Durnin v. Snider, 2011 ABQB 383

Court of Queen ’ s Bench of Alberta Citation: Durnin v. Snider, 2011 ABQB 383 Date: 20110617 Docket: 0401 15260 Registry: Calgary Between: James Durnin and 1083910 Alberta Ltd. Plaintiffs - and - Jerold Snider and 587414 Alberta Ltd. Defendants _______________________________________________________ Memorandum of Decision of J.B. Hanebury, Master in Chambers _______________________________________________________ [ 1 ] This application is pursuant to the former rule 244, to dismiss an action for lack of prosecution. FACTS [ 2 ] Mr. Durnin and Mr. Snider were partners in a financial planning business. Mr.

Snider terminated the relationship in 2002. Mr. Durnin filed a claim in 2004 in relation to the termination of their business relationship and for defamation. He served it some eleven months later in September, 2005. Mr. Snider served a Demand for Further and Better Particulars on Mr. Durnin the next month. It related primarily to details of the defamation allegations.

[ 3 ] Nothing occurred until almost five years later. Approximately six weeks before the claim would have been subject to the “drop dead” rule, rule 244.1, Mr. Durnin filed and served a Reply to the Demand. [ 4 ] Counsel for Mr. Snider then asked that he not be noted in default. Six days after being served with the Reply to the Demand, he filed and served notice of this application to dismiss the action for want of prosecution. It took some time for this application to be heard and the parties obtained an order that it be considered pursuant to the former rule, 244(1). [ 5 ] Mr.

Durnin does not deny this timing, but gives various reasons why he delayed in pursuing this action. ISSUE [ 6 ] Should the action be dismissed as a result of the delay in prosecution? ANALYSIS [ 7 ] Rule 244(1) provides:

(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. The case law has held that the test to be met under this rule is three pronged. Is there inordinate delay? Is it inexcusable? Is there serious prejudice to the applicant? Is there inordinate delay?

[8] Mr. Snider argues that the action is at an early stage and the delay is clearly inordinate. [9] Mr. Durnin responds that the delay has not been inordinate taking into consideration all of the facts of the case. The verywrongs complained of, he says, caused the delay as Mr. Durnin had to focus on re-establishing his business and taking care of his family.He states that, while his business was being re-established the economic downturn of 2008 undermined his work and as a result he had torebuild again. In his evidence Mr.

Durnin also comments on his obligations to his children, and his involvement in their lives andextracurricular activities. There were health issues in his family and an unrelated lawsuit that was being pursued by his wife. As hestated, he was “emotionally drained in the area of the lawsuit and all the other activities that had gone on.” He said that positive thingswere going on outside of the lawsuit and he chose to focus on them rather than the frustration of the lawsuit. [10] In Kuziw v.

Kucheran Estate 2000 ABCA 226, the Court of Appeal discussed the test under this rule, referring back to itsdecisions in Lethbridge Motors Co. v. American Motors (Canada) Ltd., (1987) 1987 ABCA 150 , 53 Alta. L.R. (2d) 326 andWallersteiner v. Moir [1974]. What is an inordinate delay cannot be established by a tariff; it must be determined on the facts of eachparticular case.

Inordinate delay should be determined having regard to the nature of the issues in the action and the circumstances of thecase, and, the Court said, it “should not be too difficult to recognize inordinate delay when it occurs.” See as well: Riviera DevelopmentsInc. v. Midd Financial Corp. 2002 ABQB 954. [11] While this Court recognizes that it was important for Mr. Durnin to focus on the reconstruction of his business and thefinancial support of his family, that is not sufficient to support an allegation that a delay of almost five years is not inordinate.

Mr.Durnin made choices as to how to spend his time during that period, the result of which was to delay the lawsuit. As the Court of Appealsaid, inordinate delay is recognizable when it occurs. It is certainly recognizable in this case. [12] Mr. Durnin also argues that there should be some responsibility on the defendant to move the action along. [13] He relies on the comments of the Alberta Court of Appeal in Young (Next Friend of ) v. A. Dei-Baning Professinal Corp[1996] A.J. No. 427 (Alta.

C.A..), in support of his contention that there was some obligation on the defendant to keep the actionmoving. [14] The Court in Riviera Developments noted that insofar as Young may be seen to say that it is incumbent on both parties toattempt to keep the action moving, the Court of Appeal cannot have “meant that a defendant was required to take steps when theplaintiff was doing nothing”...as “the action is the action of the plaintiff and the primary responsibility for moving the action is on theplaintiff.” The obligation of the defendant, the Court said, is to “respond in a timely way to the actions of the plaintiff and [thedefendant] cannot rely on their own delay in failing to so respond.” [15] I agree with these comments.

