Wenzel v Nenshi, 2015 ABQB 742

Court of Queen’s Bench of Alberta Citation: Wenzel v Nenshi, 2015 ABQB 742 Date: 20151124 Docket: 1301 13429 Registry: Calgary Between: Calvin Charles Wenzel Plaintiff - and - Naheed Kurban Nenshi Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice M. David Gates _______________________________________________________ Overview [ 1 ] The Plaintiff’s action for defamation against the Defendant is set for a three week jury trial in Calgary commencing February 16, 2016, with jury selection to take place on February 11, 2016.

The matter was set down for trial, pursuant to Rule 8.5 of the Alberta Rules of Court , on the agreement of counsel for both parties on June 22, 2015.

[ 2 ] The Plaintiff retained new counsel and filed a Notice of Change of Representation on September 15, 2015. The Plaintiff now seeks leave of the court to bring an application for

summary disposition and judgment, the Court having previously determined on October 20, 2015, that leave is required to bring such an application given that the matter has already been set down for trial. [ 3 ] The Plaintiff’s leave application was heard on November 12, 2015 and continued on November 13, 2015. At the conclusion of oral argument, I reserved my decision. These are my reasons for decision.

Facts [ 4 ] The key facts relating to the history of this action are not in dispute. [ 5 ] The Plaintiff, Calvin Wenzel, filed a Statement of Claim on November 13, 2013, in which he sought damages for defamation and injurious falsehood in relation to public statements alleged to have been made by the Defendant, Naheed Nenshi, in 2013. The Defendant filed a Statement of Defence on January 14, 2014, in which he denied the allegations of defamation and raised the defences of justification, fair comment, and qualified privilege.

In his Reply to Defence filed on January 24, 2014, the Plaintiff says that the Defendant acted with malice, and had “injurious intent or an ulterior and improper purpose” and sought to discredit and vilify the Plaintiff to the Defendant’s political advantage. [ 6 ] On March 2, 2015, Yamauchi J ordered that the action be set down for trial by jury, subject to the Plaintiff being at liberty to seek, pursuant to s 17 of the Jury Act , RSA 2000, c J-3, to have the matter set down for trial by judge alone.

Yamauchi J seized himself relative to any further applications involving the possible vacating of the jury. [ 7 ] During a case management meeting held on June 22, 2015, at the request of the parties, I set the matter down for trial commencing February 16, 2016 for a period of 14 days.

At the time of the hearing, counsel for both parties assured the Court that the only matters that remained outstanding were the completion of a number of outstanding undertakings by the Plaintiff and an amendment of the Plaintiff’s pleadings to remove the claim for injurious falsehood. [ 8 ] The Court directed that both of these matters were to be completed by the end of July 2015. Since then, counsel has confirmed that both of these steps were completed by the date specified.

Other than these matters, the trial date was subject only to the Plaintiff’s ability to seek to have the matter proceed to trial by judge alone; any such application being required to be brought before Yamauchi J. [ 9 ] The matter was set for trial on the strength of counsel’s undertaking that the matter was ready to proceed. The following exchange took place between the Court and counsel in that regard: Mr. Mohamed: And, Sir, if it helps I think we can probably make this one of your easiest case management cases. We’re essentially completed most everything, and have cooperated on everything else.

So we’re, I think, ready to set this thing down for trial. The Court: Are you - - are you – is everything done? Mr. Halyn: Well, we’ve finished our last - - I believe our last round of discoveries last week. I still have some undertakings to answer from some di - - discoveries a few weeks before that on behalf of Mr. Wenzel. As we best envision the further steps forward, we don’t see any further discoveries being necessary... The Court: Okay. End of July for completion. And that’s the end - - no more questioning - - no - - and all the – all of the undertakings for Mr. Mohamed have been fulfilled? Mr.

Halyn: They’ve been fulfilled. There is one further production item that Mr. Mohamed’s going to be providing me. I don’t envision it’s going to lead to any further questioning, based on what I understand to be the content of that material. And Mr. Mohamed has told me that he doesn’t believe that there will be further questioning on the responses to undertaking I’m going to be providing. But if there is, we’ve both been fairly cooperative, and believe we can come up with a procedure that won’t require a lot of additional effort to deal with that issue if it arises.

