: Administratr ad litem fr the litigatin A persn appinted by a curt t represent an estate during a lawsuit. (Ad litem is Latin fr "during the litigatin.") An administratr ad litem is appinted nly if there is n existing executr r administratr f the estate, r if the executr r administratr has cnflicting interests. - Any judgment against the deceased wuld apply against the assets f the estate - Any judgment fr the deceased wuld be paid int curt and dispersed amngst the beneficiaries - Fatal Accidents Act At CL: damages in trt intended t bring persn back t riginal psitin. When smene killed they can t d this, s we have idea that damages are nt meant t be punitive, meant t cmpensate. Saying: it s cheaper t kill then t maim, culd nt bring actin n smene that had died. FAA: displaces CL, if persn dies thrugh wrngful actins f 3 rd party (trtfeasr) the cause f actin against the trtfeasr survives fr benefit f spuse, partner, siblings, r parents (sectin 3). Generally bring actin as persnal representative but if they dn t d this the beneficiaries can bring actin. Can bring 2 types f damages claims: 1) Sectin 7: Expenses essentially (care between injury and death, damages t car, prperty, funeral expenses, travel), 2) Sectin 8: Can bring actin fr damages fr bereavement (statutry damages). Bring actin fr grief withut prf f lss. Applies t spuse/partner, parent r child. Dead child/spuse r interdependent adult: $82k fr Dead parent: $49k any children Side nte: in Ontari yu must prve yur damages. Only 3 prvinces have this, Alberta, Sask, and ne mre. - Survival f Accidents Act If a party dies with an interest in an actin, their interest cntinues fr the benefit f their estate (Survival f Actins Act, s2 (fr estate), s 3 and 4 (against estate)). The name in the style f cause wuld be amended t the PR. Sectin 5: Can claim fr pecuniary damages. Much brader grup can bring claim fr actual expenses and damages than fr FAA (but much smaller fr emtinal pain) Transfers cause f actin r liabilities f deceased estate (verrides CL) If trtfeasr dies at time caused damage, act deems there t have been a claim by P prir t death Nt all damages that resulted in lss are ging t be recverable, have t be actual financial lss Punitive damages excluded: can t have pain and suffering fr smene n lnger arund. Can t claim fr future lss r earnings r expectatin f life. Can bring claim fr damage t prperty, expenses incurred after accident (meds, physi) pecuniary damages 21

22 - Example f hw t name a persnal rep in a SC. Ferraiul Estate v. Olsn: Dante Ferraiul, Persnal representative f the estate f Maria Rsa Farrurl, deceased In the pleadings als have t utline hw the persn is the persnal rep. 6) Interveners see pg 36 f CAN - Rule 2.10: Curt can grant wh will be an intervener in an actin Generally in private civil actins, the curt will nt allw a number a interveners Infants - Claims invlving minrs gverned in part by Minrs Prperty Act and Public Trustee Act - Family Law Act a PR is appinted and they must act in the interests f the child. The PR (litigatin representative) is an fficer f the curt - If an actin is brught against a minr, their guardian may defend the actin (the litigatin representative). Persns f Unsund Mind - Gverned by Public Trustee Act and Dependent Adult Act. 7) Appintment and Rle f Litigatin Representative Rule 2.11: 5 situatins where yu need a litigatin representative - (a) Minr In AB minrs are ppl under 18 D nt have capacity t instruct cunsel Litigatin representative culd be a guardian r a next f friend Litigatin Representative is ging t be an adult and will A) instruct cunsel B) Liable fr csts C) Enfrce any rder if the minr wins D) Act fr the benefit f the minr and in the minrs best itnerest Litigatin representative fr a minr ( next friend ) is an fficer f the curt they have t be unbiased, can have n benefit t themselves. If actin brught against a minr, the guardian r litigatin rep has t defend actin Rule 10.47: Litigatin representative fr P is liable fr csts awarded against P, a litigatin rep fr D is nt liable unless the lit rep has engaged in serius miscnduct and the curt rders s. - (b) Missing Persn persn under Public Trustee Act - (c) Adult Lacking Capacity Represented adult r persn wh lacks capacity t make decisins: Guardian wh decides where they will live, eat, what clthes t wear Als have trustee wh is taking care f the mney r finances Adult Guardianship and Trusteeship Act and Mental Health Act. Sme times peple lack capacity in ne area but nt anther. Peple may have varying levels f capacity. May nt have capacity t give directin t cunsel. May nt have t have a trustee just fr the trial. Represented persn may have a trustee wh is limited appintment where curt specified the things they can handle (e.g. finances) BUT may nt include bringing litigatin. Therefre may need a special applicatin t widen the scpe f what they can d. - (d) Represented Adult Persn is represented adult under Adult Guardianship and Trusteeship Act where n persn is appinted t make a decisin abut a claim Under Act this can mean 2 things 1) They dn t have anyne t make decisins 2) They have a trustee r guardian wh makes decisins trustee deals with mney, guardian deals with care decisin Can nly bring actin if the curt authrizes it cannt bring actin fr purely financial reasns 2 acts that apply: Mental Health Act and Public Trustee Act - (e) Estate 22

23 If estate has nt persnal representative. Rule 2.12: Three types f litigatin representatives - (a) Autmatic Rule 2.13: If an individual r estate is required t have a litigatin representative under rule 2.11, a persn is an autmatic litigatin representative fr the individual r estate if the persn has authrity t cmmence, cmprmise, settle r defend a claim n behalf f the individual r estate under any f the fllwing: (a) an enactment; E.g. Persnal Directives Act allws yu t name an agent t deal with all health care affairs. (b) an instrument authrized by an enactment; (c) an rder authrized under an enactment; (d) a grant r an rder under the Surrgate Rules (AR 130/95); E.g. Estates: can apply fr grant and btain executrship and thus PR f estate (e) an instrument, ther than a will, made by a persn, including, withut limitatin, a pwer f attrney r a trust. - (b) Self-Appinted Litigatin Representative E.g. Under Pwer f Attrney Act, if I becme incapacitated, my husband is autmatically named as my trustee. This gives whever the authrity t cmmence, cmprmise, settle r defend a claim n behalf f an individual r an estate under any f the fllwing Persnal Directive Act: Adult Guardians Trustees Act: If already guardian/trustee, yu autmatically becme litigatin representative, yu can set up t have enduring pwer f attrney spring int actin when yu lse capacity If a party has t have a lit rep an interested persn can cme frward and file affidavit and say I want t be appinted as a lit rep Rule 2.14: If an individual (ex. an injured minr) r estate has n litigatin representative (any f the abve 5 grups where litigatin representatives are required), an interested persn may file an affidavit t becme ne. Individual must set ut certain inf abut why they want t be appinted. Curt will lk at their interests. They will be liable fr csts. - (c) Curt Appinted Rule 2.15: sets ut curt appinted lit reps: Where actin brught against deceased r where there is n ne t represent the D. The individual can have any interest in the utcme (party adverse in interest can apply t curt t have litigatin representative appinted). Rule 2.16 (1): Curt-appinted litigatin representatives in limited cases. This rule applies t an actin cncerning any f the fllwing a) the administratin f the estate f a deceased persn b) prperty subject t at trust c) the interpretatin f a written instrument d) the interpretatin f an enactment (2): In an actin described in (1), a persn r class f persns wh is r may be interested in r affected by a claim, whether presently r fr a future, cntingent r unascertained interest, must have a Curt-appinted lit rep t make a claim in r defend an actin r t cntinue t participate in an actin, r fr a claim in an actin t be made r an actin t be cntinued against that persn r class f persns, if the persn r class f persns meets ne r mre f the fllwing cnditins A) the persn, the class, r a member f the class cannt be readily ascertained, r is nt yet brn. B) the persn, r class r member f the class, thugh ascertained, cannt be fund C) the persn, the class r the members f the class can be ascertained and fund, but the Curt cnsiders it expedient t make an appintment t save expense, having regard t all the circumstances, including the amunt at stake and the degree f difficulty f the issue t be determined. (3): On applicatin by an interested persn, the Curt may appint a persn as litigatin rep fr a persn r class f persns t whm this rule applies n being satisfied that bth the prpsed appintee and the appintment are apprpriate. - The persn will have the authrity t bring an actin, settle an actin, r bring a claim 23

24 - Generally litigatin reps must have curt apprval t settle, discntinue r abandn an actin. Unless their interest in pwer allws them t d that. - If lit rep receives mney ther then cst award they have t pay that back int the curt, which is distributed, t the beneficiaries. Champagne v Sidrsky Legal Prfessins Act: LR can instruct cunsel but nt appear befre the Curt (LR des nt becme cunsel, but must hire cunsel) Facts: Duglas Champagne claims D in breach f restrictive cvenant. Dug desn t want t take part in lit s appinted daughters Cindy and Cheri t be enduring pwers f attrney (EPA). EPA purprted t appint them as attrneys inter alia. Cindy sught t be autmatic lit rep per Rule Justice determined 2.13(e) shuld nly apply in instances where lit rep is required t be appinted nt case here D said per 106(1) f Legal Prfessin Act (LPA) daughters culd nt prvide assistance. Judge nted any actin taken by agent f a self rep lit must be limited t thse actins set ut in rule 2.23: thse actins fall shrt f acting as a barrister r slicitr r cmmencing, carrying n r defending an actin r prceeding befre a curt r judge n behalf f anther persn. Due t this Dug transferred interest in land t daughters as JT - Requested Cindy be appinted as lit rep under rule 2.16 and certificatin f the P as a class under Class Prceedings Act - D ppsed this because t appint Cindy as a lit rep wuld effectively empwer her t perfrm the rle f barrister/slicitr n behalf f her father and sister Issue: Can Cindy be appinted as lit rep? Decisin: Law is, unless express exceptin such as s.106(2) f LPA r curt exercises discretin, fr ne persn t represent anther, that persn must be a lawyer. Reasns: - lit rep under current Rules reflects what was frmerly next friend r guardian ad litem - CA disabled party, litigating via a rep, be represented by cunsel (lawyer) - Cunsel is required in class prceedings: generally crps and persns acting n behalf f persn under legal disability r serving in representative capacity cannt self-represent but the curt has the discretin t allw them t d s in apprpriate circs. - Rule 2.16 des nt apply in this case - except when the Curt exercises its discretin t allw representatin by nn-lawyers r therwise prvided fr in an express exceptin, representative plaintiffs must be represented by cunsel (23) L.C. v Alberta (Metis Settlement Child & Family Services, Regin 10) Facts: Y has EPA fr X. X wants Y t be lit rep fr X s child in suit that she is als named a litigant in. Curt cannt allw this because f pssible cnflict f interest. Issues: Can mther and child have same lit rep? Decisin: N Reasns: there are ptential cnflict issues between EMP and her mther which make it imprtant that EMP have an independent lit rep. Lit rep has t be smene acceptable t C(L), Mr. Lee (Class prceeding attrney) and the Curt - It is acceptable t exempts a lit rep frm csts if they are a stranger. This is the same reasn why payment may als be allwed/required - Csts: Y says she wants t be exempt frm csts, Y must ask curt t nt be respnsible fr csts. The further apart the relatinship, the mre likely curt will prtect lit rep frm csts. 3 rd party separated frm csts can als asked t be cmpensated fr respnsibility f being Next Friend. Y wanted cmpensatin, and likely rep f minr wuld als be cmpensated, as a third party. Generally the mre remved the lit rep is the less likely fr them t pay csts/same fr getting paid. Trust and Estate Prceedings Rule 2.1: An actin may be brught by r against a persnal representative r trustee withut naming any f the persns beneficially interested in the estate r trust. 8) The Crwn Interpretatin Act - Sectin 14: N enactment is binding n Her Majesty r affects Het Majesty r Her Majesty s rights r prergatives in any manner, unless the enactment expressly states that it binds Her Majesty 24

