An excellent assessment of when the Alberta Rules of Court will apply to Provincial Court Civil Division Action

In Alberta the lowest civil Court is our Provincial Court Civil Division; affectionately referred to as "Smalls Claims Court" or "PCCD".  This Court serves a very important purpose in allowing parties to "have their day in Court" without the formalities required by our Court of Queens Bench.  Systemically the PCCD promotes a civil resolution of disputes and its existence bolsters our democratic system; that is citizens of Alberta are able to resolve their disputes without resort to extra-judicial conduct.



The current monetary limit which parties may bring before the PCCD is $25,000.00.  Currently, this can be increased by our Provincial Government by Regulation to as much as $50,000.00 if approved by our Lieutenant Governor in Council.  The Provincial Court Act governs all actions commences in PCCD.  Notwithstanding this, the Judges in the PCCD are adept at navigating litigants to a conclusion without the process becoming to onerous; that is, becoming mired in the formalities found in the Rules of Court used in the Court of Queen's Bench.  However, there are instances which occur in PCCD when the Rules of Court need to be applied.  


In the case Cabrera v. Steed, 2013 ABPC 361 Judge Higa adroitly reviewed section 8 of the Provincial Court Act and provided some direction as to when the PCCD should have recourse to the Rules of Court:

[7]        The Applicants in support of their application rely on specific rules of the Rules of Court of Alberta.  The Applicants state there are no legislative provisions contained in the Provincial Court Act, RSA 2000, c. P-31 (“Act”) that addresses the relief sought in this application.  Accordingly, the Applicants submit that pursuant to Section 8 of the Act, the Court may apply the Rules of Court.  Section 8(2) states,

Where the Act or the regulations do not provide for a specific practice or procedure of the Court that is necessary to ensure an expeditious and inexpensive resolution of a matter before the Court, the Court may

(a)   apply the Alberta Rules of Court, and

(b)   modify the Alberta Rules of Court as needed.

In the Cabrera case Judge Higa concluded that in respect of an application to strike an action based on long delay that the Rules of Court should be applied.  Judge Higa applied the rules from the Rules of Court which were applicable and concluded that the action should be struck due to a delay of 3 years.  This decision sheds light on when a Judge in the PCCD will embrace the formalities of the Court of Queen's Bench and is a welcome addition to the PCCD jurisprudence.

Do I have to fill those pot holes? The duty of Alberta municipalities under the Municipal Government Act (Alberta)

This year (2014) in Calgary residents were delighted that we did not have to experience another flood.  Concerns of flooding was replaced with Calgarian's concerns about the enormous number of pot holes which have appeared over our very long winter.  While reviewing the Municipal Government Act (Alberta) ["MGA"] for other reasons I stumbled across paragraph 532 which appeared to create a mandatory obligation on Municipalities to maintain the roads; the section is repeated below:


Municipal Government Act, RSA 2000, c M-26

Part 13

Liability of Municipalities, Enforcement of Municipal Law and Other Legal Matters

Division 1

Liability of Municipalities

   Repair of roads, public places and public works

532(1)  Every road  or other public place that is subject to the direction, control and management of the municipality, including all public works in, on or above the roads or public place put there by the municipality or by any other person with the permission of the municipality, must be kept in a reasonable state of repair by the municipality, having regard to

(a)    the character of the road, public place or public work, and

(b)    the area of the municipality in which it is located.

(2)  The municipality is liable for damage caused by the municipality failing to perform its duty under subsection (1).

(3)  This section does not apply to any road made or laid out by a private person or any work made or done on a road or place by a private person until the road or work is subject to the direction, control and management of the municipality.

(4)  A municipality is not liable under this section unless the claimant has suffered by reason of the default of the municipality a particular loss or damage beyond what is suffered by the claimant in common with all other persons affected by the state of repair.