Transcript of Proceedings, June 22, 2015, p. 1, l. 36- p. 2, l. 5; p. 3, l. 7 – 19. [ 10 ] By way of correspondence dated September 24, 2015, Plaintiff’s new counsel wrote to the Court confirming an agreement reached with counsel for the Defendant to

schedule a case management meeting on October 1, 2015. Plaintiff’s counsel attached an unfiled application for

summary judgment relating to two allegedly defamatory statements made by the Defendant on April 24, 2013 and October 9, 2013, respectively. In addition, the unfiled application sought an order directing the Defendant to attend for further questioning on his responses to undertakings, and an order directing Doug Vaessen and an unidentified third party to attend for questioning prior to the hearing of the

summary judgment application. [ 11 ] After hearing brief oral submissions on October 1, 2015, I directed counsel to provide me with additional material on the issue of whether or not leave of the Court was required before these proposed applications could be set down for hearing, in view of the fact the action has been set down for trial. I also directed counsel to provide written submissions on the Defendant’s argument that the

summary judgment application was precluded by s 17 of the Jury Act . [ 12 ] Written submissions were received from both parties. By way of letter dated October 20, 2015, I advised the parties that I had concluded that leave was required for the Plaintiff to bring his

summary judgement and related applications. I directed counsel to attend before me on November 12, 2015, at which time I would provide oral reasons for my decision regarding the requirement for leave and hear argument on the leave application itself.

[13] Both parties filed substantial written materials in support of their respective positions. In particular, on November 5, 2015, thePlaintiff filed an Application for

Summary Judgment seeking leave to

schedule a hearing, but abandoning his applications for an ordercompelling the Defendant to attend for further questioning on his responses to undertakings and compelling two third parties to attendfor questioning. [14] As stated above, I heard the application on November 12, 2015 and November 13, 2015. I reserved my decision to November23, 2015 at 1:00 p.m. Analysis [15] By way of preliminary argument, the Defendant says that s 17 of the Jury Act prohibits an application for

summary judgmentwhen a matter has been sent down for a civil jury trial. He submits that the mandatory order for trial by jury in this action serves as a barto the proposed

summary judgment application. Further, he contends that the Defendant has a right to a jury trial that should not be takenaway lightly. According to the Defendant, other than the power to direct that the matter proceed to a

summary trial procedure before ajudge alone, the court has no inherent or residual discretion to take away the Defendant’s jury trial for any other reason once a matter hasbeen set down for trial with a jury. The Defendant relies on the decisions of the British Columbia Court of Appeal in Pentecost v Kowal (1988), (BC CA), 47 DLR (4th) 735 and Hung v Gardiner, 2003 BCCA 257, as well as the decisions of Wachowich Jin Noland v Telila, 2003 ABQB 410 and Goulbourne v Buoy, 2003 ABQB 409. [16] The relevant portions of s 17 of the Jury Act read as follows: 17(1) Subject to subsections (1.1) and (2), on application by a party to the proceeding, the following shall be tried by a jury: (

a) an action for defamation... ...

(1.1) If, on an application made under subsection (1) or on a subsequent application, a judge considers it appropriate, the judge maydirect that the proceeding be tried by judge alone pursuant to the

summary trial procedure set out in the Alberta Rules of Court. [17] In Noland v Telila, the plaintiff applied for a

summary trial relative to injuries he alleged he sustained in a motor vehicleaccident involving a car operated by Telila. At the same time, the defendants filed a cross-application for trial by jury, pursuant to s 17(1)(

b) of the Jury Act. Liability had been admitted, so proceeding by way of

summary trial, pursuant to what was then s 158.1 of the AlbertaRules of Court, would have streamlined the trial process and allowed a judge to determine the issue of damages without the necessity ofhearing vive voce evidence. A jury trial would, on the other hand, have required the Plaintiff to call eight expert and six other witnesses. [18] Wachowich J concluded that while he would have granted the Plaintiff’s application for a

summary trial, the right to a jurytrial set out in s 17 prevailed over

summary trial rules not yet validated by statute. Watson J (as he then was) appears to have made asimilar decision in Hajjar v Repetowski, 2001 ABQB 432. [19] The Defendant contends that the Jury Act was amended as a result of these decisions so as to specifically permit a judge todirect a

summary trial, notwithstanding that the proceeding may have already been the subject of an application, or indeed an order, toproceed by way of jury trial. [20] The Plaintiff says that the right to a jury trial found in s 17 does not preclude an application for

