Executive Summary: Key Legal and Evidentiary Issues

• Disagreement over whether the Consent Order waived the Defendants’ right to conduct Part 5 questioning of the Plaintiff.

• Legal determination of whether a procedural consent order can limit pre-trial rights before a defined “completion” point.

• Interpretation of waiver requiring clear, unequivocal intent and full knowledge of rights being relinquished.

• Analysis of whether delays and silence by the Defendants constitute abandonment of further questioning rights.

• Plaintiff’s reasonable belief that all questioning obligations were fulfilled following unanswered undertaking responses.

• Court enforcement of strict deadlines to prevent further delay and ensure timely trial scheduling in the ACOJ.

Background and facts

Yu Hyun Cho, the Plaintiff, initiated legal proceedings against Harmony Ceramic Dental Laboratory Ltd. and Myung Chul Yoon. In an effort to advance the stalled litigation, the parties entered into a Consent Order on January 12, 2023, which was signed by Justice P.R. Jeffrey. The order included key procedural agreements: the Defendants abandoned their appeal, were allowed to question John Faul on his affidavit, and the matter was to be transferred to the Provincial Court of Alberta (now the Alberta Court of Justice or ACOJ) upon completion of specified questionings.

A central issue arose regarding whether this Consent Order also waived the Defendants’ right to conduct Part 5 questioning of the Plaintiff. The Plaintiff contended that by entering into the Consent Order, the Defendants had relinquished that right. This issue was brought back before Justice Jeffrey for interpretation.

Interpretation of the Consent Order

Justice Jeffrey ruled that the Consent Order did not waive the Defendants’ right to Part 5 questioning prior to the “upon completion” date specified in paragraphs 6 and 7 of the Consent Order. He clarified that the waiver of further pre-trial rights only became effective after the completion of the questionings referred to in paragraphs 2 and 5, namely, the questioning of John Faul and Myung Chul Yoon. There was no language in the Consent Order or its formation record indicating an unequivocal intention by the Defendants to waive the right to conduct Part 5 questioning before that completion point.

The Court found that the Consent Order was an interlocutory procedural order and should be interpreted as a contract between the parties. The terms did not foreclose additional pre-trial steps in the Court of King’s Bench before the agreed “completion” milestone. However, after that milestone, the parties explicitly agreed to forego all further steps in that Court and proceed to trial in the ACOJ.

Developments and judicial directions

By Q4 2024, the Plaintiff had been questioned, and in January 2025, responded to all undertakings. The Plaintiff then attempted multiple times to initiate trial scheduling in the ACOJ, consistent with paragraph 6 of the Consent Order. The Defendants failed to respond, did not raise any concerns about the undertaking responses, and gave no indication of wanting to continue questioning.

Only after the Plaintiff applied to the Court for advice and directions did the Defendants claim, for the first time, that the Plaintiff’s undertaking responses were deficient and that follow-up questioning was needed. Justice Jeffrey found this delay unreasonable and contrary to both the Consent Order and the foundational Rules of Court.

Despite this, the Court acknowledged that technically, follow-up questioning could still be considered incomplete. As a result, the Defendants were given one final opportunity to submit written follow-up questions no later than 12 noon on June 20, 2025. The Plaintiff would then have 30 days to respond under oath.

Outcome and consequences

The Court ordered the following:

• Defendants must deliver written follow-up questions by 12 noon on June 20, 2025.

• The Plaintiff has 30 days to respond under oath.

• Regardless of whether questions are submitted, the matter must transfer to the ACOJ for trial scheduling on Monday, June 23, 2025.

• Any disputes over the written questions or responses shall be dealt with by the ACOJ.

• The Court was inclined to award the Plaintiff enhanced costs of $2,500 for the application but invited the Defendants to respond before making a final determination.

• If any costs are ordered and not paid by June 20, 2025, the case will not transfer to the ACOJ. Instead, a further hearing will be held in the Court of King’s Bench where the Defendants must show cause why their defence should not be struck.

Justice Jeffrey concluded that the Plaintiff had acted reasonably and diligently, while the Defendants’ delays and silence undermined procedural fairness. The Court’s rulings aimed to enforce compliance with the parties’ original agreement and move the case forward without further obstruction.