Kent v Martin, 2014 ABQB 687

Court of Queen ’ s Bench of Alberta Citation: Kent v Martin, 2014 ABQB 687 Date: 20141113 Docket: 0801 08414, 1001 16418 Registry: Calgary Action No.: 0801 08414 Between: Arthur Kent Plaintiff - and - Don Martin, The National Post Company, Canwest Publishing Inc., National Post Holdings Ltd. and Canwest Media Works Inc. Defendants Action No.: 1001 16418 And Between: Arthur Kent Plaintiff - and - Postmedia Network Inc., National Post Inc., Paul Godfrey and Gordon Fisher Defendants _______________________________________________________ Memorandum of Decision

of the Honourable Mr. Justice W.A. Tilleman _______________________________________________________ Introduction [ 1 ] An issue of delay has arisen in the Plaintiff’s ongoing defamation case against the Defendants. Pursuant to my case management order dated April 22, 2014, the matter had been set down for a six-week civil jury trial commencing January 2015. [ 2 ] The Plaintiff now requests an adjournment. In an effort to ensure that the civil jury trial would not be postponed, I had previously set a deadline beyond which no application could be filed.

Accordingly, the Plaintiff required a fiat to file his adjournment application; I granted the fiat and the application proceeded. Law and Parties’ Positions [ 3 ] As discussed further below, the Defendants consent to the Plaintiff’s adjournment request. Plaintiff’s counsel, Mr. Bates, relies on Rule 8.6, which provides that the trial date cannot be adjourned or abandoned unless, among other possibilities, the judge permits. I reminded him, however, that the parties’ consent to an adjournment is not determinative.

Rule 8.6 states in its entirety: 8.6(1) When the court clerk or the court sets a trial date, the court clerk must give notice to every party, of the date, place and duration set for the trial.

(2) A trial for which a trial date has been scheduled may not be adjourned or abandoned unless (

a) a notice of discontinuance of the action has been filed, (

b) a memorandum of settlement of the action, signed by the parties, has been filed, or (

c) the judge permits.

(3) A trial date and the period of time scheduled for the trial may be changed only with the judge’s permission.

(4) Subrules (2) and (3) apply whether or not the parties consent to an adjournment or to a change in the duration of the trial. [Emphasis added.] [ 4 ] I expressed my reluctance to grant an adjournment given the considerable judicial resources already devoted to this matter (including four years of case management and a large number of interim decisions), as well as the difficulties inherent in rescheduling a lengthy jury trial in a civil matter. Mr.

Bates, however, stressed that in exercising the Court’s discretion, the judge must be fair and must take into account disadvantages to both sides, including costs and delay. [ 5 ] Mr. Bates referred me to two cases. In the recent decision in Global First Ltd v 1237007 Alberta Ltd , 2014 ABQB 288 , Justice Burrows granted an adjournment of a trial scheduled to commence only three weeks later. He was clearly reluctant to do so, but felt constrained by the prejudice that would result to the plaintiff if he refused the adjournment.

Justice Burrows, however, was very much alive to the fact that these situations affect more than just the parties to the litigation, saying at para. 15: Only the system will suffer. Other litigants who might have secured a slot on the crowded court

schedule will continue to wait. The situation is frustrating. [ 6 ] A similar concern was expressed by Justice Clarke in Northland Forest Products Ltd v Wood Buffalo (Municipality of) , 2002 ABQB 437 , 314 AR 326, in which at para. 11 he quoted as follows from the then-version of the Alberta Civil Procedure Handbook : Adjourning trials already scheduled for a fixed date is a difficult topic. On the one hand, one does not want a flawed, unfair or incomplete trial or a split trial.

On the other hand, the opposite party has incurred expense and inconvenience to prepare for trial, and many other litigants have been denied a trial date by setting the case down for that date... [ 7 ] Justice Clarke indicated that, had the circumstances before him been somewhat different, he would simply have exhorted counsel to devote further resources as necessary to prepare for the existing trial date. In the circumstances as they were, however, he was forced to conclude that proceeding with the trial would be unfair and he granted the adjournment.