summary judgment pursuant tothe Alberta Rules of Court. While acknowledging that there are no Alberta cases on point, he refers to a series of decisions fromManitoba, British Columbia and Ontario, including Weisenberger v Johnson & Higgins Ltd., [1998] MJ No 555 (CA), leave to appealrefused [1999] SCCA No 70; Hall v Puchniak, (MB KB), [1997] MJ No 418 (QB Master), affirmed [1998] MJ No610 (QB); Hung v Gardiner, supra; Newfield v Wright, [1996] BCJ No 792 (SC); and Pharand v New Hanmer Hotel Ltd., [1998] OJNo 3999 (SC). [21] The Manitoba decisions both involved an alleged conflict between the

summary judgment process set out in the ManitobaRules of Court and the terms of s 64(1) of The Court of Queen’s Bench Act, CCSM, c C280, which directed that an action for defamation“shall be tried by a jury” unless the parties waive this mode of trial. In Johnson & Higgins, Kroft JA, for the majority, stated (at para12): A motion for

summary judgment is but one method whereby a claim for defamation may be ended prior to an actual trial. As noted bycounsel for Johnson & Higgins, a defamation action might be dismissed for want of prosecution or because the pleading does notdisclose a cause of action. Just because the label “defamation” has been attached to the pleading does not guarantee a jury trial withoutrisk of

summary disposition. [22] Kroft JA also cited with approval the decision of Master Goldberg in Puchniak, who came to a similar conclusion. HubandJA, otherwise in dissent in Johnson & Higgins, agreed that an action for defamation is subject to the rules relating to

summaryjudgment. As such, at para 37 he held that “it is only those defamation actions which proceed to trial where the plaintiff has the right todetermination by jury.” [23] Similarly in Pharand, Juriansz J of the Ontario Superior Court of Justice considered the interplay between an application forsummary judgment and the right to a jury trial in an action for damages by a plaintiff who sustained injuries when leaving thedefendant’s hotel premises. At para 19, he held: Nor do I regard it unfair to deprive the defendant of a jury trial. The rules do not provide that

summary judgment under Rule 76.06(14) isunavailable when a jury notice has been served. The rule goes further than depriving the defendant of a jury trial. The intent of the rule,

when its requirements have been met, is to deprive the unsuccessful litigant of any trial. Its purpose is to provide speedy and inexpensive justice in those clear cases where the Judge is able to “cut to the chase and enter judgment”. [ 24 ] The principles outlined in the Manitoba decisions were cited as being “of assistance” by the British Columbia Court of Appeal in Hung v Gardiner , though Levine JA pointed out that the conflict in British Columbia was based on whether the filing of a jury notice in a defamation action pursuant to Rule 39(27) of the British Columbia Supreme Court Rules prevents a party from applying for a

summary trial pursuant to Rule 18A. Levine JA pointed out (at para 52) that the Manitoba

summary judgment rule was more akin to BC Rule 18 than to Rule 18A. The decision in Newfield also turns on the interaction between BC Rule 18A and Rule 39(27) and, as such, is not directly on point. [ 25 ] I accept the Plaintiff’s argument that resort to the

summary judgment process set out in the Alberta Rules of Court is not specifically precluded by s 17 of the Jury Act . Further, I accept the approach adopted in both Manitoba and Ontario, which promotes access to speedy justice through

summary judgment, while protecting the jury mode of trial for those matters that actually proceed to trial. It follows that I do not accept the Defendant’s contention that the Plaintiff’s

summary judgment application is precluded by the order of Yamauchi J directing that this matter proceed to trial before a jury. I agree with the Plaintiff that the right to a jury trial does not preclude the bringing of a

summary judgment application. [ 26 ] The Defendant further argues that his election of trial by jury is a factor that must be taken into consideration in determining whether to grant the Plaintiff leave to bring his

summary judgment application. The Defendant relies on the decision of Dunphy J in McDonald v John/Jane Doe , 2015 ONSC 2607 . In that case, the court considered whether it was appropriate to proceed by

summary judgment under Ontario rule 20.04 in determining liability in a motor vehicle collision. The Ontario rule is very different from the Alberta

summary judgment rule. In particular, the Ontario rule grants judges an expanded fact-finding role and permits them to weigh evidence, evaluate credibility and draw reasonable inferences for the purpose of determining if there is a genuine issue for trial. There is no such expanded fact-finding role under the Alberta rules. [ 27 ] Dunphy J expressed some caution about proceeding in this manner, since it permits the motions judge to exercise an expanded fact-finding role that effectively usurps the fact-finding role of the jury.

