Luo et al. v. Wang et al., (2004) 374 A.R. 202 (QB)

JudgeWatson, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateDecember 22, 2004
Citations(2004), 374 A.R. 202 (QB);2005 ABQB 47

Luo v. Wang (2004), 374 A.R. 202 (QB)

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. FE.032

Xiu Yu Luo, Lam Ng and Ying Wu (plaintiff) v. Xiao Fang Wang also known as Lily Wang (defendant) and Flora Wang (third party)

Xiao Fang Wang also known as Lily Wang (plaintiff by counterclaim) v. Xiu Yu Luo, Lam Ng, also known as Lynnley Ng and as Lin Wu, Ying Wu, also known as Leslie Wu and as Leslie Wu, and Li Ping Wang, also known as Flora Wang (defendants by counterclaim)

(0003 13448; 2005 ABQB 47)

Indexed As: Luo et al. v. Wang et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Watson, J.

December 22, 2004.

Summary:

The Wu family sued Wang for $957,668.77 U.S., claiming that they had remitted funds from China to Canada and that Wang, without authorization, had the funds transferred into her bank account. Part of the money claimed related to funds that the Wu Family claimed had emanated from Yu and Deng. Yu and Deng were ordered to serve Wang with affidavits of records. They did not comply with the order. Wang moved under rule 190.1 of the Alberta Rules of Court to strike out the portion of the action relating to Yu and Deng in the sum of $410,000. The Wu family asserted that although Yu and Deng might be parties, they were not parties who had filed pleadings. Consequently, they were not parties for whom the pleadings could be struck out.

The Alberta Court of Queen's Bench stated that technically rule 190.1 did not appear to apply. However, as case manager, the court had to do its best to ensure that the trial process was fair. To that end, the court ordered that Yu and Deng would not be permitted to testify. The Wu family would be left with being unable to lead evidence at trial to indicate the source of any funds that had emanated from Yu and Deng.

Practice - Topic 37

Actions - Conduct of - General - Case management - The Wu family sued Wang, claiming that they had remitted funds from China to Canada and that Wang, without authorization, had the funds transferred into her bank account - Part of the money claimed related to funds that the Wu Family claimed had emanated from Yu and Deng - Yu and Deng were ordered to serve Wang with affidavits of records - They did not do so - Wang moved under rule 190.1 of the Alberta Rules of Court to strike out the portion of the action relating to Yu and Deng in the sum of $410,000 - The Wu family asserted that although Chen and Deng might be parties, they were not parties who had filed pleadings - Consequently, they were not parties for whom the pleadings could be struck out - The Alberta Court of Queen's Bench stated that technically rule 190.1 did not appear to apply - However, as the case manager, it had to do its best to ensure that the trial process was fair - To that end, the court prohibited Chen and Deng from testifying at trial - The Wu family would be left with being unable to lead evidence to indicate the source of any funds that had emanated from Chen and Deng.

Practice - Topic 2232

Pleadings - Striking out pleadings - Grounds - Noncompliance with discovery rules - [See Practice - Topic 37 ].

Practice - Topic 2232

Pleadings - Striking out pleadings - Grounds - Noncompliance with discovery rules - Rule 190.1 of the Alberta Rules of Court provided that if a party failed to serve an affidavit of records, the court could on application by any other party (a) strike out all or any of the pleadings of the defaulting party or (b) impose any other sanction - The Alberta Court of Queen's Bench stated that rule 190.1 was a disciplinary rule that was intended to regulate the court process and to ensure that a legal proceeding unfolded in an adjudicatively fair manner - It did not focus on the merit of an action - In a sense, rule 190.1 disqualified any party who failed to meet discovery obligations from presenting a valid claim - To justify striking out the pleadings under rule 190.1, the applicant, without getting into the merits, had to show that it was effectively impossible to have a fair trial in connection with the matter - See paragraphs 29 to 39.

Practice - Topic 4644

Discovery - Affidavit or list of documents - Effect of failure to file list of documents - [See Practice - Topic 37 and second Practice - Topic 2232 ].

Cases Noticed:

North Vancouver (District) v. Sorrenti, [2004] 10 W.W.R. 674; 198 B.C.A.C. 282; 324 W.A.C. 282; 29 B.C.L.R.(4th) 214; 50 M.P.L.R.(3d) 63; 242 D.L.R.(4th) 152; 2004 CarswellBC 1233; 2004 BCCA 316, refd to. [para. 6, footnote 5].

