Donnelly v Brick Warehouse Corporation, 2013 ABQB 621

Court of Queen ’ s Bench of Alberta Citation: Donnelly v Brick Warehouse Corporation, 2013 ABQB 621 Date: 20131021 Docket: 9601 11501 Registry: Calgary Between: Arthur V Donnelly Plaintiff/Respondent - and - The Brick Warehouse Corporation, Tom W Dunlop and Scott Kolewaski Defendants/Applicants _ ________________________________________ ______________ Memorandum of Decision of the Honourable Mr. Justice K. D. Yamauchi _________________________________________ ______________ I.

Introduction [ 1 ] The Defendants/Applicants [collectively, the “Applicants”] apply to this Court to have the claim of the Plaintiff/Respondent [“Donnelly”] dismissed for long delay pursuant to Rule 15.4 of the Alberta Rules of Court , Alta Reg 124/2010 [ Rules ]. Further, and in the alternative, the Applicants apply to have Donnelly’s action dismissed for delay pursuant to Rules r 4.31. II. Facts

[ 2 ] Donnelly’s claim is based on wrongful dismissal, intentional infliction of mental anguish and malicious prosecution. Although this Court’s role is not to determine the substance of Donnelly’s claim, it must give a skeletal outline of the facts. Donnelly was an employee of the Applicant The Brick Warehouse Corporation [the “Brick”]. On February 14, 1994, the Brick dismissed him from this position.

Although there are a number of allegations contained in the pleadings, the main allegations are that the Brick dismissed Donnelly as a result of his noncompliance with store policy and thereafter, when confronted with this breach, there was a physical confrontation between the Brick store’s supervisor and Donnelly. Donnelly was then dismissed. [ 3 ] Although he was charged with assaulting his supervisor, the Provincial Court of Alberta acquitted him on July 21, 1994.

Donnelly commenced this action on July 19, 1996. [ 4 ] In August of 2000, the parties undertook the initial rounds of examinations for discovery, as they were then known. Almost 5 years later, on March 3, 2005, Donnelly filed an application to have this matter heard by a civil jury before Rooke J, as he then was, returnable March 23, 2005.

On April 15, 2005, the application before Rooke J was adjourned so as to give the court an opportunity to rule on a question of law regarding the operation of cause of action estoppel and issue estoppel and their application to Donnelly’s arguments that the issues in the lawsuit were res judicata . Rooke J heard this preliminary application on November 16, 2005. Rooke J dismissed Donnelly’s application. By a Civil Notice of Appeal dated February 9, 2006, Donnelly appealed Rooke J’s order. On October 11, 2006, the Alberta Court of Appeal heard Donnelly’s appeal.

The terms of the Alberta Court of Appeal’s judgment were settled before that court on November 28, 2006. [ 5 ] On January 31, 2007, Donnelly retained the law firm Sawers McFarlane. Eleven months later on February 28, 2008, the parties attended a pre-trial conference with Phillips J in which she set certain deadlines to move the matter forward expeditiously. A further month passed and on March 31, 2008, Sawers McFarlane confirmed that Donnelly wished to proceed with the application to have this matter heard by a civil jury.

Four years and eight months later, on November 30, 2012, Donnelly filed a Notice of Application for a Jury Trial, returnable on December 19, 2012. This was essentially the same application that Donnelly brought before Rooke J in 2005. The Applicants requested an adjournment of this application, which Donnelly refused. As a result, the parties attended before Wittmann CJ on December 19, 2012. Because Donnelly incorrectly filed the application, however, there was nothing returnable before Wittmann CJ on that date.

Wittmann CJ adjourned the application to April 8, 2013, before Hughes J. [ 6 ] In the meantime, on March 19, 2013, the Applicants filed the within application returnable on April 4, 2013, in morning chambers. Wilson J adjourned that application to the special chambers application, which is now before this Court. [ 7 ] On April 8, 2013, Hughes J heard the application to have this matter heard by a civil jury. The Applicants participated in that application, and contested it. Donnelly succeeded before Hughes J to have this matter heard by a civil jury. No trial date has been set. III.