[ 8 ] Mr. Bates also highlighted the principles articulated by Justice Veit in Burkosky v Grey Goose Corp , 1999 ABQB 183 , 248 AR 236 at paras 17 and 18 : This is not a mere issue of procedure: the icon of justice is the weighing of a balance. Where one of the parties cannot put any weight into their side of the balance because they are deprived of evidence the fundamental notion of balance disappears. As between a financial hardship on the one hand, and an unfair trial on the other, the court must ensure that its process if fair.

An adjournment is inconvenient to the plaintiffs but the absence of an adjournment would cause the defendants prejudice. If the plaintiffs are successful at trial, they will be compensated for the delay because the defendants will have to pay interest on the award. However if the trial is allowed to go ahead now, there is no way that the defendants can be compensated for the prejudice they will suffer. [ 9 ] The Media Defendants consent to the adjournment and agree with the Plaintiff.

They agree that nobody wants to be blamed, but argue that, in any event, a finding of fault is less important than acknowledging events beyond the control of either side that have prevented proceeding with the trial as scheduled. Counsel for the Defendants described the adjournment as “inevitable”. Facts Relevant to the Adjournment [ 10 ] The parties’ consent does not determine the matter, but is merely a signal for the judge to probe more deeply. I questioned both sides about the reasons for the requested adjournment.

Two critical issues came up. [ 11 ] First, there was a lengthy power outage in downtown Calgary last month. That unprecedented event, which was of course beyond their control, affected the parties’ ability to do the work required by my previous orders and necessary for trial. [ 12 ] Second, the Plaintiff’s position is that certain records of the Media Defendants are necessary to the fairness of the trial of his defamation claim and have not yet been produced. The Defendants object to the production of those records and have brought a challenge to the order to produce them.

That challenge is currently before another Justice of this Court and a decision is pending. If the trial proceeds before that challenge is resolved, the Defendants will be required under the current order to produce records they otherwise might not and may suffer prejudice as a result. Clearly, this is an important issue that must be determined. Decision [ 13 ] In any trial, the Court is concerned with both the efficient administration of justice and fairness to both sides. This is articulated in Rule 1.2.

That said, trials are run on evidence and I am persuaded that fairness requires an adjournment in this case, particularly in light of the pending decision on document production. [ 14 ] I note that both parties say they are not at fault. While I am hesitant to speak in terms of fault – or highlight it as a metric, what is important on this kind of application is the question of whether a party has been negligent or diligent in advising the Court of any concerns in a timely fashion. In this case, the parties are diligently addressing the matter of production of records.

In addition, I note that since my last case management order, the parties have worked extremely well together and have made some significant progress in the matter, including provision of interrogatories, examination of some parties, examination of documents and reply to a Notice to Admit Facts. The result of the parties’ hard work is that the estimated trial time has been significantly reduced. The parties now indicate that the jury trial previously scheduled for six weeks can be rescheduled for only four weeks and I so order.

All of this indicates to me that there is no negligence, that the matter is progressing and that the application for an adjournment is not indicative of any dilatoriness. [ 15 ] As I have already advised the parties during the oral hearing, the application for adjournment is granted. However, I want to encourage the parties to do everything possible to avoid any further delays to the trial. Both sides must complete document production and questioning of witnesses. While I will allow some latitude in deadlines in light of my colleague’s pending decision, I will expect the parties to

schedule a case management meeting within six weeks of that decision. I will set deadlines for the outstanding matters at that time.

[ 16 ] In addition, the parties are to provide their lists of trial witnesses to the trial coordinator with copies to opposing counsel not later than December 19, 2014. Heard on the 6 th day of November, 2014. Dated at the City of Calgary, Alberta this 13 th day of November, 2014. W.A. Tilleman J.C.Q.B.A. Appearances: M. Bates for the Plaintiff S. Watson, B. Mescall and E. Scrimshaw for the Defendants