Specifically, he states (at para 45) that “it is incumbent upon the court to give due consideration to the right to a jury trial and other relevant factors in considering whether the interests of justice require the Rule 20.04(2.1) toolbox to remain unopened.” In my view, this passage from McDonald must be read in context. Dunphy J is specifically referring to the need for a court to give due consideration to the right to a jury trial relative to its determination of whether the court should rely on its expanded fact-finding role set out in Rule 20.04(2.1).

I do not accept the Defendant’s suggestion that this comment supports the proposition that the right to a jury trial is a relevant factor in determining the availability of

summary disposition proceedings. As such, I conclude as I did above. Simply because a claim alleges defamation does not guarantee a jury trial without risk of

summary disposition; rather, it guarantees the right to determination by jury for those actions that proceed to trial. The fact this case is scheduled for trial by jury versus judge alone has no bearing on my decision regarding leave. [ 28 ] Having addressed this preliminary issue, I turn to the remaining arguments regarding whether leave should be granted to bring a

summary judgment application in this instance. [ 29 ] The Plaintiff relies on Encana v ARC Resources Ltd. , 2013 ABQB 96 in support of his application. In that case, Kent J granted the defendants leave to bring a

summary judgment application. The application arose in somewhat unusual circumstances: the amendment of the provincial Mines and Minerals Act , several years after the commencement of the litigation, and a decision of the Court of Appeal in a related action. [ 30 ] In my earlier decision in this same action (oral reasons delivered on November 12, 2015), I found that Kent J’s comment that “under the new Rules, leave is not required” was an obiter comment made in circumstances where the court explicitly stated it was not deciding the issue of whether or not leave was required.

As such, Kent J assumed, without deciding, that leave was required and went on to grant leave. [ 31 ] The related action was Encana Corp. v Devon Canada Corp . , 2011 ABQB 431 , also heard by Kent J. In that case, the coal owners and the lessees of natural gas underlying the same lands disputed the ownership of coalbed methane gas. The coal owners sued the natural gas lessees in trespass and conversion for the extraction of coalbed methane said to belong to the coal owners by virtue of their ownership of the coal.

The gas owners responded by seeking declarations that they had the right to recover the coalbed methane by virtue of their right to natural gas pursuant to lease. [ 32 ] A 2010 amendment to the Mines and Minerals Act declared coalbed methane to be, and to have at all times been, natural gas unless specifically reserved or excepted. It was in this context, i.e. an amendment to a key legislative provision, that Kent J granted the application by the gas owners for leave to bring a

summary judgment application in respect of some leases. She noted that her decision required no findings of fact, simply an

interpretation of the new legislative regime. [ 33 ] The Court of Appeal upheld Kent J’s decision in Encana Corp. v Devon Canada Corp. , 2012 ABCA 271 . The Court of Appeal found that no trial on this issue was required in light of the legislative amendment and the finding that the leases did not specifically exclude coalbed methane. [ 34 ] In Encana v ARC Resources , Kent J considered a similar issue in the context of transferred lands, i.e. lands sold by Encana but reserving and excepting coal, and granted leave to bring a

summary judgment application. She found that the application could save up to three weeks of trial time. [ 35 ] In my view, the circumstances in Encana v ARC Resources were unique in that the legislative amendment conclusively determined at least some of the issues in dispute. As such, there was no triable issue to be determined in this regard. [ 36 ] In his leave application, the Plaintiff seeks

summary judgment relative to two allegedly defamatory statements made by the Defendant on April 24, 2013 and October 9, 2013, respectively. He seeks general damages and full-indemnity costs on the

summary judgment application. In his Statement of Claim filed November 13, 2013, the Plaintiff alleges that the Defendant also defamed the

Plaintiff in other ways, specifically that the Plaintiff told other people how to break the law and that the Plaintiff could be described as a “Godfather”. In his Statement of Claim, the Plaintiff seeks punitive, aggravated and exemplary damages, in addition to general damages in the amount of $5,000,000. However, in his

