4.10: Assistance by the Court
4.14: Authority of case management judge
4.24: Formal offers to settle
4.29: Costs consequences of formal offer to settle
10.33: Court considerations in making costs award
13.12: Pleadings: denial of facts
13.6: Pleadings: general requirements
15.2: New rules apply to existing proceedings
15.6: Resolution of difficulty or doubt
Rule 519 : New Trial

Case Summary

The original dispute arose over alleged medical negligence regarding a stomach cancer diagnosis. The Trial Judge found that the initial diagnosis and investigation did not meet the required standard of care, but also found that the cancer was not curable at or shortly after the time the Plaintiff consulted the physician with the problem. The Plaintiff died a little over a month before the Trial, but his evidence was recorded de beneesse.

The Appellant Defendant did not plead two points of law raised in Argument after Trial in their Amended Statement of Defence, specifically that there could be no claim by dependants for shortening life and no special damages. Though the Statement of Claim was issued by the Plaintiff himself, it was amended to substitute the executrix as Plaintiff and to include full details regarding his death and why it occurred. The Appellant Defendant’s Amended Statement of Defence used at Trial was filed in reply to the revised Statement of Claim, but failed to plead either of the two points of law raised in the Appeal.

The Court stated that, under Rule 13.6(2)(b), a Party was required to plead a matter that defeated or raised a defence to a Claim of another Party. The Court also noted that Rule 13.6(3) was very similar to former Rule 109, specifically in that it required that a Party plead “lack of capacity or authority”. The Court also noted that new Rule 13.12(2) was very similar to old Rule 126, which provided that a denial of fact must answer the point of substance and not be evasive.

Considering the transitional Rule 15.2(2), the Court noted that everything done in an existing proceeding was to be considered to have been done under the new Rules and had the same effect under the new Rules as it had under the former Rules. Further, under Rule 15.6, the Court was allowed, in case of difficulty, to apply the old Rules instead of the new Rules or to modify the operation of the new Rules.

The Court of Appeal contemplated the Rules of Court and the Queen’s Bench Practice Directions, which not only permitted, but positively encouraged and directed the efforts by the Trial Judge and counsel to clarify, settle and simplify the issues, and remove issues not seriously contested. In this case, Case Management was ordered some time before the Trial. Under former Rule 219, simplification of issues, obtaining admissions and considering any other matter which would aid in the disposition of the Action was required. Because of this, the issues were firmly and clearly fixed before and during the Trial. Argument after Trial was too late to inject two large, new, unpleaded issues which would entitle or require the other Party to lead new evidence. Rules 4.10 and 4.14 called for simplifying or clarifying issues, and for Case Management. The Court held that because a Case Management Judge had the power to clarify and refine issues and go behind a vague Statement of Defence, the Court of Appeal would not lightly upset Case Management Decisions, nor allow them to be reopened later.

On the issue of Costs, the Court specifically noted that in Alberta there was a well-settled rule which gave discretion to award larger-than-usual Costs for significant misconduct during litigation. The Court acknowledged that the categories of misconduct entitling a party to larger than usual Costs awards were significant and this list of categories was not closed. The Court held that Rule 10.33(2)(b) allowed a Trial Judge to impose or vary a Costs amount because of a Party’s refusal to admit facts and this was not confined to Notices to Admit. In the result, the Court of Appeal refused to interfere with the Trial Judge’s award of Costs. The additional lump sum award of $11,000 on top of ordinary Schedule C costs could not be said to violate any Rule or principle.

Finally, the Court also considered the Trial Judge’s Decision to double the Costs figure because of an unaccepted Informal Offer made on the eve of Trial. The Court noted that, under Rule 4.29(4)(c), Formal Offers had no mandatory Costs consequences if the offer was made within ten days of the start of the Trial. The Court stated that an Informal Offer is just one factor to consider when awarding or assessing Costs. Other factors were whether there was anything significant to litigate over and whether the offeree would have trouble assessing the Informal Offer at that late date. The Court stated that, had the Rules intended to forbid Informal Offers, they could have said so, but they did not. The Court concluded that there was no reversible error in doubling Costs because of the offer on the eve of Trial. The Costs award was affirmed and the Appeal was dismissed.

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