Kaylm Wilson, Infant by His Next Friend, Tanya Dixon Respondent/Plaintiff - v. -, 2014 ABQB 741

Court of Queen ’ s Bench of Alberta Citation: Wilson v Board of Trustees of Aspen View Regional School Division No 19, 2014 ABQB 741 Date: 20141204 Docket: 0603 09591 Registry: Edmonton Between: Kaylm Wilson, Infant by His Next Friend, Tanya Dixon Respondent/Plaintiff - and - Board of Trustees of Aspen View Regional School Division No. 19 Applicant/Defendant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.H.

Goss _______________________________________________________ Introduction [ 1 ] The Board of Trustees of Aspen View Regional School Division No. 19 (Defendant) applies for an order dismissing the Plaintiff’s action for want of prosecution and delay pursuant to Rules 4.33 and 4.31 of the Alberta Rules of Court . [ 2 ] The Plaintiff’s Next Friend in her evidence acknowledges that the Plaintiff has failed to advance this action. However, the Plaintiff submits a court has discretion to allow the continuation of an action where a plaintiff has been unable to advance the action due to psychological issues.

The Plaintiff also argues that correspondence between counsel constituted a stay of proceedings.

Background [ 3 ] The action was commenced by the Plaintiff, Kaylm Wilson by his Next Friend, Tanya Dixon, his mother. It was filed on August 1, 2006, when Mr. Wilson was 13 years old. Mr. Wilson seeks damages allegedly suffered as a result of bullying by fellow students while Mr. Wilson was attending Smith Elementary/Junior/Senior High School between September 1998 and June 2006. [ 4 ] The Defendant filed a Statement of Defence on September 20, 2006. The action has progressed through to the production of several Affidavits of Records and Questioning.

The last Questioning occurred on November 2, 2007, just over seven years ago . The last correspondence was sent in October 2008. [ 5 ] Wilson is now 21 years of age. He no longer lives at home, and is currently working in the oil patch for his step-father. The evidence of the Plaintiff’s Next Friend, Ms. Dixon, is that Mr. Wilson has experienced significant psychological issues, and that he refuses to seek any counseling or to take any steps to deal with his psychological problems. She deposes that Mr. Wilson has “failed to deal with this lawsuit despite my numerous attempts to have him do so.

As a result we have been unable to advance this action for the past several years”. [ 6 ] Ms. Dixon deposes that she “is prepared to assist Kaylm in the advancement of this action and work with him to handle the trauma and distress its advancement would cause”. She further deposes that “such advancement would have to start with psychological counseling in order to address Kaylm’s issues and allow him to participate in the lawsuit”. [ 7 ] No further specifics were provided regarding the nature of Mr.

Wilson’s psychological issues, a diagnosis, or the connection between his psychological issues and the delay in advancing his action. Further, there is no evidence before the Court that Mr. Wilson is subject to an order under the Adult Guardianship and Trusteeship Act , SA 2008, c A-4.2. [ 8 ] The Court has never ordered a stay or adjournment, or other similar relief.

Alberta Rules of Court , Alta Reg 124/2010 [ 9 ] The parties referred to the following Rules: 1.2(1) The purpose of these rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost - effective way. ... ... 1.3(1) The Court may do either or both of the following: (

a) give any relief or remedy described or referred to in the Judicature Act; (

b) give any relief or remedy described or referred to in or under these rules or any enactment.

(2) A remedy may be granted by the Court whether or not it is claimed or sought in an action. 1.4(1) To implement and advance the purpose and intention of these rules described in rule 1.2 the Court may, subject to any specific provision of these rules, make any order with respect to practice or procedure, or both, in an action, application or proceeding before the Court. ... ... 1.5(1) If a person contravenes or does not comply with these rules, or if there is an irregularity in a commencement document, pleading, document, affidavit or prescribed form, a party may apply to the Court (

a) to cure the contravention, non-compliance or irregularity, or (

b) to set aside

an act, application, proceeding or other thing because of prejudice to that party arising from the contravention, non- compliance or irregularity. ... ... 1.6(1) The judges of the Court of Queen’s Bench and the Court of Appeal may alter and amend any of these rules or make additional rules. ... 4.33(1) If 3 or more years has passed without a significant advance in 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 advancing the action, or the delay is provided for in a 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. Judicature Act , RSA 2000, c J-2 [ 10 ]

Section 8 of the Judicature Act provides that the Court in the exercise of its jurisdiction in every proceeding pending before it has power to grant and shall grant, either absolutely or on any reasonable terms and conditions that seem just to the Court, all remedies whatsoever to which any of the parties to the proceeding may appear to be entitled in respect of any and every legal or equitable claim properly brought forward by them in the proceeding, so that as far as possible all matters in controversy between the parties can be completely determined and all multiplicity of legal proceedings concerning those matters avoided. [ 11 ] Section15 provides that in all matters in which there is any conflict or variance between the rules of equity and common law with reference to the same matter, the rules of equity prevail. [ 12 ] Section16 provides: 16(1) If a plaintiff claims to be entitled … (

b) to relief on an equitable ground … (ii) against a right, title or claim whatsoever asserted by a defendant or respondent in the proceeding, or (

c) to any relief founded on a legal right, the Court shall give to the plaintiff the same relief that would be given by the High Court of Justice in England in a proceeding for the same or a like purpose. [ 13 ] Under s. 28.1(1)(a)(i), t he Lieutenant Governor in Council may by regulation make rules governing practice and procedure in the Court of Queen’s Bench.

