Canada Trust Co (McDiarmaid Estate) v Alberta (Infrastructure), 2021 ABQB 873

Court of Queen’s Bench of Alberta Citation: Canada Trust Co (McDiarmaid Estate) v Alberta (Infrastructure), 2021 ABQB 873 Date: 20211103 Docket: 0103 21107 Registry: Edmonton Between: The Canada Trust Company and Christopher Head, Executors of the Estate of Helen Jean McDiarmaid Plaintiffs - and - Her Majesty the Queen In Right of the Province of Alberta As Represented by the Minister of Infrastructure, Formerly the Minister of Public Works, Supply and Services, and the Minister of the Environment Defendants _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice A. Loparco _______________________________________________________

I. Introduction [ 1 ] The Plaintiffs ask me, as former Case Management Justice, to re-open and vary, or provide further direction, on my previous Orders in this case. [ 2 ] In an application returnable before me on August 27, 2021, the Plaintiffs seek the following relief: 1. An Order, pursuant to Rule 9.14 and my September 8, 2020 Case Management Endorsement, requiring the Defendants to provide a list identifying the records on the Leeds and Triple 5 files that have not been produced and the reasons why each document has not been produced; 2.

An Order, pursuant to Rule 9.13, re-opening and varying my February 10, 2021 Case Management Endorsement to allow the Court to hear evidence that was not available, or otherwise not before the Court at the hearing [in respect of an application for the disclosure of Settlement Agreements between the Defendant and third-party landowners Leeds and Triple 5 (Settlement Agreements)]. [ 3 ] The Grounds for the application were stated as: 1.

An Order requiring the Defendants to identify records that were not produced, and the reasons why they were not produced, does not require the original Order to be varied, and the further Order is needed to provide the Plaintiffs with a remedy to which they are entitled to in connection with the original Order; 2. An Order arising from the February 10, 2021 Case Management Endorsement has not been entered; 3.

There is evidence that is relevant and material to the February 10, 2021 Case Management Endorsement which was not before the Court on the date of the hearing, which the Plaintiffs submit would have affected the outcome of the Court’s decision; 4.

There is good reason for the Court to re-open the February 10, 2021 Case Management Endorsement, and for the Court to modify or change its judgment or reasons for it as a result of the evidence not before the Court at the time of the hearing. [ 4 ] Although not specifically stated in the Notice of Motion, the Plaintiffs also seek an order requiring the Questioning of Ron Link (an ex-employee of the Defendant), and of HMQ’s officer as a result of such Questioning being purportedly cancelled on June 9, 2021. II. Background [ 5 ] This action was commenced October 11, 2001, in respect of the sale of Ms.

McDiarmaid’s lands (McDiarmaid Lands) to the Defendant. [ 6 ] In the mid 1970’s the Government of Alberta (HMQ) caveated land around the perimeter of Edmonton for the purpose of a restricted development area (RDA) to build the Anthony Henday ring road. The RDA caveat was registered against the McDiarmaid Lands as well as lands immediately to the west (Leeds Lands) and immediately north across Stony Plain Road (Triple 5 Lands). [ 7 ] Ms. McDiarmaid, now deceased, sold the McDiarmaid Lands to HMQ in November of 1986. The Leeds Lands and the Triple 5 Lands were sold to HMQ pursuant to the provisions of

section 30 of the Expropriation Act (Section 30 Agreements). [ 8 ] The Plaintiffs claim that the market value of the McDiarmaid Lands increased between the registration of the caveat and 1981, and then decreased significantly, and that HMQ refused to remove the caveat or purchase the lands until 1986, when Ms. McDiarmaid was forced to negotiate the sale at a price below market value at that time and far below what the market value was in 1981, resulting in an unconscionable transaction. The Plaintiffs further claim that as a result of the unequal bargaining power between Ms.

McDiarmaid and HMQ, and HMQ’s knowledge of comparable appraisal values and sales, HMQ deliberately hid information from Ms. McDiarmaid, concluded sales at augmented prices with some landowners, and breached its own policies and procedures in imposing confidentiality agreements. As a result, it is argued that HMQ failed in its obligation to treat all landowners on an equal basis. [ 9 ] Under the

Section 30 Agreements, Leeds and Triple 5 were paid for their lands with the right to seek further compensation before the courts or the Land Compensation Board (LCB) who would determine the fair market value (FMV) of the lands. [ 10 ] The effective dates for the valuation of the Triple 5 Lands and the Leeds Lands, respectively, are October 1, 1986 and March 31, 1989. HMQ has conceded that the Leeds Lands and Triple 5 Lands are comparable to the McDiarmaid Lands. [ 11 ] The Leeds sisters filed a Statement of Claim under

