Christensen et al. v. Proprietary Industries Inc. et al., 2002 ABQB 97

• Judge: Watson, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 23, 2002
• Citations: 2002 ABQB 97;(2002), 309 A.R. 201 (QB)

Christensen v. Proprietary Ind. Inc. (2002), 309 A.R. 201 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. FE.109

Ben Christensen, Providence Pre-Built Homes Ltd. and 695086 Alberta Ltd. (plaintiffs/respondents) v. Proprietary Industries Inc., Peter J. Workum and James K. Norrie (defendants/applicants)

(Action No. 0103 16137; 2002 ABQB 97)

Indexed As: Christensen et al. v. Proprietary Industries Inc. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Watson, J.

January 29, 2002.

Summary:

The plaintiffs claimed that they had executed an agreement whereby Proprietary Industries agreed to purchase shares in United Industrial Services. The plaintiffs sued Proprietary, alleging breach of contract. They also sued Norrie and Workum, alleging that they induced the breach of contract. The plaintiffs moved for an order that the action be tried by summary trial. The defendants moved for an order for a change of venue of the trial from Edmonton to Calgary.

The Alberta Court of Queen's Bench dismissed the motion for summary trial. The court allowed the motion for a change of venue in part.

Practice - Topic 5221

Trials - General - Venue or place of trial - Application for change of venue - The plaintiffs sued the defendants for breach of contract and inducing breach of contract - The defendants moved to change the trial venue from Edmonton to Calgary - The individual plaintiff's primary residence was in Edmonton - The Alberta Court of Queen's Bench held that there were more links to Calgary than Edmonton - The substantive nexus between Edmonton and the action concerned initial conversations - However, other meetings were in Red Deer, on the phone or in Calgary - More witnesses were likely to be called from the Calgary area - The court ordered that the trial be transferred to Calgary when the trial date was ready to be scheduled - However, pre-trial matters were to continue in Edmonton, although discovery of Calgary witnesses would occur in Calgary - Travelling to Calgary for the trial would not endanger the individual plaintiff's health - See paragraphs 59 to 72.

Practice - Topic 5221

Trials - General - Venue or place of trial - Application for change of venue - The plaintiffs sued the defendants for breach of contract and inducing breach of contract - The defendants moved to change the trial venue from Edmonton to Calgary - The Alberta Court of Queen's Bench noted that the test was the balance of convenience to the parties and the witnesses - The onus of proof in showing that balance of convenience was on the party applying for the change - The court discussed some of the considerations in a change of venue application - See paragraphs 60 to 63.

Practice - Topic 5255.4

Trials - General - Summary trials - Availability of - The plaintiffs claimed that they had executed an agreement whereby Proprietary Industries agreed to purchase shares in United Industrial Services - The plaintiffs sued Proprietary, alleging breach of contract - They also sued Norrie and Workum, alleging that they induced the breach of contract - The plaintiffs moved for summary trial, proposing a hybrid trial consisting of documents, examinations, affidavits and viva voce evidence - The Alberta Court of Queen's Bench dismissed the motion - The plaintiff failed to show that the proposed hybrid trial would be more efficient - There were potentially many complex issues to be determined - It was not possible from the pleadings or affidavits on file to stipulate a determinative set of questions for which a summary trial was the preferable course - Further, the court was not persuaded that there was a reasonable basis for dispensing with cross-examination - See paragraphs 32 to 58

Practice - Topic 5255.8

Trials - General - Summary trials - Procedure - The Alberta Court of Queen's Bench stated that the ability to stipulate, in advance, the objectives of a trial, the options for adjudication, was a feature to be encouraged for summary trials - Such an arrangement would enhance the chance that all parties would agree with the procedure and not feel procedurally short-changed - Further, the process of developing such an arrangement with the participation of the parties seemed more likely to explore and remove unnecessary adjudicative complications and potential impediments on a fair basis - The court did not suggest that a judge who authorized a summary trial process had to always be able to have the objectives of the trial and the options for adjudication itemized precisely in advance - However, the utility, reliability and fairness of a summary trial would be well served by such an arrangement - See paragraphs 49 to 53.

Cases Noticed:

Compton Petroleum Corp. v. Alberta Power Ltd. (1999), 242 A.R. 3 (Q.B.), refd to. [para. 33, footnote 1].

Alberta (Treasury Branches) v. Hammond (1999), 249 A.R. 295 (Q.B.), refd to. [para. 36, footnote 2].

Wiredu-Danquah v. Leck (1999), 258 A.R. 1 (Q.B.), refd to. [para. 36, footnote 3].

U.B.'s Autobody Ltd. et al. v. Reid's Welding (1981) Inc. et al. (1999), 258 A.R. 325 (Q.B.), refd to. [para. 38, footnote 3].