25 Unless an enactment specifically says it applies t Crwn, it des nt. S if yu want t knw if claim against the Crwn, r Crwn culd be party r affected, must see if statue applies t Crwn. If statute is silent, Crwn is NOT bund by law. Prceedings Against the Crwn Act - In prceedings against Crwn the Rules apply as if Crwn were a crpratin - Hwever, Crwn may refuse t prduce recrds r answer a questin if it wuld be injurius t the public interest - Cmmn law applies in all cases unless expressly verridden by stattue - Sectin 12: T name the Crwn in Alberta, must use: Her Majesty the Queen in Right f Alberta. Crwn Liability and Prceedings Act - See Canada Depsit Insurance Crp v Prisc Crwn fficers and emplyees cannt be cmpelled t prvide evidence. Canada Depsit Insurance Crp v Prisc Facts: Canadian Depsit Insurance Crp and Crwn in its wn right brught an actin against frmer directrs and fficers f the Nrthland Bank fr recvery f lsses sustained after the cllapse f this bank. This was an appeal fr an rder that they attend an examinatin f discvery. Issue: Can crwn fficers and emplyees be cmpelled t prvide evidence? Decisin: N Reasns: Just because Crwn waives immunity with respect t agreeing t prduce fficers and emplyees, such a vluntary waiver cannt be used t cmpel attendance f ther fficers f the Crwn. Class Prceedings & Representative Actins Class Prceedings Act: - When P s have small amunt f damage there may still be an ecnmy f scale t bring claim (reduce cst per persn) - Prduct liability claims cmmn - Benefit fr D: res judicata if class actin identified and advertised (give ntice, whether they have ntice r nt) t class then res judicata applies. - Act desn t require claim t same, just needs t be similar - Can file SC and then certify class actin - Can serve the SC, then certify - Sectin. 3: A class prceedings claim must be certified befre the actin can cntinue if it s nt certified, yu can t pursue the actin as a grup - s. 5(1): requirements fr SC in a class actin: The pleadings disclse a cause f actin There is an identifiable class f 2 r mre persns There is a cmmn issue The mst efficient way t prceed is a class prceeding There is a persn eligible t be appinted as a representative plaintiff wh, in the pinin f the Curt, will fairly and adequately represent the interests f the class, has prduced a plan fr the prceeding that sets ut a wrkable methd f advancing the prceeding n behalf f the class and f ntifying class members f the prceeding, and des nt have, in respect f the cmmn issues, an interest that is in cnflict with the interests f ther prspective class members. - s. 2(3)(a): 90 days t certify An applicatin under subsectin (2) must be made (a) within 90 days after (i) the day n which the statement f defence was served, r (ii)the day n which the time prescribed by the Rules f Curt fr service f the statement f defence expires withut its being served, whichever is the later, r (b) with the permissin f the Curt, within any ther time prescribed by the Curt. After certificatin, a ntice ges ut describing the injuries, and whever gets the ntice will be able t participate n ntice means they can t participate. Multi-jurisdictin prceedings Alberta put in a recent amendment which allws an actin t be brught in Alberta, even thugh sme claimants may live utside Alberta. - Rule 2.6: allws representative actin (nt in class prceedings act) generally used by a grup f defendants. Representative actins 25

26 Rule 2.6(1): If numerus persns have a cmmn interest in the subject f an intended claim, ne r mre f thse persns may make r be the subject f a claim r may be authrized by the Curt t defend n behalf f r fr the benefit f all. - (2) If a certificatin rder is btained under the Class Prceedings Act, an actin referred t in subrule (1) may be cntinued under that Act. Amendments t pleadings in class prceedings Rule 2.7: After a certificatin rder is made under the Class Prceedings Act, a party may amend a pleading nly with the Curt s permissin. Questining/Recrds f class and subclass members Rule 2.8(1): If under sectin 18(2) f the Class Prceedings Act the Curt requires a class member r subclass member t file and serve an affidavit f recrds, the Curt may d either r bth f the fllwing: a) limit the purpse and scpe f the recrds t be prduced and f questining; b) determine hw the evidence btained may be used. - (2) If a class member r subclass member is questined under sectin 18(2) f the Class Prceedings Act, the Curt may d either r bth f the fllwing: (a) limit the purpse and scpe f the questining; (b) determine hw the evidence btained may be used. Class prceedings practice and prcedure Rule 2.9: Despite any ther prvisin f these rules, the Curt may rder any practice and prcedure it cnsiders apprpriate fr a class prceeding under the Class Prceedings Act t achieve the bjects f that Act. Representatin Befre the Curt Self-Represented Litigants Rule 2.22: represented individual may represent themselves unless rules prvide therwise. Rule 2.23: They can receive sme assistance but any assistance they receive cannt vilate the Legal Prfessin Act (cannt have smene represent yu unless they are a lawyer) - (2) Withut limiting subrule (1), assistance may take the frm f (a) quiet suggestins, (b) nte-taking, (c) supprt, r (d) addressing the particular needs f a party. - (3) Despite subrule (1), n assistance may be permitted (a) that wuld cntravene sectin 106(1) f the Legal Prfessin Act, (b) if the assistance wuld r might be disruptive, r (c) if the assistance wuld nt meet the purpse and intentin f these rules. Rule 2.27: Allwed t retain a lawyer fr nly certain parts f yur case they wn t be a lawyer f recrd (limited retainer) - must infrm curt they are nly there fr specific purpse rally r by filing the terms f the retainer befre their appearance - Nt lawyer n recrd (cntrast with 2.24(2)) Rule 2.24(2): if there is a lawyer f recrd, a party CANNOT self-represent. If yu have a lawyer f recrd, yu can t switch back and frth t be self-rep. Lameman v Alberta Facts: Appellant asked judge t allw six English barristers t appear in curt and argue. Issue: can judge verrule Legal Prfessin Act? Reasns: LPA: 106(1) N persn shall, unless the persn is an active member f sciety practice.. Acts refers t advcacy and representatin fr anther, NOT t whether r hw that advcate is paid - Getting paid has nthing t d with it, it matters whether r nt yu are prviding advice n issues f law Chapman Estate v Ramjhn Facts: Ommen is c-executr f Chapman estate. Chapman befre death wn civil actin against Ramjhn. Ommen trying t persnally enfrce this judgment n behalf f estate withut assistance f cunsel. Issue: Can Ommen enfrce judgment? 26

27 Decisin: NO Reasns: Rule 2.22 says estate nt individual but separate legal entity. - Estate requires litigatin representatin t appear in curt - S. 106(2) LPA: n persn shall cmmence, carry n r defend an actin r prceeding befre a curt r judge n anther s behalf unless that persn is an active member f the Law Sciety f Alberta. 106(2) prvides exceptins, nne f which apply Alberta Ltd v Alberta Ltd Whether crprate appellant can be represented n the appeal by directrs wh are nt LSA member. - NO, nly individuals Ch 7: Pleadings General Rules What are pleadings? 1) Statement f Claim 2) Statement f Defence 3) Cunterclaim 4) Defence t a Cunterclaim 5) A reply t a Statement f Defence 6) A 3P Claim 7) A Defence t a 3P Claim 8) A Reply t a 3P Statement f Defence 9) A Respnse t a Request fr Particulars 10) A Respnse t an Order fr Particulars 5 Purpses f Pleadings: 1) Defines the questins between the parties 2) Ntifies the ppsing party f the case t be met 3) Frames the issues fr the curt 4) Prvides a clear recrd f the issue (res judicata) 5) Advcates psitin t the ppsing party and the curt Material Facts Pleading is what yu are alleging happened Spectrum- Material facts Particulars Evidence - Level f material facts that needs t be disclsed are relative t the general facts yu are pleading have t disclse what yu are alleging the P did. Pleading material facts but nt evidence - Particulars in between material facts and evidence. Pieces f inf that help flush ut material facts Particulars may als be required t ensure the respnding party has enugh inf t respnd - Evidence - facts that simply prve allegatins yu make Statement f Claim must set ut facts which, if true, entitle the P t legal relief claimed (yu need a cause f actin) - If SC fails this, D can mtin t strike Can strike all r part f claim Ex: If try t claim breach f K but plead des nt shw hw that K was breached then can strike. - Judge wrks frm premise that facts in SC are true Statement f Defence must set ut facts, that if true, prvide D with valid defence t the P s claim - If SD fails t d this the P may bring an applicatin t strike and get default judgment Example if there is invalid defence. General Requirements - Rule 3.25: Statement f claim MUST a) Be in Frm 10 b) State the claim and basis fr it c) State and specify the remedy sught d) Cmply with the rules abut pleadings Technical Rules - Rule 13.6 Requirements fr Pleadings 13.6(1) Must be succinct 27

28 Divided int cnsecutively numbered paras, with dates and numbers expressed as numerals unless wrds r a cmbinatin f bth wuld make meaning clearer 13.6(2) Pleadings must state all matters that are relevant (3 things) Rule 13.6(2)(a): material facts (but NOT the evidence) n which the party will rely Rule 13.6(2)(b): matters which defeats r raises a defence t the parties claim Example: Limitatins Act if D wants t sue this defence must plead it, therwise can t use it later. Rule 13.6(2)(c): the remedy claimed, including damages (bth type and amunt), csts, interest claimed via the Judgment Interest Act. Curt can t grant utside what is claimed (Paniccia Estate) but can amend (Mazepa) 13.6(3) A pleading must ALSO include a statement f any matter n which a party intends t rely that may take anther party by surprise including: (a) breach f trust; (b) duress; (c) estppel; (d) fraud; (e) illegality r invalidity f a cntract, including the grunds; (f) malice r ill will; (g) misrepresentatin; (h) payment; (i) perfrmance; (j) release; (k) undue influence; (l) vluntary assumptin f risk; (m) waiver; (n) lack f capacity r authrity; () willful default; (p) tender f payment; (q) a limitatin perid; (r) a prvisin f an enactment. - Rule 13.7: Yu must give particulars n anything in regards t a) breach f trust, b) fraud, c) misrepresentatin, d) willful default, e) undue influence, f) defamatin. - Rule 13.8: What yu may include: yu may include alternative claims and defenses that may raise a matter that cmmences statement f a pint f law and hw the facts apply t it a matter that arises after the cmmencement dcument was filed - Rule 13.10: Replies In reply t a SD, SD t Cunterclaims, SD 3p Claim Cannt bring up any new statements in a reply nly available thrugh amendments Evidence prvided must prve allegatins (facts, if true, wuld give rise t claim) Evidence prvided must a valid defence (fact, if true, wuld successfully defend against actin). Lax Kw alaams Indian Band v AG Canada Oppsing party must be left with n dubt what is claimed due t prcedural efficiency and natural justice Facts: Band claims right t fish and want t have general inquiry int custms f band in rder t characterize alleged right Issue: can they d this? Decisin: N must prvide mre detail in SC Reasns: SCC: must be able t knw when yu read the SC what the issues are. SC defines what is in issue! Pleading nt nly serve t define issues but gives ppsing parties fair ntice f case t meet, prvide bundaries and cntext fr effective pre-trial case mgmt., define extent f disclsure required, and set parameters f expert pinin. - D must be left in n dubt abut what is claimed Paniccia Estate v Tal A finding f liability and resulting damages against the D cannt stand where the liability and damages were nt plead in the SC (D can t be fund liable fr a reasn that the P didn t plead). 28

29 Facts: P wanted t claim damages fr lst pprtunity but they didn t plead it. Judge said culd have been damages awarded but because n ne asked fr it they cannt award it. Reasns: - judge cannt find liability n a thery nt pleaded - legal decisins are bund by the bundaries f the pleadings Ensures D have full knwledge f the case and can apprpriately defend themselves. Party can usually amend pleadings s lng as it des nt prejudice the ppsing party An bjectin t lack f a plea, made at trial, will ften lead t the issue f amending the pleadings. Mazepa v Embree A curt is free t amend pleadings r grant relief utside f the pleadings upn the cnsent f the parties r by the discretin f the curt. Well-established that trial r chambers judges shuld nt decide a case n a matter nt pleaded, and shuld nt grant remedies beynd the pleadings Hearing: even thugh spusal supprt nt plead, ther side agreed t mdify the pleadings and judge agreed. Appellant later argued that the absence f any mentin f spusal supprt in the riginal pleading meant that the riginal chambers judge had n jurisdictin t grant that frm f relief (39) HOWEVER, curt can amend pleadings any time (Rule 3.65) - Relief can smetimes be granted n cnditins nt necessary that the specific cnditins be pleaded - Parties can always cnsent (express r implied) t matters f prcedure, such as amendments t the pleadings, r the reslutin f the case n issue nt strictly plead. Ch 8: Interest Why have interest? - Curts want t ensure there is timely settlement f disputes and encurage settlements Judgment Interest Act: S.2(1), 2(3), 4(1), 4(2), 6(2) Tw types f judgment interest: - 1) Pre-Judgment interest Sectin 2(1) f the Judgment Interest Act: must award interest frm the date cause f actin arse t the time f judgment. Sectin 2(3): Curts can refuse t award pre-judgment interest, r vary it t be a higher r lwer rate. Tw types f damages in pre-judgment interest Pecuniary (lst incme, prperty damage, etc) Sectin 4(2) sets ut the prescribed rate in regulatins (changes every year, 1.05% fr 2015) Nn-Pecuniary (things like pain and suffering) Sectin 4(1) sets ut the rate at 4% - 2) Pst-Judgment Interest Sectin 6(2): judgment debt payable under a civil prceeding bears interest n the date it was payable until it is paid. Interest rate is the same as any ther debt same rate as pecuniary damages. 1.05% in 2015 There interest is the same fr bth pecuniary and nn-pecuniary - Sectin 2(2): There is n interest that is payable n punitive damages, n csts, fr mney paid under a frmal settlement ffer, r fr cnsent judgments. Aetna Insurance C v Canadian Surety C Curt will nt interfere with discretin f trial judge when awarding interest. 29

