Laasch v. Turenne, 2012 ABQB 566

Court of Queen ’ s Bench of Alberta Citation: Laasch v. Turenne, 2012 ABQB 566 Date: 20120917 Docket: 0803 06627 Registry: Edmonton Between: Nathan Laasch and Sheri Bentley Applicants / Plaintiffs - and - Annette Y.M. Turenne, M.D. and Tuktu Medical Clinic Respondents / Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R.A. Graesser _______________________________________________________ Introduction [ 1 ] This application is the next instalment in Nathan Laasch and his mother, Sheri Bentley’s attempts to pursue remedies against Dr. Annette Y.M.

Turenne arising out of Dr. Turenne’s medical treatment of Mr. Laasch in November, 2000. [ 2 ] The Plaintiffs seek to amend an Originating Notice filed April 7, 2008 which sought registration of their Montana judgment in Alberta pursuant to the Reciprocal Enforcement of Judgments Act ., RSA 2000, c. R-6 , (“ REJA ”) and other relief. The application for registration was heard by me on April 8, 2009 and by decision dated May 14, 2009 ( Laasch v. Turenne , 2009 ABQB 267 ) I dismissed the application. The formal judgment was entered on September 21, 2009. No appeal was taken from that decision.

[ 3 ] A statement of claim had been issued in Alberta on behalf of the Plaintiffs, suing on the debt created by the Montana judgment, on July 25, 2008. That action was commenced several months after the application for registration under REJA had been filed, and before the REJA application had been heard or decided. [ 4 ] After the unsuccessful application to register the Montana judgment, the Plaintiffs pursued the debt action. Dr. Turenne defended the debt action on the basis that it was barred by s. 3(1) of the Limitations Act , RSA 2000, c.

L-12 as the debt action had been commenced more than two years after the date of the Montana judgment. [ 5 ] A Master in Chambers granted the Plaintiffs’ application for

summary judgment on the debt in July, 2010. He concurrently dismissed Dr. Turenne’s application for

summary dismissal based on her limitation of actions defence. Dr. Turenne succeeded in her appeal from the Master’s decision on appeal to Queen’s Bench in March, 2011. The Court of Appeal dismissed the Plaintiffs’ appeal from the Queen’s Bench decision: Laasch v. Turenne , 2012 ABCA 32 . [ 6 ] This application seeks to amend the Originating Notice dated April 7, 2008 to add the debt claim to the remedies sought in it. [ 7 ] The Plaintiffs rely on s. 6 of the Limitations Act which they say apply to the case at bar. Dr. Turenne opposes the application. Background [ 8 ] Treatment of Mr.

Laasch (while he was an infant) occurred while Dr. Turenne was practising medicine in Montana. By the time the Plaintiffs commenced action in Montana, Dr. Turenne had moved to Alberta.

She was served ex juris with the Montana proceedings, and did not attorn to the jurisdiction of the Montana courts. [ 9 ] In June, 2006, judgment was awarded against her in the amount of US$5,250,000.00 plus interest and costs. [ 10 ] The REJA proceedings were commenced in Alberta in April, 2008 which was within the two-year period from the date of the Montana judgment. [ 11 ] The Originating Notice filed April 7, 2008 seeks enforcement of the Montana judgment, interest on the Montana judgment and costs. Prayer 4 of the prayers for relief seeks: 4.

Such further and other relief as Counsel may advise and this Honourable Court deems just. [ 12 ] The Court of Appeal was alive to the possibility that the Plaintiffs might seek to amend the Originating Notice.

The issue was raised during argument through questioning of counsel by the Court, and the Court of Appeal’s reasons for judgment dated February 1, 2012, state at para. 37: [37] These reasons do not preclude an application by the Appellants under R. 3.2(6) and s. 6 of the Limitations Act to add an action on the Montana judgment to the Originating Notice of Motion by which they unsuccessfully sought registration under the Reciprocal Enforcement of Judgments Act. The merits of such an application were not raised on this appeal.

Our comments should not be taken to mean that such an application, if brought, would or should be successful.

