NEP CANADA ULC v MEC OP LLC, 2016 ABCA 201
slatter, bielby and o'ferrall jja
1.2: Purpose and intention of these rules
7.1: Application to resolve particular questions or issues
The parties were involved in two related Actions. In one of the Actions (the “Merit Action”) the Case Management Judge ordered that a single discrete issue be tried separately and in advance of the balance of the Trial with the second Action (the “Carr Action”). The Defendants in the Merit Action appealed the Order which severed the issues (which resulted in two Trials) on the basis that the evidence did not meet the requirements under Rule 7.1 in order to permit the Trial of a directed issue. They argued that it would not result in the disposition of all or part of the claim, would not substantially shorten the length of Trial for the remaining issues, and would not defray expense.
The Court of Appeal noted that to order the Trial of an issue, a Judge must be convinced that the severance of the issue is likely to or has a good probability of satisfying one or more of the requirements in Rule 7.1. The Court of Appeal reviewed whether the Order under Appeal would resolve all or part of the Claim, shorten the Trial or save expense, and considered whether there was any prejudice to a fair hearing. The Court agreed with the Case Management Judge that Rule 7.1 must be viewed through the lens of Foundational Rule 1.2, and that the Rules are intended to be used to facilitate the quickest means of resolving a claim at the least expense.
The Court of Appeal concluded that, while in some situations a full Trial on all issues is required and is proportionate to the relief sought, the Case Management Judge was not unreasonable in concluding that this was not one of those cases. The Court of Appeal stated that “consideration of the quickest means to resolve a dispute is entirely consistent with the wording of Rule 7.1”. The Appeal was dismissed.View CanLII Details