Issues [ 8 ] The parties raise 2 issues before this Court, which are: A. Whether Donnelly’s action should be struck for dismissal for long delay pursuant to Rules r 4.33 (including Rules r 15.4 transitional provisions) pursuant to the so-called “drop dead rule.” If this Court answers the foregoing issue in the negative, whether Donnelly’s action should be dismissed pursuant to Rules r 4.31 because his delay has resulted in a significant prejudice to the Applicants. IV. Discussion [ 9 ] There are a few things of interest set forth in the transcript of proceedings before Hughes J.

The first is that she found that Donnelly met the test for having this matter heard before a civil jury pursuant to

section 17 the Jury Act , RSA 2000, c J-3 [ Jury Act ]. She did not decide the substance of the matters that are before this Court. She acknowledged that she was simply deciding the issue of whether Donnelly met the test set forth in the Jury Act . Specifically, the exchange between Donnelly and Hughes J was as follows: MR.

DONNELLY: And the other thing is I wanted to be here today because, as you said, it’s been a long time and every time I get back involved in this case I get reignited as to what happened to me, and the problem with the – my friend’s application to have this quashed is that the time factor is part of it, and I’m trying to do what I can to advance my case, and I need a jury application to advance my case so I can get the matter set down for trial. THE COURT: Sorry. I don’t buy that.

If I was hearing the application to strike, I don’t think a jury – to be honest with you, I’m not convinced a jury application is a step. I don’t see how a jury application advances this matter at all, but anyways, I’m not hearing the application. Transcript of Proceedings, April 2, 2013, p 12, ll 22-32. [ 10 ] Hughes J went on to emphasize that the Applicants have the ability to reapply to strike her order based on the criteria set forth in the Jury Act s 17(2).

This was made a part of her order. [ 11 ] Like Hughes J, this Court will examine the issues that the parties have placed before it “in a vacuum.” In other words, it will only deal with the issues that the parties have placed before it. Hughes J would not rule on whether this matter could or should proceed. She simply found that if this Court rules that it will not be struck or dismissed, it may proceed by way of a civil jury trial, subject to the other portions of her ruling.

Whether Donnelly’s action should be struck for dismissal for long delay pursuant to Rules r 4.33 (including Rules r 15.4 transitional provisions) pursuant to the so-called “drop dead rule.” [ 12 ] Rules r 15.4 provides as follows:

15.4

(1) Unless subrule (2) applies, the Court, on application, must dismiss the action as against the applicant if (

a) after the coming into force of this rule, 3 years has passed without a significant advance in the action, or (b) 5 years has passed without a significant advance in the action, whichever comes first.

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

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 the litigation plan, (

c) the applicant did not provide a substantive response within 2 months after receiving a written proposal by the respondent that the action not be advanced until more than 3 years after the last significant advance in 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.

(3) If the Court refuses an application to dismiss an action for delay, the Court may still make whatever procedural order it considers appropriate.

(4) The following periods of time must not be considered in computing periods of time under subrule (1): (

a) a period of time, not exceeding one year, between service of a statement of claim on an applicant and service of the applicant’s statement of defence; (

b) a period of time, not exceeding one year, between provision of a written proposal referred to in subrule (2)(

c) and provision of a substantive response referred to in that subrule.

(5) Rule 13.5 does not apply to this rule. [ 13 ] Rules r 13.5 says that the court may order or the parties may agree to extend or shorten time. [ 14 ] At the risk of stating the obvious, the incident that allegedly gave rise to Donnelly’s cause of action occurred on February 14, 1994. He then commenced his action on July 19, 1996. The action is for wrongful dismissal and malicious prosecution. As Wilson J said when the parties appeared before him on April 2, 2013: This isn’t that complex.