There was no delay by the defendant in this case. He was not dilatory in his responses to theactions of the plaintiff. There was nothing for him to respond to; the ball was in Mr. Durnin’s court and he failed to return it. The delayin this case was inordinate. Is the delay excusable? [16] The second determination to be made is whether the delay is excusable. [17] In Kuziw the Court of Appeal pointed out that the onus is on the delaying party to provide an excuse because, until that isdone, the inference is that the delay is inexcusable. [18] Mr.

Durnin’s reasons for the delay were outlined in relation to the first prong of the test. [19] In Henry v. Young [1993] A.J. No. 1217 Breitkreuz M.C. commented that emotional and financial depression and frustrationin relation to a lawsuit do not constitute an excuse for delay.

[ 20 ] In the facts of this case I agree with Master Breitkreuz’s comments. The excuses given are not credible in light of the length of the delay. Has the inordinate inexcusable delay caused serious prejudice to the Defendant? [ 21 ] The third determination to be made is whether the inordinate inexcusable delay caused serious prejudice to the plaintiff. [ 22 ] In Reyes v. Fitzgerald 2007 ABQB 96 , a case not cited by the parties, Ross J. considered how to deal with the presumption found in rule 244(4).

That subrule states that once the Court has found a period of inordinate and inexcusable delay, serious prejudice is presumed unless there is evidence that raises a legitimate doubt about its existence. [ 23 ] In Reyes no evidence was filed by either side on the question of prejudice. Ross J. noted that the presumption may be met by evidence that at least raises a legitimate doubt about the existence of serious prejudice to the applicant attributable to the delay. Without such evidence, the delay on its own is sufficient proof of serious prejudice to warrant dismissal for want of prosecution.

See also: Volk v. 331323 Alberta Ltd. 1998 ABCA 54 ; Kuziw v. Kucheran Estate , supra at para. 27 , citing Peterka v. Nieman [1998] A.J. No. 55, 1998 ABCA 14 . [ 24 ] As there was no evidence to meet the presumption of serious prejudice, Ross J. found she was compelled to dismiss the action for want of prosecution. [ 25 ] Similarly in Miller v.

Carter 2002 ABQB 100 , Dea J. commented that the presumption meant that in the absence of any evidence before the Court to raise a legitimate doubt about the existence of serious prejudice, the defendant has made out its case for dismissal of the action. [ 26 ] The most recent Alberta Court of Appeal decision on this question is Ravvin Holdings Ltd. v. Ghitter 2008 ABCA where the Court noted that there is a two step process. First the Court considers whether there is evidence that rebuts the presumption of serious prejudice.

If there is, then it considers whether, examining the evidence in its totality, the defendant has met the burden of proving serious prejudice arising from the period of delay. [ 27 ] The Court held that evidence sufficient to raise a legitimate doubt as to the existence of a likelihood of serious prejudice may take many forms, such as prior discovery evidence or affidavit evidence filed by the parties on the application to strike. It can also come from the allegations of actual prejudice submitted by the applicant or it may simply arise from the existence of certain facts.

Once there is evidence sufficient to raise a legitimate doubt as to the existence of the prejudice, the presumption alone is insufficient to meet the applicant’s burden of proving prejudice. See as well Volk supra, para. 24 . [ 28 ] The Court concluded at para. 39: In

summary, absent evidence sufficient to raise a legitimate doubt about the existence of prejudice that is attributable to the delay, the presumption applies. Once evidence raises such a legitimate doubt, then the applicant bears the burden of proving, on the whole of the evidence, that serious prejudice was caused by the delay. [ 29 ] Is there evidence that rebuts the presumption of serious prejudice? [ 30 ] In this case the evidence relied upon by the plaintiff to rebut the presumption is found in paragraph 23 of his affidavit. He stated that Mr.

Snider continues to reside in Calgary and maintains the same type of financial planning practice as is at issue in this lawsuit. In a supplementary affidavit he stated that for the part of his claim that seeks an accounting and payment for his share of the partnership, the primary witnesses would be he and the defendant Mr. Snider. He said that Mr. Snider attended while he was being

cross-examined and he appeared coherent, aware of the matters being dealt with, took extensive notes and appeared to have a binder of information. Mr. Durnin states that during the cross-examination he was presented with various documents and records which led him to believe that the defendants still have relevant documents. He also stated that to the best of his knowledge any witnesses that may be material and relevant to the defamation components of his claim continue to be available. [ 31 ] No affidavit was filed by Mr. Snider.

