Laboucan v. Red Road Healing Society, 2011 ABQB 377

Court of Queen ’ s Bench of Alberta Citation: Laboucan v. Red Road Healing Society, 2011 ABQB 377 Date: 20110614 Docket: 0203 21102 Registry: Edmonton Between: Henry Laboucan Plaintiff - and - The Red Road Healing Society and Joanne M. Grumbly Pompane Defendants _______________________________________________________ Memorandum of Decision of W. S. Schlosser, Master in Chambers _______________________________________________________ [ 1 ] This is an application to strike a defamation lawsuit for long delay. [ 2 ] The allegedly defamatory words were published in November 2000.

The Statement of Claim was issued just short of the second anniversary of publication. The Statement of Defence contained a general denial, a denial that the Plaintiff was the person referred to in the publication and it pleaded substantive defences of truth and fair comment. [ 3 ] The last thing that advanced the action appears to have been examinations for discovery April 29, 2005. After examinations, nothing happened for over five years until a Notice to Admit Facts was taken out by the Plaintiff on November 30, 2010 and served

December 3, 2010. [ 4 ] As Mr. Justice Côtè observed in Bourne v Alberta , 2008 ABCA 165 : [3] A Notice to Admit has no legal consequence, and so cannot advance the suit at all, until either (

a) there is an admission, (

b) there is an unreasonable refusal to admit (and then the effect is only later and on costs), or (c) 30 days elapse with no reply. [ 5 ] In this case there was no response to the Notice to Admit so there are deemed admissions. The Defendants take the position that the action was dead by the time the Notice was served so there was no need to reply [ 6 ] In Tout Lake Store Inc. v. Canadian Imperial Bank of Commerce , 2003 ABCA 259 , Madam Justice Conrad said: [33] In

summary, I believe the appropriate approach on a 244.1 application to dismiss is as follows: 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.

These steps will avoid the foot race to the courthouse and it will encourage the party seeking to process its claim to proceed in an expeditious manner throughout. At the same time, it will encourage the non-delaying party to act in a timely basis and, at a minimum, to object to any further action taken by the delaying party at the first opportunity. [ 7 ] Although the Tout Lake case is about old Rule 244.1, paragraphs 4 and 5, stated above, set out the criteria to be applied to this case.

[ 8 ] Some of the language in delay cases might support an idea that an action with a five year gap is dead. However, since the clock can be re-started after the gap by acquiescence or participation by the non-delaying party, an action is not dead until it is declared to be so.

In a manner of speaking, the possibility of revival by acquiescence or participation makes such an action ‘voidable, not void’. [ 9 ] The Applicant argues that service of a Notice to Admit outside the five year period when there has been no other activity in the lawsuit creates a kind of ‘Hobson’s choice’, or, no choice at all, in that any response might constitute “participation” and, in and of itself, restart the clock. [ 10 ] The answer to this argument is found in paragraph 4 of Madam Justice Conrad’s reasons cited above.

It is incumbent upon a party served with a Notice to Admit after a five year gap to ‘object and apply for dismissal’. In this case an early objection and Application would have brought this case directly within the facts of the Bourne decision. In that case both the motion and the hearing were within the time frame for a reply. [ 11 ] This application was brought outside the time for a response.

Since an action is not automatically dead after a five year gap, the consequence of not responding to a Notice to Admit is that the requested admissions are deemed to be admitted. [ 12 ] The decided cases tell us that a thing contemplated (but not mandated) by the rules requires scrutiny to see if the quality of the thing materially or, now, significantly, advanced the action. This consideration applies whether the thing was inside or outside the five year gap. If the thing is outside the gap it is only the starting point.

The next step is to look for acquiescence or participation. [ 13 ] In this case, the deemed admissions are with respect to the identity of the subject of the allegedly defamatory remarks, falsity and malice. As these admissions would be fatal to a number of the pleaded defences, it seems plain that these deemed admissions would otherwise materially or significantly advance the action. [ 14 ] However, there is one final consideration, and to my mind, it is decisive. [ 15 ] The Defendant did not participate in the thing in any real sense. Also, there cannot truly be said to be acquiescence.

An objection was raised even through it was later than the time mandated for a response to the Notice to Admit. [ 16 ] Rule 6.37(6) allows the Courts to withdraw or amend an admission.

The current Rule is substantially the same as old Rule 230(1.1)(5). [ 17 ] Whether the deemed admissions arose from a deliberate refusal to respond because the Defendant was concerned about the Hobson’s Choice mentioned above, or, whether the lack of a response was inadvertent, as the letter marked as Exhibit “E” to the Affidavit of Timothy Snyder seems to suggest, it is likely that the Court would allow the deemed admissions to be withdrawn if the action were to proceed. [ 18 ] The requested admissions in the Notice to Admit are simply a recital of paragraph 4 of the Statement of Claim.

Elements of paragraph 4 had been met by a general denial in the Statement of Defence, a specific denial of falsity (paragraph 4 of the Statement of Defence) and the defence of fair comment, which would obviate malice. The requested admission that the publication referred to the Plaintiff was specifically denied at discovery.

See exhibit “C” of the Affidavit of Timothy Snyder: discovery excerpt, page 11, lines 23- 26, which was put into evidence at this application to show that identity had been in issue. [ 19 ] If we put the Notice to Admit into the context of the lawsuit as it stood in November, 2010, a refusal to admit the requested facts would have been justified and a refusal or denial would certainly have been expected. [ 20 ] Withdrawal of deemed admissions would not, in this case, result in any prejudice not compensable in costs. The costs would

likely be nominal. I have difficulty imagining that the test for withdrawal would not be satisfied in the circumstances of this case: Dwyerv. Fox (1996) 1996 ABCA 95 , 181 AR 223 C.A. per Kerans J.A., Davies v. Edmonton (City) (1991) (ABKB), 126 AR 109 (Q.B.). Stevenson & Côté, Civil Procedure Handbook, 2010 pp. 6-69, 70 (and the cases cited there). [21] A thing that significantly advances an action must be substantial or solid.

In this case the susceptibility of the thing renders ithollow and insubstantial. [22] In my view, it would be inappropriate to justify allowing an action to proceed on the basis of deemed admissions that wouldsurely be withdrawn.

To my mind, examining the quality of the thing in question also requires determining whether the thing is really ‘astraw man’ as the deemed admissions are here. [23] This was a nice attempt by previous counsel to revive an action which lay completely dormant for over five and half years.However, to allow this matter to proceed on the basis of deemed admissions that would probably be withdrawn would be pullingourselves up by our bootstraps. [24] Accordingly, the Defendant’s application is allowed.

It would be my inclination to set off the thrown away costs of theNotice to Admit against the Costs of the Application and the action. However, if the parties cannot agree on costs, costs may be spokento. Heard on the 7th day of June, 2011. Dated at the City of Edmonton, Alberta this 14th day of June, 2011. W. S. Schlosser M.C.C.Q.B.A. Appearances: Kate Hurlburt Emery Jamieson for the Plaintiff/Respondent Philip G. Lister, Q.C. Barrister and Solicitor for the Defendants/Applicants