Alston v the Municipal District of Foothills No. 31, 2021 ABQB 155

Court of Queen’s Bench of Alberta Citation: Alston v the Municipal District of Foothills No. 31, 2021 ABQB 155 Date: 202102025 Docket: 1001-10269 Registry: Calgary Between: Ellen Alston, Leslie Vecsey and E.L. Alston & Associates Ltd Applicants - and - The Municipal District of Foothills No. 31 Respondents Corrected judgment: A corrigendum was issued on March 24, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Madam Justice M.H.

Hollins _______________________________________________________ [ 1 ] The Plaintiffs have sued the Defendant for approximately $8M in damages arising from alleged contamination of the groundwater on their property in De Winton, Alberta. The Statement of Claim and the Statement of Defence were both filed in July of 2010. I was assigned to this matter as the Case Management Justice in 2017. [ 2 ] The Plaintiffs allege that I have demonstrated a bias against them in various procedural steps taken to date. They have

applied to have me recuse myself as Case Management Justice. At the Plaintiffs’ request, this matter was conducted on written submissions only. The Defendant took no position. [ 3 ] Two of the Plaintiffs’ motions have already been assigned to other Justices for hearing, the circumstances of which are reviewed herein. However, I cannot recuse myself as Case Management Justice in this matter generally, for the reasons set out below. General Background [ 4 ] At the initial Case Management conference on October 4, 2017, the parties were canvassed as to their readiness for trial.

The Plaintiffs had filed a motion to set trial dates, but there were a number of outstanding issues and anticipated motions which made it unrealistic to look at trial dates at that stage. [ 5 ] For example, Ms. Alston indicated that the Plaintiffs wanted to bring a motion for an order holding the Defendant in contempt of a May 7, 2015 Order of Master Robertson which had directed the Defendant’s testing of the subject water well. As discussed later herein, I attempted to dissuade the Plaintiffs from pursuing that motion, which will now be heard by another Justice. [ 6 ] Counsel for the Defendant, Mr.

Pick, had also applied for a Restraining Order to preclude Ms. Alston from continuing to contact Mr. Pick’s client and his law firm partners to complain about his handling of the Defendant’s case. His motion was deferred in hopes that my caution to Ms. Alston would suffice. [ 7 ] There was some discussion about steps remaining to trial, including the Defendant’s expert reports and some outstanding undertakings, but there were no motions before the court on those items. It was anticipated that we would have subsequent Case Management conferences to deal with the scheduling of further pre-trial items. [ 8 ] Ms.

Alston took exception to that initial Case Management conference, particularly to the direction that she stop contacting Mr. Pick’s client and partners. She would not commit to dates for the next Case Management conference. Eventually, it was scheduled for April 3, 2018 on notice to Ms. Alston, but without her agreement to attend. Nothing of substance was dealt with at that conference. I provided a transcript of the proceedings to Ms. Alston for the Plaintiffs’ benefit and attempted to reschedule another Case Management conference to move matters forward; Exhibit 17 to Ms. Alston’s Affidavit. [ 9 ] Ms.

Alston wrote a lengthy letter on May 1, 2018 but did not indicate her availability for the next Case Management conference; Exhibit 20 to the Alston Affidavit. She wrote again on May 9, 2018 regarding the alleged pollution and health impacts but again, did not indicate which of the offered dates would work for her; Exhibit 21 to the Alston Affidavit. [ 10 ] After this, the file was dormant for some time. On May 15, 2020, Ms. Alston wrote to advise that the Plaintiffs were pursuing their contempt motion and a

summary judgment motion as well; Exhibit 23 to the Alston Affidavit. At her request, I agreed that a different Justice should hear the Plaintiffs’ contempt motion as I had expressed my misgivings about that motion at our initial Case Management conference. This is discussed further herein. [ 11 ] As to the

summary judgment motion, there was admittedly some confusion around this motion. I first attempted to

