ANTHONY HANSRAJ & ROGER HANSRAJ Plaintiffs - v. -, 2003 ABQB 299

Hansraj v. Ao (#3), 2003 ABQB 299 Date: 2003 04 03 Action No. 9803 18965 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF EDMONTON BETWEEN: ANTHONY HANSRAJ & ROGER HANSRAJ Plaintiffs - and - ZEFENG AO & JOHN RICHARD MEDEIRUS & JOHN DOE I AND JOHN DOE II Defendants _______________________________________________________ REASONS FOR JUDGMENT of the HONOURABLE MR. JUSTICE F. F. SLATTER _______________________________________________________ APPEARANCES: P. Tinkler (Fraser Milner Casgrain) for the Plaintiffs/Respondents Melinda D. Kondrat (Burstall Winger)

for the Defendant/Applicant Ao [ 1 ] This is an application to amend the formal order resulting from the previous decision of the Court in this matter: Hansraj v. Ao , 2002 ABQB 385 , [2002] 8 W.W.R. 725 , 4 Alta. L.R. (4 th ) 124 . Facts [ 2 ] This matter commenced as an application by the Defendant Ao to set aside substitutional service that had been ordered by a Master. I will refer to this as the Service Application.

The Service Application was heard by the Master, and he determined that the substitutional service was good and sufficient, and that the ex parte substitutional service order should not be set aside. [ 3 ] The Defendant was not satisfied with this result, and he appealed the decision of the Master. To assist in their response to this appeal, the Plaintiffs then filed a new affidavit, adding information which had not been before the Master.

The Defendant took the position that some of the exhibits to this affidavit were privileged because they had been marked “without prejudice”, and the Defendant therefore brought an application to strike out those portions of the affidavit. I will refer to this as the Privilege Application. [ 4 ] The appeal from the Master on the Service Application, and the hearing of the Privilege Application came before this Court on April 9, 2002. The appeal from the order granted by the Master on the Service Application was allowed, and service was set aside. The Privilege Application was dismissed.

It was held that the challenged documents were not truly privileged, although some of them were held to be irrelevant and were accordingly given no weight. To summarize, the Defendant was successful on the Service Application appeal, but not on the Privilege Application. The parties were invited to speak to costs if necessary. [ 5 ] The parties did subsequently ask for an opportunity to speak to costs, and an appointment was arranged for August 9, 2002.

A letter from the Plaintiffs’ then counsel outlining the issues to be decided disclosed that there was a disagreement between counsel as to the proper form of the order arising from the Privilege Application. Then counsel for the Plaintiffs took the position that the application had been brought to strike portions of the affidavit based on privilege. Since no privilege had been found, the order should reflect that the application was dismissed.

Counsel for the Defendant argued that while the Privilege Application had been dismissed, the court had determined that certain attachments to the affidavit were irrelevant, and counsel for the Defendant accordingly took the view that the order should reflect that ruling. [ 6 ] The application of August 9, 2002 was held in private chambers and by conference call, and accordingly no transcript nor any clerk’s notes are available.

My own notes indicate that the Privilege Application was discussed, but in the context of which party was victorious on the Privilege Application, and accordingly whether costs should be paid. My own notes do not disclose that any ruling was made on the form of the order. It seems however clear from the correspondence that both parties agreed that something about the Privilege Application should be placed in the order; the dispute was over the exact wording. [ 7 ] Written reasons on the costs application were eventually filed on August 22, 2002: Hansraj v. Ao (#2) , 2002 ABQB 772 .

A formal order was subsequently filed on October 9, 2002. This order deals with the Service Application and costs, but it says nothing at all about the disposition of the Privilege Application. [ 8 ] The Plaintiffs were dissatisfied with the eventual result of the Service Application, and they have changed counsel and appealed to the Court of Appeal. The Defendant wished to cross-appeal the result of the Privilege Application, and at this point it became apparent that the order was silent as to the disposition of the Privilege Application.

New counsel for the Plaintiffs took the view that the privilege issues could not be raised by way of cross-appeal, because the order was silent on the disposition of the Privilege Application. [ 9 ] To remedy the situation counsel for the Defendant proposed to correct the order pursuant to Rule 339. Counsel for the Plaintiffs took the view that this rule did not apply, and that the proper approach is to prepare and enter a second order recording the

disposition of the Privilege Application. Counsel for the Defendant brought this application to resolve the dispute. Correcting Errors in Orders [ 10 ] Rule 339 reads as follows: 339 Clerical mistakes in judgments or orders, or errors therein arising from any accident, slip or omission may at any time be corrected by the court on motion. This slip rule gives the court the power to correct technical errors in judgments; it is not intended to confer a wide power to re-hear and re-decide issues that have already been decided once.

If the order correctly sets out what was decided, then there is no slip or technical error to be corrected. Any errors in the decision itself are for the Court of Appeal. [ 11 ] Counsel for the Plaintiffs argued that resort could not be had to Rule 339 in this case. Counsel argued that once a decision was rendered and entered, the court was functus officio , and no further variations were possible. In support of this argument counsel cited Martin Estate v. Martin (1960), 1960 CanLII 570 (AB KB) , 31 W.W.R. 643 (Alta. S.C.) ; Condominium Plan No. 7510189 v. Jones (1997), 1997 ABCA 53 (CanLII) , 48 Alta.

