McKee v Parkland (County), 2014 ABQB 693

Court of Queen ’ s Bench of Alberta Citation: McKee v Parkland (County), 2014 ABQB 693 Date: 20141223 Docket: 0903 05976 Registry: Edmonton Between: Merle McKee Plaintiff/Respondent - and - Parkland County Defendant/Applicant _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ Introduction [ 1 ] The Plaintiff (Respondent) Merle McKee in action 0903 05976 brought a wrongful dismissal action against her former employer, the Applicant defendant Parkland County ("County") in April 2009, which was served in April 2010. Ms. McKee had worked for the County from February 28, 1989 to June 19, 2008. [ 2 ] On November 4, 2013, the County brought a drop dead application against Ms. McKee as 3 or more years had passed since

the last thing was done to significantly advance her action. Facts [ 3 ] The following undisputed chronology of events occurred on Ms. McKee’s file: • April 24, 2009 – Mr. Henderson filed a Statement of Claim on behalf of McKee. • April 22, 2010 – The Statement of Claim was served. • June 22, 2010 – Mr. Lavergne filed a Statement of Defence on behalf of Parkland County. • July 29, 2010 – McKee’s Affidavit of Records was served. • September 15, 2010 –Affidavit of Records served on behalf of Parkland County. • September 24 and October 6, 2010 – Mr.

Lavergne provided McKee’s counsel with producible records. • March 28 and May 10, 2011 – Mr. Lavergne wrote to Plaintiff’s counsel and asked for mitigation documents. • Although McKee’s counsel Ms. Haraba had received the mitigation documents by June 2013, she did not have the Plaintiff’s instructions to release them. She left a message for Mr. Lavergne at some point after June 2013 advising that she was preparing a settlement proposal. • September, 2013 – Ms. Haraba fell ill and the file was being monitored by Mr. Henderson. • October 31, 2013 – McKee’s counsel Hamish Henderson (Ms.

Haraba was away ill by this point) sent an email to Mr. Lavergne with an attached letter dated October 15, 2013. The letter provided relevant mitigation information including income tax returns, various employment letters, and stated that it also attached a Notice to Admit Facts. However there was no Notice to Admit Facts actually attached. Counsel for the Defence advised Mr. Henderson of this omission on November 4, 2013, but never heard anything further from Mr. Henderson on this point. • Ms. Haraba was served with the Drop Dead application on November 4, 2013.

The Applicable Rules of Court [ 4 ] The following Alberta Rules of Court are applicable: 4.33(1) If 3 or more years has passed after the last thing done that significantly advanced an action, the Court, on application, must dismiss the action as against the applicant, unless (

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 a litigation plan, (

c) the applicant did not respond to a written proposal by the respondent that the next thing in the action not occur until more than 3 years after the last thing done that significantly advanced 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. ...

15.9(1) Subject to subrule (2), where these rules impose a time limit for doing anything for which no time limit was provided for underthe former rules, and on the coming into force of these rules the thing has not yet been done, the time limit under these rules applies tothe doing of that thing and is calculated from the date on which these rules come into force.

(2) Rule applies only to matters that are set down for trial after the coming into force of these rules. The Applicant County’s Argument [5] It is the position of the County that the last thing of significance which was done in Ms. McKee's action was when theCounty served its Affidavit of Records on her lawyer (Mr. Henderson) on September 15, 2010. [6] Regarding long delay, Rule 4.33 applies. If it does not apply, then Rule 15.4 applies. [7] The four corners of the Statements of Claim and the Statements of Defence are the boundaries of this litigation. In theirStatement of Defence, the County alleged Ms.

McKee failed or refused to mitigate. [8] It has long been recognized in wrongful dismissal actions that mitigation is required, the onus is on a plaintiff to makereasonable efforts to mitigate and all monies earned in mitigation are deducted from anything the former employer owes the employeefor damages: Red Deer College v Michaels, (SCC), [1976] 2 SCR 324. [9] There is nothing novel about the mitigation requirements of McKee in her action against the County. Ms.

McKee hadongoing obligations to provide the County with her mitigation information. [10] Under Rule 4.33(1), if “3 or more years has passed without a significant advance in an action, the Court, on application, mustdismiss the action as against the applicant", unless the exceptions cited exist. None of the exceptions exist in the circumstances at hand. [11] There were no genuine efforts by Ms. McKee to take steps to significantly advance her action during the applicable 3 yeardrop dead window. As plaintiff, Ms. Ms. McKee has carriage of her action.