schedule it to hear myself. With COVID-related delays in the spring and summer of 2020, the Associate Chief Justice was required to sign off on the scheduling of any non-emergent motions. Not wanting to be the cause of any delay in the hearing of the

summary judgment motion, we agreed that another Justice could hear the

summary judgment motion in the summer of 2020 if available earlier than my

schedule allowed. [ 12 ] That did not happen over the summer so I then advised the parties that I would hear the

summary judgment motion in the fall of 2020. However, Ms. Alston pointed out, quite correctly, that Rule 4.15 precluded me from doing so without the agreement of the parties. As she wished someone else to hear the motion, Associate Chief Justice Rooke confirmed on September 14, 2020 that another Justice would do so; Exhibit 34 to the Alston Affidavit. This is also addressed further below. [ 13 ] Although Ms. Alston would never commit to further Case Management dates, the Defendant had its own motion for dismissal for delay that it wished to pursue.

We therefore scheduled another Case Management conference for December 11, 2020, again on notice to Ms. Alston. In her absence, I dealt with the deadlines for this recusal motion and deadlines for the Defendant’s dismissal for delay motion. I also issued an Order precluding Ms. Alston from contacting Mr. Pick’s client or his Managing Partner (the December 11, 2020 Order). [ 14 ] The Plaintiffs maintain that I have demonstrated bias against them in my handling of the following: (

a) The contempt motion; (

b) The

summary judgment motion; (

c) The December 11, 2020 Order; (

d) The failure to advance another motion of the Plaintiffs, filed July 20, 2020, for an Order that no further applications could be brought until the Plaintiffs’ existing motions were heard; and (

e) Other miscellaneous procedural complaints. The Law on Recusal

[ 15 ] Judges are required to judge matters in an impartial way, meaning without an interest in the outcome and being open to persuasion; Broda v Broda , 2000 ABQB 948 at para18. This is fundamental to the public confidence in the administration of justice.

If there is a reasonable apprehension that a judge is biased for or against any party appearing before her and proceeds anyway, that public confidence will be damaged. [ 16 ] The test for a reasonable apprehension of bias is what a reasonable, informed person would think, specifically ...what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude.

Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly; Yukon Francophone School Board, Education Area No. 23 v Yukon Territory (Attorney General) , 2015 SCC 25 at paras.20-21. [ 17 ] This hypothetical reasonable person is taken to understand court processes, as well as knowing of the judge’s sworn duty to be impartial, and cannot be a person with a suspicious mind or overly-sensitive mindset; R v A(JL) , 2009 ABCA 344 at paras18 and 21. [ 18 ] The onus is on the Plaintiffs to prove a reasonable apprehension of bias on a balance of probabilities, but they face a strong presumption of impartiality; Roberts v R , 2003 SCC 45 at para.76.

The presumption of impartiality is not easily displaced; there must be a real likelihood or probability of bias and the inquiry will necessarily be very fact-specific; Yukon Francophone School Board, supra at paras 25-26. [ 19 ] I will now consider whether the Plaintiffs can establish a reasonable apprehension of bias based on the record of the items they have raised. Contempt Application [ 20 ] As mentioned, the Plaintiffs told me at the outset that they wished to bring a contempt motion against the Defendants relating to the testing of the well by or on behalf of the Defendants’ expert witnesses.

The Plaintiffs have said that the Defendant’s expert witness’ testing methods and/or results did not comply with Master Robertson’s 2015 Order. As I understand it, they allege that a third party deliberately sabotaged the test results by adding a foreign substance to the well. [ 21 ] The transcript of the October 4, 2017 proceedings show that I attempted to dissuade Ms. Alston from pursuing this motion. Instead, I suggested that any evidence of improper testing could be introduced at trial to object to the admission of the Defendant’s expert evidence or to reduce the weight given to it by the trial judge.

Conducting a separate contempt motion threatened to divert significant time and expense from the Plaintiffs’ pursuit of their underlying main claim for contamination. [ 22 ] Of course, it was and remains the Plaintiffs’ choice to pursue a finding of contempt if they wish.

