Prothero v Dhaliwal, 2021 ABQB 1009

Court of Queen’s Bench of Alberta Citation: Prothero v Dhaliwal, 2021 ABQB 1009 Date: 20211216 Docket: 1704 00383 Registry: Grande Prairie Between: Bradley Prothero and Her Majesty the Queen in Right of Alberta Plaintiffs - and - Satnam Singh Dhaliwal Defendant _______________________________________________________ Memorandum of Decision of Brian W. Summers , Master in Chambers _______________________________________________________ Introduction [ 1 ] In a Special Chambers hearing, the Plaintiffs applied for: (

a) a

summary determination that the Defendant is liable for the torts of assault and battery upon the Plaintiff Bradley Prothero (“Prothero”), with the quantum of damages to be determined at a later date; and (

b) summary dismissal of the counterclaim of the Defendant Satnam Singh Dhaliwal (“Dhaliwal”) against Prothero for assault and battery upon Dhaliwal and damage to personal property. [ 2 ] The primary issue is: What effect does the conviction of Dhaliwal for assault causing bodily harm contrary to s 267(

b) of the Criminal Code have upon the determination of issues in this civil action? [ 3 ] The Plaintiffs’ application is made pursuant to Rule 7.3. As with all such applications, the question as to whether the action can and should be determined on a

summary basis must be answered. Facts [ 4 ] The following are the relevant facts in this case:

(

a) Prothero worked for Richmond Steel Canada Ltd (“Richmond Steel”). (

b) Richmond Steel had provided an excavator to Dhaliwal’s company Hilltop Auto Recyclers Ltd (“Hilltop”) for a specifieduse. (

c) Pursuant to instructions from Richmond Steel, Prothero, and another employee of Richmond Steel, Elliot McDavid(“McDavid”), attended at the business of Hilltop to retrieve the excavator. (

d) McDavid cut a lock to the Hilltop gate and Prothero entered the property and drove the excavator off the property to wait fora truck to transport the excavator. (

e) Dhaliwal arrived upon the scene and confronted Prothero to stop the removal of the excavator. A physical altercationoccurred between Dhaliwal and Prothero. (

f) The police arrived and stopped the altercation. (

g) Dhaliwal was charged with and convicted of assault causing bodily harm, contrary to s 267(

b) of the Criminal Code.Prothero was not charged. (

h) Prothero (and Her Majesty the Queen in right of Alberta) commenced this civil action against Dhaliwal claiming damagesfor the assault. Dhaliwal filed a Statement of Defense and Counterclaim. The Counterclaim claimed damages suffered by Dhaliwal forassault and battery and damage to a weigh scale and the gate to the Hilltop premises. (

i) Prothero filed his application for

summary judgment. Affidavits were sworn by each of Prothero and Dhaliwal. Each ofthem was cross examined upon affidavit. Respective Positions of the Parties [5] Prothero asserts that by virtue of the criminal conviction of Dhaliwal for assault and battery and the findings of theProvincial Court Judge in that case, a

summary determination may be made in this case that Dhaliwal is liable to Prothero for damages(in an amount to be determined) and the counterclaim may be dismissed. [6] Conversely, Dhaliwal asserts that it would be procedurally unfair and unjust to determine this civil case on a

summary basisas there are genuine issues requiring a trial: specifically the cause of Prothero’s injuries and the credibility of Prothero. What is the impact of the criminal conviction? [7] Both counsel for the Plaintiffs and counsel for the Defendant referred to the case of Holt v MacMaster, (AB KB), 11 Alta LR (3d) 226, 140 AR 235, 18CPC (3d) 220, [1993] AJ No 501 (“Holt”). The plaintiffs in that case sought

summaryjudgment on the question of liability for an assault that occurred in the course of an amateur hockey match. The defendant Holt filed anaffidavit asserting self-defence. In cross examination, Holt admitted that he was convicted for assault and his evidence in the criminalcase was essentially the same as in his affidavit in the civil case. [8] Holt argued that pursuant to s 27 of the Alberta Evidence Act, RSA 1980, c. A-21, his criminal conviction for assault was notconclusive proof that the offense was committed. That

section stated: 27(1) In this section, (a) "conviction" means a conviction (

i) that is not subject to appeal or further appeal, or (ii) in respect of which no appeal is taken; (b) "finding of guilt" means the plea of guilty by an accused to an offence or the finding that an accused is guilty of an offence madebefore or by a court that makes an order directing that the accused be discharged for the offence either absolutely or on the conditionsprescribed in a probation order, when (

i) the order directing the discharge is not subject to further appeal, or (ii) no appeal is taken in respect of the order directing the discharge, and "found guilty" has a corresponding meaning.