(5)  A municipality is not liable under this section in respect of acts done or omitted to be done by persons exercising powers or authorities conferred on them by law, and over which the municipality has no control, if the municipality is not a party to those acts or omissions.

(6)  A municipality is liable under this section only if the municipality knew or should have known of the state of repair.

(7)  A municipality is not liable under this section if the municipality proves that it took reasonable steps to prevent the disrepair from arising.

(8)  When a traffic control device has been defaced, removed or destroyed by someone other than a designated officer or employee or agent of the municipality, the municipality is liable under this section only if the municipality

(a)    had actual notice of the defacement, removal or destruction, and

(b)    failed to restore, repair or replace the traffic control device in a reasonable period of time.

(9)  A person who brings an action under this section must notify the municipality of the event that gives rise to the action within 30 days after the occurrence of the event.

(10)  Failure to notify the municipality bars the action unless

(a)    there is a reasonable excuse for the lack of notice, and the municipality is not prejudiced by the lack of notice,

(b)    death is the result of the event complained of, or

(c)    the municipality waives in writing the requirement for notice.

I noted up (looked for cases which considered this section) and located the Kuz v. Calgary (City), 2008 ABPC 340 case.  In Kuz, Judge McCarthy (at that time a Provincial Court Judge and now of our Court of Appeal) considered this section.  Justice McCarthy explicates the nature of the duty imposed by section 532 of the MGA and then applies the “Policy” Versus “Operational” Dichotomy which must be applied in respect of claims of negligence against municipalities; negligence will only lie if the conduct alleged was negligence in operation.

The Duty of Care Owed by the City:

 

[18]           If I am correctly interpreting the decisions of the Supreme Court of Canada in Just v. British Columbia 1989 CanLII 16 (SCC), [1989] 2 S.C.R. 1228 and Brown v. British Columbia 1994 CanLII 121 (SCC), [1994] 1 S.C.R. 420, the City, as the road authority, owes a duty of care to those using its roads.  Furthermore, I interpret those cases to hold that the duty of care extends to taking reasonable steps to prevent injury to users of its roads.  In other words, the duty of care extends beyond the City’s statutory duties set out in Section 532(1) and (7) of the Municipal Government Act, namely to keep roads in a reasonable state of repair and to repair malfunctioning traffic control devices in a reasonable period of time.  The City, of course, had a duty to fix the traffic lights in a reasonable period of time and it discharged that duty in this case; but that does not end the matter because there is also the duty to take reasonable steps to prevent injury to motorists.

 

The “Policy” Versus “Operational” Dichotomy:

 

[22]           And before this court can even embark on an inquiry into the adequacy of that precaution, it must decide whether its traffic signal lights re-setting practices are the product of a policy decision by the road authority or are simply an operational decision.  The standard of negligence applied by the courts in determining whether a duty of care has been breached cannot ordinarily be applied to a policy decision, but it can be applied to an operational decision:  Sutherland Shire Council v. Heyman (1985) 60 A.L.R. (Australian High Court-Mason, J) cited with approval in Brown v. British Columbia, supra, (although it should be noted that Sopinka, J., in dissenting in Brown, expressed grave reservations about the use of the “policy/operational” test as the touchstone of liability).

 

[23]           The principles to be applied in determining whether a decision of government, or in this case of a municipality, is one of policy or operations are set out in Just v. British Columbia, supra.  In Just v. B.C., Justice Cory of the Supreme Court of Canada cited the Australian High Court decision in Sutherland Shire Council v. Heyman as providing “helpful guidelines”.  In the Australian case, the court said at p.35:

 

“The distinction between policy and operational factors is not easy to formulate, but the dividing line between them will be observed if we recognize that a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints.  Thus budgetary allocations and the constraints which they entail in terms of allocation of resources cannot be made the subject of a duty of care.  But it may be otherwise when the courts are called upon to apply a standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness.”

