Hooda v. HSBC Canadian Direct Insurance Incorporated, 2011 ABQB 196

Court of Queen ’ s Bench of Alberta Citation: Hooda v. HSBC Canadian Direct Insurance Incorporated, 2011 ABQB 196 Date: 20110322 Docket: 0203 07457, 0203 06436 Registry: Edmonton Between: Action No. 0203 07457 Amin Hooda and T-Shirt N ’ Things (Retail) Ltd. Plaintiffs - and - HSBC Canadian Direct Insurance Incorporated Carrying on Business As Canadian Direct and Canadian Direct Insurance, and Townsend & Leedham Adjusters Ltd. and Michael J. Leeham Defendants And Between: Action No. 0203 06436 VW Credit Canada Inc. Plaintiff - and - T-Shirt ’ n Things (Retail) Ltd. and Amin S.

Hooda Defendants - and- HSBC Canadian Direct Insurance Incorporated carrying on Business as Canadian Direct and Canadian Direct Insurance

Third Parties _______________________________________________________ Memorandum of Decision of W.

Breitkreuz, Master in Chambers _______________________________________________________ [ 1 ] There are two applications, one in each action, which for the purposes of this application I will regard as one application because by Memorandum dated December 2, 2004 Madam Justice Ross directed that these two actions be consolidated and that the defence counsel will prepare and forward for signature a consolidation order. [ 2 ] The plaintiffs’ opposition to the application is based entirely on the defendants’ acquiescence in the delay. [ 3 ] It is clear that under the transitional provision of the new Rule 15 the five year drop dead time period applies, and apart from that the only difference between the new rule and the old rule is the difference between “significantly advanced the action” and “materially advanced the action”.

My opinion is that this is a difference without a difference. [ 4 ] The defendants’ position is that the last material step in the action was the discontinuance filed against the defendants Townsend & Leedham Adjusters Ltd. and Michael L. Leedham on February 15, 2005. [ 5 ] The plaintiffs’ position is that examinations for discovery were scheduled for March 23, 2005 and then rescheduled to April 5, 2005. On March 23, 2005 the April 5, 2005 discoveries were adjourned to May 17, 2005 at the request of the defendants due to the pending surgery of their witness, Monica Juhasz.

The May 17, 2005 discoveries were then adjourned to August 9, 2005 due to Ms. Juhasz’ inability to attend on that date. The August 9, 2005 examination was then adjourned to November 2, 2005 by consent. [ 6 ] The plaintiffs argument is that these adjournments at the request of the defendants should serve to start the five year period running on November 2, 2005 instead of February 15, 2005. The plaintiffs argue that this is a logical extension of the obiter expressed by the Court of Appeal in Trout Lake Store Inc. v. Canadian Imperial Bank of Commence and George Jadot , 2003 ABCA 259 .

In paragraph 33 Madam Justice Conrad, delivering the unanimous decision of the panel lists five principles to consider in a Rule 244.1 application. It is the fifth one that the plaintiffs rely on, as follows: 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 the thing, continued to participate in the action, or otherwise acquiesced in the delay, the action shall continue, and the application for dismissal refused. [ 7 ] It is obvious that what Madam Justice Conrad was referring to is something done by the delaying party after the five year gap.

In the case before me the plaintiff argues that if what had occurred between the parties at the beginning of the five year gap it would come within the principle enunciated by Madam Justice Conrad, and logically should be given as much weight as if the acquiescence had occurred after the five years had expired.

[ 8 ] Counsel have been unable to provide a case that specifically deals with that situation and without authority to the contrary, I am unable to say definitively that the logic is flawed. In Apex Land Corp. v. Heikkila , 2011 ABCA 87 the Court of Appeal said that if there is more than one plausible

interpretation of a rule, it is generally to be reconciled in a manner most favourable to the preservation of the right to litigate, and cites Filipchuk v. Ladouceur , 2001 ABCA 26 . [ 9 ] I am aware that there is authority for the proposition that scheduling an examination for discovery is not a step within the meaning of the rule but what happened here is not quite that simple.

In this case the scheduling was by agreement and the adjournments were to accommodate the defendants’ witness, and I am inclined to the view that it would be unfair and unjust to have those adjournments charged against the delaying party in terms of having the clock run. [ 10 ] Accordingly, I will dismiss the application but in the circumstances I believe it is an appropriate exercise of my discretion to direct that each party should bear its own costs of the application. Heard on the 17 th day of January, 2011. Dated at the City of Edmonton, Alberta this 22 nd day of March, 2011. W. Breitkreuz M.C.C.Q.B.A.

Appearances: Harry O’Moffett Cleall for the Plaintiffs Bradley Nattrass Galan T. Lund Brownlee LLP for the Defendant HSBC Canadian Direct Insurance