Oleynik v. University of Calgary, 2012 ABQB 286

Court of Queen ’ s Bench of Alberta Citation: Oleynik v. University of Calgary, 2012 ABQB 286 Date: 20120504 Docket: 1101 09075 Registry: Calgary Between: Anton Oleynik Applicant - and - The University of Calgary and The Information and Privacy Commissioner of Alberta Respondents _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Dr. Oleynik objects to the University of Calgary ’ s unilateral request that I sign a form of order representing the results of an application for judicial review, stating that he did not receive a copy of the draft, as anticipated in Rule 9.2 (2). [ 2 ] One of the purposes of Division 1 of

Part 9 of Alberta ’ s new Rules of Court is to promote a timely and cost-effective process: Rule 1.2(1). In the circumstances here, which include the issuance by the court of a written decision, the failure by Dr. Oleynik to identify any particular complaint with the form of Order drafted by the respondent University as well as Dr. Oleynik ’ s statement that he cannot appear before this court until September 1, 2012 at the earliest, the court concludes that it should sign the form of order presented by the University.

Cases and authority cited [ 3 ] By the court: Oleynik v University of Calgary 2012 ABQB 189 , [2012] A.J. No. 315 ; Gallant v Ferries 2012 ABCA 98 , [2012] A.J. No. 357 . 1. Background [ 4 ] On March 23, 2012, this court issued a decision denying Dr. Oleynik ’ s application for judicial review of a decision made by Alberta ’ s Information and Privacy Commissioner.

On April 5, 2012, the successful party, the University of Calgary, sent a draft form of order, purportedly reflecting that decision, to the court for signature. (Because the office of the judge who heard the matter is in Edmonton rather than in Calgary, that judge only received the University ’ s communication on April 12, 2012.) The University ’ s accompanying letter included the following paragraph: Given the history of this matter and inability to obtain comments from Mr. Oleynik on previous orders, we have instruction to seek a waiver of Rule 9.2(2). [ 5 ] On April 5, 2012, Dr.

Oleynik responded to the University ’ s communication with a faxed message which included the following: I strongly object to the statement made by legal counsel for the University of Calgary in his correspondence dated April 5, 2012. Absolutely no attempt has been made by legal counsel to draft the Order and to seek my comments on it within the 10 day period allowed by Rule 9.2(2). The failure to prepare the draft Order results from legal counsel ’ s omission or ignorance only. I respectfully submit that the omission refers to nothing else than a failed tactics chosen by legal counsel.

As of today, the 10 day statutory period expired and I object to granting a waiver in the present circumstances. [ 6 ] On April 17, 2012, the University again wrote to the court, referring to the previous correspondence, and stating, in part: We would be pleased to attend before you to settle the minutes of this Order if that is necessary and look forward to your direction. [ 7 ] On April 18, 2012, Dr.

Oleynik wrote to the court again, to the following effect: Let me restate my objection . . . and respectfully indicate that I am not prepared to comment on the document drafted by [the University ’ s lawyer] at this stage. Pleased be advised, your Ladyship, that I will not be able to appear before the Court even by the teleconference if eventual arrangements are made on short notice. I am departing in a few days for teaching and research abroad till September 1, 2012. [ 8 ] Alberta ’ s Rules of Court contain the following provisions relating to judgments and orders:

Preparation of judgments and orders 9.2(1) The Court may direct which party is to prepare a draft of the judgment or order pronounced by the Court, but if the Court does not do so, the successful party is responsible for preparing the draft.

(2) The following rules apply, unless the Court otherwise orders: (

a) within 10 days after the judgment or order is pronounced, the responsible party must prepare a draft of the judgment or order in accordance with the Court's pronouncement and serve it on every party in attendance at the hearing, but if the responsible party does not prepare and serve the draft then any other party may do so; (

b) within 10 days after the draft judgment or order is served, each party served may (

i) approve the draft, or (ii) object to the draft and apply to the Court to set the terms of the judgment or order; (

c) if a party does not approve or object to the draft judgment or order within the 10 days described in clause (

b) but all other requirements are met and service of the draft is proved, the judgment or order may be signed and entered. Dispute over contents of judgment or order 9.3 If there is a dispute about the contents of a judgment or order, the disputants may apply to the Court to resolve the dispute. Signing judgments and orders 9.4(1) A judge or master may sign a judgment or order when it is pronounced.

(2) If a judge or master does not sign a judgment or order when it is pronounced, the court clerk may sign the judgment or order in any of the following circumstances: (

a) in a proceeding which a party adverse in interest did not attend; (

b) if the party adverse in interest approves the form of the judgment or order or waives approval of its form; (

c) if the Court directs that approval of the form of the judgment or order by a party is not required; (

d) if the Court directs the court clerk to sign the judgment or order.

(3) In any circumstance other than those described in subrule (2), a judgment or order must be signed by a judge or master. Entry of judgments and orders 9.5(1) Subject to subrule (2), every judgment and every order is entered by filing it with the court clerk, who must make a note in the court file of the entry and the date of entry.