In finding for the Plaintiff against the municipality Justice McCarthy repeated the words of the Honourable Justice Dixon:

[34]           Furthermore, on the authorities cited to me, this was not a new problem. In a scathing judgment in 1990, Mr. Justice Dixon of the Alberta Court of Queens Bench in Kozina v. Lajoie, 1990 CanLII 5857 (AB QB), (1990) 103 A.R. 55,  found the City to be negligent in not providing adequate and timely signage in the case of malfunctioning traffic signal lights at Deerfoot Trail and Memorial Drive, the next interchange south of that intersection which is the subject of the within litigation.  Admittedly, much of Justice Dixon’s judicial reproach was reserved for the police department and the facts were different  Kozina  in that the traffic light outages involved more intersections, lasted longer and the response times were nowhere near as quick as in the case at bar; but on the question of traffic control, Mr. Justice Dixon had this to say:

 

“Before leaving the issue of liability, I must record that I am astounded that the three intersections in question were not controlled by peace officers long before the time of the accident....Had the City of Calgary Police Commission been or remained a party in these proceedings, I would have found them liable for neglect of duty.  I concur with the submissions of Mr. Abougoush that the effect of Section 3 of the City of Calgary By-law 40M80 and of the Judgment of Master Quinn in Caratozzolo v. Murdock, Eqatski and City of Edmonton, 47 A.R. 394, are that peace officers have the responsibility for the direction of traffic at uncontrolled intersections within the City of Calgary...”

This section and the application of the legal reasoning of Justice McCarthy could very well form the basis of a judgment against municipalities for failing to repair pot holes in a timely manner.

Surely you can evict a tenant for prostitution; our Charter of Rights & Freedoms is impacting the landscape of landlord and tenant relations AND Summary Judgment; somethings change but yet might stay the same

One of the more difficult grounds to terminate tenancies for is breach of lease or breach of bylaws by acting in a manner which is criminal.  The reason for this is that the burden of proof in criminal matters is "beyond a reasonable doubt" whereas the civil standard is "on the balance of probabilities".  Notwithstanding this if a condominium corporation or a landlord has evidence of criminal activity related to prostitution by a tenant that an eviction would imminent on application to the Court.


In 1214777 Alberta Ltd v 480955 Alberta Ltd, 2014 ABQB 301 Master Schlosser was asked to terminate a tenancy based on the allegation that the tenant was participating in the criminal activity of prostitution.  He concluded that he could not based on the recent SCC case law which has now confirmed that the rights of prostitutes are protected by our Charter of Rights and Freedoms.  Master Schlosser concluded:

[44] If we put the conflicts in the evidence aside for a moment, the complicating factor about the landlord’s arguments is that the law of selling sex for money is in a state of limbo. Canadian prostitution laws were challenged in the Supreme Court of Canada and found to be unconstitutional. Madam Justice McLachlin said for the Court in Canada (AG) v. Bedford, 2013 SCC72:

3. Three applicants, all current or former prostitutes, brought an application seeking declarations that three provisions of the Criminal Code, R.S.C. 1985, c. C-46, are unconstitutional.

4. The three impugned provisions criminalize various activities related to prostitution. They are primarily concerned with preventing public nuisance, as well as the exploitation of prostitutes. Section 210 makes it an offence to be an inmate of a bawdy-house, to be found in a bawdy-house without lawful excuse, or to be an owner, landlord, lessor, tenant, or occupier of a place who knowingly permits it to be used as a bawdy-house. Section 212(1)(j) makes it an offence to live on the avails of another’s prostitution. Section 213(1)(c) makes it an offence to either stop or attempt to stop, or communicate or attempt to communicate with, someone in a public place for the purpose of engaging in prostitution or hiring a prostitute.
5. However, prostitution itself is not illegal. It is not against the law to exchange sex for money. Under the existing regime, Parliament has confined lawful prostitution to two categories: street prostitution and “out-calls” – where the prostitute goes out and meets the client at a designated location, such as the client’s home. This reflects a policy choice on Parliament’s part. Parliament is not precluded from imposing limits on where and how prostitution may be conducted, as long as it does so in a way that does not infringe the constitutional rights of prostitutes.

