Koch v. Warkentin, 2011 ABQB 505

Court of Queen ’ s Bench of Alberta Citation: Koch v. Warkentin, 2011 ABQB 505 Date: 20110811 Docket: 0203 11304 Registry: Edmonton Between: David Koch Plaintiff - and - Jon Warkentin, Robert Wasylyshen, Acting Chief of the City of Edmonton Police Services, Brent Olynyk, the City of Edmonton Police Services, and the City of Edmonton Defendants _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Brian R.

Burrows _______________________________________________________ [ 1 ] The Defendants seek an order under Rule 15.4(1) dismissing this action because 5 years have elapsed since the last thing done to significantly advance the action. [ 2 ] The action was commenced on June 7, 2002. The Plaintiff claimed that two EPS employees used EPS computers to make postings on the internet which threatened him with physical harm, that he complained to the EPS which refused or neglected to take action, and that he suffered distress and fear as a result.

He claimed damages for intentional infliction of nervous shock and extortion, breach of a duty of care owed to him and breach of public duty.

[ 3 ] Statements of Defence and Affidavits of Records were filed. The last thing done on the action was the filing of an Affidavit of Records of a Defendant on October 7, 2005. [ 4 ] The Notice of Motion seeking the dismissal of the action was filed October 22, 2010. [ 5 ] Between these two events there was no communication between the Plaintiff or anyone acting for him and any of the Defendants or their counsel. [ 6 ] Rule 15.4(1)(

b) applies. It provides that the Court must dismiss the action as against the Defendants if 5 years have elapsed since the last thing done to significantly advance the action unless subrule 15.4(2) applies. [ 7 ] The Plaintiff argues that subrule 15.4(2)(

c) applies. It says: The Court must not dismiss the action if (

c) an application has been filed or proceedings have been taken since the delay and the applicant has participated in them for a purpose and to an extent that, in the opinion of the Court, warrants the action continuing. [ 8 ] A second action very similar to the action commenced by the Plaintiff was commenced at the same time as the Plaintiff’s action by another person. The same lawyer commenced both actions. He then left the practice of law. The other file was reassigned to another lawyer. The Plaintiff’s file was lost and was not reassigned.

The Plaintiff in the other action made claims against the same Defendants for the same type of conduct in relation to that other Plaintiff as the Plaintiff here claims the Defendants committed in respect of him. [ 9 ] Steps were taken in the other action. The Plaintiff claims that the other action is a proceeding of the type described in subrule 15.4(2)(c).

He claims that one of the Defendants here, Warkentin, participated in the proceedings in the other action and that those proceedings practically advance this action, at least as against Warkentin. [ 10 ] The “proceeding” in question is the Examination for Discovery of Warkentin in the other action which occurred on October 21, 2010. That date was after the expiry of the 5 years since the last thing done in this action. [ 11 ] Under old Rule 244.1 a step in another action could constitute a thing which materially advanced an action: 155569 Canada Limited v. Clarkson Gordon , 2004 ABQB 17 .

In that case the delay in the prosecution of the action occurred while the parties awaited the passage of a foreclosure action involving the same property and parties through appeals to the Court of Appeal and Supreme Court of Canada. The pleadings in the application sought to be dismissed made express reference to the pleadings in the foreclosure action. The Court held that the two actions were inextricably linked.

The determination of the issues in the foreclosure action determined the main issues in the action in which the application had been brought. [ 12 ] There is no inextricable link between the action sought to be dismissed here and the other similar action. The Defendants are the same and the claims are of the same nature, but the result in one would not dictate the result in the other.

It would merely be a citable authority. [ 13 ] Further, assuming the Plaintiff here were able to use the trial testimony of a common party in cross-examination of the same party in this action, that would not justify the conclusion that the two actions were inextricably linked as contemplated by the authorities under the old rule.

[ 14 ] However, if the questioning of a common defendant in the other action can be characterized as a proceeding within the meaning of subrule 15.4(2), to invoke the exception, I must be satisfied that the purpose and extent of Warkentin’s participation in that proceeding warrants this action continuing. [ 15 ] Warkentin’s participation in the questioning in the other action was certainly not for the purpose of advancing the Plaintiff’s claim in this action.

And given the privilege that attaches to discovery (now questioning) in an action, the discovery in the other action is not available to the Plaintiff in this action. The discovery in the other action, if it is a “proceeding” at all, did not advance this action to any extent whatsoever. If the discovery is a proceeding, Warkentin’s participation in it does not warrant this action continuing. [ 16 ] The exception created by subrule 15.4(2)(

c) does not apply. Neither do either of the other two exceptions in subrule 15.4(2). [ 17 ] Outside the exceptions, the Court has no discretion when an application is made under Rule 15.4(1). It must dismiss the action. This is so even where the blame for nothing having been done in 5 years does not fall entirely on the Plaintiff personally. That the solicitor for the Plaintiff left the practise of law, that his file in relation to this matter was lost and that the matter was not advanced by the lawyer who took over his practise, make no difference.

The rule contemplates no exceptions other than the ones set out in subrule 15.4(2), which, as noted, do not apply in this case. [ 18 ] I allow the application. The action is dismissed. [ 19 ] The Plaintiff’s cross-application for access to the transcript of the discovery in the other action is also dismissed. The Plaintiff offered no justification for requiring Warkentin to forego the privilege which attaches in his favour to the pre-trial discovery in the other action. Heard on the 10 th day of June 2011. Dated at the City of Edmonton, Alberta this 11 th day of August 2011. Brian R. Burrows J.C.Q.B.A.

Appearances: Robert D. Gillespie for the Plaintiff Debra Curcio Lister for the Defendants, Warkentin and Olynyk

Simon Johnson for the Defendants, Edmonton Police Services and Robert Wasylyshen, Chief of Police of Edmonton Police Services David Woo for the City of Edmonton