Tu v Zische, 2011 ABQB 775

Court of Queen ’ s Bench of Alberta Citation: Tu v Zische, 2011 ABQB 775 Date: 20121208 Docket: 0503 05308 Registry: Edmonton Between: Cuong Phi Tu, Sal Mazzuca and Taryn Proskow Plaintiffs - and - Dieter Zische and Scona Electric Inc. Defendants _______________________________________________________ Supplemental Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] I last dealt with this mater on July 7, 2011 in a written decision now reported at 2011 ABQB 443 . Further issues have arisen with respect to the neurological assessment by Dr.

Roberts, since I granted leave to Defendant’s counsel to set this matter down for trial for the Spring of 2012 on the long trial list. [ 2 ] As discussed in my July 7, 2011 decision after this matter was heard June 30, 2011, Dr. Roberts’ written report was expected before October 31, 2011, four months after the Chambers Hearing. As it turns out almost six months after the Chambers Hearing, Dr.

Roberts’ written report has still not been completed, although the expectation is that the report will be available in the next seven days by mid-December 2011. [ 3 ] Plaintiff’s counsel submits that he had raised the issue of Dr. Roberts’ outstanding expert report in the June 30, 2011

Hearing, and that notwithstanding that the Report is still unavailable, any trial dates must be subject to Dr. Roberts’ availability for trial, which will not be until at least mid-September 2012. Plaintiff’s counsel also submits that there is still an outstanding 2010 Judicial Dispute Resolution (JDR) in this matter in which the JDR Judge indicated that Dr. Roberts’ report could/should be submitted to him when it was available. [ 4 ] Defendant’s counsel objects to any further delay in this matter, and he does not intend to return this matter back to the JDR Judge irrespective of what Dr.

Roberts’ written Report states. Defendant’s counsel argues that Dr. Roberts and his written Report may not even be admissible since the matter was already set down for trial, particularly since the Plaintiff already had a prior expert’s report on the same neurological issue and given the very lengthy delay herein.

Conclusion [ 5 ] Given that the JDR process was voluntary at the time, and given the Defendant’s position it is unnecessary to refer the matter back to the JDR Judge notwithstanding what the JDR Judge may have said. [ 6 ] There has been an inordinate delay generally with respect to setting this matter down for trial. However notwithstanding that this matter has been set down for trial on the long trial list, it is correct that Plaintiff’s counsel had raised the issue of the outstanding neurological report with the Court in the June 30, 2011 Hearing. [ 7 ] As such, I did not preclude Dr.

Roberts as a potential expert witness in this matter. My July 7, 2011 decision to allow the Defendant to set the matter down for trial was still subject to a resolution of the admissibility of Dr. Roberts’ outstanding expert report. While the new Rules of Court do not contemplate Conditional Certificates of Readiness as was previously allowed for, that was the affect of my Order and the affect of my application of Rule 8.5(1). Rule 8.5(1) 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. [ 8 ] Given the lengthy delay to trial herein, I believe that the matter must still be set down for hearing. [ 9 ] Accordingly before December 31, 2011 I direct Plaintiff’s counsel to supply available dates in September and October, 2012 that he and Dr. Roberts would be available, notwithstanding Defendant’s counsel has not yet had an opportunity to see Dr. Roberts’ written Report. I further direct that Defendant’s counsel has 60 days from the date he actually receives Dr. Roberts’ written Report to

formally object to the admissibility of Dr. Roberts’ Report. [ 10 ] Although I have not seized myself, counsel can apply to me with respect to any further related applications. Further Submissions by Telephone Conference on the 7 th day of December, 2011. Dated at the City of Edmonton, Alberta this 8 th day of December, 2011. Donald Lee J.C.Q.B.A. Appearances: Gordon Honey for the Plaintiffs Brian Wallace Duncan & Craig LLP for the Defendants