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10/28/2026

DENYING CROSS-EXAMINATION CAN BE FATAL

From time to time, some party will refuse to be cross-examined, or will thwart the cross-examination. Their hope is to keep the evidence totally one-sided and maybe even unopposed. Sometimes when that party has no lawyer, a court will be reluctant to do much about that. Such feeble court supervision can be harmful. A recent decision makes a more appropriate response, and lays down some very useful principles:

1. It is very important to decide why the litigant acts un-cooperatively. Not wanting to be questioned is very bad. So contemporary or later excuses, particularly untrue ones, get no weight with the court, if not answering is the real reason (¶ʼs 6-7, 17, 19).

2. The scope of cross-examination for a pending application always is what is in issue in the application. Cross-examination is never limited to topics on which the witness testified or put into an affidavit. If the witness has no lawyer, it is important that the opposing lawyer has explained that (¶ 8). So where the witness has moved for summary judgment, the scope of cross-examination is almost always all the issues in the lawsuit (¶ 9).

3. Whether a certain question or topic is proper for cross-examination is for the court to decide. That decision is not for the witness to make, whether during the questioning or before it (¶ʼs 10-13, 20).

4. A litigant or witness with no lawyer is bound by the same legal rules and procedures as everyone else (¶ 19).

5. A witness or litigant without a lawyer may sometimes get some temporary delay or relaxation of penalties, but not a permanent release (¶ 19). What if a self-represented litigant is sophisticated and experienced and educated, especially some kind of education (even foreign) in the law? They get no such indulgences from the court. That is even more so if the witness was not genuinely trying to do the right thing (¶ʼs 5, 22).

6. When someone moves for summary judgment with their own affidavit and refuses (despite a court order to attend) to take part in meaningful cross-examination on it, the judge may properly find contempt of court and dismiss their motion entirely (¶ 24).

See Advanced Orthomolecular Research v. Li 2026 ABKB 721 (Oct 25).

http://www.legalviews.com/coteopinion141.htm...

Hon. J.E. Côté

09/22/2026

CURING PROCEDURAL SLIPS

The “slip Rules” in the Rules of Court (especially R. 1.5) are rather general, and sometimes are overlooked entirely. The case law is not quite consistent on whether forgiving non-compliance with a Rule should be easy, or should often be denied. Over the years, that pendulum has swung back and forth, sometimes for reasons not obvious. But a recent decision gives some guidance on some specific points. A few are digested below.

a. Not doing in time what it takes to start an appeal to a King’s Bench Justice, is one thing. It is often different from later not doing in time something needed to perfect the appeal and have it ready to argue on the merits. And moving to dismiss an opponent’s matter because of his or her procedural flaws, and moving to have one’s own non-compliance cured, are different things (¶ 38).

b. Rule 1.5 contains three specific requirements which one needs to get relief from one’s own procedural flaw (¶ 39).

c. Even where no specific time deadline is in any legislation, waiting an unreasonable length of time can prevent curing a slip (¶ʼs 47-50).

d. Rule 1.5 makes prejudice a relevant or binding consideration, but it does not say or require that the prejudice be irreparable (¶ 53). There is quite a bit of older contrary case law (not cited), but maybe those cases do not apply where R. 1.5 is relied upon.

e. If a litigant alleges that the opponent is guilty of fraud, that puts on that litigant a higher requirement of promptness (¶ 56).

f. Prejudice takes many forms, and “prejudice” under R. 1.5 need not be impairment of evidence. It could be harm to reputation, or tying up assets (¶’s 58-62).

g. Delay in applying to upset the opponent’s claims or suit may be excusable where the opponent acknowledged the flaw and said that he was about to fix it up (¶’s 65-66).

h. It is relevant that the delay in question now was preceded in the same suit by other delay by the same party (¶’s 77-79).

The decision is Big Country Outdoor Superstore v. Robertson 2026 ABKB 610 (Sep 1).

http://www.legalviews.com/coteopinion139.htm...

Hon. J.E. Côté

08/27/2026

WHO IS DIRECTLY AFFECTED BY JUDICIAL REVIEW?

Rule 3.15 requires that an application for judicial review be served on everyone “directly affected” by the application, within six months of the decision being attacked. Two recent decisions (cited at the end below) help understand who falls within the quoted phrase. The cases’ most useful propositions or examples are listed below.