30 - Side Nte: If there s a significant alteratin t judgment n appeal (such as a part f the judgment being verturned) they may cnsider varying the interest Alberta Ltd v ExxnMbil Canada Ltd (ABQB) Cmpund Interest: Sectin 2(b) f the IJA precludes the awarding f cmpund interest, except in breach f cntract cases where the parties knew cmpund interest wuld ccur as damages. - can be awarded in equity if it can be prven entitlement t it utside r befre the statutry framewrk cam int play, and that the D gained such interest frm the mney imprperly withheld r the P wuld have gained such interest if the debt prperly was paid Delay: If P unreasnably delays filing their claim then the curt can exclude interest that wuld have been accumulated during the delay. - If delay was warranted r wasn t P s fault then interest may nt be reduced Fact that actin prceeded t slwly t trial is nt determinative f the issue whether P shuld frfeit prtin f pre-judgment interest, which it is prima facie entitled t receive. Fact that D had the use f pre-judgment interest mney thrughut is nt determinative. Ch 9: Venue Rule 3.2: Actin is started by filing at the apprpriate judicial centre determined under rule judicial centre is defined in appendix. Rule 3.3: tells yu where the apprpriate judicial centre is - Rule 3.3(1) a) apprpriate judicial centre is the clsest by rad t the residence r place f business f the parties; r b) if a single judicial centre cannt be determined then the party wh started the actin gets t chse. - Rule 3.3(2) if party carries n business in 1+ lcatin in AB then place f business that is nearest t the lcatin where the issue in the actin arse r was transacted - Rule 3.3(3) Despite the abve rules, the parties can always agree n a judicial centre - Appendix t rules lists 11 judicial centres: Edmntn, Calgary, Frt McMurray, Grande Prairie, Drumheller, Medicine Hate, Hintn, High Level Rule 3.5 Transfer f Judicial Centre - (a) Curt is satisfied that it wuld be unreasnable fr the actin t be carried n at that judicial centre - (b) Curt is satisfied the parties requested the transfer (2 parties must agree) Siver v Siver 2010 ABQB Facts: Actin started in Edmntn by husband, bth parties had retained cunsel in St. Albert. Husband nw wants mved t Frt McMuarry because bth live there and have business there but wife planning t mve t St. Albert. Issue: can they mve actin? Decisin: N, wife s reasn fr keeping in Edmntn is ratinal. Reasns: Apply natural justice - Filed accrding t Rule Test: A curt may rder actin mved when it is satisfied that it wuld be unreasnable t cntinue at current lcatin, r where the parties cnsent. - An unreasnable decisin t cntinue the prceedings in ne judicial district is ne which in the main, is nt supprted by any reasns that can stand up t a smewhat prbing examinatin In ther wrds, unreasnable decisin is ne that has n lgical grunding, it is nt a decisin which is pen t dispute, it is nt necessarily there best, r smarter, r cheapest decisin. It is a decisin which desn t make any sense. 30

31 Ch 10: Jinder f Parties and Causes f Actin Jining Parties and Claims Res Judicata - Preventing smething frm being litigated twice - In res judicata if party sues anther party and the matter gets reslved then the lsing party cannt sue again either fr the same cause f actin r different cause f actin that relates t the same matter Gal is t prvide clsure Must plead Res Judicata, can be an abslute bar t P s actin. Three requirements fr test: 1) Same parties befre the curt can include assignees and successr parties 2) Issue r matter must have direct r substantial relatin t earlier actin a. Can t be smething that was just tuched n 3) Matter has t be final adjudicatin a. If parties agreed t discntinue actin, nt a final decisin by judge b. If actin dismissed r struck, nt a final decisin frm judge c. If settlement withut cnsent judgment its nt final. Tw types f Res Judicata - 1) Cause f Actin Estppel Claim adjudicated between 2 r mre parties and 2 nd actin brught between same parties that is smehw related with first claim. If have same cause f actin in bth actins, the secnd actin must fail Cause f actin cmbinatin f facts that will give rise t seek sme kind f judicial reslutin r relief If P wins then actin is lst, if P lses then actin is barred Cahn v Franks Cause f Actin Estppel Facts: P nly claimed prperty damage fr care in 1965, mnth later wanted t amend claim fr persnal injury. D argued that he s trying t bring a new claim and can t because limitatin perid has expired, and nt tw distinct causes f actin. Issue: can this be amended r it is cause f actin estppel? Decisin: Can be amended Reasns: Single cause f actin f negligence, s persnal injury damages that result frm that cause f actin shuld be dealt with at same time as prperty damage. Bth damages arise frm same cause f actin. - 2) Issue Estppel Secnd case des nt invlve same cause f actin BUT issues are related t thse decided in the first case. Different than stare decisis it s mre discretinary, arguable as t whether r nt the earlier case applies. Angle v Minister f Natinal Revenue Issue Estppel Facts: Angle examined n incme tax, questin arises during assessment whether wes mney t subsidiary cmpanies. New prceeding questin is whether she wes Transwrld Transprt? Claimed issue estppel, that issue was already decided. Decisin: N, was new issue Reasns: Test Same party? Same issue? Final determinatin? Curt said nt same issue, prir actin was incme tax, nw asking whether we particular cmpany, nt fr purpses f assessing tax. Penner v Niagara Issue Estppel Facts: P arrested after being disruptive in ON curtrm. Filed cmplaint against plice ffers saying arrest unlawful, als started civil actin against fficers, Chief, and Niagara plice service. In disciplinary hearing tribunal finds them nt guilty. Officers applied t have suit dismissed Issue: Is this Issue Estppel? Decisin: N Reasns: Generally yu can apply issue estppel t these cases but lk at whether initial prcess was unfair r whether it wuld be unfair t use results f first prcess t decide a subsequent actin. 31

32 Plice disciplinary hearing is NOT precluded frm issue estppel BUT the curt will lk at what is fair and it may be unfair t sue the result frm the prir hearing. - Unfairness f applying issue estppel may arise frm prir prceedings, even if fair and prper it may be unfair t use result f that prcess t preclude a subsequent case. 9 - Is part f curts inherent jurisdictin t cntrl the prcedures - Flexible pwers - If yu can t use Res Judicata because dn t meet specific rules may be able t use abuse f prcess (Camec Case) - Can als apply in cases f delay - Curt may decide t use abuse f prcess t stp duplicate r subsequent litigatin Similar t res judicata but withut strict 3 part test. Inherent pwer f S.96 Curts) Rule 3.68: allws the curt t rder that a claim be struck r an actin be stayed Rule 3.68(2): refers t cnditins under which rder can be applied under abuse f prcess. 3.68(2)(d) abuse f prcess Camec Crp v Insurance C f State f Pennsylvania Curt may decide t use abuse f prcess t stp duplicate r subsequent litigatin, similar t res judicata but withut strict 3 part test, it s mre flexible. Inherent pwer f 2.96 curts. Abuse f prcess is inherent dctrine, can be used when can t meet requirements f estppel by res judicata Dctrine nt s much cncerned with parties and their interests as it cncentrates n the integrity f the adjudicative prcess Sears Canada Inc v C&S Interir Designs Ltd Lks at Rule 3.68 Facts: Sears filed identical claim in ON and AB, D asked AB actin dismissed r stayed and nly prceed in ON. Sears argues claim shuld prceed in AB. Issue: Can claim be struck under 3.68? Decisin: Just because tw actins in tw jurisdictins des nt mean it will aut fail. N res judicata because n final decisin. Reasns: - D can try t get actin stayed r claim struck but whether curt will d it depends n facts (2) refers t cnditins under which rder can be applied under abuse f prcess (2)(d) cmmencement dcuments r pleading cnstitutes an abuse f prcess filing in tw lcatins must be an abuse f prcess t have ne stayed. - just because yu ve started similar actins in 2 jurisdictins des nt necessarily mean abuse f prcess and des nt autmatically result in a stay Amendment f Pleadings 32

33 STEP A: CLAIM ARISES Limitatin Act: 2 years r 10 years t file SOC STEP B: STATEMENT OF CLAIM Rule 3.26: Plaintiff has 1 year t serve SOC n defendant after filing STEP C: STATEMENT OF DEFENCE Rule 3.0 & 3.31: Defendant has 20 days after being served t serve Plaintiff in AB STEP D: REPLY Rule 3.33: Plaintiff must reply t defence within 10 days after service Rule 13.5 Variatin f Time Perids (Can t use t change time f service fr SC under 3.26(3)) (1) Unless the Curt therwise rders r a rule therwise prvides, the parties may agree t extend any time perid specified in these rules. (2) The Curt may, unless a rule therwise prvides, stay, extend r shrten a time perid that is (a) Specified in these rules, (b) Specified in an rder r judgment, r (c) Agreed n by the parties. (3) The rder t extend r shrten a time perid may be made whether r nt the perid has expired. Amending Pleadings Three stages - 1) Plaintiff is allwed t include any allegatins that disclse a cause f actin withut having t prduce any evidence in supprt f the pleading when an actin is cmmenced - 2) An amendment can be made any number f times withut cnsent r permissin f the ther parties and withut having t prduce any evidence in supprt befre the pleadings clse (Rule 3.62(1)(a)). - 3) If any amendments are t be made after the pleadings clse, they must be accmpanied by either a cnsent rder r the permissin f the Curt. Evidence in supprt f the allegatin wuld be required (Rules 3.62(1)(c) and 3.65). 1. Ask: When are yu making yur amendment? a. Befre pleadings clse? b. After pleadings clse c. After the limitatins perid has expired? 2. Ask: What type f amendment d yu want t make? a. Adding, remving substituting r crrecting name f a party? b. Any ther amendment: substantive matters, like the amunt f damages, additinal causes f actin A. Befre Pleadings Clse Rule 3.62(1)(a): can amend at any time fr any reasn (party r therwise) withut curts permissin (befre pleadings clse) Includes amendments t add, remve, substitute, r crrect the party s name Rule 3.65: can chse t get permissin f curt (befre pleadings clse) Rule 3.62(1)(c): with the agreement f the parties filed with the curt yu can amend. 33

34 B. After Pleadings Clse Rule 3.74(2) (add r substitute party): special rules fr adding, substituting, r remving the name f a party. On applicatin the curt may rder that a persn be added, remved r substituted as a party t an actin if: (a) Adding r substituting P: If ging t add r substitute a P must make sure the applicatin is made by a persn r a party. Must have the cnsent f the party yu want t add in. (b) T remve, add, substitute, r crrect a name f the party, nly has t be party wh makes the applicatin and the curt must be satisfied it warrants changing (Can be either P r D) Rule 3.74(3): Curt will nt make an rder if prejudice will result which cannt be cmpensated by csts Rule 3.65 (ther amendment): fr nn-party amendments, need the permissin f the curt Des it identify the real questin and issue between the parties? (nt in rules, set ut in case law, it relates back t Rule 1.2). The classic rules fr amendments says yu can d it at ALL times s lng as yu fllw the test, hwever there are fur exceptins: (A) It causes serius prejudice t n the ppsing party that cannt be remedied in cst (B) If the amendment is hpeless See Attilla (C) If amendment includes a party f cause f actin that cntravenes the limitatin perid (Limitatins Act) Amending pleadings after limitatins expiratin see limitatins act sectin 6 (abve) (D) If smething has NOT been riginally plead in bad faith Rule 3.62(1)(c) (any type f amendment): regardless f type, if yu can get agreement f the parties then yu can amend. C. After Expiratin f Limitatin Perid See Limitatins Act sectin 6 (abve) Can add new party but nly if prceeding previusly cmmenced within Limitatins perid. New claim can be added directly r indirectly. S 6 creates different types f rules fr different types f amendments. S 6(2) n change f party. E.g. yu re changing smething else, like adding a new claim. S 6(2) has a relatinship requirement- claim must relate t the cnduct, transactin, r events described in the riginal pleading. S 6(3) change f claimant- requires (1) relatinship requirement (2) n prejudice t D (limitatin + service time; general rule is 1 year frm time yu filed SC but can be extended if n prejudice) (3) needed t determine riginal claim; mst difficult part t meet. May use 6(3) where yu spelled the name f D wrng. Cannt use 6(3) where yu re trying t add in a true stranger S 6(4)- Change f D. (1) relatinship requirement (2) n prejudice t D (limitatin + service time) Can add in mre Ds s lng as there was sme knwledge f the claim Rule 3.62(2): Amended pleading must be filed and served within 10 days after the date f filing Rule 3.66: csts f amendment always brn by party that s filing amendment exceptin if (a) it respnds t amendments filed A party may, withut curts permissin, amend that party s pleading befre f after pleadings clse if the amended pleading is: - a) a statement f defence respnding t an amended statement f claim, an amended cunterclaim, r an amended 3P claim, r - b) reply t an amended statement f defence, amended statement f defence t an amended cunterclaim, r amended statement f defence t an amended 3P claim. Rule 3.64 Time Limit fr Applicatin t Disallw Amendment t Pleading - (1) On applicatin, curt may disallw all r part f an amendment t a pleading - (2) Applicatin must be made within 10 days after service n the applicant f the amended pleading Rule 3.67(2) Pleadings Clse When - (a) A reply is filed and served by a plaintiff, plaintiff-by-cunterclaim r third party plaintiff, OR - (b) At the time fr filing and serving a reply expires *Whichever is earlier Attila Dgan Cnstructin and Installatin C Inc v Amec Americas Ltd Deals with hpeless amendment lw threshld but must bring sme evidence fr amendment 34