(2) When (

a) a person has been convicted of or is found guilty of an offence anywhere in Canada, and (

b) the commission of that offence is relevant to an issue in an action, then, whether or not that person is a party to the action, proof of the conviction or the finding of guilt, as the case may be, is admissiblein evidence for the purpose of proving that the person committed the offence.

(3) A certificate containing the substance and effect only, omitting the formal part, of the charge and of the conviction or finding of guilt, as the case may be, purporting to be signed by (

a) the officer having the custody of the records of the court in which the offender was convicted or found guilty, or (

b) the deputy of the officer, is, on proof of the identify of a person as the offender, sufficient evidence of the conviction of that person or the finding of guilt against him, without proof of the signature or of the official character of the person appearing to have signed the certificate.

(4) When proof of the conviction or finding of guilt of a person is tendered in evidence pursuant to subsection (2) in an action for defamation, the conviction of that person or the finding of guilt against that person is conclusive proof that he committed the offence.

(5) When proof of a conviction or a finding of guilt is admitted in evidence under this section, the contents of the information, complaint or indictment relating to the offence of which the person was convicted or found guilty is admissible in evidence.

(6) Subject to subsection (4), the weight to be given the conviction or finding of guilt shall be determined by the judge or jury, as the case may be. [ 9 ] The Court agreed with Holt that the effect of s 27 of the Alberta Evidence Act was that with the exception of defamation actions, proof of a criminal conviction is not conclusive proof that the offence was committed. However, the Court proceeded to grant

summary judgment against Holt, reasoning that with Holt’s admission that his testimony in the civil case was essentially the same as that in the criminal case, “very heavy weight should be attached to a conviction after a trial.” [ 10 ] The current version of this legislative provision is s 26 of the Alberta Evidence Act .

There is no difference between the current version and the version considered in Holt . [ 11 ] Counsel for Dhaliwal argues that pursuant to subsection (4), the only conviction which is taken as conclusive proof that the offense was committed is defamation; and consequently Dhaliwal’s conviction is just some evidence that the offense of assault causing bodily harm was committed. [ 12 ] Counsel for Prothero places great weight on the decision of the Supreme Court of Canada in Toronto (City of) v CUPE Local 79, [2003] 3 SCR 77 , 2003 SCC 63 (“CUPE”) .

In that case the Union grieved Glenn Oliver’s dismissal from employment as a recreation instructor after Oliver had been convicted of sexual assault of a boy . At the grievance hearing the arbitrator ruled that the criminal conviction was admissible evidence, but it was not conclusive proof that Oliver had sexually assaulted the boy. The arbitrator further ruled that the criminal conviction had been rebutted and Oliver had been dismissed without just cause. The City appealed the arbitrator’s decision.

The Divisional Court quashed the arbitrator’s decision and that decision was upheld in the Ontario Court of Appeal. The Union appealed to the Supreme Court of Canada. [ 13 ] The Court considered the three related common law doctrines of issue estoppel, collateral attack and abuse of process. Issue estoppel did not apply because the parties to both proceedings were not the same.

Collateral attack did not apply because the Union was not attacking the conviction itself, but rather the facts underlying the conviction. [ 14 ] In finding the doctrine of abuse of process as applicable, the Court stated (in part): 42 The attraction of the doctrine of abuse of process is that it is unencumbered by the specific requirements of res judicata while offering the discretion to prevent relitigation, essentially for the purpose of preserving the integrity of the court’s process. (See Doherty J.A.’s reasons, at para. 65; see also Demeter (H.C.), supra , at p. 264, and Hunter , supra , at p. 536.) 43 Critics of that approach have argued that when abuse of process is used as a proxy for issue estoppel, it obscures the true question while adding nothing but a vague sense of discretion.