[45] Although these laws were found to be inconsistent with the Charter and void, the declaration of invalidity was suspended for one year. (The date of the Judgment was December, 2013).
[46] The old laws are still on the books but in a kind of legal limbo. Some of the activities at 50th Street Massage Centre might technically constitute crimes but neither 50th Street Massage Therapy nor its inmates or proprietors have been convicted, or pleaded guilty to any municipal or federal offences, much less offences under the Criminal Code of Canada.
[47] The commercial lease speaks to legality not morality. I am not willing to terminate this commercial lease on the basis of this state of the law and evidence. 

The case was also noteworthy to see how the recent judicial pronouncements with respect to Summary Judgment applications are being applied in Applications to Masters ; Master Schlosser commented:

[14] The Hryniak approach was recently endorsed by our Court of Appeal in Windsor v Canadian Pacific Railway Ltd., 2014 ABCA 108. Although that case was a ‘law case’, not ‘a facts case’, and the remarks in that decision are obiter with respect to whether there are any enhanced fact-finding powers now enjoyed by judges in this province, the Court did observe that the approach chosen by the Supreme Court of Canada in Hryniak was consistent with the Alberta rules. Rule 7.3 uses the very wide term, ‘merit’, and Rule 6.11, which lists the types of evidence that can be considered on a motion, includes oral evidence (6.11(g)). Our Court of Appeal has now also endorsed this approach for rule 3.68 applications (O’Connor Associates Environmental Inc. v. MEC OP LLC, 2014 ABCA 140 ).

[15] It remains to be seen whether a judge sitting in chambers in Alberta can now find facts or determine credibility based on Affidavit evidence. As was noted in the Ontario Civil Justice Reform Project, there are many layers of decisions against it (and see Beier v. Proper Cat Construction Ltd., 2013 ABQB 351,at para. 68, O’Hanlon Paving Ltd. v. Serengetti Develoments Ltd., 2013 ABQB 428 and Schaffer v. Lalonde, 2014 ABQB 222 (M)). Like the case in Ontario, a rule change, or a legislative change might be necessary.

[16] If we put these decisions together, the approach that now ought to be taken toward summary determination is as follows. I am drawing remarks of Master MacLeod in the Pammett decision and those of Wakeling, J., (as he then was) in the Proper Cat case. The new approach has been described as the “roadmap approach”. As I see it, the Alberta roadmap is as follows:

[17] The starting point (as found in the Windsor decision para. 13 and Hryniak at para. 49) is ‘to examine the record to see if a disposition that is fair and just to both parties can be made on the existing record’. The court is to look at the record and the dispute to decide whether it is essential to the resolution of the dispute that the court see the witnesses. If the answer is yes, the matter must go to trial. If the initial answer is ‘no’, the court is to engage in a six step process:

1. The court is to presume that the best evidence from both sides is before the court. (e.g. Canada v. Lameman, 2008 1 SCR 372, at 378 and 382). The decided cases tell us that summary judgment applications have to be decided on the evidence before the court and not on what the evidence might be. Parties are required to put their best foot forward. This
   reinforces the importance of treating summary judgment applications advisedly and with due caution. The only caveat that might apply here is that if the summary judgment application is before a Master and the losing party does not like the Master’s opinion, it is not so difficult to patch up the evidence on appeal.
2. As a corollary to number 1, the court is to ask whether a negative inference can be drawn from the absence of evidence on certain points.
3. Next, the court should look at the complete package and ask whether all of the evidence is admissible. Rule 13.18 (3), for example, tells us that we can’t use hearsay for a final application.
4. Next, the court should ask whether there is a conflict in the evidence and, if so, whether, (a) the conflict has been resolved on cross examination: Janvier v 834474 Alberta Ltd., 2010 ABQB 800, or, (b), whether the evidence giving rise to the conflict is purely self-serving and is otherwise unsupported: Guaranty v. Gordon, 1999 SCC. Self serving evidence does not give rise to a triable issue.
5. The next step is to examine the evidence. As Master MacLeod said in the Pammett decision:
   
   
   

   [28] There are subtle distinctions here. The court may assess the sufficiency of the evidence admissibility of evidence and reliability of evidence without access to enhanced fact finding powers. The court may also apply the law to the facts without deciding a genuine question of law.

