Juriliber Publishers

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

02/12/2026

ONE-WORD DEVICE

The quest to have King’s Bench justices repeal Rule 4.33 continues. As usual, ignoring binding precedent is necessary, but the spotlight of this decision is on one word. Not a word found in the Rule (whose words are ignored). Instead, one word in a few King’s Bench decisions.

The case law says that a defendant who claims there has been a gap of more than three years must show that after something which advances the suit, three or more years must pass with no advancement until the defendant files an application under R. 4.33 to dismiss. But this recent King’s Bench decision says no, that is wrong. Three years’ inaction is not enough to dismiss. If after a full three-year gap with no advancement then a few weeks later something is done to advance the suit, the court cannot dismiss the suit. Supposedly time starts to run all over again, and the defendant must wait another three years. Even if the defendant had nothing to do with that recent advancement, and did not participate or support it.

That is not what the words of R. 4.33 say: “If 3 or more years have passed without a significant advance ...”

This decision contradicts what the case law says (most of it from the Court of Appeal). Any three-year gap before the defendant applies to dismiss the suit, requires dismissal. See Trout Lake Store v. C.I.B.C. ( #1) 2003 ABCA 259, 330 AR 379 (¶’s 26, 31, 32, 33); Lanset Cap. Corp. v. Waterloo Geological Consulting 2006 ABCA 77, 380 AR 210 (¶’s 7- 9); Barath v. Schloss 2015 ABQB 332, 617 AR 224 (¶ 11); Ro-Dar Contr. v. Verbeek Sand &c. 2016 ABCA 123, 616 AR 366 (¶ 17); Flock v. McKen (Flock Est.) 2017 ABCA 67, 49 Alta LR(6th) 41 (¶’s 17(3), 22, 24), leave den (SCC 19 Oct ‘17).

Everyone agrees that the three years start running from any act which materially advances the suit, and stops when the defendant files an application to dismiss. Everyone agrees that significant advancement before three years have run bars dismissal. Everyone agrees that there is no time limit for how quickly the defendant must apply to dismiss the suit, unless the defendant takes steps which approve restarting the lawsuit.

So how was this new canard argued? This recent decision says that the advancement of the suit which begins the three years running is called by a few King’s Bench decisions “the last significant advance”. So therefore, if after the three years are complete, something happens which advances the suit, before the defendant’s motion is filed, then this brand-new advance becomes the last advance. So no longer is the advance which was a little over three years old, the last. In other words, to bar any use of R. 4.33, ever, the plaintiff can make a late advance. It need not be during the three years. It can be later, so long as it is done before the defendant files his motion to dismiss. That ignores the wording of the Rule, contradicts binding case law cited above, replaces R. 4.33 with a foot race between the parties, and makes no sense at all.

Furthermore, this odd suggestion is not even reliable English. Maybe at one time, the words “last” and “latest”, when used strictly, had different meanings. But Fowler says that “many idioms militate against” that distinction (Fowler’s Modern English Usage 2d ed. rev., 1974 p. 324). The word “last” can mean coming at the end, but it can also mean “next before some expressed or implied point of time”, or “the most recent”, or the one recently mentioned (Concise Oxford Dictionary 6th ed. 1964 p. 681). Speaking of most recent, the New Shorter Oxford Dictionary p. 1536 (4th ed. 1993) contains many examples of all those different usages for the word “last”. So the word “last” can mean different things, depending on the time as of which the word is being used.

Think of modern everyday speech. If a person refers to “my last good meal”, he means the most recent good meal; he is not announcing that he will be hanged in the morning and never again eat good food. If someone says “The last time I looked, it was still not closing time”, she does not mean that she will never look at her watch ever again. It used to be well known that it was an offence for an English pub to fill an order after closing time. The bartender calls out just before then, “Last calls.” But if the pub opens and closes the next day, does the previous night’s offence of late service disappear? Will there never be an offence because every future evening there is a closing hour during the entire life of the pub, so there is never a “last call”?