Part 7 of the Expropriation Act . A settlement was reached shortly before trial. [ 12 ] Triple 5 filed an application in 1987 to determine compensation with the LCB, which rendered a decision in 1991. That decision was appealed to the Court of Appeal, which directed the issue back to the LCB for a new hearing. A settlement was reached prior to the hearing. [ 13 ] The Plaintiffs sought disclosure of Leeds and Triple 5 sale documentation, including any settlement agreements. My rulings on these issues are set out below. III. Case Management History

[ 14 ] On November 22, 2018, the Plaintiffs filed an application compelling production of certain documents within the control of HMQ. On August 29, 2019, I heard the Plaintiffs’ application seeking relief in relation to various production and evidentiary issues, including compelling the HMQ Defendant to answer undertakings and questions refused at Questioning, and to produce a further and better Affidavit of Records (Production Application).

The application was adjourned sine die to permit the parties to determine what matters required further evidence. [ 15 ] A 4.10 Case Conference took place on February 28, 2020, on the following issues: • Whether leave is required in order for the Plaintiffs to seek to vary the deadlines in the Consent Order granted by Nielsen ACJ dated December 6, 2017; • Whether leave is required in order for the Defendants to proceed with a

Summary Dismissal Application given that the Consent Order directed that all pre-trial applications be returnable by March 31, 2019, and the matter was set for 24 days of trial commencing April 5, 2021; and • Whether additional evidence and written argument will be permitted in relation to two new issues raised by the Plaintiffs subsequent to the Plaintiffs’ Production Application heard on August 29, 2019, and adjourned sine die . [ 16 ] I was appointed Case Management Justice. [ 17 ] In a Case Management Endorsement dated June 17, 2020, I held that the Plaintiffs did not require leave to apply to the Court to vary the deadlines in the Consent Order; the Defendants did not require leave to proceed with their

Summary Dismissal Application; and, further evidence and/or written and oral representations would be permitted in the continuation of the Production Application, which included issues 4a and 8a as set out in the

Schedule provided by the Plaintiffs. [ 18 ] The parties scheduled a full day case management special hearing for the purpose of dealing with the above three items.

I ordered the parties to set a litigation plan in advance to deal with the remaining steps in the litigation such that the five-week trial scheduled to commence in April 2021 could be preserved. [ 19 ] The continuation of the Plaintiffs’ Production Application was heard on August 7, 2020, via WebEx. [ 20 ] In a 19-page Case Management Endorsement dated September 8, 2020, I provided my rulings on the outstanding scope of production issues and undertaking responses.

Related to this Application, I concluded that the files relating to the sale of the Leeds and Triple 5 Lands were relevant and material in respect of the allegations pleaded, save for the Settlement Agreements, which were to be determined at a later date. [ 21 ] Pursuant to the September 8, 2020 Case Management Endorsement, I also directed that: (

a) the issues of confidentiality/settlement privilege related to the Settlement Agreements would be adjourned until after a determination on the threshold issue of whether the Settlement Agreements are material and relevant; and (

b) counsel was to propose a process for the resolution of both issues remaining with respect to the Settlement Agreements (confidentiality/settlement privilege and relevance/materiality). [ 22 ] On October 2, 2020, I issued a decision in relation to HMQ’s

Summary Dismissal Application on the limitations defence ( 2020 ABQB 580 ), which was partly overturned on appeal ( 2021 ABCA 53 ). [ 23 ] At a subsequent case conference on December 18, 2020, to deal with Form 39 and other trial readiness issues, the parties agreed to attend a half day Special Chambers application on January 25, 2021 (Settlement Application) with respect to the issue of whether the Settlement Agreements were relevant and material and if so, whether any rules of privilege or confidentiality apply.

It was further agreed between counsel that the Settlement Agreements would only be provided to the Court for the purposes of the Settlement Application on the understanding that HMQ was not waiving privilege. [ 24 ] On January 25, 2021, I heard the Settlement Application relating to the relevance, materiality and privilege/confidentiality issues, via WebEx. During the hearing, the Plaintiffs’ claimed that the documentation leading up to the Settlement Agreements was also relevant and ought to be produced.

I requested that Counsel for HMQ provide any records relating to the negotiation of the Settlement Agreements to the Court (Supporting Documentation). Plaintiffs’ Counsel did not raise an objection to the Court’s request nor did they object to the suggestion that the Court receive the Supporting Documentation under the same conditions it received the Settlement Agreements. [ 25 ] In my latest Case Management Endorsement, dated February 10, 2021, I ruled that the Settlement Agreements and Supporting Documentation were not relevant and material as they would not help resolve an issue in dispute.

