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Juriliber Publishers, Ste. 600, 10055/106 Street, Edmonton, AB (2025)

09/25/2025

ENCOURAGING SETTLEMENTS

We all wish that most litigants would settle before trial, and thus save themselves time and money, and save the overburdened courts a trial. The main Rule which encourages settling is R. 4.29. It awards or increases costs where someone betters an offer. But many counsel and even a few judges, have dodged that clearly-worded Rule. Some judges may think that the Rule is acceptable providing that they maintain full power to ignore it when they wish. In the past, some King's Bench judges tried to invent new excuses to ignore R. 4.29.

Every recent Court of Appeal decision is clear on this topic, though the relevant passages are buried toward the end of a long judgment. There the Court of Appeal confirmed a trial judge who followed R. 4.29 and refused to dilute R. 4.29 costs for “proportionality”. First, the Court of Appeal pointed out that costs for bettering an appeal come from a separate Rule (R. 4.29), not from the general costs Rules (¶ʼs 157 and 165). So therefore what R. 4.29 awards (such as double the ordinary costs) should not be weighed to see if it is “proportional”, the way that one would if there had been no offer to settle (¶ʼs 157 ff). That makes sense; by definition double costs are greater than ordinary costs.

The Court of Appeal also held that early offers to settle are proper, and indeed are one of the main aims of R. 4.29 (thus contradicting some King’s Bench decisions a few years ago) (¶ 157). (See also Stevenson & Côté Handbook R 4.29 nn. A, B.1, and F.1, and Droog v. Hamilton ( #2) 2025 ABCA 302 (Sep 8) (¶ 5).)

The Court of Appeal also pointed out that ignoring the costs consequences of an offer dictated by R. 4.29, would make formal offers meaningless (quoting an earlier Court of Appeal decision) (¶ 158). Rule 4.29 deliberately makes costs consequences more severe where someone has rejected an identifiable and sufficient compromise (¶ 158).

The judge cannot ignore or bypass R. 4.29 unless offer was tardy, or “special circumstances” exist (subrule (4), Stevenson & Côté Handbook R. 4.29 nn. C, F.1, F.2.). Double costs are not ordinarily such special circumstances (¶ 160).

So, one cannot dodge R. 4.29 when the outcome of the trial is hard to predict. Settling what is unclear is part of the aim of the Rules on offers to settle. Most lawsuits involve some element of unpredictability or luck. The more that is so, the more a trial resembles roulette. Conversely, the party who made and bettered an offer, often saw law or evidence or fairness which the other party did not see or did not fully appreciate. (See also Stevenson & Côté Handbook R. 4.29 n. B.1.)

This recent Court of Appeal decision is Signalta Res. v. Canadian Nat. Resources 2025 ABCA 306 (Sep 12).

http://www.legalviews.com/coteopinion115.htm...
Hon. J.E. Côté

09/02/2025

RELATED LAWSUITS IN DROP-DEAD APPLICATIONS

The Court of Appeal has corrected one test for suits inactive for three or more years. There has long been an exception to automatic dismissal of a suit after 3 years delay, for some cases where there are two similar lawsuits. Sometimes progress in one suit suffices and bars dismissing the other suit. There used to be a different test for two-suit cases. Now the test is the same as where there is only one suit.

When does progress within 3 years in one lawsuit bar dismissing another lawsuit? The answer used to be, when the two suits are inextricably linked.

But the nature of the relation between the two lawsuits can vary a lot. For example, are they similar because they have the same facts? Or the same law? Does one lawsuit's result actually govern the other lawsuit or a big part of it? Is one suit a counterclaim to the other?

The previous test of “inextricably linked” is now gone. It was a mistake. The court decision first using those words was merely reciting the facts in that case, not setting out a test for future cases. Now the test is the usual functional test. Does the activity within 3 years in the other lawsuit significantly advance progress in this lawsuit?

That advance might happen by deciding important facts or law. But it could also happen because the other lawsuit finds that a bar to or precondition for the inactive lawsuit suit, is present or not present. It is probably impossible to predict what other situations may arise where work, or a decision, in one lawsuit significantly advances another lawsuit. Some of the factors in the recent Center St. case helping to make the decision in the other suit significant, are interesting.

See Center St. L.P. v. Nuera Platinum Constr. 2025 ABCA 290 (Aug 26) (¶ʼs 28-39), and Round Hill Consulting v. Parkview Consulting 2025 ABCA 195 (Jun 3) (¶ 14).

Hon. J.E. Côté
http://www.legalviews.com/coteopinion114.htm...

