Neitz v Jordan, 2015 ABQB 732

Court of Queen ’ s Bench of Alberta Citation: Neitz v Jordan, 2015 ABQB 732 Date: 20151118 Docket: 0108 00501 Registry: Medicine Hat Between: Teresa Neitz Respondent/Plaintiff - and - Grace Jordan and Jason Jordan Applicants/Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice D.B. Nixon _______________________________________________________ Introduction [ 1 ] Grace Neitz was in a motor vehicle accident on July 7, 1999. She was rear-ended by a vehicle driven by the Defendant, Jason Jordan, and owned by the Defendant, Grace Jordan.

[ 2 ] Mr. and Ms. Jordan make this Application to dismiss the action commenced by Ms. Neitz for long delay. The legislative basis for this Application is subsection 4.33(1) of the Alberta Rules of Court , Alta Reg 124/2010 (the “ Rules ”). The purpose of that Rule is to avoid inordinate delays in an action. [ 3 ] The assertion by the Jordans is that more than three years have lapsed since there was a significant advance in the Neitz action and, as a result, it should be dismissed. Findings of Fact [ 4 ] The motor vehicle accident occurred at approximately 9:05 am on July 7, 1999 in Medicine Hat, Alberta.

At that time, Ms. Neitz was driving a 1985 Dodge vehicle. She was approaching an intersection, at which she was required to stop. [ 5 ] Mr. Jordan was driving a 1987 Nissan vehicle. He was behind Ms. Neitz. Ms. Neitz alleges that Mr. Jordan drove into the back-end of her vehicle while he was approaching the intersection. [ 6 ] Ms. Neitz commenced an action against both Mr. Jordan, as the driver of the vehicle, and Ms. Jordan, as the owner of the vehicle that Mr. Jordan was driving. [ 7 ] On November 25, 2005, the Jordans wrote to the Workers’ Compensation Board (the “WCB”) asking them to determine whether Ms.

Neitz was entitled to compensation under the Workers’ Compensation Act , RSA 2000, cW-15 (the “ Act ”) because she was driving in the course of her employment. The WCB initially held that Ms. Neitz was not a “worker” for its purposes. The Jordans appealed that WCB decision. [ 8 ] On September 1, 2010, counsel for the Jordans advised Ms. Neitz that he would be out of the office from the middle of September 2010 to the middle of December 2010. In that correspondence, counsel asked Ms. Neitz not to take any actions which would require his attendance or a timely response.

That correspondence also stated that counsel for the Jordans would assume agreement, unless he heard to the contrary. [ 9 ] On September 15, 2010, Ms. Neitz provided counsel for the Jordans with the final responses to the Undertakings given at her questioning. [ 10 ] Subject to certain transitional provisions, the new Rules came into force on November 1, 2010. Rule 15.4 provided for a transition to Rule 4.33, where the time for dismissal for long delay was reduced from five years to three years. [ 11 ] On April 26, 2011, both parties to this action participated at a WCB appeal hearing.

On May 9, 2011 , the WCB issued its decision on the appeal. It held that Ms. Neitz was a “worker” at the time of the July 7, 1999 motor vehicle accident, and that she had an acceptable claim for compensation under the Act . Mr. Jordan was also a “worker” at the time of the accident. Pursuant to section 23(1) of the Act , Ms. Neitz has no cause of action against Mr. Jordan. [ 12 ] That WCB decision eliminated Mr. Jordan as a defendant, although the action had not been discontinued against him as at the date of this hearing.

The appeal period for the decision issued by the WCB on May 9, 2011 expired on November 9, 2011. [ 13 ] On October 8, 2011, counsel for the Jordans advised Ms. Neitz that he would be out of the office from the middle of January 2012 to the beginning of April 2012. In that correspondence, counsel asked Ms. Neitz not to take any actions that would require his attendance or a timely response.

That correspondence also stated that counsel for the Jordans would assume agreement, unless he heard to the contrary. [ 14 ] On June 28, 2012, the Jordans advised that there would be a change of lawyers, and requested no steps be taken until the replacement counsel had taken over the file. That correspondence also requested an adjournment of any matters until new counsel was appointed. On August 17, 2012, new counsel wrote to Ms. Neitz and advised that she had assumed responsibility for the Jordan defence. [ 15 ] On March 13, 2013, counsel for the Jordans asked Ms. Neitz for a settlement proposal.

