Tu v Zische, 2011 ABQB 443

Court of Queen ’ s Bench of Alberta Citation: Tu v Zische, 2011 ABQB 443 Date: 20110707 Docket: 0503 05308 Registry: Edmonton Between: Cuong Phi Tu, Sal Mazzuca and Taryn Proskow Plaintiffs - and - Dieter Zische and Scona Electric Inc. Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] This is an application made pursuant to Rule 8.5(1) to set a trial date notwithstanding non-compliance with that Rule which reads as follows:– 8.5(1) On application by a party in Form 38, the Court may set a trial date or direct the court clerk to do so if (

a) the Court (

i) is satisfied that the parties have participated in at least one of the dispute resolution processes described in rule 4.16(1) [Dispute resolution processes],

(ii) has granted an order under rule 4.16(2) [ Dispute resolution processes ] waiving the dispute resolution process requirement, or (iii) grants an order under rule 4.16(2) [ Dispute resolution processes ] in the course of an application under this rule, (

b) the Court has all the information described in rule 8.4(2) [ Trial date: scheduled by court clerk ] except the certifications referred to in rule 8.4(2)(e), (

c) with respect to the certification of matters referred to in rule 8.4(3) [ Trial date: scheduled by court clerk ], the Court (

i) receives the necessary certifications, (ii) has sufficient information to

schedule a trial date without one or more certifications, or (iii) gives directions as required and is satisfied that a trial date should be set, and (

d) the Court is satisfied that the parties will or are likely to be ready for trial by the proposed trial date. [ 2 ] Form 37 had been sent to Plaintiff’s counsel on May 20, 2011, but no response was provided other than the Plaintiff confirmed that she wanted to consult a medical specialist for a neurological opinion, and that consultation is scheduled for September 19, 2011 approximately 2½ months from now. [ 3 ] The Defendants are concerned that a considerable period of time will pass before the Expert Report will be prepared, and the Defendants must still assess whether there is a need to respond to the Expert Report.

They wish to set this matter down for trial now for 7 to 10 days of trial time to commence any time in the Spring of 2012, after April 1, 2012; and they seek an Order that the Expert Report of Dr. Roberts who will be examining the Plaintiff on September 19, 2011 be served on the Defendants no later than October 31, 2011. [ 4 ] The Defendants submit that the neurological assessment by Dr.

Roberts, and the lack of the Plaintiff’s Affidavit of Records are the only major outstanding issue standing in the way of the trial date after April 1, 2012, and that after October 31, 2011 the neurological assessment can be addressed before trial. Conclusion [ 5 ] The former Rules of Court allowed for Conditional Certificates of Readiness in such circumstances, but there are no longer Conditional Certificates of Readiness as I understand it in the New Rules .

The New Rules require that the parties have engaged in a Dispute Resolution process, or received a waiver for this requirement, and the Court must be satisfied that the parties will or are likely ready for trial by the proposed trial date (Rule 8.5(1)(d)).

In that regard the Court may set a trial date or direct the Court Clerk to do so if it is in its discretion and judgement “satisfied that a trial date should be set” (Rule 8.5(1)(c)(iii)). [ 6 ] Rule 8.5(2) also allows the Court to make any procedural Order to expedite or facilitate the activities necessary to obtain a trial date. [ 7 ] Given that there appears to be one major outstanding issue namely the Plaintiff’s desire to arrange for an independent medical examination in relation to her neurological complaints, I am prepared to accede to the Defendants’ request to waive the requirement of the Plaintiff to file an Affidavit of Records, and to set this matter down for trial pursuant to Rule 8.4(1) even though the parties cannot certify that there are no other pretrial steps required.

Heard on the 30 th day of June, 2011. Dated at the City of Edmonton, Alberta this 7 th day of July, 2011. Donald Lee J.C.Q.B.A. Appearances: Gordon Honey for the Plaintiffs Brian Wallace Duncan & Craig LLP for the Defendants