You’re either wrongfully dismissed or you’re not, and it either was a malicious prosecution and that will be determined or should have been determined at a trial … a decade ago now. Transcript of proceedings, April 2, 2013, p 6, ll 29-35. [ 15 ] Donnelly’s application to have this matter heard by a civil jury occurred on March 3, 2005, which was over 8 years after he commenced his action.

Although there was the issue that Rooke J raised, which resulted in delay, Donnelly did not revive his application until November 30, 2012, which was over 7 years after he first raised the issue in front of Rooke J, and 17 years after he commenced his action. [ 16 ] So, what has happened in the interim? In August of 2000, there were examinations for discovery, as they were then called. This is certainly a step to advance the action. Then, there was the application to have this matter heard by a civil jury.

This was not a step to advance the action, but was procedural in the sense that it would determine the mode of trial that Donnelly wished to have. Then, there was the issue involving the cause of action estoppel and issue estoppel and their application to Donnelly’s arguments that the issue in the lawsuit were res judicata . These were matters of substance that, depending on the ruling, could assist the court in determining whether to grant the application involving the civil jury, and what could be presented at the trial.

Rooke J dismissed Donnelly’s application and the Alberta Court of Appeal dismissed Donnelly’s appeal. The parties then attended a pre-trial conference before Phillips J in which she set certain deadlines for the filing of certain documents. [ 17 ] The Alberta Court of Appeal has rendered many decisions that deal with Rules r 15.4, and its predecessor, rule 244.1 of Alberta Rules of Court , Alta Reg 390/68 [ Former Rules ]. In Bahcheli v Yorkton Securities Inc , 2010 ABQB 824 at para 26-27 , Wilkins J said, when discussing the old and new rules: ...

I find there is no significant or material difference between the two rules which would affect the determination of this appeal. There can be no different result if a thing or step is found to have been "significantly advanced" than if that thing or step is found to be "materially advanced". I have also concluded that the jurisprudence relating to the former "drop dead" rule continues to be applicable to the new rule. [ 18 ] It should be noted that Wilkins J’s decision was appealed.

In Bahcheli v Yorkton Securities Inc , 2012 ABCA 166 [ Bahcheli CA ] at para 42 , the Alberta Court of Appeal dismissed the appeal and noted that test under the Former Rules and Rules “uses similar wording.” In Bahcheli CA at para 43 , Côté JA went on to say, “... nothing done after the statement of claim was issued was of any benefit whatever in the present lawsuit, let alone materially advancing it.” [ 19 ] When one looks at the cases that consider whether a step or “thing” has materially advanced the action, they include “things” like:

• conducting examinations for discovery (or questioning): Lanset Capital Corp v Waterloo Geological Consulting Ltd, 2006 ABCA77 at para 9 • gathering economic and medical reports to assess damages in a personal injury case: Phillips v Sowan, 2007 ABCA 101 • complying with undertakings given pursuant to examinations for discovery (or questioning), subject to certain exceptions: RavvinHoldings Ltd v Ghitter, 2008 ABCA 208 [Ravvin]; Gresiuk v Wawanesa Mutual Insurance Co (2002), 316 AR 269 at 276-78 (QB) • filing an affidavit of documents that sets out all of the relevant documents: Matthews v Great-West Life Assurance Co (2002),2002 ABQB 297 , 313 AR 86 at 93-95 (QB); Heikkila v Alberta (Workers’ Compensation Board Appeals Commission) (2008), 2011 ABCA 87 , 1 Alta LR (5th) 356, 502 AR 243 [Heikkila] at 362-63(Master) [20] “Things” that have been considered not to have materially advanced the action are: • setting a date for examinations for discovery: Co-operators Life Insurance Co v Rollheiser (1998), 1998 ABQB 874 ,231 AR 98 at 100 (QB) • filing of a further affidavit of records to “formalize” the documents that the party produced during the examination for discovery:Lamont Highway Service Ltd v Scraba, [1999] AJ No 421 (Master) • a change of legal representation for the plaintiffs: Calliou v Bouchard (2006), 2006 ABQB 925 , 406 AR 44 at 50 (QB) [21] The Alberta Court of Appeal said in Bishop v Calgary (City) (1998), 1998 ABCA 23 , 228 AR 73 at 77, “The realfocus of the test is not whether the activity is a “step” or a “thing” but rather whether or not it materially advances the action.” Toundertake this analysis, courts must undertake a “functional analysis”: Heikkila at 362. [22] In Morasch v Alberta, 2000 ABCA 24, 75 Alta LR (3d) 257 [Morasch], Fruman JA said at paras 6-7: If the Rules of Court require that a step be taken, the completion of that step, in and of itself, materially advances the action: Bishop v.Calgary (City) (1998), 1998 ABCA 23 , 228 A.R. 73 (Alta.