(2) A judgment or order is not to be entered more than 3 months after it is pronounced except with the Court's permission, which may only be obtained on application and after notice is served on each of the other parties. 2. Should the form of Order presented to the court by the successful party be signed by the hearing judge? [ 9 ] The court concludes that it should sign the form of order presented by the successful party, the University of Calgary. [ 10 ] In coming to that conclusion, the court begins by noting that the reference to R. 9.2(2) by the University in its correspondence was correct in that the University was seeking a waiver of R. 9.2(2); R. 9.4(2)(

c) authorizes such a waiver. However, this was never a R. 9.2(2) situation since the University did not ask a clerk to sign the form of order prepared, but rather sent the form of order direct to the court for signature. Unfortunately, Dr. Oleynik, who is self-represented and is not a lawyer, did not understand that the University ’ s request was invoking R. 9.4(2)(c), but that the University ’ s application was itself mis-labelled. This situation is not typical of those chambers applications where one of the parties is unrepresented and the represented party invokes R. 9.4(2)(

c) for a waiver of the R. 9.2(2) process; many judges routinely grant such requests because of the checks and balances, such as clerk ’ s notes and the FTR recording of the hearing including the judge ’ s decision, which guard against incorrect orders being presented for signature.. [ 11 ] In the absence of an application under R. 9.4(2)(c), following the procedure set out in R. 9.2(2) is obviously a necessary pre- requisite to having a clerk sign a form of order or judgment since the clerk has limited means of determining if the proposed form accurately mirrors the decision of the court.

The agreement of the parties that the draft does represent the court ’ s decision is, of course, the clearest direction to the clerk, but the failure of one party, who has been provided with a form of draft order shortly after the pronouncement of the order or judgment, to respond to the invitation to comment is an indirect method of ensuring that the draft order represents the court ’ s actual decision. [ 12 ] Here, despite the wording used by the University, its application to have the judge sign a form of draft order is not an application for waiver under R. 9.4(2)(

c) decision: the application under R. 9.4(2)(

c) is necessary where a party proposes that the clerk sign the order. The reason a party might want a clerk to have the authority to sign the order is that the judge who pronounced the order or judgment may not be available to sign the order in a timely way. Nonetheless, here, the University presented the order to the judge who pronounced the order. Strictly speaking, therefore, this is not a R. 9.4(2)(

c) situation. [ 13 ] Where the judge who actually pronounced the order is asked to sign a draft order reflecting the decision, that judge presumably knows what she decided. However, even the judge who pronounced a form of order or judgment may not accurately recall her pronouncement. Therefore, taking steps to have an order signed by the judge as soon as practicable once the order has been pronounced is in everyone ’ s best interest.

In that situation, the reason for consultation by the person who prepared the draft order with the other parties to the proceeding on the form or order to be signed is not to satisfy a clerk, but to provide an opportunity in a contested situation for the parties opposite to have a say in the form of the order.

In other words, when a judge is asked to sign a form of order or decision, while the time limits in R. 9.2(2) do not apply, the process of consultation set out in that subrule does apply in principle. [ 14 ] Here, the University ’ s first communication to the court relating to the signing of a form of order was made in a timely way following the pronouncement. [ 15 ] Dr. Oleynik emphasizes that he was never given the opportunity of approving the draft order prepared by the University. This is acknowledged by the University, which itself emphasizes that, in its experience on the file, providing Dr.

Oleynik with a form of draft order would be unlikely to result in settling of the form of order. [ 16 ] Although Dr. Oleynik was not provided with a form of order prior to April 5, 2012, he was provided with a draft order on that date. Within 10 days of having received the proposed form of order, Dr. Oleynik failed to both object to the form of order and to apply to settle the minutes of the order. Instead, Dr. Oleynik asks to leave the matter in abeyance for a period of four months. [ 17 ] In considering Dr. Oleynik ’ s request, the court must have in mind the Foundational Rules of its Rules of Court.

As is noted in the commentary to the Rules, the Foundational Rules set the stage for all the other rules. Foundation Rule 1.2(1) states:

The purpose of these rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way. [ 18 ] As our Court of Appeal recently observed in Gallant , 18 Therefore, Alberta's new Rules merely recite what everyone took for granted under the prior Rules; that speed and economy are important objectives.

So that statement of the tradition is no excuse for discarding all or even big parts of Alberta precedent. [ 19 ] The new Rules provide that, “ if there is a dispute about the contents of . . . an order ” , the disputants may apply to the court to resolve the dispute. Here, we do not know if there is a dispute about the contents of the order; Dr. Oleynik proposes that we should be left in that state for another four months. [ 20 ] With respect, Dr.

Oleynik has focussed on an issue of form rather than on an issue of substance: he has focussed on lack of compliance with R. 9.2(2) when the real issue is whether the form of order presented by the University of Calgary accurately represents the court ’ s decision. [ 21 ] Here, although the order was pronounced on March 23, 2012, the court is not certain when the written decision was actually recorded by the clerks and when the parties were made aware of the decision; nevertheless, the court can state that the time line of communication between the University and Dr. Oleynik is not a concern of substance.

The issue of substance is whether the form prepared by the University correctly reflects the court ’ s decision. Being able to have reference to a form of written decision, with a view to determining whether the draft order presented accurately represents the written decision, is of inestimable value in a court ’ s consideration of whether a draft form of order is, in fact, accurate.

Here, without any further delay and without any further expense to the University of Calgary, the court is able to state that the form of order presented by the University accurately summarizes the court ’ s written decision in the matter. Therefore, the court concludes that it would be acting in the interest of achieving a timely and cost- effective resolution of the settling of the minutes of the order made by signing the form of order presented. Heard on the 5 th and 18 th days of April, 2012. Dated at the City of Calgary, Alberta this 1 st day of May, 2012. J.B. Veit J.C.Q.B.A.

Appearances: Ivan Bernardo, Miller Tomson LLP for the University of Calgary

Anton Oleynik, on his own behalf The Information and Privacy Commissioner of Alberta did not appear