Gallant v. Farries,

• Judge: Côté, McFadyen and Martin, JJ.A.
• Neutral Citation: 2012 ABCA 98
• Date: 05 March 2012
• Court: Court of Appeal (Alberta)

Gallant v. Farries (2012), 522 A.R. 13; 544 W.A.C. 13 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. AP.037

Shawn Gregory Gallant by his Guardians Sharon Gallant and Paul Gallant, Sharon Gallant and Paul Gallant (respondents/plaintiffs) v. Dr. Alayne M. Farries (appellant/defendant)

(1101-0294-AC; 2012 ABCA 98)

Indexed As: Gallant v. Farries

Alberta Court of Appeal

Côté, McFadyen and Martin, JJ.A.

April 5, 2012.

Summary:

The plaintiffs applied to sever the trial of liability and damages.

The Alberta Court of Queen's Bench granted the application. The defendant appealed.

The Alberta Court of Appeal allowed the appeal.

Practice - Topic 5

General principles and definitions - Nature and interpretation of practice rules (incl. practice memoranda or notes) - [See first and second Practice - Topic 5204 ].

Practice - Topic 5204

Trials - General - Severance of issues or parties - General - The Alberta Court of Appeal rejected the suggestion that rule 1.2 of the new Rules had effected a sea change, such that the prior case law on splitting off issues for separate trials could no longer apply - Alberta's new Rules merely recited what everyone took for granted under the prior Rules; that speed and economy are important objectives - That statement of the tradition was no excuse for discarding all or even big parts of Alberta precedent - The purposes provisions could provide some guidelines for interpretation, but they could not be used by individual judges to override provisions of specific Rules on a case-by-case basis - See paragraphs 8 to 24.

Practice - Topic 5204

Trials - General - Severance of issues or parties - General - The Alberta Court of Appeal held that general rule 1.2 in the new Rules of Court could not supersede clear criteria on splitting trials in rule 7.1 - The court stated that "If read mechanically and literally, R 7.1 on splits would offer no criteria, only aims. But read in the modern purposive fashion, it means that a trial split must be one likely to achieve those aims which R 7.1 lists, not to thwart them. And those same aims are just what the pre-2010 case law on splits requires. My rejection of an interpretation of R 7.1 based solely on its precise words follows a rule which the Supreme Court of Canada has adopted in upwards of 60 recent decisions. ... Besides the exact wording of the legislation, one must also interpret it by weighing the context of its words, their history, the evils sought to be redressed, the aims of the legislation, and the scheme adopted by it to address them." - See paragraphs 25 and 26.

Practice - Topic 5204

Trials - General - Severance of issues or parties - General - Plaintiffs in a medical negligence case wanted to sever the trial of liability and damages - Their hope was that the second trial on damages would never occur, either because the first trial would find no liability, or because the case might be settled if the judge did find liability - The plaintiffs did not argue lack of funds and inability to afford a full trial and on cross-examination they objected to questions about financial circumstances - There was no evidence of lack of funds - The Alberta Court of Appeal held that, in these circumstances, the chambers judge erred in finding that the plaintiff was of "limited means", in speaking of the family's "financial jeopardy", and in then relying upon those supposed facts to support his decision - Of more concern, he also made a finding about the plaintiff's relative means vis-à-vis the defendant doctor when there was no evidence about the defendant's means - No legal authority was given for hindering a defendant and helping a plaintiff, all because the plaintiff had less money, nor did the court know of any - Some authority was contrary - Further, a split was not likely to save any time or money and there was a great deal of overlapping evidence - Only a small part of the evidence to prove liability (i.e., to prove that the defendant actually did something wrong) and to prove the amount of resulting loss, would be very separate - See paragraphs 1 to 7 and 31 to 56.

Statutes - Topic 507

Interpretation - General principles - Sensible and not literal interpretation - [See second Practice - Topic 5204 ].

Statutes - Topic 2601

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - General principles - [See second Practice - Topic 5204 ].

Cases Noticed:

Duffy v. Gillespie et al. (1997), 105 O.A.C. 283; 36 O.R.(3d) 443; 155 D.L.R.(4th) 461 (Div. Ct.), refd to. [para. 7].

