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After a brief review of the nature and scope of Aboriginal interests, this paper addresses the current state of the law in this area. Specifically, the author investigates the source of the duty to consult, when the duty is triggered, who owes the duty, the nature and content of the duty, who is to be consulted, what it means to accommodate Aboriginal interests, and finally, some practical considerations. This paper was presented at the Aboriginal Issues seminar in November - December 2012.
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Organized by the different sections of the Alberta Rules of Court, this collection of papers provides case summaries and analysis of recent significant decisions under the Alberta Rules of Court. Included are discussions on the following: • Foundational Rules, by Glenn Solomon QC • Court Actions, by Darren J. Reed and Deborah Book • Managing Litigation, by Gavin Price and Johanna FitzPatrick • Disclosure of Information, by Kent Jesse and Justin Krikler • Applications, by Laurie Goldbach • Trials and Experts, by Edward W. Halt QC and Johanna C. Price • Judgments and Orders, by David Jardine • Technical Rules, by Vivian R. Stevenson QC and Alex Kennedy These papers were presented at the Rules of Court Interpreted program in November 2012.
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This paper reviews the terms of the Alberta SEF 44 and the impact of 3 recent and contradictory Court of Appeal decisions from PEI, Nova Scotia, and New Brunswick. While none of these decisions is binding, the author notes that their impact in Alberta will be largely determined by the interpretation of the SCC decision in Somersall v. Friedman. The author concludes that the New Brunswick decision is inconsistent with the SCC characterization of the SEF 44 policy as “indemnity” coverage which should be interpreted in a way to avoid double recovery to the injured claimant. For this reason speculates that Alberta will not rely on the NBCA case, and will instead rely more so on the PEI and NS cases. This paper was drawn from materials presented at the Personal Injury and Insurance Update program held in May 2012.
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This paper looks at the strategic selection of experts so as to maximize the likelihood of recovering the disbursement paid for the expert services. The author reviews the Alberta Court of Queen’s Bench decision Meehan v. Holt and speculates about the state of the law. He identifies several factors for counsel to consider before retaining an expert, such as think carefully about whether you really need an expert, avoid duplicity of experts, carefully instruct your expert, and obtain detailed bills and accounts. Ultimately, he concludes that although it is wise to be cautious when incurring expenditures, the best option is to keep open the lines of communications . This paper was drawn from materials presented at the Personal Injury and Insurance Update program held in May 2012.
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This paper focuses on the assessment of damages for loss of working capacity and cost of future care. The first part of the paper provides an overview of the legal principles that inform the process of assessing damages for loss of future income and future cost of care. Topics discussed include proving the cost of future care damages, post-accident life expectancy, and limits to recovery of damages. The second part of the paper deals with the issue of liability in catastrophic cases—an issue that is often overshadowed by the preoccupation with quantum. This paper was drawn from materials presented at the Personal Injury and Insurance Update program held in May 2012.
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This paper provides a comprehensive overview of the law of causation, including a review of the case law beginning with the House of the Lords and concluding with the Supreme Court of Canada trilogy of Snell v. Farrell, Athey v. Leonati, and Hanke v. Resurfice. The author then considers the application of the SCC articulated principles in recent Alberta and B.C. cases and draws conclusions about the state of the law. This paper was drawn from materials presented at the Personal Injury and Insurance Update program held in May 2012.
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The author of this paper, a clinical psychologist, discusses the different types of brain injuries and the various disabilities associated with each type and severity of injury. He also considers the importance of co-morbidity issues and the different information likely to be obtained through a vocational assessment versus a neuropsychological assessment. He concludes by noting the significance of vocational assessments and knowledge about residual disability in assessing the future employability of a person who has suffered a brain injury. This paper was drawn from materials presented at the Personal Injury and Insurance Update program held in May 2012.
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In this paper the author looks at the new “drop dead” rule (4.33) which came into force in November, 2013. He looks at how it’s different from the old rule, and how the rule might apply in multiparty actions and separate but related actions. The paper ends with practice tips to consider in preparation for the coming into effect of the rule. This paper was drawn from materials presented at the Case Management, Litigation Plans and the “Drop Dead” Rule seminar held in April 2012.
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Moving Ahead – Litigation Plans in Action R.L Duke, QC This paper provides a thorough overview of the rules relating to litigation plans by first, distinguishing the new Rules from the old Rules, second, reviewing the responsibilities of the parties to manage their own disputes, and third, discussing the categorization of an action as standard or complex. It also surveys the case law in relation to litigation plans and discusses litigation plans within the overall context of managing litigation. Litigation Plans – Defence Perspective James T. Eamon, QC After reviewing the litigation plan requirements, the author speculates about a possible defence perspective of the litigation plan requirements and offers suggestions for effective drafting of litigation plans. These papers were drawn from materials presented at the Case Management, Litigation Plans and the “Drop Dead” Rule seminar held in April 2012.
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Current Issues Under the Rules of Court Justice Robert A. Graesser This paper discusses 4 sections from the Rules of Court: case litigation plans, mandatory pre-trial dispute resolution, dismissal for delay (“drop dead” provisions) and case management. Justice R.A. Graesser thoroughly reviews the relevant rules, canvasses the issues relating to those rules, reviews developments in case law, and makes suggestions for effectively navigating the rules. This is a must read paper for the most current perspective on these rules. Case Management Counsel Pilot Project in Edmonton Sandra L. Schulz, Q.C. This paper looks at the Case Management Counsel Pilot Project (CMCPP) in Edmonton by reviewing the experiences to date of the project. If you have questions about the CMCPP, this paper is for you. Managing Your Litigation under the New Alberta Rules of Court Justice Terrence F. McMahon Susan Borsic-Drummond Rule 4.1 establishes the principle that it is the responsibility of the parties to manage litigation. This article reviews the subsequent duties that flow from this foundational rule, including categorizing your case as standard or complex, agreeing on a litigation plan, participating in a dispute resolution process, and avoiding applications of dismissal for long delay under Rule 4.33 (the “drop dead” rule). It then discusses the use of case management judges and the Case Management Counsel Pilot Project. These papers were drawn from materials presented at the Case Management, Litigation Plans and the “Drop Dead” Rule seminar held in April 2012.
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While injunctions have long been part of the judicial arsenal, in more recent years several new forms of injunctions have been developed by the Courts. This paper reviews injunctions as an equitable remedy, highlighting Mareva injunctions, Mills Injunctions, s. 17 of the Civil Enforcement Act, and preservation orders. Also learn about other extraordinary remedies – such as Norwich Orders and Anton Piller Orders – that have developed in conjunction with injunctive relief. This paper was drawn from materials presented at the Common Chambers’ Applications seminar held in February 2012.
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This paper was drawn from materials presented at the Common Chambers’ Applications seminar held in February 2012. This paper examines the concept of judicial review, relevant time limitations, the appropriate court, types of decisions subject to review, admissible evidence, and standards of review. This resource also covers rules, procedures, and specific forms, as well as advocacy, remedies, and appeals.
