In a case that highlights the importance of carefully drafted pleadings, the Alberta Court of Appeal recently split over the question of whether pleading a lack of informed consent to an agreement resulted in the waiver of privilege over legal advice received during the negotiation of that agreement. In Goodswimmer v Canada (Attorney General), the majority of the Court of Appeal found that the appellant had waived solicitor-client privilege by voluntarily placing its reliance on legal advice into issue in its Statement of Claim and by selectively disclosing certain privileged communications. The dissenting Justice engaged in an interesting analysis … Continue Reading
Over the past year, courts across Canada have responded to the Supreme Court of Canada’s clarion call in Hryniak v Mauldin (“Hryniak”) for a culture shift to promote access to justice including through summary judgment. The latest word on this front has come from the Alberta Court of Appeal in two recent decisions which seemingly conflict on the threshold to be applied to summary judgment applications. The inherent tension created by Hryniak in Alberta is that the summary judgment rule (Rule 7.3) reflects the 2006 views of the Supreme Court of Canada: that such applications should be used … Continue Reading
Joint retainers are common in modern legal practice. But what happens when a dispute is brewing between two parties represented by the same law firm? How is a lawyer to know when the “bright line” of conflict of interest has been crossed? And when the duty of loyalty to a client is breached, when is disqualification of the law firm an appropriate remedy? The Alberta Court of Appeal addressed these issues in Statesman Master Builders Inc v Bennett Jones LLP, 2015 ABCA 142 (“Statesman”).… Continue Reading
In a rare appellate court decision, the Court of Appeal in Walton v. Alberta (Securities Commission), 2014 ABCA 273, has set aside a decision by the Alberta Securities Commission and has held that any monetary penalties levied must be proportionate to the circumstances of the offender and supported by reasons. The Court also held that findings cannot be based upon speculation and that the Commission had improperly interpreted the “recommending or encouraging” provisions of the Alberta Securities Act (the “Act”) in a decision that is certain to give pause to Securities Commissions across Canada.
Do incentives for prompt payment in a mortgage, which would be lost on default, run afoul of the prohibition against penalties for non-performance contained in s.8 of the Interest Act? The Alberta Court of Appeal recently split over this question, with the majority saying no. This case could affect the structure of mortgages in Alberta, encouraging the use of “non-penal” devices to ensure performance that may be difficult to distinguish, in operation, from penalties.
The “culture shift” to a more accessible civil justice system, as championed in Hryniak v. Mauldin, is alive and well. Courts are increasingly sensitive to the economy of cases, taking into account the efficiency and proportionality of substantive and procedural rights. Today’s emphasis is on reasonable not exhaustive measures.
In O’Connor Associates Environmental Inc. v. MEC OP LLC, the Alberta Court of Appeal overturned the decision of a case management judge who permitted the joinder of third party advisors to a main action between a purchaser and vendor of oil and gas assets. This appellate decision incorporates the Hryniak… Continue Reading
Earlier this year we discussed on this blog the new “sufficient appreciation test” set out by the Supreme Court in Hryniak v. Mauldin, which really represents a cultural shift in the availability of summary judgment to the parties.
In Windsor v. Canadian Pacific Railway Ltd., 2014 ABCA 108, the Alberta Court of Appeal applied the test to a certified class action about Rylands v. Fletcher liability.
A recent decision of the Alberta Court of Appeal has opened the door for awarding punitive damages to surviving dependants under Alberta’s Fatal Accidents Act (the “FAA”). The FAA creates a statutory cause of action for dependants of deceased persons where death was caused by a wrongful act. Similar legislation in other provinces has been held to preclude claims for punitive and other non-compensatory damages. Until now, the availability of punitive damages under the FAA was uncertain.
The decision appealed from is Bhasin v. Hrynew, 2013 ABCA 98, in which the Alberta Court of Appeal held that the corporate defendant was not under a duty of good faith in exercising a right of non-renewal when the term of its evergreen contract with the plaintiff came to an end. The case will require the Supreme Court to consider when a duty of good faith should be implied in commercial contracts, … Continue Reading
Contributory negligence legislation allows liability to be apportioned between tortfeasors – but what about defendants who are severally liable for a single loss caused by independent breaches of contract? In Petersen Pontiac Buick GMC (Alta.) Ltd. v. Campbell, 2013 ABCA 251, counsel for both parties could find no authority on the issue of apportioning liability between defendants when “a plaintiff suffers the same loss, caused by a breach of contract by one party and a breach of a different contract and negligence by another.” The Alberta Court of Appeal helped fill this gap by holding that the common… Continue Reading
In Edward Sumio Nishi v. Rascal Trucking Ltd. (B.C.), 2013 SCC 33, the Supreme Court declined to depart from the long standing doctrine of purchase-money resulting trust in favour of an approach based on unjust enrichment. The Supreme Court went on to hold that both the transferor’s and transferee’s intentions will be taken into account in determining whether a resulting trust in favour of the transferor is created.… Continue Reading
The Supreme Court of Canada has granted leave in an appeal about whether provincial or federal legislation governs workplace compensation for federal workers. If the decision of the Court of Appeal in Martin v. Alberta (Workers’ Compensation Board), 2012 ABCA 248 is upheld, federal workers may find that their claims for accident-related compensation will be determined by provincial standards rather than solely the provisions of the federal Government Employees Compensation Act. … Continue Reading
Will a director or officer of a corporation or limited liability partnership be personally liable for the losses of investors who relied upon his or her inaccurate statements when deciding to invest in a corporate venture? What if the inaccurate statements did not involve matters that were proven to cause the investment losses?
The Alberta Court of Appeal recently considered these questions when overturning a trial decision which had held the directors of a failed slate quarry personally liable to investors for negligent misrepresentation. Hogarth v. Rocky Mountain Slate Inc., 2013 ABCA 57, emphasizes the importance of respecting the … Continue Reading
The Supreme Court refused leave from the Alberta Court of Appeal in Lay v Lay, 2012 ABCA 303. The appeal provided an opportunity for the courts to interpret Alberta’s new Rules of Court, which came into effect on November 1, 2010. The appeal dealt with the question of how Alberta courts should apply the defined term “records” and how the test for “relevant and material” is to be applied.… Continue Reading
The Supreme Court of Canada heard arguments this week in two cases of interest to Canadian businesses and professions, and reserved judgment in each.
The first is an appeal from Newfoundland (Workplace Health, Safety and Compensation Commission) v. Ryan Estate, 2011 NLCA 42. It involves whether s. 6 of the federal Maritime Liability Act can authorize a civil action in respect of a workplace accident, even though s. 44 of the Newfoundland & Labrador Workplace Health, Safety and Compensation Act purports to bar such claims in favour of a no-fault compensation scheme. The Newfoundland & Labrador Court of… Continue Reading
The Supreme Court of Canada released one decision this week of interest to Canadian businesses and professions.
In Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65, the Court held the Alberta Court of Appeal erred in quashing a decision of the Alberta Labour Relations Board on judicial review. The Court’s brief judgment criticizes the Court of Appeal for taking an overly rigid approach to the Board’s reasons when finding that the Board failed to consider various issues of statutory interpretation under the Alberta Labour Relations Code.
The Alberta Court of Appeal has provided its latest contribution to the analysis of the tort of civil conspiracy. The case’s importance lies in its consideration of the mental element of the tort. The case is also interesting for the absence of any reference to the recent Ontario Court of Appeal jurisprudence on the matter, perhaps signifying the development of distinct Western-Canadian jurisprudence on the subjection of economic torts. Mraiche also highlights the inherently contradictory nature of the Canadian formulation of the tort of civil conspiracy, which is a tort that involves both subjective and objective mental elements.
Decisions … Continue Reading
Cross-examining experts is the primary way in which competing expert opinions are tested in the adversarial process.
The Alberta Court of Appeal in its recent decision in Johnson v. Alberta (Appeals Commission for Alberta Workers’ Compensation) recently determined that a decision not to allow a cross-examination may not be reasonable, in particular where without a cross-examination it may be difficult to resolve a difference of opinion between competing experts in a “fair, justified and transparent manner.”
In a decision providing ammunition for public interest groups denied an opportunity to intervene before a regulator, the Alberta Court of Appeal denied leave to Pembina on the issue of whether the Alberta Utilities Commission made various errors in approving a power plant.
This blog entry, however, will address only the fact that Pembina was granted standing before the Court of Appeal, despite not having intervened in this matter before the Commission.
The Alberta Court of Appeal will hear the appeal of Transportaction Lease Systems Inc on the issue of whether a previous judge:
- ruled that the appeal in a CCAA matter was not moot; and
- concluded, in any event, that the appeal was not moot.
This confusing issue stems from the lease from Transportaction of vehicles and other equipment to Skyreach under a Master Lease Agreement. Companies leasing equipment will want to follow this appeal closely, as it may ultimately change how Courts will view priority.
The Alberta Court of Appeal’s decision, denying leave to appeal in Autoweld Systems Ltd. v. CRC-Evans Pipeline International Inc., provides authority for maintaining a security for costs order against a company with few assets. This decision will prove a useful authority to clients wishing to stop litigation where the plaintiff is a party unable to pay a costs award.
The Applicant, Autoweld Systems Limited, sought leave to appeal a security for costs order made by the case management judge in favour of the respondents CRC-Evans Pipeline International Inc., CRC-Evans Automatic Welding Inc., Malcom Timothy Carey and Richard Lee Jones.… Continue Reading