The recent decision is 2114223 Alta. v. Lougheed 2026 ABKB 78 (Feb 4).

http://www.legalviews.com/coteopinion128.htm...

Hon. J.E. Côté

01/28/2026

Statement from the Chief Justices
Jan 27, 2026


As proud Albertans, we care deeply about this province and the people of Alberta.

The judges on Alberta’s three courts—the Court of Justice, the Court of King’s Bench and the Court of Appeal—recognize that our fundamental role is to serve Albertans. We do this by upholding our oath of office to decide each case honestly, impartially, and to the best of our ability. We know that our decisions can profoundly impact the people who come before the courts. We take this responsibility seriously.

A properly functioning democracy requires three separate branches of government that exercise their power and authority independently according to the Constitution.

The executive branch makes policy and manages government operations. The legislative branch makes laws. In turn, the judicial branch interprets and applies those laws to disputes brought before the courts. If a party requests it, judges may be required to interpret and apply the Constitution and the Canadian Charter of Rights and Freedoms and make a ruling.

The independence of each branch ensures there are checks and balances across the system. It is the foundation of a healthy democracy. Public trust and confidence in our institutions—and all three branches of government—depend on it. It is equally important that each branch respect and support the independence of the others.

Independence of the judicial branch protects the public. It ensures judges can make decisions based solely on the law and evidence presented. It frees judges from pressure or influence from external sources including the governments that appoint us.

Each day in Alberta’s courthouses, judges apply the law—to protect individual rights, decide disputes fairly and hold parties, including governments, accountable. The rule of law means no one is above the law, everyone is treated equally before the law, and power is not used arbitrarily. Alberta’s judges will continue to do this work faithfully.

Alberta’s judges are Albertans, like the people we serve. We are proud of the work judges and staff do every day to protect the rights of all Albertans and to safeguard our democracy.



Dawn Pentelechuk
Acting Chief Justice of Alberta

Kent H. Davidson
Chief Justice
King’s Bench of Alberta

James A. Hunter
Chief Justice
Alberta Court of Justice

01/14/2026

NEWS & ANNOUNCEMENTS

Family Focused Protocol - Revised Notices to Profession and FFP Webpage

Jan 12, 2026


In connection with the Court of King’s Bench Family Focused Protocol, which came into effect January 2, 2026, the Court has revised its Notices to Profession and Public regarding (a) the Family Justice Protocol Mandatory Requirements and (b) Family Streamlined Trials. NPP 2023-01, NPP 2025-01 and NPP 2023-03 have been replaced with the following revised Notices to Profession and Public:

NPP 2026-01 – Family Pre-Court Mandatory Requirements

NPP 2026-02 – Family Streamlined Trials

In addition, the Court has consolidated information regarding the Family Focused Protocol on a new webpage. For further information about the FFP, including guides, supplemental help materials, and forms, please see the webpage here: https://www.albertacourts.ca/kb/areas-of-law/family/family-focused-protocol.

01/14/2026

NEWS & ANNOUNCEMENTS

King's Bench Filing Digital Service – Family and Divorce (FFDS) - Now Available to Lawyers When a Fee Exemption Applies

Jan 12, 2026

We are pleased to announce the expansion of the King’s Bench Filing Digital Service – Family and Divorce (FFDS) to include many lawyers whose filings are exempt from filing fees.

Effective January 13, 2026, qualifying lawyers with a Law Society of Alberta Bar ID will be able to submit filings through FFDS for all King’s Bench locations within the Province of Alberta.

Lawyers whose filings may qualify for fee exemption in FFDS include those who work for or represent:

Government of Alberta departments funded by general revenue
Private law firms representing a Government of Alberta department funded by general revenue
Clients with a Legal Aid certificate
Submissions that include a granted and signed fee waiver
FFDS will require proof of fee-exempt status at the time of filing.

To submit filings to King’s Bench using FFDS, Alberta lawyers and legal assistants must first create an account in the service. Instructions for creating an account, an overview of FFDS, and additional guides for lawyers and legal assistants are available on our help page:
https://qb-filing-family.alberta.ca/help

Lawyers are encouraged to visit the Law Society of Alberta lawyer directory to confirm their official law practice location and other details, as FFDS pulls account information directly from the Law Society of Alberta during the account creation process.

