Raven v. Airdrie (City), 2012 ABQB 74

Court of Queen ’ s Bench of Alberta Citation: Raven v. Airdrie (City), 2012 ABQB 74 Date: 20120127 Docket: 0201 18141 Registry: Calgary Between: Daniel Raven Plaintiff - and - City of Airdrie Defendant _______________________________________________________ Reasons for Judgment of K.R. Laycock, Master in Chambers _______________________________________________________ [ 1 ] The plaintiff was a EMT-A Firefighter employed by the defendant from November 1992 until his dismissal on May 15, 2002.

He alleges that he was dismissed without cause and seeks damages estimated in the amount of $73,550 plus other benefits. [ 2 ] The history of the proceedings indicates that statement of claim was filed October 28, 2002, a statement defence was filed on November 18, 2002 and affidavits of records were filed December 18, 2002 and January 24, 2003. The plaintiff questioned three of the defendants employees on October 10, 2003, March 19, 2004 and March 11, 2005. The plaintiff was questioned on June 23, 2005 and again on February 28, 2006.

The plaintiff provided six undertakings at the first questioning and a further five undertakings at the second questioning.

[ 3 ] The plaintiff’s undertakings have been categorized as five relating to his medical condition, four relating to his subsequent employment following his termination and two undertakings relate to his recollection of conversations held with the defendants employees. The plaintiff’s answers to undertakings were provided to the defendants solicitors office at 3:57 PM on February 25, 2011. [ 4 ] On July 11, 2011 the defendant filed an application pursuant to Rule 15.4(1) or alternatively, Rule 4.31 for an order dismissing the plaintiff’s claim for want of prosecution.

The issue under Rule 15.4(1) is whether the plaintiff’s responses to undertakings constituted a thing that significantly advance this action. Alternatively, if the undertakings amounted to a thing that significantly advanced this action, should the court exercise its discretion to dismiss the plaintiffs claim for delay that has resulted in significant prejudice to the defendant pursuant to Rule 4.31. Rule 15.4 [ 5 ] Justice Wilkins in Bahcheli v.

Yorkton Securities Inc., 2010 CarswellAlta 2498 concluded that there is no difference between the new rule and the old rule when considering whether a thing is found to have significantly advanced the action or materially advanced the action. Therefore cases decided under the former rule should be applicable to determining the issue under the current rule 15.4(1). See also Hooda v. HSBC Canadian Direct Insurance Incorporated, 2011 ABQB 196 (Master) at para.3. [ 6 ] In Ravvin Holdings Ltd. v. Ghitter , 2008 ABCA 208 , the Alberta Court of Appeal reviewed the issue of undertaking responses.

At paragraph 24 the court stated in part: The significance of a response to an undertaking in trial preparation is confirmed by the requirement that all responses must be received before the action may be entered for trial. No one would seriously deny that an examination for discovery is a thing that materially advances in action, and we find no reason to treat a response to an undertaking differently. Thus, even though it is in the power of the one party to respond to the undertaking, that does not change the nature of the response.

It is, as a rule, a thing that materially advances the action. [ 7 ] The court concluded that the provision of undertakings was a thing that materially advance the action but there are always exceptions to the general rule . The court identified 2 circumstances as exceptions. Firstly, provision of undertakings that are merely perfunctory and nothing hinges on the response would not have significantly advanced the action. Nor would a response to an undertaking be considered a thing that materially advances in action where the party has deliberately dragged out the process. See also Matco Investments Ltd. v.

Dhow Properties Ltd. , 2010 ABQB 104 at para 24 and 25 . [ 8 ] In this application the defendant argues that the responses were merely perfunctory. The defendant argues that the responses to undertakings merely provide information already known in the action or that the information was wholly irrelevant. In the statement of claim the plaintiff refers to workplace stress and anxiety and the fact that in 2001 he began taking medication to deal with stress.

He refers to an occasion where a stress attack occurred during work which resulted in his hospitalization. [ 9 ] In the statement of defence it is alleged that the plaintiff was belligerent, unpredictable and exhibited aggressive behaviour and conduct towards his fellow employees. The defendant alleges that the plaintiff was warned on several occasions about his belligerent conduct and requested a plan from him to overcome these issues.

When his conduct was not resolved his employment was terminated on May 15, 2002. [ 10 ] From a review of the pleadings it appears that the plaintiff’s mental state is a substantial issue for the trial judge to consider. Therefore any facts that assist the court in dealing with this issue may be considered material.

