Adeshina v. Litwiniuk & Co. et al., 2010 ABQB 80

• Judge: Martin, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 09, 2009
• Citations: 2010 ABQB 80;(2010), 483 A.R. 81 (QB)

Adeshina v. Litwiniuk & Co. (2010), 483 A.R. 81 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. FE.076

Adewale Adeshina (plaintiff) v. Litwiniuk & Company, Larry A. Litwiniuk, Larry A. Litwiniuk Professional Corporation, L. Todd Litwiniuk, Kendal V.T. Power, Barry Steinfeld, Barry Steinfeld Professional Corporation and McLeod & Company LLP (defendants)

(0701-04173; 2010 ABQB 80)

Indexed As: Adeshina v. Litwiniuk & Co. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Martin, J.

February 2, 2010.

Summary:

The plaintiff was injured in a 1999 motor vehicle accident caused by the other driver's negligence. The only issue was damages. A critical issue was the plaintiff's future employability. The plaintiff's first set of lawyers (Litwiniuk defendants) commenced the action, gathered medical and supporting evidence and attended at a judicial dispute settlement (JDR) conference. An expert had been obtained to do a vocational assessment. Since the expert reported that the data showed that the plaintiff was "faking" or exaggerating his injuries, possibly to maximize financial gain, a report was not requested. At the JDR conference, information was disclosed (fee for the vocational assessment included in the submitted bill of costs) that subsequently led the driver to request the assessment data. The chambers judge rejected a privilege claim and ordered disclosure. After the JDR conference the plaintiff retained the second set of lawyers (McLeod defendants), who updated medical and treatment reports, gathered further evidence, and prepared the witnesses and themselves for the anticipated five-week trial. Four days before the scheduled trial date, the plaintiff accepted the negligent driver's settlement offer, which was substantially lower than he initially indicated he would settle for. The plaintiff sued both sets of lawyers, claiming that they breached their retainers, were negligent, and breached their fiduciary duties. The plaintiff alleged that the Litwiniuk defendants negligently disclosed the existence of confidential information at the JDR, which resulted in the disclosure which harmed the plaintiff's case and effectively forced him to accept an improvident settlement. The plaintiff alleged that the McLeod defendants negligently prepared for and argued the disclosure motion, unreasonably failed to appeal the decision or seek to have the trial rescheduled, and put their financial interest ahead of that of their client, disclosed confidential information and otherwise breached their ethical and fiduciary duties.

The Alberta Court of Queen's Bench dismissed the action against both sets of defendants. With the exception of the McLeod defendants' oversight of the assessment fee and its significance upon reviewing the transferred file, there was no negligence or breach of fiduciary duty. In any event, there was no loss suffered by the plaintiff respecting anything the two sets of defendants did or omitted to do. Although there was no liability, the court provisionally assessed damages under three different scenarios.

Barristers and Solicitors - Topic 1548

Relationship with client - Duty to client - General - Fiduciary duty - The Alberta Court of Queen's Bench stated that "lawyers owe fiduciary obligations to their clients arising in equity, in addition to the duties owed in contract and tort. ... Obligations characterized as fiduciary involve three essential principles. A lawyer must represent a client with undivided loyalty, preserve client confidences, and make full disclosure of all relevant and material information relating to a client's interests." - See paragraphs 113 to 114.

Barristers and Solicitors - Topic 1548

Relationship with client - Duty to client - General - Fiduciary duty - Lawyers represented the plaintiff in a motor vehicle accident on a contingency fee basis - Following a judicial dispute resolution conference the plaintiff accepted a settlement offer, but now alleged that his lawyers pressured him into accepting an improvident settlement to protect their own financial interests over the client's interests - The plaintiff alleged breach of fiduciary duty - The Alberta Court of Queen's Bench dismissed the claim - There was no evidence that the lawyers pressured the plaintiff to accept the settlement or that they placed their financial interests ahead of those of the plaintiff - See paragraphs 382 to 393.