I disagree. At least in the context before us, namely, an attempt to relitigate a criminal conviction, I believe that abuse of process is a doctrine much more responsive to the real concerns at play. In all of its applications, the primary focus of the doctrine of abuse of process is the integrity of the adjudicative functions of courts.

Whether it serves to disentitle the Crown from proceeding because of undue delays (see Blencoe , supra ), or whether it prevents a civil party from using the courts for an improper purpose (see Hunter , supra , and Demeter , supra ), the focus is less on the interest of parties and more on the integrity of judicial decision making as a branch of the administration of justice. In a case such as the present one, it is that concern that compels a bar against relitigation, more than any sense of unfairness to a party being called twice to put its case forward, for example.

When that is understood, the parameters of the doctrine become easier to define, and the exercise of discretion is better anchored in principle. 44 The adjudicative process, and the importance of preserving its integrity, were well described by Doherty J.A. He said, at para. 74: The adjudicative process in its various manifestations strives to do justice. By the adjudicative process, I mean the various courts and tribunals to which individuals must resort to settle legal disputes.

Where the same issues arise in various forums, the quality of justice delivered by the adjudicative process is measured not by reference to the isolated result in each forum, but by the end result produced by the various processes that address the issue. By justice, I refer to procedural fairness, the achieving of the correct result in individual cases and the broader perception that the process as a whole achieves results which are consistent, fair and accurate.

45 When asked to decide whether a criminal conviction, prima facie admissible in a proceeding under s. 22.1 of the Ontario EvidenceAct, ought to be rebutted or taken as conclusive, courts will turn to the doctrine of abuse of process to ascertain whether relitigation wouldbe detrimental to the adjudicative process as defined above.

When the focus is thus properly on the integrity of the adjudicative process,the motive of the party who seeks to relitigate, or whether he or she wishes to do so as a defendant rather than as a plaintiff, cannot bedecisive factors in the application of the bar against relitigation. 46 Thus, in the case at bar, it matters little whether Oliver’s motive for relitigation was primarily to secure re-employment, ratherthan to challenge his criminal conviction in an attempt to undermine its validity.

Reliance on Hunter, supra, andon Demeter (H.C.), supra, for the purpose of enhancing the importance of motive is misplaced. It is true that in both cases the partieswishing to relitigate had made it clear that they were seeking to impeach their earlier convictions. But this is of little significance in theapplication of the doctrine of abuse of process. A desire to attack a judicial finding is not in itself an improper purpose. The law permitsthat objective to be pursued through various reviewing mechanisms such as appeals or judicial review. Indeed reviewability is animportant aspect of finality.

A decision is final and binding on the parties only when all available reviews have been exhausted orabandoned. What is improper is to attempt to impeach a judicial finding by the impermissible route of relitigation in a different forum.Therefore, motive is of little or no import. 47 There is also no reason to constrain the doctrine of abuse of process only to those cases where the plaintiff has initiated therelitigation. The designation of the parties to the second litigation may mask the reality of the situation.

In the present case, for instance,aside from the technical mechanism of the grievance procedures, who should be viewed as the initiator of the employment litigationbetween the grievor, Oliver, and his union on the one hand, and the City of Toronto on the other? Technically, the union is the “plaintiff”in the arbitration procedure. But the City of Toronto used Oliver’s criminal conviction as a basis for his dismissal.

I cannot see whatdifference it makes, again from the point of view of the integrity of the adjudicative process, whether Oliver is labelled a plaintiff or adefendant when it comes to relitigating his criminal conviction. 48 The appellant relies on Re Del Core, supra, to suggest that the abuse of process doctrine only applies to plaintiffs. Re Del Core,however, provided no majority opinion as to whether and when public policy would preclude relitigation of issues determined in acriminal proceeding.

For one, Blair J.A. did not limit the circumstances in which relitigation would amount to an abuse of process tothose cases in which a person convicted sought to relitigate the validity of his conviction in subsequent proceedings which he himselfhad instituted (at p. 22): The right to challenge a conviction is subject to an important qualification. A convicted person cannot attempt to prove that theconviction was wrong in circumstances where it would constitute an abuse of process to do so. . . .

