Commentaries
Access the latest opinions of the Honourable Jean E. Côté, Lately a Justice of the Court of Appeal of Alberta right here!

Quote For The Day

 

Welcome

Côté’s Commentaries

© 2016-2021 J.E. Côté

 


From the Desk of the Honourable Jean E. Côté, Lately a Justice of the Court of Appeal of Alberta:

Tuesday, November 16, 2021 - Types of Injunctions

Any litigator who is likely to become involved in injunctions would benefit from reading a recent Queen’s Bench decision. For one thing, ...

Read More ...

Friday, October 1, 2021 - Orders After Litigation is Over

The Supreme Court has just reaffirmed the “functus officio” doctrine. It usually bars reopening a court decision about the merits, which is or was capable of appeal. Indeed, courts lack jurisdiction after their final ...

Read More ...

Wednesday, August 1, 2021 - Discoverability for Limitation Periods

Ordinary limitation periods for suing usually start to run once the reasonableness of suing is discoverable. (Ultimate limitations periods do not require that, but ...

Read More ...

Thursday, August 5, 2021 - Releases of Claims

Insurance companies and lawyers often use printed forms or traditional wordings when someone signs a release of a claim. That can produce uncertainties. The uncertainties have now changed because of a very recent Supreme Court decision; now they are ...

Read More ...

Monday, June 7, 2021 - Language Used Still Matters

The big fight over how to interpret legislation has produced another battle. ...

Read More ...

Monday, May 17, 2021 - Serving Uncooperative People

There are more difficult, disorganized, excitable, very hostile, tricky, or dishonest litigants than there used to be. For some reason (maybe irrational), many of them especially resist service, or ...

Read More ...

Thursday, April 15, 2021 - Death and After-Life of Contingency Agreements

Review officers dealing with any kind of a retainer or fee agreement between client and lawyer sometimes face some detours. The officers are not ...

Read More ...

Monday, February 22, 2021 - Legal Analysis

Nowadays people commonly emphasize the aims and interests of groups, when creating or applying law. That approach has some value. But it often leads to rejecting any thinking which seems analytical or abstract. Such brush-offs can appeal both to lobbyists or activists,...

Read More ...

Tuesday, February 2, 2021 - Costs Clarified at Last

90 years ago, aviators and archaeologists rediscovered intact impressive Mayan temples hidden for 300 years by overgrown jungle. The ...

Read More ...

Monday, January 4, 2021 - Urgent!

Huge changes have just hit the law of contract. You and every lawyer with whom you practice, at once ...

Read More ...

Thursday, December 10, 2020 - Traps and Confusion in Service Times

Inside a recent Court of Appeal decision are timing decisions which give 4 pieces of guidance on how to calculate ...

Read More ...

Tuesday, November 24, 2020 - Don't Cut Corners

Even able and experienced lawyers make mistakes. Some mistakes are quite common. Why? Simple ...

Read More ...

Friday, October 2, 2020 - Consent Orders

A very recent decision of the Alberta Court of Appeal matters to you: Custom Metal Installations v. Winspia Windows 2020 ABCA 333 (Sep 21). First, it deals with ...

Read More ...

Tuesday, August 4, 2020 - Electronic Hearings

Recently, courts have experimented with the benefits of virtual hearings or appearances by electronic means. The current pandemic has ...

Read More ...

Tuesday, July 21, 2020 - Ceasing to Act

In a civil suit, a lawyer for one party usually can stop acting without anyone’s permission, by giving sufficient notice to the client. (At times, resigning is too harmful to be allowed, e.g. ...

Read More ...

Monday, June 29, 2020 - Writing Skills

One skill which most lawyers should improve, is writing clearly and simply. Clients will be thankful. Clarity and easy reading may ...

Read More ...

Monday, June 29, 2020 - Keeping Up With the Law

You need to keep up with developments in the law. You do not always have to become fully familiar with some legal topic or new development. You need to know that it exists, and what sort of things it might affect. And ...

Read More ...