C.A.) at 78. Because the Rules require that the step be taken, it isconsidered a step which is necessary to advance an action and its completion is deemed to materially advance the action. The court neednot inquire whether the step actually caused the action to advance. The completion of the required step is sufficient, in and of itself, torestart the five-year clock. The step must be completed, however, not just commenced ... [23] Fruman JA went on to say at para 9: A procedural step contemplated by the Rules, although not required by the Rules, may be a step which materially advances an action.

Ineach case, the step must be examined in light of the purpose of R. 244.1. This is the “functional analysis” to which the court referred in Heikkila. [24] When one looks at the steps or “things” that the parties have taken to advance this action, there was much activity in thismatter involving matters that the Rules required. Examinations for discovery were completed in August of 2000. There were a series ofapplications to seek compliance with undertakings, and finally on March 23, 2005, Donnelly filed his notice of motion seeking to havethis matter heard by a civil jury.

This application was adjourned sine die to permit the application concerning issue estoppel and cause ofaction estoppel. The Alberta Court of Appeal rendered its decision on these latter issues in November of 2006. Because these steps werepreliminary to Rooke J’s hearing the application to have a civil jury hear this matter, Donnelly could have proceeded with his applicationto have a civil jury hear this matter immediately after the Alberta Court of Appeal rendered its decision. He did not.

In fact, he did not“revive” his application until November 30, 2012, which was 6 years later. [25] From November of 2006, nothing happened on this matter until the pre-trial conference with Phillips J on February 29, 2008.Was the pre-trial conference a “thing” that materially advanced the action? When one reviews the pre-trial conference report that PhillipsJ prepared, it appears that the parties were ready to proceed with the trial.

No further steps had to be taken, except those that would bedone as the trial date approached, such as the exchange of expert reports, preparation of an agreed statement of facts, and an exhibitbinder. In other words, the pre-trial conference did not materially advance the action. [26] Arguably, the one thing that did materially advance the action is the following, which Phillips J directed: The only outstanding matter relates to a jury application. In that regard, I directed that the plaintiff must advise the defendant whether hewishes to proceed with the jury application by no later than March 31, 2008.

If the plaintiff does wish to proceed with the juryapplication, then his counsel will have to make arrangements for the jury application to proceed before Justice Rooke, at a time mutuallyagreeable to all.

Further, if the plaintiff does proceed with his jury application, then the defendant will have an opportunity to file a supplementaryaffidavit in reply and the plaintiff will have an opportunity to cross-examine the defendant on the supplemental affidavit. [27] Pursuant to that direction, on March 31, 2008, Donnelly’s then counsel advised the Applicants’ counsel that he wanted toproceed with application that this matter be heard by a civil jury.

Despite repeated requests, Donnelly did not make this application.Because Donnelly had counsel, the Applicant’s counsel advised Donnelly’s counsel that they would consent to the application. Stillnothing happened. [28] The parties easily could have filed what was known as a certificate of readiness, conditional on the obtaining of the order

directing that the trial be by jury. The parties were ready to proceed, as indicated in Phillips J’s pre-trial conference report. The question is whether Donnelly’s filing of his application to have the matter heard by a civil jury is a step or “thing” that saves this matter from “dropping dead.” [ 29 ] Rules r 8.1 says the following: 8.1 Unless the Chief Justice directs that the mode of trial be by jury, or in part by jury and in part by judge alone, the trial must be by judge alone. Thus, the usual mode of a civil trial is by judge alone.

