Wang v Alberta Health Services, 2024 ABCA 58

In the Court of Appeal of Alberta Citation: Wang v Alberta Health Services, 2024 ABCA 58 Date: 20240222 Docket: 2301-0061AC Registry: Calgary Between: Xiaoli Lily Wang and Daiming Robert Li Appellants - and - Alberta Health Services Respondent _______________________________________________________ The Court: The Honourable Justice Kevin Feehan The Honourable Justice Anne Kirker The Honourable Justice April Grosse _______________________________________________________ Memorandum of Judgment Appeal from the Orders of The Honourable Justice E. J. Funk Dated the 14th day of February and the 31st day of March, 2023 Filed on the 11th day of May, 2023 ( 2023 ABKB 83 , Docket: 1401 10235)

_______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: I. Overview [ 1 ] Xiaoli Wang and Daiming Li have been involved in litigation with Alberta Health Services since 2014. [ 2 ] On June 8, 2016, a special chambers judge awarded full indemnity costs against Ms Wang and Mr Li, and on June 20, 2019, an assessment officer fixed those costs.

On July 22, 2019, Ms Wang and Mr Li filed an appeal of the assessment officer’s decision pursuant to r 10.44 of the Alberta Rules of Court , AR 124/2010 (the assessment of costs appeal). [ 3 ] For a variety of reasons the assessment of costs appeal did not proceed before Alberta Health Services filed a writ of enforcement in late 2022 and garnished funds from the appellants’ bank account.

The appellants objected to the proposed distribution of the funds and brought an application in morning chambers seeking, among other things, a special chambers hearing date for the assessment of costs appeal. [ 4 ] On February 14, 2023, the morning chambers judge decided that if Ms Wang and Mr Li chose to pursue the assessment of costs appeal, they must first seek leave of the Court of King’s Bench to “extend the time for that appeal”, 2023 ABKB 83 , para 39 . [ 5 ] Ms Wang and Mr Li sought permission to appeal that decision.

On June 15, 2023, a single judge of this Court granted permission to appeal, 2023 ABCA 186 , para 21 , on one question: Whether the chambers justice erred in requiring the applicants to apply for leave to extend the time for the Bill of Costs Appeal. [ 6 ] For the following reasons, the appeal is allowed, subject to the directions in paragraph 24 below. II. Background [ 7 ] In October 2014, Alberta Health Services took proceedings against Ms Wang and Mr Li asserting they were denying access to inspect twelve of their rental properties under the Public Health Act , RSA 2000, c P-37 .

In that action, the special chambers judge found against Ms Wang and Mr Li and awarded full indemnity costs in favour of Alberta Health Services. This Court made a further costs award in respect of steps taken on appeal. Ultimately, the assessment officer assessed costs in the sum of approximately $136,121 plus disbursements and interest, which amount was net of costs already paid.

Ms Wang and Mr Li’s appeal of that assessment was initially set for September 3, 2019. [ 8 ] On August 7, 2019, a chambers judge dismissed an application by Alberta Health Services to strike the assessment of costs appeal (on grounds of improper service) and directed the appeal to a half-day special chambers hearing on October 31, 2019.

She also set dates for filing and service of transcripts and written submissions. [ 9 ] On August 28, 2019, the assessment of costs appeal was again adjourned, from October 31 to November 28, 2019, and new dates were set for filing and service of transcripts and written submissions. On November 8, 2019, Ms Wang and Mr Li filed a document styled “Brief & Authorities”. [ 10 ] On November 13, 2019, the Associate Chief Justice of the Court of Queen’s Bench issued an order in a separate action restricting Ms Wang and Mr Li’s access to the Court.

They were prohibited on an interim basis from commencing or continuing any proceedings in any court in Alberta without permission. As a result, the November 28 hearing date for the assessment of costs appeal was cancelled by the Queen’s Bench Special Chambers Co-ordinator on November 14, 2019. [ 11 ] Ms Wang and Mr Li applied to the Associate Chief Justice for leave to proceed with the appeal. He declined to grant leave on November 28, 2019, 2019 ABQB 907 .

