Prince v. Edmonton (City), 2012 ABQB 637

Court of Queen ’ s Bench of Alberta Citation: Prince v. Edmonton (City), 2012 ABQB 637 Date: 20121017 Docket: 0203 03342 Registry: Edmonton Between: Jannett Prince Plaintiff - and - The City of Edmonton, Judy Willman and John Doe Defendants _______________________________________________________ Memorandum of Decision of W. S. Schlosser, Master in Chambers _______________________________________________________ [ 1 ] This is an application to strike for long delay. [ 2 ] The Plaintiff was a passenger on an ETS bus when it was struck by another bus. The accident happened February 15, 2000.

The Statement of Claim was filed on the eve of the expiry of the limitation period, in 2002. The City was served. It asked not to be noted in default without prior written notice. Plaintiff ’ s counsel granted this indulgence to the City.

[ 3 ] In 2004 the City indicated that it would not agree to a standstill agreement which, arguably, meant that they should have provided a defence. [ 4 ] Some medical records were provided in December 2005. Then the Plaintiff apparently lost interest in the lawsuit and disappeared. Nothing at all happened until June, 2012, at which time the City told Plaintiff ’ s counsel they were going to apply to dismiss for delay. This put Plaintiff ’ s counsel in a corner as he had failed to get off the file after his client lost interest in the lawsuit. His response was to note the City in default. [ 5 ] Rule 15.4(2)(

a) provides:

(2) The Court must not dismiss the action if (

a) the parties to the application expressly agreed to the delay, [ 6 ] Even if the earlier correspondence could have been construed to constitute a standstill, as Plaintiff's counsel appears to have understood it did, a standstill would not have survived the City ’ s 2004 express rejection of it. [ 7 ] The gap in this case is about seven years (at least). Events after the gap don ’ t count unless the Defendant participates: Trout Lake Store Inc. v. CIBC , 2003 ABCA 259 . [ 8 ] In Yaremchuk v.

Haight , 2001 ABCA 7 (at para. 9 ), the Court of Appeal found that a Defendant who has been noted in default may make an application to strike for long delay under old Rule 244.1. There is no reason to suppose that this has been changed by the new Rules. I need not consider whether the default could be opened up on the evidence before me. [ 9 ] Rule 15.4 is mandatory. None of the exceptions apply. Accordingly, there is no alternative but to dismiss this action. Heard on the 4 th day of October, 2012. Dated at the City of Edmonton, Alberta this 16 th day of October, 2012. W. S. Schlosser M.C.C.Q.B.A. Appearances:

N. Odinga Odinga Law for the Plaintiff Amy Cheuk, Student-at-Law City of Edmonton, Law Branch for the Defendants