   
   

   (emphasis added).   Assessing the sufficiency of the evidence will also involve considering whether the issue can fairly be decided on the factual record before the court (Tottrup v. Clearwater Municipal District (99) (2007) 68 Alta L.R. (4th) 237 at 242 and Gayton v. Lacasse, 2010 ABCA 123 at para. 11).
6. Having performed that evidentiary exercise, as Master MacLeod further says in the Pammett case: (and see Proper Cat at paras. 61-64, 69):

   
   

    [31] A plaintiff will be entitled to judgment if the plaintiff can prove all elements of the cause of action and the defendant either has no defence or is missing critical elements of proof necessary to maintain that defence. A defendant will be entitled to judgment if the plaintiff cannot prove an essential element of its cause or if the defendant has a complete defence.

[18] In a sense, much of the above is not truly new. It is more like a field guide to the principles summarized in Proper Cat and elsewhere. The main change is that the concept of proportionality urges the court to give summary remedies where it can.

[19] None of this affects the well established legal burdens. The legal or persuasive burden is on the Applicant throughout. The Respondent is not obliged to furnish evidence. However, if an Applicant discharges the evidentiary burden imposed upon it on a balance of probabilities, the evidentiary burden then falls to the Respondent to show that there is arguable merit to the case: Murphy Oil Company Ltd. v. Predator Corporation Ltd., 2006 ABCA 69, Proper Cat at paras. 66-7, 70, and Dasilva v McLean, 2011 ABQB 618 (M), and, now, that there is a compelling reason that it should go to trial.

[20] As noted in Schaffer v. Lalonde, Masters have an additional power under section 9(3)(b) of the Court of Queen’s Bench Act. If the evidence leads to something that cannot be resolved on the basis set out above, the parties can agree to have the court determine the issue, which would be fully in keeping with the concept of proportionality and would be consistent with embracing the culture shift noted by the Supreme Court of Canada in Hryniak.

[21] There is one last issue. And it requires guidance from above. The Hryniak case suggests that the threshold for granting summary judgment may be at the civil standard (balance of probability), rather than ‘plain and obvious’, or ‘beyond doubt’, which is closer to the criminal standard. The Supreme Court of Canada did not directly address this issue, or for that matter, any of the cases that establish the standard. It was not necessary to the decision as a chambers judge found that the outcome ‘was clear’, which seems to imply that the higher standard was met.

[22] Nevertheless, there is a tension between the language used in the Hryniak case and the well established standard for granting summary remedies. Until this issue is dealt with, when the court asks whether there is ‘any issue of merit that genuinely requires a trial’ (Windsor at para. 16), or whether a fair and just determination can be made on the merits, the threshold remains ‘plain and obvious’, ‘or beyond doubt’. In the meantime, this court is not free to conduct ‘paper trials’ on the civil standard.


[23] The concept of proportionality does not mean, as some hopeful plaintiff’s seem to think, that plaintiff’s now have a license to railroad the defendant. The concept cuts both ways. 

I have taken the comments from Master Schlosser to reflect that though much has changed not much has changed.  This was also reflected to me on a recent Special Application to Master Robertson.  The Court will continue to expect a high standard of proof to conclude that Summary Judgment should be granted but the Hryniak and Windsor cases will work to extol Masters and Justices to take one last look at the evidence to see if an equitable result can be achieved without the burden of trial.