35 Facts: Partners ging t enter venture in Africa. They amend agreement t include a clause that Attila agrees nt t make any claims against AMEC fr delays. Atilla eventually brings claims against AMEC abut K and delays and AMEC cunterclaims. Attila started first actin 2002, 2003 they amended their claims t include duress. Issue: Shuld amendment be allwed? Held: S far as amendments g, this amendment is hpeless, they nted that evidentiary standard fr amendments is lw but fr the test DOES NOT preclude weighing f tendered evidence the judge is entitled t give an assessment in determining if threshld is met, in ther wrds, evidence is imprtant. NOTE: Mlzan says peple ften lse because they d nt bring frward any evidence fr amendments. Pff v Great Nrthern Data Supplies Facts: lng term disability frm emplyer fr strke. Insurance cmpany payments were much less than shuld have been, emplyer gave wrng inf. Claimed against Alberta C, NewC administered it, named wrng party and can t prceed. Limitatin perid was said t have expired. Issue: Can yu amend SC t name NewC s claim can prceed? Held: Yes Reasns: As per 6(4) Alberta C and NewC shared directrs, s knwledge is there and the curt said yu knew abut this and nt prejudiced by being added as party. Burden n claimant t shw relatinship between new claim and ld claim Claimant must als shw amendment needed t determine riginal claim Up t D t prve they didn t have sufficient knwledge during the limitatin perid, s they are nw prejudiced if amendment dne. The burden is n the party resisting the amendment t shw that it wuld suffer nn-cmpensable prejudice were the amendment t be allwed. (72) Here, D was unsuccessful in shwing they wuld be prejudiced as they had knwledge f the claim all alng Jining and Separating Claims and Parties Difference between Actin vs. Claim - Claim where P seeks remedy - Actin a vehicle fr making claim JOINING CLAIMS AND PARTIES Rules fr jining parties and claims liberal, trying t make litigatin mre effective and cst efficient When lking t JOIN Plaintiffs cnsider: - Liability fr csts - Whether c-plaintiffs wuld have cnflicts f interest - Realize that the mre P s yu have the mre questining will be required. - IF class prceeding, what if yu dn t agree with the representative P? - Multiple issues f law and fact When lking t JOIN Defendants cnsider: - Principle f res judicata - Whatever judgment cmes ut des nt apply t smene wh was nt a D. Jinder jining claims - can apply if have multiple claims against ne D (trt and cntract) - OR can have multiple P s, multiple Ds, r bth Reasns fr Jinder - When yu bring an actin yu want it t be a final decisin - If dn t capture all the P r D then nt ging t be bund by the decisin Ex: If A sues B and curt decides injuries weren t caused by B, think caused by C (nt party t actin), nw between A and B case is decided. A and C has nthing t stp C frm nw claiming n it was B and then res judicata applies. Yu want t make sure nt leaving drs p Rule 3.69: Jining Claim (tw r mre claims but want t jin them int ne trial) 35

36 - (1) can jin tw r mre claims in an actin unless curt therwise rders Ex. can have battery and negligence in same actin - (2) Parties can be sued r sue in different capacities in the same actin If smene dies, persn left can be bth litigatin rep fr estate fr lss f incme and himself fr grief. - (3) If mre than ne D they dn t need t have an interest in (a) All remedies claimed; r D may nly have interest in part f the claim, pssibly with the breach f K but nt with negligence (b) In each claim included in the actin can have P with varying types f injuries, nt all D s are respnsible fr all injuries Rule 3.70: Parties jining t bring actin (tw re mre parties can jin t bring an actin and P can make claim against tw r mre parties as Ds) - Applies t tw r mre parties bringing an actin. In such an actin the claim has 3 grunds: (a) if want t have mre parties invlved in n actin must shw their claim arises frm same transactin, ccurrence r series f transactin (b) cmmn questin f law r fact t bth parties )c) curt has t permit them t cme tgether t bring this actin. - Ex. Car accident, passenger is jined tgether but at the same time yu will als name the D, nw yu want t add the municipality, this rule allws yu t d that. - If yu have mre than ne D they d nt have t all have the same interest r interest in the same remedy (Rule 3.70(2)) SEPERATING CLAIMS (Egg Lake Farms) Yu may have multiple prcesses within the same hearing, trial, etc. Curt can separate the claims f the parties and this rule talks abut the grunds t d that. Rule 3.71(1): Where 2 r mre claims are made in the same actin the curt can separate claims r can separate parties - (a) It ccurs when jining wuld unduly cmplicate r delay the actin, - (b) r keeping them tgether wuld cause undue prejudice t ne party. Rule 3.71(2): in such a case the curt can: - (a) separate trials, hearings, applicatins - (b) rder ne r mre f the claims t be asserted in anther actin - (c) rder a cst award if a party has t attend fr part f a prceeding that des nt actually apply t them - (d) can excuse party fr attending part f the trial Egg Lake Farms Test applied is real likelihd f saving time and expense the curt will cnsider the fllwing factrs: - Cmmn claims disputes and relatinships between parties? - Wuld severance save time and resurces in pre-trial prcedures? - Wuld time f trial be reduced? - Will party be severely prejudiced? - Whether ne actin is at a mre advanced stage than the ther? CONSOLIDATING CLAIMS - When 2 actins that have already been started separately can be merged Rule 3.72: Can ask curt t either cnslidate the actins r trials - (1) The curt may rder ne r mre f the fllwing: (a) That 2+ claims r actins be cnslidated (b) That 2+ claims r actins be tried at the same time r ne after the ther. (c) That 1+ claims r actins be stayed until anther claim r actin is determined. (d) That a claim be asserted as a cunterclaim in anther actin. - (2) The curt can make this rder fr any reasn it cnsiders apprpriate, including where 2+ claims r actins: (a) Have a cmmn questin f law r fact, OR (b) Arise ut f the same transactin. Rule 3.72(1)(a) (defendant): Curt can cnslidate the claims r the actin. If an actin is cnslidated, it basically melds int ne actin - that means yu have ne set f pleadings, ne set f questining, ne judgment, ne bill f csts. 36

37 Rule 3.72(1)(b) (plaintiff): The actins can be tried tgether, but nt cnslidated: separate pleadings, separate questining, separate judgments, and separate bill f csts. Judge will require them t be heard ne after ther, s they're cnsecutive, but everything remains separate. When actins cnslidated they cntinue as if cmpletely ne actin frm beginning - One set f pleadings, ne set f questining, ne bill f csts. Difference between cnslidating actins and just trying them tgether - If actins nly tried tgether then they have separate pleadings, judgment, and separate bills (cmbined if cnslidated) NOTE: Mlzan says technically same as jining claims, Curts have said they prefer t cnslidate sner in prceedings rather than later. Egg Lake Farms Ltd v Alberta (Minister f Envirnment and Sustainable Resurce Develpment) Facts: Weir built t maintain water levels in lake. Was built 4 inches t high and flds lands f P wh wants cmpensatin under Exprpriatin Act. Separately P amends their SC t include trt claims. Alberta wants t sever tw claims (mre $$$ if nt). Held: Curt felt t much factual verlap and severance shuld nt be allwed. Reasns: Curt says severance is an exceptin remedy and test applied is real likelihd f saving time and expense the curt will cnsider the fllwing factrs: - Are there cmmn claims disputes and relatinships between parties? fr us it s the same parties - Wuld severance save time and resurces in pre-trial prcedures? Curt says n - Wuld time f trial be reduced? S when tgether there is nthing t say it will save time - Will party be severely prejudiced? D says it will be, it may be t the slicitr/client csts but curt says yu will have t keep very careful recrds, s the trt desn t get charged at the higher level - Whether ne actin is at a mre advanced stage than the ther? Curt says there is n evidence t supprt this - Wuld severance delay the trial f ne actin? Curt says if we d sever it will cause delay. INCORRECT PARTIES ADDED TO CLAIM - Rule 3.73: Saving Prvisin Incrrect parties nt fatal t actins (1) N claim r actin fails slely because: (a) 2+ parties jin in an actin when they shuldn t have (b) 2+ parties d nt jin in an actin when they culd have r shuld have. (c) A party was incrrectly named as a party r was incrrectly mitted (2) If (1) applies, a judgment entered in respect f the actin is withut prejudice t the rights f persns wh were nt parties t the actin Ex: The judgment between A and B desn t affect C, where A culd have brught an actin against C. Parties Added n Own Mtin/Interveners Rule 2.10: On applicatin curt may grant status t a persn t intervene in actin subject t terms and cnditins and rights and privileges specified by the curt (nte: regular party cst rules d nt apply t interveners) University f Alberta v Alberta (Infrmatin and Privacy Cmmissiner) Access t infrmatin case between dctr and U f A Staff assciatin at ASSUA lks fr intervener status, curt applies cmmn law test - 1) Characterize the subject matter and prceeding - 2) Determine the interest f the intervener A) Will they be affected by the decisin? B) D they have particular expertise OR special insight? C) D they have interests that will nt be prtected by ne f the existing parties? - NOTE: interveners cannt bring up new issues r facts. Yu can nly speak t the issues raised by the parties. 37

38 Ch 11: Service Purpse f a Service Cncept f natural justice: first rule f natural justice is prviding ntice Parties must be given ntice f existence and basis f the actin Need t prvide ntice required and need t be able t prve that yu gave ntice Butkvksy v Dnahue P, having prperly served the D within the jurisdictins, is prima facie entitled t cntinue the prceedings in this jurisdictin. 3 main cncepts f service: Hw d yu serve the dcuments? What is the date f effective service? Hw d yu prvide the evidence f prper service? Meant t satisfy natural justice first rule f natural justice is t prvide ntice - parties must be given ntice f existence and basis f the actin - need t prvide ntice required and need t be able t prve that yu gave ntice Times fr Services - Rule 3.26: SC must be served within ne year after filed - Rule 13.5: Allws parties t be able t agree t extend any time perid in the rules Cannt extend if particular rule prhibits can' Rule 3.26(3) cannt agree t extend ne year limit fr serving a SC May be particular rules which prhibit yu frm extending time limit Cannt extend if curt prhibits - Rule 3.28: (1) If nt served within ne year after filed then n further prceedings may be taken against the D (2) If statement served n any D in time is unaffected by the failure t serve any ther D in time Hw d yu service the Dcument? - Cmmencement Dcuments: rules 11.3, 11.4, 11.5(1), 11.6, 11.7, 11.9, 11.10, 11.11, and SC, 3 rd party claim, ntice t party (underline = nes n slide) - General Rule - Rule 11.4: all dcuments that cmmence an actin must be served in accrdance with these rules r anther enactment. - Service by Agreement (K) - Rule 11.3: if entered a K parties can agree hw they want service - On Individuals (2.12(2), , 11.12, 11.18) Rule 11.5(1): sets ut hw yu serve individual (a) Persnal Service (b) Recrded Mail [defined in appendix frm f dcument delivery either by mail r by curier, persn must sign acknwledgment f receipt] Rule 11.5(2) Service is effected: (a) if dcument is left with individual, n date it is left; OR (b) dcument is sent by recrded mail the date this acknwledgement f receipt is signed by individual t whm it is addressed Rule 11.6/7: if serving a lit rep can d s in persn r by persnal mail Service is effected is same Rule 2.12 (2) Service f a Litigatin Representative If smene has a lit representative The lit repres must be served nt the persn (A) 38

39 Service n the persn is ineffective (B) Rule 11.8: Service n Missing Persns Rule 11.12: Services n persns using anther name Claim against a single individual carrying n business, r perating r engaged in an activity under anther name Rule 11.18: Service n self-represented litigants - On Crpratins (11.4, 11.9, 11.13) Rule 11.9: if serving crpratin, yu leave it with an fficer wh appears t have management r cntrl f crp. Culd leave it at the principal place f business f the crpratin, r culd send by mail t their recrded principal place f business Service is effected is same Rule 11.13: Service n a Crpratin using anther name - Service n Firms/Partnerships (11.4, 11.10, 11.11) Rule 11.10: if limited partnership, serve general partner r smene wh appears t have management/cntrl f the business, r registered mail Service is effected is same Rule 11.11: If serving t partnerships ther than LLP, can serve general partner, smene wh wns, r registered mail t place f business Service is effected is same - Service n Statutry r Other Entities (11.14) Rule 11.14: May als be able t use the crprate service rules fr Statutry and ther entities Special Circumstances Rule 11.15: Service n a persn that has prvided a specific address fr service Rule 11.16: Service n a Lawyer Rule 11.17: Service n a lawyer f recrd. Leave a cpy with lawyer, r at address the lawyer has specified, r by recrded mail Rule 11.9: Business Representative f Absent Party Service f Nn-Cmmencement Dcuments in Alberta Other dcument (SD, reply, defence t 3 rd party claim, respnse t particulars) which dn t have anther party r dn t start the actin (nn-cmmencement dcuments): use Rule 11:20 Fur Methds fr Serving under Rule (1) Culd fllw same methd f service as dne fr cmmencement dcuments - (2) Rule 11.21: culd use an electrnic agent electrnic transactin act defines electrnic agent = methd which allw transmissin f data and device cnfirms yu have transmitted it (e.g. fax), acknwledgement receipt f device must be n service is effected when cnfirmatin f receipt received - (3) Rule 11.22: Recrded mail service is effective 7 days after the mail was sent r acknwledgement f receipt is signed. - (4) Rule 11.3: Parties agree t a methd Service utside f Alberta but in Canada - Rule 11.25(1): Real and substantial cnnectin Cmmencement dcument may be served utside f Alberta and in Canada nly if: Real and substantial cnnectin exists between AB and the facts n which claim in actin is based. AND Cmmencement dcument disclses the facts in supprt and specifically refers t the grunds fr the service f the dcument utside f AB and in Canada. Nte: Facts supprting this cnnectin must in the cmmencement dcument. Mrgaurd Investments v Desavye SCC 1997 BIG CHANGE TO CL Curts in ne prvince shuld give full faith and credit t anther prvince when it s enfrcing the judgment f anther prvince. Outlined the Real and Substantial Cnnectin test. If passes, n service ex-juris (utside jurisdictin) applicatin is needed. Facts: P granted mrtgage in AB t defendant crp, D defaulted n mrtgage and mved t BC. P freclsed n land and received a judgment against D fr the remaining mney wed (Culd nly d this because D was crp, fr individuals in AB it s either land r cash, nt bth) 39