As a result, I made no determination as to the related confidentiality or privilege issues raised. [ 26 ] The Plaintiffs sought a reappearance before the court, which occurred on March 10, 2021. They sought a list of any relevant documents to the Settlement Application that were not provided to the Court by HMQ and the basis upon which the documents were not provided, such as solicitor-client privilege.

HMQ agreed and, on March 11, 2021, provided the Plaintiffs with a list of the Settlement Documents provided to the Court. [ 27 ] Due to a number of difficulties in obtaining the extensive records I ordered be produced, HMQ was unable to provide the records pertaining to Triple 5 and Leeds until March 4, 2021, and April 26, 2021, respectively. The Plaintiffs submit that they have not been provided with an updated Affidavit of Records from HMQ nor a list of the documents from the Leeds and Triple 5 files that were not produced - to which they believe they are entitled - along with the basis for their nonproduction.

[ 28 ] On March 10, 2021, the Plaintiffs filed an appeal of my February 10, 2021 Case Management Endorsement. That appeal has not yet been heard. Counsel advised they would seek an extension of time to file their factums so that this decision could be incorporated into the appeal proceedings. IV. Analysis

A) Should the Defendant identify records not produced and the reasons for not producing them? [ 29 ] The Plaintiffs rely on Rule 9.14 of the Alberta Rules of Court , Alta Reg 124/2010 , for the request of a further Affidavit of Records listing non-producible records and the basis for non-production. [ 30 ] Rule 9.14 states: 9.14 On application, the Court may, after a judgment or order has been entered, make any further or other order that is required, if (

a) doing so does not require the original judgment or order to be varied, and (

b) the further or other order is needed to provide a remedy to which a party is entitled in connection with the judgment or order. [ 31 ] The Rule is used to give “effect to the judge’s original intention”: Yassa v Parker , 2018 ABQB 305 at para 31 . [ 32 ] The Plaintiffs acknowledge, at para 70 of their Brief, that what they are seeking is normally not producible.

However, they argue that an exception should be made since my assessment of the Supporting Documentation was based on non-producible documents, which were selected unilaterally by the Defendant. [ 33 ] The Plaintiffs argue that this situation is unique since HMQ has not only been the sole arbitrator of what supporting documents would be provided to the Court, but also, its refusal to disclose what other documents are claimed to be non-producible has prevented the Plaintiffs from addressing the question of whether other supporting documents should also have been provided to the Court.

They submit that it is inconceivable that the correspondence between counsel did not include a discussion of how the settlement was reached. They further wish to have the opportunity to challenge HMQ’s triage of production records. [ 34 ] In correspondence between counsel, Plaintiffs’ Counsel identified a number of gaps in the numbering of production documents.

Defendant’s Counsel explained that the gaps in numbering in the documents produced related to documents that were duplicates, irrelevant, or privileged. [ 35 ] Duplicate documents do not need to be listed and identified pursuant to the Rules of Court; privileged documents are already required to be listed and an explanation for the reason they are privileged provided: Rule 5.8 and Canadian National Resources v ShawCor Ltd , 2014 ABCA 289 at para 92 . [ 36 ] As argued by the Defendants, Canadian National Resources v ShawCor is distinguishable as it deals specifically with the obligation vis-à-vis privileged records and not irrelevant records.

Moreover, my September 8, 2020 Case Management Endorsement did not require a deviation from the Rules of Court ; hence, any claims of privilege were to be listed in

Schedule 2 and no order to disclose irrelevant records was required. Plaintiffs’ request does not therefore further my original intention. [ 37 ] Plaintiffs Counsel’s rationale for requesting that all non-producible documents be listed with an explanation for their non- production (just as required for privileged records) is based on what appears to be a lack of trust in the Defendants’ ability to properly identify relevant records. [ 38 ] I conclude that the request by Plaintiffs’ Counsel lacks justification and is beyond the scope of the Rules of Court .

The identification of relevant records is a task left to counsel, and as officers of the court, they are to be trusted to carry out their duties in good faith. Moreover, to grant the order requested would create delay in this already protracted litigation and open the door to duplication of work.

B) Should Questioning of Ron Link and HMQ’s Officer be ordered? [ 39 ] I decline to order Questioning as requested by the Plaintiffs. In my review of the correspondence between counsel, preliminary discussions had taken place and dates were only suggested. No firm dates for Questioning were set nor an appointment served. The Rules of Court provide appropriate safeguards to ensure a witness’s attendance at Questioning and a remedy for non- attendance.