1. The deadline for such service is mandatory, and missing that deadline usually wipes out the whole application for judicial review (Sturgeon ¶ʼs 42-43, Athabasca ¶ʼs 58-61).
2. The phrase “directly affected” has the ordinary meaning of those words, and is not interpreted restrictively (Sturgeon ¶ 44, Athabasca ¶ 32).
3. What are the relevant basic criteria for deciding who is directly affected, are described (Athabasca ¶ʼs 28-29, 35-38).
4. Deciding who is directly affected is very fact dependent (Sturgeon ¶ 44).
5. Someone directly affected by the original decision being attacked, is probably directly affected now by the judicial review application (Athabasca ¶ʼs 34, 42-46).
6. Some examples are given of persons who were or were not held to be directly affected (Sturgeon ¶ʼs 45-46, 48-50, 57, 59, 65, 84-85, 87).
7. Interests which are remote, speculative, or contingent, do not make that person directly affected (Sturgeon ¶ʼs 52, 81-82).
8. Merely participating in the process giving the original decision does not make one directly affected (Athabasca ¶ʼs 32, 46).
9. Whether a person opposes or supports the original decision is irrelevant, and adversity of impact is not needed (Sturgeon ¶ 44, Athabasca ¶ 31).
10. If coercive relief against a person is sought, often means that the person is directly affected (Athabasca ¶ 67).
11. A policy generally applying to the public or a wide variety of people, usually does not make them all directly affected (Athabasca ¶ 20).
12. Generally the requirement of serving directly affected people applies as much to legislative as to administrative decisions (Athabasca ¶ʼs 19, 21-24).
13. There are some special considerations applying to indigenous bodies and their right to consultation (Athabasca ¶ 39).
14. It is difficult or maybe even impossible to sever some parties from R. 3.15. In other words, failing to serve in time one person directly affected probably kills the whole judicial review application (Athabasca ¶ʼs 62, 66, 72-73).

The two decisions are Athabasca Chipewyan F.N. v. Min. of Env. 2026 ABKB 460 (Aug 12), and Sturgeon L. Cree N. v. Min. of Indigenous Rel. 2026 ABKB 569 (Aug 13).

http://www.legalviews.com/coteopinion137.htm...

Hon. J.E. Côté

08/11/2026

SPOLIATION REVIVED

When a party to upcoming litigation destroys evidence, Canadian judges have tended to be reluctant to take effective steps to aid the victim. Now the Supreme Court of Canada has intervened, which will probably make Canadian judges more willing to help such victims.

Two parties contracted to use electronic data created by one of them, and the recipient expressly covenanted not to reveal the data received to other persons without permission. After the arrangement ended, for years one of them did send the data for many other people contrary to the covenant. When that was discovered, the data owner complained, and asked to have the records of that preserved, as the owner was about to sue (¶ 61). The party who had given out the data then destroyed the records of that (¶ 8). The Supreme Court of Canada helped the victim, and talked generally about such spoliation.

Spoliation is destroying, altering, mutilating or concealing evidence in order to subvert fact-finding in litigation (¶ʼs 1, 79). Spoliation is important, and bad in two ways (¶ʼs 1, 76-78, 104).

It is important to decide whether spoliation is proven. If it is proven, the court has no discretion, and must draw an inference adverse to the spoliator, an inference capable of filling the gap which the spoliation created in the evidence (¶ʼs 4, 9, 127). After spoliation, a level evidentiary playing field must be created (¶ 6). The court must fill the gap in evidence created (¶ʼs 6, 131). The court must give a factual basis for a damage award, not an award untethered by evidence.

To prove spoliation, there must be evidence of four things, briefly described as intent, contemplated litigation, relevance of the evidence deleted, and a reasonable inference that destruction was done to affect the litigation. If all four are proven, there is spoliation (¶ʼs 80-81).

If spoliation is proven, that creates a rebuttable presumption that the evidence destroyed would be unfavorable to the spoliatorʼs case. Without rebuttal evidence against the presumption, the presumption becomes mandatory. Such rebuttal evidence could narrow the damages (¶ʼs 81-82).

If spoliation is found, a strong presumption is created and adverse inferences cannot be weak, nor limited to what the evidence now available shows. Frequency of breaches of contract is important and must be allowed for in damages (¶ʼs 7, 89, 90).