The defendant argues that the responses to undertakings provided information already known in the action, or the information was wholly irrelevant to the matters at issue in the lawsuit. [ 11 ] The purpose of examinations for discovery, or questioning as it is now known, is in part to determine the other party’s evidence to be given a trial. It is to test the strength and weakness of the case. It is important for a defendant to know in advance what

information or documentation may be supportive of the plaintiff’s position. It is equally important to know if there is documentation that qualifies or limits the plaintiff’s evidence. For example undertaking number two required the plaintiff to disclose what counselling he was involved in at the material time with respect to stress and anger. In response the plaintiff delivered 17 handwritten pages of notes provided by his physician of the plaintiff’s medical treatments.

To the extent that the notes say nothing about workplace stress it supports the defendant’s position that the plaintiff was merely a belligerent employee. To the extent that the notes demonstrate that the plaintiff discussed with his doctor a concern about workplace stress, it is arguably evidence in support of the plaintiff’s position that he suffered from mental health issues which the defendant refuses to acknowledge. [ 12 ] Therefore the provision of medical information is not just perfunctory.

In addition, the plaintiff was to provide (undertaking 7) documentation used to distinguish between the City of Airdrie income and mitigation income for the years 2002 and 2003. In answer to this undertaking the plaintiff provided tax information with respect to 2002 and 2003. Provision of income information, or the lack of income, during the notice period would be important information and relevant to the issue of mitigation. Such information could not be said to be merely perfunctory. [ 13 ] It is my conclusion that the provision of undertakings significantly advanced this action.

The defendant’s application pursuant to Rule 15.4 is therefore dismissed. Rule 4.3 1 [ 14 ] Rule 4.31 states: If delay occurs in an action, on application the Court may (

a) dismiss all or any part of a claim if the court is satisfied that the delay has resulted in significant prejudice to a party, or (

b) make a procedural order or any other order provided for by these rules. [ 15 ] Counsel agree that the three part test of inordinate delay, inexcusable delay and serious or significant prejudice applies to this application. Inordinate Delay [ 16 ] Justice Brooker in Deis v. Koch Oil Ltd., 2001 ABQB 997 stated at paragraph 11 : Inordinate delay is delay in excess of what was reasonable, having regard to the nature of the issues in the action and the circumstances of the case: Kuziw v. Kuchean Estate , supra at para. 31, citing Wallersteiner v. Moir , [1974] 3 All E.R. 217 (C.A.) .

The burden to establish the delay as inordinate is on the applicant seeking to have the claim dismissed: Kuziw v. Kuchean Estate, supra at para. 31. [ 17 ] Waiting four years, 11 months and 28 days to deliver responses to 11 undertakings is inordinate delay. The court in Bingham v. Andriet 2008 CarswellAlta 12, 2008 ABQB 25 , [2008] A.W.L.D. 776 and Frome v. Kapusta 2006 CarswellAlta 1736, 2006 ABQB 748 , [2007] A.W.L.D. 688, [2007] A.W.L.D 691, 29 C.B.R. (5 th ) 69, 403 A.R. 378 determined that this long a delay in a simple action is inordinate.

Blaming the defendant’s counsel for failing to contact the plaintiff’s counsel during the delay period makes it no less inordinate. Inexcusable Delay

[18] The onus to establish a credible excuse for the inordinate delay rests upon the plaintiff. Nelson v. Emsland, 2007CarswellAlta 1274, 2007 ABQB 571, [2007] A.W.L.D. 3802, [2007] A.W.L.D. 3803, 427 A.R. 262; Brentech Services Ltd. v. Sunray Manufacturing Inc., 2008 CarswellAlta 656, 2008 ABQB 301, [2008] A.W.L.D. 3556, 59 C.P.C. (6th) 385, 445 A.R. 278. The plaintiffoffers no explanation for why it took so long to answer the undertakings. Therefore the delay is inexcusable. Significant Prejudice [19] The principle argument in this application is whether there was significant prejudice to the defendant.

A short historicalperspective of the delay rule is necessary. [20] Prior to the 1994 amendment rule 244 stated: Where there has been delay the court may dismiss an action for want of prosecution or give directions for the speedy determination ofthe action and may impose terms. [21] The Court of Appeal in the case of Lethbridge Motors Co. v. American Motors (Can.) Ltd. (1987) 1987 ABCA 150 ,53 Alta.

L.R. (2d) 326 (C.A.) set out the test for obtaining dismissal for want of prosecution under rule 244, stating the three part test isinordinate delay, which is inexcusable and which will likely cause serious prejudice. [22] The 1994 amendment, amongst other things, added subsection (4) which stated: Where, in determining an application under this Rule, the Court finds that the delay in the action is inordinate and inexcusable, that delayshould be prima facie evidence of serious prejudice to the party that brought the application. [23] Following the amendment to rule 244, the Court of Appeal in Young (Next Friend of) v.

