B.E.W. Plaintiff (Respondent) - v. -, 2010 ABQB 796

Court of Queen ’ s Bench of Alberta Citation: B.E.W. v. Alberta, (Child, Youth and Family Enhancement Act, Director) 2010 ABQB 796 Date: 20101213 Docket: 9603 15431 Registry: Edmonton Between: B.E.W. Plaintiff (Respondent) - and - The Government of the Province of Alberta, D.B. and P.B. Defendants (Applicants) Restriction on Publication: No one may publish any information serving to identify a child or guardian of a child who has come to a Minister ’ s or a director ’ s attention under the Child, Youth and Family Enhancement Act .

See the Child, Youth and Family Enhancement Act , s. 126.2. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice D.R.G. Thomas _______________________________________________________ I. Introduction .......................................................................................................... Page: 2 II. Factual Background ........................................................................................... Page: 2 III. Rules of Court ......................................................................................................

Page: 5 IV. Decision ................................................................................................................. Page: 7

V. Conclusion ......................................................................................................... Page: 11 I. Introduction [ 1 ] The Defendants D.B. and P.B. (the “B. Defendants”) apply to dismiss the Plaintiff’s claim for want of prosecution. The Plaintiff has filed a cross-application to strike the Statement of Claim of the B. Defendants on the basis that they have failed to file an Affidavit of Records. II. Factual Background [ 2 ] The Plaintiff was born in 1956 and in 1969 or 1970 became a ward of the Defendant Government of Alberta (“Alberta”).

She remained a ward until she became 18 years old. [ 3 ] The Plaintiff was placed in the home of the B. Defendants, who were her foster parents until she turned 18. [ 4 ] The Plaintiff claims that while she lived with the B. Defendants, she was physically, sexually and emotional abused on numerous occasions. While most of the abuse was allegedly at the hands of D.B., the Plaintiff claims that P.B. was aware of the abuse and did not take any action to stop it or to protect the Plaintiff. [ 5 ] The B.

Defendants deny that they ever physically, sexually or emotionally assaulted the Plaintiff, or other children in their care. They also deny that they had any knowledge of any alleged assaults, or the means to stop or prevent them from occurring. [ 6 ] The Plaintiff further claims that the abuse was reported to Alberta’s agents and employees, including social workers assigned to monitor the Plaintiff’s care, but that Alberta failed to take any steps to remove the Plaintiff from the B. Defendants’ care.

Alberta denies these allegations. [ 7 ] This Action was started in 1996 and the procedural history is summarized as follows: DATE EVENT July 19, 1996 Plaintiff files Statement of Claim. May 15, 1997 Plaintiff serves Statement of Claim. June 25, 1997 Plaintiff files and serves Notice to Produce. May 8, 1998 Plaintiff’s counsel files Notice of Change of Solicitors. August 26, 1998 Alberta files Demand for Further and Better Particulars.

September 4, 1998 Alberta serves Demand for Further and Better Particulars. September 14, 1998 Plaintiff’s counsel returns the Demand for Further and Better Particulars to Alberta and advises that it is no longer acting for the Plaintiff. September 21, 1998 Alberta seeks confirmation from purported new Plaintiff’s counsel that she now represents the Plaintiff. December 14, 1998 Alberta seeks confirmation from purported new Plaintiff’s counsel that she now represents the Plaintiff. January 7, 1999 Plaintiff’s new counsel serves Notice of Change of Solicitors.

January 12, 1999 Alberta serves Demand for Further and Better Particulars. June 2, 2000 Plaintiff files Reply to Demand for Further and Better Particulars. June 6, 2000 Plaintiff serves Reply to Demand for Further and Better Particulars. October 2, 2000 B. Defendants file Statement of Defence. November 10, 2000 Alberta files Statement of Defence. November 17, 2000 Alberta serves Statement of Defence. December 6, 2000 Plaintiff files and serves Reply and Joinder of Issue.

January 25, 2001 Plaintiff’s counsel confirms with Alberta’s counsel their agreement to indefinitely extend the time required for filing and serving an Affidavit of Records. January 17, 2003 Plaintiff files Affidavit of Records. July 14, 2003 Plaintiff serves Affidavit of Records. Plaintiff’s counsel requests that the Defendants file their Affidavits of Record within the next 60 days. July 29, 2003 Alberta’s counsel raises deficiencies in Plaintiff’s Affidavit of Records. August 25, 2006 Plaintiff’s counsel requests that the Defendants provide their Affidavits of Records within 30 days. September 5, 2006 The B.