But even that mandatory presumption about how or to what extent the destroyed evidence would have been unfavorable to the spoliatorʼs case, is subject to discretion and context (¶ʼs 4, 84-87, 95, 105, 118). Usually the mandatory presumption works to correct spoliationʼs imbalance, undo the prejudice, help the courtʼs fact finding, and remedy the spoliationʼs wrongdoing.

Many other remedies exist to address the prejudice created, like presumptions, contempt of court, costs, preservation orders, adverse findings against credibility, or exclusion of evidence. Four factors and more, may be relevant as to whether to grant such other remedies (¶ʼs 88, 91-93, 115).

The Supreme Court decision is SS & C Technologies Can. Corp. v. Bank of New York Mellon Corp. 2026 SCC 29

http://www.legalviews.com/coteopinion134.htm...

Hon. J.E. Côté

08/11/2026

MORTGAGE FORECLOSURE CALCULATIONS

1. Procedures for mortgage foreclosures can be complex, and are evidently not well understood or obeyed, as a recent decision shows in detail.

2. There is a discussion of contractual and statutory limits on what can be called “Principal” or added to the amount owing under a mortgage, in a foreclosure. Relevant contracts and statutes are often overlooked by plaintiff mortgagees and their counsel. For example, a general mortgage-default insurance policy for a whole mortgagee, is not insurance of this particular building (¶ʼs 4, 14-19). And the court often sees improper and unproved claims of extra fees and expenses (¶ 27).

3. Expenses recoverable must be ones actually incurred and paid, and usually an invoice is needed (¶ʼs 4(c),(d),(e), 7, 20, 23).

4. A recoverable expense cannot much exceed the reasonable usual cost (Alberta consumer legislation) (¶ 5).

5. Default fees are forbidden (Alberta consumer legislation and the federal Interest Act) (¶ 6, cf. ¶ 8).

6. A calculation of the amount owing going back two years is needed, if extra charges are added (¶ 24).

7. The onus of proof in a “redemption application” is on the lender mortgagee (¶ 26).

8. Clear defects in the mortgageeʼs materials may lead to costs or damages payable by the mortgagee lender (¶ʼs 28, 31, 33).

The decision is CMT CAN Hldg. GP v. Sandhu 2026 ABKB 556 (AJ Aug 5).

http://www.legalviews.com/coteopinion135.htm...

Hon. J.E. Côté

08/05/2026

CLARIFYING THE DROP-DEAD RULE

Baron Real Est. Investments v. Tri-Arrow Industrial Recovery 2025 ABKB 367 has been reversed by the Court of Appeal: 2026 ABCA 249. The topic is whether to dismiss a lawsuit under the “drop-dead” Rule 4.33 because of too long a gap in significant advances in the suit.

The principles have not really changed. The two errors here by a chambers justice who wrongly found such a long gap, were comparatively narrow, and one was partly factual:

(a) The argument over whether the supplementary affidavit of records significantly advanced the lawsuit was wrongly held to be about only “peripheral issues”. The documents revealed by this affidavit were admittedly about issues pleaded and contested. The chambers justice thought that therefore one had to see whether those issues were fairly arguable. But Rule 4.33 is not a branch of summary judgment. If the case goes to trial, these documents will be relevant. If the defendant wanted summary dismissal of some kind, it could still apply for it.

(b) The documents revealed by the supplementary affidavit were almost all dated and created before the date of the first affidavit of records, so the chambers judge thought that the plaintiff filing the supplementary affidavit had the onus of showing why it had not revealed them much earlier in the original affidavit of records. But the plaintiff was not the one who created many of these records; the plaintiff apparently got them from a different defendant. So dates of creation showed little. Cross-examination on the supplemental affidavit (shown to the chambers judge) went into that timing. That evidence showed that the plaintiff received these records over quite a long period, but no one could any longer learn which individual documents came when. It was not reasonable to presume that the plaintiff got most of them before it filed its original affidavit of records.

http://www.legalviews.com/coteopinion133.htm...

Hon. J.E. Côté

07/21/2026

JURISDICTION AND SUBSTITUTIONAL SERVICE

A recent King's Bench decision contains statements about several aspects of procedural law.

A. General Power of King's Bench Justices and Applications Judges

The Court of King's Bench is a superior court and being such gives it broad jurisdiction and powers. It also gets them under Alberta legislation and under the Rules of Court (¶ʼs 10, 20). Under R. 1.2, the foundation of civil practice and procedure are the principles of proportionality, access to justice, and the fair and cost-effective resolution of disputes (¶ 6).