It is her responsibility to move her action forward and makesure that something is significantly done to advance them during the 3 year time period. [12] The mitigation information the County requested was information which was relevant to negotiations, but no negotiationsoccurred, and negotiations do not significantly advance an action. The January 24, 2011 letters from County counsel to Ms. McKee'slawyers clearly indicated that County counsel would like to arrange a meeting to discuss possible resolution and the mitigationinformation was relevant to settlement discussions. It had no other purpose. [13] Ms.

McKee only provided some mitigation information on October 31, 2013, after the 3 year period had passed, and on theeve of a drop dead application. The information Ms. McKee provided did not result in settlement negotiations. Respondent’s Argument [14] The Defendant Parkland County requested mitigation information in early 2011, which is one of the relevant factors stated byJustice Gates in Huynh v Rosman, 2013 ABQB 218. Counsel for McKee informed counsel for the defendant that the materials werebeing gathered and a proposal was forthcoming.

Thus settlement discussions were intended by both parties and that information thatwould narrow the issues was being gathered in good faith. In analyzing the Action from a macro level, it is clear that the Action wasprogressing. [15] The County admits at paragraph 5 of the First Supplemental Affidavit of Raylene Stoodley (filed by the Applicant) that therelevant attachments, namely income tax and other mitigation information, were both requested by it and subsequently received onOctober 31, 2013.

It is only the Notice to Admit Facts that the County says was not received, although it admits having knowledge thatcounsel for McKee intended to attach it. [16] Ms. Haraba fell ill and took leave shortly before the drop dead deadline. However, Mr. Henderson took immediate steps topreserve the file by serving a letter with significant documents on October 31, 2013. [17] The combination of the mitigation documents and the Notice to Admit would have likely resulted in agreement on certainfacts, or an agreement as to some aspect of the action (such as quantum or liability): 525812 Alberta Ltd v.

Purewal, 2004 ABQB 938, 2004 ABQB 938 at paragraph 16. This overall view of the facts further meets the functional analysis that this matter wasprogressing since all producible documents were provided previously along with audio tapes. Further, Ms. Haraba called Mr. Lavergneto advise that a settlement proposal was in the works: Phillips v. Sowan, 2007 ABCA 101 , 2007 ABCA 101 at paragraph 5.

InPhillips, information was exchanged on an informal basis after the defendant was noted in default, and such was held to have materiallyadvanced the action as the Defendant was aware that the Plaintiff was obtaining the information. [18] The County relies on Nash v Snow, 2104 ABQB 355 to argue that the Notice to Admit Facts is not a step since they wouldhave had 20 days to respond and the Action would have otherwise been struck.

However the Plaintiff argues that this is an incorrect viewas it ignores the mitigation documents that were served, as Nash is distinguishable on the basis that the bare 11th hour settlement offerand the Notice to Admit Facts were held to be perfunctory. In this case, the combination of the mitigation documents (which werespecifically requested by the County) and the Notice to Admit Facts are a significant step that would have narrowed the issues. Thedocuments must be held to be relevant in a material way, otherwise, they would not have been requested by the County.

They are notperfunctory as was the case in Nash, therefore despite the fact the County had 20 days to respond to the Notice to Admit Facts, theAction did not expire since the mitigation documents constitute a step that restarted the clock.

[ 19 ] In Malcolm v Canada (Indian and Northern Affairs) 2006 ABQB 152 , the Court held at paragraph 65 that an exchange of correspondence could be held as a material advancement of the action to trial provided it engaged the party adverse in interest. [ 20 ] Accordingly, the Plaintiff argues that this application must fail because: 1) Mr.

Henderson called counsel for the defendant and advised him that mitigation information was being gathered and that a proposal was forthcoming; 2) the material information gathered and intended to be attached to the October 31, 2013 email was substantial in nature and would have significantly narrowed the issues; and 3) the Notice to Admit Facts, which is contemplated by the Rules of Court, was prepared and was intended to be attached to the October 31st email.

Analysis [ 21 ] Under Rule 4.33(1) and Rule 15.4 if “3 or more years has passed without a significant advance, the Court, on application, must dismiss the action as against the applicant” unless certain cited exceptions exist. It is clear that none of these exceptions exist in the present matter. [ 22 ] The Applicant points out that the dictionary meaning of “significant” means “notable” or “measurably large”.

It is clear from recent authorities that a thing that materially advances an action requires a functional analysis as to whether what was done genuinely furthered the litigation in a meaningful way in the context of the real issues in dispute. I agree with my colleague Justice Topolniski that the required analysis includes the following from Nash at paragraph 29 and 30: 29 The absence of the words the "last thing" or "step" in Rule 4.33 necessarily modifies the focus of the purposive and contextual assessment.