Barristers and Solicitors - Topic 1621

Relationship with client - Duty of confidentiality (or professional secrecy) - General - The plaintiff brought a negligence action for damages against the defendant - The issue was quantum of damages - The plaintiff's lawyers informed the expert witnesses of the existence of surveillance evidence by the defendant, the results of an expert report by the defendant's expert and an unfavourable vocational assessment obtained by the plaintiff, but for which the expert would not be called - The plaintiff alleged that the lawyers breached their duty of confidentiality by discussing these matters with the expert witnesses - The lawyers submitted that the information was provided to prepare the experts for an expected line of cross-examination, giving them time to formulate their response to questions that would likely be raised - The Alberta Court of Queen's Bench stated that "from my perspective and experience I would have expected that preparing experts for cross-examination by informing them of other information that may affect or alter their opinions would not only be commonplace, but even necessary and prudent. ... Providing this information to the experts fell within the implied authority of [the lawyers'] retainer and did not constitute a breach of his obligations of confidentiality." - See paragraphs 398 to 399.

Barristers and Solicitors - Topic 2501

Negligence - General principles - Standard of care - The Alberta Court of Queen's Bench stated that "lawyers are bound to exercise a reasonable degree of care, skill and knowledge in all legal business they undertake. Their liability arises out of a contract. The standard of care and skill which can be demanded from a lawyer is that of a reasonably competent and diligent solicitor. It is not enough to prove that the lawyer has made an error of judgment or shown ignorance of some particular part of the law; it must be shown that the error or ignorance was such that an ordinarily competent lawyer would not have made or shown it. It is extremely difficult to define the exact limits by which the skill and diligence which a lawyer undertakes to furnish in the conduct of a case is bounded, or to trace precisely the dividing line between the reasonable skill and diligence which appears to satisfy his undertaking. It is a question of degree, and there is a borderland within which it is difficult to say whether a breach of duty has or has not been committed ... The obligations of a lawyer are, I think, the following: (1) To be skilful and careful; (2) To advise his client on all matters relevant to his retainer, so far as may be reasonably necessary; (3) To protect the interests of his client; (4) To carry out his instructions by all proper means; (5) To consult with his client on all questions of doubt which do not fall within the express or implied discretion left to him; (6) To keep his client informed to such an extent as may be reasonably necessary, according to the same criteria." - See paragraph 105.

Barristers and Solicitors - Topic 2542

Negligence - Elements of negligent conduct - Error of judgment v. negligence - The Alberta Court of Queen's Bench stated that "a distinction is drawn between an error of judgment and actionable negligence. A lawyer need not be infallible in the representation of a client" - The court referred to the following statement: "in accepting the reasonably competent lawyer standard, I do not detract from the often repeated caution against characterizing errors in judgment as negligence. Lawyers make many decisions in the course of a lawsuit. Those decisions require the exercise of judgment. Inevitably, some of those decisions, when reviewed with the benefit of hindsight, will be seen as unwise. The reasonable lawyer standard does not call for an assessment of the sagacity of the decision made by the lawyer. The standard demands that the lawyer bring to the exercise of his or her judgment the effort, knowledge and insight of a reasonably competent lawyer. If the lawyer has met that standard, his or her duty to the client is discharged, even if the decision proves to be disastrous." - See paragraph 112.

Barristers and Solicitors - Topic 2587

Negligence - Particular negligent acts - Settlements - The Alberta Court of Queen's Bench stated that "while the factors to be considered in determining whether a lawyer has met the standard of reasonableness in advising a client regarding settlement will depend on the specific facts of each case, it would be imprudent for a lawyer to accept the first offer of settlement which is made or discuss or recommend settlement at the early stages of a proceeding when little is known about the evidence or the position that will be taken by the opposing party" - See paragraph 336.

Barristers and Solicitors - Topic 2587

Negligence - Particular negligent acts - Settlements - The plaintiff in a motor vehicle negligence action settled his claim for $388,000 plus costs and witness cancellation fees, which totalled $473,321.68 - The plaintiff alleged that his lawyers were negligent in advising him to settle for that amount - The Alberta Court of Queen's Bench dismissed the claim - The lawyers had a genuine and reasonable belief that the plaintiff faced serious, substantial and significant litigation risks as assessed on the eve of the trial - There was admissible evidence that seriously questioned the plaintiff's credibility as to the extent of his injuries and his employability - The court held that the lawyers' "conduct in assessing and advising upon the settlement of [the plaintiff's] claim met the standard of care of a reasonably prudent lawyer in the circumstances. ... the settlement was well within the range that could have been expected. ... The settlement was authorized, reasonable and in the best interests of the client." - See paragraphs 314 to 365, 406.

