Firemaster Oilfield Services Ltd. Plaintiff (Defendant by Counterclaim) (Appellant by Cross Appeal) - v. -, 1995 ABCA 268

In the Court of Appeal of Alberta Citation: Firemaster Oilfield Services Ltd. v. Safety Boss (Canada)

(1993) Ltd., 1995 ABCA 268 Date: 19950719 Docket: 9503-0288-AC and 9503-0529-AC Registry: Edmonton Between: Firemaster Oilfield Services Ltd. Plaintiff (Defendant by Counterclaim) (Appellant by Cross Appeal) - and - Safety Boss (Canada)

(1993) Ltd., Randy Cusson, Jarvis Jackson, Maurice Engman and Duncan Moody Defendants (Plaintiffs by Counterclaim) (Appellants) - and - Gary Hart Defendant by Counterclaim (Not a Party to the Appeal) And Between: Marie Collins Appellant - and - National Life Assurance Company of Canada Respondent Reasons for Decision of The Honourable Mr. Justice Côté COUNSEL: P. Knaak, Q.C., for the Firemaster C. D. Hunka, for the Safety Boss et al C. I. Taylor, for the Marie Collins D. C. Wintermute, for the National Life

REASONS FOR DECISION OF THE HONOURABLE MR. JUSTICE COTÉ [ 1 ] This pair of motions in two unrelated appeals came before me in chambers. Both motions are for an expedited appeal, and both are unopposed, even consented to. There have been a number of such motions recently, but there are few reported decisions on the topic. So I reserved decision to offer a few remarks on how the Edmonton lists work. [ 2 ] Rarely are motions to expedite opposed. Usually both counsel want their appeal heard much sooner than it would be following normal procedures.

One possible solution is a special sitting of the Court called by the Chief Justice; then there would be no inconvenience to other litigants, but there would be disruption of the Court's usual work and procedures. Another possible solution is to insert the cases to be expedited into a slot on normal Court lists; then there are only three possible results. Either the new case will bump off other cases already promised a court date, or the Court will sit past 6:00 p.m. some day, or other cases earlier filed and ready to argue will be denied an early date in favour of the new case filed later. See Unilever v.

Chefaro Props. [1995] 1 W.L.R. 243 ( C.A. ) . [ 3 ] We sometimes hold special sittings, but they are rare and only for very urgent matters. (One may omit very long cases arranged long ahead, which are the opposite of expedited appeals.) So far as I know in Edmonton we have never bumped a case with a fixed date off a list to accommodate another case, and it would be unfair to do so in any but a very unusual situation. In Edmonton we also make it a rule not to give a case a fixed date until both factums are filed. We make exceptions, but only for special circumstances of urgency.

Sitting past 6:00 p.m. is very undesirable: headaches, crankiness, and loss of concentration overcome all the people in the courtroom eventually. [ 4 ] Counsel can have any civil case set down in Edmonton on a standby basis. The Court will not ordinarily hear it without reading the material, so a last-minute opening of time (such as another appeal unexpectedly taking less time for actual argument than estimated) probably cannot be used. But a surprising number of openings occur in lists hitherto full, a few business days before the date of argument.

Often the Deputy Registrar can find no counsel ready or willing to fill such openings. Both the cases here could be set down on that basis, if counsel desire. [ 5 ] However, since the early 1980s the Court has offered counsel fixed dates for argument (except for the sentence appeal lists). Therefore, few counsel wish to go on standby, even in the modern version which does not involve waiting in the Law Courts gowned, as it did in the 1970s.

So the real issue here is whether these cases can have a very early fixed date. [ 6 ] As the English Court of Appeal observed in the Unilever case, supra , the real respondents to a motion to expedite an appeal are the parties and counsel in all the other cases waiting in the queue. They are never heard on such a motion. The more litigants who go to the head of the queue, the longer becomes the wait in the queue for all the other litigants. So there must be good reason to put an appeal on special lists or give it a date which would otherwise go to a case earlier made ready: Unilever v.

