VAS v Grace, 2013 ABQB 746

Court of Queen ’ s Bench of Alberta Citation: VAS v Grace, 2013 ABQB 746 Date: 20131217 Docket: 0303 08944 Registry: Edmonton Between: VAS Plaintiff - and - Melanie Grace, Robert Crawford, Kevin Yaremchuk, John Doe Cell Block Sergeant, Bob Wasylyshen (Chief of the Edmonton Police Service), Dianne Cameron, Pam Coulson, Her Majesty the Queen In Right of Alberta, Dan Szakacks, John Doe Correctional Officer #1, John Doe Correctional Officer #2, and Jane Doe Nurse Defendants Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _ ________________________________________ ______________ Endorsement of the Honourable Madam Justice J.B.

Veit _________________________________________ ______________ [ 1 ] As a result of being arrested and detained at the Edmonton Remand Centre in June, 2001, Ms. VAS sued the EPS and the

Government of Alberta. [ 2 ] On June 6, 2012, Ms. VAS proposed a litigation plan to both defendants in which all further court applications about outstanding questioning would be heard no later than September 20, 2012, and, separately, advised the Government of Alberta that she wanted to bring an application to compel the government to answer questions about "baby dolls", a type of garment that Ms. VAS was required to wear at the Remand Centre.

After further discussion, a consent order was obtained on September 5, 2012 stating, inter alia , that any further applications in relation to questioning were to be brought no later than October 30, 2012. On March 14, 2013, the parties consented to an order whereby a conference was to be held with the court to resolve any matters necessary to allow the parties to complete Form 37 of the Rules of Court and to set the action down for trial. On May 1, 2013, all parties signed a request to

schedule a trial date in which they indicated that, apart from an issue relating to expert reports, "all questioning and undertakings given by persons questioned, under

part 5 of the Alberta Rules of Court have been conducted and discharged" [Form 37, 5 (d)] and that the parties would be ready for trial by December 2, 2013. The trial has had to be adjourned from December 2, 2013 to June 2014 because of an issue relating to the testimony of an expert witness which had been identified in Form 37. Ms.

VAS now brings an application to deal with unanswered questions she has of the government with respect to baby dolls. [ 3 ] Relying on Atchison v Manufacturers Life Insurance Co. 2003 ABCA 196 , the government opposes the application on the grounds that the time is past for bringing such an application, and that, given the breadth of Ms.

VAS's questions, it is possible, maybe even likely, that the questions cannot be fully and finally dealt with in a timely way relative to the new trial date. [ 4 ] With respect, not only was Atchison dealing with discovery after trial pending appeal, it was interpreting rules which have since been replaced; that decision is therefore only persuasive as to principle rather than binding on this court. [ 5 ] The current Rules state that parties requesting a trial date must certify that all applications related to the action have been disposed of and that no other pre-trial steps are required [Rule 8.4(3)(i)] and that proof of such certification is to be provided through Form 37.

Although the Rules outline a procedure in which the parties can engage if they are unable to certify everything required by Rule 8.4(3), the parties here did, eventually, file a Form 37 certifying trial readiness. Although the wording of s. 5(

d) of Form 37 is not felicitous, and does not closely track Rule 8.4(3)(i), its substantive meaning is clear: no further applications will be brought once the Form is filed. Moreover, I assume that the parties did, as required by Rule 8.7, file Form 39 confirming the trial date 3 months prior to December 2, 2013. While no current Rule clearly states that once Form 37 and Form 39 have been filed, no interlocutory applications relating to questioning may be brought without leave of the court, I have concluded that such a result is implicit in the Rules.

Indeed, in Tan v Swyrd 2013 ABQB 229 , Wakeling J. emphasizes the effect of filing Form 37 in much the same way as the Court of Appeal had dealt with the undertaking in the former certificate of readiness. In my view, although the previous explicit reference in the Rules to leave being available to initiate process after the equivalent of Form 37 had been filed is not found in the current Rules, the same approach applies, i.e. a court may give leave for an interlocutory application despite the filing of Form 37.

However, some justification for departure from the Rule must be advanced; as Stevenson & Côté's Alberta Civil Procedure Handbook points out, one of the factors which a court should take into account in deciding whether it should grant leave is whether the potential for an interlocutory appeal is lost. [ 6 ] I have concluded that Ms. VAS should not get leave to bring this application. [ 7 ] In coming to that conclusion, I have taken the following into account: - Answers to the questions under consideration are, indeed, at least notionally relevant to the issue of whether Ms.

VAS's conditions of incarceration were cruel and unusual; - The prejudice suffered by the applicant is relatively minor: although Ms.

VAS will not have answers to the questions available for inclusion in her own case as read-ins, she will certainly be in a position, at trial, to ask representatives of the Government all of the questions she has identified; - Prejudice to all parties could arise from allowing the application at this stage: the June 2014 trial is already a very long time away from the period when the cause of action is alleged to have arisen and there have been many dealings amongst the parties to settle the trial date.

Any threat to that trial date, including the risk that interlocutory process would not be finished by that date, should be resisted; - Systemic prejudice could arise if the profession came to be of the view that it was not necessary to spend too much time identifying foreseeable problems before completing Form 37: punctilious lawyers would be punished by receiving late trial dates while less responsible lawyers would be rewarded with early entry on the trial list. The public as a whole might suffer if all available trial time were not used because last minute trial adjournments had to be granted.

Here, not only was Form 37 knowingly completed by giving up the right to have interlocutory process to force certain questions to be answered, Form 39 confirmed trial readiness. [ 8 ] In the result, this is not a situation where leave should be granted. Heard on the 11 th day of December, 2013. Dated at the City of Edmonton, Alberta this 15 th day of December, 2013.

J.B. Veit J.C.Q.B.A. Appearances: Erika Norheim, Engel Law for the Plaintiff Nicole Pfeiffer, Alberta Justice for the Defendant, Alberta Government Lorena Harris, Dentons Canada LLP for the Edmonton Police Service