Barristers and Solicitors - Topic 2600.4

Negligence - Particular negligent acts - Reviewing contents of transferred file - The plaintiff was injured in a 1999 motor vehicle accident caused by the other driver's negligence - The only issue was damages - A critical issue was the plaintiff's future employability - The plaintiff's first set of lawyers (Litwiniuk defendants) commenced the action, gathered medical and supporting evidence and attended at a judicial dispute settlement (JDR) conference - An expert had been obtained to do a vocational assessment - Since the expert reported that the data showed that the plaintiff was "faking" or exaggerating his injuries, possibly to maximize financial gain, a report was not requested - At the JDR conference, information was disclosed (fee for the vocational assessment included in the submitted bill of costs) that subsequently led the driver to request the assessment data - The plaintiff retained a new set of lawyers (McLeod defendants) after the JDR conference - On reviewing the transferred file, the McLeod defendants did not appreciate the significance of the disclosed information - The chambers judge allowed the plaintiff's application for disclosure of the assessment data - The plaintiff claimed that the McLeod defendants' oversight constituted negligence - The Alberta Court of Queen's Bench held that the plaintiff failed to prove that the acknowledged oversight constituted negligence - Alternatively, had the oversight constituted negligence, the plaintiff failed to prove that any loss resulted - Further in the alternative, had a loss been established, some or all of the responsibility for the oversight and loss would have been attributed to the plaintiff, who failed to disclose the existence of the vocational assessment to the McLeod defendants - See paragraphs 151 to 196.

Barristers and Solicitors - Topic 2600.5

Negligence - Particular negligent acts - Re research and preparation - The plaintiff was injured in a 1999 motor vehicle accident caused by the other driver's negligence - The only issue was damages - A critical issue was the plaintiff's future employability - The plaintiff's first set of lawyers (Litwiniuk defendants) commenced the action, gathered medical and supporting evidence and attended at a judicial dispute settlement (JDR) conference - An expert had been obtained to do a vocational assessment - Since the expert reported that the data showed that the plaintiff was "faking" or exaggerating his injuries, possibly to maximize financial gain, a report was not requested - At the JDR conference, information was disclosed (fee for the vocational assessment included in the submitted bill of costs) that subsequently led the driver to request the assessment data - The plaintiff retained a new set of lawyers (McLeod defendants) after the JDR conference - The chambers judge allowed the plaintiff's rule 217 application for disclosure - The plaintiff claimed that the McLeod defendants were negligent in failing to properly research, prepare for and argue the chambers application - Had they done so, the plaintiff argued that disclosure would not have been ordered - The Alberta Court of Queen's Bench held that the McLeod defendants were not negligent in how they argued the application of rule 217 - The materials placed before the Chambers judge, both oral and written, were sufficient to raise the salient issues and arguments - The McLeod defendants were negligent in preparing for the application because of their oversight in not noticing and appreciating the significance of the vocational assessment fee claim when they took over the file - However, the negligence resulted in no loss to the plaintiff, because on the court's interpretation of rule 217 production would have been ordered in any event - See paragraphs 197 to 307.

Barristers and Solicitors - Topic 2600.5

Negligence - Particular negligent acts - Re research and preparation - The Alberta Court of Queen's Bench stated that "the reasonably competent lawyer is not required to know and retain in memory all of the law regarding a particular legal issue. Rather, a lawyer is required to have sufficient knowledge of the fundamental principles related to the legal services being provided to alert him or her to further points to be researched" - See paragraph 262.