However he relies on the decision of the Alberta Court of Appeal in Kuziw , supra, where the Court found that a statement as to the defendant’s apparent good health was insufficient to raise a legitimate doubt about the existence of serious prejudice. I agree. Mr. Durnin’s allegation that Mr. Snider is in good health is insufficient to rebut the presumption. [ 32 ] He also argues that Mr. Durnin himself had difficulty recalling dates, and points out the importance of an accurate recall of events by Mr. Durnin, particularly in relation to the claim for defamation.

He relies on the British Columbia Supreme Court decision in Lindhom v. Pollen [1986] B.C.J. No. 3187 where the Court found that in defamation actions the Court is entitled to have the best evidence obtainable. In that case there was less than 4 years between the application to strike and the defamatory statements. The claim was ready to go to trial and it was still struck. [ 33 ] In this case there are two parts to the claim: a claim for an accounting and a claim in defamation. [ 34 ] The first part seeks an accounting of the partnership funds and assets and payment to the plaintiffs of their share.

The partnership agreement was allegedly made orally in 1998 and dissolution occurred in 2002. Much of the evidence in relation to this claim is likely to be found in the books and records of the partnership. As noted by Rooke J., as he then was, in Cooke v. Calgary Civic Employees Benefit Society [2003] A.J. no. 1725 at para. 32 , it is the memory of what happened in relation to matters that aren’t otherwise documented that is important. In this case, documentation will form the foundation of the lawsuit. [ 35 ] Mr. Durnin states that many records were on his computer which was retained by Mr. Snider.

However, during Mr. Durnin’s cross-examination he was given commission statements, client lists, a portfolio

summary as of September 2002, and a letter from that period. This indicates that records of the partnership must still exist and are in the keeping of Mr. Snider. This is sufficient to rebut the presumption in relation to the first part of the claim. [ 36 ] The second part of the claim alleges defamation from both oral and written statements. Insofar as the claim relates to written statements, the same reasoning would apply.

The claim will be founded on documentation. [ 37 ] However, insofar as the claim relates to oral defamatory statements, memory is crucial and the existence of documentation from the time at issue is insufficient evidence to rebut the presumption of serious prejudice. Accurate recall is essential to a claim of this type and simply too much time has passed since the events in issue. There is not sufficient evidence to rebut the presumption of prejudice in relation to this portion of the claim.

Is there sufficient evidence of serious prejudice? [ 38 ] Once the presumption has been overcome, the Court must look at the entirety of the evidence to determine if there is sufficient evidence of actual prejudice. Mr. Snider has chosen to file no affidavit himself. This action is at a very early stage. However it appears that it will be primarily documentary in nature and documentation remains available. Memories can be refreshed with the review of documents. This is not the situation found in Primrose Drilling Ventures Ltd. v.

Carter 2008 ABQB 462 (aff’d on appeal, 2009 ABCA 259 ) where the Court found the action to be based primarily on memory. The facts in this case are more in line with those found in Brar v. Pawa 2010 ABQB 779 (M.C.). [ 39 ] Looking at the totality of the evidence before this Court, the evidence is insufficient to establish serious prejudice to the defendant in relation to those portions of the claim remaining. CONCLUSION

[ 40 ] The claim for damages for oral defamation is dismissed. The balance of the claim may continue, but on certain terms. [ 41 ] A review of this entire matter makes it clear that Mr. Durnin has managed his claim in a way designed to preserve his rights without inconvenience to him. Regardless of whether there is serious prejudice, such “just-in-time” steps are inherently unfair and should not be countenanced by the Court. Therefore, a compressed litigation plan is to be put in place either through consent of the parties or by my direction.

The parties are to appear in court before me at 9:30 a.m. on Tuesday, June 28 th with the agreed-to plan or their advice as to which parts remain in dispute and must be set by the Court. [ 42 ] While Mr. Durnin has been successful in opposing this application, his behaviour does not, in my view, entitle him to his costs at this stage of the proceeding. Costs of this application will be in the cause. Heard on the 25 th day of May, 2011. Dated at the City of Calgary, Alberta this 17 th day of June, 2011. J.B. Hanebury M.C.C.Q.B.A. Appearances: Teddy E.

Nobles Butlin Oke Roberts Nobles Braun LLP for the Plaintiffs David A. De Groot Burnet, Duckworth & Palmer LLP for the Defendants