Chan v. Calgary Remand Centre, 2012 ABQB 325

Court of Queen ’ s Bench of Alberta Citation: Chan v.

Calgary Remand Centre, 2012 ABQB 325 Date: 20120517 Docket: 0601 06913, 0601 06907, 0601 03533 Registry: Calgary Between: Action No. 0601 06913 Nicholos Cypui Chan Plaintiff - and - The Calgary Remand Centre, the Deputy Director of Administration of the Calgary Remand Centre, the Solicitor General of Alberta and Her Majesty the Queen In Right of Alberta Defendants Between: Action No. 0601 06907 Nicholos Cypui Chan Plaintiff - and - The Calgary Correctional Centre, the Director of the Calgary Correctional Centre, the Lethbridge Correctional Centre, and the Director of the Lethbridge Correctional Centre and the Solicitor General of Alberta, Her Majesty the Queen In Right of Alberta Defendants Between: Action No. 0601 03533

Nicholos Cypui Chan Plaintiff - and - Her Majesty the Queen in Right of Alberta and the Solicitor General and Minister of Public Security Defendants _______________________________________________________ Memorandum of Decision of W. S. Schlosser, Master in Chambers _______________________________________________________ [ 1 ] The Defendants bring three applications in three separate actions to dismiss for long delay.

The Plaintiff ’ s response is unique. [ 2 ] All three actions allege that the Plaintiff suffered harm while incarcerated. [ 3 ] In 2008, the Calgary City Police alerted Plaintiff ’ s counsel that the Plaintiff ’ s life was in imminent danger and that members of a group known to the police to be a criminal gang intended to murder him. The police were of the opinion that anyone in the vicinity of the Plaintiff, including lawyers, or the court reporter, were in danger as well. Discoveries in an unrelated action were postponed.

The Plaintiff says this is why the actions could not proceed. [ 4 ] This is a novel response to what has become known as the ‘ drop dead rule ’ . The argument is that the lawsuit should not drop dead after five years because, for a time, Plaintiff and counsel were themselves at risk of doing so if they assembled to complete a procedural step. [ 5 ] The warning from police came January 25, 2008; though counsel in this action may not have been alerted to the danger until March or May.

The uncontroverted facts appear to be that counsel was alive to this issue for a period of at least two-to-three months; from May to August 2008, possibly longer. Thus, the first legal question is whether these somewhat unusual circumstances and the correspondence that arose out of it, created a standstill. [ 6 ] The timing of the first two actions is as follow: 1. Action No. 0601 06907 ( ‘ The Calgary Correctional Centre Action ’ ). (

i) Statement of Claim June 7, 2006; (ii) Defendants ’ Demand for Particulars, filed June 16, 2006 (served on the same day);

(iii) Application to Dismiss, filed July 27, 2011, served August 19, 2011. 2. Action No. 0601 06913 (‘The Calgary Remand Centre Action’). (

i) Statement of Claim June 7, 2006; (ii) Defendants’ Demand for Particulars, filed July 11, 2006 (and served on the same day); (iii) Application to Dismiss, filed July 27, 2011; served August 19, 2011. [7] The starting point for this type of application is to look for a five year gap: Trout Lake Store Inc. v. CIBC, 2003 ABCA 259at para. 33 per Conrad, J.A. (There is also a useful review of the (then) authority by Verville, J. in the later decision: Haekel v.

Canada(2008) ABQB 701). [8] As there is plainly a five year gap prior to the application to dismiss in these two actions, the only thing that could save themis a standstill (Rule 15.4 (2)(a)). None of the other possibilities in Rule 15.4(2) apply. [9] Old Rule 243.1(1) read: Two or more parties to an action may by express agreement exclude or vary in whole or in part the application of any portion of this partin relation to themselves. (Emphasis added). [10] Fruman, J.A., writing for the Court in Bugg v.

Beau Canada Exploration Ltd., 2006 ABCA 201 said at (para.9): In the context of R. 243.1(1), express means that the parties’ intention is clear and not left to inference: Webber v. Canada (AttorneyGeneral), 2005 ABQB 718 (Alta. Q.B.) at para. 54. A standstill agreement cannot be implied from conduct: 525812 Alberta Ltd. v.Purewal (2004) 366 A.R. 1, 2004 ABQB 938 (Alta. Q.B.) at para. 13, 2006 CarswellAlta 787, 2006 ABCA 201, [2006] A. W.L.D. 2233, [2006] A.W.L.D. 2225.2006 ABCA 201 , 61 Alta.

