Tri City Canada v Canada (Public Works), 2022 ABKB 735

Court of King’s Bench of Alberta Citation: Tri City Canada v Canada (Public Works), 2022 ABKB 735 Date: 20221104 Docket: 2101 01609 Registry: Calgary Between: Tri City Canada Inc. Plaintiff - and - His Majesty the King in Right of Canada represented by Public Works and Government Services Canada, the Attorney General for Canada and Intact Insurance Company Defendants _______________________________________________________ Reasons for Decision of Applications Judge J.T.

Prowse _______________________________________________________ [ 1 ] On October 12, 2022 I granted a scheduling order which contained the following provision: Barring exceptional circumstances, counsel for the Plaintiff and Third Party Defendants shall respond in a fulsome manner to

communications from the Defendants within one week. [ 2 ] These are my reasons for including that provision in the order. [ 3 ] The Rules of Court contain the following relevant provisions: - R 1.2

(1) The purpose of these rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way. - R 1.2(2) ... these rules are intended to be used ... (

d) to oblige the parties to communicate honestly, openly and in a timely way. - R 1.2(3) To achieve the purpose and intention of these rules the parties must, jointly and individually during an action ... (

a) identify or make an application to identify the real issues in dispute and facilitate the quickest means of resolving the claim and the lease expense. - R. 1.4

(1) To implement and advance the purpose and intention of these rules described in rule 1.2 the Court may ... make any order with respect to practice or procedure, or both, in an action, application or proceeding before the Court. Background [ 4 ] On July 26, 2022 I ordered that an initial round of questioning take place on Oct 20, 21 and Oct 24 – 28, 2022. These dates were set notwithstanding the plaintiff’s request that they be scheduled for a later date. [ 5 ] Counsel for Intact then sent correspondence to counsel for the plaintiff. The correspondence dealt with questions concerning affidavits of records, the order and scheduling of witnesses at questioning, and finally dates to

schedule a further application given counsel for the plaintiff not responding to the first correspondence.

The correspondence was: - Email dated July 28, 2022 - Email dated August 8, 2022 - Email dated August 15, 2022 [ 6 ] Counsel for the plaintiff (who also acts for the third party defendants) did not respond to any of these emails except late on October 11, 2022, just prior to the October 12, 2022 hearing which counsel for Intact had scheduled, not having heard from counsel for the plaintiff. [ 7 ] Counsel for the plaintiff then belatedly responded on Oct 11, and during the hearing on October 12, (about 10 days prior to questioning commencing) indicating he preferred to first question former employees of the defendants prior to examining their appointed representatives because “it would be much more efficient to examine the employees first”.

It is too bad he did not indicate this as a response to the email sent to him over two months earlier on July 28, 2022. [ 8 ] The lack of response from counsel for the plaintiff to communications from counsel for the defendant Intact has impeded this litigation from proceeding in a timely and cost-effective way, which is the reason that I included, in my procedural order, the provision quoted in paragraph 1 of these reasons. Heard on the 12 th day of October, 2022. Dated at the City of Calgary, Alberta this 4 th day of November, 2022. J.T. Prowse A.J.C.K.B.A. Appearances: C. Michael Smith Smith Mack Lamarsh

for the Plaintiff Kerry E.S. Boyd/Alexander Brooker Department of Justice Canada for the Crown Defendants Trent Kulchar for Intact Insurance Company