08/18/2025

CORRECTING ERROR

An attentive skilled reader very recently was kind enough to point out an error in the Handbook. I wish that more readers would tell Juriliber when seeing apparent errors in the book.

The commentary on R. 3.3(1) talks about transferring a suit from the wrong judicial centre to the right one, citing R. 10.47. That citation is wrong, and it should refer to R. 10.49.

That is all that you need to know. But in case you are curious, this was not a typo. The first case cited on this topic was decided in 2004, under the former Rules of Court. It would not help readers much to leave in the book a citation of a long-gone old Rule. So whenever such things were found throughout the book, I converted the former Rule numbers to the new current ones. That was a big task, and was done along with making the book's table of concordance between the old Rule numbers and the new. It was based on the final version of the new Rules, as approved by various bodies. But when governments and multiple bodies are involved, final is often not final. Some parts of the new Rules were renumbered. But the renumbering was not announced. Over the ensuing year, we caught most of those changes, but evidently not this one.

Hon. J.E. Côté
http://www.legalviews.com/coteopinion113.htm...

08/08/2025

AMOUNT IN ISSUE

What is the amount “really” in issue in a lawsuit? If you are negotiating, or deciding whether to sue, that is a complex question. But when you deal with the court, that usually is governed by court records.

For effects of a formal offer, the issue is whether the offer is better or worse than the ultimate judgment of the court.

For party-party costs apart from any formal offer, the amount in issue is the amount which the plaintiff claimed in the statement of claim or counterclaim. But if the matter went to judgment, it is the amount set or confirmed by the court governs the level of the plaintiff’s costs. Often costs are awarded before there is any adjudication by the court of any amount. For example, for interlocutory costs before final judgment. Or where the suit is dismissed. Fixing any costs then payable by the plaintiff, needs some idea of the amount in issue in the suit, whether costs are set by a column of Schedule C, or by some other method such as a lump sum.

When the plaintiff (or plaintiff by counterclaim) is to pay some such costs, the amount in issue must be the amount which that paying party claimed in his or her statement of claim (or counterclaim). For various reasons, it is common to claim a little more than the likely outcome, or to claim the largest realistic amount. That modest excess may have some small effect on the level of costs payable by the plaintiff. But in more recent times, some plaintiffs claim huge sums, beyond what is at all reasonable or even possible.

It does not lie in the plaintiff's mouth, when he or she later must pay costs, to say that no one should have taken seriously that sum claimed. If unexpected evidence had come along later allowing a huge award, the plaintiff would usually have had no duty to give advance notice of that. The court could have given a huge award. Several kinds of disclosure (discovery) are allowed, but they do not reveal everything, such as an unexpected lay witness. Or a new precedent from some appellate court. Surprise at trial is not rare.

What if trial seems to be approaching, and the plaintiff does not want to risk paying large costs based on the large unreasonable size of the relief which he or she claims in the statement of claim? Then the plaintiff should amend the statement of claim to seek smaller relief. Absent such an amendment, the defendant and the defendant’s counsel cannot safely ignore the amount claimed in the pleadings as meaningless puffery. They cannot safely, do the minimum of discovery and trial preparation, brief very few witnesses, and send a lone junior to represent them at trial.

See JH Drilling v. Barsi Enterprises ( #2) 2025 ABKB 456 (Jul 31) (¶ʼs 18-19).

Hon. J.E. Côté
http://www.legalviews.com/coteopinion112.htm...

07/21/2025

BACKDATING COURT FILINGS?

Two procedures merge to create a danger. First, court filings by lawyers must be electronic. Second the Clerk will not “backdate” formal filing to the date of receipt. Is that curable, if a limitation period intervenes?

We do not yet have the final word on that. A recent King’s Bench decision reversing an Applications Judge gives suggestions, but no final decision on the basic question. Nor does this decision quite deal with the key question of “backdate” filing. Ordinarily, the plaintiff is not pretending that what really happened on day five, instead happened on day one. If a document is correct and tendered to the right place, the Clerk has no power or discretion to refuse to file it. “Filing” really means confirming that the document was right and in the right place, all along. It does not mean, and never meant, notionally or physically placing it with its sister documents in a certain manila or electronic folder. The justice rightly observed that courts cannot undo statutory limitation periods, but that question does not arise unless delivering to the Clerk in good time a statement of claim to issue, has no legal effect or significance, and cannot have any significance. The justice suggests obiter that the issue is pretending that something was filed earlier than it really was. But where the document is proper, using the term “backdating” suggests that the plaintiff's lawyer and the Clerk did nothing until days after they really did. Or when they should have done.