Rules r 8.2 then sets forth a detailed procedure a litigant must follow to obtain an order that the matter be heard by a jury. Donnelly did not comply with this procedure, which is why Wittmann CJ refused to hear his application. [ 30 ] Taking a functional approach to this matter, this Court questions whether the pre-trial conference was a “thing” that materially advanced the action. The action was ready to proceed to trial even without the pre-trial conference, and Phillips J merely ordered the time lines that Donnelly had to meet if he chose to make the application proceed with a civil jury.

The Rules , whether the Former Rules or the Rules gave him the procedure to have this matter heard by a jury. The Rules did not “require that a step be taken.” It was completely up to him. Does this step materially advance an action “in light of the purpose of R. 244.1 ”? It does if he wants the matter to be heard by a civil jury, but the fall-back position is that it would be heard by a judge alone.

The delay is not the fault of the Defendants. [ 31 ] When one looks at the foregoing examples of “things” that materially advance the action, they deal with “things” that the Rules require a party to complete (and are hence, material: Morasch at paras 6-7 ), or “things” that the parties require to pursue or meet the case.

Neither of those applies to the application seeking to have this matter heard by a civil jury; especially when the desire to have this matter heard by a civil jury is entirely in the hands of Donnelly. [ 32 ] Even if his application to have this matter heard before a civil jury is a “thing,” which this Court does not accept, the commencement of that application by the filing of the notice of motion on November 30, 2012, does not complete the “thing.” As Fruman JA stated in Morasch at para 7 , “The step must be completed, however, not just commenced.” That step was not completed until Hughes J heard the application over 5 years after Donnelly’s counsel advised the Defendants that Donnelly wanted to proceed with the application. [ 33 ] Furthermore, the Defendants’ participation in Donnelly’s application to have this matter heard before a civil jury does not fall within Rules r 15.4(2)(d).

Quite correctly, the Defendants did not feel that Donnelly’s application should proceed undefended. They had asked Donnelly to adjourn the application, so that they could bring the within application. Donnelly refused their request. In the words of Rules r 15.4(2)(d), this Court does not find that the Defendants’ participation in the application warrants the action continuing. [ 34 ] The last thing that materially advanced the action was the decision of the Court of Appeal, as it set the stage for Donnelly to make his application to have this matter heard by a civil jury. That occurred almost 7 years ago.

As a result, this Court dismisses Donnelly’s action pursuant to Rules r 15.4(1). If this Court answers the foregoing issue in the negative, whether Donnelly’s action should be dismissed pursuant to Rules r 4.31 because his delay has resulted in a significant prejudice to the Applicants. [ 35 ] Although the foregoing discussion disposes of this matter, this Court will briefly address the second issue that the parties argued before it. [ 36 ] Rules r 4.31 provides as follows: 4.31

(1) If delay occurs in an action, on application the Court may (

a) dismiss all or any part of a claim if the Court determines 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.

(2) Where, in determining an application under this rule, the Court finds that the delay in an action is inordinate and inexcusable, that delay is presumed to have resulted in significant prejudice to the party that brought the application. [ 37 ] This Court agrees with Wilson J when he said that Donnelly’s case is not “that complex” and that his malicious prosecution action should have been determined at trial “a decade ago.” Recall that Donnelly was dismissed from the Brick and acquitted of the assault charge over 19 years ago. He commenced his action over 17 years ago.

This was not a complex case. [ 38 ] The Canadian Oxford Dictionary , 2d ed, sub verbo “inexcusable”, defines that term as “that cannot be excused or justified.” The online Merriam-Webster Dictionary , online: Merriam-Webster.com http://www.merriam-webster.com/dictionary/inordinate, sub verbo “inexcusable” defines it as “impossible to excuse or justify.” [ 39 ] The delays that preceded the Alberta Court of Appeal’s decision were excusable. The objective was to move this matter forward and each party had to respond to the applications that the other was making.