There were other difficulties I thought the Plaintiffs might face on a contempt motion, but I will not comment further because the motion is still pending. [ 23 ] In Point on the Bow Development Ltd v William Kelly & Sons Plumbing , 2005 ABQB 368 , Justice Lutz recused himself after making a finding of contempt and then having the matter returned by the Court of Appeal for a rehearing.

While I had not made any findings on the Plaintiffs’ contempt motion, I did express some doubts about its likely success and, therefore, notified the Plaintiffs on April 25, 2018 that I would recuse myself from hearing it. [ 24 ] After I referred the contempt motion to another Justice, the parties ended up in a dispute over the scope of the motion. Justice Phillips, by Order of September 2, 2020, defined the issues for the contempt motion. That Order of Phillips, J was appealed and I am unaware of the status of that appeal. [ 25 ] I agree with Ms.

Alston that I have made statements about this contempt motion that would indicate a pre-disposition to dismiss this motion; Phillip Bryden, Legal Principles Governing the Disqualification of Judges , Canadian Bar Review, December 2003, Vol 82 at pp 586-589. While the intent was simply to help get the Plaintiffs’ substantive claims to trial more quickly so those claims could be fairly adjudicated, there was a reasonable apprehension of bias on my part on this particular motion.

Summary Judgment Motion [ 26 ] Regretfully, I created much of the confusion around who would hear this motion by initially overlooking Rule 4.15. Further confusion came from the COVID-era rules around booking non-emergent civil applications. However, the

summary judgment motion was filed in May, 2020 and by mid-September, it was confirmed to the Plaintiffs that this motion would also be heard by another Justice, by operation of Rule 4.15. [ 27 ] The motion defaulted to Masters Chambers, as all

summary judgment motions do. When Ms. Alston objected to that, I opted to treat that objection as a request to direct the

summary judgment motion to be heard in Justice Chambers, which request I granted. [ 28 ] Accordingly, the Plaintiffs’

Summary Judgment motion will be heard in Justice Chambers by another judge of this Court. I have no further information at this time about what the Plaintiffs have done to move this matter forward since advised to do so. The December 11, 2020 Case Management Meeting and Order [ 29 ] As Case Management Justice, I have obligations to both the Plaintiffs and the Defendant to assist in moving this matter to resolution, whether by settlement or adjudication. The Defendant notified the Plaintiffs and the Court some time ago that it wished to bring a motion to dismiss the Plaintiffs’ claims for delay. Scheduling the Defendant’s motion has been complicated by the fact that Ms.

Alston will not respond to requests to

schedule dates for Case Management. [ 30 ] If the Plaintiffs do not wish to proceed toward trial, no one will force them to do so. However, that cannot fairly deprive the opposing party of pursuing interim relief if it chooses to do so. Accordingly, Ms. Alston was advised that we would be having a Case Management conference on December 11, 2020 for the purpose of scheduling the Defendant’s anticipated motion to dismiss the action for delay and the Plaintiffs’ motion for recusal, as well as to deal with Mr. Pick’s renewed concerns about Ms.

Alston’s communications with his law partners and his client; Exhibit 39 to the Alston Affidavit. [ 31 ] Ms. Alston did not attend this December 11, 2020 conference. Mr. Pick advised the Court that Ms. Alston was still contacting his client and his managing partner to complain about his handling of this file. This is not appropriate. Any client who retains counsel is entitled to defer all communications regarding the matter to his or her counsel. Even self-represented litigants are not entitled to bypass opposing counsel to complain to the client directly. [ 32 ] When I warned Ms.

Alston in October of 2017 that this conduct would not be condoned, she indicated that she understood and that no formal Court Order would be necessary. More recently, she has argued that she has a statutory obligation to report environmental contamination. Whatever that obligation may be, the Defendant and Mr. Pick’s Managing Partner are well aware of all the allegations in this Action and there is no reason to contact them further. Accordingly, I issued an Order precluding her from doing this. [ 33 ] As was done in April of 2018, a transcript was provided to Ms.