L.R. (3d) 281 (C.A.) ; and Iverson v. Westfair Foods Ltd. (1998), 1998 ABCA 337 (CanLII) , 67 Alta. L.R. (3d) 148 (C.A.) . These cases all stand for the proposition that a court cannot re-hear a matter once decided. [ 12 ] But the Defendant is not asking the Court to reconsider the original decision. The decision made on the Privilege Application is clearly set out in the Reasons found at 2002 ABQB 385 . The Reasons say what they say, and the Defendant is merely asking the Court to set out the finding in the formal order.

The Court is not functus on this point, and indeed the Plaintiffs’ suggestion that a second order be entered to reflect the disposition of the Privilege Application shows that the Court is not functus . [ 13 ] In Ensign Estate v. Hart (1998), 1998 ABCA 13 (CanLII) , 209 A.R. 392 (C.A.) the Court said of Rule 339: . . .

This rule is an important exception to the general rule that a final judgment cannot be changed once it is entered. . . . the general rule is that once an Order Nisi is passed and entered, the court which passed the order is “functus officio” and cannot set aside or alter the Order Nisi however wrong it may appear to be. Amendments to an entered order can only be done on appeal. The two exceptions to this rule are: (1) where there has been a slip in drawing up the judgment ; and (2) where the judgment as entered does not truly express the intention of the court.

Both exceptions apply here; by a slip the order is silent on the disposition of the Privilege Application, and so it does not reflect the intent of the court. [ 14 ] The Plaintiffs also argued that Rule 339 could not be used after the order has been entered, and it definitely could not be used after the order was subject to appeal. The first point is clearly not correct because Rule 339 only has any meaning after a judgment has been entered. Before a judgment is entered, it is nothing more than a draft, and any changes directed by the Court can be made to it: 369413 Alberta Ltd. v.

Pocklington (2000), 1999 ABQB 936 (CanLII) , 79 Alta. L.R. (3d) 222 , 17 C.B.R. (4 th ) 305 ; R. v. Badry (1998), 1998 ABCA 7 (CanLII) , 59 Alta. L.R. (3d) 133 , 209 A.R. 321 , [1998] 7 W.W.R. 272 (C.A.) at para. 95 . I also note that Rule 339 says that corrections can be made “at any time”.

There is no reason why a correction cannot be made under Rule 339 after an appeal has been launched, and indeed it is important that the trial court make any necessary corrections to ensure that the Court of Appeal has before it an accurate version of what was decided. [ 15 ] The Plaintiffs also argued that the omission in question is not of the type contemplated by Rule 339. The Rule specifically refers to “omissions”, and the failure of the order to provide for any disposition of an issue before the Court is clearly within the scope of Rule 339.

The order as presently drafted does not reflect the true intention of the Court as set out in the Reasons reported at 2002 ABQB 385 .

[ 16 ] The Plaintiffs also argued that this application was an abuse of process. It was suggested that this Court is now biased and in a conflict of interest, because the Court is now subject to review by the Court of Appeal. I am unable to see how any issue of abuse of process, bias, or conflict of interest arises on this record.

If the form of the order had been set on August 9, 2002, and the Defendant was attempting to reargue the matter that might be an abuse of process, but that is not being done. [ 17 ] There remains the issue of whether the Court should direct that the order be corrected under Rule 339, or whether an entirely separate second order should be taken out. Counsel for the Plaintiffs frankly acknowledged that his clients would not suffer any prejudice by a correction of the original order. There would appear to be no advantage to taking out an entirely separate order.

Since the Defendant has indicated an intention to appeal the result of the Privilege Application, this would simply mean that there would be two appeals outstanding, two appeal books and factums would be required, and the Court of Appeal would have to deal with two separate appeals. This can only serve to increase costs, and that serves no good purpose. [ 18 ] I also note that when a number of related issues are decided at the same time the custom in Alberta is to include all of the dispositions in one order. This is so even when the dispositions result from several different cross-applications.

I also note that originally both parties were in agreement that the disposition of the Privilege Application should be contained in the same order as the disposition of the Service Application. The only dispute between the parties was as to the actual wording. There being no prejudice to the Plaintiffs, and no advantage to taking out a second order, the order should be corrected under Rule 339.

Wording of the Correction [ 19 ] Counsel for the Plaintiffs continues to advance the position of his predecessor that the application was brought to strike portions of the affidavit on the basis of privilege, and no privilege having been found the Privilege Application should be shown in the order as having been dismissed.

While counsel for the Defendant had originally argued for a specific recognition in the order that several of the exhibits to the affidavit were found to be irrelevant, she did not press this point. [ 20 ] In Alberta it is customary to record in the formal order only the final outcome or disposition of the proceeding. Orders generally do not recite particular evidentiary rulings, unless perhaps they are the overwhelming or central issue in dispute. Orders generally do not record what evidence the Court found to be relevant or irrelevant, or what weight was given to particular pieces of evidence: Schofield v.

Schofield , 1989 CanLII 3136 (AB KB) , [1989] 4 W.W.R. 84 , 98 A.R. 150 , 65 Alta. L.R. (2d) 258 . If the Court of Appeal ever needs to know how the decision was arrived at, resort is had to the written Reasons for Decision or the transcripts. I accordingly agree with the Plaintiffs that the order should simply state that the application to strike portions of the affidavit was dismissed. Conclusion [ 21 ] In

summary, the application of the Defendant to amend the order entered on October 9, 2002 is granted. [ 22 ] The presumption as to costs found in Rule 607 applies. If the Plaintiffs wish to displace the presumption an application may be made within 30 days of the release of these reasons. HEARD on the 28 th day of March, 2003. DATED at Edmonton, Alberta this 3 rd day of April, 2003. __________________________ J.C.Q.B.A.