Wong v. Leung, 2011 ABQB 722

Court of Queen ’ s Bench of Alberta Citation: Wong v. Leung, 2011 ABQB 722 Date: 20111122 Docket: 0203 13525 Registry: Edmonton Between: Victoria Winnie Wong Plaintiff - and - David Hung Che Leung Defendant _______________________________________________________ Reasons for Decision of L.A. Smart, Master in Chambers _______________________________________________________ I. Introduction [ 1 ] The Defendant, David Hung Che Leung (“ Mr. Leung ”), seeks an order dismissing the Plaintiff’s action for want of prosecution. In response, the Plaintiff Victoria Winnie Wong (“ Ms. Wong ”) brings a cross-application seeking (

i) consolidation of this action with QB Action No. 0903 03126, (ii) an order directing that Mr. David Hung Che Leung be examined on his Affidavit, (iii) an order directing that examinations for discovery take place, and (iv) an adjournment to allow examinations to occur. In addition, in an oral

argument before me during the course of the hearing, Ms. Wong requested that I recuse myself from this matter. [ 2 ] I heard the parties’ submissions with respect to these issues on November 30, 2010 and December 1, 2010. During the hearing, I issued a number of oral decisions, with written reasons to follow. The following are the reasons for my decisions. II. Facts [ 3 ] This matter arises out of a cohabitation arrangement between the Plaintiff and the Defendant. In 2002, Ms. Wong sued Mr.

Leung in the Alberta Court of Queen’s Bench Action No. 0203 13525, claiming an interest in two properties, including a vacant lot and the home in which she and Mr. Leung lived together (the “ Property ”). The precise details of Ms. Wong’s claim are not relevant for the purposes of these applications; it is sufficient to say that it is concerned with her rights and entitlements with respect to the two properties. [ 4 ] After separating from Mr. Leung, Ms. Wong continued to reside in the house where they had previously cohabited. [ 5 ] In April 2006, Justice Agrios issued an Order permitting Mr.

Leung to enter the Property in order to clean it up in compliance with a City of Edmonton cleanup order. The Order also directed Ms. Wong to vacate the Property and permitted Mr. Leung to sell the Property. [ 6 ] Ms. Wong applied to stay Justice Agrios’ Order in April and May of 2006. Both applications were dismissed. The properties were sold and in accordance with the Agrios Order the funds were paid in to court to be held until determination of the action or earlier court order. [ 7 ] The same day her first application for a stay was dismissed, Ms.

Wong appealed Justice Agrios’ Order to the Alberta Court of Appeal. The Court dismissed the appeal with costs in September 2009. [ 8 ] On June 10, 2010, the Defendant filed a Notice of Motion seeking dismissal of Ms. Wong’s claim for want of prosecution. On June 15, 2010, Ms. Wong cross-applied, seeking to consolidate this action with another lawsuit she had commenced in 2009 and to adjourn the special chambers hearing until she could examine Mr. Leung. [ 9 ] Ms.

Wong subsequently sought to adjourn the special chambers hearing to late November or early December because of an eye surgery she was going to have between October and November 2010. III. Issues [ 10 ] The parties raised the following issues in the argument before me: 1. Should the special chambers hearing be adjourned further due to Ms. Wong’s medical condition? 2. Should this action be consolidated with Action No.0903 03126? 3. Should I recuse myself from presiding on this matter? 4. Should Mr. Leung be directed to submit to cross-examination on his Affidavit and Examinations for Discovery? 5. Should Ms.

Wong’s claim be dismissed for want of prosecution?

IV. Analysis [ 11 ] At the hearing before me, Ms. Wong raised a number of preliminary issues (#1 - #4 above), which I addressed before turning to Mr. Leung’s application for dismissal. I follow the same approach here. 1. Application of the New Rules of Court [ 12 ] This Application was originally scheduled to be heard before the new Alberta Rules of Court , Alta. Reg. 124/2010 [ New Rules ] came into force on November 1, 2010.

Due to the availability of the parties, the Application was not heard until November 30, 2010. [ 13 ] Under the transitional provisions of the New Rules , Rule 15.12 provides that: 15.12 Where these rules impose a new test, provide new criteria or provide an additional ground for making an application in an existing proceeding, these rules apply in respect of the application if the application was made but has not been heard prior to the coming into force of these rules. [ Emphasis added. ] [ 14 ] Since this Application was not heard until after November 1, 2010, the New Rules apply. 2. Adjournment [ 15 ] Ms.

