On Dec. 21, 2021, we published a case comment on then-Master Prowse's decision in Clearbakk Energy Services Inc v Sunshine Oilsands Ltd (the Master's Decision).[1] We commented that the Master's Decision represented a potential challenge to the general practice in Alberta that a respondent can defer filing its responding affidavit until after questioning on the applicant's affidavit. The Master stated that a respondent should file its responding affidavit prior to cross-examination on the applicant's affidavit, and that if the parties cannot agree on that process, the applicant should seek the Court's intervention. The Master went on to grant summary judgment to the applicant, Clearbakk Energy Services Inc. (Clearbakk Energy) and dismiss respondent, Sunshine Oilsands Ltd.'s (Sunshine) counterclaim.
In our case comment, we noted that the Master's Decision on the order of cross-examination did not align with prior decided cases on this issue. We also questioned whether more complex cases could fit into the approach the Master proposed, and gave an example of a summary judgment application relying on opinion evidence from expert witnesses.
On appeals, both the Alberta Court of King's Bench and the Alberta Court of Appeal rejected the Master's approach to questioning on an affidavit in support of an application. As long as it is compliant with the Rules of Court, Alberta counsel may make decisions on litigation strategy, including the order of evidence in response to an application.
Court of King's Bench decision
The Master's Decision was appealed to Justice C. Jones of the Alberta Court of King's Bench (the Justice's Decision).[2] Appeals from a Master (now known as an "Applications Judge") to a Justice of the Court of King's Bench in Alberta are de novo appeals, meaning the Justice owes no deference to the Master's decision. With approval of the Court, the parties may also tender new affidavit evidence on appeal. Justice Jones held that the Master erred in granting summary judgment by placing too much emphasis on two things:
[6] First, the Master was of the opinion that Sunshine should have filed its own affidavit in response to Clearbakk's application. While the Master acknowledged that the Alberta Rules of Court, unlike those in other jurisdictions, do not require a responding affidavit, he felt that cross-examining Clearbakk's affiant before filing a responding affidavit was a waste of time. He also believed that, by proceeding in this manner, Sunshine was in breach of its obligations under Rule 1.2(3)(a). The Master's view was that this procedure ensured that the litigation would become unnecessarily lengthy and expensive.
[7] I do not agree. While there may well be circumstances in which filing a responding affidavit is necessary or more efficient, that will not always be so. It is significant that our Rules do not require this. So long as it is compliant with the Rules, litigation strategy is to be determined by counsel and Sunshine was entitled to proceed as it did.
Justice Jones also held that the Master "set great store by the fact that Sunshine received services from Clearbakk and did not pay for them." In Justice Jones's view, the matter of which contract applied to the dispute was a relevant, live issue and prevented Clearbakk Energy from obtaining summary judgment.
Court of Appeal Decision
The Court of Appeal[3] implicitly agreed with Justice Jones's view that Sunshine was not required to file a responding affidavit prior to cross-examining Clearbakk Energy's affiant. The Court of Appeal held that:
[14]… Sunshine decided not to file evidence in response and instead relied on its cross-examination of Clearbakk's affidavit, as it was entitled to do.
Implicit in this statement is that Sunshine was entitled to conduct its cross-examination on Clearbakk Energy's affidavit prior to deciding whether to file any responding evidence, in line with the general Alberta approach.
Interestingly, the Court of Appeal restored the Master's Decision to grant summary judgment to Clearbakk Energy and dismiss Sunshine's counterclaim. The Court of Appeal found that "[t]here is no doubt this case exemplifies imperfect litigation" and that "[b]oth courts below were distracted with the imperfections of this litigation." However, ultimately, the Court of Appeal found that the claim could be distilled to make necessary findings to determine the real issues in dispute, and there was no genuine issue requiring a trial on the record.
Takeaway
Alberta counsel faced with an application and a demand from the applicant's counsel that the respondent must file its own affidavit before cross-examining the applicant may now point to Justice Jones's express statement in the Justice's Decision. Namely, that so long as a procedure is compliant with the Rules of Court, litigation strategy is to be determined by counsel. Despite the Court of Appeal overturning the result in the Justice's Decision, Justice Jones's reasoning on cross-examination procedure remains intact. As noted in our prior case comment, this is also consistent with Justice Lema's decision in Unterschultz v Clark.[4]