40 - Nte: befre this case, curt culd nly have jurisdictin ver D if D was served in AB r cnsented t it. Otherwise service ex-juris required curt rder. Metcalfe v Yamaha Pwer Mtr Prducts ABCA 2012 Granting service utside AB is nt slely cncerned with the test f whether a dcument was brught r likely t be brught t the attentin f a freign D service ex juris is funded upn a decisin t extend the curt s jurisdictin beynd its wn territry (90) Service Outside f Canada (See Club Resrts) (2): Real and substantial cnnectin A cmmencement dcument may be served utside Canada nly if: Real and substantial cnnectin exists between AB and the facts n which the claim in an actin is based, AND, The cmmencement dcument sets ut the grunds fr service f the dcument utside Canada, OR The curt permits service utside f Canada. - Nte: under CL, jurisdictin f curt depended where curt resided, D has t be served within territry. Curt culd take jurisdictin if D cnsented t it. If either didn t happen curt culd d nthing. Real and Substantial Cnnectin (3): real and substantial cnnectin is presumed t exist when (nn-exhaustive list) Claim relates t AB land Defendant resides in AB Claim relates t AB cntract r alleged cntract Claim relates t administratin f an estate Claim relates t AB law where deceased was rdinarily resident in AB Claim relates t trt cmmitted in AB Defendant is party t actin brught against Claim relates t enfrcement f security against anther persn wh was served in AB prperty ther than land in AB Trustee in AB relating t a trust in AB Claim relates t injunctin in AB Breach f equitable duty in AB Frum Nn Cnveniens (service utside Alberta r Canada) - CL cncept - Discretinary pwer that allws curts t dismiss a case where anther curt, r frum, is much better suited t hear the case. - Allws curt t decline t hear when it is clearly mre apprpriate elsewhere - Discurages P frm starting actins in jurisdictins that have n real cnnectin t the actin - D can bring this applicatin in either jurisdictin as a defence Club Resrts Ltd v Van Breda Facts: Tw P s injured at resrt in Cuba, bth want t bring actin in ON fr breach f K and negligence. D carried n business in ON but Resrt challenges this, wants curt t dismiss actin fr lack f real and substantial cnnectin OR t decline jurisdictin under basis f frum nn Cnveniens (that ON isn t mst cnvenient place t carry ut actin). Issue: Is there real and substantial cnnectin (Rule 11.25(3) and, if there is jurisdictin, shuld they exercise jurisdictin r stay it under frum nn cnvenience. Held: Real and substantial cnnectin, Frum Nn Cnveniens desn t apply. Reasns: - If any f 11.25(3) is present a cnnectin is presumed t exist (rebuttable presumptin) - Trt was in Cuba, it breached K made in ON s real and substantial cnnectin - FNC claim, is based n recgnitin that CL curts retains residual pwer t decline t exercise it s jurisdictin in apprpriate but limited circs t assure fairness t the parties and the efficient reslutin f a dispute. Other jurisdictin must clearly be mre apprpriate 40

41 What date was service Effective n? n the date the dcument is left with the individual, crpratin, partnership, etc, r n the date the acknwledgement f receipt is signed fr recrded mail Prviding Evidence f Prper Service - Rule 11.30: Prving Service f Dcuments (1) Service dcuments in AB and service dcuments ther than cmmencement dcuments utside AB may be prved (a) By affidavit utlining i) persn was served ii) methd f service iii) date time and place f service (b) By an acknwledgement r acceptance f service in writing by ther party (c) By an rder validating service under rule (2) Service f a cmmencement dcument utside AB may be prved in the same way as abve, but the affidavit must state the real and substantial cnnectin between AB and the claim Overcming Service Prblems Substitutinal Service Rule 11.28: Substitutatinal service where service inside r utside AB impractical - (2) Seek a curt rder fr substitutinal service by setting the fllwing ut in affidavit (a) why service is impractical, AND (b) prpse an alternative methd f service, AND (c) state why the alternative methd is likely t bring the dcument t the persn s attentin. - (4) Service is effected n the date specified in the rder - Ex. using Facebk is valid, but yu must meet three req. R v Gdhart Crwn tired t service an appeal but culdn t lcate persn. Cnstable made affidavit in supprt t get substitutinal rder. Affidavit cntained misreps and false statements. Said made three phne calls but nly tw made and dude came t Edmntn t g t schl. Misinfrmatin meant that substitutinal rder was verturned shwing that even when yu get an rder there is always ptential fr D t challenge it. Dispensing with Service Rule 11.29: Order t dispense with Service if Service is impractical r impssible - (2) Need affidavit stating (a) service is impractical r impssible and reasnable effrts have been exhausted, AND (b) Little likelihd that the issue will be disputed, AND (c) N ther methd f service is apparently available - NOTE: if yu get an rder dispensing with service and get a default judgment it is easier fr the D t get it set aside if they shw up and cntest it Validating Service Rule 11.27: Validating Service - (1)Curt can apprve anther manner f service if they are satisfied that the methd f service brught r is likely t have brught the dcument t the attentin f the persn being served (test is blded) - (2) may validate if satisfied persn wuld have been served r received ntice if they had nt evaded service. - (3) effected n the date f the Curt rder. - Nte: service is effected n the date f the rder Alberta Ltd v Redecpp May be reasns when negtiating that may nt serve SC in ne year. Here sent a cpy and desn t cnstitute service but when a year expired realized there s a prblem (rule 3.28 says claim is expired). Bring applicatin t validate service claiming they had served. Issue: Can service be substituted in this case? Decisins: N 41

42 Reasns: Curt lays ut service nt just abut bringing ntice but als knwledge legal rights are being affected. Curt said difference between affecting smene s rights versus prviding them with a curtesy cpy. Setting Aside Service Rule 11.31: A D can claim that service was imprper and then can strike the prf f service and require yu t start all ver again. - A defendant may apply t the Curt t set aside (a) service f a cmmencement dcument,(b) an rder fr substitutinal service f a cmmencement dcument, r (c) an rder dispensing with service f a cmmencement dcument, nly befre the defendant files a statement f defence r a demand fr ntice. Ch 12: Renewal f Statement f Claim Time fr service f statement f claim 3.26(1): A statement f claim must be served n the defendant within ne year after the date that the statement f claim is filed unless the Curt, n applicatin filed befre the ne-year time limit expires, grants an extensin f time fr service. Rule 3.26(2): The extensin f time fr service under this rule must nt exceed 3 mnths. Extensin f time fr service 3.27(1): The Curt may, at any time, grant an extensin f time fr service f a statement f claim in any f the fllwing circumstances: - where unusual circs apply - (a) If D r smene n behalf f D leads P (r lawyer) t reasnably believe and rely n the belief that: (i) the defendant has been served, (ii) liability is nt r will nt be cntested, r (iii) a time limit r any time perid relating t the actin will nt be relied n r will be waived; - (b) if an rder fr substitutinal service, an rder dispensing with service r an rder validating service is set aside; - (c) Special r extrardinary circumstances exist resulting slely frm the defendant s cnduct r frm the cnduct f a persn wh is nt a party t the actin (Brusseau) 3.27 (2):If time is extended under (1) n further extensin can be granted under this rule. Rule 13.5 des nt apply unless there are new circumstances. This is up t the curt t decide. Brusseau v Janz Estate 3.27(1)(a)(i/ii) Gt int car accident, P cmplained f chrnic pain and insurer understd culd be significant delay, n liability defence was even raised. Determining special circs under 3.27(1)(c) Curt shuld - a) Aim t eliminate prcrastinatin and delay in litigatin - b) cnsider whether there is any prejudice t any f the parties as a result f the limitatin issue - c) Determine if the special r extrardinary circs result slely frm the D s cnduct r frm the cnduct f a persn wh is nt a party t the actin; and - d) strike an apprpriate balance f the interests f parties in rder t achieve the mst justice with the least injustice McGwan v Lang 3.27(1)(c) Facts: Lawyer dealing with adjuster, adjuster made statement indicating might have t prvide SD. Lead lawyer t believe that service was OK but lawyer didn t actually serve the D. Curt fund this is exceptinal circs. Appeal frm Master wh granted extensin f time t serve SC under 3.27(1)(c). Chambers judge verturned, said wasn t careful and neglected t serve SC. - Rule has 2 steps 1) whether special r extrardinary circs exist 2) whether its apprpriate t exercise curts discretin t extend time fr service Hinged n fact that P lawyer lulled int ntin service was k. Hwever, Judge said nt careful enugh (n limitatin date set in file s diary system), als suggests mre difficult t apply nce time is up. 42

43 Effect f nt serving statement f claim in time Rule 3.28: If a statement f claim is nt served n a defendant within the time r extended time fr service, - (a) n further prceeding may be taken in the actin against the D wh was nt served in time, AND - (b) A SC served n any D in time is unaffected by the failure t serve any ther D in time. have this at the tip f yur tngue Rule 13.5 Variatin f Time Perids (Can t use t change time f service fr SOC under 3.26(3)) (1) Unless the Curt therwise rders r a rule therwise prvides, the parties may agree t extend any time perid specified in these rules. (2) The Curt may, unless a rule therwise prvides, stay, extend r shrten a time perid that is Specified in these rules, Specified in an rder r judgment, r Agreed n by the parties. What t d if yu think yu ve failed t serve - get int curt fr rder fr extensin - If passed the date see if 3.27 applies - See if still within limitatin perid If s file new SC - IF yu can t d anything call law sciety will be cvered thrugh insurance Ch 13: Particulars What happens if P des nt set ut r prvide particular material facts? - Curt can rder any party t prvide better and further particulars Particulars fall int pleadings, like SC. When yu plead smething yu are nw ging t be bund by it. Why particulars are imprtant: - Gives ntice t ther party - Prevent surprise, make sure litigatin is pen, fair. - Allws parties t prepare fr trial - Defines the real issues in dispute If P desn t give sufficient particulars D has tw ptins - 1) Applicatin fr further and better particulars Rule ) Applicatin t strike the claim (all r part) n grunds that it des nt disclse a reasnable cause f actin under 3.68(2)(b) What is Required in Pleadings Rule Must state facts upn which party relies - If nt enugh detail D has ptin t strike r demand further/better particulars Rule 3.61 Bring an Applicatin fr Further and Better Particulars - (1) Parties can request particulars relating t anything in the pleadings - (2) If requesting party requests particulars and there is n sufficient respnse WITHIN 10 DAYS the requesting party may apply t the curt fr an rder Parties can agree t vary the 10 days under Rule (3) The curt rder will specify a time within which the rder is t be cmplied with - (4) Requests fr particulars DO NOT affect ther bligatins t file/serve pleadings Rule Ask curt t strike due t significant deficiencies - Applies t ALL pleadings, think hw res judicata, different jurisdictins, and abuse f prcess wuld use this rule - (1) If circs warrant and cnditins under (2) applies, curt may 43

44 (a) Strike ut all r part f a claim r defence (b) Amend r set aside a cmmencement dcument r pelading (c) Enter a judgment OR and rder (d) Stay the prceeding, actin, r applicatin - (2) A curt may nly act under (1) if ne r mre cnditins apply (a) Curt has n jurisdictin Or if the Cmmencement Dcument r Pleading (b) Disclses n reasnable claim r defence (c) Is frivlus, irrelevant r imprper (d) Cnstitutes an abuse f prcess (e) Cntains an irregularity that is s prejudicial that it is sufficient t defeat the claim - (3) N evidence may be submitted n an applicatin made n the basis f the cnditin set ut in sub-rule (2)(b) (fr ther yu can add additinal evidence befre the curt) Curt will lk at the pleading n its face - These are interlcutry applicatins Cannt prvide any ther evidence t blster yur case. If pleading itself des nt prvide enugh abut the claim, then shuld be amending. WHAT ABOUT EXTENDING TIMELINES (i.e. Rule 13.5)??? When the request is reasnable, yu must extend. What yu must decide is at what pint it becmes unreasnable and starts t prejudice yur client (asking Curt fr mre time t get particulars fr SD is k, since it must be filed 20 days after receiving SOC) A client's instructins cannt verride yur ethical bligatins. Hwever, an extensin f time is nt autmatic - even thugh it must be given, yu need a reply frm the ther's cunsel. If yu dn't hear a reply, the riginal timeline still applies. Alberta v Atria Grup While nt mandatry applicatin fr particulars shuld generally be accmpanied with an affidavit disclsing why yu need particulars. Curt has discretin in determining whether the allegatins are s vague as t necessitate an rder fr particulars - nly need enugh t file SD, nt a discvery r litigatin f the whle matter. Natural justice and fair litigatin withut surprises t shw that particulars are required, absent an affidavit stating as such, the D must shw that the pleading is defective n its face and that the allegatins are s general and s vague that the need fr particulars is evident. (119) If cmplex case cnsider getting int case management instead f requesting mre particulars Alberta Ltd v Bazinet In respnse t request fr particulars, yu cannt say the party knws - even thugh D knws what D s actins are, D desn t knw what P believes them t be Ch 14: Prcedure n Default Overview: D des nthing upn service f SC P prvides affidavit f service and applies fr rule 3.36 a) judgment against D under Rule 3.38 (prperty) r rule 3.39 (liquidated demand/debt) OR b) nted in default against D under Frm 14 (must then prve damages and apply fr judgment under rule 3.37) D has rule 9.15 Time fr Defending Defendant s ptins Rule 3.30: A defendant wh is served with a statement f claim may d ne r mre f the fllwing: - apply t the Curt t set aside service in accrdance with rule 11.31; - (b) apply t the Curt fr an rder under rule curt ptins t deal with significant deficiencies; 44