[ 13 ] The registration application which was heard by me was resolved by my decision of May 14, 2009. The formal judgment was taken out and is dated September 21, 2009. It orders and adjudges that: 1. The Applicants’ application pursuant to the Reciprocal Enforcement of Judgment Act to register in Alberta the Findings of Fact and Judgment dated June 5, 2006, granted by The Honourable Thomas C. Honzel, in the First District Court, Lewis & Clark County, in the state of Montana, is dismissed. 2. The Respondents are awarded costs of this action in the amount of $4,048.01.

Arguments Plaintiffs [ 14 ] The Plaintiffs argue that they should be allowed to amend the Originating Notice to add the debt claim as an alternative to the registration remedy initially pursued. [ 15 ] Since the application is straightforward, there would be no need to require that the debt claim be converted into a statement of claim, although in the alternative, the Plaintiffs seek a procedural order under Rule 3.2(6) directing that the amendment to add the debt claim be set out in a statement of claim, filed in this action. [ 16 ] Their amendment argument relies on s. 6 of the Limitations Act , which states: 6(1) Notwithstanding the expiration of the relevant limitation period, when a claim is added to a proceeding previously commenced, either through a new pleading or an amendment to pleadings, the defendant is not entitled to immunity from liability in respect of the added claim if the requirements of subsection (2), (3) or (4) are satisfied.

(2) When the added claim (

a) is made by a defendant in the proceeding against a claimant in the proceeding, or (

b) does not add or substitute a claimant or a defendant, or change the capacity in which a claimant sues or a defendant is sued, the added claim must be related to the conduct, transaction or events described in the original pleading in the proceeding.

(3) When the added claim adds or substitutes a claimant, or changes the capacity in which a claimant sues, (

a) the added claim must be related to the conduct, transaction or events described in the original pleading in the proceeding, (

b) the defendant must have received, within the limitation period applicable to the added claim plus the time provided by law for the service of process, sufficient knowledge of the added claim that the defendant will not be prejudiced in maintaining a defence to it on the merits, and (

c) the court must be satisfied that the added claim is necessary or desirable to ensure the effective enforcement of the claims originally asserted or intended to be asserted in the proceeding.

(4) When the added claim adds or substitutes a defendant, or changes the capacity in which a defendant is sued, (

a) the added claim must be related to the conduct, transaction or events described in the original pleading in the proceeding, and (

b) the defendant must have received, within the limitation period applicable to the added claim plus the time provided by law for the service of process, sufficient knowledge of the added claim that the defendant will not be prejudiced in maintaining a defence to it on the merits.

(5) Under this section, (

a) the claimant has the burden of proving (

i) that the added claim is related to the conduct, transaction or events described in the original pleading in the proceeding, and (ii) that the requirement of subsection (3)(c), if in issue, has been satisfied, and (

b) the defendant has the burden of proving that the requirement of subsection (3)(

b) or (4)(b), if in issue, was not satisfied. [ 17 ] Amendments of pleadings are dealt with in Rule 3.65 which provides:

(1) Subject to subrule (5), before or after close of pleadings, the Court may give permission to amend a pleading.

(2) If the Court gives permission for a pleading to be amended, the Court must specify the time period within which the amended pleading must be filed and served.

(3) An order giving permission to amend a pleading under this rule ceases to have effect unless the amended pleading is filed and served within the time specified by the Court.

(4) If the Court directs or allows a pleading to be amended at trial, (

a) the amendment must be recorded in writing by the court clerk, and (

b) no order need be filed.

(5) This rule does not apply to an amendment to a pleading to add, remove, substitute or correct the name of a party to which rule 3.74 applies. [ 18 ] The Plaintiffs also cite Rule 3.2(6) :

(6) If an action that is started in one form should have been started or should continue in another, the Court may make any procedural order to correct and continue the proceeding and deal with any related matter. [ 19 ] The Plaintiffs rely on Ignition Energy Ltd. v. Direct Energy Marketing Ltd. , 2011 ABQB 90 , Calgary Mack Sales Ltd. v. Shah , 2005 ABCA 304 , Stout Estate v. Golinowski Estate , 2002 ABCA 49 and Greentree v. Martin , 2004 ABQB 365 .