Summary Judgment application, the Plaintiff confines his damages claim to general damages only. In my view, the content of the Plaintiff’s

summary judgment application is properly characterized as a subset of his total claim, as set out in his Statement of Claim. [ 37 ] The Plaintiff says that if he is successful on his

summary judgment application, he will not pursue the Defendant on the other allegedly defamatory statements and he will not seek punitive, aggravated and/or exemplary damages. However, the Plaintiff does not offer to amend his Statement of Claim to reflect the more limited scope of his

summary judgment application, nor does he offer an undertaking or other firm commitment to abandon the balance of his claim if successful on his

summary judgment application. Moreover, the Plaintiff takes the position that if his

summary judgment application is not successful, he will pursue his original claim. [ 38 ] In my view, the Plaintiff seeks to split his case under the guise of a

summary judgment application. The purpose of

summary judgment is to save time and avoid unnecessary court proceedings. I fail to see how the Plaintiff’s proposed approach can result in anything other than the potential duplication of effort and an unwarranted use of precious court time. [ 39 ] Moreover, the prospect of two processes – a

summary judgment application and a jury trial – creates potential conflict in terms of the assessment of damages. How does a jury deal with the issue of damages if general damages on a portion of the Plaintiff’s claim have already been assessed by the motions judge hearing the

summary judgment application? Are the findings of fact made by the motions judge res judicata in terms of the jury trial? While it is obviously possible that the issues to be determined in the

summary judgment application will be distinct and neatly separated from those placed before the jury, this seems unlikely under the circumstances. In the result, the resolution of the total dispute becomes potentially complex and “messy”. [ 40 ] The Defendant also complains, with some justification, that if leave is granted he will have to simultaneously prepare for both the

summary judgment application and the upcoming trial. He argues against granting the application for leave and emphasizes the fact that the parties agreed and represented to the court that they were ready for trial. [ 41 ] The Defendant relies on Snihur v Grace , 2013 ABQB 746 , in which Veit J dismissed an application to compel answers to further questions after the parties filed a Form 37. In May 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 had been conducted and discharged and that the parties would be ready for trial by December 2013. The trial was adjourned from December 2013 to June 2014 due to an issue relating the testimony of an expert witness.

In December, the plaintiff brought an application to deal with unanswered questions for which she sought answers from government officials. [ 42 ] Although Veit J found that the answers to the questions under consideration were notionally relevant to the issue of whether Ms. Snihur’s conditions of incarceration were cruel and unusual, she concluded that the applicant would suffer only minor prejudice by not being able to include them in her own case as read-ins.

The judge found the applicant would be in a position at trial to ask government representatives all the questions she identified. [ 43 ] Furthermore, Veit J concluded that prejudice to all parties could arise from allowing the application; a great deal of time had already passed pre-trial and there had been many dealings amongst the parties to settle a trial date.

She stated that “[a]ny threat to that trial date, including the risk that interlocutory process would not be finished by that date, should be resisted.” [ 44 ] Veit J also commented on the systemic prejudice that could arise if lawyers failed to take the requirements of Form 37 seriously: ...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. [ 45 ] On the facts, she found the parties knowingly completed Form 37, thereby giving up the right to have access to further interlocutory process to force answers to certain questions. Furthermore, the filed Form 39 also confirmed trial readiness.

The Court could not ignore these forms and counsels’ representations therein. [ 46 ] The Defendant also relies on Wakeling J’s decision (as he then was) in Tan v Swyrd, 2013 ABQB 229 , in which he comments on the nature and meaning of Form 37 and its representations. In Tan , the Court was concerned with determining the appropriate costs payable by the defendants pursuant to the settlement of a personal injury action. The Plaintiff did not serve her expert reports prior to the parties’ filing of Form 37.

The Court found that the Plaintiff had contravened Rule 8.4(3) by filing Form 37 notwithstanding that all expert reports had not been served. Wakeling J determined (at para 13) that “denying costs for the contested experts’ reports is one way of encouraging officers of the court to honour their high duty to the judicial process.” He also held (at para 48) that “[R]ule 8.4(3)(

c) protects all litigants for whom a trial date is a valuable commodity.” [ 47 ] Finally, Wakeling J made it clear that litigants are bound by the actions of their counsel. At para 67, he stated: The plaintiff must suffer for the sins of her counsel. His sins are hers. There is no reason to relieve her of this burden: “Ordinarily, this court should not distinguish between the litigant himself and his advisors.

