Index

May 7 , 2018

Enforcement of Procedure Rules


April 16, 2018

Limping Lawsuits are Often
Doomed


April 3 , 2018

Court of Appeal Tips for
Summary Decisions


March 19, 2018

Serious Dangers in Chambers
Applications


February 13 , 2018

Court Backlog


December 18 , 2017

Lowering the Status of Courts


September 15 , 2017

Access to Court Decisions


July 4 , 2017

Strictissimi Juris


June 14 , 2017

Why Don't Your Clients Settle?


June 5 , 2017

Gap in Rules About Parties


June 5, 2017

Personal Costs Against
Solicitors


April 26, 2017

Clogged Courts


April 11, 2017

Dismissal for Want of
Prosecution


January 6, 2017

Incomplete Disclosure


December 15, 2016

Mediation


November 23, 2016

Is Contract Interpretation Law?

 

Welcome

Côté’s Commentaries

© 2016 J.E. Côté

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 never knows what indirect effects some future order might have on another party. Those other parties have a right to think about that and comment to the court. To do that, they need formal notice. See the Liu case.

The second rule is that there is a huge difference between an interlocutory injunction (given before trial or any final judgment), and a final injunction (typically given at the end of the trial). In particular, the tests for giving them are very different, indeed radically different. The tests for the two do not even overlap very much. Vagueness about whether the proposed order is final or not, thus can lead to fundamental errors in what law to apply. Not to mention failures of notice and breaches of natural justice. Do not assume that such vagueness is unlikely. It may be less common in commercial litigation, but such vagueness sometimes besets family law chambers applications. See the Liu case.

The Court of Appeal decision also talks about injunctions to enforce restrictive covenants. The citation is Liu v. Hamptons Golf Course 2017 ABCA 303 (Sep 22).

– Hon. 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: juriliber@shaw.ca or phone 780-424-5345.