In that same letter, counsel advised that she would be taking a 12-month maternity leave, commencing at the end of June 2013. She also indicated that her files likely would be held in abeyance for the duration of her absence. On August 7, 2013, new counsel wrote to Ms. Neitz and advised that he had assumed responsibility for the file. [ 16 ] On November 1, 2013, Ms. Neitz forwarded a settlement proposal to the Jordans. On that same date, new Rule 4.33 came into force, and transitional Rule 15.4 was repealed. Rule 4.33 reads as follows:

(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.

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

(3) 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 (1)(

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

(4) Rule 13.5 does not apply to this rule. [ 17 ] On December 19, 2013, the Jordans advised Ms. Neitz that a response to the November 2013 settlement proposal would be forthcoming by mid-January, 2014. No response was ever forthcoming from the Jordans. [ 18 ] On April 11, 2014, the Jordans filed an Application to have the Neitz action dismissed for long delay pursuant to the drop- dead rule. Discussion and Analysis [ 19 ] On April 11, 2014, the Jordans applied to have the Neitz action dismissed pursuant to Rule 4.33(1) because they allege that more than three years have passed without a significant advance.

Indeed, the Jordans assert that Ms. Neitz has not taken any action to significantly advance this litigation since September 15, 2010, which is the date that she provided the final responses to the Undertakings given at her questioning. [ 20 ] Where Rule 4.33(1) applies, it has mandatory application. It effects a drop-dead result on lawsuits that fall within its scope.

The Application filing date of April 11, 2014 is relevant for purpose of determining whether the drop-dead rule applies, and the proceedings should be examined as of that date: Steparyk v Alberta , 2014 ABQB 367 at para 11 ; and Trout Lake Store v Canadian Imperial Bank of Commerce , 2003 ABCA at para 33. [ 21 ] From the perspective of the Court, there are two issues to address in respect of this Application, and whether Rule 4.33(1) applies. First, did any express agreement for delay exist? Second, did the WCB appeal significantly advance the litigation in respect of Ms. Jordan?

If the answer to either of these questions is yes, it may impact on whether three or more years has passed without a significant advance in the action. Express Agreement to Delay [ 22 ] An exception to the automatic application of Rule 4.33(1) occurs when there is an express agreement to the delay: Rule 4.33(1) (a). Any agreement to delay will defer the application of Rule 4.33(1) for the time agreed by the parties.

Standstill time can be added to the end of the period in issue, depending on the circumstances of the case: Barcellona v Einarson , 2012 ABQB 56 at paras 11- 12 . [ 23 ] The Jordans asserted that the last time there was a significant advance in this action was September 15, 2010, when Ms. Neitz provided her final answers to Undertakings. That date is the reference point to determine if Rule 4.33(1) (

a) applies to displace the application of the drop-dead rule in this case. [ 24 ] The September 15, 2010 reference date means that there had to be a significant advance in the litigation by September 15, 2013, unless there were any agreements to delay. Subject to that proviso, the failure to effect a significant advance within that time frame would mean the Neitz action is dismissed. [ 25 ] On four separate occasions, the Jordans asked Ms. Neitz not to take steps in this action. This Court will review each of those requests to determine if they fall within the exception itemized in Rule 4.33(1) (a). The four requests are: (

a) On September 1, 2010, counsel for the Jordans wrote to Ms. Neitz and advised that he would be out of the office from the middle of September 2010 to the middle of December 2010. In that correspondence, counsel asked Ms. Neitz not to take any actions that would require his attendance or a timely response. That correspondence also stated that counsel for the Jordans would assume agreement with this arrangement, unless he heard to the contrary. No response was given by Ms. Neitz or her counsel. This correspondence identified the parties, and the request for delay was framed to apply to the entire action.

It also stipulated a time frame. It is noted that the delay was requested by the Jordans. Although structured as a negative confirmation, I find this September 1, 2010 communication to be an express agreement to delay: see Bugg v Beau Canada Exploration Ltd , 2006 ABCA 201 at paras 12-13 . In this case, the agreement equates to a delay of 91 days. That shifts the drop-dead date from September 15, 2013 to December 15, 2013. (

b) On October 8, 2011, counsel for the Jordans wrote to Ms. Neitz and advised that he would be out of the office from the middle of January 2012 to the beginning of April 2012. In that correspondence, he asked that Ms. Neitz not take any actions that would require his attendance or a timely response. That correspondence also stated that counsel for the Jordans would assume agreement with the arrangement, unless he heard to the contrary. No response was given by Ms. Neitz or her counsel. This correspondence also identified the parties, and the request for delay was framed to apply to the entire action.