B. Power to Move King's Bench Lawsuits to the Court of Justice

No Rule of Court or other legislation expressly gives the King's Bench power to transfer a suit in that court and in its jurisdiction to the Court of Justice, without consent of all parties (¶ 7). However, R. 1.4(1) gives King's Bench a wide power to make any order with respect to practice or procedure to implement and advance the purpose and intention of the “foundational rules”, so long as there is no other contradictory Rule (¶ʼs 9, 16-17). But such a transfer must advance the purposes and intentions of the Rules (¶ʼs 18-19). Section 96 of the Constitution Act does not give a litigant an entrenched right to have his or her suit heard in King's Bench, if the Court of Justice also has jurisdiction (¶ʼs 12-14). Several other provinces with similar legislation have found an implied power to transfer suits from the superior court to the Provincial Court (¶ 22).

C. Grounds for Moving Suits from King's Bench to Court of Justice

Where a lawsuit is for a fairly modest amount, that tends to support a transfer to the Court of Justice, as pre-trial discovery may be too slow and expensive. If there is an arguable point, which court has faster default judgment is probably not relevant. The Court of Justice has mediation and payment-scheduling and costs tariffs more proportionate to smaller suits. The whole process in the Court of Justice is designed to be easier for self-represented litigants. All that is especially true when the procedure selected by the plaintiff does not come with straightforward good evidence (¶ʼs 25-28), or where the plaintiff seems unable to discuss such procedural weaknesses (¶ʼs 31-35).

The decision suggests that such a transfer may be on the King's Bench's own initiative, without such a request for transfer from either party (¶ 38).

D. Sufficient Evidence for Substitutional Service

What is the last-known address of the defendant (needed for service), needs better evidence than an old credit application or credit report. The address current for the defendant's driver's license, or details about what searches for the person were made and with what results, are examples of such better evidence. What happened to an email sent to an old address is probably not useful (¶ 37(b)).

E. The Recent Decision

See PRA Group Can. v. Wylie 2026 ABKB 512 (AJ Jul 15).

http://www.legalviews.com/coteopinion132.htm...

Hon. J.E. Côté

05/28/2026

JUDICIAL REVIEW EVIDENCE

It is well settled that generally evidence of substantive matters is not permitted in an application for judicial review: R. 3.22. However, a more recent amendment adds non-certiorari claims as another permitted occasion for affidavit evidence: R. 3.22(b.1). In a recent case the applicant gave substantive evidence, pointing out that they had asked for many types of relief beyond those customary for certiorari. The respondent argued that that new amendment was “limited by the exceptions noted in Rule 3.22” (to quote the justice). I presume that argument suggested that such broader evidence would not be admissible to quash or to do other certiorari-like things. The justice rejected that argument and admitted such evidence and quashed the impugned decision. Lawyers will doubtless see the arguments both for and against that brief decision interpreting the Rule.

The decision is Athabasca Chipewyan F.N. v. Chief Electoral Officer 2026 ABKB 375, JCE 2603 00155 (May 13) (¶ʼs 42-43, 45).

http://www.legalviews.com/coteopinion131.htm...

Hon. J.E. Côté

04/02/2026

EVIDENCE FROM TALKING HEADS

A motion by one party to take part in the trial and testify, solely by electronic hookup from another province, failed. The trial judge's reasons for denying the request are lengthy, thoughtful, and appear to be well researched. The reasons reveal many more relevant considerations than one might think of on one's own. The decision is well worth reading. It is Hamilton v. Kosc 2026 ABKB 227 (Mar 24).

The decision properly concludes that letting a plaintiff or defendant testify remotely is much less desirable where that party's evidence will be very important and where credibility will be a big issue.

But the decision states that physical presence and demeanor are not that big an element in deciding credibility. I would give more weight to “demeanor” when the person attending remotely is the plaintiff or the defendant.

First, credibility is not the only issue. If the witness is also a party, and the alleged actions and motivation of that party are important elements in the suit, then his or her actions and motives are also in issue. So seeing that party up close becomes even more important for those fact findings, than for credibility alone.

Second, courts constantly say that a trial judge who has seen and heard the witness has a great advantage over an appeal court which has not. That is not the only reason for appellate deference, but it is probably the most important one.