Defendants’ counsel indicates that he will prepare a draft Affidavit of Records, but that there are some difficulties in reviewing the documentation. October 23, 2006 Plaintiff’s counsel agrees to accept from Alberta an unsworn draft Affidavit of Records, together with copies of Alberta’s producible records, in lieu of a sworn and filed Affidavit of Records. October 27, 2006 Alberta delivers an unsworn draft Affidavit of Records and copies of all the producible records listed in the Affidavit.

February 25, 2009 Plaintiff’s counsel files a Notice of Ceasing to Act. July 21, 2009 Plaintiff files Notice of Motion to strike Alberta’s Statement of Defence. The application is adjourned sine die . December 4, 2009 The B. Defendants file a Notice of Motion to strike the Plaintiff’s Statement of Claim. December 8, 2009 Plaintiff files Notice of Motion to strike Alberta’s Statement of Defence and for contempt of court for failing to file an Affidavit of Records.

December 23, 2009 Alberta files Notice of Motion for advice and directions, case management, or alternatively for an order permitting Alberta to file an Affidavit of Records. January 8, 2010 The Action is ordered into case management by Thomas J. February 1, 2010 Plaintiff’s application to strike Alberta’s Statement of Defence is heard. The Court orders a stay until the B. Defendants’ application to dismiss the Plaintiff’s claim is determined.

February 5, 2010 Court releases oral decision dismissing the Plaintiff’s application to strike Alberta’s Statement of Defence and directs Alberta to personally serve the Plaintiff with a sworn Affidavit of Records by March 1, 2010. July 23, 2010 Plaintiff’s new counsel files and serves Notice of Change of Solicitors, based on a limited scope retainer in relation to the B. Defendants’ application to have the Plaintiff’s claim against them struck for want of prosecution. July 27, 2010 Plaintiff’s counsel requests that the B. Defendants file an application to allow their Affidavit of Records to be filed late.

July 28, 2010 Plaintiff files a Notice of Motion to strike the B. Defendants’ Statement of Defence on the basis that they failed to file an Affidavit of Records. August 18, 2010 The parties attend a case management meeting before Thomas J. September 2, 2010 The B. Defendants’ application to have the Plaintiff’s claim against them struck for want of prosecution is heard. The Plaintiff’s cross- application to strike the B. Defendants’ Statement of Defence is heard at the same time. III. Rules of Court

[ 8 ] The application of the B. Defendants is brought under Rules 244 , 244.1 , 244.3 and 244.4 of the Alberta Rules of Court , A.R. 390/68, as amended, (the “Rules”) [1] , which provide: 244(1) Where there has been a delay in an action, the Court on application by a party to the action may, subject to any terms prescribed by the Court, (

a) dismiss the action in whole or in part for want of prosecution, or (

b) give directions for the expeditious determination of the action.

(2) If the Court denies the relief sought under subrule (1)(a), the Court (

a) shall prescribe terms or give directions that, in the opinion of the Court, are sufficient to substantially prevent or remedy, as the case may be, any non trivial prejudice caused to any adverse party by reason of the delay, and (

b) may prescribe terms or give directions that, in the opinion of the Court, will prevent further delay in the action.

(3) If in the opinion of the Court it is unable to devise terms or directions that are sufficient to satisfy subrule (2)(a), the Court shall find that there has been serious prejudice to the party moving to dismiss the action.

(4) Where, in determining an application under this Rule, the Court finds that the delay in an action is inordinate and inexcusable, that delay shall be prima facie evidence of serious prejudice to the party that brought the application. 244.1(1) Subject to Rule 244.2, where 5 or more years have expired from the time that the last thing was done in an action that materially advances the action, the Court shall, on the motion of a party to the action, dismiss that portion or part of the action that relates to the party bringing the motion. ... 244.3 On an application under this Part, affidavits containing statements as to the belief of the deponent and setting out the source and grounds under which the deponent was able to form that belief are admissible in respect of the application. 244.4 Without restricting the generality of the Court's power to grant an order under this Part subject to any terms or directions, the Court may in granting an order do one or more of the following: (

a) award solicitor client costs; (

b) deny to the party causing the delay all or any part of the party's substantive claim, defence or relief, whether respecting principal, damages, interest or otherwise; (

c) curtail or forbid discovery or other interlocutory proceedings by the party causing the delay; (

d) require compulsory admission of facts related to the prejudice caused by the delay; (

e) modify the types or effect of evidence that may or may not be used at trial to prove some or all facts; (

f) amend pleadings; (

g) enlarge or abridge substantive or procedural time periods otherwise applying; (

h) deny costs for tardy proceedings; (

i) direct that costs be payable personally by a solicitor; (

j) require security for costs;

