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Procedural Fairness Perspective From a Former Alberta Lawyer


Procedural Fairness Perspective from a former Alberta Lawyer
by Grant Brown

A response to Gene C. Colman’s article re Chand v. Chand

We have different rules and procedures in Alberta compared to Ontario, so it is difficult to make comparisons. But the following might be of assistance:

We don’t have a unified family court in Alberta. Family disputes can be heard both in Provincial Court and in QB. Provincial Court theoretically adopts the rules for QB, when the litigants or their lawyers insist on it, but this is rarely done. It is much more “informal.” The basic idea of Provincial Court is that the parties just show up, on notice to the other side (but without an exchange of affidavits); they get sworn in and give their testimony then and there in front of a judge. The problems are obvious – you never know what the other side is going to say, what position they will take on various issues, until the hearing, by which time it is too late to bring refuting evidence or to properly prepare to cross-examine the witness. You can usually get an adjournment, but an interim order will be made based on what is said. The relevant point in relation to “Chand” is that it is utterly commonplace – one might even say, the normal practice – in Provincial Court in Alberta not even to go through the formalities of swearing in the witnesses and taking their testimony. What usually ends up happening is that the lawyers stand up and give their schtick, the judge decides the situation is too complex for a viva voce hearing that instant, orders a longer hearing at a later date, and makes an interim ruling until the later hearing. I would say that in Provincial Court, making an interim ruling in the absence of any sworn testimony whatsoever – based solely on the verbal representations of the lawyers (or sometimes a case-flow clerk, who interviews unrepresented litigants before the session starts) – is the normal practice.

First applications in QB are usually made in “morning chambers.” You file a Notice of Motion and supporting Affidavit, serve it on the other side; they swear a responding affidavit; and you show up for a hearing expected to take at most 20 minutes. The judge is supposed to make a decision based on the Affidavits, but rarely even reads the affidavits. Typically, again, the lawyers simply give their schtick loosely based on what is in the Affidavits. Often enough, though, lawyers will introduce new “facts” at morning chambers. You can object to misrepresentations and new evidence, but that usually isn’t very effective – the damage has been done. Again, the normal practice if QB morning chambers in Alberta is for a judge to make a “temporary” interim order supposedly based on sworn affidavit material that was not read by the judge, and defer any more complex decision to a longer hearing. It is commonplace in QB morning chambers to hear a judge say that it would be improper to make a ruling on the basis of sworn testimony alone – that when important evidence is contested, a judge MUST make a decision based on viva voce testimony subject to cross-examination in front of the judge. The principle they appeal to is that when material evidence is contested a judge must not make a determination of credibility on the basis of affidavit evidence alone; credibility can only be assessed based on viva voce testimony subject to cross-examination in front of the judge. So the judge orders a trial and makes an interim ruling based on supposedly uncontested evidence from the affidavits. That is usually impractical; what typically happens is that mom gets her way – mom’s testimony is de facto deemed more credible even if the judge says that credibility cannot be determined.

I had one case that I write about in my forthcoming book where the following happened: I set up a “Special Chambers” application. A Special is a longer application that takes place in the afternoon. The process takes about 4 weeks – one side files a Notice of Motion and Affidavit; then a week later the other files a responding affidavit (and a cross-application, if they want to raise different stuff); then a week later the first side files a Reply Affidavit to address anything new arising from the respondent’s materials; then there are cross-examinations on affidavit if the lawyers think it is necessary (not often); then a week later the lawyers submit a brief to the Court; then the judge reads everything and a week later there’s an hour-long submissions in court. So, we went through the whole process and the first thing the lawyer said when our case was called is that her client had “just” told her that the child had “been diagnosed with water on the brain” and therefore could not take the school bus to my client’s residence; he had to stay with mom and walk to school. This medical information was nowhere in the sworn materials; and the lawyer – a Q.C. – did not even bother to warn me in advance by correspondence or by phone that she would be relying on this “evidence.” She didn’t even tell me as we sat in court waiting our turn. When I objected, the judge simply said that she was not going to risk the child’s health on the basis of a “technicality,” and that she HAD to take this information into account “in the best interests of the child.” She made an order in favour of the mother (of course), but indicated that it was reviewable on 2 days notice if my client wished to contest it with better medical information. When I advised my client, he told me that the diagnosis was just a routine sinus draining that he had before. We went back to court, in another Special Chambers application, and set the record straight. I asked for costs for both applications on the basis that the mother had given false and unsworn evidence at the first one. The Q.C. admitted to the second judge that she knew about her client’s medical “evidence” at least a week before the first Special Chambers hearing, but that she deliberately declined to inform me about it – despite corresponding with me on other matters – so that I could not convey it to my client, refute it, and deal with it at the first hearing. We “won” the second application, but I didn’t even get costs for the deliberately abortive first hearing. The judge even said in his written ruling that the Q.C. did the right thing by bringing this information to the attention of the judge at the first hearing! Bringing false, unsworn “evidence” to court, without advising the other side in advance, despite having at least a week to do so, was, in the opinion of Justice Lee, the right thing for a lawyer to do.

There is a lot of talk among bloggers about how Human Rights Tribunals are “kangaroo courts”, and that what goes on there would never be allowed to happen in “real courts.” I have news for them. So-called “real courts” are in fact kangaroo courts; human rights tribunals are just gong shows. And the worst of the “real courts” are family courts.

May 10, 2010
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