In addition, a litigation plan, as per my previous direction, should have been in place to govern deadlines. [ 40 ] As I conclude that counsel merely discussed possible dates, but did not confirm them, it is premature to seek a court remedy for attendance at Questioning.

C) Should the Court hear more evidence and change or modify its order or reasons for the order? [ 41 ] The Plaintiffs apply pursuant to Rule 9.13 to present more evidence to the court and to vary the February 2021 Case Management Endorsement in respect of the Settlement Application and decision.

[ 42 ] Rule 9.13 states: At any time before a judgment or order is entered, the Court may (

a) vary the judgment or order, or (

b) on application, and if the Court is satisfied there is good reason to do so, hear more evidence and change or modify its judgment or order or reasons for it. [ 43 ] In CWT v KAT , 2015 ABQB 68 ( CWT ), Read J outlined the Court’s power under Rule 9.13(b), at para 30: 1. The Court may act only on application by party; 2. The Court may “hear more evidence” and “change or modify its judgment or order or reasons for it”; and 3.

The Court must be satisfied that there is good reason to make such a “change” or “modification”. [ 44 ] The Plaintiffs submit that Rule 9.13 could be used to address a matter overlooked in a previous application, and that while it should be exercised cautiously, Rule 9.13 “does not require any particular procedure” to be invoked: Simpson v Rondeau , 2015 ABCA 283 at para 6 . [ 45 ] In this case, Rule 9.13(

b) may be relied upon for the application since no order was entered further to my February 2021 Case Management Endorsement. [ 46 ] And unlike noted by Brown J (as he then was) in Lewis Estates Communities Inc v Brownlee LLP , 2013 ABQB 731 at para 33 , my decision with respect to whether the order should be varied would be based on new evidence, and would not merely be permitting a "second kick at the can". [ 47 ] The first step will be to determine whether there is any new evidence. [ 48 ] The Court of Appeal in CZ v RB , 2019 ABCA 445 , held that the test to admit new evidence under Rule 9.13 should be used sparingly and requires consideration of the following, at para 27: 1.

Could the evidence have been obtained earlier if due diligence had been observed? 2. Is the evidence credible? 3. Would the evidence have been practically conclusive in producing the opposite result to that earlier pronounced? 4. Is the evidence in its present form admissible under the ordinary rules of evidence? [ 49 ] In Aubin v Petrone , 2020 ABQB 708 , Justice Khullar, as she then was, identified various factors that a court should consider when asked to exercise its discretion under Rule 9.13.

With respect to how a court decides whether “there is good reason to... hear more evidence and change or modify its judgment or order or reasons for it”, she stated the following objectives at para 7: • The desirability of avoiding unnecessary and costly appeals; • The desirability of the appeal court having a fully developed factual and legal record; • The need for finality and certainty in legal proceedings; • That errors to be corrected should be objectively demonstrable (such as an incorrect statement of law or

interpretation of a contract which all parties agree is incorrect); • The rule is not a vehicle for seeking reconsideration of a judgment call; and • The threshold for a court to exercise its discretion should be high to avoid applications which are in reality, a ‘second kick at the can’. [ 50 ] As acknowledged by Read J in CWT at para 26 (referencing Shelley J in Paniccia Estate v Toal , 2012 ABQB 11 , aff’d 2012 ABCA 397 ): In light of the explicit authority contained in Rule 9.13 and the purpose of the Rules of Court as contained in Rule 1.2, Shelley, J decided that a judge may investigate whether error exists in a judgment and, when and error is identified, consider whether the defect warrants correction.

She identified the benefits of such judicial intervention as including the avoidance of an otherwise unnecessary and costly appeal; and, where an appeal is nonetheless pursued, the benefit of the appeal court having a more fully developed trial consideration of the facts and law. [ 51 ] Secondly, I will turn to an assessment of the documents in question. 1. Triple 5 Documentation

a) Documents available at the Settlement Application

[ 52 ] Triple 5 filed an application with the Land Compensation Board on May 5, 1987 to determine compensation. During the course of the hearing, Triple 5 limited its claim to the determination of the value of the expropriated lands (LCB Decision). The panel had before it two Crown appraisals (Gettel and Duffin) and one Plaintiff appraisal (Shaske) which provided a range of between $2.7M to $7.2M for Triple 5’s 155.79-acre parcel of mixed-use land.

The LCB Decision, issued in July 1991, set the value of the land at $3.68M ($3M of which had already been paid in accordance with certain agreements between the parties). [ 53 ] Triple 5 appealed that decision to the Alberta Court of Appeal.

