This Decision arose from an Application by the Plaintiff by Counterclaim (who preferred to be called “Dr. Best”) to re-open her previously dismissed motion to change the Trial venue from Edmonton to Calgary. The Court had dismissed her second change of venue Application on October 30, 2024 (the “Second Application”). Dr. Best argued that the Second Application was not properly decided because neither she nor her then-counsel submitted a June 4, 2024 Endorsement from Justice Loparco (the “Endorsement”), which authorized a de novo hearing of the venue issue and could arguably have affected the outcome.

Rule 3.5 permits the Court to transfer an Action to a different judicial centre if it is satisfied that it would be unreasonable to proceed in its current location, or upon request of the parties. Dr. Best initially applied under Rule 3.5 in December 2023 before Justice Lema, who dismissed the Application with detailed written reasons. That Decision was not appealed. Instead, Dr. Best sought to revisit the issue, and Justice Loparco, sitting as Case Management Judge, determined that the original Decision was not final for the purposes of issue estoppel and expressly permitted Dr. Best to bring a second venue Application de novo.

During the hearing of the Second Application, however, neither party provided the Court with a copy of the Endorsement. As a result, there was confusion regarding whether a de novo hearing had in fact been authorized. In oral reasons given on October 30, 2024, the Court dismissed the Second Application and noted that while it was not proceeding as a de novo review per se, it was placing significant weight on Justice Lema’s earlier findings. Dr. Best argued that this approach was procedurally flawed, as it failed to heed Justice Loparco’s direction for a full de novo reconsideration.

Justice Whitling rejected that submission and held that the Second Application was, in substance, conducted as a de novo hearing. Whitling J. clarified that there is no singular definition of a de novo hearing in Alberta law, and a judge may give considerable weight to earlier findings—particularly where detailed reasons have already been provided, and no compelling new evidence is submitted. Citing Landry v Rocky View (County) Subdivision and Development Appeal Board, 2025 ABCA 34, and other authorities, Whitling J. explained that the essence of a de novo hearing lies in hearing new evidence or argument, but it does not require the judge to disregard earlier decisions. On that basis, the Second Application hearing complied with the standard contemplated by the Endorsement.

Dr. Best also relied on Rule 9.13, which permits the Court to vary a Decision before a formal Order is entered, or to grant any further Order needed to provide an appropriate remedy. The Court noted that Rule 9.13 is discretionary and must be applied sparingly. Justice Whitling emphasized that reopening a pronounced Decision is not meant to give the unsuccessful party a second opportunity to present arguments or evidence that could have been raised earlier. The Court found that Dr. Best’s position that she should be entitled to reargue the matter due to her former counsel’s failure to present the Endorsement did not warrant reopening the Decision, especially given the long procedural history and the pattern of fragmented representation.

Accordingly, the Court dismissed Dr. Best’s Application to reopen her second change of venue motion.