1301540 Alberta Ltd v. Jason Werkman, 2016 ABQB 467

Court of Queen’s Bench of Alberta Citation: 1301540 Alberta Ltd v XLT Transport Ltd, 2016 ABQB 467 Date: 20160825 Docket: 1003 01967 Registry: Edmonton Between: 1301540 Alberta Ltd and Jason Werkman Plaintiffs - and - XLT Transport Ltd and David Holland Defendants _______________________________________________________ Reasons for Judgment of W.S. Schlosser a Master of the Court of Queen’s Bench of Alberta _______________________________________________________ [ 1 ] This is an application for a Procedural Order and a cross-application to dismiss the action for delay. [ 2 ] It was a 2008 accident.

The Defendant’s truck hit a moose and ended up in the ditch, spilling concrete pipe along the way. The Plaintiff was coming in the opposite direction and could not stop. He hit the pipe. There are no personal injuries, only a down-time claim. [ 3 ] The lawsuit progressed to answers to undertakings on July 15, 2013. The parties agree that this was a significant advance. They disagree about what came afterward. [ 4 ] As the 11 th hour approached (if we count three years from July 15, 2013), the Plaintiff took out an application for a Procedural Order incorporating a litigation plan.

They also furnished their sworn Affidavit of Records, June 30, 2016. The Defendants responded with a cross-application to strike for delay based on rules 4.33 and 4.31. The application and cross-application were adjourned to a regular chambers date. The application for the Procedural Order is to be treated as if it had taken place on July 14, 2016. Rule 4.33 [ 5 ] Several recent cases have clarified the approach that is to be taken to rule 4.33 applications, among them: Ro-Dar

Contracting Ltd v Verbeek Sand & Gravel Inc , 2016 ABCA 123 , and Ursa Ventures Ltd v Edmonton (City) , 2016 ABCA 135 . Both cases ( Ro-Dar at para 14, and Ursa at paras 18-22) tell us that the functional approach is to be applied to test whether events relied upon by a Respondent to a rule 4.33 application constitute a significant advance. That an event is mandated by the Rules is not, in and of itself, sufficient to be significant; as earlier dicta in Alberta v Morasch , 2000 ABCA 24 at para 6 , seemed to suggest. [ 6 ] In my view, the Affidavit of Records significantly advanced this action.

Defence counsel’s email of May 28, 2014, confirming that they had no further documents might also have counted: ( Ursa at paras 30-31). [ 7 ] The application for a Procedural Order taken out on the eve of the three year deadline would also have advanced this action as the application would likely have succeeded. I acknowledge that the Plaintiff’s expert report (the first task on the list) is an obligation the Plaintiffs would have had in any event but the steps outlined would march this lawsuit on to resolution or trial. Rule 4.31 [ 8 ] I do not view the delay in this case as inordinate and inexcusable.

It had a reasonably strong pulse for most of its existence. Further, there is no real evidence of prejudice in the absence of the presumption in the rule. And if there were, any of the prejudice noted in the Defendant’s affidavit would be largely ameliorated by the nature of the case. Disposition [ 9 ] The application for a Procedural Order is granted. The cross-application is dismissed. [ 10 ] I did not have the Defendants’ response to the deadlines proposed in the Procedural Order; the first deadline was within a few days of the application.

If the Defendants are unable to agree on terms then they may return to court for direction. [ 11 ] I conclude with two further observations. First, the Defendants’ affidavit in support of their application for dismissal for delay is that of a legal assistant sworn on information and belief. This is a final application and rule 13.18(3), which is mandatory, renders this type of evidence largely inadmissible: Kingsway General Insurance Company v Fekete Construction Co Ltd , 2016 ABQB 149 (M). [ 12 ] Finally, this was the second application for dismissal for delay in morning court.

Both applications were opposed and both applications involved three counsel. [ 13 ] I appreciate it may seem odd for Masters to be asking for less discretion, but something more of a bright-line rule might be helpful to both litigants and the Court. Applying the functional approach to each event in a lawsuit can have the effect of turning Respondents into Scheherazades. Alternately, it may be time to implement a procedure in Masters Chambers that mirrors the commercial list in terms of scheduling.

Typically, these applications fall somewhere between a regular chambers application and a special chambers application which, in Edmonton, is now booking a year in advance. Heard on the 11 th day of August, 2016. Dated at the City of Edmonton, Alberta this 24 th day of August, 2016. W.S. Schlosser M.C.C.Q.B.A. Appearances: Kevin I. Peddie West Edmonton Law and Colin D. Ouellette Emery Jamieson LLP

for the Plaintiff, Applicant/Cross-Respondent William B. Hembroff Bennett Jones LLP for the Defendant, Respondent/Cross-Applicant