[20] Essentially, their argument is that the Limitations Act makes it clear that the defendant cannot object on the basis of thepassage of limitation periods when an otherwise statute-barred claim has been added to a proceeding which was commenced within theapplicable limitation period, so long as the added claim is related to the conduct, transaction or events described in the original pleadingin the proceeding (s. 6(2)(b)). [21] The debt claim is clearly related to the application to register the judgment, as both arise out of the same malpractice action,involving the same parties. [22] The Plaintiffs submit that there is an existing proceeding - this action commenced by Originating Notice in 2008. [23] The amendment should be allowed unless it is clearly and obviously invalid (following Ignition Energy) and unless there isprejudice to the other side. [24] They argue that there is no prejudice to the other side apart from the “loss” of the limitation of actions defence, which cannotbe remedied by costs. [25] The Plaintiffs argue that Rule 6.3(1) permits them to bring this application: 6.3(1) Unless these rules or an enactment otherwise provides or the Court otherwise permits, an application may only be filed during anaction or after judgment is entered. [26] They say their application should thus succeed unless the common law says otherwise.

Defendant [27] Dr. Turenne argues that one of the prerequisites to the application of s. 6 of the Limitations Act is that there be an existingproceeding to which an amendment can be made or a claim added. She submits that the Originating Notice proceeding was concluded bymy decision of May 14, 2009, the formal judgment following that decision filed on September 21, 2009 and the absence of an appealfrom that decision. [28] She argues that the Originating Notice merged into the formal judgment and that the court in that action is now functus, asamendments cannot be ordered after judgment. [29] Dr.

Turenne submits that the Plaintiffs are trying to reopen the case after judgment, contrary to the provisions of Division 3 ofPart 9 of the Rules of Court, which she argues are the only circumstances under which an amendment after judgment can be sought underRule 3.6. [30] She states that these provisions have no relevance to the facts here and do not assist the Plaintiffs. [31] She cites Halford v.

Seed Hawk Inc., 2004 FC 455, with respect to the issues of reconsideration after judgment and the judgebeing functus, as well as a number of other cases concerning the doctrine of functus and “cause of action estoppel”: CIBC v. Garneau, (B.C.S.C.)

Re Pattman’s Will Trusts, [1965] 2 All E.R. 191 (Eng. Ch. Div.); Wensel v. Wensel, (Alta. Q.B.); Alberta v. 562207 Alberta Ltd., 1999 ABCA 134; Canada West Tree Fruits v. Bright, (B.C.C.A.); Coughlin v. Kuntz, (B.C.S.C.); Peoples Cooperative v. Anderson, (1963), (SCC), 45 W.W.R. 125 (Man. C.A.); 420093 B.C. Ltd. v. Bank of Montreal, 1995 ABCA 328; Condominium Plan 7510189 v. Jones, 1997 ABCA 53; and Abacus Cities Ltd. (Trustee of) v.

Bank of Montreal, 1987 ABCA 166. [32] She also argues that there are strong policy considerations which should operate to defeat the Plaintiffs’ application relating tothe finality of judgments and the goal of ending litigation, referring to the words of Duff J. (as he then was) in Prevost v.

Bedard, (1915), (SCC), 51 S.C.R. 629: Once the judgment has been passed and entered once it has become a record the appeal transit in rem judicatam; and the court has nopower to re-open it for the purpose of passing upon points which were not actually or constructively involved in the judgmentpronounced or intended to be pronounced. There is not the least reason for relaxing this rule, which is no mere rule of practice, but a rule of high policy for the protection oflitigants; there must some time be an end of litigation.

Plaintiffs’ Response [33] The Plaintiffs argue that the case does not fall within the doctrine of res judicata as articulated in Chandler v. AlbertaAssociation of Architects, (SCC), [1989] 2 S.C.R. 848. Rather, this is a situation where Doucet-Boudreau v. NovaScotia, 2003 SCC 62 , [2003] 3 S.C.R. 3, applies as there is no attempt to vary or alter a final judgment in the matter. They citeN.S.G.E.U. v.

Capital District Health Authority, 2006 CarswellNS 297 (C.A.), noting they are not seeking to circumvent an appeal ofmy decision, nor are they seeking to correct any errors in it. [34] They further cite First City Trust Company v. Triple Five Corporation Ltd., 1991 CarswellAlta 81 (C.A.) and 155569Canada Ltd. v. 248524 Alberta Ltd., 1995 CarswellAlta 836 (Q.B.) in support of their argument that the doctrine of functus does notapply to the circumstances here. Analysis [35] Firstly, I agree with Dr. Turenne that Rule 6.3(1) is of no assistance to the Plaintiffs.