Dei-Baning Professional Corp.(1996), 1996 ABCA 213 , 39 Alta. L.R. (3d) 93 confirmed that the three part test was still applicable but noted that theamendment in Rule 244(4) provided for a rebuttable presumption of serious prejudice from the fact of inordinate or inexcusable delay. [24] The Court of Appeal in Volk v. 331323 Alberta Ltd., (1998) 1998 ABCA 54 , 212 A.R. 64 stated at para. 24: The inordinate and inexcusable delay is prima facie evidence of serious prejudice to [the defendant] which, standing alone, wouldsupport dismissal.

Here, there is evidence of the actual prejudice allegedly suffered by [the defendant]. In our view, that evidence placesin doubt the existence of prejudice of a quality warranting dismissal. The evidence of actual prejudice must be considered along with allcircumstances of the case, including the prejudice presumed from inordinate delay, to determine if [the defendant] has been prejudiced toa degree sufficient to mandate striking the action. [25] Since the most recent amendment the court has considered the applicable test in several cases. In Brar v.

Pawa 2010CarswellAlta 2387, 2010 ABQB 779, [2011] A.W.L.D. 1780, [2011] A.W.L.D. 1779 counsel agreed that the tripartite test under theformer rule, described in Volk v. 331323 Alberta Ltd. 1998 ABCA 54, 212 A.R. 64 and Ravvin should still apply to the new rule. In theBrar decision, Master Hanebury stated at para. 45: Accepting the argument of the parties that the presumption of prejudice continues under the new Rules of Court, in this case there issufficient evidence to displace the presumption. Mr. Zinner has kept extensive and detailed time records.

Therefore the court mustexamine all of the evidence to determine if there is serious prejudice.

[ 26 ] The question of whether there was a presumption of prejudice contained in the new rules was not raised as an issue in Brar . Counsel, and the court, merely assumed that to be the case. [ 27 ] In University of Alberta v. Chang 2011 CarswellAlta 2271, 2011 ABQB 595 Lee J. referred to Brar at para 55 : The case Brar v.

Pawa is authority that the presumption of serious prejudice caused by inordinate and inexcusable delay is preserved under the new rules and that such prejudice is sufficient in and of itself to have the action dismissed without evidence from the respondent to rebut the presumption. [ 28 ] In the University of Alberta decision, the statement was purely obiter because a presumption of prejudice was not an issue. The court examined allegations of actual prejudice raised by the applicants. [ 29 ] A presumption of prejudice is no longer expressed in the rule, nor could it be implied.

In this application I must consider actual prejudice and determine if it is significant prejudice. [ 30 ] The defendant notes that the witnesses are no longer employees of the defendant. But Justice Brooker in Deis , at paragraph 42 , concluded that the mere fact that a witness leaves the employ of a party does not in and of itself amount to prejudice. [ 31 ] The defendants’ three principal witnesses have each sworn an affidavit calling into question their ability to recall events and conversations that took place with respect to the plaintiff’s termination in May 2002. Burt Assen states: 5.

Throughout the course of my examination by the Plaintiff’s legal counsel asked me specific questions about conversations I had with the Plaintiff and his coworkers with respect to the sequence of events leading up to and including the plaintiff’s dismissal by the City. 6. Based on a review of my transcripts I can now only vaguely recall the above noted conversation and with nowhere near the detail as I could over 6 years ago when I was questioned or 9 years ago when they actually took place. (Emphasis added) [ 32 ] Sheldon Brent Leavitt swore in his affidavit: 5.

During my examination on October 10, 2003, I was asked a series of questions about several meetings and discussions I had with the Plaintiff wherein he would become angry and belligerent. I was under oath and told the truth at the Examination for Discovery. I gave evidence about the following meetings: a. April 25, 2002: During a staff meeting the Plaintiff became extremely aggressive with a fellow employee Jeff Bauman. b. May 1, 2002: I met with the Plaintiff and Brian Cornforth to discuss the Plaintiff’s actions during the April 25 meeting. The plaintiff again became aggressive and was swearing at Mr.

Cornforth and me. c. May 13, 2010: Brian Cornforth and I met the Plaintiff again to discuss an action plan to correct his behaviour. The plaintiff responded angrily and abruptly ended the meeting were all yelling and swearing again at Mr. Cornforth and me. 6. Unfortunately, 9 years have passed since these series of events took place and over 8 years have passed since I was questioned on them. As a direct result of the passage of time I cannot recall the sequence of events that led to the Plaintiff’s dismissal nor can I recall the details of meetings I must have had with others concerning the Plaintiff.

I am concerned that I have no independent recollection and any future testimony would simply be a recitation of my evidence at Discovery.

