December 15 , 2023

Limitation Periods Have Shrunk

November 30 , 2023

Advocacy's Key

November 28 , 2023

Motions Fritter Away Time and Money

November 27 , 2023

Will Foreclosure History Repeat Itself?

November 21 , 2023

Rules of Court Bind Even the King's Bench

November 2, 2023

Records and Affidavit of Records

November 2 , 2023

Uncommon Law

October 20 , 2023

Expanding Judicial Review Evidence

June 22, 2023

Competition v. Benefits

June 19, 2023

Clogged Courts

June 12, 2023

Preparing Applications in Uncertain Conditions

May 8, 2023

Competence is a Delicate Flower

March 30 , 2023

Urgent! Very Hard to Meet a Limitation Period

March 13 , 2023

Parties to Planning Appeals

March 7 , 2023

Costs in Family Law Litigation

January 30 , 2023

Dodging Settlement Privilege

January 4 , 2023

Lurking Dangers and Errors

January 3 , 2023

Your Real Goals

December 5 , 2022

Contracts for Higher Costs

November 24 , 2022

Scope of Offers to Settle

October 13 , 2022

Checklist for Cross-Examination

September 16 , 2022

Reviewing Latest Changes

August 22 , 2022

First Steps in Problem Solving

July 28 , 2022

Checklist of Powerful Procedural Principles

March 22 , 2022

Repeating a Cross-Examination Question

January 25 , 2022

Enforcing Land Sales Becomes Easier

January 5 , 2022

Proving a Settlement After a Mediation

November 16, 2021

Types of Injunctions

October 1, 2021

Orders After Litigation is Over

August 11, 2021

Discoverability for Limitation Periods

August 5 , 2021

Releases of Claims

June 7 , 2021

Language Used Still Matters

May 17 , 2021

Serving Uncooperative People

April 15 , 2021

Death and After-Life of Contingency Agreements

February 22 , 2021

Legal Analysis

February 2 , 2021

Costs Clarified at Last

January 4 , 2021


December 10, 2020

Traps and Confusion in Service Times

November 24, 2020

Don't Cut Corners

October 2 , 2020

Consent Orders

August 4 , 2020

Electronic Hearings

July 21, 2020

Ceasing to Act

June 29, 2020

Writing Skills

June 29, 2020

Keeping Up With the Law

June 22, 2020

Assets as a Test for Security for Costs

June 19, 2020

What is This Case About?

June 11, 2020

Cross-Examining Child Witnesses

May 20 , 2020

Formal Offers

May 13 , 2020

Vexatious or Self-Represented Litigants

January 7, 2020

G.S.T. and Costs

December 20 , 2019

Electronically Navigating the

October 7 , 2019

Questioning is a Bad Word

July 29 , 2019

Dismissal for Delay

May 7 , 2019

Rule 4.31 Fallacies

March 18 , 2019

More Dangers in Oral Fee Agreements

February 11 , 2019

Weir-Jones Decisions

January 9 , 2019

Discouraging Settlements

November 30, 2018

European Court Helps You Twice?

November 23 , 2018

Courts Overruling Tribunals

November 16 , 2018

New Evidence on Appeal

October 30 , 2018

Schedule C's Role

July 17 , 2018

Loopholes in Enforcing Settlements

May 7 , 2018

Enforcement of Procedure Rules

April 16, 2018

Limping Lawsuits are Often

April 3 , 2018

Court of Appeal Tips for
Summary Decisions

March 19, 2018

Serious Dangers in Chambers

February 13 , 2018

Court Backlog

December 18 , 2017

Lowering the Status of Courts

September 15 , 2017

Access to Court Decisions

July 4 , 2017

Strictissimi Juris

June 14 , 2017

Why Don't Your Clients Settle?

June 5 , 2017

Gap in Rules About Parties

June 5, 2017

Personal Costs Against

April 26, 2017

Clogged Courts

April 11, 2017

Dismissal for Want of

January 6, 2017

Incomplete Disclosure

December 15, 2016


November 23, 2016

Is Contract Interpretation Law?


