Leeds et al. v. Alberta (Minister of the Environment) et al., (1989) 98 A.R. 178 (CA)

• Judge: Harradence, Bracco and Hetherington, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: August 09, 1989
• Citations: (1989), 98 A.R. 178 (CA);1989 ABCA 208;61 DLR (4th) 672;[1989] 6 WWR 559;68 Alta LR (2d) 322;98 AR 178;[1989] AJ No 755 (QL);42 LCR 114;6 RPR (2d) 152

Leeds v. Alta. (1989), 98 A.R. 178 (CA)

MLB headnote and full text

Merran Elizabeth Leeds, Janet Logie Younie, Helen Jessie Clark and Ruth Cameron Drew (respondents) v. Her Majesty The Queen in Right of the Province of Alberta, as Represented by The Minister of the Environment and The Minister of Public Works (appellant)

(Appeal No. 8903-0045-AC)

Indexed As: Leeds et al. v. Alberta (Minister of the Environment) et al.

Alberta Court of Appeal

Harradence, Bracco and Hetherington, JJ.A.

August 9, 1989.

Summary:

The plaintiffs owned land which in 1975 became a restricted development area (R.D.A.). In 1988 the provincial Crown formally expropriated the land and offered $816,000.00 compensation. The plaintiffs commenced an action for damages (compensation) under the Expropriation Act and Proceedings Against the Crown Act. They sought damages for the 13 year land freeze resulting from imposing the R.D.A. and, alternatively, damages on the ground that the imposition of the R.D.A. in 1975 constituted a de facto expropriation. The plaintiffs sought to examine for discovery certain employees and Ministers. The Crown made available only one employee and he refused to answer, on the grounds of relevancy, certain questions at discovery. The plaintiffs applied for an order that the Crown produce the requested employees and Ministers for discovery; that the employee reattend to answer all questions; and that the Crown file a better and further affidavit of documents. The Crown applied to strike that portion of the plaintiffs' statement of claim relating to the R.D.A. and de facto expropriation damage claims and, alternatively, for summary judgment to dismiss those claims.

The Alberta Court of Queen's Bench, in a judgment not reported in this series of reports, dismissed the Crown's application and allowed the plaintiffs' application in part. The court ordered that the requested employees and Ministers appear for discovery and that the Crown provide a further and better affidavit of documents. The court determined which questions the employee must answer. The Crown appealed. The plaintiffs cross-appealed.

The Alberta Court of Appeal held that (1) the Crown's application to strike and for summary judgment were properly dismissed; (2) the requested employees were to be examined; (3) the Crown must produce a further and better affidavit of documents; and (4) the Ministers were not compellable where it was not shown that they were the best informed. The court determined which of the asked questions must be answered.

Practice - Topic 2231

Pleadings - Striking out pleadings - Grounds - False, frivolous or vexatious - In 1975 the plaintiffs' land was designated a restricted development area (R.D.A.) - The land was expropriated in 1988 - The plaintiffs claimed damages under s. 44 of the Expropriation Act because of the land freeze - Alternatively, they claimed the imposition of the R.D.A. constituted a de facto expropriation which was compensable under s. 7 of the Proceedings Against the Crown Act - The Crown applied under rule 129 to strike the claims and under rule 159 for summary judgment - The Alberta Court of Appeal affirmed that there were triable issues of law, therefore, the claims should not be struck and summary judgment should not be granted - See paragraphs 15 to 23.

Practice - Topic 4232

Discovery - Examination - Persons who may be examined - Crown - Employees - Plaintiffs brought an action against the provincial Crown and sought to examine certain Crown employees - The Crown made available one employee for discovery - The Alberta Court of Appeal affirmed that rule 200 permitted the plaintiffs to examine the requested employees - The court stated that the fact that the Crown said the information sought could be provided by the employee it chose was not a ground for limiting the number of employees to be examined - There was no evidence that the information provided by the employees would overlap excessively - See paragraphs 24 to 28.

Practice - Topic 4241

Discovery - Examination - Persons who may be examined - Crown - Ministers - Plaintiffs brought an action against the provincial Crown - The plaintiffs sought to examine three Ministers at discovery - The Alberta Court of Appeal held that a Minister could be compelled to attend for discovery under rule 200, as a result of ss. 1 (c) and 11 of the Proceedings Against the Crown Act - The court stated that a Minister would be compelled only where the Minister was the person best informed on the matter in question; where others were equally well-informed policy dictated that those other persons, not the Minister, should be examined - The court refused to order the Ministers to attend for examination, where it was not established that they were the persons best informed - See paragraphs 29 to 44.