There are good reasons why the court should not: first, if anyone is to suffer for the failure of the solicitor it is better that it be the client rather than another party to the litigation; secondly, the disgruntled client may in appropriate circumstances have his remedies in damages or in respect of wasted costs... Hytec Information Systems Ltd. v Coventry City Council , [1997] 1 W.L.R. 1666 (Eng.

C.A.) at 1675 . [ 48 ] In RFG Private Equity Limited Partnership No. 1B v Value Creation Inc. , 2014 ABQB 611 Yamauchi J, in discussing the exchange of expert reports, explained the reliance placed by the Court on Forms 37 and 38 and the implicit commitment they contain (at para 57):

In this case, the parties provided the certifications contained in the forms, and abided by them, with certain agreed-on changes concerning timing. They did not agree that they could provide surrebuttal reports or additional reports, because they did not think they were necessary! As Fruman JA said in Young West Oil and Gas Ltd v Erehwon Inc , 2001 ABCA 115 at para 13 , 281 AR 152: The only thing that changed since then is counsel for Young West, who, not unexpectedly, has a different strategy in mind.

Retaining new counsel does not allow revisitation of issues which have already been decided and acted upon by the parties . If it did, a party unhappy with a previous decision of a court could retain new counsel and reargue all matters that have gone before. If a party is unhappy, it should appeal. [Emphasis in original.] [ 49 ] These cases provide the context in which to consider the Plaintiff’s leave application. As Veit J stated at para 5 in Snihur , “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.” Kent J found justification in the legislative amendment that would finally answer a key issue in the Encana case. Veit J and Yamauchi J did not find similar justification in Snihur and RFG Private Equity , respectively. [ 50 ] Relying on these cases, the Defendant points to the court order dated June 22, 2015, setting this matter down for trial. At that time, both lawyers indicated that the matter was ready to proceed.

The Defendant argues that there has been no change in circumstances since that date, other than the fact the Plaintiff has retained new counsel. The Plaintiff’s withdrawal of his earlier request to reopen the examination of the Defendant on his undertakings and his request to have the court direct the questioning of a third party, in essence, concede that there has been no change in circumstances since the matter was set down for trial.

As such, the situation here can be distinguished from that in Encana , where the law had changed, and where the Court of Appeal had issued a binding decision. [ 51 ] Furthermore, the trial is scheduled to commence on February 16, 2016, just over three months from now, with the intervention of the Christmas holiday break. The Plaintiff contends that all of the steps required to complete the

summary judgment application, including the resolution of possible interlocutory appeals to the Court of Appeal, can all be resolved within the next thirteen weeks through court imposed expedited timelines. The Defendant says that the Plaintiff is essentially asking the court for permission to “jump the queue” and to take precedence over all other litigants seeking court time. The Defendant points to the fact that special applications are now being scheduled in the Court of Queen’s Bench in Calgary for June 2016. [ 52 ] To simplify the process, the Plaintiff says that all of the material upon which he would rely in support of a

summary judgment application is now before the court. He says he will not file an affidavit in support of his

summary judgment application but will, instead, rely on the following materials:

a) Nine (9) admissions contained in the Statement of Defence;

b) Two (2) read-ins from the Defendant’s questioning (each read-in being one page in length);

c) Five (5) documents from the Plaintiff’s affidavit of records;

d) A CD containing the Plaintiff’s surreptitiously recorded November 27, 2013 statement;

e) A CD and full transcript of the Defendant’s April 24, 2013 interview on the CBC radio program “The Eye Opener” [ 53 ] The Defendant, however, states that if leave is granted he will file affidavit evidence; it would consist of an affidavit from the Defendant himself, as well as affidavits from his Chief of Staff and possibly one or two members of Calgary City Council. [ 54 ] The Defendant also says that the Plaintiff’s decision not to file an affidavit in support of his

summary judgment application would give rise to an application by the Defendant to compel the Plaintiff to file an affidavit. If successful, the Plaintiff would then require time to prepare and file an affidavit and submit to cross-examination. [ 55 ] The Defendant points to rule 7.3(2) which states that an application for

summary judgment “must be supported by an affidavit swearing positively that one or more of the grounds described in subrule (1) have been met or by other evidence to the effect that the grounds have been met.” He also relies on the decision of Wittmann CJ in Ernst v EnCana Corporation , 2014 ABQB 672 at paras 74- 81 .

