January 4 , 2023

Lurking Dangers and Errors

January 3 , 2023

Your Real Goals

December 5 , 2022

Contracts for Higher Costs

November 24 , 2022

Scope of Offers to Settle

October 13 , 2022

Checklist for Cross-Examination

September 16 , 2022

Reviewing Latest Changes

August 22 , 2022

First Steps in Problem Solving

July 28 , 2022

Checklist of Powerful Procedural Principles

March 22 , 2022

Repeating a Cross-Examination Question

January 25 , 2022

Enforcing Land Sales Becomes Easier

January 5 , 2022

Proving a Settlement After a Mediation

November 16, 2021

Types of Injunctions

October 1, 2021

Orders After Litigation is Over

August 11, 2021

Discoverability for Limitation Periods

August 5 , 2021

Releases of Claims

June 7 , 2021

Language Used Still Matters

May 17 , 2021

Serving Uncooperative People

April 15 , 2021

Death and After-Life of Contingency Agreements

February 22 , 2021

Legal Analysis

February 2 , 2021

Costs Clarified at Last

January 4 , 2021


December 10, 2020

Traps and Confusion in Service Times

November 24, 2020

Don't Cut Corners

October 2 , 2020

Consent Orders

August 4 , 2020

Electronic Hearings

July 21, 2020

Ceasing to Act

June 29, 2020

Writing Skills

June 29, 2020

Keeping Up With the Law

June 22, 2020

Assets as a Test for Security for Costs

June 19, 2020

What is This Case About?

June 11, 2020

Cross-Examining Child Witnesses

May 20 , 2020

Formal Offers

May 13 , 2020

Vexatious or Self-Represented Litigants

January 7, 2020

G.S.T. and Costs

December 20 , 2019

Electronically Navigating the

October 7 , 2019

Questioning is a Bad Word

July 29 , 2019

Dismissal for Delay

May 7 , 2019

Rule 4.31 Fallacies

March 18 , 2019

More Dangers in Oral Fee Agreements

February 11 , 2019

Weir-Jones Decisions

January 9 , 2019

Discouraging Settlements

November 30, 2018

European Court Helps You Twice?

November 23 , 2018

Courts Overruling Tribunals

November 16 , 2018

New Evidence on Appeal

October 30 , 2018

Schedule C's Role

July 17 , 2018

Loopholes in Enforcing Settlements

May 7 , 2018

Enforcement of Procedure Rules

April 16, 2018

Limping Lawsuits are Often

April 3 , 2018

Court of Appeal Tips for
Summary Decisions

March 19, 2018

Serious Dangers in Chambers

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

April 26, 2017

Clogged Courts

April 11, 2017

Dismissal for Want of

January 6, 2017

Incomplete Disclosure

December 15, 2016


November 23, 2016

Is Contract Interpretation Law?


Côté’s Commentaries

© J.E. Côté 2016-2023


A recent case reminds us of several types of dangers in litigation

Law and practice today is complex, so eventually most lawyers specialize to some degree. But that has dangers. In particular, most superior court judges are not specialists: they hear cases of every type. All judges who hear any kind of appeal, hear appeals on all topics.

That is doubly important where legislation is involved: statutes, Rules of Court, and Regulations. Legislation is not optional. It is usually broad, not confined to specialized legal practice, such as labor law or family law.

Recently, counsel told a King’s Bench justice that the Medicine Hat Family Bar had decided not to be bothered with the relevant Regulation and Rules of Court about applications in Provincial Court. The Rule calls for a written Application, but counsel were just turning up in court and making applications orally. Astonishingly, counsel even said that the Medicine Hat clerks would refuse to file written Applications. (Maybe part of the problem is that the current Rules of Court use the word “application” to refer both to a written document and to an oral request made live in court.)

So on this appeal to King’s Bench, some of the most basic facts and procedures below were mysterious; there was no record which King’s Bench could use to clarify that. And in Provincial Court, the respondent to the oral application had not got the most basic notice, which is a fundamental part of natural justice. The transcript of the oral proceedings left very unclear even whether there had been an oral application on a certain point.

On appeal, the justice very properly was having none of that. She held that fundamental fairness and basic needs of an appeal were not being met, and that the Regulation and Rules were binding. See A.M.F. v. G.H.P. 2022 ABKB 758 (Nov 16), esp. ¶’s 25-30, 33-34.

This decision should not surprise any lawyer. The only surprise is that any lawyers would think that provincial Regulations and Rules of Court are not in force in Medicine Hat. Or that family law lawyers would think that general legislation does not apply to them.

Present-day court procedures are often reforms extended to prevent former types of misunderstanding or confusion. And to give fairness through notice. Rewriting the history of 9 months ago is particularly dangerous in litigation. Sometimes a tricky litigant will revive some long-forgotten, misleading or dangerous procedural shortcut, seeking to gain advantage. Until one experiences the results, the full dangers may not be obvious. But ignoring basic Regulations and Rules often produces problems which any lawyer should be able to foresee. Judges usually see or foresee that, often because of previous sad experience.

Almost all court decisions are subject to appeal, and good lawyers try to avoid a favorable decision which they cannot hold on appeal

– 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: or phone 780-424-5345.