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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
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January 25 , 2022
Enforcing Land Sales Becomes Easier |
January 5 , 2022
Proving a Settlement After a Mediation
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November 16, 2021
Types of Injunctions
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October 1, 2021
Orders After Litigation is Over
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August 11, 2021
Discoverability for Limitation Periods
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August 5 , 2021
Releases of Claims
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June 7 , 2021
Language Used Still Matters
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May 17 , 2021
Serving Uncooperative People
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April 15 , 2021
Death and After-Life of Contingency Agreements
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February 22 , 2021
Legal Analysis
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February 2 , 2021
Costs Clarified at Last
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January 4 , 2021
Urgent!
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December 10, 2020
Traps and Confusion in Service Times
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November 24, 2020
Don't Cut Corners
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October 2 , 2020
Consent Orders
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August 4 , 2020
Electronic Hearings
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July 21, 2020
Ceasing to Act
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June 29, 2020
Writing Skills
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June 29, 2020
Keeping Up With the Law
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June 22, 2020
Assets as a Test for Security for Costs
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June 19, 2020
What is This Case About?
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June 11, 2020
Cross-Examining Child Witnesses
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May 20 , 2020
Formal Offers
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May 13 , 2020
Vexatious or Self-Represented Litigants
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January 7, 2020
G.S.T. and Costs
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December 20 , 2019
Electronically Navigating the
Handbook
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October 7 , 2019
Questioning is a Bad Word
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July 29 , 2019
Dismissal for Delay
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May 7 , 2019
Rule 4.31 Fallacies
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March 18 , 2019
More Dangers in Oral Fee Agreements
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February 11 , 2019
Weir-Jones Decisions
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January 9 , 2019
Discouraging Settlements
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November 30, 2018
European Court Helps You Twice?
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November 23 , 2018
Courts Overruling Tribunals
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November 16 , 2018
New Evidence on Appeal
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October 30 , 2018
Schedule C's Role
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July 17 , 2018
Loopholes in Enforcing Settlements
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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? |
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Welcome
Côté’s Commentaries
© J.E. Côté 2016-2023
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LURKING DANGERS AND ERRORS
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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
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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: info@juriliber.com or phone 780-424-5345.
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