Courts have rejected attempts torelitigate the very issues dealt with at a criminal trial where the civil proceedings were perceived to be a collateral attack on the criminalconviction.

The ambit of this qualification remains to be determined . . . . [Emphasis added (by SCC).] 49 While the authorities most often cited in support of a court’s power to prevent relitigation of decided issues in circumstanceswhere issue estoppel does not apply are cases where a convicted person commenced a civil proceeding for the purpose of attacking afinding made in a criminal proceeding against that person (namely Demeter (H.C.), supra, and Hunter, supra; see also Q. v.

MintoManagement Ltd. (1984), (ON SC), 46 O.R. (2d) 756 (H.C.), Franco, supra, at paras. 29-31), there is no reason inprinciple why these rules should be limited to such specific circumstances. Several cases have applied the doctrine of abuse of process topreclude defendants from relitigating issues decided against them in a prior proceeding. See for example Nigro v.

Agnew-Surpass ShoeStores Ltd. (1977), (ON CA), 18 O.R. (2d) 215 (H.C.), at p. 218, aff’d without reference to this point (1978), (ON CA), 18 O.R. (2d) 714 (C.A.); Bomac, supra, at pp. 26-27; Bjarnarson, supra, at p. 39; Germscheid v.Valois (1989), (ON SC), 68 O.R. (2d) 670 (H.C.); Simpson v. Geswein (1995), (MB QB), 25C.C.L.T. (2d) 49 (Man. Q.B.), at p. 61; Roenisch v. Roenisch (1991), (AB QB), 85 D.L.R. (4th) 540 (Alta. Q.B.), atp. 546; Saskatoon Credit Union, Ltd. v. Central Park Enterprises Ltd. (1988), (BC SC), 47 D.L.R. (4th) 431(B.C.S.C.), at p. 438; Canadian Tire Corp. v.

Summers (1995), (ON SC), 23 O.R. (3d) 106 (Gen. Div.), at p. 115; seealso P. M. Perell, “Res Judicata and Abuse of Process” (2001), 24 Advocates’ Q. 189, at pp. 196-97; and Watson, supra, at pp. 648-51. 50 It has been argued that it is difficult to see how mounting a defence can be an abuse of process (see M. Teplitsky, “Prior CriminalConvictions: Are They Conclusive Proof? An Arbitrator’s Perspective”, in K. Whitaker et al., eds., Labour Arbitration Yearbook 2001-2002 (2002), vol. I, 279).

A common justification for the doctrine of res judicata is that a party should not be twice vexed in the samecause, that is, the party should not be burdened with having to relitigate the same issue (Watson, supra, at p. 633). Of course, a defendantmay be quite pleased to have another opportunity to litigate an issue originally decided against him.

A proper focus on the process, ratherthan on the interests of a party, will reveal why relitigation should not be permitted in such a case. 51 Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of theadjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation willyield a more accurate result than the original proceeding.

Second, if the same result is reached in the subsequent proceeding, therelitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly anadditional hardship for some witnesses.

Finally, if the result in the subsequent proceeding is different from the conclusion reached in thefirst on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, therebydiminishing its authority, its credibility and its aim of finality. 52 In contrast, proper review by way of appeal increases confidence in the ultimate result and affirms both the authority of theprocess as well as the finality of the result.

It is therefore apparent that from the system’s point of view, relitigation carries seriousdetrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibilityand the effectiveness of the adjudicative process as a whole.

There may be instances where relitigation will enhance, rather than impeach,the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, newevidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result shouldnot be binding in the new context. This was stated unequivocally by this Court in Danyluk, supra, at para. 80. 53 The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally

available to prevent the doctrine of abuse of process from achieving a similar undesirable result. There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness. If, for instance, the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail.

An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome the interest in maintaining the finality of the original decision ( Danyluk , supra , at para. 51 ; Franco , supra , at para. 55 ). 54 These considerations are particularly apposite when the attempt is to relitigate a criminal conviction. Casting doubt over the validity of a criminal conviction is a very serious matter. Inevitably in a case such as this one, the conclusion of the arbitrator has precisely that effect, whether this was intended or not.