In R v Triple Five Corp Ltd , 1993 ABCA 366 the Court directed that the matter be returned to the LCB for a new hearing, which was adjourned as a settlement was subsequently reached. [ 54 ] During the earlier Settlement Application, the Plaintiffs argued that, during Triple 5’s hearing before the Land Compensation Board, it limited its claim to the determination of the value of the expropriated lands (LCB Decision) and there was no evidence, at either the LCB or the subsequent appeal, that Triple 5 extended its claim for compensation beyond the market value of the land plus interest.

The Plaintiffs argued that it logically follows that the settlement amount comprises a simple calculation: the amount paid for the market value of the land in 1986 less any amounts already paid by HMQ to Triple 5 for the land plus interest on that net amount. [ 55 ] I rejected this argument in my February 2021 Case Management Endorsement. The general complexity of settlement strategy belies such a straightforward calculation.

As such, I found the evidence insufficient to overcome the presumption that settlement agreements are not relevant as they may be the result of a negotiation that incorporates a multitude of unknown factors, including additional heads of damages, or a premium for litigation risk. [ 56 ] Further to that, my private review of the Supporting Documentation did not lead me to conclude that a trial judge would be able to draw a logical inference from the materials such that the land value could be extracted from the global settlement paid.

As I noted in my February 2021 Case Management Endorsement, the documents do not provide the usual breakdown of the heads of damages. The reason is quite obvious. I could not determine whether the final settlement included a value for the risk of ongoing litigation. This could be dependent on a number of undisclosed factors, including litigation fatigue, expense, witness availability, reputational damage, and credibility, among other things.

Moreover, in the case of Triple 5, the range of land values proffered by the appraisers before the LCB was wide - from $2.7M to $7.2M – rendering the assessment of the land value within the global settlement difficult. [ 57 ] Given the Court of Appeal’s stern comments, it can be assumed that the litigation risk to HMQ was significant, but it is anyone’s guess as to how much risk it could tolerate and in turn, what the Plaintiffs’ acceptable settlement range was. The value placed on that risk simply could not be accounted for.

b) Documents produced after the Settlement Application [ 58 ] The Plaintiffs seek consideration of the following documents in a re-assessment of the issue in the Settlement Application.

i) May 11, 1989 Written Agreement [ 59 ] On May 11, 1989, HMQ and Triple 5 entered into a written agreement, which incorporated the March 31,1989 agreement between HMQ and Triple 5. In this agreement, Triple 5 received an additional $500,000 on top of the

Section 30 payment of $2,500,000 for the lands in question. [ 60 ] The agreement included the following clause: [3.3] The payment of the Purchase Price, the transfer of the Exchange Lands and the grant of the Easement on and over the Right-of- Way Lands by the Minister is in full and complete settlement of any and all claims, causes of action and damages of Triple Five or any person claiming in, under or through it relating to or arising from the designation of the Lands as part of the Edmonton R.D.A. and the Calgary R.D.A. and the acquisition of the Lands from Triple Five by the Minister. [ 61 ] The Plaintiffs state that this demonstrates that Triple 5 limited its claim of compensation to the market value of the land.

HMQ states that this adds nothing to the evidence; the Plaintiffs previously argued that the LCB Decision confirmed that Triple 5 was limiting its claim to a determination of the value of the lands. [ 62 ] The existence of these agreements is not new, and was referenced in the LCB Decision. This Agreement adds little to the analysis.

Compensation for land value may be the only head of damage at play, but this does not lead to the inexorable conclusion that the settlement amount was based on land value alone. ii) Colliers Macaulay Appraisal [ 63 ] HMQ produced an appraisal that commented on whether there was a basis for any claims by Triple 5 over and above the land value. The Colliers Macaulay appraisal dated December 1989 concludes that Triple 5 had no claim for injurious affection or special economic advantage.

Disturbance damages would be limited to the costs of architects and surveyors’ fees. [ 64 ] HMQ argues that this evidence was before the Court and was the foundation of the Plaintiffs’ argument in the Settlement Application.

In particular, it states that it was evident in the LCB Decision that various appraisals from both sides were considered and that any one appraisal would not be determinative of the ultimate settlement amount with Triple 5. [ 65 ] As is evident in the Court of Appeal decision, the LCB was tasked with reconciling the different appraisals and comparable sales in the area with other market factors and constraints at play in order to determine a FMV. The Court of Appeal did not set a new value.

[ 66 ] Nevertheless, I find this appraisal is new evidence that was prepared to assist HMQ in assessing the value of the land prior to settlement.