(

k) award interim costs; (

l) give directions respecting case management. [ 9 ] The Plaintiff’s cross-application is based on Rule 190.1, which states that: 190.1 If a party fails to serve an affidavit of records in accordance with Rule 187 or in accordance with an order of the Court made under Rule 188.1, the Court may on application by any other party (

a) strike out all or any of the pleadings of the party in default, or (

b) impose any other sanction, including an order under Rule 599.1. [ 10 ] At the case management meeting held on August 18, 2010, I adjourned the Plaintiff’s cross-application to September 2, 2010. I directed that I would hear the Plaintiff’s cross-application only after making a decision on the B. Defendants’ application to dismiss for want of prosecution. IV. Decision [ 11 ] On February 1, 2010, I heard the Plaintiff’s application to strike Alberta’s Statement of Defence on the basis of contempt, or alternatively on the basis of inexcusable delay in filing a formal Affidavit of Records.

I dismissed the Plaintiff’s application and noted the following in my oral decision rendered February 5, 2010: In any event, any delay in filing a formal affidavit of records by the Government has been completely explained by Mr. Branch. That explanation satisfies me. Alternatively, even if there is some delay present in this very slow-moving litigation, it is not inexcusable delay caused by the Government. Rather, the delay here has been on the part of the Plaintiff and her various counsel from time-to-time.

The Plaintiff’s previous counsel were apparently content to allow the matter to languish for whatever reason or reasons. Further time has passed while her current counsel, on this limited retainer, has brought this ill-conceived contempt motion. The Plaintiff has not been well served by this groundless application when the scarce resources would have been better spent breathing some life back into this piece of litigation.

That could have been done by a simple and polite request to the Government’s counsel to file a formal affidavit of records. [ 12 ] The Plaintiff argues that my comments should be interpreted to mean that a “simple and polite request” to file a formal Affidavit of Records is a ‘thing’ which materially advances the action as the request would “breath life” back into the Action. This is not necessarily the case. [ 13 ] In order to materially advance an action, the step taken must move the action forward in a meaningful way: Nelson v. Emsland , 2008 ABCA 387 , 440 A.R. 297 (“ Nelson ”) at para. 14 .

This determination demands a functional analysis: Philips v. Sowan , 2007 ABCA 101 at para. 5 . A procedural step required by the Rules will always be a ‘thing’ which materially advances an action and the completion of the required step is sufficient, in and of itself, to restart the five-year clock: Morash v. Alberta , 2000 ABCA 24 , 250 A.R. 269 (“ Morash ”) at para. 6 . Procedural steps contemplated by the Rules, although not required by the Rules, may also be enough to materially advance an action: Morash at para. 9 .

This latter category of steps may not necessarily be indicated on the procedure card maintained by the Clerk of the Court. [ 14 ] Any step taken by either party will be taken into account in deciding whether a ‘thing’ has been done in five years to

[ 14 ] Any step taken by either party will be taken into account in deciding whether a ‘thing’ has been done in five years to materially advance the action: Morash at para. 8 . The ‘thing’ relied upon must have materially advanced the action against the applying party: Angevine v. Blue Range Resource Corp. , 2007 ABQB 443 , 423 A.R. 37 at para. 22 . [ 15 ] In her Affidavit filed July 7, 2010, the Plaintiff states that she was told by her former counsel that the last ‘thing’ done to materially advance the action was on October 31, 2006, when Alberta provided their documents.

She further states that the Defendants interfered with her ability to prosecute her Action properly because they failed to file their Affidavits of Records within the required time. She argues that it would be inequitable for this Court to dismiss her claim against the B. Defendants when they have failed to comply with their obligation to file an Affidavit of Records within the time period stipulated by the Rules , and despite the requests by Plaintiff’s counsel to do so. [ 16 ] The B.

Defendants argue that the last formal step taken in the Action was on January 17, 2003, when the Plaintiff filed her Affidavit of Records. In his Affidavit filed July 15, 2010, D.B. states that he has no knowledge of any documents being provided to the Plaintiff by Alberta, and that the documents referred to by the Plaintiff were never provided to their counsel. The B.

Defendants argue that the Alberta documents do not constitute a ‘thing’ that materially advanced the Action, and that in any event, they have not been put into evidence before the Court. [ 17 ] Acts which satisfy prior commitments, such as delivering documents one has previously promised to supply, are often not ‘things’ which, in and of themselves, materially advance an action: Morash at para. 11 . A change in the Plaintiff’s legal representation has no effect on the progress of litigation: Calliou v. Bouchard , 2006 ABQB 925 at para 15 .