Positions of the Parties [ 14 ] The Defendant takes the position that the Court has no discretion, given the mandatory language of Rule 4.33(1), to refuse to dismiss the Plaintiff’s claim as the Plaintiff has not done anything to significantly advance the action in the previous three years.

The Defendant points to the Plaintiff’s own evidence on this application in arguing that if the Court were to dismiss the application, there is no prospect of the action being adjudicated in a timely and just manner. [ 15 ] The Defendant also argues that the action should be dismissed pursuant to Rule 4.31 as continuation of the action would result in serious prejudice to the Defendant.

In particular, due to witnesses moving and passing away, the Defendant’s institutional memory regarding the matters in dispute has been significantly and incurably diminished by the delay. [ 16 ] The Plaintiff argues that the Court has discretion despite the mandatory language of Rule 4.33, noting that the foundational rules (Rules 1.3-1.5) give the Court the power and discretion to provide remedies, make procedural orders and cure contraventions or non-compliance with the rules. [ 17 ] The Plaintiff relies on ss. 8, 15 and 16 of the Judicature Act , which give the Court authority over proceedings instituted in the Court of Queen's Bench of Alberta, allow the Court to grant all legal and equitable remedies appropriate in the circumstances, and provide that equity prevails where the rules of equity and common law conflict. [ 18 ] The Plaintiff notes that the Court may make an order at any time to advance an action, including an order directing that the parties attend at a conference with the Court to assist in the management of the action. [ 19 ] The Plaintiff refers to correspondence dated October 2, 2008 in which the Defendant’s solicitors expressed the opinion that “the litigation is at a procedural impasse until the issue of Undertakings and any examination on Undertakings have been resolved”.

Counsel expressed the opinion that “we believe these calculations identified in the Undertakings are quantifiable at this time”. Ms. Dixon deposed that this “opinion that until Kaylm’s damages could be quantified, this action could not proceed” was interpreted by her as “constituting an effective stay of this action until the damages could be quantified”. Is Rule 4.33(1) mandatory? [ 20 ] In Chorney v Thompson , 2014 ABQB 410 , [2014] AJ No 709 Master Schlosser considered whether the principles of equity

could assist a plaintiff to resist a dismissal application for delay under the transitional rules where the plaintiff was physically andmentally debilitated and in a drug-induced stupor for roughly 11 years: 18 A civil claim in this venue is a privilege not a right. Practically speaking, it is a privilege denied to many for economic reasons.Some may be denied access simply because they are, in fact, ignorant of the rules or limitation statutes. Even self-reps are presumed toknow the law and actual ignorance or simple inactivity are beyond the power of equity or the court's duty of 'limited assistance' to cure.

Itmay mean the end of an otherwise meritorious claim but the purpose of limitations and delay rules are to codify and fix consideration ofthe Defendant's position. 19 Rules like 4.33 are absolute and mandatory. Rule 4.33 was intended by the drafters to be a 'bright line rule', subject to theexceptions in rule 4.33(1)(a)-(d); which reminds us that the privilege to litigate in this venue is fairly easily lost.

Bright line rules areintended to be largely impervious to the entreaties of equity, or the blurring of their boundaries... [21] Master Schlosser commented that the circumstances in that case invited sympathy, however they did not allow the Court tointervene. He further commented that actual incapacity was not proven and the ability to instruct counsel was demonstrated almost to thecompletion of the lawsuit. [22] In Juke v John Doe, 2009 ABQB 557, 486 AR 254, Prowse J. dealt with a motion to dismiss an action pursuant to formerRule 244.1. The plaintiff was a minor at the date of the dismissal application.

Counsel argued that as the plaintiff was a minorthroughout, she would not be barred by the Limitations Act, RSA 2000, c L-12, from filing a new Statement of Claim for her injuries ifthe action was struck, and accordingly the court ought not to strike out her claim for delay. Counsel cited Alberta GovernmentTelephones v Arrow Excavators & Trenchers

(1972) Ltd (1989), 1989 ABCA 214 , 69 Alta LR (2d) 332, 99 AR 25 (CA), asauthority for this proposition. Prowse J. noted that the application to dismiss in Alberta Government Telephones was brought underformer Rule 244, under which the Court had discretion as to whether to strike a claim for delay. He cited Morasch v Alberta, 2000ABCA 24, 250 AR 269, for the proposition that there was no such discretion to refuse dismissal where a five-year delay had beenestablished under Rule 244.1. [23] The case law is clear to the effect that Rule 4.33(1) is mandatory.