Monday, June 22, 2020 - Assets as a Test for Security for Costs

A very recent decision helps clarify our thinking about inability to pay ...

Read More ...

Friday, June 19, 2020 - What is This Case About?

One approach to oral argument should be better known. It is effective in an appeal court with short time limits for oral argument. And in many other settings. For example, before a regulatory tribunal ...

Read More ...

Thursday, June 11, 2020 - Cross-Examining Child Witnesses

Many lawyers are well used to cross-examining adults, or seeing their adult witnesses cross-examined. But if ...

Read More ...

Wednesday, May 20, 2020 - Formal Offers

The Alberta Court of Appeal has just clarified which formal offers to settle have an effect on costs. In particular, two questions: ...

Read More ...

Wednesday, May 13, 2020 - Vexatious or Self-Represented Litigants

Some medium-sized changes in the law relating to vexatious or self-represented litigants have just been made by the Alberta Court of Appeal. They affect notice, ...

Read More ...

Tuesday, January 7, 2020 - G.S.T. and Costs

If one party to a lawsuit is awarded costs from another party, can G.S.T. be added on top of the fees and disbursements? For example, suppose that a judge orders a party to pay to the opposite party $1000 costs (but no disbursements). Does the party awarded costs get a cheque for $1000, or a cheque for $1050? ...

Read More ...

Friday, December 20, 2019 - Electronically Navigating the Handbook

Over the years the Civil Procedure Handbook has been enriched by more and more decisions. But that has not made it easier to find law in it quickly. It is always frustrating to recall vaguely that you once saw a Rule or commentary on point, but not be able to find it in the book. ...

Read More ...

Monday, October 21, 2019 - Questioning is a Bad Word

Those drafting the 2010 Alberta Rules of Court said the new Rules were intended to make terminology easier for people not used to litigation. Unfortunately, sometimes the new Rules make it harder ...

Read More ...

Monday, July 29, 2019 - Dismissal for Delay

The Court of Appeal has just issued a lengthy judgment on dismissal for want of prosecution under R. 4.31. It touches on undertakings too. It makes many important legal points, and lawyers involved in litigation should read all of it. ...

Read More ...

Tuesday, May 7, 2019 - Rule 4.31 Fallacies

Courts are now more willing to use the 3-year drop-dead Rule. But some judges and masters still are very reluctant to use Rule 4.31 on inordinate delay. Others have noticed that the culture of tolerance for all delays has shifted, that criminal litigation gets dismissed after 2 or so years without a trial, and ...

Read More ...

Monday, March 18, 2019 - More Dangers in Oral Fee Agreements

A recent decision containing much very dubious law creates grave retroactive dangers for every Alberta lawyer hoping to be paid by a client. Not having a written retainer agreement is usually permitted by law. But it was always dangerous. Now it is extremely dangerous, because ...

Read More ...

Monday, February 11, 2019 - Weir-Jones Decision

On February 6 2019, the Court of Appeal issued an important 5-judge decision settling the tests for summary judgment (and commenting on summary trial). It is called Weir-Jones Tech. Services v. Purolator Courier 2019 ABCA 49, Edm 1703 0218 AC (affg 2017 ABQB 491). Any lawyer should read it...

Read More ...

Wednesday, January 9, 2019 - Discouraging Settlements

Over 95% of lawsuits never reach trial. Eventual settlement is usual. But most settlements are hard to make, because the parties discuss settlement only after spending large unnecessary sums ...

Read More ...

Friday, November 30, 2018 - European Court Helps You Twice

Whatever you think of the European Union, the Greek economy, Brexit, and the E.U.’s various legal and constitutional policies, the European Court of Justice has written two judgments on practical topics. They may well be relevant ...

Read More ...

Friday, November 23, 2018 - Courts Overruling Tribunals

Courts often quash an administrative decision after a judicial review hearing. But then what happens? ...

Read More ...

Friday, November 16, 2018 - New Evidence on Appeal

Adding new evidence before the Court of Appeal which was not in the court or tribunal appealed from, is unusual. It requires special procedures. The Rules say so. See also the Stevenson & Cote Handbook, R.14.45 n.A. The Court has developed some additional practices and procedures on this topic. Sometimes the situation arises unexpectedly, at an awkward stage ...

