7.1: Application to resolve particular questions or issues

Case Summary

The Edmonton Flying Club (“EFC”) had a lease to operate out of the Edmonton City Centre Airport (“ECCA”) until 2028. In 2009 the City of Edmonton announced its decision to commence a phased closure of the ECCA. In response, EFC launched legal proceedings. In this Application, EFC sought a severance Order to allow a Trial to determine whether it was entitled to a Permanent Injunction prior to determining Damages.

The Court outlined the general principles applicable to Rule 7.1, as outlined in Gallant v Farries, 2012 ABCA 98:

(a)    The clear aims identified in Rule 7.1 cannot be superceded by Rule 1.2;

(b)   There must be a good probability that a second Trial will not be necessary;

(c)    The first Trial must be much shorter than the second would be; and

(d)   Any significant overlap in evidence between the issue to be severed and the remainder of the Action will essentially doom the severance Application.

In applying the general principles, the Court held that, amongst other things:

(a)    There was no material overlap between a determination of EFC’s entitlement to an Injunction and EFC’s claim for Damages;

(b)   There was a good chance that the determination of whether EFC was entitled to injunctive relief would end the Action;

(c)    The Trial regarding injunctive relief would be much shorter than the Trial regarding Damages;

(d)   Severance would provide an opportunity to minimize litigation expenses and even the imbalance of litigation funding ability between the parties; and

(e)   There was no prejudice to any of the parties.

The Order for severance was granted.

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