Correspondence is rarely sufficient to materially advance an action, and a court will look to the result of that correspondence to determine if it is sufficient to defeat an application under Rule 244.1 : Schulze v. Whitby Business Development Corp. , 2009 ABQB 163 , 468 A.R. 231 at para. 16 . [ 18 ] In para. 9 of Nelson , the Court of Appeal confirmed the approach to Rule 244.1 applications originally set out in Trout Lake Store Inc. v. Canadian Imperial Bank of Commerce , 2003 ABCA 259 , 330 A.R. 379 (“ Trout Lake ”): 1.

The proceedings should be examined as at the date of the application to dismiss for want of prosecution pursuant to Rule 244.1. 2. If at any time in the action there has been a gap of five years or more where no "thing" has been done to materially advance the action, the judge shall examine what has occurred since that five-year gap. 3. If the delaying party has not done a thing to materially advance the action since the five-year gap, the action shall be dismissed, absent agreement to the delay. 4.

If the delaying party has done a thing to materially advance the action after the five-year gap, and the other party objected and applied for a dismissal, the action shall be dismissed, absent any agreement to the delay. 5. If the delaying party has done a thing to materially advance the action after the five-year gap, and the applicant has participated in that thing, continued to participate in the action, or otherwise acquiesced in the delay, the action shall continue, and the application for dismissal refused. [ 19 ] The B.

Defendants filed their application to have the Plaintiff’s claim dismissed for want of prosecution on December 4, 2009. Based on the first principle listed above, any steps taken after this date, including this Action being ordered into case management, are not to be taken into consideration in determining the Rule 244.1 application. [ 20 ] In Morash , the Court of Appeal held at para. 5 that Rule 244.1 is mandatory and permits no discretion: The rule is written in absolute terms and is mandatory: Petersen v. Kupnicki (1996), 1996 ABCA 323 (CanLII) , 44 Alta. L.R. (3d) 68 at 70 (C.A.).

Once it is established that a "thing" has not been done in five years to materially advance the action, the court "shall" dismiss the action. The absence or presence of prejudice to another party is not a consideration: Volk v. 331323 Alta. Ltd. (1998), 1998 ABCA 54

(CanLII) , 212 A.R. 64; 168 W.A.C. 64 at 65 (C.A.). Similarly, the sterling reputation of the litigant, the strength of his action or defence, and the justification for the delay are all irrelevant to a R. 244.1 application. Of course, although mandatory, a R. 244.1 dismissal is not automatic. A party must apply to the court to trigger the dismissal. [ 21 ] Based on the procedural history of this Action, the last ‘thing’ done to materially advance the action was on July 14, 2003, when the Plaintiff served her Affidavit of Records on the Defendants.

While there is some conflicting case law in Alberta as to whether filing an Affidavit of Records constitutes a ‘thing’ within the meaning of Rule 244.1 , I am satisfied that it does on the facts of this case. Although the Affidavit of Records was filed on January 17, 2003, it was not served until 6 months later. It was only when the Affidavit of Records was delivered to the Defendants that they were able to know the nature and the extent of the documents held by the Plaintiff, which would permit the inspection of the documents and which might trigger deemed admissions: see Matthews v.

Great-West Life Assurance Co. , 2002 ABQB 297 , 313 A.R. 86 at para. 24 . This

interpretation is more favourable to the Plaintiff than finding that filing the Affidavit of Service was the last ‘thing’ done to materially advance the Action. [ 22 ] On July 21, 2009, the Plaintiff filed a Notice of Motion to strike Alberta’s Statement of Defence on the grounds that Alberta failed to file an Affidavit of Records. While this action would constitute a ‘thing’ that materially advances the action, it was done six years after the Plaintiff served her Affidavit of Records.

This is similar to the situation described in Trout Lake , in which the Court of Appeal held that the plaintiff-by-counterclaim’s unilateral attempt to materially advance the action by serving an appointment with conduct money and bringing an application to dismiss was insufficient for him to avoid dismissal simply because he did these ‘things’ shortly before the defendant-by-counterclaim’s application to dismiss: at para. 38.

As such, I find that filing a Notice of Motion to strike Alberta’s Statement of Defence does not re-set the five-year clock in this case. [ 23 ] In conclusion, based on the application of Rule 244.1 to these circumstances, the Action against the B. Defendants is dismissed. Over six years have passed between the last ‘thing’ done to materially advance the Action, which was the date of service of the Plaintiff’s Affidavit of Records, and the date that the B.