Read More ...

Wednesday, October 31, 2018 - Schedule C's Role

Alberta litigants are being slowly starved without noticing it. The proportion of necessary legal expenses which the winner of a lawsuit can recover in costs keeps drying up. There are a dozen reasons for that, some deliberate, some the product of neglect. Many stem from ...

Read More ...

Tuesday, July 17, 2018 - Loopholes in Enforcing Settlements

A. Introduction
Two recent English decisions make one think. The precise legislation and legal conclusions discussed in them may well not apply in Alberta. But they raise some basic universal aspects of enforcing settlements or other agreements in disputes. So trying to distinguish the English cases is somewhat beside the point. These cases suggest that you re-think how you would enforce a settlement ...

Read More ...

Monday, May 7, 2018 - Enforcement of Procedure Rules

The Court of Appeal has had to emphasize and enforce two legal rules. Evidently some counsel do not know them or are uncertain about their boundaries.

The first rule is that every party to a lawsuit must get formal notice of every application (motion) made in that lawsuit. Even if the party moving thinks that some of the parties to the suit would not be affected by the application, e.g. because their role or connection is presumed to be narrow. One neverr ...

Read More ...

Monday, April 16, 2018 - Limping Lawsuits are Often Doomed

For years, Alberta courts were very reluctant to dismiss a lawsuit for delay (nonprosecution). That has now changed radically, partly because of the backlog of deserving lawsuits being actively pursued. Aiding that change is the Supreme Court's culture shift in civil and criminal cases toward faster litigation. The right to access the courts is conditional on not abusing that right. Plaintiffs should keep their suits ...

Read More ...

Monday, April 3, 2018 - Court of Appeal Tips for Summary Decisions

Summary judgment is extremely popular at present, given the Supreme Court of Canada's new receptive philosophy. And the topic extends beyond summary judgment. Many times in chambers there is a big issue over whether a judge can decide topics on affidavits, or whether trial of an issue, or a full trial, will be needed. Some ...

Read More ...

Monday, March 19, 2018 - Serious Dangers in Chambers Applications

The Court of Appeal has issued a carefully-written and researched judgment which every litigation lawyer should read. (It is cited near the end of this blog.) The appeal was from Anton Piller orders and Mareva injunctions and similar freezing orders. But the Court’s discussion is not confined to such topics. In particular, ...

Read More ...

Tuesday, February 13, 2018 - Court Backlog

The current backlog in the Alberta Court of Queen's Bench is unfortunate, and the failure of the federal government to appoint ...

Read More ...

Monday, December 18, 2017 - Lowering the Status of Courts

Some people now assert that courts work better when they are relaxed, informal, modern, familiar, and unimpressive. Those people rarely offer any proof or even argument. I am more than sceptical...

Read More ...

Friday, September 15, 2017 - Access to Courts Decisions

About 1940, a British expert committee gave a very thoughtful report on how to give the profession and the public meaningful access to court decisions. The British had a few other things on their mind that year, and resources were thin. That valuable report is long forgotten. Then in the 1970s the Canadian Law Information Council did similar work,

Read More ...

Monday, July 4 , 2017 - Strictissimi Juris

Introduction

Many procedural technicalities in criminal law are now popular, even constitutionally entrenched. But civil procedure has moved the other way. Every set of Rules of Court, many statutes, and two thirds of the decided cases, say that most slips should be ignored or cured. Particularly when they have not prejudiced anyone.

Read More ...

Thursday, June 15 , 2017 - Why Don't Your Clients Settle?

Introduction

Everyone gives lawyers shopworn advice. One piece is to settle your clients' disputes early. No one disagrees: litigation today is more disappointing than ever, and very few pieces of litigation ever get to trial. But does that frequent advice work? Most settlements occur far too late, after both sides have sunk or wasted huge sums on the lawsuit. An increasing number of suits are just abandoned, or dismissed for want of prosecution.