The administration of justice must equip itself with all legitimate means to prevent wrongful convictions and to address any real possibility of such an occurrence after the fact.

Collateral attacks and relitigation, however, are not in my view appropriate methods of redress since they inordinately tax the adjudicative process while doing nothing to ensure a more trustworthy result. 55 In light of the above, it is apparent that the common law doctrines of issue estoppel, collateral attack and abuse of process adequately capture the concerns that arise when finality in litigation must be balanced against fairness to a particular litigant.

There is therefore no need to endorse, as the Court of Appeal did, a self-standing and independent “finality principle” either as a separate doctrine or as an independent test to preclude relitigation. [ 15 ] Following these directions from the Supreme Court of Canada, I note that Dhaliwal’s attempt to relitigate issues determined in his criminal case carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation will enhance, rather than impeach, the integrity of the judicial system. [ 16 ] Dhaliwal says that there is new evidence that shows that the evidence given by Prothero at Dhaliwal’s criminal is not credible.

In this proceeding, Dhaliwal provided a forensics report with respect to a video that was enhanced, enlarged and individuals were tracked by their movements. The “experts” track the movements of individuals in the video. Dhaliwal says that this tracking shows that Prothero’s evidence as to whether he left the excavator cab and the number of times that Dhaliwal approached the cab, cannot be true. [ 17 ] I reject this basis for relitigating issues already determined. [ 18 ] Firstly, the so-called expert report is simply one person’s conclusion as to what he sees from the enhanced video.

That is not admissible evidence in my view. [ 19 ] With respect to that video, the Provincial Court Judge stated (at page 10, lines 11-17 of the trial transcript, found at Exhibit “C” to Prothero’s affidavit): I should comment on the video which is in evidence and which was viewed by the Court. The defendant argued over and over again during his submissions that the video exonerated him and corroborated his version of events. In fact, it does no such thing.

The video does not assist with respect to the actual altercation one way or the other because the altercation is not visible on the video due to a fence and trees that blocked the full line of sight from the camera to the location of the excavator where the altercation occurred. It simply does not assist. [ 20 ] Secondly, this is nothing but a direct attack on the findings of the Provincial Court Judge at Dhaliwal’s criminal trial. [ 21 ] The trial judge completely rejected Dhaliwal’s evidence that he was the one beset upon and anything he did was done in self defence.

The judge stated, among other things: (a) ...I do not believe the accused. I find the accused’s evidence to lack any trustworthiness and to be completely incredible....; (b) ...the defendant’s evidence was evasive in the extreme. He was argumentative and anything but frank. (many examples of this were then provided); (c) ...in addition to being internally inconsistent, the defendant’s evidence was externally inconsistent and by that I mean it was inconsistent with other evidence before the Court. The defendant’s version, for instance, was completely irreconcilable with the evidence of his own witness, Mr.

Zeluski. Further, the defendant’s version of the altercation is belied by the photographic evidence of the complainant’s blood on the defendant’s shirt, given the amount of blood present, as well as the photographic evidence of the defendant which shows little injury at the time; and (

d) Further, the defendant’s claim to fear for his life is contradicted by his phone calls to 9-1-1 which sound to be made by someone much more in fear of losing his property than being in fear of losing his life. The examples of inconsistencies go on and on. As I said, I do not believe the defendant. I do not believe that he was being truthful in his testimony.

In my view, he was lying with respect to the core elements of the incident that took place on that day. (the foregoing excerpts are found at pages 7 and 8 of the trial transcript) [ 22 ] The foregoing is to be contrasted to the trial judge’s statements with respect to the evidence of Prothero, as follows (at page 9, line 36 to page 10, line 9): I accept the evidence of Mr. Prothero. I find him to be reliable and trustworthy, in other words, credible. Mr. Prothero’s evidence was given in a direct, frank, and forthright manner. His evidence was internally consistent.