Practice - Topic 4252

Discovery - Examination - Range of - Questions related to issues between the parties - The Alberta Court of Appeal discussed the scope of questions permitted on examination - The court stated that the questions must involve matters "which can possibly affect" the issues between the parties and must not be "clearly irrelevant" - A witness refused to answer questions on the ground of relevancy - The court determined which questions must be answered - See paragraphs 45 to 57.

Practice - Topic 5708

Judgments and orders - Summary judgments - Bars - Existence of issues to be tried - [See Practice - Topic 2231 above].

Cases Noticed:

German v. Major (1985), 62 A.R. 2 (C.A.), refd to. [para. 17].

Cerny v. Can. Indust. Ltd. et al., [1972] 6 W.W.R. 88; 30 D.L.R.(3d) 462 (Alta. C.A.), refd to. [para. 17].

Manitoba Fisheries Ltd. v. Government of Canada, [1979] 1 S.C.R. 101; 23 N.R. 159, refd to. [para. 20].

Tener and Tener v. British Columbia, [1985] 1 S.C.R. 533; 59 N.R. 82, refd to. [para. 20].

View West Construction Ltd. v. City of Calgary, 7 Alta. L.R.(2d) 58, refd to. [para. 22].

Bank of Toronto v. Stillman, [1930] 3 D.L.R. 838 (Ont. C.A.), refd to. [para. 22].

Wray v. Scwartz (1981), 14 Alta. L.R.(2d) 346 (Q.B.), refd to. [para. 27].

Damiani et al. v. Anderson et al. (1977), 4 A.R. 187 (C.A.), refd to. [para. 29].

Cana Construction Co. Ltd. v. Calgary Centre for Performing Arts (1986), 71 A.R. 158; 46 Alta. L.R.(2d) 313 (C.A.), refd to. [para. 29].

R. (Provincial Treasurer of Alberta) v. Smith, [1927] 1 W.W.R. 474 (Alta. C.A.), dist. [para. 32].

Anthony et al. v. A.G. Alta. and Minister of Lands and Minerals, [1942] 1 W.W.R. 833 (Alta. T.D.), dist. [para. 32].

Central Canada Potash Co. Ltd. v. A.G. for Saskatchewan et al. (1973), 39 D.L.R.(3d) 88 (Sask. Q.B.), refd to. [para. 35].

Central Canada Potash Co. Ltd. et al. v. A.G. for Saskatchewan et al. (1974), 50 D.L.R.(3d) 560 (Sask. C.A.), refd to. [para. 36].

Canex Placer Ltd. et al. v. Attorney General for British Columbia et al., [1976] 1 W.W.R. 644 (B.C.S.C.), refd to. [para. 37].

B.C. Teachers' Federation et al. v. R. in Right of British Columbia et al., [1986] 6 W.W.R. 469 (B.C.S.C.), refd to. [para. 37].

Schatroph & Schartroph v. R. in Right of British Columbia, [1986] 2 W.W.R. 548 (B.C.S.C.), refd to. [para. 39].

Czuy and Czuy v. Mitchell, Edmonton General Hospital and the General Hospital (Grey Nuns) of Edmonton (1976), 1 A.R. 434 (C.A.), refd to. [para. 46].

Drake v. Overland and Southam Press Ltd. (1979), 19 A.R. 472 (C.A.), refd to. [para. 46].

Can-Air Services Ltd. v. British Aviation Insurance Co. et al. (1988), 91 A.R. 258; 30 C.P.C.(2d) 1 (C.A.), refd to. [para. 47].

Statutes Noticed:

Expropriation Act, R.S.A. 1980, c. E-16, sect. 44 [para. 4]; sect. 45(e) [para. 18].

Proceedings Against the Crown Act, R.S.A. 1980, c. P-18, sect. 1(c) [para. 33]; sect. 7 [para. 20]; sect. 11 [para. 33].

Rules of Court (Alta.), rule 129 [para. 16]; rule 159 [para. 11]; rule 200 [para. 26]; rule 214(1), rule 214(2) [para. 29].

Counsel:

A.P. Hnatiuk, Q.C., and L.H. Whittaker, for the appellant;

J.N. Agrios, Q.C., and L.C. Hoyano, for the respondents.

This appeal and cross-appeal were heard before Harradence, Bracco and Hetherington, JJ.A., of the Alberta Court of Appeal.

On August 9, 1989, Harradence, J.A., delivered the following judgment for the Court of Appeal: