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Judicial Deference and Discretionary Decisions of the Lower Court: Case comment on Gordon v. Cote, 2023 ABCA 22

Judicial Deference and Discretionary Decisions of the Lower Court: Case comment on Gordon v. Cote, 2023 ABCA 22

The Carscallen LLP team of Jennifer Lamb and Shannon James were successful before the Alberta Court of Appeal in the recent case of Gordon v. Cote12023 ABCA 22. This case is a reminder to parties and their counsel that ignoring the timelines set out in procedural orders from the Court is done at one’s peril. Gordon also highlights that discretionary decisions of lower Courts are entitled to a high degree of deference on appeal, and are not to be interfered with lightly.

This case concerned a will challenge by Ms. Cote, the daughter of the testator. Ms. Cote’s brother, Mr. Gordon, filed an application for summary judgment to have the challenge dismissed. By way of a consent procedural order (the “CPO”), the summary judgment application was scheduled for a one-day hearing, and the parties agreed to certain timelines for completion of pre-hearing steps, including the filing of affidavit evidence and the completion of questioning on such affidavits. One of the terms of the CPO was that any interlocutory applications in relation to the summary judgment hearing were to be filed and served on the other parties no later than June 10, 2022. 

The deadlines in the CPO were generally followed, with only one deadline extended by agreement of the parties. 

However, on November 4, 2022, Ms. Cote filed an expert report as part of her opposition to the application for summary judgment. The filing of expert evidence was not authorized or contemplated by the CPO. Mr. Gordon applied to the Court of King’s Bench of Alberta to strike the  expert report off the Court record pursuant to section 4 of the Alberta Surrogate Rules (an application for directions) on the grounds that the CPO did not allow for the filing of expert evidence and Ms. Cote had not applied to vary the CPO.

The Chambers Judge agreed with Mr. Gordon and granted the application, directing that the expert report would be struck and that the parties were to proceed to the one-day special application with the evidence already filed and authorized by the CPO. In rendering his decision, the Chambers Judge noted that the CPO did not address expert reports, but that it did include a deadline for filing any  interlocutory applications to deal with unforeseen matters or to vary timelines. Ms. Ms. Cote had not filed any application to the expert report admitted in evidence, nor even told the other parties of her intention to rely on expert evidence.

Ms. Cote appealed. 

In dismissing the appeal, the Alberta Court of Appeal noted that section 4 of the Alberta Surrogate Rules gives the lower Court discretion when providing directions. Absent an error of law, such a discretionary decision will not be overturned lightly and then only where the discretion is exercised unreasonably. 

In this case, the Court of Appeal found that the Alberta Court of Appeal found no error in the manner in which the Chambers Judge had exercised his discretion: the Chambers Judge considered all of the relevant facts and noted that a Court can make adequate conclusions with respect to the interpretation of medical records, without necessarily having recourse to expert reports. Further, the Chambers Judge expressed concern about the late filing of the expert report, and about Ms. Cote’s failure to communicate her intention to obtain an expert report to the other parties. No explanation was provided

The Court of Appeal noted that Ms. Cote had never appealed the terms of the CPO, which, as a consent order, would have required leave of the Court, nor had she sought to vary the terms of the CPO. Ultimately, the Court of Appeal concluded that, by filing the expert report in November 2022, Ms. Cote was attempting to circumvent the CPO. 

Gordon v. Cote reinforces the fact that the Court of Appeal will allow the lower Court a great deal of latitude in making discretionary decisions. Although Gordon dealt with the exercise of discretion conferred by section 4 of the Surrogate Rules, the principles applied by the Court of Appeal have application in relation to many other matters involving the exercise of judicial discretion, including costs awards, prejudgment interest decisions, family support orders and many other types of decisions. 

The issue of appellate standard of review in a discretionary matter is well canvassed in the recent Supreme Court of Canada decision Canada (Transportation Safety Board) v. Carroll-Byrne22022 SCC 48.  In that case, (which was not referred to in Gordon v. Cote)following an airplane accident where people were injured, the defendant airplane manufacturer filed an application as per s. 28(6) of the Canadian Transportation Accident Investigation and Safety Board Act for production of the privileged audio and transcript from the cockpit video recorder (“CVR”). 

After weighing the importance of privilege against the public interest in administration of justice, the Supreme Court of Nova Scotia order the privileged CVR produced. The Nova Scotia Court of Appeal agreed. The Supreme Court of Canada discussed the approach on appeal of discretionary decisions. It stated that if the chambers judge applied a wrong legal test in the exercise of the discretion, that is an error of law. Such a finding would preclude the appellate court from affording the deference that is normally given to a lower court in a discretionary decision. However, on the other hand, if the lower court has correctly identified the factors to consider and weigh but has simply assigned different weights than what a party may have wished, that decision deserves deference absent a palpable and overriding error or proof that the discretion was not exercised judicially. 

Gordon v. Cote is another case highlighting the deferential approach of the Alberta Court of Appeal to discretionary decisions of the lower Court. Judicial deference is a cornerstone of the common law, promotes the overall efficiency of the court system and deserves careful consideration by appellants when considering the likelihood of success on a potential appeal.

  • 1
    2023 ABCA 22
  • 2
    2022 SCC 48
*This update is intended for general information only on the subject matter and is not to be taken as legal advice.

Posted: February 8, 2023

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