L.R. (4th) 104, 377 W.A.C. 208, A.R. 208 [11] Rule 15.4(2)(a), as it was originally worded, did not use the term “express” to qualify agreement. As it was originally drafted,the Rule appeared to open up the possibility of inferring a standstill in circumstances that might not otherwise support an expressagreement. [12] However, in July of 2011, just after these applications were launched, old Rule 15.4(2)(

a) was repealed and replaced by(now) 15.4(2)(a): 15.4(2) The Court must not dismiss the action if (

a) the parties to the application expressly agreed to the delay, [13] The existing wording of Rule 15.4 and the now binding

interpretation of the Court of Appeal in Bugg v. Beau do not permitinferring a standstill from circumstances. Even if inferring a standstill were possible, the circumstances of this case only applied to thepostponement of examinations. There was no intention that the lawsuits should otherwise stand still procedurally. [14] The correspondence arising from the threat is contingent and qualified. It suggests that suitable arrangements might be made

to protect the safety of the participants. It is also equivocal. It does not say the questioning could not proceed under any circumstanceswhile the danger was present. Finally, other steps could have been taken which would have posed no danger to anyone involved; such asthe preparation of an Affidavit of Records or, since there was no defence and apparently no agreement not to proceed with the action, tonote the Crown in Default.

It is impossible to conclude that these two actions were at an agreed standstill even for a two to three monthperiod. [15] Even if the correspondence were sufficient to satisfy the test set out in Bugg v. Beau, the next question would be whether thestandstill time in 2008 would be appropriately tacked on to the end of the five year period in 2011. [16] Whether standstill time is to be tacked on to the end is something that is to be construed from each agreement Bugg v. Beau(above) (para. 19).

One element that might weigh in favour of tacking time on to the end might be an element of unfairness arising fromwithdrawal of an agreement at the eleventh hour (Kapki v. Palacz 1999 ABCA 40). However, when there are several years left to take astep after the standstill would have ended, strong evidence would be required to infer that the time should be added to the end. In thiscase, there was ample time to move the matter forward after the standstill, before the 5 years was up. [17] Rule 15.4 is mandatory.

Accordingly, there is no alternative but to dismiss action 0601-06907; ‘the Calgary CorrectionalCentre action’ and action 0601-06913; ‘the Calgary Remand Centre action’ for long delay. Costs of the actions and the applications areawarded to the Applicant on the appropriate column. [18] That leaves action No. 0601-03533. The same reasoning applies to whether there was a standstill in that action. However,there is an additional relevant fact. [19] The timeline is as follows: (

i) Statement of Claim, March 17, 2006; (ii) Statement of Defence, June 16, 2006; (iii) Defendants’ Affidavit of Records, filed October 11, 2006, served October 16, 2006; (iv) Application to Dismiss, September 7, 2011; (

v) Plaintiff’s Affidavit of Records, September 12, 2011. [20] As the timeline discloses, there isn’t a five year gap between the Defendants’ Affidavit of Records and the Defendants’application to dismiss. This wouldn’t necessarily be a problem if there were no “thing” that advanced the action prior to the applicationbeing heard. The Court looks back from the date that the application is taken out but it will also consider events arising between the datethe application is taken out and the date that it is heard.

The only strategic problem with a premature application is that it invites theother side to cure the delay by doing something to restart the clock. [21] In this case, the Plaintiff provided an Affidavit of Records before the five years was up. The difficulty is with this particularAffidavit is that there are no records listed in any of the schedules to the Affidavit. The Affidavit is otherwise in the required form. [22] Applicant’s counsel argues that a blank Affidavit of Records is not a complete step and is therefore not a thing that advancesthe action.