Barristers and Solicitors - Topic 2965

Negligence - Evidence and proof - Expert evidence - A plaintiff claimed that a lawyer was negligent respecting certain acts or omissions, but did not present any expert evidence respecting what a reasonable prudent lawyer would have done - The Alberta Court of Queen's Bench stated that although expert evidence was not the only source of relevant information, a plaintiff who failed to tender expert evidence on the standard of care ran a serious risk - The court stated that "the court should be restrained and cautious about setting the standard of care absent such evidence. Despite this, I have determined that, while open to me, it would not be appropriate to dismiss all negligence-based arguments simply on the basis that the plaintiff has failed to present expert evidence on the standard of care. Instead, I use these general principles and observations in respect of each specific allegation raised." - See paragraphs 175 to 176.

Practice - Topic 4781

Discovery - Physical or psychological examination - Production of medical reports - Rule 217(7)(b) provided that the party who caused an examination authorized by rule 217 to be made was "upon request, entitled to receive promptly from the party examined a like report of every examination previously or thereafter made of the physical or mental condition of that party resulting from the injuries sustained." - The plaintiff in a motor vehicle negligence action underwent an expert vocational assessment by a neuro-psychologist - The expert verbally advised the plaintiff's lawyer that the data showed that the plaintiff was "faking" or exaggerating his injuries, possibly to maximize financial gain - The plaintiff did not request a written report and did not plan to call the expert as a witness - Due to the inclusion of the expert's fee as a disbursement in the bill of costs submitted at a judicial dispute resolution conference, the defendant learned that an assessment had been done and applied for disclosure - The chambers judge granted disclosure under rule 217(7) - The Alberta Court of Queen's Bench, in a professional negligence action against the plaintiff's lawyers, held that the data was a "like report" producible under rule 217(7), even though the expert was a "health care professional" rather than a "medical practitioner" - See paragraphs 291 to 296.

Practice - Topic 5269.2

Trials - General - Judicial or alternate dispute resolution - Confidentiality - The Alberta Court of Queen's Bench stated that "there is no doubt that the JDR process is confidential. Anything that is said at the JDR conference cannot be used for any other purpose in the subsequent litigation. ... The Guidelines [for Judicial Dispute Resolution] recognize that settlement negotiations are confidential and privileged and that communications with a view to settlement are inadmissible in any subsequent proceedings. ... JDR judges are prohibited from hearing subsequent trials or applications regarding the issues dealt with at the JDR, without the consent of the parties. The JDR judge is prohibited from speaking about the JDR with the trial judge if the suit goes to trial. The JDR judge is effectively disqualified from any non-JDR involvement in the case, especially the trial. The JDR judge is not compellable as a witness. After the JDR, all briefs, submissions, notes and papers in the possession of the JDR judge are to be destroyed. These rules are intended to protect each party's position from being compromised by being divulged to a subsequent trial judge, should the JDR process fail to result in a settlement and the matter proceed to trial. ... The JDR process is confidential in order to encourage candour. By allowing the litigants to freely communicate, without concern that what they say or what the judge says at the JDR will be communicated outside of those proceedings, the litigants are encouraged to work towards a fair settlement of the issues between them. ... The case law extends confidentiality to documents tendered at the JDR, like the bill of costs in the case at bar, to induce settlement." - See paragraphs 134, 136, 142 to 143.

Practice - Topic 5269.2

Trials - General - Judicial or alternate dispute resolution - Confidentiality - In a motor vehicle negligence action, where only damages were in issue, the plaintiff's lawyer retained a neuro-psychologist to perform a vocational assessment - The expert orally reported that the plaintiff failed miserably and appeared to be faking the over-exaggerating the seriousness of his injuries - No written report was sought and the expert was not to be called as a witness - The parties engaged in judicial dispute resolution (JDR) in an attempt to settle the matter without going to trial - The cost of the vocational assessment was submitted in the bill of costs at the JDR proceeding - The plaintiff claimed that his lawyer was negligent in disclosing this confidential information, which effectively forced him to settle for an improvident amount once the defendant obtained court-ordered disclosure - The Alberta Court of Queen's Bench held that the lawyer "was correct, and not negligent, in his approach or conduct. The bill of costs submitted at the JDR was implicitly submitted on a without prejudice basis, was cloaked in confidentiality, and could not be used to the prejudice of his client in the action. It is also likely that the bill of costs was protected by settlement privilege at common law. ... [The lawyer] was not negligent in including the [vocational assessment fee] as a disbursement in the bill of costs submitted at the JDR." - See paragraphs 145, 146.