If a lawyer or legal assistant already has an account in another King’s Bench digital service, they may sign in to FFDS using the same login credentials.

You are using an unsupported web browser. To increase security and use all functionality of the service, please open a different browser and copy and paste the link to get started.

01/08/2026

INSPECTING OPPONENT’S RECORDS

It is now customary for litigation counsel to send each other copies of their own producible records (downloads, scans, or photocopies). So the recipient of those copies usually does not demand the right to attend and see any of the originals. But not attending may be a mistake.

Of course most of a suit’s producible records are neither very important, nor contentious, nor dubious. So counsel do not want to waste days and thousands of dollars getting or seeing originals of routine correspondence. But one or two fairly short attendances to see originals are often time very well spent. There are a host of reasons for that. Here are some.

1. Glancing over the originals will give a good impression of how organized and thorough the opposing counsel is. More important it suggests whether the host counsel and their client have done a good job of searching for and finding all producible records. And whether the records have been marked, e.g. given distinctive numbers.

2. Very few litigants find or identify all their producible documents. Sometimes very important records, or even whole collections of them, are omitted. Even if you have learned that, you probably need proof for an application to get the rest. Often the evidence that something is omitted is a detail on another routine record produced. For example, a reference in it to another record, another file number or project number or order number, or incorrect topic headings suggesting an incomplete email string. Or staple holes or punched holes suggesting former connection with files or other records. If one producible record was not disclosed, it probably lives with some other producible records also not disclosed. A record rarely lives all alone. Some lawyers think that the only way to look for relevant records is to guess at a phrase or two and use them to ask a computer to make a Boolean search. That rarely leads to all the relevant records. The “old-fashioned” search methods involving thinking, and asking questions, and looking at known records, are still needed.

3. Finding what persons were involved and who received, read or commented on certain records, is a vital step in discovery. If a record is really important, all the copies of it and who received or created it, can be important. It helps you plan whom to examine for discovery (question). And if there are several copies of an important record, often some will have added comments, whether by computer or by ballpoint pen.

4. That is especially important where the records were originally electronically composed, or were electronically sent or received. The distinction in computers between an “original” and a copy is even more important than it is for paper communications. For example, the “native format” of an email, a Word document, or an Excel spreadsheet. Often it contains metadata about its creation date, its author, its editor, and times of sending and of receipt. A later print-out, download, or scan will very often change or omit such information.

5. A truly important record needs careful attention to the original in the manners described in numbers 2, 3 and 4 above. Its original also needs inspection for other things, such as

(a) whether the copy provided is complete, and in the right order of pages, and with no words cut off. Some records have things on the back, such as printed conditions.

(b) whether any writing is in a different color or style, suggesting later insertions or deletions. Or even negative amounts in accounting records.

(c) whether the supposed original really is an original, or is itself a copy or a scan. If so, where is the original? Was it discarded or torn up, or pledged, or given away? That can be extremely important. Or does it contain something not disclosed here? (See items a. and b. above.) In Alberta law, usually a copy is not admissible evidence of a record. And affidavits of records on both sides create admissions of authenticity (by you for example), unless the contrary is stated.

6. Dates on important records are often inaccurate, for a whole host of reasons, some clerical, some formalistic, and some computer quirks. Yet in commercial litigation, timing and order of communications can be decisive.

7. A copy or scan or cross-copy of a record may have had a very different life and circulation than the original, and involve different people. Use of computers makes that more common, not less.

You may think that the concerns and dangers above are theoretical or unlikely actually to occur. But I spent years litigating with discovery of records and examining for discovery (questioning). I have personally encountered all of the paper problems, in actual Alberta lawsuits. So have other counsel getting electronic discovery in recent years. And I have encountered other reasons for demanding originals too, but this blog is already long enough.

http://www.legalviews.com/coteopinion127.htm...