Defendants filed their application to dismiss for want of prosecution. [ 24 ] In the event that I am wrong in finding that Rule 244.1 applies, I also consider the effect of Rule 244 in the circumstances of this case. [ 25 ] In order to succeed in an application to dismiss the Plaintiff’s action pursuant to Rule 244 , the B. Defendants must establish the following: (

a) there has been inordinate delay, (

b) which is inexcusable, and (

c) the defendants are likely to be seriously prejudiced by the delay.

Volk v. 331323 Alberta Ltd . , 1998 ABCA 54 , 212 A.R. 64 (“ Volk ”), at para. 20 . [ 26 ] Rule 244(4) creates a form of presumption of serious prejudice to the applicant where the other party has been guilty of inordinate and inexcusable delay, and the presumption may lead to dismissal unless there is evidence that at least raises a legitimate doubt about the existence of serious prejudice to the applicant attributable to the delay: Volk at para. 21 . [ 27 ] In light of all the circumstances of this case, I am satisfied that there has been inordinate delay on the part of the Plaintiff in prosecuting her action and that such delay is inexcusable.

She has been represented by legal counsel for most of the life of this Action, up until February 25, 2009, when her last counsel filed a Notice of Ceasing to Act.

However, the bulk of the delay occurred before February 25, 2009, and the Plaintiff has not provided a reasonable explanation to justify the glacial pace of this litigation. [ 28 ] In her Affidavit of August 9, 2010, the Plaintiff states that her previous counsel never advised her that she was in danger of having her claim struck out for delay and that had he done so, she would have taken steps to compel the Defendants to file their Affidavits of Records. The Plaintiff cannot blame her former counsel to avoid the application of Rule 244 or 244.1 to her Action. It is not

a factor for this Court to take into consideration on this application. The intention to do something is not enough to avoid having a lawsuit dismissed for want of prosecution. [ 29 ] Mr. Lee appears on a limited scope retainer with respect to this application. In her Affidavit filed on December 8, 2009, the Plaintiff states that she is unable to pay legal fees as she has been disabled from working since approximately 1995. She further states that she has found it impossible to find a lawyer to take over her case since her previous counsel filed the Notice of Ceasing to Act in February, 2009.

Other than the limited scope retainer, it appears that the Plaintiff is currently representing herself in the Action, and as such the responsibility for moving it forward falls on her. [ 30 ] While I am sympathetic to the Plaintiff’s circumstances, impecuniousity alone is not a sufficient explanation to excuse the delay in this case. [ 31 ] There is also the issue of serious prejudice caused by the delay. The B. Defendants argue that they have suffered prejudice as a result of the Plaintiff’s delay in prosecuting this Action.

In his Affidavit sworn on November 12, 2009, D.B. states that his counsel has made requests to the R.C.M.P., Alberta Justice and to his former criminal defence counsel for copies of their records relevant to this Action. According to D.B., no such records could be located as they had been destroyed due to the passage of time.

For example, in a letter dated June 1, 1998, Alberta Justice Court Reporting Services confirmed that it keeps records for 10 years at which time they are destroyed and as such, the transcript of the criminal proceedings is not available. [ 32 ] While Rule 244(4) creates a presumption of serious prejudice, it does not shift the overall burden of proof which remains with the applicant: Volk at para. 21 . The presumption is rebuttable. In this case, the Plaintiff has not put forward any evidence that raises a legitimate doubt about the existence of serious prejudice to the B. Defendants. V. Conclusion [ 33 ] The B.

Defendants’ application to have the Plaintiff’s claim against them dismissed for want of prosecution is granted. As a result, it is not necessary to consider the Plaintiff’s cross-application to strike the B. Defendants’ Statement of Defence for failing to file their Affidavit of Records. [ 34 ] The B. Defendants shall have their costs. Heard on the 2 nd day of September, 2010. Dated at the City of Edmonton, Alberta this 13 th day of December, 2010.

D.R.G. Thomas J.C.Q.B.A. Appearances: Ms. Z. Rieza, assistant to Mr. Robert P. Lee (Robert P. Lee Law Office) for the Plaintiff (Respondent) - Ms. B.E.W. Ms. Kate M.C. Bridgett, agent for Mr. W. Branch (Dept. of Justice, Civil Litigation) for the Defendant (Applicant) - Government of the Province of Alberta Mr. Patrick J. McAllister, (Weir Bowen LLP) for the Defendants (Applicants) - D.B. and P.B. [1] The new Alberta Rules of Court , AR 124/2010, came into force on November 1, 2010. As this application was heard before November 1, 2010, the applicable rules are the ones set out in this judgment.