Alston by the Court after the fact in an attempt to provide some safeguards to the Plaintiffs, including confirming their ability to apply to vary or appeal that Order, neither of which was done to my knowledge. An Order made on proper grounds with notice to the Plaintiffs of the subject matter, combined with a right to come back to vary that Order on further evidence, cannot reasonably give rise to an inference of bias. The Injunction Motion [ 34 ] Ms.

Alston complains about the handling of her motion filed July 20, 2020 which apparently seeks an order prohibiting the bringing of any further motions until her contempt and

summary judgment motions are heard. An injunction preventing any party from bringing further applications is a somewhat extreme step to take, particularly when it is not clear what has precipitated this request by the Plaintiffs. [ 35 ] If there is a reason that the Defendant’s motion to dismiss for delay should be held in abeyance pending the hearing of other motions, that was not explained in the material filed.

A Case Management conference attended by both parties would be the optimal forum in which to explore exactly what relief is sought in this Injunction Motion and whether the Plaintiffs’ concerns are best addressed in that way or some other way. [ 36 ] For example, if the Injunction Motion is brought because the Plaintiffs are finding it difficult to prepare for and argue a number of different motions, that might be more effectively addressed by setting deadlines for various steps in the lawsuit that everyone can manage.

Miscellaneous [ 37 ] Lastly, there is a category of generalized complaints from the Plaintiffs, which I will briefly address as follows: (

a) The Plaintiffs complain that I have given the Defendant everything it has asked for, essentially complaining that I am biased in favour of the Defendant. As an example of this, Ms. Alston takes exception to my scheduling the Defendant’s motion to dismiss for delay before that motion was filed. It is not uncommon for a Case Management Justice to set a hearing date for an unfiled motion and then also give directions for the filing of the Notice of Application, along with other materials, as was done here.

Further, her complaint that she was not asked to approve the form of Order under Rule 9 of the Rules of Court misapprehends that rule, which applies only to parties or counsel in attendance when the Order is granted and is only for the purpose of ensuring the Order accurately reflects the Court’s direction. (

b) The Plaintiffs complain that not every letter or email has been directed to Mr. Vescey, the co-Plaintiff, in addition to Ms. Alston. With one exception, Ms. Alston has been the sole spokesperson for the Plaintiffs in every court appearance and every communication with the Court. Notwithstanding this, efforts have been and are being made to ensure that correspondence is send separately to both co- Plaintiffs. (

c) The Plaintiffs complain that I do not respond to every letter from Ms. Alston and when I do, I do not always respond to every issue raised. That is true. In my view, that is simply not an optimal way of dealing with Case Management issues. I am trying to help the parties identify issues which must be dealt with in order to secure trial dates. Unless their letters and emails raise those issues, a letter- writing marathon is not helpful to the process or to the parties. (

d) The Plaintiffs complain that I have not agreed with their demand that all hearings be conducted in writing and not with oral submissions. A party cannot simply demand that all proceedings be conducted in writing. The parties and the court may agree to that procedure for issues appropriately dealt with in writing. Here, particularly because the Defendant took no position on the recusal motion, I agreed to conduct this motion based on written submissions. However, how future matters will be dealt with remains to be seen.

While I might be slow to insist on virtual or in-person submission by the Plaintiffs, that would not necessarily translate to depriving the opposing party of their right of audience if they wish to exercise it.

Conclusion [ 38 ] It is not the role of the Case Management Justice to decide whether any plaintiff has a good claim or not. Much of Ms. Alston’s communications, the bulk of which are attached to her Affidavit for this motion, complain that neither I nor other justices of this Court have done anything to address the contamination of the water in De Winton. While I appreciate the frustration evident in these communications, the fact is that I have no authority to comment on the merits, or lack thereof, of the Plaintiffs’ substantive claims.