Cases Noticed:

Workers' Compensation Board (Alta.) v. Riggins et al. (1992), 131 A.R. 205; 25 W.A.C. 205 (C.A.), refd to. [para. 4].

Fisher v. Knibbe (1992), 125 A.R. 219; 14 W.A.C. 219 (C.A.), refd to. [para. 4].

Pasko v. Willis (2004), 357 A.R. 215; 334 W.A.C. 215; 2004 ABCA 395, refd to. [para. 4].

Kelly v. Lundgard (2001), 286 A.R. 1; 253 W.A.C. 1; 2001 ABCA 185, refd to. [para. 4].

Tiffin Holdings Ltd. v. Millican (1965), 49 D.L.R.(2d) 216 (Alta. S.C.), revd. (1965), 53 D.L.R.(2d) 674 (C.A.), affd. [1967] S.C.R. 183; 60 D.L.R.(2d) 469, refd to. [para. 105].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 108].

Spence v. Bell (1982), 39 A.R. 239 (C.A.), refd to. [para. 108].

Henderson et al. v. Hagblom et al. (2003), 232 Sask.R. 81; 294 W.A.C. 81; 2003 SKCA 40, leave to appeal refused (2004), 327 N.R. 397; 257 Sask.R. 316; 342 W.A.C. 316 (S.C.C.), refd to. [para. 109].

G.F. et al. v. Reardon (2005), 194 O.A.C. 201; 74 O.R.(3d) 688 (C.A.), refd to. [para. 110].

Ristimaki v. Cooper (2006), 210 O.A.C. 11 (C.A.), refd to. [para. 111].

McClenahan v. Clarke et al., [2004] O.T.C. 82 (Sup. Ct.), refd to. [para. 112].

Hodgkinson v. Simms et al., [1994] 3 S.C.R. 377; 171 N.R. 245; 49 B.C.A.C. 1; 80 W.A.C. 1, refd to. [para. 116].

Petrogas Processing Ltd. v. Westcoast Transmission Co. (1990), 105 A.R. 384 (Q.B.), refd to. [para. 126].

Nova, An Alberta Corp. v. Guelph Engineering Co. et al. (1988), 89 A.R. 363 (Q.B.), affd. (1989), 100 A.R. 241, additional reasons (1990), 102 A.R. 350 (C.A.), leave to appeal refused (1990), 110 N.R. 319; 110 A.R. 79 (S.C.C.), refd to. [para. 127].

Davidson v. Patten et al. (2005), 381 A.R. 6; 2005 ABQB 521, affd. (2008), 425 A.R. 186; 418 W.A.C. 186; 2008 ABCA 65, refd to. [para. 127].

MacCabe v. Board of Education of Westlock (Roman Catholic Separate) School District No. 110 et al. (1999), 243 A.R. 280; 1999 ABQB 666, refd to. [para. 128].

Morrissette v. Smith (1990), 39 C.P.C.(2d) 30 (B.C.S.C.), refd to. [para. 128].

L.N. v. S.M. (2007), 412 A.R. 232; 404 W.A.C. 232; 2007 ABCA 258, refd to. [para. 139].

Varga v. Sihvon et al. (2001), 288 A.R. 1; 2001 ABQB 276, refd to. [para. 142].

Abernethy (J.W.) Management & Consulting Ltd. et al. v. 705589 Alberta Ltd. et al. (2005), 367 A.R. 38; 346 W.A.C. 38; 2005 ABCA 103, refd to. [para. 143].

Morris et al. v. Jackson et al. (1984), 34 R.P.R. 269 (Ont. H.C.), refd to. [para. 168].

MacCulloch v. McInnes Cooper & Robertson (2001), 189 N.S.R.(2d) 324; 590 A.P.R. 324; 2001 NSCA 8, refd to. [para. 168].

Rivait v. Monforton, [2007] O.A.C. Uned. 489; 2007 ONCA 829, affing. [2005] O.T.C. 951 (Sup. Ct.), refd to. [para. 170].