It adds some weight to the Plaintiffs’ earlier argument at the Settlement Application. iii) Solicitor-Client Costs [ 67 ] According to the further production, it is now disclosed to the Plaintiffs that Triple 5’s solicitor client costs were paid separately by HMQ. [ 68 ] Thus, the Plaintiffs argue, the amount in the Settlement Agreement would only represent land value, interest and costs as identified in the agreement. [ 69 ] The Plaintiffs argue, therefore, that the settlement amount is easily determined by subtraction: the additional amount paid by HMQ for the land plus interest from October 1, 1986 at the prime rate of interest, over and above the amount previously paid, and any costs designated as such in the agreements. [ 70 ] HMQ argues that the exercise is not as simple as deducting costs and interest.

For the reasons stated above and in my February 2021 Case Management Endorsement, I concur. While this may be new evidence, it adds little to my assessment. 2. Leeds Documentation [ 71 ] The Leeds sisters filed a Statement of Claim under

Part 2 of the Expropriation Act . It appears that the settlement was reached in or around May 1990 and a Discontinuance of Action was filed on May 28,1990. [ 72 ] HMQ provided me with Supporting Documentation in relation to the Leeds Lands (in addition to the actual Settlement Agreement), which related to privileged communication on the settlement between counsel.

a) Documents produced after Settlement Application [ 73 ] On or about April 26, 2021, HMQ produced a number of documents that the Plaintiffs now claim are relevant to my February 2021 Case Management Endorsement

i) Appraisals of the Leeds Lands [ 74 ] The Leeds Lands comprised 16.32 acres. On April 28, 1988, the Leeds sisters were paid $816,000 representing $50,000 per acre. [ 75 ] The Plaintiffs state that appraisals of the Leeds Lands produced after the February 10, 2021 Case Management Endorsement set the market value of the lands at $75,000/acre to $100,000/acre. In addition, Colliers Macauley concluded there was no claim for disturbance damages, special economic advantage or injurious affection.

Further, there were no other expert reports produced supporting such claims. [ 76 ] HMQ argues that the Plaintiffs do not make any submissions as to how these appraisals relate to the Rule 9.13 application other than to indicate that the appraisal obtained by HMQ did not support additional claims. [ 77 ] In their Statement of Claim, the Leeds sisters alleged a de facto expropriation of the Lands in 1975 and claimed, inter alia , compensation pursuant to

Part 2 of the Expropriation Act , to include both the market value of the lands and an allowance on account of the acquisition being compulsory, in the sum of $10,000,000. [ 78 ] As pointed out by HMQ, the claims being advanced over and above the value of the land by way of

section 44 damages, and a claim for de facto expropriation in 1975, were the subject of an appeal hearing where they were found to raise triable questions of law that were to be decided at trial as opposed to by way of an application to strike the pleadings. [ 79 ] In fact, this matter had a complex history, involving 23 days of examinations for discovery, various interlocutory applications, and an expected lengthy trial. A request for a trial adjournment was denied.

After a ruling on the exclusion of certain records, and prior to the trial commencing, the parties settled. [ 80 ] HMQ argues that there is no evidentiary basis for the Court to conclude that the settlement amount with respect to Leeds related only to the value of the Leeds Lands, interest and costs. [ 81 ] I find that these appraisals are new and lend some support for the Plaintiffs’ argument that the trial judge may be able to infer a land value within the Settlement Agreement.

My determination on the second question is dealt with below. ii) Solicitor-Client Costs [ 82 ] The solicitor client costs of counsel for the Leeds sisters were paid by HMQ (documents 5389, 5405).

Thus, the Plaintiffs’ submit, the settlement amount would be comprised of the market value of the land as of April 8, 1988, less the $816,000 paid on April 28, 1988 plus interest from April 8, 1988 to May 1990 and any costs as identified in the settlement. [ 83 ] For the same reasons as set out above, in relation to the solicitor-client costs and the Triple 5 Lands, I do not agree that the settlement amount can necessarily be broken down as the Plaintiffs suggest.

iii) Hansard Excerpts [ 84 ] The Plaintiffs also rely on certain Hansard excerpts. I note these were available prior to my February 2021 Case Management Endorsement and therefore not new evidence. [ 85 ] On June 5, 1990, the issue of the Leeds Settlement came up in the legislature and a demand for the release of documents relating to the negotiation decisions and rationale was made. The Honorable Minister of Public Works, Supply and Service advised that there were a number of ongoing dealings that the province would still need to have with the landowners in the RDAs in both Edmonton and Calgary.

Consequently, he advised that the information was being kept confidential for the time being, but that it would be ultimately made part of the public record when they would no longer affect ongoing negotiations. [ 86 ] The Plaintiffs argue that despite the assurance that such documents would be released, the government has kept them hidden. [ 87 ] HMQ argues, and I agree, that the existence of records identified in the debate is irrelevant, and moreover, the Hansards would have been available at the Settlement Application. 3.