Respondent’s counsel argues that since an Affidavit of Records is something mandated by the Rules, even a blank Affidavitof Record necessarily restarts the clock and we cannot look behind it. [23] In Alberta v. Morasch, 2000 ABCA 24, Fruman, J.A. writing for the Court, said, (at paras. 6, 7): [6] If the Rules of Court require that a step be taken, the completion of that step, in and of itself, materially advances the action: Bishopv. Grotrian (1998), 1998 ABCA 23 , 228 A.R. 73 at 78 (C.A.). Because the Rules require that the step be taken, it is considered

a step which is necessary to advance an action and its completion is deemed to materially advance the action. The court need not inquirewhether the step actually caused the action to advance. The completion of the required step is sufficient, in and of itself, to restart thefive-year clock. [7] The step must be completed, however, not just commenced. Consider, for example, a plaintiff who prepares a draft certificate ofreadiness and forwards it to the defendant.

R. 236 requires that the certificate of readiness be filed in order to obtain a trial date.Forwarding a draft certificate of readiness to the other side does not, in and of itself, materially advance an action, because actual filingmust occur before the procedural step is completed: Bentley v. Stringer, 1999 ABQB 432 , [1999] A.J.. No. 659 (Q.L.)(Master). [24] This particular lawsuit is the more sophisticated of the three. Although there is no lawyer listed on the Statement of Claim,this document appears to have been drafted with professional help.

It outlines complaints the Plaintiff had while a prisoner at the CalgaryRemand Centre and at the Red Deer Remand Centre. It alleges negligence and deliberate torts. A variety of injuries are alleged;including physical and physiological injuries, giving rise to general and special damages. [25] An intentional tort, like assault, is actionable without proof of damages; unlike the tort of negligence in which damages arepart of the cause of action. Many of the records that might be expected in this setting would be in the hands of the Defendants, thoughthey are likely within the power of the Plaintiff to obtain.

There are certainly other documents like an Alberta Health Care Statement ofBenefits paid that would be within the Plaintiff’s control and would be relevant and material to the proof of injuries or the completion ofthe tort of negligence. In short, it is difficult to see how the Plaintiff could prove his case, and, in particular, the quantum of his damageswithout any records of his own. However, it is not inconceivable.

It is within the realm of possibility that the Plaintiff’s physical injuriescould be proved by expert evidence that might not be obtained until after the Affidavit of Records and which would not have to bedisclosed until the time mandated by the Rules for expert reports. But it is certainly a bit of a stretch. [26] However tempting it is, I cannot accept the Applicant’s invitation to look behind the Affidavit of Records and find that it isn’ta completed step. The Affidavit isn’t inherently, or necessarily flawed.

In essence, the Plaintiff is swearing under oath that there are norelevant and material records under his control, which is an option given to a litigant by Rule 5.6(3). A step mandated by the Rulesnecessarily advances the action. It occurred before the five years was up. Accordingly, I am bound to allow action number 0601-03533to proceed. [27] I might observe that it is preferable to maintain a bright-line distinction between steps that are mandated by the Rules andwhich necessarily advance an action, and those things that are permitted by the Rules but which are optional.

Whether an optional stepmoves an action closer to trial in a meaningful way is subject to analysis and the Court’s discretion. There is always some element ofuncertainty inherent in this process.

There may be differences of opinion about whether an event in a lawsuit is meaningful or significant.It is preferable not to look behind steps that are mandated by the Rules because it eliminates this element of uncertainty, it avoids debate,and it will conserve judicial resources against the tide of applications that is likely to come in when the transitional period is over and thedrop dead period is shortened to two years. [28] Rule 15.4 permits the imposition of terms which are as follows: 1.

The Plaintiff will provide a litigation plan to the Defendants in Action No. 0601-03533 within 30 days of the date of thisdecision. 2. Leave of the Court is required before a Plaintiff’s further and better Affidavit of Records can be provided [29] The Respondent/Plaintiff is awarded costs of the unsuccessful application in Action No. 0601 03533, on the appropriatecolumn, which may be set off against the costs awarded against him in the other two actions. Heard on the 23rd day of April, 2012.

Dated at the City of Edmonton, Alberta this 17 th day of May, 2012. W. S. Schlosser M.C.C.Q.B.A. Appearances: C. Nugent Alberta Justice - Civil Law for the Applicant/Defendant S. B. Nelson Nelson & Nelson for the Respondent/Plaintiff