Envision Edmonton Opportunities Society et al. v. Edmonton (City) (2011), 507 A.R. 275; 44 Alta LR (5th) 1; 2011 ABQB 29, consd. [para. 8].

Windsor Refrigerator Co. v. Branch Nominees, [1961] Ch. 375; [1961] 1 All E.R. 277 (C.A.), refd to. [para. 13].

Ratcliffe v. Nakonechny (2003), 23 Alta. L.R.(4th) 21; 44 C.P.C.(5th) 325; 2003 ABQB 667, refd to. [para. 13].

Canadian Cancer Society v. Bank of Montreal (1966), 57 W.W.R. 182 (Alta. C.A.), refd to. [para. 13].

Canada Mortgage and Housing Corp. v. Canative Housing Corp. et al. (1988), 90 A.R. 303 (Q.B.), refd to. [para. 13].

Esso Resources Canada Ltd. et al. v. Stearns Catalytic Ltd. et al. (1991), 114 A.R. 27 (C.A.), refd to. [para. 13].

Keg River Metis Settlement v. R., [1978] A.U.D. 720 (C.A.), refd to. [para. 13].

O'Brien v. Tyrone Enterprises Ltd. et al. (2012), 275 Man.R.(2d) 106; 538 W.A.C. 106; 2012 MBCA 3, refd to. [para. 13].

Manson Insulation Products Ltd. v. Crossroads C & I Distributors et al., [2011] A.R. Uned. 82; 2011 ABQB 51, refd to. [para. 23].

L.K.D. et al. v. J.B. et al., [2012] A.R. Uned. 22; 2012 ABCA 72, refd to. [para. 23].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 26].

Brick Protection Corp. v. Alberta (Provincial Treasurer) et al. (2011), 510 A.R. 336; 527 W.A.C. 336; 2011 ABCA 214, refd to [para. 26].

Elcano Acceptance Ltd. et al. v. Richmond, Stambler & Mills (1986), 16 O.A.C. 69; 55 O.R.(2d) 56 (C.A.), refd to. [para. 36].

Tanguay et al. v. Vincent, [1999] A.R. Uned. 510; 75 Alta. L.R.(3d) 90; 1999 ABQB 814, refd to. [para. 41].

Moseley v. Spray Lakes Sawmills (1980) Ltd. et al., [1995] 4 W.W.R. 367; 164 A.R. 76 (Q.B.), refd to. [para. 42].

Potash Corp. of Saskatchewan Mining Ltd. v. Allendale Mutual Insurance Co. (1989), 80 Sask.R. 184 (C.A.), refd to. [para. 54].

Goodman v. Viljoen, [2006] O.T.C. 783; 2006 CanLII 30591 (Sup. Ct.), refd to. [para. 54].

Murphy Oil Co. et al. v. Predator Corp. et al. (2002), 319 A.R. 328; 2002 ABQB 629, refd to. [para. 54].

Cathcart v. Sun Life of Canada, [2002] A.R. Uned. 553; 8 Alta. L.R.(4th) 292; 2002 ABQB 827, refd to. [para. 54].

Prevost v. Vetter et al. (2002), 166 B.C.A.C. 56; 271 W.A.C. 56; 210 D.L.R.(4th) 649; 2002 BCCA 202, refd to. [para. 54].

Klassen v. Morden Hospital District No. 21 et al. (1987), 51 Man.R.(2d) 161; 22 C.P.C.(2d) 1 (Q.B.), refd to. [para. 54].

Statutes Noticed:

Rules of Court (Alta.), 2010, rule 1.2(1), rule 1.2(2)(b) [para. 10]; rule 7.1 [para. 25].

Authors and Works Noticed:

Beaulac, S., and Côté, P.-A. (2006), 40 Rev. Jur. Thémis 131, generally [para. 26].

Counsel:

B.E. Devlin, Q.C., for the respondents/plaintiffs;

A.L. Friend, Q.C., and L.A. Goldbach, for the appellant/defendant.

This appeal was heard on March 5, 2012, by Côté, McFadyen and Martin, JJ.A., of the Alberta Court of Appeal. Côté, J.A., delivered the following reserved reasons for judgment for the court on April 5, 2012.