Hon. J.E. Côté

01/07/2026

JANUARY REVIEW

January often makes us look at the year past, and resolve to do things better. But vague thinking in January usually leads nowhere. A few very specific corrections usually work better, if they closely apply to a law firm or law office.

Here are seven axioms which have been widely adopted for a very long time. Pick three of them for your law practice!

1. We feel sickness keenly, but never notice healthiness. This old English saying reminds us that when an organization or a system works, its good results seem inevitable, even automatic. But when some good practice shrivels up and blows away it is forgotten, and the resulting problems seem mysterious. That is because when we succeeded, we were not familiar with why we succeeded.

2. Seven may be company, but nine are confusion. This old English saying is confirmed by studies of law firm organization. A law firm which grows to over 8 lawyers becomes different in kind. Six or seven lawyers who get on and frequently have coffee or lunch together, may not need many rules, regulations, formal meetings, or actual training. After growth beyond that, the lawyers do not think to formalize anything, until confusion and failure have occurred too often.

3. Opening a shop is easy; what is hard is keeping it open. This old Chinese saying reminds us that existing clients are not enough; we constantly need some new ones. And we need to know why we are losing old clients or not attracting many new ones.

4. Bad workers do the thing first, then seek advice. This old Hebrew saying explains a number of nasty surprises. Some people want to appear all-knowing and so do not ask advice until their error cannot be concealed any longer. Others are short-sighted. Others leave tasks undone until the last minute. Others think that apologizing is less work than seeking advice or confirmation and waiting for it. In some firms, the latter may seem true.

5. Don’t throw away your old shoes until you have new ones. This old Dutch saying sounds obvious. But the federal government removed its old salary payment computer program before really trying out the new Phoenix one. And some cities cancel bus routes years before the new L.R.T. line actually comes into regular service. New ideas tempt amateurs, and what is tried and true is now unfashionable.

6. When shepherds quarrel, the wolf grows fat. This old German saying reminds us that internal cooperation and willingness to help each other produce effects stronger than the best of us. But a large group of able people who see each other as a threat, can be the most useless organization in town.

7. One who serves everybody is paid by nobody. This old English saying points out that people want tasks done for the common good, but are too busy to do any of them themselves. And if those tasks are added to some lawyer’s existing tasks, he or she will get no real credit for doing them, especially if pay is based on billings or bringing in new clients. The person so tasked will then either neglect those tasks, or change law firms.

http://www.legalviews.com/coteopinion126.htm...

Hon. J.E. Côté

12/18/2025

WHERE TO SUE?

It is important to consider which province has jurisdiction for a suit, if more than one province seems to be involved in the dispute. That is doubly so if the lawsuit is going to be commenced somewhat close to the end of any arguable limitation period.

Plaintiffs living in Alberta sued over a motor vehicle collision in British Columbia. The plaintiffs lived here and the medical treatments and disability were in Alberta. The plaintiffs sued in Alberta and served the defendant in British Columbia where he lived. The defendant argued that not only was Alberta not the more appropriate or suitable forum, he also argued that Alberta lacked jurisdiction simpliciter. In other words, at common law Alberta had no jurisdiction at all. A mistake on that topic would be fairly easy, as the Supreme Court of Canada some years ago changed the rules for (bare) jurisdiction simpliciter, and substituted vaguer tests. To confuse things further, the tests for the very different topics of jurisdiction simpliciter and more appropriate forum, were given the same name (though somewhat different contents). And some provinces have enacted legislation about jurisdiction simpliciter but others have not.

I cannot comment on the substance of jurisdiction simpliciter in this case, as the plaintiffs later admitted that Alberta lacked it, so the Alberta judge did not analyze it. That of course made the topic of more appropriate forum irrelevant.

The plaintiffs tried an ingenious way out of the problem. British Columbia has legislation allowing the transfer of a lawsuit from another province to British Columbia. Alberta has no such legislation, but there is Alberta case authority saying that Alberta courts have inherent jurisdiction to order that. The judge here declined to do that on these facts and absent Alberta legislation. Furthermore, the whole problem was the British Columbia limitation period, which would bar a new suit in British Columbia. The judge pointed out that the British Columbia legislation appeared to bar keeping the old lawsuit, but running it in British Columbia, if the British Columbia limitation period had expired.