Wong seeks to adjourn this special chambers hearing for health reasons. She claims that due to her recent eye surgery, she cannot read court documents without reading glasses, and that she was not given the prescription to get those glasses. In addition, in an Affidavit filed on November 15, 2010, Ms. Wong deposes that she has suffered an accident on an Edmonton Transit System bus, which “may have damaged” her eye, requiring additional time for it to heal. [ 16 ] During the month that preceded the hearing of this Application, Ms. Wong has managed to: (

a) seek an adjournment of the special chambers hearing before Master Wacowich (November 22, 2010); (

b) file two Affidavits in support of her Application before Master Wacowich (on November 15 and 17, 2010); (

c) file an Affidavit in support of her appeal before Justice Macklin (November 25, 2010); (

d) appeal Master Wacowich’s dismissal of the adjournment application to Justice Macklin (November 29, 2010); and (

e) gather and provide some case law and statutes in support of her applications; [ 17 ] In addition, Ms. Wong filed another affidavit on the morning of the second day of this hearing (December 1), in support of an application set down and heard before a Justice to seek my recusal from this matter. I understand from counsel that Ms. Wong was directed by the Justice to bring that application before me. [ 18 ] Whatever medical condition Ms. Wong may have, it clearly did not prevent her from taking a significant number of steps to seek further adjournment of this hearing. I note that although Ms.

Wong claims to have received some assistance in preparing her affidavits, and related materials there is nothing on the face of those documents indicating she received any with the exception of the December 1, 2010 affidavit which states that an exhibit attached was dictated. Regardless, Ms. Wong’s conduct demonstrated that she

had the ability to prepare for this hearing. [ 19 ] Moreover, Ms. Wong had considerable time to prepare for the hearing. This matter was set down for special chambers on June 23, 2010, giving Ms. Wong nearly six months to prepare her argument. [ 20 ] In June it was Ms. Wong herself who insisted that this hearing be adjourned to late November or early December. She clearly indicated that these dates were acceptable to her. She had no concerns about the late November/early December dates until very recently. Ms.

Wong’s conduct appears to be in line with a customary pattern of persistent adjournments and delays that have taken place in this action. As a result, I saw no benefit in adjourning the hearing of this matter any further. [ 21 ] The application to adjourn this special chambers hearing was therefore dismissed. 3. Consolidation [ 22 ] Ms.

Wong seeks to consolidate this action with QB Action No.0903 03126 (“ the 2009 Action ”), in which she claims damages for pain and suffering against a number of individuals involved in this matter. [ 23 ] The test for consolidating actions is supplied by Rule 3.72 of the New Rules : 3.72(1) The Court may order one or more of the following: (

a) that 2 or more claims or actions be consolidated; (

b) that 2 or more claims or actions be tried at the same time or one after the other; (

c) that one or more claims or actions be stayed until another claim or action is determined; (

d) that a claim be asserted as a counterclaim in another action.

(2) An order under subrule (1) may be made for any reason the Court considers appropriate, including, without limitation, that 2 or more claims or actions (

a) have a common question of law or fact, or (

b) arise out of the same transaction or occurrence or series of transactions or occurrences. [ Emphasis added. ] [ 24 ] The Alberta Court of Appeal very recently summarized the factors that inform the decision to consolidate claims in Munro v. Munro , 2011 ABCA 279 at para. 7 : When faced with an application to consolidate claims, a court must weigh several relevant factors. They include the extent to which there are common claims and disputes, and the possibility that consolidation may save time and resources in pre-trial procedures and at trial.

The court must also consider potential prejudice to the parties which may arise from consolidation if, for example, one action is more advanced than the other and if consolidation will result in prejudicial delay of a trial.

[ Emphasis added. ] [ 25 ] There is no connection between this action and the 2009 Action that would justify consolidating them. This action arises from a cohabitation arrangement between the Plaintiff and the Defendant and is solely concerned with the Plaintiff’s rights in certain real property. The 2009 Action is an action for damages against litigants, law firms, and individual lawyers some who are counsel in the present action. The two actions have no common questions of law or fact, nor do they arise from the same transaction.

One deals with separation and real property; the other deals with legal representation and events that occurred after the separation. These are clearly two separate claims. There is no utility or benefit in having these matters consolidated. [ 26 ] The onus to establish that these actions should be consolidated is on the party seeking consolidation. Ms. Wong has provided no evidence showing that these actions ought to be. [ 27 ] Finally, there is some indication that this application is being advanced for an improper purpose, namely to create a conflict that would compel counsel for the Defendant to withdraw.

The Defendant in this action is represented by Mr. Mielke, who is named as a defendant in the 2009 Action. Consolidating these actions would create a situation where a lawyer and his client would become co- defendants in the same action, a situation that would leave Mr. Mielke with no choice but to withdraw. This is precisely the result Ms. Wong had been trying to achieve for quite some time. As early as in a Notice of Motion filed on June 18, 2003, Ms. Wong sought to remove Mr. Mielke and Mr. C.H. William Cheung from acting for the Defendant David Cheung. That Application was denied.