It also stipulated a time frame. Again, it is noted that the delay was requested by the Jordans. Although structured as a negative confirmation, I find this October 8, 2011 communication to be an express agreement to delay.

Since calendar 2012 was a leap year, this agreement equates to a delay of 76 days. That shifts the drop-dead date from December 15, 2013 to March 1, 2014. (

c) On June 28, 2012, counsel for the Jordans wrote to Ms. Neitz to advise that there would be a change of counsel. Counsel requested that no steps be taken until replacement counsel was appointed, and that any matters be adjourned until that time. As with the correspondence dated September 1, 2010 and October 8, 2011, this correspondence dated June 28, 2012 was more than a request for a common courtesy. It had the elements necessary to characterize it as an express agreement, which is a prerequisite to the application of the exception in Rule 4.33(1) (a). On August 17, 2012, new counsel wrote to Ms.

Neitz and advised that she had assumed responsibilities for the Jordan defence. The request that the Plaintiff not take any steps and that she adjourn any matters, resulted in a forbearance by Ms. Neitz. Further, the correspondence identified the parties, and the request for adjournment was framed to apply to the entire action. While the timeframe did not reference specific dates, it did impose a temporal boundary, being the date on which replacement counsel was appointed. Yet again, this delay was requested by the Jordans.

Given all of these factors, I find this June 28, 2012 communication to be an express agreement to delay. That agreement equates to a delay of 50 days. That shifts the drop-dead date from March 1, 2014 to April 20, 2014. As a result of that delay and the delays noted above, the drop-dead date is now later than the date that this Application to Dismiss the action was filed. In these circumstances, Rule 4.33(1) (

a) applies to push the drop-dead date to April 20, 2014, at the earliest. Since the Application that underlies this case was filed before the drop-dead date, it was brought prematurely. Whether there has been at least three years without a significant advance in the action is examined from the date of this Application. As a consequence, this Application fails (

d) For completeness, the Court notes that on March 13, 2013, counsel for the Jordans wrote to Ms. Neitz and advised that she would be taking a 12-month maternity leave. That maternity leave was to commence at the end of June 2013. In her letter, counsel indicated that her files likely would be held in abeyance for the duration of her absence. While there is no need to determine whether this letter would constitute an agreement to delay because the Application has failed as a result of its premature filing, the March 13, 2013 communication on behalf of the Jordans could push the drop-dead date even later.

Indeed, since new counsel advised Ms. Neitz that he had assumed responsibilities for this file on August 7, 2013, that could shift the drop-dead date by another 38 days to May 18, 2014. WCB Proceedings – Significant Advance [ 26 ] Ms. Neitz also argues that this Application to Dismiss should fail because there is no three-year period that does not have a significant advance in the Action. [ 27 ] In the course of argument, the Jordans conceded that the WCB proceedings had significantly advanced matters concerning Mr. Jordan.

This concession makes imminent sense because the WCB conclusion narrowed the case to one defendant, albeit no discontinuance had been filed in respect of Mr. Jordan as at the date of this hearing. [ 28 ] The Jordans made no such concession for Ms. Jordan. Ms. Jordan asserts that the issue of whether Ms. Neitz has significantly advanced this action against her must be assessed independent of whether the action has been significantly advanced against Mr. Jordan. This leaves the Court with the question as to whether the WCB proceedings significantly advanced matters concerning Ms.

Jordan. [ 29 ] To address this argument, the Court needs to assess whether Mr. Jordan and Ms. Jordan are inextricably linked, such that the determination of the WCB question was a significant advancement of this action in respect of Ms. Jordan. In making this determination, it is necessary to consider the context and take a functional approach: Nash v Snow , 2014 ABQB 355 at paras 29-31 . [ 30 ] In this case, I find that the WCB decision significantly advanced the action in respect of Ms. Jordan. This conclusion is based on the fact that the WCB decision determined that Ms.

Jordan was the sole defendant in this case. [ 31 ] Common sense and fairness support this conclusion. A single question highlights the issue: Would it not be prudent to determine who the parties to the litigation are before questioning and trial preparation is commenced? The question answers itself. [ 32 ] A determination of whether the claim against Mr. Jordan is statute-barred under the Act advances the action as a whole by determining the correct parties. By taking such appropriate preliminary steps, no duplication occurs. [ 33 ] This conclusion is also supported by the jurisprudence.

