Kumra v. Luthra, 2012 ABQB 117

Court of Queen ’ s Bench of Alberta Citation: Kumra v. Luthra, 2012 ABQB 117 Date: 20120222 Docket: 9703 10692 Registry: Edmonton Between: Usha Kumra Respondent/Plaintiff - and - Romesh Luthra and Aniceta Luthra and Harjit S. Judge Applicants/Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] This is an application pursuant to Rule 8.5 of the Alberta Rules of Court which reads as follows: Trial date: scheduled by the judge 8.5(1) On application by a party in Form 38, the judge may set a trial date or direct the court clerk to do so if

(

a) the judge (

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 judge 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 judge (

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 judge is satisfied that the parties will or are likely to be ready for trial by the proposed trial date.

(2) The judge may make any procedural order to expedite or facilitate the activities necessary to meet or to obtain a trial date. [ 2 ] The Luthras submit that the conditions outlined in Rule 8.5 have been met, and that there is no reason for any further delay of the trial in the within action beyond June 2012. [ 3 ] Counsel for the Plaintiff, Usha Kumra, the Respondent in the present application to set the matter down for trial argues that it would not be proper or ethical to agree to have the matter set down until they have had a reasonable opportunity to fully review the materials related to this case, particularly those contained in the file that they are expecting to receive from Ms.

Kumra ’ s previous lawyer. Counsel has had problems obtaining the file from Ms. Kumra ’ s prior counsel. Counsel for Ms. Kumra also submits that he is not able to provide the Court with the anticipated number of witnesses and anticipated length of the trial, both requirements of Rule 8.4(2)(

a) and (b). In fact, not only can counsel for Ms. Kumra not provide the number of witnesses, they cannot even confirm the names of any witnesses that they will be calling at this time. [ 4 ] Counsel for Ms. Kumra submits that they are also unable to comply with Rule 8.4(3)(

f) in that without an opportunity to review the materials described above they will not be in a position to be ready for trial by a specified date. They are also not in a position to certify that all amendments to the pleadings have been filed and served and that there are no further pre-trial steps required since they may still determine that further applications related to the action may be necessary. [ 5 ] Once the file is obtained counsel for Ms. Kumra submits that approximately one month will be required in order to fully review it and to fully consider whether the matter should be scheduled for trial, or alternatively what further steps may be required to be

taken prior to the matter being scheduled for trial. Conclusion [ 6 ] While it is obvious that new counsel for Ms. Kumra is not satisfied that the matter should be set down for trial, it is the Court that must make that determination, not counsel. As for the submissions pursuant to Rule 8.4, Rule 8.4 reads as follows: 8.4(1) The parties may, in Form 37, request the court clerk to

schedule a date for trial.

(2) The request must contain at least the following information unless otherwise directed by the Court: (

a) the anticipated number of witnesses, including the number of expert witnesses; (

b) the anticipated length of trial; (

c) a copy of the pleadings and particulars, if any, for the judge ’ s use at trial; (

d) if applicable, the order directing that the trial be by jury; (

e) the certifications required by subrule (3); (

f) any administrative requirements for the trial; (

g) any potential conflict of interest a judge may have and the reasons for it.

(3) In addition to the requirements of subrule (2), the parties requesting a trial date must (

a) provide (

i) a certificate that the parties have participated in at least one of the dispute resolution processes described in rule 4.16(1) [Dispute resolution processes], or (ii) a copy of an order made under 4.16(2) [Dispute resolution processes] waiving the dispute resolution process requirement, (

b) certify that questioning under

Part 5 [Disclosure of Information] is complete, (

c) certify that any expert reports have been exchanged and the process described in

Part 5 [Disclosure of Information], Division 2 [Experts and Expert Reports], including questioning of experts, is complete,

(

d) certify that any medical examination and report under

Part 5 [Disclosure of Information], Division 3 [Medical Examinations by Health Care Professionals] is complete, (

e) certify that any undertaking given by a person questioned under

Part 5 [Disclosure of Information] has been discharged, (

f) certify that they will be ready for trial by a specified date, (

g) in the case of a jury trial, certify that the deposit required under rule 8.3 [Deposit for jury] has been paid, (

h) certify that all amendments to pleadings have been filed and served, and (

i) certify that all applications related to the action have been disposed of and no other pre-trial steps are required.

(4) If the court clerk is satisfied that subrules (2) and (3) have been complied with, the court clerk must

schedule a trial date.

(5) If the parties cannot certify as to the matters referred to in subrule (3) but are satisfied that the matter will be completed or undertaking discharged in a timely way, the parties must so disclose and may request the court clerk to

schedule a trial date.

(6) If the court clerk is satisfied that the parties will or are likely to be ready by the proposed trial date, the court clerk may

schedule a trial date, but if the court clerk is in doubt about any matter, the court clerk must refer the matter to a judge for directions or decision. [ 7 ] I conclude that it is actually the inability of the parties to set the matter down pursuant to Rule 8.4 that motivated the Rule 8.5 application herein. [ 8 ] As for problems between the Plaintiff and her past legal counsel, this should not be allowed to prejudice the parties in the within action. The Law Society of Alberta Code of Conduct does not permit counsel to withhold files to the prejudice of a client.

This is evident in the commentary on Rule 2.07(8) of the Code of Conduct which makes this precise point as follows: Rule 2.07(8) Before agreeing to represent a client, a successor lawyer must be satisfied that the former lawyer has withdrawn or has been discharged by the client. Commentary It is quite proper for the successor lawyer to urge the client to settle or take reasonable steps toward settling or securing any outstanding account of the former lawyer, especially if the latter withdrew for good cause or was capriciously discharged.

But, if a trial or hearing is in process or imminent, or if the client would otherwise be prejudiced, the existence of an outstanding account should not be allowed to interfere with the successor lawyer acting for the client . [Emphasis added] [ 9 ] The lengthy number of correspondence between these parties provided to me by counsel for the Applicant in this matter establishes that a number of months have now gone by in which these parties have been discussing setting the matter down for trial.

There is still time between February and June to resolve any further housekeeping issues. The action itself was filed by the Plaintiff in 1997 and until recently the Plaintiff resided on the property which is the subject of the within action, without any benefits accruing to the Defendant Luthras. The Luthras reside in Sweden and have been defending this matter over a number of years. In June 2011 I directed that the parties meet certain deadlines in furtherance of this action, and these deadlines ended in August 2011.

The proposed trial date in June 2012 would be a year since I directed the deadlines, and 10 months since the parties met the deadlines, which should have resulted in the completion of all outstanding Discoveries and Answers to Undertakings. [ 10 ] I conclude that the conditions for scheduling this trial as set out in Rule 8.5 of the Rules of Court have been met and that there is no reason for further delay.

Counsel for the Plaintiff has either received the previous file from the Plaintiff ’ s prior lawyer and has completed his review of it, or will be in a position to have finalized this review by mid/late March 2012.

In these circumstances there is still ample time between counsel ’ s final review of the matter and the anticipated trial date in June 2012 [or the summer of 2012 now that civil (and criminal) trials are also being heard in the summer break]. [ 11 ] The application to set the matter down for trial then on the basis of the non-existence of any further outstanding pre-trial issues at this time is granted herein. Heard on the 1 st day of February, 2012. Dated at the City of Edmonton, Alberta this 22 nd day of February, 2012. Donald Lee J.C.Q.B.A. Appearances: Camron D.

Schwartz Trevoy LLP for the Respondent/Plaintiff Omolara Oladipo Fraser Milner Casgrain LLP for the Applicants/Defendants