So why do so few suits settle earlier?

Read More ...

Monday, June 5 , 2017 - Gap in Rules About Parties

Master Schlosser has discovered and explained what appears to be a serious gap in the Rules of Court. It is in the Rules dealing with adding parties. Once the pleadings have closed, it takes a court order to add a new party to a lawsuit. Rule 3.74 covers that, and allows an order in two circumstances.

Read More ...

Monday, June 5, 2017 - Personal Costs Against Solicitors

When can the court make a solicitor pay costs personally? The case law was strict, almost prohibitive. But in May 2017, the Supreme Court of Canada issued a new judgment on the subject: Director of Criminal and Penal Prosecutions v. Jodoin 2017 SCC 26. If one looked only at the statement in Jodoin of the test for such an order, (or its routine statement that this will not come up often), one might think that the change made by Jodoin was small. But if one looks at the facts of the case, and the description of the basic underlying principles, there are considerable indications that from now on, it will be easier for courts to award costs personally against solicitors. The Supreme Court makes it clear that all courts have that power, including statutory courts such as Provincial Court or the Federal Courts.

Read More ...

Wednesday, April 26, 2017 - Clogged Courts

Alberta’s Court of Queen’s Bench are working exceptionally hard, but despite their efforts bad backlogs have built up. It is not the judges' fault, but you can wait a long time for a trial or even to have your interlocutory application heard. That can do serious financial harm to your client, quite apart from the mental strain and depression of hope deferred.

What can you do to surmount the problems caused by the big backlogs? Here are some possible avenues to investigate: the law of interest matters: brush up on it, and keep it in mind when drafting a contract or trust conditions, and throughout a lawsuit; ...

Read More ...

Tuesday, April 11, 2017 - Dismissal for Want of Prosecution

One of Canadian law’s oddities is that many judges love to enforce procedural rules in criminal law, but scorn such rules in civil cases. That discrepancy has been greatest on the topic of dismissal for want of prosecution. And the Ontario Court of Appeal has shown the most marked example of that inconsistency. One looked hard to find any Ontario cases dismissing a civil case for non-prosecution.

Many civil decisions said that a hiatus of well over 10 years had no serious effect on the quality of evidence, even in the face of a legislated presumption of prejudice after years ...

Read More ...

Friday, January 6, 2017 - Incomplete Disclosure

Sometimes you form a strong suspicion that your opponent has not made full enough disclosure in its affidavit of records. That suspicion is often wise, as many parties' search for relevant records is very skimpy and ill-informed. But actual evidence that that disclosure is incomplete is usually poor and indirect.

So what should doubting counsel do? Often they at once apply for a further and better affidavit of records, just relying on omission of one or two minor pieces of paper, and some suggestive clues. Likely that is not enough ...

Read More ...

Thursday, December 15, 2016 - Mediation

Lawyers constantly work to induce people to agree to things. Lawyers often see their task as bending the will of the opponent, and the very word "persuade" seems to reinforce that..

But recent psychological research on mediation strongly suggests that that is not quite correct. Indeed, an opponent who is not very interested in his or her own welfare and position, or evaluating it, is less likely to reach an agreement or stick to such an agreement. Why is not clear; doubtless there are several reasons. Therefore, ...

Read More ...

Wednesday, November 23, 2016 - Is Contract Interpretation Law?

One of the most vexed questions for courts to decide, is what is a question of law and what is a question of fact. Many consequences can come from such characterization.

We all used to think that we knew one thing. There was no appellate deference to trial court decisions on questions of law. But then the Supreme Court of Canada started giving extra levels of deference to administrative tribunals. More recently, in Sattva Cap. Corp. v. Creston Moly Corp., it held that generally interpretation of a contract is not a question of law and so appellate deference is owed, ...

Read More ...

.................

The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.

Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.

He may be contacted through Juriliber at:

email: info@juriliber.com or phone 780-424-5345.


View the Handbook


Rules and commentary contained in Volumes 1 & 2 of the Alberta
Civil Procedure Handbook 2021.