It states: 6.3(1) Unless these rules or an enactment otherwise provides or the Court otherwise permits, an application may only be filed during anaction or after judgment is entered. [36] The Plaintiffs must bring themselves within Rule 3.65. I note that R. 6.1 states that Division 1 of

Part 6 does not generallyapply to originating applications unless agreed by the parties or otherwise ordered by the court. That provision is generally understood toprocess and not the substance of the application.

[ 37 ] Dr. Turenne also argues, however, that to be successful, the Plaintiffs must bring themselves within Division 3 of

Part 9. Correcting mistakes or errors 9.12 On application, the Court may correct a mistake or error in a judgment or order arising from an accident, slip or omission. Re-opening case 9.13 At any time before a judgment or order is entered, the Court may (

a) vary the judgment or order, or (

b) on application, and if the Court is satisfied there is good reason to do so, hear more evidence and change or modify its judgment or order or reasons for it. Further or other order after judgment or order entered 9.14 On application, the Court may, after a judgment or order has been entered, make any further or other order that is required, if (

a) doing so does not require the original judgment or order to be varied, and (

b) the further or other order is needed to provide a remedy to which a party is entitled in connection with the judgment or order. Setting aside, varying and discharging judgments and orders 9.15(1) On application, the Court may set aside, vary or discharge a judgment or an order, whether final or interlocutory, that was made (

a) without notice to one or more affected persons, or (

b) following a trial or hearing at which an affected person did not appear because of an accident or mistake or because of insufficient notice of the trial or hearing.

(2) Unless the Court otherwise orders, the application must be made within 20 days after the earlier of (

a) the service of the judgment or order on the applicant, and (

b) the date the judgment or order first came to the applicant’s attention.

(3) The Court may, on any terms the Court considers just, (

a) permit a defence to be filed by a party who has been noted in default, (

b) set aside, vary or discharge a judgment granted upon application against a defendant who was noted in default, or whose statement of defence was struck out under rule 3.37, or

(

c) set aside, vary or discharge a judgment entered in default of defence by the plaintiff for the recovery of property under rule 3.38,or for a debt or liquidated demand under rule 3.39.

(4) The Court may set aside, vary or discharge an interlocutory order (

a) because information arose or was discovered after the order was made, (

b) with the agreement of every party, or (

c) on other grounds that the Court considers just. By whom applications are to be decided 9.16 An application under rule 9.12, 9.13, 9.14 or 9.15 must be decided by the judge or master who granted the original judgment ororder unless the Court otherwise orders. [38] I disagree with that position. Rule 3.65 deals specifically with amendments to pleadings. The general provisions of Division 1of

Part 6 do not oust the court’s jurisdiction and discretion under Rule 3.65. [39] The merits of the Plaintiffs’ claims against Dr. Turenne have never been adjudicated. The Plaintiffs obtained in essence adefault judgment against Dr. Turenne, who had not attorned to Montana’s jurisdiction. The proceedings before me in 2009 turned onwhether Dr. Turenne had a substantial connection to Montana when the proceedings against her there were commenced.

The proceedingsresulting in the Court of Appeal’s dismissal of the debt action turned on the passage of the limitation period for suing on the debt. [40] On its face, this appears to be a sympathetic case, although as I noted in the registration application, Dr. Turenne’s version ofevents has never been told. [41] The strength of the Defendants’ case is in res judicata and cause of action estoppel, as described by the Court of Appeal in420093 B.C. Ltd. v. Bank of Montreal.

In that case, the Court of Appeal dismissed the action on the basis of res judicata and as animproper attempt to indirectly attack valid and subsisting court orders. It also found the new action to be an abuse of process “in the formof an attempt to re-litigate issues or causes of action which have or should have been determined in earlier proceedings.” (At para. 3) [42] That case followed the Court of Appeal’s earlier decision in Abacus Cities (Trustee of) v. Bank of Montreal, where itapproved the following passage from Maynard v.

Maynard, (SCC), [1951] S.C.R. 346, at para. 22: “… the court requires the parties to that litigation to bring forward their whole case and will not (except under special circumstances)permit the same parties to open the same subject to litigation in respect of matter which might have been brought forward as part of thesubject in contest, but which was not brought forward only because they have from negligence, inadvertence or even accident, omittedpart of their case.

