Wenzel v. Nenshi, 2015 ABQB 742

• Judge: Gates, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 23, 2015
• Citations: 2015 ABQB 742;[2015] A.R. TBEd. NO.141

Wenzel v. Nenshi, [2015] A.R. TBEd. NO.141

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Temp. Cite: [2015] A.R. TBEd. NO.141

Calvin Charles Wenzel (plaintiff) v. Naheed Kurban Nenshi (defendant)

(1301 13429; 2015 ABQB 742)

Indexed As: Wenzel v. Nenshi

Alberta Court of Queen's Bench

Judicial District of Calgary

Gates, J.

November 23, 2015.

Summary:

The plaintiff's action for defamation against the defendant was set for a three week jury trial commencing February 16, 2016. The matter was set down for trial on the agreement of counsel for both parties on June 22, 2015. The plaintiff retained new counsel and filed a Notice of Change of Representation on September 15, 2015. The plaintiff now sought leave to bring an application for summary disposition and judgment, the court having previously determined that leave was required to bring such an application given that the matter had already been set down for trial. By way of preliminary argument, the defendant said that s. 17 of the Jury Act prohibited an application for summary judgment when a matter had been set down for a civil jury trial. He submitted that the mandatory order for trial by jury in this action served as a bar to the proposed summary judgment application. Further, he contended that the defendant had a right to a jury trial that should not be taken away lightly.

The Alberta Court of Queen's Bench denied the plaintiff's application for leave to bring a summary judgment application. The summary judgment process set out in the Alberta Rules of Court was not specifically precluded by s. 17 of the Jury Act and the right to a jury trial did not preclude the bringing of a summary judgment application. However, the court rejected the plaintiff's claim that proceeding with a summary judgment application would result in the most efficient use of judicial resources. The plaintiff would suffer no prejudice by proceeding with a trial. Furthermore, the plaintiff's prior counsel certified that there would be no further applications. The court and the defendant relied on those representations in scheduling the action for jury selection and trial. The statements made by counsel in this context had to bind his client and could not be withdrawn without reason. The plaintiff had not provided sufficiently persuasive reasons.

Practice - Topic 5100

Juries and jury trials - Right to a jury - General (incl. when jury trial appropriate) - See paragraphs 15 to 27.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - See paragraphs 15 to 75.

Practice - Topic 5717

Judgments and orders - Summary judgments - For part of claim - See paragraphs 36 to 40.

Counsel:

Ariel Z. Breitman and Jonathan J. Bourchier, for the plaintiff;

Munaf Mohamed, for the defendant.

This application was heard on November 12 and 13, 2015, before Gates, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following memorandum of decision on November 23, 2015.