In a related Decision, while sitting as a single Appeal Judge, Wakeling J.A. ordered Ms. Stubicar (the “Applicant”) to pay $7,500.00 in thrown-away Costs to JEMM Sunnyside Ltd. (the “Respondent”) arising from an Application to adjourn a Hearing (the “Costs Order”). The Applicant and Respondent could not agree to the terms of the draft Costs Order. The Respondent wrote to Wakeling J.A. and requested that the Court settle the disputed terms pursuant to Rule 9.3. The Case Management Officer (the “CMO”) replied and indicated that CMOs have jurisdiction to determine Applications made pursuant to Rule 9.3.

In written submissions to the CMO, the Applicant argued that CMOs do not have jurisdiction to determine Applications made pursuant to Rule 9.3 as they are not members of the “Court” as stipulated in Rule 9.3. Further, Rule 14.2 provides that the other parts of the Rules apply to Appeals if the Rules dealing explicitly with Appeals do not specifically deal with a matter. The CMO found that CMOs have express authority under Part 14 of the Rules and section 14 of the Court of Appeal Act, RSA 2000, c C-30 (the “Act”), to assist the Court in managing matters without a Judge’s attendance, and that Rule 14.77(2) expressly allows the Court to authorize a CMO to settle the form of any Order. The CMO approved the draft Costs Order proposed by the Respondent.

Ms. Stubicar subsequently brought an Application pursuant to Rule 14.36(1) to set aside the CMO’s decision on the Costs Order and argued that the CMO did not have authorization to determine the Costs Order dispute without explicit authorization from the Court.

Justice Wakeling held that Rule 9.3 was of limited import because Part 14 of the Rules covers the relevant subject matter. However, Rule 9.3 applied insofar as it instructs the parties to apply to resolve the dispute about the contents of the Order. Justice Wakeling noted that section 14(2) of the Act provides that a “case management officer, at the direction of the Court, may assist the Court with respect to the management of matters before the Court and the business of the Court”, and that Rule 14.36(1) provides that “a case management officer, at the direction of the Court, may assist the Court with respect to the management of matters before the Court as authorized by section 14 of the Court of Appeal Act.” Justice Wakeling held that when section 14(2) of the Act and Rule 14.36(1) are read together, they authorize a CMO to settle the disputed terms of an Order as this constitutes “management of matters before the Court” and “assist[ing] the Court”. This conclusion was supported by the minutes of the meeting of the Alberta Court of Appeal on November 10, 2018, wherein the Court expressly approved assigning CMOs the task of resolving disputed terms of an Order. This was also reflected in an information sheet available to the public on the Court’s website and was consistent with other Canadian jurisdictions assigning duties to nonjudges to perform similar roles. Justice Wakeling held that if an Appeal Judge wants to settle disputed terms of an Order, they must indicate their intention at the Hearing, in a Judgment or in a communication to the CMO. The Application to rescind the CMO’s administrative direction was dismissed.