Further, his evidence was not completely consistent with that of his wife’s, but I am not concerned sufficiently with the inconsistency

such that it affected the remainder of his evidence. Mr. Prothero’s evidence further was corroborated in the injuries evident from the photos, as well as his blood on the defendant’s shirt. Mr. Prothero’s evidence, at least to the sequence of events and who was involved was, for the most part, was confirmed by the evidence of the defendant’s own witness, Mr. Zeluski. Finally, Mr. Prothero readily admitted his wrongdoing. That is the trespassing and taking of the excavator from the locked property. I am satisfied that Mr.

Prothero’s evidence was truthful and reliable. [ 23 ] I do not accept Dhaliwal’s assertion that relitigation should be allowed in this case because the Provincial Court Judge at his criminal trial rejected his request for an adjournment and Dhaliwal was required to defend himself without the benefit of counsel. This did not make the criminal proceeding unfair. Dhaliwal’s remedy was to appeal the Provincial Court Judge’s refusal to grant the adjournment requested.

It was not to relitigate issues in this proceeding. [ 24 ] In this case before me, I am satisfied that there would be serious detrimental effects to relitigating the issues already determined. The relitigation sought by Dhaliwal will not enhance the integrity of the judicial system, but rather impeach it. [ 25 ] I must next turn to Dhaliwal’s argument that it was not determined in Dhaliwal’s criminal trial that Prothero’s injuries were caused by the assault.

In that respect counsel for Dhaliwal referred to the decision of the Provincial Court Judge in the criminal case of R v Sledz, 2019 ABPC 61 where the judge stated (at paragraph 37): With respect to the causation of the injury sustained to the shoulder of (the complainant), the Court is unable to determine the causation of the injury.... In the context of civil litigation it may be that other evidence will be called and there may be a different causation analysis based on the civil onus of proof.

The outcome of a civil litigation is not pre-determined from the outcome of the criminal prosecution. [ 26 ] In this case before me, the Provincial Court Judge said this with respect to causation (at page 10, lines 19-23 of the transcript): As to injury, I accept Mr. Prothero’s evidence that his arm was so badly injured in the incident that he was unable to work for months. On the evidence as a whole, I am satisfied beyond a reasonable doubt that the defendant struck Mr. Prothero, that the defendant did so intentionally, that Mr.

Prothero did not consent to the application of force, and that as a result of the assault Mr. Prothero suffered bodily harm. [ 27 ] Paragraph 9 of Prothero’s Statement of Claim sets out the injuries Prothero claims to have suffered as a result of Dhaliwal’s assault upon him, as follows: By reason of the intentional Assault (previously defined in the Statement of Claim) performed by the Defendant, the Plaintiff has suffered damages and loss, the particulars of which include: (

a) Multiple fractures to the left arm, (

b) Multiple abrasions and bruising, (

c) Stress, (

d) Anxiety, (

e) Insomnia and fatigue, (

f) Such further and other injuries as will be proven at the trial of this Action. [ 28 ] However, the limited extent of Prothero’s evidence on his injuries is found in his first affidavit (at paragraph 30) as follows: I suffered injury as a result of Mr. Dhaliwal’s assault and battery, including a fractured shoulder.

A true copy of a diagnostic imaging report ...is attached.... [ 29 ] At this stage, the extent of Prothero’s injuries caused by Dhaliwal’s assault upon him has not been proven, except that Prothero suffered a fractured shoulder. [ 30 ] But at this stage the Plaintiffs are not seeking a determination of the amount of liability on the part of Dhaliwal.

They are only seeking a determination that he is liable. [ 31 ] With respect to what the Plaintiffs must prove for a determination of liability on the part of Dhaliwal, I note that in Brander v Alberta (Justice & Solicitor General), 2014 ABQB 211 Master Hanebury stated (at paragraph 51): An assault is an attempt at battery....

Battery occurs when a person intentionally causes a harmful or offensive contact with another person. [ 32 ] In my view, the Plaintiffs have proved the intentional torts of assault and battery on the part of Dhaliwal. [ 33 ] I turn to the Plaintiffs’ application to dismiss Dhaliwal’s counterclaim. [ 34 ] In his counterclaim Dhaliwal claims against Richmond Steel and Prothero for injury and damage suffered as a result of Prothero’s assault upon Dhaliwal and damage to the property of his company Hilltop, specifically a weigh scale, gate and lock, as well as damages for loss of use of the weigh scale.

