Barcellona v. Einarson, 2012 ABQB 56

Court of Queen ’ s Bench of Alberta Citation: Barcellona v. Einarson, 2012 ABQB 56 Date: 20120120 Docket: 0603 10148 Registry: Edmonton Between: Vincenza Barcellona Plaintiff - and - Bradley John Einarson Defendant _______________________________________________________ Memorandum of Decision of W. S. Schlosser, Master in Chambers _______________________________________________________ [ 1 ] This is an application to strike for long delay. [ 2 ] The lawsuit is primarily about a house but there may be some continuing causes of action. The Defendant works in Lamont. The Plaintiff is his former partner.

They have two children together, ages 17 and 21. [ 3 ] The Plaintiff had been renting a house in Westlock. The Defendant was giving her money to pay the rent. Sometimes the rent did not make it to the landlord so the Defendant bought the house and paid the mortgage instead of paying the Plaintiff.

[4] After a time, the Plaintiff and her (then) partner sent the Defendant $4,000.00 and demanded that the house be transferred. The Defendant refused but kept the money. In August 2006, the Plaintiff sued. [5] A Lis Pendens was filed August 11, 2006. The Statement of Claim was served by registered mail August 17, 2006. TheDefendant retained counsel. His lawyer wrote on September 1, 2006: Please be advised I have been retained to act on behalf of Bradley Einarson regarding this matter. I will be meeting with him early nextweek to discuss the issues raised in the Statement of Claim.

In the meantime, please do not take any steps, including noting in default,without reasonable written notice to my office. If there is any difficulty with this request, please advise me as soon as possible. [6] The Plaintiff’s lawyer ceased to act April of 2007 and no further steps were taken. The Defendant’s first counsel appears notto have had any further involvement in the lawsuit. [7] The Defendant retained new counsel and brought this application in September 2011. The Motion was returnable September20 but was adjourned.

On September 22, 2011, an Order was granted allowing the house to be listed for sale and the proceeds paid intocourt, or into trust. The Defendant was examined on his Affidavit. [8] The Defendant says that nothing happened in the action after service of the Statement of Claim. However his Affidavitattaches a Procedure Card and the Procedure Card shows that a Statement of Defence was filed February 9, 2010. [9] This Statement of Defence was sent by the Clerk by ordinary mail to the last known address of the Plaintiff indicated in theNotice of Ceasing to Act.

The Defence came back ‘unclaimed, moved; address unknown.’ [10] The Plaintiff’s Affidavit says that there was an oral standstill agreement but it does not reference the lawyer’s letter.

i) The Lawyer’s letter [11] Parties may agree to delay (Rules 15.4(2)(

a) and 4.33(1)(

a) and old Rule 243.1) The agreement need not be in writing but it must be “express”. Bugg v. Beau Can Exploration Ltd., 2006 ABCA 201; (2006) 61 Alta. L.R. (4th) 104. A Defendant’s request not tobe noted in default isn’t enough. Calliou v. Bouchard, 2006 ABQB 925 (But cf Black v. Gossner (2010), 2010 ABQB 395 , 494AR 363 at 384, para. 47 et seq.). However, a request that no steps be taken can suffice. Oberg v. Rist, 2003 ABQB 813; Danek v.Calgary (City) 2006 ABQB 807; Craig v. Blue Cross Life Insurance Company of Canada, 2010 ABQB 659, and see also Stevenson &Côtés Civil Procedure Handbook, generally.

The effect of the request is to estop the applying party from relying on the delay. [12] In this case the lawyer’s request was not open-ended. The lawyer asked for a standstill for a week or two until she had achance to meet with the Defendant. The letter cannot be construed to stop the clock indefinitely. In some circumstances, standstill timecan be added to the end. However, that will depend on the facts of each case; see Bugg v. Beau Can Exploration Ltd., and the casescited there. In this case the lawyer’s letter, itself, isn’t enough to save the action. ii) The Statement of Defence [13] In Bugg v.

Beau Can Exploration Ltd., Fruman, J.A., writing for the Court, remarks, at para. 13:

“A statement of defence is a “thing that materially advances the action” and, therefore, filing a statement of defence would restart the five-year time period under R. 244.1 ....” (Emphasis added. See also para. 20) [ 14 ] I am bound by this remark and, in the circumstances, am prepared to give the Plaintiff the benefit of the doubt. In other words, the defence filed in February 2010 is fatal to the Defendant’s application to strike for delay. [ 15 ] With respect, however, I can see trouble on the horizon.