The Plaintiff, by contrast, relies upon rule 6.11(1), which identifies the evidence the court may consider when making a decision about an application, and specifically identifies, at subsection (d), “an admissible record disclosed in an affidavit of records.” [ 56 ] Without deciding this point, I conclude that the argument surrounding it adds to my reservations about whether all of the necessary steps associated with hearing and deciding the Plaintiff’s

summary judgment application can be completed without compromising the scheduled trial date. In calculating the amount of time to complete the various steps associated with such an application, at the very least cross-examination by the opposing party on each and every affidavit filed is to be expected, along with other potential interlocutory applications. [ 57 ] I also ask whether it is reasonable to expect the parties and the court system to turn itself inside-out to respond to this somewhat last-minute application brought by the Plaintiff.

This file is under case management and, as such, has had the benefit of a dedicated judge to assist the parties to move the matter to trial and to hear all pre-trial applications. The appointment of a case management judge, however, is not intended to facilitate the parties to “jump the queue” and gain access to a more speedy form of justice than that which is available to other litigants in Alberta.

I have considerable sympathy for defence counsel’s argument that this is not his only file, that he has other pressing commitments in his schedule, and that he is not able to effectively drop all other matters and turn his attention to this

summary judgment application, at the same time as he moves forward with his trial preparations. [ 58 ] In my view, even the most optimistic view of such a

schedule reveals the impossibility of the task. All of the steps associated with the

summary judgment application will have to be done in parallel with the parties’ preparation for a jury trial. It would be prejudicial to require the Defendant to run down a parallel track to respond to the Plaintiff’s

summary judgment application. The clock is ticking and time is running out. The risk of prejudice to the Defendant in this regard cannot be adequately compensated with costs.

[ 59 ] The Plaintiff relies on Fruitland Juices v Custom Farm Service Inc. , 2012 ONSC 4902 at paras 26-28 , in which Quinn J considered whether to grant leave to initiate a motion after an action has been placed on the trial list (as required by Ontario Rule 48.04(1)). The judge stated that “so long as the motion, if successful, will be less costly and time-consuming than the trial, and will not unduly delay the start of the trial, I do not see why the moving party must explain his or her choice of timing.” On the facts herein, I have concluded that bringing a

summary judgment application will inevitably delay the start of the trial, so I do not find the case to be particularly persuasive. [ 60 ] Furthermore, Rule 8.6 provides that a trial for which a trial date has been set 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. [ 61 ] In the circumstances, it is clear the Plaintiff has no intention to discontinue this action, nor is there any evidence of settlement. As case management judge, I am not prepared to permit rescheduling of this trial at this time for what appears to be an unnecessary interlocutory proceeding. [ 62 ] There is no risk of prejudice to the Plaintiff, in that he has already secured a trial date to fully address the content of his claim. In the circumstances here, the matter will likely be addressed more quickly by proceeding to trial. A

summary judgment application, opening up the possibility of interlocutory appeals, creates a situation where an adjournment of the trial is unavoidable. It is a matter of public record that the Court of Queen’s Bench in Calgary is now setting dates for criminal and civil trials in early 2017. If the

summary judgment application were to result in an adjournment of the current trial date, a year’s delay would likely result. [ 63 ] Finally, this case does not lend itself to resolution by

summary judgment. As with many defamation actions, it is replete with conflicting evidence and issues of credibility, which are best determined at trial. [ 64 ] The Plaintiff relies heavily on Hryniuk v Mauldin , 2014 SCC 7 and the cultural shift it describes as necessary to create better access to justice (at para 28): This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found.

However, that process is illusory unless it is also accessible — proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure. [ 65 ] Much of the discussion in Hryniuk focuses on harm resulting from long, drawn-out proceedings and delays that hinder access to justice. It describes

summary judgment as “an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial” (at para 34). At para 4, the court stated: ...In my view, a trial is not required if a

summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial. There will be no genuine issue requiring a trial when the judge is able to find the necessary facts and reach a fair and just determination on the merits on a motion for

summary judgment. [ 66 ] The court noted that concerns about credibility or clarification of the evidence can be addressed by calling oral evidence on the motion itself in accordance with the Ontario Rules; however, these are not options under the Alberta

summary judgment rules. [ 67 ] In 776826 Alberta Ltd. v Ostrowercha , 2015 ABCA 49 the Alberta Court of Appeal considered Hryniuk and its application to Alberta rules. The court held that

summary judgment can be given if a disposition that is fair and just to both parties can be made on the existing record (at para 9). The court went on to explain what is meant by “no merit to the claim” (at para 11-12): ...in order for the non-moving party's case to have merit, there must be a genuine issue of a potentially decisive material fact in the case which cannot be summarily found against the non-moving party on the record revealed by the “fair and just process”.