Analysis – Does the new evidence result in a variation of a previous order? [ 88 ] As set out above, Rule 9.13(

b) provides that at any time before an order is entered, the Court may, on application, and if the Court is satisfied there is good reason to do so, hear more evidence and change or modify its judgment or order or reasons for it. [ 89 ] I find that the new evidence permits me to re-visit my ruling according to Rule 9.13. [ 90 ] Applying the test for admission of new evidence on an application pursuant to Rule 9.13, I conclude that the majority of the new evidence could not have been obtained earlier.

As noted above, as a result of the extensive amount of production ordered, pertinent documents were not produced until well after the Settlement Application.

Such evidence is credible and would be admissible under the ordinary rules of evidence. [ 91 ] My reconsideration of the legal issue in the Settlement Application is appropriate in order to meet the goals enunciated by Khullar J: to avoid unnecessary and costly appeals, to ensure the appeal court has a fully developed factual and legal record, and to promote finality and certainty in legal proceedings. [ 92 ] Lastly, and importantly, is the following question: whether the evidence would have been conclusive in producing another result in the Settlement Application.

This requires an in-depth analysis of what is being proffered and consideration of whether it will assist the trier of fact in determining the value of the lands within the Settlement Agreement. [ 93 ] This Court has concluded that settlement agreements may be produced if they are relevant and material: Cheyne v Alberta , 2003 ABQB 244 at para 49 and Western Canadian Place Ltd v Con-Force Products Ltd , 1998 ABQB 1051 at paras 19 and 20 . [ 94 ] In my September 2020 Case Management decision, I concluded that the relevant and material documents contained in files relating to the sale of the Leeds and Triple 5 Lands were producible in respect of the allegations pleaded with the exception of the Settlement Agreements, the status of which had to be determined at a later date. [ 95 ] In my February, 2021 ruling on the Settlement Agreements, I held that: In this case, the materials sought will only be helpful if the value of the lands sold can be isolated from the other claims in order to resolve the narrowly defined issues; otherwise, it is a mere fishing expedition that risks creating unnecessary confusion and complexity at trial.

I have reviewed the materials and advise that: - The Settlement Agreements do not break down the payment per head of damage, except for costs; - The Settlement Agreements do not provide any indication of the value of the lands separate and apart from a global amount of compensation paid; and - The supporting materials leading up to the Settlement Agreements provide no useful information as to the breakdown of the heads of damage or the value per acre for the land (other than a reference to the costs and interest).

The operating factor in my assessment above was on evidence of preferential treatment in comparable sales. Comparing an amount paid further to a settlement agreement to an amount paid in a sale agreement cannot logically be made in this case as there is no evidence of any relevant or common data point in the materials I have reviewed. A proper comparator cannot be extracted or deduced from the materials either. The materials are rather brief and do not reveal the usual details expected in settlement negotiations that would help justify the ultimate amount paid.

Had the materials referenced a land value or a breakdown of the heads of damage, the threshold question of this analysis would likely have been met. I therefore conclude that the Settlement Agreements and supporting documentation offer no assistance in helping resolve an issue in dispute. The disclosure of such information would only lead to speculation since the values paid for the Leeds and Triple 5 Lands are not ultimately ascertainable. [ 96 ] As argued by the Defendants, the presumption, as stated by Veit J, is: “The very nature of settlement agreements precludes

them from being material for any purpose other than avoiding double recovery. Parties reach settlements for any number of reasons, many of which can be unconnected from legal bases”: M(

A) v Matthews , 2011 ABQB 187 at para 15 . [ 97 ] Further guidance can be gleaned from 689799 Alberta Ltd v City of Edmonton , 2017 ABLCB 9 at pp 12 - 15, aff’d 2018 ABCA 212 ; leave to appeal refused 2018 CarswellAlta 2654 (SCC) ( 689799 Alberta Ltd) . [ 98 ] In 689799 Alberta Ltd , the City had expropriated 689799 Alberta Ltd.’s leasehold interest at the Edmonton City Centre Airport. The Plaintiffs sought disclosure of settlements the City had reached with other leaseholders at the same location. The City opposed, as in this case, on the basis that comparable settlements do not equate to comparable sales.

The LCB held that the settlements were producible. [ 99 ] In my February 2021 Case Management Endorsement, I considered whether 689799 Alberta Ltd provided an exception in expropriation cases to the general principle that settlement agreements are prima facie irrelevant. I concluded that in certain cases, and if the materials permitted a trial judge to isolate a land value, settlement agreements could be relevant and producible. [ 100 ] At the time of issuing my February 2021 Case Management Endorsement, I did not have sufficient evidence that would allow the threshold question of relevance to be met.