On other topics, this decision has more importance than mere background. The filing procedure here was clearly not correct, and was not corrected before the statutory limitation period expired. So the Clerk was quite correct in not treating the document as filed before the limitation date had passed. First, the document tendered was identified by the lawyer’s assistant as a discontinuance, whereas it was a statement of claim. Not surprisingly, a big court organization gives the two things different priority. Second, a discontinuance does not require a filing fee, only a small “printing fee”. Astonishingly, the assistant paid that small sum with her own credit card, and so had to see the amount charged. And she was experienced, having earlier learned that issuing a statement of claim costs hundreds of dollars, not the pittance charged here. The Rules of Court clearly require paying the big fee in order to issue a statement of claim (¶’s 76 ff.).

And here is the third flaw. Once the problem was discovered, the lawyer’s office spent many months arguing or negotiating with the Clerk’s office, during that time taking another step in the lawsuit. The Rules of Court plainly say that an application to cure a slip must be made quickly, and before any other steps in the suit (¶’s 34 ff. and 152 ff.).

Those three flaws explain why the justice did not have to decide the broader more interesting question about “backdating” filings.

This recent decision by a justice is Sabir v. Gill 2025 ABKB 402, JCC 2201 11259 (Jul 2).

Hon. J.E. Côté
http://www.legalviews.com/coteopinion109.htm...

07/21/2025

EXPECTING SPEED

Two documents have just been issued by the Court of King’s Bench. One is a supposedly “mandatory” requirement that any suit begun on September 1 or later needs agreement within 4 months after the first defence is filed, on the wording of a litigation plan. The “Court’s expectation” is that the plan will show timely and efficient resolution, and “set a path to trial within 36 months”. But litigation plans are rarely enforceable, or maybe even rarely enforced. And any type of enforcement would require applications, which are badly backlogged and time-consuming, especially before Applications Judges.

The second document is an “Announcement”. Is that a new type of published standing direction different from statutes, Regulations, Rules of Court, Practice Directions, or “Notices”? Besides calling attention to the litigation plan “Notice”, this “Announcement” states an “expectation”. It has three parts. The first is that the pace of lawsuits will no longer be self-directed, despite what the 2010 Rules of Court say. The second part is an expectation that actions will be through the system to trial resolution within 36 months. (Maybe that counts the 36 months from the first Statement of Defence, but that is not clear.) The third part is that there be arrangements so that the Civil Trial Target can be achieved. That includes schedule accommodations and back-up counsel if necessary. (This “Announcement” says a few other things, but they are worded as mere reminders of existing Rules or court decisions or Practice Directions).

Whether an “Announcement” can vary what the Rules of Court say about litigation plans, is not at all clear.

The intent and attitude are laudable. We can all hope that lawyers, self-represented litigants, judges, and governments will all change their attitudes and scheduling and resources accordingly, and that all the court backlogs for trials and applications will quickly melt away. Why? Because I believe that all or almost all of those things would be needed to satisfy the new expectations. In a lawsuit there can be honest arguable differences of opinion on pre-trial topics requiring applications or court directions. That will be true even in a lawsuit where both litigants and both counsel are reasonable, competent, efficient, and have back-up. And some litigants and lawyers are noticeably below perfect.

Even a person who likes to bet on horse races or buy lottery tickets should not bet cash on all those happy spontaneous changes arriving on or before September 1.
– Hon. J.E. Côté
http://www.legalviews.com/coteopinion110.htm...

07/21/2025

WEEKENDS NOT ADDED

People may assume that when some time limit expires during a weekend, it automatically extends to the next business day. That is not so. Times to file papers in court often extend, but many other things probably do not.

If the 3-year “drop-dead” time under R. 4.33 runs out with no significant advance to the action during that time, the court must dismiss the lawsuit. Nothing extends that time for holidays or weekends. Doing something useful on the next business day after the 3 years does not remove the fatal flaw under R. 4.33: Droog v. Hamilton 2025 ABCA 228, Calg 1401 0140 AC (Jun 23) (¶ 7). And even if the plaintiff wanted to serve some document on the defendant, such service does not depend on whether a courthouse or other court facility is open or not. Especially if the lawyer to be served has given an email address or fax number which can be used for service (id. at ¶ 8).

Section 22(2) of the Interpretation Act says that the time to do a thing may be extended to the next business day if the office where that thing had to be done was not open for normal business hours during the last day. But if service on a law office does not require physically leaving a piece of paper, and there is a means of service otherwise, then s. 22(2) is not triggered (id. at ¶ 8). That subsection says “office or place in which the instrument or thing is required to be registered, filed or done”. That is not true of mere service.