The issue is "advancing" or moving the action forward and what was done in the context of the real issues in dispute. Accordingly, the court must take a macro view of what transpired in the three-year window. That may require some dissection of what happened, and some examination of the dissected parts. As Graesser J. noted in Le v 1055168 Alberta Ltd , the focus is on function, not whether

an act fits into a defined category of activities. 30 Put another way, the court must view the whole picture of what transpired in the three-year period, framed by the real issues in dispute, and viewed through a lens trained on a qualitative assessment. This necessarily involves assessing various factors including, but not limited to, the nature, value and quality, genuineness, timing, and in certain circumstances, the outcome of what occurred. [ 23 ] The new Rule permitting dismissal for long delay after a 3 year gap with no step being taken came into effect on November 1, 2013. Mr.

Henderson emailed mitigation documents on October 31, 2013. Ms. Haraba was served with an application to strike the claim for want of prosecution on November 4, 2013. [ 24 ] I conclude that Mr. Henderson’s October 31, 2013 letter was a desperate attempt by him as Plaintiff’s counsel on the eve of the new three year drop dead rule to preserve Ms. McKee’s actions. However by October 31, 2013 the three years had already passed, as the only things that could even arguably have advanced Ms. McKee’s action were her July 29, 2010 service of her Affidavit of Records, and Ms.

Gwen May’s letter to the County’s lawyer dated September 20, 2010 in which Ms. May (Mr. Henderson’s student) confirms receipt of the Defendant’s Affidavit of Records and requests copies of all documents listed in the First Part of the First Schedule. [ 25 ] As to whether the student’s request for copies of records is a thing that significantly advances an action, I agree with the conclusion reached by Master Hanebury in Terroco Drilling Ltd v Tusk Energy Corp. 2014 ABQB 419 at paragraph 34 that generally it does not: 34 In this case Terroco requested copies of records that were already available to it.

While that request can be made under the Rules, it is not a mandatory step necessary to proceed to trial. Undertaking a functional analysis, I have come to the conclusion that the provision to opposing counsel upon his or her request of copies of records already made available for viewing by way of the Affidavit of Records does not significantly advance the action. Those records had already been produced and the provision of copies did not move the action closer to trial in a significant way.

To find otherwise would, in my view, circumvent the spirit and purpose of rule 4.33(1). [ 26 ] Accordingly I conclude that supplying an Affidavit of Records and requesting copies of some of the documents listed in the Affidavit of Records, was not a thing that significantly advanced Ms. McKee’s action. [ 27 ] The Plaintiff further argues that sometime around June 2013 McKee’s counsel informed the Defendant’s counsel that materials were being gathered and a proposal was forthcoming for settlement.

However I note that these materials were never provided until October 31, 2013, the day before the new Rule came into effect, and that three years had clearly passed since the last thing that was done that significantly advanced the action, which in this case I find was when the Affidavits of Records were served July 29 and September 15, 2010. [ 28 ] I conclude that although the mitigation information the County had requested was relevant to negotiations, in fact no negotiations ever occurred as a result of that information.

The Plaintiff was clearly under an obligation to provide the Defendant with mitigation information, in any event, and even if it had been provided within the three year period it still would not in and of itself have been something that significantly advanced the action. In this case, Ms. McKee only provided some mitigation information on October 31, 2013 after the three year period had passed, and on the eve of the drop dead application. The information Ms. McKee provided clearly did not lead to any settlement negotiations or settlement offer. Accordingly the case authorities submitted by counsel for Ms.

McKee that state that settlement discussions and mitigation information being gathered which later narrowed the issue for settlement discussions may constitute a thing that materially advanced an action, are not applicable here since no settlement negotiations or settlement offers ever occurred, and the information was provided after the three years had expired. [ 29 ] Furthermore Ms. McKee’s counsel’s last minute attempt to also serve a Notice to Admit Facts, which was never even attached to the October 31, 2013 letter, also is not a thing that materially advanced the action.

The purported Notice to Admit Facts was never attached, and even if it had been attached to the October 31, 2013 email, it was already beyond the three year period since the last step

had occurred. In and of itself the Notice to Admit would not have constituted a thing that significantly advanced this action in any event. Conclusion [ 30 ] I conclude that there was no effective genuine effort made by Ms. McKee to take any steps to significantly advance her action during the applicable three year drop dead window, and as such her Statement of Claim is struck. The County is awarded costs of this application. Heard on the 25 th day of September, 2014. Dated at the City of Edmonton, Alberta this 23 rd day of December, 2014. Donald Lee J.C.Q.B.A.

Appearances: Anna Loparco, Dentons Canada LLP for the Plaintiff (Applicant) F. Albert X. Lavergne, Reynolds Mirth Richards & Farmer LLP for the Defendant (Respondent)