What are the two morals to this story?

1. If a limitation period has apparently been missed, or proceedings are arguably in the wrong court, get high-quality legal advice about whether any repair is still possible, e.g. by trying to attach to or create a lawsuit another way.

2. If litigation may be needed and more than one province (or country) may be involved (or may house the opponent’s assets), get immediate good legal advice about where to sue and in what court and when. Do not give advice about the law of another province. It may have practical issues you have never thought about. If there is no clear certain answer, sue in good time in both jurisdictions or courts. You can always discontinue one suit later when things become clearer.

The recent decision is Kaur v. Retzlaff 2025 ABKB 753, JCE 2203 06895 (AJ Dec 16).

http://www.legalviews.com/coteopinion125.htm...

Hon. J.E. Côté

12/18/2025

NOTICE TO THE PROFESSION AND PUBLIC

Suspension of Appeal Conferences and Judicial Dispute Resolutions as of January 1, 2026

December 18, 2025

Effective January 1, 2026, the Court of Appeal of Alberta will suspend both the Appeal Conference (AC) and the Judicial Dispute Resolution (JDR) pilot projects. ACs and JDRs will not be scheduled after that date. This change follows the one recently made by the Court of King’s Bench of Alberta with the launch of its Family Focused Protocol.
This suspension affects the following Notices to the Profession and Public which were issued on August 14, 2020:
• Appeal Conferences Pilot Project for Family Law Fast Track Appeals
• Judicial Dispute Resolution Pilot Project

Ritu Khullar
Chief Justice of Alberta

12/11/2025

RESTORING CORRECT FILINGS

The Court of King’s Bench filing problems may be at a new nadir.

A self-represented appellant had a statutory right to file an appeal. No legislation said how that was to be accomplished, though the statute did give a time limit for appealing.

It was customary to start appeals under this statute by filing an Originating Notice. This appellant carefully drafted (or had prepared) a completely correct Originating Notice, and an affidavit whose filing no one later criticized. Being self-represented, the appellant went to the counter to file these. The Clerk thought the affidavit too long (probably for dubious reasons), and would not file either document. But the Clerk did mention Family Docket Court. The appellant went there and got from a judge a fiat allowing filing.

Back at the counter, the Clerk filed the documents. But the Clerk did not put a new file number in the blank on the Originating Notice, and instead filled in an existing file number from a different (but likely related) lawsuit. And the Clerk crossed out the word “Originating” in the title of the new pleading before filing it.

A King’s Bench justice later charitably suggested that the Clerk may have become confused by “a labyrinth of filing forms and procedures and ... triages” imposed and published by the Court of King’s Bench. That could well be the case.

The respondent, doubtless delighted with the Clerk’s eccentricity, argued that this was all a nullity, that a simple Application could not start an appeal, and that none of this was curable because the deadline for filing had since passed.

The justice did cure the situation, pointing out that in all material aspects, the appellant had done things correctly (and on time). If there was any mistake or flaw, it was the Clerk’s. The appellant was not asking to have his own work corrected. The errors were the court’s, not a litigant’s. The work to correct was the court’s. The justice distinguished one Court of Appeal precedent, probably correctly. One could suggest several other good reasons why the justice was correct and there was nothing incurable here (such as the fiat and lack of legislation about form under this statute). But the reasons given suffice.

Had the appellant had a lawyer, the filing counter would have been off-limits, the papers would never have been filed, and the argument that there was no timely appeal would have been plausible.

As the justice hinted, and frequent recent procedural decisions show, someone should do something to prevent and cure all the recurring filing messes, insuperable barriers, and gross injustices. They have gone on too long.

See De Meyer v. Pedora 2025 ABKB 682 (Nov 25).

http://www.legalviews.com/coteopinion124.htm...

Hon. J.E. Côté