ELAN CONSTRUCTION LIMITED v SOUTH FISH CREEK RECREATIONAL ASSOCIATION, 2016 ABCA 215
fraser, martin and watson jja
1.2: Purpose and intention of these rules
5.1: Purpose of this Part (Disclosure of Information)
13.6: Pleadings: general requirements
The Plaintiff appealed a Trial Judge’s Decision with respect to damages for breach of contract.
In its Statement of Defence, the Defendant merely asserted their defence to breach of contract through a single boilerplate paragraph denial of damages. The Court of Appeal noted that this paragraph was insufficient to meet the requirements of Rules 13.6 and 1.2 which collectively worked to facilitate a fair and effective Trial by providing parties with notice of the real issues in dispute. The Defendant’s failure to identify and particularize losses precluded the Defendant from raising this argument as a defence at Trial.
The Court also rejected the Defendant’s argument that the Plaintiff had an obligation to request documents related to the Defendant’s interaction with a third party contractor in the absence of a sufficiently clear Pleading. The Court stated that the modern Rules, particularly, Rules 5.1 and 1.2 when read in conjunction, require Defendants to be forthcoming with relevant documents without being asked. The Defendant’s position that the subject documents could not have been disclosed or produced because of the third party contractor’s assertion of privilege over them was rejected. The Court held that parties are still required to disclose and describe documents over which privilege is claimed in the Affidavit of Records to provide an opposing party notice of them and the opportunity to dispute the privilege claim. The Appeal was allowed.View CanLII Details