Barlot et al. v. Dudelzak et al. (2005), 390 A.R. 26; 2005 ABQB 793, refd to. [para. 171].

Gauvreau et al. v. Paci, [1996] O.J. No. 2396 (C.A.), leave to appeal refused (1997), 220 N.R. 400; 107 O.A.C. 159 (S.C.C.), refd to. [para. 172].

Zink v. Adrian (2005), 208 B.C.A.C. 191; 344 W.A.C. 191; 37 B.C.L.R.(4th) 389; 2005 BCCA 93, refd to. [para. 173].

Petersen v. Shepard (1985), 58 A.R. 240 (Q.B.), refd to. [para. 214].

Kachkar v. Attwell (1990), 106 A.R. 130 (Q.B.), refd to. [para. 218].

Andre v. Wiebe (2000), 284 A.R. 378; 2000 ABQB 946, refd to. [para. 218].

Jaworski v. Wilkinson (1966), 60 D.L.R.(2d) 377 (Man. Q.B.), refd to. [para. 218].

Lyons v. Khamsanevongsy (1997), 207 A.R. 385 (Q.B.), refd to. [para. 220].

Stuive v. Provident Life and Accident Insurance Co. et al. (2005), 378 A.R. 163; 2005 ABQB 51, refd to. [para. 220].

Taub v. Noble, [1965] 1 O.R. 600 (S.C.), refd to. [para. 221].

Blackburn et al. v. Kochs Trucking Inc. et al. (1988), 86 A.R. 321 (Q.B.), refd to. [para. 223].

Carifelle et al. v. Griep (1989), 35 C.P.C.(2d) 15 (Alta. C.A.), refd to. [para. 223].

Bilinski v. Wangerin (1993), 147 A.R. 211 (Q.B.), refd to. [para. 223].

Tat v. Ellis et al. (1994), 155 A.R. 390; 73 W.A.C. 390 (C.A.), refd to. [para. 223].

Flores and Cruz v. Sabiston (1998), 219 A.R. 73; 179 W.A.C. 73; 1998 ABCA 187, refd to. [para. 223].

Babyn et al. v. Patel (1998), 239 A.R. 377; 1998 ABQB 1068, refd to. [para. 223].

Stirling v. Mangembulude et al. (2000), 272 A.R. 184 (Q.B.), refd to. [para. 223].

Parenteau v. Courtesy Corner Tourist Service Ltd. (1993), 146 A.R. 241 (Q.B.), refd to. [para. 225].

Sichkaryk v. Futto (1999), 247 A.R. 169 (Q.B.), refd to. [para. 226].

Vergara v. Stuart-Como et al. (1995), 166 A.R. 306 (Q.B. Master), refd to. [para. 226].

Baker v. Yacyshen (1999), 253 A.R. 373; 1999 ABQB 844, refd to. [para. 228].

Naistus v. Huculak (1998), 221 A.R. 52; 1998 ABQB 263, refd to. [para. 232].

Lehner v. Maritime Life Assurance Co. (2006), 399 A.R. 371; 2006 ABQB 346, refd to. [para. 238].

Radiuk v. Halabi, [1994] A.J. No. 1298 (Q.B.), refd to. [para. 243].

Jacobson v. Sveen et al. (2000), 262 A.R. 367; 2000 ABQB 215, refd to. [para. 244].

Jobes v. Zolinski et al. (1999), 134 Man.R.(2d) 302; 193 W.A.C. 302 (C.A.), refd to. [para. 261].

Chernetz Estate et al. v. Eagle Copters Ltd. et al. (2005), 385 A.R. 238; 2005 ABQB 712, refd to. [para. 272].

Deloitte & Touche LLP v. Institute of Chartered Accountants (Alta.) (2008), 433 A.R. 41; 429 W.A.C. 41; 2008 ABCA 162, refd to. [para. 272].

Clark v. Rockyview No. 44 (Municipal District) et al. (1995), 171 A.R. 158 (Q.B.), refd to. [para. 272].

Pinder v. Sproule et al. (2003), 333 A.R. 132; 2003 ABQB 330, refd to. [para. 293].

Vokes v. Backer (1996), 194 A.R. 343 (Q.B.), refd to. [para. 293].