A similar issue was addressed in Heikkila v Alberta (Workers’ Compensation Board Appeals Commission) , 2009 ABQB 12 (“ Heikkila (QB Master)”), Aff’d 2010 ABQB 55 (“ Heikkila (QB)”), aff’d 2011 ABCA 87 (“ Heikkila (CA)”). While the issue in Heikkila was reviewed under the former drop-dead rules, the comments are instructive and applicable to this case. [ 34 ] In Heikkila , the plaintiff was seriously injured at work. He brought an action against his supervisor, his employer, and the project owner.

The Heikkila action was first delayed for a long period of time while the applicability of the Act to the first two defendants was determined. This caused a delay from 1998 until 2007. While the workers’ compensation coverage was being determined in Heikkila , the defendants refused to permit Examinations for Discovery of two of the defendants in the negligence action.

When the action against those defendants in the Heikkila case was ultimately dismissed, no steps were taken for a considerable amount of time against the remaining defendant, the project owner. [ 35 ] The project owner subsequently sought dismissal of the action for long delay under the former drop-dead rule. Concerning the applicability of the Act , the project owner argued that “the steps taken in relation to or by other defendants cannot constitute steps

that materially advance the action as against it” and that steps taken in other proceedings cannot count as activity in the negligence action: Heikkila (QB) at para 6 . [ 36 ] The application in Heikklika (QB Master) was dismissed by Master Hanebury. The project owner appealed. [ 37 ] On appeal, Justice Clackson looked to “…what one would expect of a reasonable plaintiff in that litigation”: Heikkila (QB) at para 15 .

He held that the WCB determination was a significant advance in that action because it would “…ensure that the proper parties were before the Court as he moved toward trial”: Heikkila , (QB) at para 10. Justice Clackson also stated that …it would be unusual for any plaintiff to pursue his action against one defendant to judgment with the knowledge that he may have to repeat that exercise one or more times if one of more of the …defendants were ultimately determined to be the proper parties: Heikkila (QB) at para 10 . [ 38 ] The Heikkila (QB) case was further appealed.

The Court of Appeal upheld Justice Clackson’s decision. In writing for that Court, Justice McDonald stated that: ...it was obvious that the respondent would want to ensure that the proper parties were before the court as he moved toward trial. Thus, the delay in moving the claim forward against the appellant because of the workers' compensation issues with JTL and Apfeld was for sound practical reasons and case authority has held that any step that materially advances the action as a whole is sufficient.

While there is contrary case authority requiring an action be advanced against each defendant, the chambers judge held that the key issue was fairness. He held it was not helpful to focus on whether a step was taken against a specific defendant if it leads to an unfair result. He preferred to focus on the respondent's actions in the context of the particular litigation and what one would expect of a reasonable plaintiff in that litigation. The chambers judge further held that the steps taken by the respondent were reasonable and necessary to the appropriate disposition of the litigation.

The delay was not inordinate in the context of what is at stake, the complexities resulting from determining workers' compensation coverage, the various applications brought, the positions taken by the defendants and the practical exigencies of pursuing multiple defendants: Heikkila (CA) at paras 15 and 16 . [ 39 ] Justice McDonald later stated “…that the thing need only materially advance the action as a whole”: Heikkila (CA) at para 32 .

In effect, Justice McDonald concluded that if the determination of a question materially advanced the action as a whole, that was sufficient to meet the test in Rule 4.33 for each defendant. Any other

interpretation would not lead to a proper or just result. [ 40 ] Applying this principle to the present action, I find that the WCB decision which reduced the defendants from two individuals to a single person, being Ms. Jordan, was a significant advance in the action as a whole. The reason is that the WCB decision identified the sole party to the litigation, which impacts how the action is conducted against the remaining defendant, Ms. Jordan. This meets the test in Rule 4.33(1) . [ 41 ] The WCB decision was issued on May 9, 2011. I have found it was a step that significantly advanced the action.

As such, the drop-dead date would be no earlier than May 9, 2014. Since the underlying Application was filed by the Jordans on April 11, 2014, it was brought prematurely. As a consequence, the Application also fails on this second ground. [ 42 ] The parties may seek a date to determine what directions, if any, are necessary to ensure this action moves forward promptly. The parties also may speak to costs at that time, if costs cannot be agreed. [ 43 ] In closing, I thank counsel for their thorough and comprehensive submissions relative to this Rule 4.33 Application.

Heard at the City of Medicine Hat, Alberta on the 9 th day of October, 2014. Dated at the City of Calgary, Alberta this 18 th day of November, 2015. D.B. Nixon J.C.Q.B.A.

Appearances: Kevin Madison for the Applicants/Defendants Allan G. Leis and Robert Fischer for the Respondent/Plaintiff