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Côté’s Commentaries

© 2016 J.E. Côté

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: or phone 780-424-5345.


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

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,

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Monday, July 4 , 2017 - Strictissimi Juris


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.

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


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?

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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.

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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.

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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; ...

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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 ...

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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 ...

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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, ...

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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, ...

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View the Handbook

Rules and commentary contained in Volume 1 of the Alberta
Civil Procedure Handbook 2017.