R. v. Prefontaine (M.), [2004] A.R. Uned. 51; 2004 CarswellAlta 407; 2004 ABCA 100, refd to. [para. 6, footnote 6].

R. v. Prefontaine (M.), [2003] 5 W.W.R. 367; 12 Alta. L.R.(4th) 50; 2002 CarswellAlta 1369 (Q.B.), refd to. [para. 6, footnote 6].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308; 53 O.R.(2d) 719; 1986 CarswellOnt 95, refd to. [para. 6, footnote 6].

Metropolitan Life Insurance Co. v. Hover (1999), 237 A.R. 30; 197 W.A.C. 30; 46 C.P.C.(4th) 213; 91 Alta. L.R.(3d) 226; 1999 CarswellAlta 338; 1999 ABCA 123, refd to. [para. 7, footnote 7].

Serhan Estate v. Bjornson et al. (2001), 303 A.R. 17; 273 W.A.C. 17; 2001 CarswellAlta 1561; 2001 ABCA 294, refd to. [para. 7, footnote 8].

Western Canadian Shopping Centres Inc. et al. v. Dutton et al. (1998), 228 A.R. 188; 188 W.A.C. 188; 73 Alta. L.R.(3d) 227; 30 C.P.C.(4th) 1; 1998 CarswellAlta 1173; 1998 ABCA 392, refd to. [para. 31, footnote 10].

Western Canadian Shopping Centres Inc. et al. v. Bennett - see Western Canadian Shopping Centres Inc. et al. v. Dutton et al.

Jamieson et al. v. Denman et al. (2004), 365 A.R. 201; 2004 CarswellAlta 1046; 2004 ABQB 593, refd to. [para. 37, footnote 14].

Holmes v. Lane et al., [2004] A.R. Uned. 451; 2004 CarswellAlta 1842; 2005 ABCA 4, refd to. [para. 37, footnote 14].

Hercules Management Ltd. et al. v. Ernst & Young et al., [1997] 2 S.C.R. 165; 211 N.R. 352; 115 Man.R.(2d) 241; 139 W.A.C. 241; [1997] 8 W.W.R. 80; 35 C.C.L.T.(2d) 115; 31 B.L.R.(2d) 147; 1997 CarswellMan 198, refd to. [para. 37, footnote 14].

Johnston v. Bryant et al. (2003), 327 A.R. 378; 296 W.A.C. 378; 17 Alta. L.R.(4th) 24; 2003 CarswellAlta 763; 2003 ABCA 169, refd to. [para. 65, 19].

Ferguson et al. v. Provincial Provident Institution (1893), 15 P.R. 366 (Ont. H.C.), refd to. [para. 66, footnote 20].

LeBreton v. Brunswick Oxygen & Welding Supply Co. (1976), 12 N.B.R.(2d) 693; 10 A.P.R. 693; 1976 CarswellNB 35 (C.A.), refd to. [para. 66, footnote 20].

Casey Fisheries Ltd. v. Max's Fish Market Ltd., Savoie and Quigley (1978), 26 N.B.R.(2d) 176; 55 A.P.R. 176 (Q.B.), refd to. [para. 66, footnote 20].

Matthews v. Great-West Life Assurance Co. et al. (2002), 313 A.R. 86; 2002 CarswellAlta 438; 2002 ABQB 297, refd to. [para. 66, footnote 20].

Govenlock v. Govenlock (2001), 284 A.R. 399; 2001 CarswellAlta 544; 2001 ABQB 319, refd to. [para. 70, footnote 21].

Gienow Building Products Ltd. v. Tremco Inc. et al. (2000), 255 A.R. 273; 220 W.A.C. 273; 78 Alta. L.R.(3d) 40; 42 C.P.C.(4th) 1; 186 D.L.R.(4th) 730; 2000 CarswellAlta 302; 2000 ABCA 105, refd to. [para. 75, footnote 24].

Statutes Noticed:

Rules of Court (Alta.), rule 190.1 [para. 21].

Counsel:

B. Mintz, for the plaintiffs/defendants by counterclaim;

B. Mielke and G. Chan, for the defendant/plaintiff by counterclaim.

On December 22, 2004, Watson, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, heard this motion and delivered the following oral judgment.

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