45 - (c) file and serve a statement f defence r demand fr ntice. Statement f defence Rule 3.31(1): If a defendant files a SD, the SD must - (a) be in Frm 11, and - (b) cmply with the rules abut pleadings in Part 13, Divisin 3. Rule 3.31(2): The defendant must file the statement f defence and serve it n the plaintiff within the applicable time after service f the statement f claim. Rule 3.31(3) The applicable time is - (a) 20 days if service is effected in Alberta, - (b) ne mnth if service is effected utside Alberta but in Canada, and - (c) 2 mnths if service is effected utside Canada. Demand fr ntice by defendant (Mre detail in Ch. 15 f CAN) Nt cntesting liability but cntesting quantum f damages - Respnding t what they believe they shuld pay and shuld prvide arguments as t why - If yu file demand fr ntice but then decide it s a mistake yu can apply t have it verturned if yu meet 3 part test (same test as under 9.15(3)) 1) Have gd defence n merits, 2) smething unintentinal caused them nt t file SD, 3) Applicatin brught ASAP - D must then be served with ntice f any applicatin - P can nly apply t the curt fr judgment (as ppsed t nting in default) Default Judgment Nting in Default - The time t file and serve a SD has passed and the D has dne nthing curt clerk can nte them in default and file that Rule 3.37 t get ne f 3.37(3) Prcess fr btaining default judgment Rule 3.36 Judgment In Default f Defence and Nting in Default - Rule 3.36(1) After P prves service f SC (affidavit f service filed) - 1) If claim t recver prperty r a debt r liquidated demand N requirement t nte D in default N applicatin t curt needed Rule 3.36(1)(a): Enter judgment (rule 3.38 fr prperty r rule 3.39 fr a debt r liquidated demand specific sum payable under an express r implied cntract fr payment f mney and interest OR claim fr a specific sum f mney recverable under an enactment) - 2) Fr all ther claims Nte D is in default Rule 3.36(1)(b) P must then prve what their damages are, nce prven, they can apply fr judgment under 3.37 Apply t curt t determine amunt f judgment Rule 3.37 Curt will lk at SC t see if claim made ut after applying fr judgment (Argent) P is entitled t cst award in either case - (2) Default judgment can t be entered against persn if they are represented by a litigatin rep, have t get curt rder. - (3) If SD r demand fr ntice filed but nt served P may apply fr csts award fr anything arising frm the D s failure Rule 3.37 Applicatin fr judgment against D nted in default (ther than prperty/debts/liquidated demand) - (1) P may, withut ntice t any party, n prf f P s claim, apply t curt fr judgment fr a claim fr which default judgment has nt been entered if (a) ne r mre D s are nted in default; r 45

46 (b) The D s SD is struck - (2) In circs f (1) the P is entitled t csts award - (3) Curt may d ne r mre f the fllwing: (a) Prnunce judgment (b) Make any necessary rder (c) Direct a determinatin f damages (d) Adjurn the applicatin and rder additinal evidence t be prvided (e) Dismiss the claim r part f it (f) Direct that the claim g t trial and that the ntice be served n every ther defendant (e) Make a csts award in favur f P NOTE: Fr all ther claims, if prperty is nt invlved fr example, if defendant des nthing, they shuld be nted in default instead, under Rule 3.37 they cannt cntest liability, but there is serius dwnside, the ther party has nt had the pprtunity t bring everything frward, thus the curt tends t be amenable t verturning default judgments. Liquidated Demand Rule 3.39 TLA Fd Services v Defines what a debt r liquidated demand is (amunt that can be easily determined thrugh a mathematical frmulatin) - Ex. Credit card debt Nting in Default Argent v Gray D didn t file SD and nted in default. Being nted in default is nt the same as a judgment. It means that the D is deemed t admit t the SC Curt must still lk at the SC t see if actin is made ut befre getting a default judgment Terper v Hard Example f nting in default Facts: had a P wh claimed breach f K and breach f trust. They had ne nted in default, and applied fr ther t have SD stuck Held: If D has SD struck ut r d nt file it, then they are basically admitting t the claim Rule 3.37: When D ntes in default, the curt can asses what the damages and judgment will be Setting Aside Default Judgment Discretinary Order Rule 9.15(3): curt allwed t set aside r discharge judgment r rder if it was made withut ntice t ne r mre f the parties r if fllwing the trial r hearing where party did nt appear because f accident r mistake - Because default judgment easily given, easy t set it aside as well - Case law creates 3 part test (Palin) 1) An arguable defence 2) The D did nt deliberately let the judgment g by default and have sme excuse fr the default 3) After learning f the default the acted prmptly t pen it up Palin v Duxbury CL test fr setting aside a Default Judgment D had n defence really, been travelling a lt and did nt realize hw serius actin was - There is n time limit when asking the curt t set aside default judgment. Hwever there is a 3 part test t determine when D can set it aside - Must meet all 3 criteria 1) Must prve they have arguable defence (has t be a triable defense) 2) D must shw they did nt deliberately let judgment g by default and they have sme excuse fr default 3) Once learned f default mve quickly t have it set aside r pened up. Mere delay alne will nt bar this hwever. Curt has t find what s fair. Curt finds D never really cntested P s claim therefre failed 3 part test 46

47 Default Judgment Demand fr Ntice AFTER P prves service f SC (affidavit f service) (rule 3.36) AFTER defendant files and serves Demand fr Ntice (rule 3.34) 1. Enter Judgment t recver prperty fr debt r liquidated demand OR Defendant cannt cntest liability BUT may cntest amunt f judgment (quantum) 2. Nte in default Must be served with ntice f any applicatin If 2 then Plaintiff may then apply fr judgment withut ntice Plaintiff must apply t curt fr judgment t any ther party (rule 3.37) Ch 15: Pleadings Subsequent t Statement f Claim Overview What Can a Defendant D after Receiving a SOC? (i) Get service set aside r challenge service? (ii) Extend the time limit t file a SOD? 13.5 (iii) Ask fr mre particulars? (iv) Cntest quantum and nt liability Demand fr Ntice? (v) File a SOD, admitting and denying allegatins? (vi) File a cunterclaim? (vii) File a 3P claim? (viii) File a c-defendant claim? Defendant s Prcedure Rule 3.30 Optins D has when served with SC - (1) Apply t set aside service (Rule 11.31) Must prve service dne prperly (natural justice says must be served prperly) - (2) Apply fr an rder under t strike (Rule 3.68) fr significant deficiencies argue there s nt reasnable cause f actin. Example: nt enugh particulars this wuldn t stp 20 days fr filing SD - (3) File and serve a SD (Rule 3.31) OR Demand fr Ntice (Rule 3.34) Filing and serving fr bth is same (20/1m/2m) Demand fr Ntice (DFN) Rule 3.34 Demand fr Ntice by Defendant 3.34(1): If the defendant files a demand fr ntice, the demand must be in Frm (2) The defendant must file the demand fr ntice and serve it n the plaintiff within the applicable time after service f the statement f claim n the defendant. 3.34(3) The applicable time is (a) 20 days if service is effected in Alberta, (b) ne mnth if service is effected utside Alberta but in Canada, and (c) 2 mnths if service is effected utside Canada. 3.34(4) If the defendant files a demand fr ntice and serves it n the plaintiff, the defendant must be served with ntice f any applicatin r prceeding in which the defendant is named as respndent, but filing and service f the ntice des nt give the defendant a right t cntest liability. 3.34(5) If a defendant files a demand fr ntice and serves it n the plaintiff, the defendant may subsequently file a statement f defence nly with the Curt s permissin. Test fr withdrawing DfN is same as verturning default judgment (Bell v Grande Muntain Apartments) 1) IS there arguable defence r gd defence n merits? AND 2) Was nt filing a SD unintentinal (accidental)? AND 3) Did D bring this applicatin t have DfN withdrawn ASAP? 3.34(6) Judgment r an rder may be given against a defendant wh has filed and served a demand fr ntice nly if - (a) the plaintiff applies t the Curt fr judgment r an rder, and 47

48 - (b) ntice f the applicatin is served n the defendant. NOTE: The plaintiff CANNOT get a judgement UNLESS they give the defendant ntice f the applicatin, where they are ging t get a judgement. Yu have t bring an applicatin befre the curt t bring a judgement yu CANNOT bypass this. Bell v Grande Muntain Apartments DfN is partially defended actin: gives D wh admits liability a chance t ensure he is nt held liable fr mre than he shuld. In this case: D filed DfN and realized there is an issue f liability want t submit SD Test fr withdrawing DfN is same as verturning default judgment - 1) IS there arguable defence r gd defence n merits? AND - 2) Was nt filing a SD unintentinal (accidental)? AND - 3) Did D bring this applicatin t have DfN withdrawn ASAP? Curt fund here that D didn t have gd defence n the merits and dismissed the appeal. Statements f Defence Rule 3.31 Statement f Defence - (1) If D files SOD statement must; Be in Frm 11, and Cmply with the rules abut Pleadings in Part 13, Divisin 3 - (2) D must file the SD and serve it n the P within the applicable time after service f the SC - (3) Time is (a) 20 day (b) 1 mnth (c) 2 mnths NOTE: Statement f defence is anther pleading s it MUST als be in accrdance t Rule 13.6, under Rule 13.6(2)(b) states a the defendant must raise a matter that defeats r raises a defense. Yu dn't have t plead every defence that is available t yu BUT if yu dn't, yu will nt be able t use it at trial (yu must plead Limitatins Act if that is yur defence) Rule Denial f Facts - (1) Every fact in the pleading is denied if the fact is nt admitted in anther pleading filed by a party ppsite in interest. 48

49 - (2) A denial f a fact in a pleading must be the pint f substance - Rule 13.6 must set ut facts yu will rely n, set ut the matters that defeat r raise a defence t the claim, must set ut remedies yu want (csts, etc) 13.6(3): must plead any matter used s as nt t take ther party by surprise C(L) V Alberta New Rules: D is required t disclse their psitin and state their defence sner than later - Can n lnger have a blanket denial that say D denies all allegatins in the SC and puts P t strict prf there Barcellna v Einarsn Facts: Huse in Westlck rented by P, D giving mney t pay fr rent, didn t always make it t landlrd s D bught huse and paid mrtgage instead f paying P. P sent D 4k demanding that huse transferred, D refused but kept mney, P filed actin. SC filed/served, SD filed nt served. Issue :when SD is filed nt served what s the status f the file? Held: Once SD has been filed it freezes r suspends it D was instructed t file new SD within 30 days and must file affidavit f recrds and must file a litigatin plan Repnses in a Statement f Defence 1) Admissins: D must admit allegatins in the SC that areu true (even if they entitle P t judgment) a. N need t prve these at trial, nce admitted, deemed true. 2) Denials: D denies the truth f allegatins r may be uncertain as t whether it s true r nt a. Must be prven at trial (unless later admitted) 3) Affirmative Defenses: D may admit a fact but may prvide further facts that, if true, wuld allw D t avid the claim a. Must be prven (unless later admitted) b. Ex: D can admit there was K and that gds received, but later agreement with P that remved bligatin t pay. c. If D raises new allegatins in their SD the P may be able t file a reply Rule 3.32 Additinal Optin fr Defence - (1) File a claim AGAINST A CO-DEFENDANT in accrdance with rule (2) File a 3P CLAIM in accrdance with rule (3) File a COUNTERCLAIM in accrdance with rule 3.56 Third Party Claims and Ntices t C-Defendant(s) C-Defendant(s) Rule 3.43 Claim against CO-DEFENDANT - (1) Hw t make a claim against c-d D liable but s is anther D (must already be in actin) T have C-D claim Trtfeasrs Act r the Cntributry Negligence Act must apply (nly apply in Trt cases) statutry claim These statutes require that damage suffered be result f trt r cntrib neg, means that, C-D claim cannt arise frm K. Cntributry Negligence Act instead f baring actin if P s cntributed, curt can apprtin fault and reduce amunt P receives when they re partially at fault Trtfeasrs Act: cncurrent trtfeasrs jintly and severable liable fr the same amunt f damages t P Mve risk and enfrcement f judgment frm Ps t Ds - D can claim cntributin r indemnity, r bth, against a C-D Cntributin C-D must cntribute twards the judgment btained against the D, may r may nt include csts Indemnity The C-D fully indemnify the D fr what the D paid t the P, plus cst f all parties Arises ut f certain relatinship (K, agent/principal, guarantr/principle debt, insurance, vicarius liability f emplyers. - A defendant wh wants t make a c-defendant claim may file and serve n a c-defendant a ntice claiming a remedy under the abve acts under Rule 3.43(1)(a) (a) Defendant may file and serve n a c-defendant a ntice in Frm 15 claiming a remedy under either r bth f the Acts 49

50 (b) Neither the defendant nr the c-defendant need file a pleading in respect f a claim r defense under thse Acts unless the Curt therwise rders, and (c) A third party claim need nt be filed and served n the c-defendant. - (2) The ntice claiming cntributin must be filed and served n the c-defendant within 20 days after the date n which the defendant files the statement f defense OR demand fr ntice. NOTE: This is nt a pleading it is just a ntice, but it still has t be filed and served by pleading and the c-defendant des nt have t file any defence. It is just a ntice because the c-defendant is already in the actin, the ntice is filed with 20 days frm SOD r Demand fr Ntice, that is a partial defence n quantum NOT liability. Third Party Claims - D must be fund liable fr 3P t be liable - 3P Liability flws thrugh the interactin - Is against a persn wh is nt party t actin Rule 3.44 When a 3P Claim may be filed (brught by D against smene else) - (1) Where D r 3P D believes that (a) Cntributin/Indemnity: the 3P is respnsible fr all r part f the claim against that party (under CL (arises when 3P breaches duty in K, CL Duty f Care, r statutry bligatin wed by 3P t D) r under Cntrib Neg Act & Trt Act(the third party claim must allege facts that culd supprt a finding that the third party's breach f duty caused the plaintiff t suffer the same damage that the plaintiff claims it suffered as a result f the defendant's breach f duty t the plaintiff)) because it s a claim fr cntributin it stands r falls based n utcme f the Ps claim against D If fr cntributin under Trt Act must als establish that 3P wuld wuld, if sued, be liable fr the damage suffered by P (b) Independent Claim: When 3P breaches duty wed t D which causes D t suffer lsses. The 3P is liable fr an independent claim arising ut f (i) transactin r ccurrence between the P and the D OR (ii) a related transactin r ccurrence. Is nt dependent n the utcme f the P s actin against the D (c) Binding: the 3P shuld be bund by a decisin regarding an issue between the P and the D (Ex. res judicata if yu dn t bring them in as a party, they wnt be bund by decisin) NOTE: This is a pleading, rules are extensive when it cmes t this. The rule stipulates that yu can bring a claim against a persn wh is NOT a party t the riginal actin. - Ex. A buys light and blws up injured him frm B, A sues B, B turns arund and filed claim frm C wh is manufacturer. This 3P is liable fr ALL r PART f P s claim. Think CL f negligence, wh wed a duty f care, there is als a breach f K claim between B and C which is an entirely independent claim, and this rule allws that, in itself it s NOT cntingent n the riginal claim. The curt wants t jinder t save time/mney, which Is why these causes f actin are gruped tgether Tw way t bring smene in as a 3P - 1) Cmmn Law Where yu have a duty t ne individual t indemnify the ther Fur areas under CL Breach f K Breach f warranty Negligence Misrepresentatin - 2) Statute (Trtfeasrs Act) Allws ne trtfeasr t claim cntributin against anther wh has caused damage t the P even thugh the P has nt sued them directly Act calls this derivative claim therefr the D is enfrcing a claim that the P has chsen nt t enfrce. Purpse f TF and Cntrib Neg Act - Trying t verrule the CL rules - Ex: at CL if there was ANY cntrib neg n the aprt f P their claim wuld be defeated - P is able t sue any ne f the D s and cllect their judgment frm any ne f the Ds they never had t sue ALL ptential Ds 50

51 - If there is lss r damage invlving a trt, then the curt can apprtin the liability between the D/P based n degree f fault - Makes Ds jintly and severally liable Rule 3.45: Frm f 3P claim - 3P claim is a pleading - Served and Filed within 6 mnths f filing the SD r DfN and befre judgment r befre D nted in default. - 3P must be served with cpy f SC - D may participate in 3P claim OR can participate in the claim against P - 3P can apply t set aside service Rule 3.46: 3P D Becmes Party A 3P is a party t the actin - Imprtant because f Res Judicata - 3P claim must be tried with the ther claims in the actin unless the curt therwise rders under Rule 3.71 (separating claims) Rule 3.47: 3P Party Defendant s Optins - (1) A 3P D may d ne r mre f the fllwing a) set aside service b) apply t curt fr an rder 3.68 (deal with significant deficiencies) with respect t the 3P claim c) apply t curt fr rder 3.68 (deal with significant deficiencies) with respect t SC d) File a SD r DfN Rule 3.48: Plaintiff s ptins P, where 3P claim filed, may apply t Curt fr an rder under 3.68 (significant deficiencies) with respect t 3P claim. Nte: Under Rule P can apply t set aside service because they are acting like a D, they can say yu didn t file and serve me with 3P ntice. Can als bring rder under 3.48 r make an applicatin and they can claim that there were deficiencies either n the 3P claim r the SC Rule P Statement f Defence and Additinal Optins 3 rd party may defend BUT als participate in the main actin and defend claim against the plaintiff 3 rd party may file a statement f defense disputing the defendant s liability t the plaintiff r its liability as set ut in the third party claim The 3 rd party can als make its wn c-defendant claim r cunterclaim Rule 3.49(4)(a) & (b) As a result, the 3 rd party appears t wear 2 hats and can pursue a claim/defense against the plaintiff and defendant (1) A statement f defence by a 3P defendant (a) MUST be in Frm 17, AND (b) MUST cmply with the rules abut pleadings in Part 13 [Technical Rules], Divisin 3 [Pleadings], AND (c) May dispute either r bth f the fllwing: i. the defendant s liability t the plaintiff, OR Defendant nt liable s I m nt either ii. The third party defendant s liability described in the third party claim. Defendant is liable but I m nt liable (2) If a third party defendant files a statement f defence, the third party defendant must file it and serve it n each f the ther parties within the applicable time after service f the third party claim n the third party defendant. (3) The applicable time is (a) 20 days if services is in Alberta (b) 1 mnth in Canada (c) 2 mnths utside Canada Rule 3.52: (1) If 3P des nt file SD disputing liability as between the riginal P r D they are admitting the validity f the judgment that the btains against the D ((2)this als ccurs if they dn t dispute liability between themselves and D) Rule 3.53: Judgment against 3P D - Judgment against D must be satisfied befre enfrced against 3P Canadian Natural Resurces Ltd v Arcelrmittal Tubular Envirnment Inc v MEC OP LLC pg 178 Outlines what 3P claim is and hw t deal with it Trtfeasrs Act allws ne TF t recver cntributin frm anther (nt knwn at CL) Tw cnditins that the TF Act requires yu t make - 1) Claim has t be in respect t the same damage - 2) Trtfeasr against whm cntributin is sught is liable 51

52 Example: Had a car accident and the lawyer did nt file SC n time, s cannt sue D at all, tried t sue lawyer fr negligence and 3P claim car accident D. BUT culd nt d this because nt in respect t the same damages. O Cnnr Assciates Envirnmental Inc. v MEC OP LLC 2014 ABCA Deals with Rule 3.44(c) Facts: P hires C t give them advice t due diligence regarding an asset frm D. C was hired directly by P. What happens is that the P have hired these utside cnsultants when the matters hit a radblck and when the purchasers sue the D wh tries t third party C wh was actually hired by P t inspect and evaluate the asset. D said C wed us a duty f care because they shuld have dne their jb (claim negligence), shuld prperly d jb fr P and wuldn t have issue. The 3PD mves t strike ut the claims against them n the basis that they disclsed n cause f actin Test fr striking ut under Rule 3.68: whether there is a reasnable prspect f success Held: 3P had n duty t D because 3P had n relatinship t D, s D cannt use 3P claim fr defence. 3P claim can arise frm beach f cntract, warranty, negligence, r can be trt Rati: An independent duty f care must be wed t the defendant by the third party t supprt a 3 rd party claim. At a minimum, the third party ntice must disclse a legally recgnized claim by either the plaintiff r the defendant against the third party. Cunterclaim Want t have cunterclaim because it s better than new actin, csts payable immediately and dn t want t have t wait fr a new actin t recver these. In a cunterclaim yu re D in initial actin and P by cunterclaim, and P becmes D by cunterclaim Rule 3.56 Right t Cunterclaim - (1) A D may, by cunterclaim, file a claim against (a) The P (b) The P and anther party, whether ther persn is a party t the actin by the P r nt - (2) A 3P D may, by cunterclaim, file a claim against the P, D r 3P plaintiff, r any cmbinatin f them, with r withut any ther persn, whether the ther persn is a party t the actin r nt Rule 3.57: Cntents f Cunterclaim - (1) A cunterclaim MUST (a) be in frm 21 (b) Cmply with rules abut pleadings in part 13 (Technical Rules), Divisin 3 (Pleadings), and (c) Be filed and served n the D by cunterclaim within the same perid that a P by cunterclaim must file a SD under rule 3.31(2) SD 20 days fie/serve, 1 mnth, 2 mnths Rule 3.58 Status f Cunterclaim - A cunterclaim is an independent actin. Therefre, if the initial claim is discntinued the cunterclaim lives n Nte: Independent actin imprtant because if P decides t discntinue actin D has cunterclaim alive. If P withdraws can bth d it and n csts fr anyne. Generally withdrawal ther party gets csts. Lil Dude Ranch Ltd v Alberta Inc N ability fr smene wh is a stranger t the actin t file a cunterclaim Issue: Curt lks whether nn-party t actin can be added as a P in a cunterclaim (that s being amended) Held: Rule 3.56 says nly D can cunterclaim, curt says amendments t pleadings unlimited unless there is prejudice t ther party, if its cmpensable then maybe allw it still. Under 3.56 stranger has n ability t cunterclaim but keep in mind Rule 3.73 that says n actin can fail just because tw r mre parties did nt jin when they culd/shuld have. If Ps had applied t add a new D there wuld be n bar in the rules (e.g. can add as an amendment) Set Off Rule 3.59 Claiming Set-Off - Claiming set-ff can be dne via cunterclaim r by pleading it as a defence. Tw types that are recgnized at CL Legal Set-Off: Allws nly mutual debts t be set-ff. Culd nt apply it t any debts that have debt assignment 52

53 Can be used bth CC and Defence (as defence mre cmmn) Equitable Set-Off: The relatinship is such that it wuld be inequitable t allw ne party t prceed withut taking int accunt the ther debt. The debts need t arise frm the same r interrelated-related K s. If set-ff is the defence, yu are ging t have ne judgment in the actin If D s right t set-ff is equal t the P s claim, and in ding s, judge will dismiss P s claim If set-ff is cunter-claim, yu are ging t have tw separate judgments Hlt v Telfrd equitable set-ff T sld land t CS, CS gave 165k in cash + 100k mrtgage wing. CS sld land t T, T gave 115k in cash + 150k mrtgage Each party wed 50k in initial scheme CS assigned mrtgage t H, H argued they were wed 150k, T argued nly wed H 50k Held: Curt said this is nt legal set-ff because it is nt mutual debt and ne f the K s has been assigned HOWEVER equitable set-ff applied because arse frm interrelated K s, it is up the H t make sure they get their mney frm CS, CS will pay H instead f paying T. 53

54 Part III: PRE-TRIAL EVIDENCE GATHERING AND DISCLOSURE Evidence Gathering Tw Types: - 1) Discvering recrds, examining and reviewing recrds f ppsing parties Applies t all parties Purpse is t prevent surprise determining what the case f each party is - 2) Questining parties (discvery f persns): questining parties t the actin wh are adverse in interest can be bth ral r written Parties are required t file an affidavit r recrds, then questining f parties adverse in interest Ch 16: Disclsure f Recrds Summary f discvery f Recrds What t Disclse Must disclse recrds r questins which are "relevant and material" under Rule 5.2 Brad disclsure f "recrds" But disclsure des nt mean "use" since infrmatin isn't autmatically evidence Exceptins t disclsure are privilege (Wigmre test fr nn-lawyers): slicitr-client, settlement, litigatin Can waive privilege purpsefully r inadvertently but nce waived, everything is disclsed What is a Recrd? - A representatin f, r a recrd f, any infrmatin, data r ther thing that is, r is capable f being, represented r reprduced visually r by sund, r bth. Recrds can include FB Prfiles, where party must prduce any f his FB pstings that relate t any matter at issue in an actin (Leduc v Rman) Steps f Disclsure - 1) Disclsure f Recrds always need affidavit r recrds yu have n right t refuse t answer questins, unlike in a criminal trial if yu d nt prduce all recrds that are relevant and material then can have cnsequences ranging frm fines t striking the actin - 2) Questin Parties in the Actin Can t start until after parties have served their affidavit f recrds Always between parties adverse in interest Rule 5.1(1) Five reasns fr disclsure f infrmatin - a) t btain evidence that will be relied n in the actin (yu tyr t turn infrmatin int evidence) - b) t narrw and define the issues - c) t encurage early disclsure f the facts and recrds - d) t facilitate evaluatin f the parties psitins and if pssible reslutin f issues in dispute - e) t discurage cnduct that unnecessarily r imprperly delays prceedings r unnecessarily increase the cst f them Under (2) curt can d whatever it needs t achieve (1) Rule 5.2: When smething is Relevant and Material - (1) Questin, recrd, r infrmatin is relevant and material if answer f recrd culd reasnably be expected: (a) significantly help determine ne r mre f the issues raised in pleadings OR (b) T btain evidence that culd help determine ne r mre issues raised in pleadings 54

55 Recrds Under a Party s Cntrl Western Unin Insurance Cmpany v Nihill Facts: insurance cmpany claim against drunk driver that killed ppl. Bld sample sught but wasn t in affidavit f D. Issue: must he disclse this bld sample dcument?? Decisin: Yes, he has the pwer t btain the dcument, must be discvered in affidavit. Dcument being shwn in affidavit f prductin is different than being prduced fr inspectin. McInerney v MacDnald Medical recrds under physicians cntrl (physician is the wner), if nt prvided with access after request by patient, can be rdered t be released by curt regardless f physicians refusal. A patient has a right t cpy the recrds nt take it ff the premises. Recrds Which are Relevant and Material Rule 5.2(2) When smething is [NOT AUTOMATICALY] relevant and material - The disclsure and prductin f recrds is nt t be cnsidered as an agreement r acknwledgement that the recrd is admissible r relevant and material When yu prduce, it is bare disclsure with n guarantees (nt evidence) n claim regarding its admissibility r that it s even R&M. Disclsure des nt equal admissin. Nt even saying whether its relevant - Because this is s brad, 5.3 gives curt additinal pwers Rule 5.3: (1) If a party acts in a way that is abusive r threatening then curt can make rder remedying this (d nt have t disclse, make a cst award, rder future questining befre a judge, increase amunt f interest) (2) if expense, delay, danger r difficulty cmplying with rules under sectin grssly disprprtinate t the likely benefit curt may mdify r waive any right r pwer under a rule in this sectin Alberta Ltd v Adderley Lks at Rule 5.1 D prduces unidentified recrds, ther D s wnder if they can just adpt the affidavit f recrd, the curt lks at whether there is anything that can be dne when disclsure is bviusly excessive Held: Rule 5.1 is nt cnsistent with dumping f recrds. Csts can be awarded when party fails t meet requirements but nthing t suggest excessive amunt warrants csts, ther D s have t g thrugh each recrd and cannt just adpt affidavit f recrds In all the circumstances, the apprpriate remedy here is t require all defendants ther than Pr-Canada t amend the affidavits f recrds already filed by identifying frm amngst the 13,000 pages f disclsure thse pages which deal specifically with their wn actins Leduc v Rman Facebk prfiles are dcuments and party must prduce any f his FB pstings relate t any matter in issue in an actin Kaddura v Hansn Nt necessary at this stage f litigatin t determine whether trial judge will r will nt be prepared t draw inferences frm circumstantial evidence put frward Respndents dn t have t demnstrate cnclusively that discvered recrds will in fact cntain any evidence f assistance Underlying recrds may significantly help determine ne r mre f the issues In questining answering questins can t be bjected t because the ther party already is said t knw the answer. Trying t narrw the issues in dispute. Just because infrmatin can be attained by ther means desn t matter, discvery is abut efficient, structured, and cmprehensive methd f btaining relevant and material infrmatin. The Exceptin fr Privileged Recrds 3 Type f Privilege - 1) Slicitr-Client privilege - 2) Litigatin Privilege - 3) Settlement Privilege Even where inf is relevant and material under Rule 5.2 an exceptin is legal privilege 55

56 - Legal privilege belngs t client wh can waive the privilege - Under the AB Cde f Prfessinal Cnduct a lawyer has a duty t keep their client s business, interest, and affairs acquired in curse f prfessinal relatinship = Anything and everything client tells yu as a lawyer is a secret, cannt tell anyne unless cnsent btained frm client - Slicitr Client Privilege Nt merely a rule f evidence but a fundamental civil and legal right Reasns fr Legal Privilege - Allws lawyer t d their jb mre effectively and in turn prmtes public interest in the prper and fair administratin f justice - A right t privacy, a right t be let alne, a right t unfettered freedm, civil, in narrwly prescribed situatins/relatinships When Legal Privilege Applies - Where legal advice f any kind is sught frm a prfessinal legal advisr in his capacity as such. Cmmunicatin relating t the purpse, made in cnfidence by the client, are at his instance permanently prtected frm disclsure by himself r by legal advisr except if the prtectin is waived. - Applies t crprate and cmmercial transactins, family relatinships, civil litigatin r criminal charges and includes family secrets, cmpany secrets, and persnal indiscretins (Smith v Jnes) - Must still list recrds that are privileged and briefly describe why they are in affidavit f recrds Elements f the Duty f Cnfidentiality Wigmre Test: Test fr Nn-Lawyer Duty f Cnfidentiality - Nn-lawyers disclsure f ptentially relevant and material infrmatin under Rule 5.2 will nt be required when the fllwing elements are present: 1) Cmmunicatins must riginate in cnfidence; AND 2) Element f cnfidentially must be essential t the relatinship between the parties, AND 3) Relatinship must be ne which ught t be fstered, AND 4) The interests served by prtecting the cmmunicatins frm disclsure utweigh the interest f pursuing the truth and dispsing crrectly f the litigatin. Injury by the disclsure f the cmmunicatins must be greater than the benefit gained fr the crrect dispsal f litigatin. AM v Ryan Applicatin f Wigmre Test Facts: patient brught civil actin fr damages in an alleged sexual assault by her dctr (Ryan). Sued him fr mental trauma/suffering. Issue: Are new psychiatrist ntes and recrds between the P and him required t be disclsed? Decisin: First 3 elements f Wigmre are satisfied but D s right t relevant material testing the P s case utweigh P s expectatin f privacy Reasns: Decided that interest f preserving cnfidentiality was imprtant but utweighed by need t dispse prperly f the litigatin. Nte: Regarding the furth element, must cnsider the disclsure and its relatin t s.8 and s.16 f Charter (right t privacy and right t equal treatment under law). Suggests that it wuld nt be fair t allw general rule regarding autmatic disclsure fr sexual assault victims. Dcuments released nly t lawyer, nt Dr. Ryan. Test fr Slicitr Client Privilege (Slsky v The Queen) - 3 Elements 1) a cmmunicatin between a slicitr and a client 2) which entails the seeking r giving f legal advice, AND 3) which is intended t be cnfidential by the parties - There are tw exceptins where slicitr-client privilege will nt be respected 1) cmmunicatins which are in themselves criminal r which cunsel a criminal act 2) infrmatin that isn t cmmunicatin but is evidence f an act dne by cunsel r a statement f fact What Slicitr-Client Privilege Applies T: - 1) Ntes - 2) Crrespndence - 3) Cnversatins 56

57 - 4) Prducing recrds and questins What is Cntinuum f Legal Advice - Legal privilege remains intact fr legal advice cmmunicated within a client rganizatin - Nt necessary that the cmmunicatins specifically request r ffer advice, as lng as it can be placed within a cntinuum f cmmunicatin in which the lawyer tenders advice. Other Types f Privileges that are Exceptins t Disclsure - Litigatin privilege applies where dminant purpse fr creating the recrds was fr litigatin (althugh this des nt need t be nly purpse) Dn t need t have a legal actin started ex. recnstructin f an accident prir t being sued. - Settlement privilege (Phillips): any cmmunicatins written fr the purpse f attempting t reach a settlement are privileged. Cannt be disclsed withut cnsent f bth parties Privilege applies t recrds released withut prejudice as lng as in hpes that it will lead t settlement r where there is a cntractual agreement they remain privileged Canadian Natural Resurces v Shawcr Ltd Each privileged recrd shuld be numbered and briefly described why privileged in affidavit f recrds. Facts: CNRL sued Shawcr. Shawcr applied fr rder fr CNRL t prvide better affidavit f recrds. CNRL claimed subject t either slicitr-client privilege r litigatin privilege. Shawcr cntends that they just used blanket statement and that they waived privilege ver recrds by referring t them in SC. Issue: Shuld they have t prvide the recrds? Decisin: Yes Reasns: 5.1 and 1.2 wrk tgether t prvide an envirnment that prmtes access t justice. Must number and briefly describe each recrd in the disclsure, fr privileged recrds must identify grunds f the bjectin t prductin fr each recrd in rder t assist ther parties in assessing validity f the claimed privilege. CNRL recrds d nt cmply with this requirement Bellatrix Explratin Ltd v Penn West Petrleum Ltd Deals with withut prejudice Cnfirms imprtance f settlement privilege as ne f the three classes f privilege (thers slicitr client and litigatin privilege). Public plicy ratinale fr the rule is that parties shuld be permitted t freely put cards n the table withut having t wrry that they may be prejudiced shuld negtiatins fail t reslve their dispute. - Hint f ptential cmprmise r negtiatin must be in the cmmunicatin fr privilege t attach - Adding wrds withut prejudice des nt create privilege and absence desn t waive privilege. Waiving Slicitr-Client Privilege - Must be waived by client and can be dne in 2 way 1) Purpseful intentin 2) Inadvertently ex by client bringing int questin the client s state f mind OR by relying n privileged cmmunicatins in pleadings (Syncrude) (such as by referring t legal advice nt previusly disclsed) - Waiver tends t be all r nthing where if yu waive privilege, yu must disclse the entire recrd. - Lawyers can t waive n clients behalf. Syncrude Canada Ltd v Babcck & Wilcx Canada Ltd Cases require an intentin t waive, hwever the client may inadvertently waive privilege by bringing int questin his state f mind (ie reliance n legal advice) r relying n privileged cmmunicatin in pleadings The Affidavit f Recrds What is it? - Swrn dcument that must be swrn by client slicitr has a requirement t explain t the client what is material/relevant (Rule 5.6 specifies what must be in the affidavit) 57

58 Disclsing and Identifying Relevant and Material Recrds Rule 5.5: When affidavit f recrds must be served - (1) Every party must serve affidavit f recrds n each f the ther parties in accrdance with the time perid specified bellw - (2) The P must serve an affidavit f recrds n each f the ther parties within 3 mnths after date P is served with SD, r the first SD if mre than ne served. - (3) D must serve affidavit f recrds n each f the ther parties within 2 mnths after date D is served with P s affidavit f recrds. - (4) A 3P D wh filed SD must, within 3 mnths after filing that, serve affidavit f recrds n each f the parties. Nte: Can be varied with cnsent under rule 13.5 Rule 5.6: Frm and Cntent f Affidavit f Recrds - (1) Must be in: (a) Frm 26 (b) Disclse all recrds relevant and material t the issues in the actin, AND are r have been under the party s cntrl - (2) Affidavit f Recrds Must: (a) disclse recrds that are under yur cntrl (b) disclse which f the recrds that are bjected t being prduced, and gunds fr bjectin (be careful hw much infrmatin releasing when identifying these recrds) (c) Fr recrds which there is n bjectin t being prduced, a ntice stating (i) The time when the recrd may be inspected, which must be within 10 days after affidavit is served, AND (ii) The palce where the recrd may be inspected, which may be (A) address fr service f the party serving affidavit (B) Place agreed upn by parties r rdered by Curt, r (C) If recrd is in cnstant use, the place where it is usually kept. (d) disclse which relevant and material recrds were previusly under yur cntrl, the time and manner in which they ceased t be, and current lcatin (e) state that yu dn t have and never had any ther relevant and material under yur cntrl. Timeline and Cntents f the Affidavit f Recrds - Steps fr the prcess and delivery f dcuments Stress t client the brad test f relevance Find ut wh else was invlved n bth sides f the matter and insist n seeing all their papers Ask client what rutine paperwrk was likely invlved n bth sides, and use yur wn knwledge t determine what wuld ve been required Once yu have dcs, determine if everything is present, if there are gaps, if riginal files missing, etc Arrange in chrnlgical rder Sidente: 3P has 3 mnths t file an affidavit f recrds after filing their SOD Plaintiff receives SD 3 ms. 5.5(2) Plaintiff serves affidavit f recrds 2 ms. 5.5(3) Defendant serves affidavit f recrds Rule 5.32: Dn t file affidavit r recrds, nly time yu will file is if yu decide t use it as evidence fr read-ins t impeach r crss. The recrds are nt the evidence f the party s yu are nt putting the ther parties recrds in filing. Cases talk abut hw yu have t identify the recrds and when nt wanting t waive privilege yu need t identify the recrds and see what kind f privilege yu are claiming. Hwever, yu have t be careful nt t reveal anything. Even revealing a date can be detrimental. Rule 5.7: Prducible recrds (Reasning frm Canadian Natural Resurces v Shawcr Ltd) 58