The mere assertion of a position by the non-moving party in a pleading or otherwise, or the mere hope of the non-moving party that something will turn up at a trial, does not suffice. The key is whether the circumstances require a viva voce evidence in order to properly resolve the case... As to the substantive aspect of the test, then, this Court has also put the test for

summary dismissal into the following terms in W. P., at para. 26:

Summary judgment is therefore no longer to be denied solely on the basis that the evidence discloses a triable issue.

The question is whether there is in fact any issue of “merit” that genuinely requires a trial, or conversely whether the claim or defence is so compelling that the likelihood it will succeed is very high such that it should be determined summarily: ... [ 68 ] In Hryniuk , the Supreme Court reiterated that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that he or she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute. [ 69 ] I find that in spite of Plaintiff counsel’s arguments to the contrary, the dispute here involves numerous conflicting facts and requires determinations of credibility.

The Plaintiff argues that the Defendant has failed to provide his evidence for assessment on this leave application. He submits that the Plaintiff should have “put his best foot forward” at this point and not simply rely on the promise of affidavits that will be filed only if the

summary judgment application goes forward. I accept the Plaintiff’s point in this regard, but I

am also sensitive to the fact that a defendant should not have to run his complete defence on a leave application when it is clear on other material before the court that credibility issues and disputed facts are at the heart of the action. [ 70 ] The Defendant refers, at page 5 of his brief, to correspondence from the Plaintiff’s former counsel and his written submissions in response to the Defendant’s application for a jury trial, as confirmation that the issues to be resolved in this action involve questions of credibility and disputed material facts.

The Plaintiff’s then counsel argued that “the pleadings frame a particularly complicated and complex case involving many issues, with a somewhat novel aspect involving a course of conduct alleged to be defamatory during an election campaign by a very public figure utilizing social media.” [ 71 ] Similarly, the defences available to the Defendant depend on disputed material facts and questions of credibility. Most notably, the “diametrically opposed” views of the Defendant and Mr. Kevin Taylor about what Mr.

Taylor said to the Defendant about the Shane Homes’ vehicles that were used to put up signs for his 2010 election campaign are vital to the defences of justification and fair comment. A judge hearing the

summary judgment application cannot weigh this evidence or determine credibility. [ 72 ] More importantly, however, Hryniuk advises us to consider proportionality, fairness, and the affordable, timely and just adjudication of claims (at para 5). The decision suggests that, often, the trial process denies ordinary people the right to adjudication. The irony here is that granting leave to bring a

summary judgment application will result in delay and a denial of access to justice. The parties cooperated to get to trial quickly. The claim was filed only two years ago, yet all pre-trial steps were completed by mid-summer, and the trial date is set for February. The foundational rule 1.2 indicates that the purpose of the rules is to achieve more timely and cost- effective results without sacrificing fairness or justice. In this particular situation, I conclude that the most expeditious and fair resolution is to proceed with the trial as scheduled. Conclusion [ 73 ] I reject the Plaintiff’s claim that proceeding with a

summary judgment application will result in the most efficient use of judicial resources. The Plaintiff will suffer no prejudice by proceeding with a trial; all the issues raised in his

summary judgment application can be resolved at trial, along with the other issues in his Statement of Claim. The date is now set and my decision denying him leave to bring a

summary judgment application will in no way adversely impact his access to the courts to resolve this dispute. [ 74 ] Furthermore, the Plaintiff’s prior counsel, an officer of the court, certified that there would be no further applications. The Court and the Defendant have relied on these representations in scheduling this action for jury selection and trial. The statements made by counsel in this context must bind his client and cannot be withdrawn without reason. The Plaintiff has not provided sufficiently persuasive reasons. [ 75 ] I deny the Plaintiff’s application for leave to bring a

summary judgment application. Heard on the 12 th and 13 th days of November, 2015. Dated at the City of Calgary, Alberta this 23 rd day of November, 2015. M. David Gates J.C.Q.B.A. Appearances: Ariel Z. Breitman & Jonathan J. Bourchier for the Plaintiff Munaf Mohamed for the Defendant