The lack of information on the potential breakdown of the settlement amount, which for the reasons stated above, did not provide me with the assurance that the global settlement amount would have only been based on land valuation, or that it could be easily extracted. [ 101 ] The question now is whether the new evidence before the Court allows the threshold question of relevance to now be met? [ 102 ] The Plaintiffs argue that an assessment of whether the Settlement Agreements are relevant requires a broader examination, including: a.

All documents touching upon the issue which were provided to the Plaintiffs prior to the Application; b. All documents touching upon the issue which were in the possession of HMQ but were only provided to the Plaintiffs after the decision was rendered; c. All documents touching upon the issue which HMQ asserts are not producible; and d.

Any evidence from questionings. [ 103 ] The Plaintiffs rely on the recent case of Dobrovolsky v Dobrovolsky , 2021 ABQB 62 at paras 36 – 60 for the proposition that a settlement agreement is relevant and that it is up to the trial judge to parse out the different heads of damage. [ 104 ] While the case of Triple 5 is closer to the situation in 689799 Alberta, given that only compensation for land value was being sought, the range of potential values was so wide and other factors related to strategy were unknown such that it could not be determined from my review of the documents. [ 105 ] In the case of Leeds, multiple claims continued to be pursued at the time of settlement, which was achieved ‘on the courthouse steps’ after complex proceedings and on the eve of a lengthy trial.

In both cases, without more evidence, I am not convinced that the documents are relevant and material as they do not assist in resolving an issue in the pleadings. [ 106 ] While I accept the general proposition – that a trial judge may infer the relevant heads of damages available in a settlement – such a task is not as logical as in a standard tort claim. In Dobrovolsky , the entire settlement amount save for non-pecuniary damages (including anything paid for litigation risk) was to be considered matrimonial property and divisible.

The non-pecuniary damages were therefore relatively easy to isolate from the other heads of damages. [ 107 ] Here, the other factors that go into the assessment of litigation risk are not relevant to land value. Moreover, they are difficult to ascertain, making the task of inferring the land value impossible. Based on the appraisals obtained for both the Triple 5 and Leeds matters, the range is not so narrow such that the value is extractable. [ 108 ] Therefore, while interest and costs may be determined, the actual land value cannot be easily chipped out of the remaining settlement amount.

In other words, although what was paid is obviously for the land, it may not reflect the land value as it would have been adjusted to account for a number of other factors, as discussed above, and cannot be logically inferred by a trial judge. [ 109 ] The Plaintiffs finally argue that unlike tort claims, there would be no liability discount in the Leeds or Triple 5 settlements as the landowner is entitled to the market value of the land. I disagree.

For the reasons previously stated, while the fresh evidence adduced provides a clearer picture of the heads of damages considered in the settlement, it does not preclude other factors coming into play. [ 110 ] Finally, no authority was presented to me that would suggest HMQ, as a party to litigation, could not pay a premium to Triple 5 or Leeds to account for litigation risk in light of the competing and broad range of appraisal values.

Pleading that HMQ violated its own policy by keeping such settlements confidential does not automatically make them producible. [ 111 ] In conclusion, the new evidence, considered globally with the existing evidence, does not reveal a manifest error nor move the needle over the threshold so as to render the materials relevant and material. I therefore do not need to address the privilege issue. V. Disposition [ 112 ] In respect of the relief requested by the Plaintiffs, I conclude:

1) HMQ shall not be ordered to produce an Affidavit of Records listing all non-producible records and the reason for such classification; 2) This Court shall not order the questioning of Ron Link or an officer of HMQ and leaves the scheduling to counsel; 4) The February 2021 Case Management Endorsement shall not be varied to require the production of the Leeds and Triple 5 Settlement Agreements and Supporting Records; 5) Given that the trial has been adjourned partly because the Plaintiffs received the production documents much later than expected, and given that questioning was not concluded and could provide additional support for its position in this application, I find that the most prudent and efficient course of action would be to grant leave to the Plaintiffs to revisit the Settlement Application before me as Case Management Justice if evidence becomes available that could change the outcome of my decision. [ 113 ] Costs in this matter shall be in the cause.

Heard on the 27 th day of August, 2021. Dated at the City of Edmonton, Alberta this 2 nd day of November, 2021. A. Loparco J.C.Q.B.A. Appearances: Joe Miller Weir Bowen LLP for the Plaintiffs Vivian Stevenson, Q.C. Duncan Craig LLP for the Defendants