Certainly, we know that water contamination can happen and has happened in other places in ways that may give rise to legal liability. Whether that has happened here, I do not know and will not be deciding. [ 39 ] Notwithstanding this more limited role, case management judges must still be keenly aware of their obligations of impartiality; Broda v Broda , 2008 ABQB 948 at para.27. However, it stands to reason that dealing primarily with procedural issues, particularly where one or both parties are unrepresented by counsel, will often necessitate a more active role for a case management judge.

Philip Bryden, who has written quite extensively on recusal, acknowledges this in a recent article, Julia Hughes and Philip Bryden, Implications of Case Management and Active Adjudication for Judicial Disqualification , Alberta Law Review (2017) 54:4 at p 856: ...courts have generally agreed that judicial interventions designed to promote efficiency do not give rise to a reasonable apprehension of bias.

Similarly, it is appropriate for judges to seek to focus the inquiry, to uncover evidence that would crystallize issues, to clarify an unclear answer, to resolve a potential misunderstanding of the evidence, to safeguard the interests of third parties, and to correct inappropriate conduct by counsel or witnesses. [ 40 ] Would a reasonable, informed and realistic person conclude that I would not be able to decide the pre-trial matters in this Action fairly? I do not believe so. There a presumption of impartiality which is not overcome by the Plaintiffs’ evidence or arguments.

Indeed, it is somewhat difficult to understand how bias could be demonstrated when, prior to this decision, no formal applications have been argued or decided. [ 41 ] The contempt and

summary judgment motions have not even been scheduled for hearing. At least in part, this is because of the Plaintiffs’ refusal to participate in the case management process. Ms.

Alston has written to my office and to the Associate Chief Justices to repeatedly indicate that she will not participate in Case Management as long as I am the assigned Justice. [ 42 ] The fact that so little progress towards trial has been made under my case management has caused me to carefully consider the possibility that, notwithstanding a lack of any bias towards or against either party, I might simply be too ineffective to continue as the appointed Case Management Justice on this particular matter.

There are several answers to that inquiry. [ 43 ] First, I was assigned to this file by the delegate of the Associate Chief Justice responsible for those assignments. I cannot simply say I am no longer willing to do my job. [ 44 ] Secondly, a judge has a duty not to recuse herself unless the law requires recusal. While it might be tempting to simply abdicate my role as Case Management Justice, the jurisprudence clearly warns against this as potentially damaging to the administration of justice; Auer v Auer , 2018 ABQB 510 at para 43 (confirmed 2018 ABCA 409 ); Al-Ghamdi v Alberta , 2016 ABQB 424 at paras 66-67 .

Allowing parties to effectively veto their assigned Case Management Justices without a legal basis for recusal could result in a disproportionate caseload between judges. It could encourage “judge-shopping” by allowing parties to seek an adjudicator more to their liking. It would almost certainly mean additional delay. [ 45 ] As I have stated before, my role is to assist the parties in getting this matter resolved, whether by trial or settlement. The court processes involved are not easy to navigate, particularly for self-represented parties.

I am here to help explain the procedural requirements where necessary and to make decisions that move the parties toward that final resolution. [ 46 ] The Plaintiffs may have a good case for recovery of damages or they may not. Either way, if they wish to use the Court of Queen’s Bench to pursue that claim, they are going to need to participate meaningfully in the case management process. This includes providing responses to scheduling inquiries and attending meetings and hearings as scheduled.

While I genuinely hope that the Plaintiffs will avail themselves of the court’s assistance in moving towards trial, that will need to be their decision. [ 47 ] The Plaintiffs’ motion for recusal is dismissed. Submissions received on the 14 th and 20 th days of January, 2021. Dated at the City of Calgary, Alberta this 25 th day of February, 2021. M.H. Hollins J.C.Q.B.A. Appearances:

Ellen Alston for the Plaintiffs _______________________________________________________ Reasons for Decision of the Honourable Madam Justice M.H. Hollins _______________________________________________________ The following changes were made to the Endorsement: 1. The citation was amended to remove “et al”,