Harrison v XL Foods Inc, 2013 ABQB 502

Court of Queen ’ s Bench of Alberta Citation: Harrison v XL Foods Inc, 2013 ABQB 502 Date: 20130905 Docket: 1203 14727 Registry: Edmonton Between: Matthew Harrison, as Representative Plaintiff Plaintiff - and - XL Foods Inc. and Nilsson Bros. Inc. Defendants - and - Canadian Food Inspection Agency Third Party Defendant _ ________________________________________ ______________ Memorandum of Decision of the Associate Chief Justice

J.D. Rooke _________________________________________ ______________ [ 1 ] The Third Party applied for

summary dismissal of the Third Party Notice pursuant to Rules 3.47(

b) and 3.68, and the Plaintiff applied for a stay, pending the certification hearing, of the Third Party proceeding, if the Third Party Notice was not dismissed. [ 2 ] After full briefs and an oral hearing on August 22 nd and 23 rd , 2013, I undertook to provide this Memorandum of Decision in short order, with reasons to follow. I have been somewhat late in providing this Memorandum, in the anticipation that perhaps some, if not complete, reasons could be provided herewith. However, upon reflection, I have decided that no substantive reasons should be provided until all can be presented. [ 3 ] The decision is that both applications are dismissed. [ 4 ] On the

summary dismissal application, except for the issue of any duties arising from the establishment of general food safety standards in the meat processing industry, which the Defendants do not seek to advance and do not include in the Third Party Notice, the Third Party has not satisfied the high tests for

summary dismissal of the actual claims advanced. [ 5 ] On the stay application, the Plaintiff has not convinced the Court that any cost or delay prejudice, that could not be covered by an award of costs or directions of the Case Management Justice, would result to the Plaintiff from the Third Party Notice proceeding at or during the same time as the certification hearing, and any common issues trial resulting therefrom.

To be clear in that regard, if the Plaintiff incurs any expense as a result of the Defendants’ Third Party Notice against the Third Party (a potential party that the Plaintiff chose not to name as a Defendant), the Plaintiff can apply for an award of costs at an appropriate time in the proceedings.

On the other hand, the Court concludes that any inability of the Defendants to pursue the Third Party Claim at the same time as any certification hearing or resulting common issues trial, as would result from any stay or severance of the Third Party Notice, might well cause it prejudice, as well as create judicial inefficiencies. [ 6 ] Costs of both applications will follow the event, in any event of the cause, and are payable on the day following the decision on certification, unless other terms, or provisions, or extensions, are sought, which may be brought at the time of, and incidental to, the certification hearing. [ 7 ] It is the determination of the Court that issues between the Defendants and the Third Party that are inter-related to the common issues between the Plaintiff and the Defendants, should be considered part of the issues for determination at the certification hearing.

That is, to the extent that the Plaintiff is granted a certification order as between him and the Defendants, it will also be considered that the same class proceeding is the appropriate procedure to determine any “common issues” between the Defendants and the Third Party, unless that result is challenged at the certification hearing.

To the same end, any issues between the Defendants and Third Party that should be determined at the certification hearing to be litigated during (or settled before) any common issues trial between the Plaintiff and the Defendants should form part of any certification order. [ 8 ] If any questions about these directions arise, they can be dealt with by a case management conference before, or at, the certification hearing. [ 9 ] Reasons will follow in due course, after the certification hearing. Heard on the 22 nd and 23 rd days of August 2013.

Dated at the City of Edmonton, Alberta, this 5 th day of September 2013. J.D. Rooke A.C.J.C.Q.B.A. Appearances:

Richard Mallet and Clint Docken for the Plaintiff Eric Dolden and Diana Dorey for the Defendants Bruce Hughson and Kery Boyd for the Third Party Defendant