[33] In paragraph 5 of the Leavitt affidavit he noted the presence of Jeff Bauman at one meeting. There is no evidence thatBauman is unavailable or suffering from a loss of memory. [34] Brian Merle Cornforth swore in his affidavit: 6. In preparation of this Affidavit I have reviewed my transcripts for Discovery from March 19, 2004. (Emphasis added) 7.

Based on my review of the transcripts I can vaguely recall the events that I was questioned on but not with the same details as I could7 years ago when I was examined or 9 years ago when the events I was questioned on took place. [35] After referring to five specific events or meetings between April 25, 2002 and May 15, 2002, Brian Merle Cornforth stated inparagraph 9 of his affidavit: I can vaguely recall participating in or discussing with other City employees the altercations with the Plaintiff, referenced in paragraph 8above, which contributed to his dismissal.

I can no longer recall exactly what was said or what transpired before or between these dates. [36] The defendant argues that conversations held between the plaintiff and the defendant’s witnesses, preceding the termination,are material to the determination of whether the plaintiff was terminated for cause. The defendant argues that the reason for thedeterioration of the memories is attributed solely to the delay caused by the plaintiff.

They argue that the loss of the witnesses memorywith respect to the facts and circumstances leading up to the termination would significantly prejudice the defendant in proving theplaintiff was terminated for cause. [37] Each deponent was questioned and admitted that they had not reviewed the transcripts of their examination for discovery orthe examination for discovery transcripts of the other witnesses prior to swearing their affidavits. Only portions of the witnessesdiscovery transcripts were read to them by counsel before swearing their affidavits. What

part is not known. [38] The plaintiff argues that because of the extensive examination that took place about the meetings between the plaintiff andthe witnesses, a review of the transcripts would sufficiently refresh their memory of the events in question. In the Affidavit of Recordsfiled by the defendant document 37 mentions “four page hand-written notes” dated April 30, 2002 . No one provided details of who tookthe notes or what information is contained in the notes.

The plaintiff argues that while the witnesses may have some loss of memoryresulting from the delay, their memories could be refreshed by a full review of all documents in possession of the defendant and thediscovery transcripts. The plaintiff further argues that the allegation of two of the witnesses having reviewed the transcripts of thediscovery and still being unable to recall the events that took place was misleading. Therefore the plaintiff submits that there is realdoubt about whether there is evidence of significant prejudice. [39] Does the existence of fading memories amount to significant prejudice?

The defendant refers to the Nelson decision in supportof his argument that fading memories of material witnesses is sufficient to show significant prejudice. However, in that decision the courtrelied upon a presumption of prejudice contained in the former rule and noted that the plaintiff had not proffered sufficient evidence torebut the presumption. [40] The defendant also refers to Durnin v. Snider 2011 CarswellAlta 1042, 2011 ABQB 383 to support his argument that the lossof the witnesses memory is particularly prejudicial to the defendant.

However, in that decision the court after looking at the entirety ofthe evidence determined that the lawsuit appeared to be primarily documentary nature and the documentation remained available. Theapplication to dismissed for long delay was not granted. [41] There are a number of cases that have concluded that a long delay may be sufficient evidence of prejudice where fadingmemories would result in prejudice. Wyant Estate v. St.

Arnault (1985), (AB KB), 63 A.R. 91 (Q.B.) affirmed(1986), 70 A.R. 76 suggests that in accident cases the mere passage of a long period of time will be inferred to seriously prejudice adefendant. But it is the delay in the proceedings that must be considered.

[ 42 ] Had the witnesses, who swore affidavits, actually reviewed all of the defendant’s records and the discovery transcripts and sworn to the material loss of memory, I may have been inclined to find that significant prejudice that occurred. However, the deponent’s failed to review the available documentation or transcripts to refresh their memories. I agree with the plaintiff that there is a real doubt about whether there is significant prejudice suffered by the defendant as a result of the long delay.

Therefore the defendant’s application is dismissed. [ 43 ] Although the plaintiff has been successful in resisting this application, I do not wish to reward the plaintiff for his delay by ordering costs in his favour. Therefore each party will bear their own costs of this application. [ 44 ] This action should now be fast tracked to have the trial proceed as soon as possible. If counsel can not agree to a litigation plan to achieve this, they may make an appointment with me to fix deadlines for an early trial. Heard on 8 th day of December, 2011.

Dated at the City of Calgary, Alberta this 27 th day of January, 2012. K.R. Laycock M.C.C.Q.B.A. Appearances: Jason P. Schlotter Prof. Corp. for the Plaintiff D. Jean Munn Caron & Partners LLP for the Defendant