The plea of res judicata applies, except in special cases, not only to points upon which the court was actually requiredby the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation inwhich the parties, exercising reasonable diligence, might have brought forward at the time.” [43] 420093 B.C. Ltd. was approved in Owners: Condominium Plan 7510189 v. Jones. [44] The Plaintiffs cannot sue on the underlying cause of action in negligence. Limitation periods for that cause of action expired adecade ago.

They cannot apply to register the judgment under REJA - they tried that and failed. They cannot commence a new action tosue on the debt - they tried that and failed because the limitation period for doing so has passed.

[ 45 ] Their only hope for a remedy in Alberta is now to add the debt claim to action commenced by the Originating Notice on April 7, 2008 which was within the appropriate limitation period in Alberta for suing on the debt, pursuant to s. 6 of the Limitations Act . Issues [ 46 ] The questions for me is to decide are whether: 1. This action is “alive” for the purposes of adding a claim to it; 2. The conditions under s. 6 of the Limitations Act and Rule 3.65 have been satisfied; and 3. There are other reasons to deny the amendment application. 1.

Is the action alive [ 47 ] An action can end or expire in a number of ways. It can be discontinued. It can be dismissed. It can be adjudicated and merge into the judgment. It can also lie dormant with nothing happening for up to the period governed by Rule 4.33, after which it is effectively at an end. [ 48 ] This action was commenced in 2008. At that time, the applicable period for dismissal for delay was five years.

The last thing which occurred in this action (before the current application filed on February 8, 2012) was the filing of the judgment arising out of my decision of May 14, 2009 on September 21, 2009. [ 49 ] The operation of the new Rules of Court which came into effect November 1, 2010 would have been to have the two-year period expire on October 31, 2012 (before the transitional rule was amended this past summer).

In any event, the action has not been dormant long enough to be treated as “dead” merely by the passage of time. [ 50 ] There is no doubt that the Plaintiffs could have pursued the debt claim as an alternative remedy before me. Clearly, the alternative to registration under REJA was an action on the debt. The Plaintiffs had recognized that at least by July, 2008 when they specifically commenced action on the debt. [ 51 ] They had, in the Originating Notice in this action, sought the specific relief of registration under REJA, and interest and costs.

They also sought the general, often-pled remedy of “such further and other relief as Counsel may advise and this Honourable Court deems just.” [ 52 ] My decision on May 14, 2009 dealt only with the registration application. That was dismissed.

The formal judgment taken out from my decision only references the application to register the Montana judgment. [ 53 ] The style of cause in this action not only references REJA , but also the findings of fact by the Montana Court and the judgment granted by the Montana Court. [ 54 ] The only issue adjudicated in the application before me and my decision of May 14, 2009 was registration of the judgment under REJA .

There was no adjudication relating to the findings of fact or the judgment itself, and no pursuit of any “other relief” as sought in the Originating Notice. [ 55 ] Pleadings, orders, decisions and judgments require careful drafting. The wording in pleadings is key to many matters in the litigation, such as record production and questioning. The wording in orders and judgments is key to determining appeals as well as for

issues such as res judicata , issue estoppel and the like. Judges are required to be careful and precise with respect to the wording used in their decisions. [ 56 ] Having regard to the actual wording in the Originating Notice, my decision and the judgment taken out following my decision, I do not think it can be said that everything contemplated by the Originating Notice was litigated.

There is no technical reason under the Rules of Court (now or then) which would bar the Plaintiffs from pursuing “further relief,” subject of course to res judicata and issue estoppel arguments based on the issues argued and ruled on at the application as well as the delay provisions in the Rules . [ 57 ] 420093 B.C.

Ltd. , Abacus Cities Ltd. , Maynard and Owners: Condominium Plan 7519189 still require that I consider whether the Plaintiffs argued “every point which properly belonged to the subject of litigation in which the parties, exercising reasonable diligence, might have brought forward at the time.” [ 58 ] The Plaintiffs sought their easiest remedy: registration under REJA .