More seriously, s. 22 is about the time limit for doing some specific act, whereas R. 4.33 is about a three-year or longer gap. Rule 4.33 is not about whether some specific act can be done after a certain time. Clearly it can. An affidavit of records can be filed later, and is not a nullity. Filing it late meets requirements of the Rules about disclosing relevant and material records. If no R. 4.33 motion is ever filed, there would be no deadline at all for serving the affidavit of records. A late affidavit has some effect as disclosure. Rule 4.33 is about whether the whole action has been left with no significant advance, in any of dozens of possible ways, for 3 or more years (id. at ¶ 7). – Hon. J.E. Côté
http://www.legalviews.com/coteopinion111.htm...

05/07/2025

IGNORING BINDING LAW

A number of my blogs in the last few years have pointed out recent King’s Bench decisions getting the law backwards by citing only a few previous King’s Bench decisions, not mentioning binding contrary decisions of the Court of Appeal. These were all decisions about civil procedure, and the Court of Appeal decisions overlooked were clear, written, available in the usual ways, and easy to find with a bit of obvious research. … See more

http://www.legalviews.com/coteopinion107.htm...

04/17/2025

ILLEGAL LEGAL FEES ARE NOW COMMON

If you or your firm have been retained for a contingency fee, you may not be entitled to that higher fee level, despite the risk and disbursements which you carry. Three recent Alberta court decisions entirely invalidated the contingency fee contracts involved.

http://www.legalviews.com/coteopinion106.htm...

04/10/2025

FILING DOCUMENTS JUST BEFORE A DEADLINE

Backlogs in the Court of King’s Bench and complicated electronic-filing procedures interact, producing bad results. Sometimes it is difficult, even impossible, for a solicitor to launch an application in that court.

What if a deadline expires largely because of the Clerks’ slowness or mistakes? What if solicitors trying to file applications promptly do everything they can? Can the court cure the problem? The answer is by no means clear yet. The best solution would be governance by proper Rules of Court, not the present blizzard of freestanding website announcements and unpublished procedures from the court. And not every flaw in a document should be grounds to reject it. But until the Rules are reformed, case law should be clarified.

http://www.legalviews.com/coteopinion105.htm...

03/20/2025

COACHING OR HECKLING DURING QUESTIONING

For a long time, some counsel have formed the pernicious habit of interfering when the opposing lawyer is examining for discovery (questioning). They may intend to discourage, distract, annoy, or delay. Or they may do it to warn their client that the question is dangerous. Or even to remind their client of what answer they have told their client to give to such a question.

Doing any of that is a serious breach of civil procedure law. It is also a serious breach of the conduct rules imposed by the Law Society. And in strong cases or with bad motives, it is probably a breach of the Criminal Code. Sooner or later, some Alberta counsel doing this is going to face much bad publicity and quite possibly serious personal penalties. Or maybe something worse.

When the other side questions your client, rarely is it proper to do more than briefly object to a question, with a short explanation of the nature of your objection. And even that has to be an arguable objection. What if you go with your client to a questioning where he or she is the witness, without you knowing the law about what questions are proper and what are not? That is obvious negligence. Negligence or ignorance is no excuse.

Answering a question in place of your client is probably all of those things, and often substantively dangerous as well.

The most recent decision on this is about cross-examination on an affidavit (also called “questioning” by the Rules). It is Astolfi v. Stone Creek Resorts 2025 ABKB 139 (Mar 7) (¶’s 74-75).

http://www.legalviews.com/coteopinion103.htm...

Hon. J.E. Côté

03/20/2025

INTERIM OR FINAL?

A basic question in family law chambers is whether the order sought or given is final or just interim. Stating that is very important for many reasons, substantive and procedural. The Court of Appeal has been pointing that out for some time now, but some of the Bar are not listening.

The latest of these problems saw three lawyers draft and sign a formal order after a decision on corollary relief. Yet the order did not state which it was (final or interim). Later, a Court of Appeal Justice asked which it had been. The counsel could not agree, even after the Justice obtained and read the transcript and pointed out what the King’s Bench justice had said. So, the Justice in the Court of Appeal gave leave to file and serve a late appeal.

Specializing in one type of law has drawbacks as well as advantages. Some family law counsel assume that ordinary rules and procedures do not apply in family law litigation. That reinforces the drawbacks. Lawyers with more general litigation practice are much less likely to make that mistake of ignoring general law. Judges certainly do not.

The decision referred to is Thomson v. Thomson 2025 ABCA 89 (one JA Mar 12).
http://www.legalviews.com/coteopinion104.htm...

Hon. J.E. Côté

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