Hilltop is not named as a Plaintiff by Counterclaim, only Dhaliwal. [ 35 ] Hilltop commenced a separate action against Richmond Steel and Prothero for its damage claim.

[ 36 ] I agree that Dhaliwal’s counterclaim for damages suffered by Hilltop should be summarily dismissed on the basis that Hilltop is not a party to this proceeding and it has its own claim in any event. Repeating Hilltop’s claim for damages in this action as a counterclaim by Dhaliwal is improper. [ 37 ] Has the criminal case made any determination with respect to Dhaliwal’s claim for damages for assault by Prothero? In my view it has. The Provincial Court Judge ruled that Dhaliwal was the aggressor and the defense of self defense was not available to him. In my view, this finding precludes a finding that Prothero assaulted Dhaliwal. [ 38 ] Should a partial

summary judgment be granted in this case? [ 39 ] In the case of DIRTT Environmental Solutions Ltd v Falkbuilt Ltd, 2021 ABQB 252 , after a thorough review of the law on the subject, Madam Justice Sidnell stated the following (at paragraphs 35 and 36): [35] Distilling the comments and concerns from the cases referred to above, in my view, I must answer the three main questions, set out below, in the affirmative to find that partial

summary judgment is an appropriate application to pursue in this case: (

a) Can the issue to be determined on a partial

summary judgment application be bifurcated from the remainder of the issues that will proceed to trial? The determination of whether the issue can be bifurcated should be considered with the answers to the following four exploratory questions in mind: (

i) Is the issue to be determined on the partial

summary judgment application intertwined with those proceeding to trial? (ii) Where there is more than one defendant, is the issue to be determined on the partial

summary judgment application inextricably linked to the claim against the other defendant(s)? (iii) Is the record available on the issue to be determined at the partial

summary judgment application as extensive as it would be at trial? (iv) Is there a danger of duplicative or inconsistent findings of fact or any res judicata on issues to be determined at trial? (

b) Will the partial

summary judgment application advance the action as a whole? To access (sic) whether there will be any advancement, the following two exploratory questions can be asked: (

i) Will the partial

summary judgment application achieve efficiencies in the litigation given that other issues will be proceeding to trial? (ii) Will the partial

summary judgment application deal with the issue expeditiously and not cause unreasonable delay to the main action? (

c) Will partial

summary judgment significantly advance access to justice, and be the most proportionate, timely and cost-effective approach? [36] If the partial

summary judgment application is appropriate based on affirmative answers to these three questions, then I can proceed as set out in Weir-Jones , if the record permits the necessary findings of fact and application of the law to determine the matter summarily. [ 40 ] In this case before me, the answer to all three questions is in the affirmative: the issues determined in the

summary judgment application can be bifurcated from the remaining issues; partial

summary judgment will advance the action as a whole; and partial

summary judgment will significantly advance access to justice and be the most proportionate, timely and cost-effective approach. [ 41 ] I next consider the principles enunciated in Weir-Jones and in particular the key considerations set out in paragraph 47 of that decision. In my view, having regard to the state of the record and the issues, it is possible to fairly resolve all of the issues, except extent of injury and quantum of damages suffered by Prothero. The Plaintiffs have met the burden upon them and Dhaliwal has not demonstrated that there is a genuine issue that must go to trial.

I am left with sufficient confidence in the state of the record such that I am prepared to exercise my judicial discretion to summarily resolve those issues. [ 42 ] The Plaintiffs’ application for a

summary determination of liability on the part of Dhaliwal is granted, with the issue of determination of damages to follow. The Plaintiffs’ application for

summary dismissal of Dhaliwal’s counterclaim is granted. [ 43 ] If the parties cannot agree on costs, an application may be brought before me in morning chambers. Heard on the 18 th day of November, 2021. Dated at the City of Grande Prairie, Alberta this 16 th day of December, 2021. B.W. Summers M.C.Q.B.A.

Appearances: Drew Pearson KMSC Law LLP for the Plaintiffs Deep Brar Brar Law for the Defendant