It appears that this consolidation application is merely a thinly veiled attempt to achieve that same result. Alternatively, it may also be an attempt to save this action from dismissal for long delay. [ 28 ] Even if there were no improper purpose in seeking consolidation of the actions, the conflict of interest created would result in significant prejudice to the Defendant. That alone justified denying Ms. Wong’s application to consolidate. [ 29 ] The application to consolidate this action with QB Action No. 0903 03126 was dismissed. 4. Recusal [ 30 ] On the second day of the hearing before me, Ms.

Wong brought an application seeking my recusal from the matter, on the basis that I appeared unresponsive and was allegedly napping during the course of the November 30, 2010 hearing. [ 31 ] I think it hardly warrants saying that I did not nap during Ms. Wong's argument. What is probably the main source of Ms. Wong's concern is that I appeared unresponsive during her submissions. This, however, should not suggest that I was not paying attention. [ 32 ] Ms. Wong is a self-represented litigant. Her submissions lack structure.

They are lengthy and frequently touch on matters that have no relevance to the issues at hand. That, in and of itself, is not a problem, nor a barrier to her argument being heard. However, it does require additional concentration when hearing her arguments and representations. One cannot ignore a single word. You must listen to Ms. Wong's submissions closely and carefully so that you do not miss a genuine legal argument when it appears amidst a flurry of legally and factually impertinent submissions. If anything, my unresponsiveness would indicate my utmost concentration, a sincere attempt to grasp what Ms.

Wong is trying to present as argument. [ 33 ] To further alleviate any concerns Ms. Wong might have, I ordered a transcript of this entire proceeding and reviewed Ms. Wong’s argument before preparing these reasons and signing any Orders. Whatever submissions Ms. Wong believes I may have missed, I have now read them all. My decision not to recuse myself remains unchanged. [ 34 ] Ms. Wong also argues that I have displayed favouritism towards Mr.

Mielke by allowing him to continue with his argument on the second day of the hearing, even though that date was allegedly booked for two other counsel appearing on this matter. This submission is entirely without merit. Litigation is a very unpredictable matter. Sometimes, an argument takes less time than anticipated;

sometimes, it takes longer. While maintaining courtroom efficiency is undoubtedly important, the hearing process should not be unduly rigid. [ 35 ] The other two counsel present on this hearing voiced no objection and recognized the utility in finishing Mr. Meilke’s applications before moving on to theirs. Accordingly, I found that my treatment of Mr. Mielke's submissions did not provide any grounds for my recusal from this matter. 5. Cross-Examination [ 36 ] In connection with the adjournment of this hearing, Ms. Wong also seeks an order directing cross-examination of Mr.

Leung on an Affidavit filed on June 10, 2010. I note that in her Notice of Motion filed on June 15, 2010, Ms. Wong also sought an order directing that examinations for discovery take place. This was not argued at the hearing before me and in light of my conclusion below unnecessary. Accordingly, I only dealt with the request for cross-examination. [ 37 ] Cross-examination was dealt with by Master Wacowich on November 22, 2010. Master Wacowich heard Ms. Wong’s submissions and declined to direct any further cross-examination.

I saw no reason to disturb Master Wacowich’s decision. [ 38 ] Regardless, I note that this court has the power to reject cross-examination if there is no purpose to it. Indeed, purposeless cross-examination amounts to sanctionable abuse of process: White Bear Construction Ltd. v. Casavant , 2000 ABQB 640 at para. 30 . Ms. Wong failed to provide me with any reasons for cross-examining Mr. Leung, nor has she identified what particular information she was hoping to elicit. [ 39 ] Mr. Leung’s affidavit from June 10, 2010 merely sets out what has taken place in these proceedings to date.

In a sense, it is little more than a detailed procedure card. There is absolutely no point in cross-examining Mr. Leung on this Affidavit. [ 40 ] Finally, I note that this matter was set down for a late November hearing back in June of 2010. Ms. Wong had ample time to cross-examine Mr. Leung on his June 10, 2010 Affidavit. She failed to do so, despite apparently having time to cross-examine two defendants in the 2009 Action in September and October 2010. In light of this, Ms. Wong’s application appears to be simply to delay these proceedings. [ 41 ] Accordingly, Ms. Wong’s application to cross-examine Mr.