They had hedged their bets in the Originating Notice by seeking “other and further relief.” That is not uncommon in Statements of Claim and Originating Notices (now Originating Applications) as these commencement documents are prepared early in the piece and things may change as more facts are known. [ 59 ] They had recognized the possibility of having to sue on the debt and had done so.

The registration application took a year to bring to court, as there were cross-examinations on affidavits and the application was set as a special application. [ 60 ] There is no doubt that by the time the matter was argued before me in April, 2009, the debt claim could have been included as an alternate argument. The Plaintiffs might have argued it under the “further relief” provision in the Originating Notice; more likely they would have been required to amend the Originating Notice to describe what remedy they were looking for with precision, in fairness to Dr.

Turenne and so she would know what case to meet on the application. [ 61 ] The current application could have been made before April, 2009. It would likely have been opposed on the basis of the expiry of the limitation period for suing on the debt such that s. 6 of the Limitations Act would have been at the fore of the argument at that time. [ 62 ] Is the failure of those things the absence of reasonable diligence on the Plaintiffs’ part, such that action estoppel ought to be applied against them? [ 63 ] On the facts here, I do not find that the Plaintiffs have failed to be reasonably diligent.

They advanced what they believed to be their strongest argument: registration under REJA . They had commenced action on the debt as a backup plan. Success under REJA would have made the debt action unnecessary. Expedience (now mandated under the foundational provisions in the new Rules of Court ) was still laudable before the new Rules came into force. It appears that the Plaintiffs proceeded on the mistaken belief that the debt action had been commenced in time.

That apparent error, however, does not mean that they were not reasonably diligent in what was brought before the court in April, 2009. [ 64 ] I would therefore not apply cause of action estoppel to this case. This action was alive when the current application was brought and it is not an abuse of process. Dr. Turenne refers to the Plaintiffs’ tactics here as trying to relitigate the matter, or open up the judgment. Here, there has been no adjudication on the merits of any of the claims or defences.

The Plaintiffs so far have been prevented from litigating the matter on the merits and are not seeking to re-argue anything. 2. S. 6 of the Limitations Act and Rule 3.65 [ 65 ] The first requirement of s. 6 of the Limitations Act is easily met. The debt claim sought to be added is exactly the same claim that the Plaintiffs sought to register in the proceedings before me in 2009 and which was described in the Originating Notice. This determination does not require me to give a broad meaning to “related” as mandated in Calgary Mack Sales Ltd. ; the connection is obvious.

It is not necessary to delve into the cases on point submitted by the Plaintiffs.

[ 66 ] The Plaintiffs have met the burden of proof on them under s. 6(5)(

a) that the claim to be added is “related to the conduct, transaction or events described” in the Originating Notice. [ 67 ] Prejudice to Dr. Turenne does not enter into the considerations under the Limitations Act because the application to amend does not add or substitute a defendant or change the capacity in which the defendant is sued. [ 68 ] Prejudice is a relevant consideration under Rule 3.65 and the court’s discretion as to whether to allow an amendment or not. Here, Dr. Turenne does not allege any prejudice. She seeks finality in the proceedings against her.

Prejudice has long referred to the ability to answer the claim, and has turned on things such as the availability of key witnesses, health and memory of key witnesses, destruction of relevant records and the like. Prejudice does not refer to the loss of a limitation of actions defence or other technical argument. [ 69 ] I am satisfied that the Plaintiffs have met the requirements for amendment as recently described by Macleod J. in Ignition Energy Ltd. 3. Other reasons to deny amendment [ 70 ] Many of the Defendants’ cases talk about the court being functus officio .

The principles under that doctrine are similar to cause of action estoppel. Functus is described as having discharged the office or fulfilled the function, or more colloquially having accomplished the purpose. It has often been applied to arbitral tribunals. [ 71 ] Halford v. Seed Hawk Inc . deals with an application for reconsideration of a decision by a trial judge, after the final judgment had been signed.

The Plaintiff sought to set aside a decision because they claimed the trial judge had not dealt with one of their arguments. [ 72 ] The trial judge noted that he had “signed a final judgment disposing of all of the issues in this litigation” which he described as “the claims for relief advanced by the parties.” This case is different. No reconsideration is sought, and technically, not all claims for relief were finally dealt with. [ 73 ] In CIBC v.