Miura v. Miura (1992), 12 B.C.A.C. 278; 23 W.A.C. 278; 40 R.F.L.(3d) 43 (C.A.), refd to. [para. 38, footnote 5].

Inspiration Management Ltd. v. McDermid St. Lawrence (1989), 36 B.C.L.R.(2d) 202 (C.A.), refd to. [para. 39, footnote 6].

Adams et al. v. Norcen Energy Resources Ltd. (1999), 248 A.R. 120; 72 Alta. L.R.(3d) 234 (Q.B.), refd to. [para. 39, footnote 7].

590988 Alberta Ltd. et al. v. 728699 Alberta Ltd. et al., [1999] A.R. Uned. 222; 30 C.P.C.(4th) 201 (Q.B.), refd to. [para. 41, footnote 8].

Walker v. Walker (2001), 281 A.R. 138; 248 W.A.C. 138 (C.A.), refd to. [para. 42, footnote 9].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321; 7 C.R.(4th) 117; 83 D.L.R.(4th) 193; 6 C.R.R.(2d) 35, affing. (1987), 20 O.A.C. 345; 61 O.R.(2d) 290; 37 C.C.C.(3d) 53; 58 C.R.(3d) 289; 35 C.R.R. 300 (C.A.), refd to. [para. 56, footnote 10].

R. v. Adams (J.R.), [1995] 4 S.C.R. 707; 190 N.R. 161; 178 A.R. 161; 110 W.A.C. 161; 103 C.C.C.(3d) 262; 44 C.R.(4th) 195; 131 D.L.R.(4th) 1, refd to. [para. 58, footnote 11].

Suriyakumaran v. Freedom Ford Sales Ltd. (1990), 106 A.R. 81; 40 C.P.C.(2d) 202 (Q.B.), refd to. [para. 60, footnote 12].

Anderson (F.T.) & Associates Insurance Ltd. v. Kent, [1981] A.U.D. 94 (C.A.), refd to. [para. 60, footnote 13].

Blue River Heavy Hauling Ltd. v. Cal-Van Auctioneering Ltd. (1987), 87 A.R. 67 (Q.B. Master), refd to. [para. 60, footnote 14].

Holloway v. Ehman et al. (1999), 240 A.R. 8 (Q.B.M.), refd to. [para. 60, footnote 15].

Oliver v. Oliver, [1997] A.R. Uned. 442 (Q.B.), refd to. [para. 60, footnote 16].

Montreal Trust Co. v. 385070 Alberta Inc. (1993), 140 A.R. 101 (Q.B. Master), refd to. [para. 62, footnote 18].

Van Horn v. Coal Valley Systems Ltd. (1987), 78 A.R. 203 (Q.B. Master), refd to. [para. 62, footnote 19].

Alberta Home Mortgage Corp. v. Reddick and Reddick (1982), 48 A.R. 65; 20 Alta. L.R.(2d) 398 (Q.B. Master), refd to. [para. 63, footnote 21].

Royal Trust Corp. of Canada v. Fillo (1981), 34 A.R. 174; 17 Alta. L.R.(2d) 283; 25 C.P.C. 61 (Q.B.), refd to. [para. 63, footnote 22].

Wade Investments Ltd. v. Hat Travel Ltd., Desharnais, Amman, Semrau and Semrau (1979), 21 A.R. 454 (Q.B.), refd to. [para. 63, footnote 23].

R. v. Libman, [1985] 2 S.C.R. 178; 62 N.R. 161; 21 C.C.C.(3d) 206; 21 D.L.R.(4th) 174; 12 O.A.C. 33, affing. (1984) 8 C.C.C.(3d) 351 (C.A.), affing. (1983), 6 C.C.C.(3d) 284 (Ont. H.C.), refd to. [para. 64, footnote 24].

Fountain Tire (Valleyview) Ltd. v. Elm Oilpatch Rentals Ltd. (1998), 221 A.R. 55 (Q.B.), refd to. [para. 65, footnote 25].

Schafer v. Lenhardt et al., [1998] A.R. Uned. 43 (C.A.), refd to. [para. 65, footnote 26].

Authors and Works Noticed:

Stevenson, W.A., and Côté, J.E., Civil Procedure Guide, generally [para. 59].

Counsel:

Andrew P. Geisterfer (River City Law Group), for the plaintiffs/applicants;

John Gruber (Thackray Burgess), for the defendants/respondents, Proprietary Industries Inc., and Workum;

John K. Phillips (Heenan Blaikie), for the defendant/respondent, Norrie (represented on the motions by counsel for the other defendants).

These motions were heard on January 23, 2002, by Watson, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on January 29, 2002.