Leung was dismissed. 6. Dismissal for Want of Prosecution [ 42 ] Having dealt with the preliminary issues raised by Ms. Wong, I now turn to Mr. Leung’s application to dismiss this action for want of prosecution. [ 43 ] Applications for dismissal for long delay are now governed by Rule 4.33, also known as the “drop-dead rule”. It provides as follows: 4.33(1) If 2 or more years has passed after the last thing done that significantly advanced an action, the Court, on application, must dismiss the action as against the applicant, unless (

a) the parties to the application expressly agreed to the delay,

(

b) the action has been stayed or adjourned by order, an order has extended the time for doing the next thing in the action, or the delay is provided for in a litigation plan, (

c) the applicant did not respond to a written proposal by the respondent that the next thing in the action not occur until more than 2 years after the last thing done that significantly advanced the action, or (

d) 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 the extent that, in the opinion of the Court, warrants the action continuing. [ Emphasis added. ] [ 44 ] The New Rules have decreased the time limit for the drop-dead rule from 5 years to 2 years. However, because this proceeding was commenced prior to the New Rules coming into force, Ms.

Wong gets the advantage of the longer time period by virtue of the transitional Rule 15.8(2)(a). [ 45 ] The test under the new drop-dead rule is whether there has been a “thing” done that “significantly advanced an action.” This new test applies to this hearing by virtue of transitional Rule 15.12 . However, the courts have held that there is no material difference between this test and the old test that required the action to be “materially” (rather than “significantly”) advanced: Hooda v. HSBC Canadian Direct Insurance Incorporated , 2011 ABQB 196 at para. 3 .

Accordingly, case law decided under the old rules continues to govern applications under the drop-dead rule, and, for the purposes of this Application, the time limit remains 5 years. [ 46 ] The principles applicable to dismissal for long delay were extensively set out by the Alberta Court of Appeal in Alberta v. Morasch , 2000 ABCA 24 ( Morasch ). While the Court in that case canvassed many important points of law, only a few are relevant for the purposes of this application. [ 47 ] First, Rule 4.33 is written in absolute terms and is mandatory.

Once it is established that a “thing” has not been done in five years to significantly advance the action, the court “shall” dismiss the action. The absence or presence of prejudice to another party is not a consideration: Morasch at para. 5 . [ 48 ] Second, a procedural step that is required by the Rules will always be a “thing” which significantly advances the action, regardless of whether it actually did so. However, the step must be completed, not just commenced: Morasch at paras. 6-7 ; see also Ricky's Billiard and Sports Bar Ltd. v.

Elton Construction Ltd. , 2001 ABQB 530 at para. 9 . [ 49 ] Finally, procedural steps contemplated (but not required) by the Rules may also be enough, in and of themselves, to materially advance an action: Ricky ’ s Billiard and Sports Bar Ltd. v. Elton Construction Ltd. at para. 10 . Nevertheless, to be a “thing” that “significantly advances the action” under Rule 4.33, these steps must move the lawsuit closer to trial in a meaningful way. Advancing the action is not sufficient; the action must be significantly advanced: Morasch at para. 13 . [ 50 ] Ms.

Wong argued that the last significant step or thing done in this action was her appeal from Justice Agrios’ Order. The Court of Appeal dismissed the appeal in September 2009. [ 51 ] An ordinary appeal from a judgment of the Court of Queen’s Bench is not a mandatory step. It is the unsuccessful party’s choice. This is abundantly clear from the Rules . Rule 505 of the Alberta Rules of Court , Alta. Reg. 390/1968, which continue to govern proceedings before the Court of Appeal, provides that an appeal “lies” from a judgment of the Court of Queen’s Bench; it does not require an appeal.

The facts of this case are distinguishable from the authority found in Peterka v. Nieman , 2002 ABCA 23 , where an appeal was found to be a required step because the action had been previously struck due to the expiration of a limitation period. [ 52 ] Since an Appeal is not required by the Rules nor factually necessary, I must consider whether Ms. Wong’s Appeal had moved the lawsuit closer to trial in a meaningful way . Given the effect of Rule 4.33 on Ms. Wong’s right to litigate, I must adopt an

interpretation most favourable to preservation of that right: Filipchuk v. Ladouceur , 2001 ABCA 26 at para. 5 . [ 53 ] Regardless, this action is ultimately concerned with the determination of Ms. Wong’s rights and entitlements in the Property. The Justice Agrios Order merely dealt with having the Property sold and proceeds paid into Court pending that determination. That was simply an interim step taken to preserve the value of the Property and did not affect either party’s rights or entitlements.

All the more an appeal taken from that Order did nothing to move this action closer to trial in a meaningful way nor could be said to significantly advance it. V. Conclusion [ 54 ] There was no other “thing” that significantly advanced the action within the last 5 years and therefore I must dismiss it. [ 55 ] The Plaintiff’s preliminary applications are dismissed. The Defendant’s application is allowed. This action is hereby dismissed for want of prosecution. Dated at the City of Edmonton, Alberta this 22 nd day of November, 2011. L.A. Smart M.C.C.Q.B.A. Appearances: V.W.

Wong Self-represented for the Plaintiff B.W. Mielke Shtabsky & Tussman LLP for the Defendant