Subject to the parties agreeing to the delay or another of theexceptions listed, a court has no discretion to save a dormant action: Nash v Snow, 2014 ABQB 355 at para 12, 58 CPC (7th) 126, citingMorasch and Trout Lake Store Inc v Canadian Imperial Bank of Commerce, 2003 ABCA 259, 330 AR 379. The Rule promotescertainty and expeditious litigation.

The requirement to dismiss languishing litigation is also consistent with Rule 1.2(1) which declaresthat the purpose of the rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timelyand cost-effective way: Nash, paras 19-20. Can the Court alter or amend Rule 4.33(1)? [24] Rule 1.6(1) of the Alberta Rules of Court provides that judges of the Court of Queen's Bench and Court of Appeal may alterand amend any of the rules or make additional rules.

The Court must be very careful when invited to invoke its power under Rule 1.6.This rule does not allow the Court to change or alter substantive rights: Professional Sign Crafters

(1988) Ltd v Wedekind (1993), (AB KB), 137 AR 74, [1993] AJ No 35 (QB Master). [25] Rule 4.33 certainly does not invite the exercise of such power, given its mandatory and directive language and the cleardelineation of exceptions. [26] I also note that a plaintiff in difficult situations can take steps to avoid dismissal under Rule 4.33(1), including obtainingexpress consent to delay, or applying to the court for direction and assistance in anticipation or response to a growing delay. [27] The Court may, in the appropriate circumstances, alleviate the effect of some Rules where there is a sufficient evidentiaryfoundation.

For example, in Midwest Property Management v Kaye, 2004 ABQB 172, 375 AR 56, Lee J. found that the evidenceestablished the Respondent's emotional and psychological problems, and excused her from having to attend at an examination on heraffidavit given the serious risk to her health if she were forced to attend.

He held that the risk of short- and long-term damage to theRespondent's mental and emotional condition was far greater than the usual stress involved in litigation, and that it outweighed theproblems created by excusing her from the examination. [28] In contrast, the evidence submitted by the Plaintiff tells me very little other than that the Plaintiff has psychological issues.This is a vague term which could encompass problems falling along a broad spectrum. His refusal to seek counseling is not anuncommon concern. He has failed to deal with this lawsuit despite the urging of his Next Friend mother.

Failure to heed the advice ofone’s mother is also not uncommon, particularly in the case of a young adult. Ms. Dixon’s Next Friend’s status enabled her to advancethe Plaintiff’s claim and provide instruction to counsel. However, Ms. Dixon deposes that they have been unable to advance the actionfor the past several years. [29] Mr. Wilson is no longer a minor, and has not been a minor for three years, the period contemplated by Rule 4.33(1). While theCourt is not unsympathetic, in the end it is Mr. Wilson’s suit, and not Ms.

Dixon’s. [30] The Next Friend does not depose to a connection between the failure to act and the alleged psychological issues. Thatconnection was made in argument by counsel. Ms. Dixon does depose that she is prepared to work with Mr. Wilson to handle the traumaand distress that advancement of this litigation would cause, starting with psychological counseling to allow him to participate in thelawsuit. There is no explanation as to why this attempt by Ms.

Dixon will be more successful now than it has been to date. [31] In my view, the mandatory wording of Rule 4.33(1) precludes the exercise of discretion as suggested by the Plaintiff. Iconclude that if any such power were available in relation to Rule 4.33(1), its exercise would only be warranted in the clearest ofcircumstances, and consistent with the overall intent and focus of the rule to prune out cases that have become inactive or dormant.

[ 32 ] Even assuming it were possible to amend, alter or add to the clear, precise and mandatory wording of Rule 4.33(1) in exceptional circumstances, there is insufficient evidence before the Court to justify such a step in this case. Did the parties expressly agree to the delay? [ 33 ] The words of counsel relied on by the Plaintiff cannot be construed as an express agreement to delay under Rule 4.33(1)(a). [ 34 ] Express agreement, even in an exchange of correspondence, requires clear intention with essential terms spelled out.

The Defendant’s failure to apply to the court for fuller answers to undertakings or to “push” for a quantification of the claim cannot, without more, be interpreted even as an implicit agreement to delay proceedings outside of the mandatory periods provided in the Rules. The words or conduct would need to clearly reflect an agreement to satisfy Rule 4.33(1)(a), in other words, a mutual intention. The evidence in this case falls short of establishing such an agreement. Conclusion [ 35 ] The Defendant’s application is granted. The Plaintiff’s action is dismissed.

Costs [ 36 ] If the parties are unable to agree on costs, they may speak to me within 60 days of the date of this decision. Heard on the 18 th day of November, 2014. Dated at the City of Edmonton, Alberta this 4 th day of December, 2014. J.H. Goss J.C.Q.B.A. Appearances: Roger C. Stephens Simons and Stephens for the Plaintiff/Respondent David Archibold Sharek & Co. for the Defendant/Applicant