Chefaro , supra . [ 7 ] In the present Collins case, counsel requested a special sittings or date. The urgency arises because the appeal relates to whether the lawsuit was effectively settled or not, and there is a 5-day trial scheduled to begin on September 25. The appeal book and the appellant's factum are filed, and the respondent's factum was expected on July 18 (the day of the motion to expedite) or the next day. Internal inquiries showed that the regular civil list had an opening on September 8, which these (or any other) counsel would be entitled to select when the second factum was filed.

After I reserved decision on these motions, I instructed the Deputy Registrar in Edmonton to reserve that slot about a day early, and then offer it on condition that the respondent's factum be filed by noon on July 19. The Deputy Registrar told both counsel that, and I understand that they are able to meet those dates. So the Collins case only needed about one day's jump in the queue, and it may not have got ahead of any other case. [ 8 ] That was a happy resolution of that Collins motion, for I might well not have ordered more heroic measures for that case if its appeal book and factums were not ready.

The Court often receives requests to expedite interlocutory appeals because a fixed trial date is approaching. On reflection, it seems to me that in some cases that is not enough reason to expedite.

If the suit itself is not urgent, then often either the trial date is ill-chosen, ignoring the possibility of appeals, or someone has brought motions after filing a certificate of readiness. (Such a certificate says that all interlocutory steps are complete, and both counsel ordinarily undertake to make no more interlocutory motions.) Sometimes motions or appeals arise unexpectedly and cannot be avoided (as was probably the case here).

But even then, the issue is whether to disrupt the appeal list and make parties to other appeals wait for their appeals, in order to avoid disrupting the trial list and not make the parties to this suit wait for their trial. Sometimes that is an appropriate solution, but not always. One must weigh various competing interests. Having the trial proceed before the appeal is inconvenient, but usually not fatal, especially given R. 523: 155569 Can. v. 248524 Alta. (Alta. 18 Aug. '93) Appeal #9303-0598-AC, digested [1993] Alta. Dec. 211-02. [ 9 ] The other motion to expedite now before me is in the Firemaster case.

In it the respondent plaintiff alleges wrongful competition or theft of business secrets. Almost five months ago, a Chambers judge ruled that certain documents are producible whose production the defendant resists. That subject matter is not one of the urgent topics listed in Unilever v. Chefaro , supra, a list broadly similar to the topics traditionally urgent in Alberta (though the list is never closed). In Firemaster , the defendant has appealed and got a stay of execution on condition that the appeal be prosecuted quickly. But it has not moved very quickly.

An amended agreement as to contents was only signed the day of the motion.

I do not know whose fault the delay is, but from what counsel told me, maybe fault is shared. [ 10 ] The Firemaster appeal book and factums clearly cannot be filed for some time yet, so the request there in effect is to jump over several months' appeals in the queue. [ 11 ] As the Statement of Claim was filed in 1993, one may wonder what harm would come if this appeal were to follow the normal procedures. (One can of course set a timetable so that there will be no more undue delay.) Counsel for the respondent plaintiff says that he believes that the documents in question contain evidence vital to the plaintiff, which so far lacks enough evidence to move for an injunction or a receiver.

At the moment, I have no evidence of what harm would arise if the appeal were to proceed in the usual course. Such harm should be shown and should be virtually irreparable: Clattenburg v. R. (1986) 65 N.R. 315 (at paras. 10 , 13); Syncrude Can. v. Cdn. Bechtel (Alta. 25 Aug. '93) Appeal #9303-0615-AC. Here, no affidavit was filed in support of the motion to

expedite. I could get the Queen's Bench file and read what is there, but that might take counsel for the appellant by surprise. [ 12 ] Therefore, I order counsel for the appellant to prepare or order the appeal book forthwith. I also give the respondent plaintiff leave to move before me to adopt a timetable for all further steps in this appeal (a draft of which should be annexed to the new notice of motion).

If the respondent plaintiff now feels that the appeal has not been prosecuted diligently, or hereafter feels that, it may move before me (or in my absence, another Justice) to vary or remove the stay of execution. Then evidence can be given. Subject to the foregoing, the motion for an early hearing of the Firemaster case is denied. [ 13 ] There will be no costs of either of the motions in either of these two appeals. JUDGMENT DATED at EDMONTON, Alberta, this 19th day Of July, A.D. 1995