The shortened delay period that comes into effect in the fall of this year is likely to give rise to fairly intensive debate about things that significantly advance an action. It seems to me that a filed but not served defence may be vulnerable to attack. [ 16 ] A step mandated by the Rules is always a “thing” that materially or significantly advances an action. A step by either party will be taken into account. Alberta v.

Morasch , 2000 ABCA 24 per Fruman J.A.. [ 17 ] Typically, the step has to be complete, before it advances the action, or at least before it is immune from scrutiny. [ 18 ] Old Rules 84 and 85, spoke of “delivery” of a Statement of Defence. Delivery included filing and service. New Rule 3.31 is the equivalent except the time for a defence to be filed and served is now 20 days. [ 19 ] Sending the Statement of Defence to the Plaintiff by ordinary mail and having it returned does not constitute service of the Statement of Defence.

So part of the requirement of Rule 3.31 is missing. [ 20 ] Statement of Defence that has been filed but not served is not a completed step required by the Rules. Accordingly, it may not be immune from examination to see whether it has somehow moved the matter closer to trial in a meaningful way. [ 21 ] The old and new Rules differ on what can happen if a defence is filed but not served. Under the old Rule 142, a Plaintiff had to prove service of the Statement of Claim and, if a defence was filed, no service (hence no delivery) of the Defence before default proceedings could be taken.

Under the old Rules, filing a defence did not in and of itself act as a bar to default proceedings. [ 22 ] The new Rules are different. Under New Rules 3.36 and 3.39, filing a defence appears to act as a bar to either Noting in Default (Rule 3.36), or taking Default Judgment (Rule 3.39). [ 23 ] It may not be the formality of service that matters but the lack of communication of the defence to the other side. The effect of an unserved defence under the new Rules is essentially negative.

Rather than moving an action forward, it prevents the action from moving forward by acting as a bar to default proceedings, which would be a Plaintiff’s next step if there was no response from the Defendant. Otherwise it doesn’t do anything. iii) Standstill Agreement [ 24 ] A Standstill Agreement cannot be implied from conduct. The basic elements of the agreement must be established from the evidence. Bugg v. Beau Can Exploration Ltd. , para. 9 . [ 25 ] An application to strike for delay has some parallels to a Defendant’s application for

summary dismissal. However, a respondent to a

summary dismissal application typically has a lower evidentiary burden to meet than the applicant in that the respondent

need only establish “arguable merit” to the case. Murphy Oil Company Ltd. v. Predator Corp. Ltd. , 2006 ABCA 69 .

If the Plaintiff’s response to an application to strike for delay is that there was a standstill agreement, there is no reason that this should not be demonstrated to the ordinary civil standard, which is the balance of probabilities. [ 26 ] Because the filed defence effectively disposes of this application, I need not decide whether the Plaintiff has discharged her burden of proving a standstill agreement, other than to say that the bulk of her evidence invites the Court to infer a standstill agreement from the parties conduct and the conduct really only seems to show to what amounts to be frustrated settlement attempts.

The evidence is so thin the Plaintiff had her common-law spouse swear an Affidavit in support of her Affidavit. Hearsay used to be available in this context (old Rule 244.3) but it isn’t any more (R. 13.18) and compurgation isn’t what it once was. iv ) September Order [ 27 ] In light of the foregoing I also need not decide whether the Order allowing the house to be sold and the provision for payment of the proceeds into Court, or into trust, is a reason to allow the action to continue under Rule 15.4(2)(d).

v) Disposition [ 28 ] Pursuant to Rule 15.4(3), the matter should continue on strict terms. 1. The Defendant should file a proper Amended Statement of Defence no later than 30 days from the date of this Order; 2. Both Plaintiff and Defendant should file Affidavits of Records within 30 days of the amended defence; 3.

The Plaintiff shall serve a proposed litigation plan for the balance of steps in the action or the determination of entitlement of the funds, should they be paid into Court, or in to trust, within the above time frame. [ 29 ] If the above time lines are not met the Plaintiff’s action will be struck without further Order. [ 30 ] Costs of this application are in the cause. Heard on the 30 th day of November, 2011. Dated at the City of Edmonton, Alberta this 20 th day of January, 2012.

W. S. Schlosser M.C.C.Q.B.A. Appearances: James Samaroden Gordon Swaenepoel for the Plaintiff Oliver Ryffel Heritage Law Offices for the Defendant