From that point to the pre-trial conference there was a lag of about 16 months. In the meantime, Donnelly hired legal counsel. Still nothing happened except for an offer of settlement, which was made and expired. After Donnelly’s counsel advised that Donnelly wanted to make his application to have this matter heard before a civil jury, nothing happened until Donnelly filed his application on November 30, 2012, which was over 6 years after the Alberta Court of Appeal rendered its decision.

This Court finds that delay to be inexcusable. [ 40 ] In his affidavit that he swore on March 27, 2013, Donnelly states in para 21, that soon after his lawyers sent the Defendants the letter concerning the civil jury (March 31, 2008), he “had personal medical issues that needed to be dealt with that included a hospital

stay, surgery and a lengthy recovery period.” He provided this Court with no evidence concerning these medical issues. [41] The Canadian Oxford Dictionary, 2d ed, sub verbo “inordinate”, defines “inordinate” as “unusually or disproportionatelylarge; excessive [inordinate delays].” The online Merriam-Webster Dictionary, online: Merriam-Webster.com http://www.merriam-webster.com/dictionary/inordinate, sub verbo “inordinate” defines it as “going beyond what is usual, normal, or proper.” The delay inthis case is inordinate.

Even giving Donnelly the benefit of the doubt that the time before the Alberta Court of Appeal rendered itsdecision was not excessive (which this Court is not finding), 6 years from the last significant step in this lawsuit is an inordinate amountof time. [42] Because this Court has found that the delay is inordinate and inexcusable, Rules r 4.31(2) says that the delay “is presumed tohave resulted in significant prejudice” to the Defendants.

The wording under the Former Rules r 244, said that “the delay shall be primafacie evidence of serious prejudice to the party that brought the application.” It is interesting to note that when Alberta was consideringthe adoption of the New Rules the Alberta Law Reform Institute issued a consultation memorandum. In that consultation memorandum,it said: The Committee proposes to retain Rule 244 in its present form.

The broad definition of “prejudice” in Rule 243(2) should also beretained: Alberta Law Reform Institute, Consultation Memorandum 12.14, “Alberta Rules of Court Project: Miscellaneous Issues”(October 2004) at para 130. [43] The Alberta Law Reform Institute did not comment on the change in the wording of that provision. The wording of theFormer Rules r 244 is evidentiary. A respondent may proffer contra evidence. The presumption in Rules r 4.31(2) could be seen asbroader, in the sense that it is not simply evidentiary. It creates a prima facie case.

Like the “presumption of innocence” in a criminal lawcontext, the burden does not shift to the respondent to disprove the case. If the applicant adduces sufficient evidence to support thepresumption, the respondent must adduce evidence to challenge the presumption. The cases that considered Former Rules r 244 took thatapproach, so to that extent, the change is not significant.

Although, the wording of both suggests that there is a shift in the evidentiaryburden from the applicant to the respondent, the Alberta Court of Appeal held in Volk v 331323 Alberta Ltd, 1998 ABCA 54, 212 AR 64that it did not and, in the first instance, placed the burden on the applicant to adduce evidence to support its position. It said at para 21: [Former Rules r 244] does, however, create a form of presumption of serious prejudice to the applying party where the other party hasbeen guilty of inordinate and inexcusable delay. By sub-rule (4) such delay "is prima facie evidence of serious prejudice".

This does notshift the overall burden of proof. The applicant must still establish a likelihood of serious prejudice before the action will be struck underthis Rule. The presumption may lead to dismissal unless there is evidence that at least raises a legitimate doubt about the existence ofserious prejudice to the applicant attributable to the delay.

In the absence of such evidence, the delay alone is sufficient proof of seriousprejudice to warrant dismissal for want of prosecution. [Emphasis added]. [44] The Alberta Court of Appeal in Ravvin at para 39, went on to clarify this by saying: … [A]bsent evidence sufficient to raise a legitimate doubt about the existence of prejudice that is attributable to the delay, thepresumption applies.

