The parties had previously agreed to a litigation plan by way of Consent Order. Questioning and responses to Undertakings were to be completed by January 8, 2021, and a list of Summary Trial witnesses was to be exchanged by February 26, 2021. Following the expiration of those deadlines, and without advance notice, the Defendant advised on March 8, 2021, that it sought to rely on two additional Affidavits which had been sworn on January 27, 2021. The Court found that the manner in which the Defendant provided the Affidavits was “less than courteous”, noting that the Defendant had failed to apologize for or even acknowledge the breach of the deadlines contained in the litigation plan.

Justice Lema reviewed a number of cases which discuss what Rules apply to the breach of a Consent Order, and the appropriate Court response to breaches of a Consent Order. Justice Lema noted that in Custom Metal Installations Ltd. v Winspia Windows (Canada) Inc., 2020 ABCA 333, the Court referenced Rule 9.15(4)(c), which allows an interlocutory Order to be varied on grounds that the Court considers just; Rule 13.5(2)(b), which allows the Court to adjust time periods set out in an Order; Rule 1.5(4), which instructs the Court not to cure contraventions unless certain circumstances can be met and specifically, where prejudice “can be remedied by generous thrown-away costs”; and Rule 10.52, which sets out when a person may be in civil contempt of the Court. Justice Lema also noted that in Cornelson v Alliance Pipeline Ltd, 2013 ABCA 378, Justice Slatter held in dissent that Rule 1.5(4) will apply unless prejudice can be cured, which requires the Case Management Judge to have sufficient information before them to conclude on the effect of prejudice.

Justice Lema permitted the late Affidavits, finding that the Affidavits contained narrow evidence that would not surprise TAQA, and that TAQA would be able to conduct cross-examinations of the affiants prior to the scheduled Summary Trial. As TAQA failed to show any prejudice, Justice Lema limited the remedy for the late Affidavits to Costs in the amount of $1,000.00.