Rampersaud v. Baumgartner, 2012 ABQB 673

Court of Queen ’ s Bench of Alberta Citation: Rampersaud v. Baumgartner, 2012 ABQB 673 Date: 20121031 Docket: 0612 000217 Registry: Wetaskiwin Between: Annette Rampersaud Plaintiff - and - Duane Baumgartner Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Brian R.

Burrows _______________________________________________________ [ 1 ] Can an order under Rule 4.16(2) waiving the responsibility of the parties to participate in a dispute resolution process (the responsibility created by Rule 4.16(1)) be granted on the basis of the consent of the parties alone? [ 2 ] Counsel for the plaintiff presented a form of Consent Order signed by himself and counsel for the defendant in morning chambers. The form of Consent Order provided: That leave of the Court is hereby granted to waive the required Dispute Resolution Process required by Rule 4.16 of the Alberta Rules of Court.

[ 3 ] No evidence was provided to establish which, if any, of the five reasons listed in Rule 4.16(2) upon which such a waiver might be ordered, exists in this case. Neither of the parties to the litigation appeared on the application though Rule 4.16(3) provides:

(3) The parties must attend the hearing of an application under subrule (2) unless the Court otherwise orders. [ 4 ] I suggested to counsel that an order under Rule 4.16(2) cannot be granted upon the basis of the consent of the parties alone. I was advised that counsel is aware of other actions where such consent orders have been granted. I find that surprising. Rule 4.16 renders nearly mandatory a process that, before the new Rules came into force, was entirely voluntary. Its adoption has not been universally appreciated among members of the bar. It was adopted despite significant controversy as to its wisdom.

The intent that pre- trial dispute resolution no longer be voluntary would be entirely frustrated if the Rule could be waived by the consent of the parties to the litigation. [ 5 ] I asked counsel as to the reason the waiver was sought. He advised that both counsel agree that engaging in a dispute resolution process in this case would be futile.

He indicated that the action was commenced long ago, that the parties cannot agree on anything, and that it would be a waste of the resources to attempt dispute resolution before trial. [ 6 ] Given the age of the action (it was commenced in August 2006) I asked whether Rule 4.16 even applied to the action. Under Rule 15.3, Rule 4.16 does not apply to an action commenced before the new Rules of Court came into effect on November 1, 2010, if the discoveries were completed before the new Rules of Court came into effect.

Counsel confirmed that Rule 4.16 applies to this action. [ 7 ] I have reviewed the Court’s file regarding the action. The plaintiff alleges that the defendant contracted to perform renovations to her home, that he did so negligently and that she has suffered more than $300,000 damages as a result. The defendant denies the alleged negligence. It appears that the plaintiff filed a

summary judgment application several years ago and that both sides filed evidence and briefs in connection with that application. As far as I can determine from the file the application did not proceed. [ 8 ] Counsel’s representations do not satisfy me that engaging in a dispute resolution process in this matter would be futile. In my view evidence of the basis upon which counsel have reached that conclusion is required so that the Court can determine whether the conclusion is sound.

A dispute resolution process, such as a JDR, is, at least arguably, not futile, though it does not result in immediate resolution, where it clarifies what is actually in issue in the litigation and gives both sides a clear impression of how an independent judicial officer assesses the parties’ respective risks and prospects in relation to the issues. It frequently happens that an apparently “unsettleable” action settles with the benefit of those features of a JDR.

This is especially so where, as in this case, the alternative is a four or five day trial, an extremely expensive proposition both for the parties and the public. [ 9 ] The order sought cannot be granted on the basis of the consent of the parties or their counsel, even where that consent is supplemented by the statement of counsel that they have both concluded that engaging in a dispute resolution process would be futile.

Further, the order sought cannot be granted when the mandatory requirement of Rule 4.16(3), that the parties be in attendance at the application, has not been satisfied. [ 10 ] The application is dismissed. Heard on the 30 th day of October 2012. Dated at the City of Wetaskiwin, Alberta this 30 th day of October 2012.

Brian R. Burrows J.C.Q.B.A. Appearances: Jack Boudreau for the Plaintiff Greg Genest for the Defendant did not appear but had signed the proposed Consent Order