Once evidence raises such a legitimate doubt, then the applicant bears the burden of proving, on the whole of theevidence, that serious prejudice was caused by the delay. [45] The Alberta Court of Appeal held that this analysis takes place in 2 parts. First, whether there is evidence that rebuts thepresumption of serious prejudice. Second, whether there is sufficient evidence of such prejudice.

The factor that overarches this analysisis that this Court must “tie the likelihood of serious prejudice to the proper period of inordinate and inexcusable delay”: Ravvin at para41. [46] This Court has held that the period of inordinate and inexcusable delay was from November of 2006, when the Alberta Courtof Appeal rendered its decision dismissing Donnelly’s appeal from Rooke J’s decision on action/issue estoppel.

The Defendants’ biggestconcern is that they might not be able to find many of their witnesses, and even if they find them, those witnesses will likely not be ableto remember what happened in February of 1994. Donnelly counters by saying that the documents contained in the affidavit of recordsmight help the witnesses refresh their memories.

Furthermore, in the affidavit that he swore on March 27, 2013, Donnelly states that “Ihave ‘googled’ a few [of the witnesses] on their list and located them myself.” He provides no evidence of the results of his “googling.”This is arguably evidence that raises legitimate doubt about the existence of prejudice that is attributable to the delay. [47] The Defendants have filed a number of affidavits of potential witnesses in which they state that that even after reviewing therecords that the Brick maintained, they have no independent recollection of the events that gave rise to those records.

As well, they haveprovided a number of affidavits in which the deponents state that after significant effort, they are unable to locate many of the witnesses.These efforts all took place during the inordinate and inexcusable delay period. [48] We will never know if the deponents would have given the same evidence had they provided affidavits in 2006, or even 2007.However, the effluxion of time did not help the matter. [49] There are employee warning records that deal with the disciplinary issues involving the Brick and Donnelly.

However, if thewitnesses simply do not have independent recollection of the details of any of the disciplinary issues that involved Donnelly, theDefendants are seriously prejudiced in meeting the case against them. Granted, they might have had these memory issues in 2006, butDonnelly has provided this Court with no evidence of this fact, which he must do to meet the first part of the analysis.

For example, inRavvin at para 44, the Alberta Court of Appeal found that “memory loss on the substantive issues involved in this suit were alreadyevident before any period of inordinate and inexcusable delay.” Donnelly has not met the first part of the analysis. [50] Even had this Court found that Donnelly met the first part, he would fail on the second part. There is authority which says thatthe effluxion of time can constitute substantial prejudice: see e.g. Wyant Estate v St Arnault (1985), (AB KB), 43Alta LR (2d) 371 at para 11, 63 AR 91(QB).

However, Ravvin seems to suggest that the applicant must prove more. In this case, had thismatter proceeded to trial soon after the Alberta Court of Appeal rendered its decision in November of 2006, witnesses would beattempting to recollect events that occurred 12 years earlier. That might prove to be difficult enough. The concern is exacerbated by the

further inordinate and inexcusable delay of almost 7 years. As the Alberta Court of Appeal said in Ravvin at para 47 : We agree that the longer the delay the greater the likelihood of serious prejudice. This is the very underpinning of the presumption. As time passes the risk of dimmed memories, lost records, or lost or dying witnesses increases. But the likelihood of serious prejudice, arising from these risks, still must relate to the period of inordinate and inexcusable delay. [ 51 ] On this basis, this Court would also dismiss Donnelly’s case pursuant to Rules r 4.31. V.

Conclusion [ 52 ] This Court allows the Defendants’ application to dismiss Donnelly’s action. The Defendants are entitled to their costs. Heard on the 24 th day of September, 2013. Dated at the City of Calgary, Alberta this 21 st day of October, 2013. K.D. Yamauchi J.C.Q.B.A. Appearances: Arthur V Donnelly Self-Represented Litigant Michael JM Hokanson Bryan & Company LLP for the Defendants / Applicants