Garneau , Southin J. (as she then was) cited the general proposition that “a statement of claim or bill cannot be amended after final judgment.” There, a party was sought to be added after an order nisi had been granted in a foreclosure proceeding. The case is of little relevance here, as it essentially dealt with foreclosure practice and her decision related to adding a tenant to the proceedings after the order nisi. Coughlin v. Kuntz , also a British Columbia Supreme Court decision in foreclosure proceedings, deals with opening up a judgment after formal judgment has been entered.

It is not of assistance in this case, as the Plaintiffs are not seeking to open up the judgment. [ 74 ] Had I made a different determination as to whether this action was alive or not, Re Pattman ’s Will Trusts would be of greater significance. This decision largely turns on the specific wording in the Originating Notice and the judgment. I do not have to address whether the result would be the same if the Originating Notice had been silent on other relief, or the judgment had dismissed the action (as opposed to dismissing the application for registration).

By way of dicta , however, I observe that Cross J.’s decision in Re Pattman ’s Will Trusts , is compelling when he stated at page 191: If the argument for the plaintiff were right, it would mean that if an originating summons were taken out, say in 1930, raising a question of construction, and the judge answered that question, and in 1955, another question of construction arose, in which the same parties were interested, the originating summons could be amended, assuming that it asked, as it normally would, for the execution of the trusts of the will.

If the court, having answered the questions specifically asked, makes no order for the execution of the trusts, it is in effect saying that no such order is needed. The summons is therefore dead unless the court keeps it alive, as it sometimes does, by sending it back to chambers with liberty to amend by adding fresh questions. That was not done here. Therefore a fresh summons is required; but I will treat that summons as issued on the undertaking being given that it will be issued. I will treat the evidence before me as being evidence on that summons.

[75] As noted above, in my view, this action was not dead, as the court did not decide all of the matters raised in the OriginatingNotice. I did not dismiss the entire action. The result might have been different had either of the above circumstances existed. But that isnot the case here. [76] The Court of Appeal noted in Alberta v. 562207 Alberta Ltd. that the court had “disposed of all of the issues raised in theoriginating notice” (at para. 9) and formal judgment had been entered.

The Court of Appeal found in those circumstances that the judgewas functus. [77] Here, I did not deal with all of the issues in the Originating Notice. [78] Quigley J. considered functus in Wensel v. Wensel, on an application by a municipality to be added to a partition action as aparty after judgment had been granted and entered. He noted at para. 15 that no one can be added to an action after judgment has beenentered unless the judgment is set aside or opened up.

Quigley J. concluded that as neither of the parties to the judgment was seeking tohave it set aside on any of the limited grounds available to do so, he was functus officio. [79] Here, the Plaintiffs are not seeking to open up the judgment entered on September 21, 2009. They are not seeking to vary thejudgment, or my decision dated May 14, 2009. They seek to raise and argue matters and issues which were not before me. This is anapplication to amend a pleading as between the original parties. [80] Canada West Tree Fruits v.

Bright held that the trial judge was functus and had no jurisdiction to allow amendments to thestatement of claim after he had delivered a reserve decision following trial and after judgment on that decision had been entered. There isno analysis provided in the decision, and while the decision might be taken as a good general statement of law, there are some exceptionsin the Rules of Court and at common law, and the cases are fact specific.

The general proposition the case stands for does not assist theDefendants here on the facts of this case. [81] Rather, the situation is as described in para. 76 of Doucet.-Boudreau v. Nova Scotia, 2003 SCC 62 , 2003 SCC62,“where the trial judge does not purport to alter a final judgment.” [82] An analogy may be found between this case and First City Trust Company v.

Triple Five Corporation Ltd., where remedieswere sought consecutively and in a logical manner, such that the Court of Appeal refused to find the Court of Queen’s Bench functusafter it had granted an order for foreclosure. [83] No errors in the earlier decision are suggested, so this is not an attempt to circumvent an appeal, or avoid the application ofPart 3 of Division 9. [84] Res judicata is described in 420093 B.C. Ltd. at para. 16: [16] Estoppel by res judicata is a rule of evidence.

