Dewey v. Dawson-Moran et al., (2011) 502 A.R. 74 (CA)

• Judge: Côté, Martin and Slatter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 03, 2011
• Citations: (2011), 502 A.R. 74 (CA);2011 ABCA 45

Dewey v. Dawson-Moran (2011), 502 A.R. 74 (CA);

      517 W.A.C. 74

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. FE.045

Wesley Dewey (appellant/plaintiff) v. Jason Dawson-Moran and Tital Logix Corp. (respondents/defendants)

(1003-0295-AC; 2011 ABCA 45)

Indexed As: Dewey v. Dawson-Moran et al.

Alberta Court of Appeal

Côté, Martin and Slatter, JJ.A.

February 7, 2011.

Summary:

In a motor vehicle personal injury suit, the defendants sought trial by jury. The motion came on for hearing, in chambers. The chambers judge granted the motion. A procedural ground of appeal was that previous counsel for the plaintiff lost without the chambers judge ever hearing his substantive arguments.

The Alberta Court of Appeal allowed the appeal and ordered full new argument of the motion before a different judge. The plaintiff had a fair chance to lead evidence; but as a result of an apparent misunderstanding, he did not give any substantive argument.

Courts - Topic 586

Judges - Duties - Duty to hear evidence and submissions of a litigant - In a motor vehicle personal injury suit, the defendants sought trial by jury - The motion came on for hearing, in chambers - The chambers judge granted the motion - A procedural ground of appeal was that previous counsel for the plaintiff lost without the chambers judge ever hearing his substantive arguments - The Alberta Court of Appeal allowed the appeal and ordered full new argument of the motion before a different judge - The plaintiff had a fair chance to lead evidence; but as a result of an apparent misunderstanding, he did not give any substantive argument - "In Alberta, binding authority is clear. This Court has held that judgment before counsel gets a chance to present argument takes away his or her client's substantive right to present a case fully, and so is very serious; presumptively it compels a new hearing" - In theory, counsel for the plaintiff could have objected as soon as the chambers judge said that he had reached a decision, but that was often impractical.

Practice - Topic 3136

Applications and motions - Motions - Rehearing - [See Courts - Topic 586 ].

Cases Noticed:

Burlock and Trevethick v. Bethune and Bethune, [1985] 5 W.W.R. 288; 44 Sask.R. 79 (C.A.), refd to. [para. 12].

Walker-Fairen v. Bulut et al. (2010), 259 O.A.C. 15; 2010 ONSC 706 (Div. Ct.), refd to. [para. 12].

Karamzadeh v. Pierre, [2010] I.L.R. I-4985; 2010 ONSC 2094 (Div. Ct.), refd to. [para. 12].

Wilson v. Guthrie (1955), 15 W.W.R.(N.S.) 144 (Alta. C.A.), refd to. [para. 13].

R. v. Jahn, [1982] 3 W.W.R. 684; 35 A.R. 583 (C.A.), refd to. [para. 13].

Fraser v. Fraser (1994), 157 A.R. 98; 77 W.A.C. 98 (C.A.), refd to. [para. 13].

R. v. L.L.C., [2003] A.R. Uned. 673; 2003 ABCA 331, refd to. [para. 13].

R. v. Graham (D.G.) (2007), 404 A.R. 300; 394 W.A.C. 300; 2007 ABCA 153, refd to. [para. 14].

Ladney and Garth v. Moore (Township) (1984), 5 O.A.C. 390; 46 O.R.(2d) 586 (Div. Ct.), refd to. [para. 14].

Counsel:

T.C. Brown, for the appellant/plaintiff;

S.L. Miller, Q.C., for the respondents/defendants.

This appeal was heard and decided on February 3, 2011, by Côté, Martin and Slatter, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment and written reasons of the Court of Appeal were filed at Edmonton, Alberta, on February 7, 2011.