However, he did grant the appellants leave to proceed with a hearing for advice and directions under r 4.10 to determine an issue they had raised with redactions in the respondent’s bill of costs. The Associate Chief Justice stated that “[a]t that hearing and subject to its outcome, the Court may give leave to proceed with the appeal” [emphasis in original]. That application for advice and directions was never made, and the Associate Chief Justice never did give permission to proceed with the

assessment of costs appeal. [12] In December 2019, Ms Wang and Mr Li attempted to appeal parts of the decision denying them leave to proceed with theassessment of costs appeal. They were required to obtain leave to appeal from this Court because the court access restrictions remained inplace.

Leave to appeal to this Court was denied because of those restrictions. [13] On September 23, 2020, the Associate Chief Justice terminated the court access restrictions against Ms Wang and Mr Li. [14] On April 28, 2021, an application was heard by a single judge of this Court to extend time to appeal, in addition to severalother Court of Queen’s Bench orders, the decision of the Associate Chief Justice denying leave to proceed with the assessment of costsappeal. This Court declined to extend time to appeal because there was no merit to the appeal.

The single judge also said: “it is still opento the applicants [Ms Wang and Mr Li] to pursue their [original] appeal of the costs assessment ... before the Court of Queen’s Bench”given the order terminating the court access restrictions, and that “the applicants can proceed with having that appeal scheduled if theyso choose”, 2021 ABCA 175, para 20. [15] As noted, Ms Wang and Mr Li took no steps to

schedule the appeal before Alberta Health Services filed a writ of enforcementin relation to its assessment of costs and garnished funds from their bank accounts in late 2022. [16] In January 2023, Ms Wang and Mr Li brought an application in morning chambers to reschedule the assessment of costsappeal, asking among other things, that a special chambers date be set for the hearing of that appeal. [17] Alberta Health Services objected to the assessment of costs appeal being set down for hearing and suggested that the propercourse of action was for Ms Wang and Mr Li to seek permission to extend the time to advance the appeal.

The chambers judge agreedand said: While they have not framed their application in terms of seeking leave to extend the time for their appeal, that is essentially the remedythey seek. [18] The chambers judge concluded it was not appropriate for her to “simply set a new Special Chambers date”. She said “Instead,if the Applicants wish to continue with the Bill of Costs Appeal, they should first bring an application seeking leave to extend the timefor that appeal, keeping in mind the appropriate legal test for extending that time”. III.

Analysis [19] At the time of the application before the morning chambers judge, the assessment of costs appeal was outstanding. There wasno order striking that appeal. No rules of court or orders deemed the appeal to be abandoned. The order of the Associate Chief Justicerequiring leave to continue proceedings was no longer in effect. [20] The application before the chambers judge sought to have a special chambers hearing set for the appeal. The chambers judgecharacterized the “real issue” as an application “to simply restore their appeal”.

But restoration was not needed. [21] The chambers judge alternatively characterized the application as “seeking leave to extend the time for their appeal”.

But ithad not been submitted that Ms Wang and Mr Li had filed their original appeal out of time and required an extension of time to bring theappeal. [22] While the chambers judge was critical of Ms Wang and Mr Li for not having taken steps to proceed with their assessment ofcosts appeal on a timely basis after the court access restrictions were terminated, she did not have an application before her to addressthat delay; Alberta Health Services had not sought relief on that ground.

Instead, she adopted the test for extending time to appealestablished in Cairns v Cairns, (AB CA), [1931] 4 DLR 819, 826-827, [1931] 3 WWR 335 (Alta SC AD). That test didnot apply in these circumstances. [23] As a result, the morning chambers judge erred in requiring Ms Wang and Mr Li to apply to extend the time for the assessmentof costs appeal. That appeal, filed in the Court of Queen’s Bench, remains extant. IV.

Conclusion [24] The appeal is allowed, and to avoid further delay and ensure the efficient use of judicial resources, we direct that on or beforeFriday, March 15, 2024, Ms Wang and Mr Li write to the Associate Chief Justice of the Court of King’s Bench, DB Nixon, enclosing acopy of this decision and copied to Mr Torscher, requesting a case conference with the Court pursuant to r 4.10 to determine the nextsteps, failing which the appellants’ assessment of costs appeal filed on July 22, 2019, shall be deemed abandoned. [25] Rule 9.4(2)(

c) is invoked, and the Court will prepare the resulting judgment. Appeal heard on February 12, 2024

Memorandum filed at Calgary, Alberta this 22nd day of February, 2024 Feehan J.A. Kirker J.A. Grosse J.A. Appearances: Appellant, X.L. Wang S.M. Torscher for the Respondent