Furthermore, when credibility or motivation are in issue, then spontaneity is critical. It is very easy to cheat when one answers questions on an electronic hookup. Especially if one answers from a room of one's own choosing and control. The judge and counsel hundreds of miles away have no idea who else and what other prompting aids are present, and whether the party/witness is largely a ventriloquist's dummy. They do not know what electronic hookups or other connections to warnings and advice are present. Getting coached during adjournments or interruptions of cross-examination then becomes natural and easy. I believe that this trial judge was aware of all that, but the reasons for decision do not clearly explain or emphasize that.

During the Covid epidemic and for some years after, many persons appearing “before” Canadian Parliamentary committees testified and were cross-examined remotely from their own home or office, or other undisclosed location. Cross-examination and clarity often failed.

I am told that when university or professional examinations are to be taken on line, often the examining body has someone inspect or provide the room where the candidate is, and ensures that no other person or source of information or advice is present or connected.

People sometimes forget that a trial is a psychological confrontation among counsel, the parties, the witnesses, and the judge. A judge or counsel a few feet away often dominates. It is harder to lie in public to trained counsel with an experienced judge presiding. And much easier to lie to some talking head a thousand miles away, in another province outside the trial judge's control. And as the justice says in this case, the plaintiff chooses the forum, and the defendant usually acquiesces in it.

http://www.legalviews.com/coteopinion130.htm...
Hon. J.E. Côté

03/18/2026

NOMINAL SERVICE CLAUSES

The King's Bench has properly brought to the attention of the Bar a problem which it says is fairly common, but not much written about. Evidently contracts such as leases or mortgages often contain a clause permitting very slack or symbolic methods of service. That matters, because R. 11.3 allows and makes effective service at a place, in a mode, or to, something or someone agreed on in a contract.

The Rule sounds fine, but some contracts give unreasonable means of service. The one in the case just published allowed service by placing on the lands or any part thereof if unoccupied. Here in mid-winter a statement of claim to take back land because of a mortgage default, was attached to a child's toy sitting out in an open field, probably farm land.

I am sympathetic to those trying to get service on someone who has moved without telling anyone of his or her new address. But the object of the exercise is to give notice as best one can. Posting something up on unoccupied land where few if any would see it, is not really an attempt at notice. It is either symbolism or a thin excuse for disobedience.

Sympathy or fairness may not be legally decisive. What is the legal effect of the service clause in the mortgage? The clause is quite long, but its subject is described near the beginning of the clause. It is unilateral actions by the mortgagee without a court order, but merely taken by the mortgagee, and then giving "any notice".

Whether or not that reading is correct, the mortgagee has another problem. It is true that among several purposes of a statement of claim, one is to disclose certain facts to the defendant. The notice to defendant is not a part of the body of the statement of claim; it is an endorsement at the end. Notice is far from the only purpose of a statement of claim. It starts a court proceeding and imposes a number of immediate duties on the defendant. It is not worded as the plaintiff's order; it is the court's and the Rules' order. The duties are not imposed by the plaintiff; they are imposed by the court. Many long contracts contain a clause giving addresses for each party to which "notices" may be sent. But those are usually understood to be notices provided for by the contract, or maybe some other notices needed at common law. Lawyers would not read such clauses as referring to service of a statement of claim or writ of summons.

I doubt that the present Rules of Court ever use the word "notice" when referring to a commencement document. They do not do that in Parts 1 to 4, 6, or 11.

Rule 11.3 says that a contract may contain an agreement on service: place for service, mode of service, or person to be served. "Service" and "serve" are well-known legal terms. The contract can choose methods which are original, new, or ingenious, but they must be methods of "service". So they must be attempts to give the document or information about it, to the person to be served. Therefore, they must have some realistic chance of having the information reach him or her.

Sealing something up and throwing it in the river, or putting it inside someone's garbage can, would not be service. Nor is posting up a document where this defendant is unlikely to go and where the general public rarely goes.

The contract here says expressly that the mode of "service" used here can be used only if the land is unoccupied. Therefore, using that method would never inform any given individual unless the posting was within a few feet of a very busy sidewalk.

It is a prime rule of interpreting a contract that all parts of it be read together, and interpreted so as to work together. Interpreting "service" or "notice" to mean some act which would never become known, would be a highly unlikely and contradictory interpretation.

The case discussed here is Stephen Smith RRSP Plan v. Walker 2026 ABKB 171 (AJ Mar 9).

http://www.legalviews.com/coteopinion129.htm...

Hon. J.E. Côté

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