Khanna v. Rakhee, [2007] A.R. Uned. 795; 2007 ABQB 141, refd to. [para. 294].

Engman v. Cook (2009), 478 A.R. 145; 2009 ABQB 427, refd to. [para. 306].

Browne v. Dunn (1893), 6 R. 67 (H.L.), refd to. [para. 310].

Lapp v. Lapp (2008), 425 A.R. 232; 418 W.A.C. 232; 2008 ABCA 15, refd to. [para. 343].

Lastiwka et al. v. Bray et al. (2006), 405 A.R. 392; 2006 ABQB 935, dist. [para. 345].

Petryga v. Petryga, [2005] A.R. Uned. 503; 2005 ABQB 467, refd to. [para. 346].

Kosko v. Bijimine, 2006 QCCA 671, refd to. [para. 347].

Reid v. Graybriar Industries Ltd. (2006), 406 A.R. 252; 2006 ABQB 519, refd to. [para. 374].

International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57, refd to. [para. 382].

3464920 Canada Inc. v. Strother et al., [2007] 2 S.C.R. 177; 363 N.R. 123; 241 B.C.A.C. 108; 399 W.A.C. 108; 2007 SCC 24, refd to. [para. 383].

Perez v. Galambos et al. (2009), 394 N.R. 209; 276 B.C.A.C. 272; 468 W.A.C. 272; 2009 SCC 48, refd to. [para. 384].

Triple 3 Holdings Inc. et al. v. Jan et al. (2006), 214 O.A.C. 301; 82 O.R.(3d) 430 (C.A.), refd to. [para. 390].

Colborne Capital Corp. et al. v. 542775 Alberta Ltd. et al. (1995), 171 A.R. 241 (Q.B.), varied (1999), 228 A.R. 201; 188 W.A.C. 201; 1999 ABCA 14, leave to appeal granted (1999), 249 N.R. 195; 266 A.R. 355; 228 W.A.C. 355 (S.C.C.), refd to. [para. 395].

MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd., [1990] 3 S.C.R. 1235; 121 N.R. 1; 70 Man.R.(2d) 241, refd to. [para. 396].

Robinson v. Williams Estate et al. (2007), 401 A.R. 262; 391 W.A.C. 262; 2007 ABCA 19, refd to. [para. 413].

Kitchen v. Royal Air Forces Association, [1958] 2 All E.R. 241 (C.A.), refd to. [para. 414].

Goertzen v. Sandstra et al., [2005] A.R. Uned. 714; 2005 ABQB 623, refd to. [para. 473].

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301, refd to. [para. 473].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 501].

Parypa et al. v. Wickware et al. (1999), 119 B.C.A.C. 32; 194 W.A.C. 32; 1999 BCCA 88, refd to. [para. 501].

Rose v. Mitton (1994), 128 N.S.R.(2d) 99; 359 A.P.R. 99 (C.A.), refd to. [para. 501].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 504].

Wittmeier v. Scholes (1999), 239 A.R. 42; 1999 ABQB 4, refd to. [para. 506].

Silvaniuk v. Stevens (1999), 244 A.R. 75; 209 W.A.C. 75; 1999 ABCA 191, refd to. [para. 506].

Olson v. General Accident Assurance (2001), 281 A.R. 327; 248 W.A.C. 327; 2001 ABCA 91, refd to. [para. 506].

Wade v. Baxter (2001), 302 A.R. 1; 2001 ABQB 812, refd to. [para. 506].

Jensen v. Thompson et al. (2002), 328 A.R. 354; 2002 ABQB 1066, refd to. [para. 506].

Dushynski v. Rumsey (2001), 295 A.R. 309; 2001 ABQB 513, varied (2003), 327 A.R. 373; 296 W.A.C. 373; 2004 ABCA 164, refd to. [para. 506].

Dyck et al. v. Wilkinson et al., [2004] A.R. Uned. 657; 2004 ABQB 731, refd to. [para. 506].

Thibert et al. v. Zaw-Tun et al., [2006] A.R. Uned. 375; 2006 ABQB 423, refd to. [para. 506].

Seich v. Tobin, [2007] A.R. Uned. 410; 2007 ABQB 492, refd to. [para. 506].

Prosser v. 20 Vic Management Inc., 2009 ABQB 177, refd to. [para. 506].

Russell v. Turcott, [2009] A.R. Uned. 184; 2009 ABQB 19, additional reasons [2009] A.R. Uned. 153; 2009 ABQB 236, refd to. [para. 506].

Norminton v. B & B Electronics Ltd. et al., [2009] A.R. Uned. 91; 2009 ABQB 18, refd to. [para. 506].

M.B. v. British Columbia, [2003] 2 S.C.R. 477; 309 N.R. 375; 187 B.C.A.C. 161; 307 W.A.C. 161; 2003 SCC 53, refd to. [para. 520].

Smith v. Knudsen (2004), 206 B.C.A.C. 198; 338 W.A.C. 198; 2004 BCCA 613; 2005 BCCA 347, refd to. [para. 521].

Sidorsky v. Lowry (2009), 463 A.R. 153; 2009 ABQB 68, additional reasons (2009), 463 A.R. 183; 2009 ABQB 197, refd to. [para. 521].

Palpal-Latoc v. Berstad, [2004] A.R. Uned. 36; 2004 ABCA 92, additional reasons [2004] A.R. Uned. 87; 2004 ABCA 212, leave to appeal refused (2004), 333 N.R. 193; 367 A.R. 119; 346 W.A.C. 119 (S.C.C.), refd to. [para. 521].

Byron v. Larson (2004), 357 A.R. 201; 334 W.A.C. 201; 2004 ABCA 398, refd to. [para. 521].

Lowe v. Larue (2000), 250 A.R. 220; 213 W.A.C. 220; 2000 ABCA 28, refd to. [para. 521].

Mulholland et al. v. Riley Estate et al. (1995), 63 B.C.A.C. 145; 104 W.A.C. 145; 12 B.C.L.R.(3d) 248 (C.A.), refd to. [para. 522].

Ryder v. Paquette, [1995] B.C.J. No. 644 (C.A.), refd to. [para. 522].

Cowles et al. v. Balac et al., [2005] O.T.C. 52, additional reasons [2005] O.T.C. 796; 36 C.C.L.T.(3d) 209 (Sup. Ct.), affd. (2006), 216 O.A.C. 268; 83 O.R.(3d) 660, additional reasons [2006] O.A.C. Uned. 561; 43 C.C.L.T.(3d) 208 (C.A.), leave to appeal refused (2007), 367 N.R. 400; 233 O.A.C. 399 (S.C.C.), refd to. [para. 523].

Fobel v. Dean and MacDonald (1991), 93 Sask.R. 103; 4 W.A.C. 103 (C.A.), leave to appeal refused [1992] 1 S.C.R. vii; 138 N.R. 404; 97 Sask.R. 240; 12 W.A.C. 240, refd to. [para. 556].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161, refd to. [para. 567].

Alnashmi v. Arabi, [2000] A.R. Uned. 207; 2000 ABQB 320, refd to. [para. 568].

Simmons v. Koenig, [2001] A.R. Uned. 68; 2001 ABQB 152, refd to. [para. 568].

Royal Bank of Canada v. Got (W.) & Associates Electric Ltd. et al. (1993), 142 A.R. 188 (Q.B.), refd to. [para. 569].

Statutes Noticed:

Rules   of  Court  (Alta.),   rule 217(7),  rule 217(8), rule 217(9) [para. 209].

Authors and Works Noticed:

Agrios, John A., A Handbook on Dispute Resolution for Canadian Judges, Version 2.9 (2005 Update), p. 12 [para. 137].

Alberta, Law Reform Institute, Consultation Memorandum No. 12.3 for the Alberta Rules of Court Project, Expert Evidence and "Independent" Medical Examinations, online: <http://www.law.ualberta.ca/alri/docs/cm12-3.pdf>, generally [para. 293].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), para. 14.207 [para. 145].

Counsel:

J. Poole, for the plaintiff;

I. Derer, Q.C., for the defendants.

This action was heard from September 14 to October 9, 2009, before Martin, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on February 2, 2010.