February 29 , 2024

Disclosure in Chambers

February 21 , 2024

Not Attending a Hearing

January 31 , 2024

The Suggestions Box

January 2 , 2024

Plain Language for Lawyers

December 15 , 2023

Limitation Periods Have Shrunk

November 30 , 2023

Advocacy's Key

November 28 , 2023

Motions Fritter Away Time and Money

November 27 , 2023

Will Foreclosure History Repeat Itself?

November 21 , 2023

Rules of Court Bind Even the King's Bench

November 2, 2023

Records and Affidavit of Records

November 2 , 2023

Uncommon Law

October 20 , 2023

Expanding Judicial Review Evidence

June 22, 2023

Competition v. Benefits

June 19, 2023

Clogged Courts

June 12, 2023

Preparing Applications in Uncertain Conditions

May 8, 2023

Competence is a Delicate Flower

March 30 , 2023

Urgent! Very Hard to Meet a Limitation Period

March 13 , 2023

Parties to Planning Appeals

March 7 , 2023

Costs in Family Law Litigation

January 30 , 2023

Dodging Settlement Privilege

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 2016-2024


Well-established rules dictate to lawyers who argue applications what they must tell the judge or justice. These rules are not merely matters of ethics and fairness; they are binding law. Here are four of those rules:

  1. If the application is made without notice (or maybe if the other party does not show up), counsel must reveal all the material facts to the court. (The decision discussed here is brief, and does not say whether the opposing party was present or not.)
  2. Counsel must find and cite to the court the relevant legislation and case law, even if it works against that counsel. I have written many blogs showing procedural decisions in King’s Bench following only Queen’s Bench or King’s Bench precedent and omitting contrary Court of Appeal decisions. Often that must be counsel’s failing.
  3. Counsel must not state misleading facts or half-truths. (For example counsel must not state that other absent counsel had notice of this application, not revealing that the other counsel had been suddenly hospitalized. Nor can counsel rely on a document without revealing that the other side insists that it is a forgery.)
  4. Counsel must not state alleged facts which are not proved by sworn evidence (such as an affidavit) or proved directly from the court’s own record of this lawsuit.

Recently a self-represented defendant had not filed a defence and had been noted in default. Then plaintiff’s lawyer applied for and got a final judgment on the merits. The plaintiff’s lawyer knew the procedural facts, and should have known the law. But the plaintiff’s lawyer did not tell the justice six things; that

  1. the defendant had contacted the plaintiff’s lawyer and showed every intent of defending;
  2. the defendant had given the plaintiff’s lawyer a copy of the draft statement of defence which the defendant wished to file and rely on;
  3. the defendant had tried to file that defence with the Clerk, but the Clerk had not accepted it (and surely the plaintiff’s lawyer knew that filing urgent papers is now complex and counter-intuitive);
  4. the defendant had tried to retain counsel;
  5. the defendant intended to apply to the court to set aside the noting in default; and
  6. there are two Court of Appeal decisions setting out the relevant law and tests for such default situations, which differ significantly from the Queen’s Bench decision which the plaintiff’s lawyer cited and the justice relied on. The Court of Appeal decisions are clear, their facts are strong, and each is reported in a well-known law report which gives headnotes. Counsel must know that it is normally easy to open up a default; one of the few exceptions is the defendant’s delay in so applying. The wrong law cited here was about that topic.

Furthermore, the defendant had indeed filed and had pending, a cross-application to set aside the noting in default. Sadly, by some “procedural irregularity”, the justice heard the plaintiff’s later application for final judgment, and seems not to have considered the defendant’s earlier application to open up the noting in default. Did anyone tell the justice that?

The Court of Appeal predictably set the judgment aside, and the plaintiff got only a small bit of thrown-away costs.

The Court of King’s Bench is shorthanded and short of resources. Morning chambers can be a little like a crowded emergency ward. So when a party has a lawyer, the chambers judge or justice must put considerable reliance on that lawyer. Being an “officer of the court” is neither an obsolete notion, nor a sentiment from Hallmark Cards. It is more real today than ever. Barristers are given tremendous advantages, and must daily earn them.

See Amway Solutions v. Bellotto 2024 ABCA 59, Calg 2201 0293 AC (Feb 23).

– 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.

The Hon. Jean Côté retired from the Court of Appeal of Alberta and would be willing to act 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.