Côté’s Commentaries

© J.E. Côté 2016-2023




For an advocate, binding law is the vital key in two situations. One situation is a quick contest with limited time or words, such as an application without a trial. Another is any proceeding before the Court of Appeal.

Why? At a trial, maybe facts often matter more than law. But most lawsuits never go to trial. Facts vary and are lengthy and complex. What is quick and uniform? Law, especially a clear statute or a binding appellate precedent.

“Not always in King’s Bench chambers”, you may think. But any decision in King’s Bench contrary to binding appellate authority (or an Act) has foundations of sand. Rain will wash it away. When the very able Brigadier Nolan was a senior Alberta litigator, he used to warn lawyers in his firm not to win in the trial court on grounds which they could not hold on appeal.

If you win in a trial-level court when there is a single Alberta Court of Appeal decision which even seems contrary, that will strongly tempt your opponent to appeal. But had you known about that decision earlier, you could have adjusted your evidence or arguments, or distinguished the precedent. That would have left no ground for appeal.

So never go very far down some path, without first checking whether the law clearly favors you. Occasionally trial-court judges state views contrary to binding authority (or statute). But usually that happens because no one has looked up and cited the binding authority. Few trial-level judges simply dislike known appellate authority (or statute) and are determined to dodge it.

Counsel and judges do not try to fly in the face of Supreme Court of Canada authority. But many counsel and a few judges simply do not think to emphasize Alberta appellate decisions, still less give them superior power. (Decisions of the N.W.T. and Nunavut Court’s of Appeal are almost as strong, given the very large overlap in those courts’ judges with the Alberta Court of Appeal.)

Why do so many lawyers and judges indiscriminately mix binding and non-binding authorities together in the same stew? Law schools often dislike seeing any appellate authority as binding, leaving the impression that trial-level and appellate-level authority are all the same. Or treat a distant appeal court’s decision as just as binding here as a decision by our local Court of Appeal. Therefore, counsel who looks up a topic online and is faced with 60 reported decisions on a topic, tends to read the latest four. If they are consistent, the lawyer then stops looking. Maybe only 3 of the 60 are Alberta Court of Appeal decisions, readily findable. But many counsel do not even look for them, let alone read them.

Raise your strongest point very early, maybe first. That is a key rule of advocacy. Do not wait until your opponent has plausibly presented lesser arguments, and begun to beguile the judge. True, some legal arguments can be long and complex. But usually you can quickly and simply present one or two binding appellate authorities on point.

Often opposing counsel’s arguments are lengthy and complex, relying on many different topics and subtopics. A binding piece of law (statute or appellate decision) often lets you bypass most of that complexity. To a busy judge in chambers, that can be manna from Heaven. One extremely able counsel used to say “Nothing is more frightening than an opposing counsel who comes up to the lectern carrying nothing but a loose part of the Supreme Court Reports.”

On a procedural application before one justice of the Court of Appeal, often you have to show that your case is arguable. How? Citing even one decision on point by the Alberta Court of Appeal may well suffice. And when a panel of three Justices hear an appeal, they need to know whether the law being considered is novel, or settled. That governs how the draft judgment is to be written and discussed before decision. Citing previous appellate authority usually settles that topic. It may even get you a victory without the panel of judges calling upon you to argue.

So whether you won or lost in the first court, you are likely to end up before the Court of Appeal, and lose there, if at the outset you did not check binding authority. The Court of Appeal rarely owes deference to the first court on extricable questions of law. Even if your research omission does not unconditionally put you out of court, the law which you never looked up may in turn require evidence which you never thought to provide. Nor think to cross-examine about. That’s often equally fatal.

– Hon. J.E. Côté


The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.

The Hon. Jean Côté retired from the Court of Appeal of Alberta and would be willing to act as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.

He may be contacted through Juriliber at:

email: or phone 780-424-5345.