Where a final judicial decision has been pronounced by a court of competentjurisdiction over the parties and the subject-matter “… any party or privy to such litigation, as against any other party or privy thereto,and in the case of a decision in rem, any person whatsoever as against any other person, is estopped in any subsequent litigation fromdisputing or questioning such decision on the merits”: Spencer-Bower and Turner, The Doctrine of Res Judicata, (2nd ed.) at p. 9. [85] Here, there is no attack on my decision or the Court of Appeal’s decision in the debt action.

This is not a situation where resjudicata applies to the issue the Plaintiffs wish to litigate. [86] I also do not see this decision as opening a floodgate of uncertainty, or to undermine the finality of judgments. Res judicata,issue estoppel and cause of action estoppel remain alive and well and in my view are unaffected by this decision. Any case such as this

will turn on its unique facts. [ 87 ] In addition, the dismissal for delay provisions in the Rules of Court will stand to prevent an old, dormant action from being used as a vehicle to launch an otherwise statute-barred claim. Whatever period is eventually determined to be appropriate following the consultation process in progress now, there will undoubtedly be a means of having dormant actions dismissed for want of prosecution after the applicable period.

The fears expressed in Re Pattman ’s Will Trusts are colourful, but not real in Alberta. [ 88 ] As well, when there is a special application pursuant to an Originating Notice or Originating Application or a trial following a Statement of Claim, the application or trial will usually deal with all issues raised. The action will be fully resolved one way or the other. That is, however, not universal. Sometimes, only part of an application will be heard, or only part of an action will be tried. With trials, that is likely to occur only where there has been a successful severance application under Rule 3.71.

Otherwise, the expectation is that all issues in the Statement of Claim will be tried. But this is a matter within the control of counsel. [ 89 ] Applications are somewhat different. They may deal with only part of a claim and there is no requirement that a severance order be obtained to have an application booked for a special hearing. Frequently, only some issues proceed while others may be parked or deferred for some reason. [ 90 ] Any uncertainty remaining as to the status of an action can and perhaps should be addressed at the hearing, and by the final order or judgment.

Again, these are issues within the control of counsel at the time. Conclusion [ 91 ] I am persuaded that the Plaintiffs’ application should be allowed. Their Originating Notice in this action is still “alive.” It was not finally dealt with in the application before me in April, 2009, nor by my decision dated May 14, 2009. The action was not dismissed by the formal judgment taken out on September 21, 2009. [ 92 ] This is not a situation where the court is functus from hearing this application or from granting the relief sought. Cause of action estoppel does not apply.

The relief sought and the granting of the application does not constitute an abuse of process.

There are no issues of res judicata or issue estoppel barring the application or otherwise preventing the debt claim from proceeding. [ 93 ] The Defendant is not prejudiced by the application to amend the Originating Notice, and the requirements of s. 6 of the Limitations Act and Rule 3.65 have been satisfied. [ 94 ] Accordingly, the Plaintiffs may amend the Originating Notice to add to the prayer for relief the following paragraph: An order directing the trial of an issue as to the whether the Plaintiffs have a valid cause of action against the Defendant arising out of the judgment granted by the Honourable Thomas C.

Honzel, in the first Judicial district court, Lewis and Clark County, in the State of Montana, USA, No. CDV-2004-523. [ 95 ] I do not see that any further amendment to the Originating Notice is necessary, or that the Plaintiffs should have to prepare a statement of claim to be filed in the action. To the extent particulars and the conduct of the trial of the issue cannot be agreed, the parties should employ Rules 4.9 to 4.11 and seek procedural orders to assist in the conduct of the litigation. Costs

[ 96 ] While the Plaintiffs have been successful in their application, it was not unreasonable for the Defendant to resist. Had the application been made at an earlier time in the proceedings, the Plaintiffs may well have been entitled to costs. Late applications to amend are exceptional. One of the prejudices to Dr. Turenne by the application at this stage is that she continues to be put to expense in procedural wranglings. She should have her costs of this application, notwithstanding that the Plaintiffs have been successful. [ 97 ] I am grateful to counsel for their able written submissions and oral arguments.

Heard on the 22 nd day of June, 2012. Dated at the City of Edmonton, Alberta this 14 th day of September, 2012. R.A. Graesser J.C.Q.B.A. Appearances: J. Patrick Peacock, QC & Richard Van Dorp Peacock Linder & Halt LLP for the Applicants / Plaintiffs Robert Feraco Emery Jamieson LLP for the Respondents / Defendants