AE v Alberta (Director of Child Youth and Family Enhancement), 2016 ABQB 591

Court of Queen’s Bench of Alberta Citation: AE v Alberta (Director of Child Youth and Family Enhancement), 2016 ABQB 591 Date: 20161020 Docket: 0801 09807,0801 09808,0801 09809,0801 09810 Registry: Calgary Between: Action No. 0801 09807 AE and others Plaintiffs - and - Her Majesty the Queen in the right of Alberta as represented by The Director of Child Welfare in Alberta Defendant And Between: Action No. 0801 09808 A E. and others Plaintiffs - and - The Board of Trustees of the Calgary Roman Catholic Separate School District No.1 also known as Calgary Roman Catholic Separate School District No.1 and Calgary Catholic School District, Virginia Nemetz, Catherine Andrew, and Sharon Brinsmead Defendants

And Between: Action No. 0801 09809 A E. and others Plaintiffs - and - The Board Of Trustees of the Calgary Roman Catholic Separate School District No.1 also known as Calgary Roman Catholic Separate School District No.1, Calgary Catholic School District, Bob Bechard, Jane Easton, John Mooney, Bruce Campbell, Gary Strother and Sharon Brinsmead Defendants And Between: Action No. 0801 09810 A.E. and others Plaintiffs - and - Roxanne Goldade Defendant _______________________________________________________ Memorandum of Decision of Master J.L.

Mason _______________________________________________________ [ 1 ] A.E. and his wife commenced these four actions on August 15, 2008 concerning the education and medical treatment of their children, and the subsequent apprehension of their children by the Director of Child Welfare. The children are also named plaintiffs in the actions. [ 2 ] On March 23, 2016, the defendants in each of the four actions applied to dismiss the actions for long delay pursuant to rule 4.33.

[ 3 ] Chronologies of the actions are attached as Appendix “A” to these reasons. A variety of activities took place in each action that the defendants do not dispute served to advance them, up to a certain point. [ 4 ] By consent order dated March 23, 2012, actions 0801 09807, 0801 09808 and 0801 09810 were directed to be tried together. Given that order and the interrelationship of the facts and issues among those three actions, there is no serious dispute that activities in one of them may serve to advance the other two for the purposes of the rule.

The defendants submit that the last activity that could have significantly advanced the consolidated actions was no later than March 21, 2013, when the plaintiffs supplied three CDs containing their producible records in those actions.

The defendants in action 0801 09809 submit that that the last activity that significantly advanced that action was the plaintiffs’ filing of an affidavit of records on July 5, 2010. [ 5 ] A.E. submits that other things subsequently occurred which served to significantly advance the actions. [ 6 ] At issue is whether the following activities constitute significant advances within the meaning of rule 4.33, and thereby save these actions from mandatory dismissal under the rule: Preparation and provision by the plaintiffs of “summaries” of the four actions; Applications for

summary dismissal that were never determined by the court; Circulation of a proposed litigation plan; Withdrawal of legal counsel for the plaintiffs; Proposals of Amended, Amended Statements of Claim, which were never consented to by the defendants or the subject of a court application; and Preparation and delivery of other materials by the plaintiffs. [ 7 ] A.E. further submits that it was the conduct of counsel for the defendants that caused the delay, including what he describes as collusion with the plaintiffs’ last counsel to thwart the progress of the plaintiffs’ claims. [ 8 ] For the reasons that follow, the applications are granted.

The four actions are dismissed pursuant to rule 4.33.

Evidence and other materials before the court [ 9 ] There are several affidavits before the court in these applications: Affidavit sworn March 21, 2016 by Christina Tortorelli, corporate representative of Her Majesty the Queen in Right of Alberta as represented by the Director of Child Welfare (“Alberta”), defendant in action 0801 09807 Affidavit sworn March 23, 2016 by Carol Young, paralegal of Brownlee LLP, counsel for the Board of Trustees of the Calgary Roman Catholic Separate School District No. 1 and Sharon Brinsmead, defendants in action 0801 09808 Affidavit sworn September 13, 2016 by Sharon Brinsmead, defendant in action 0801 09808 Affidavit sworn March 23, 2016 by Ms.

Young, in action 0801 09809, naming as defendants the Board of Trustees of the Calgary Roman Catholic Separate School Board District No. 1, Sharon Brinsmead, Bob Bechard, Jane Easton, John Mooney, Bruce Campbell and Gary Strother (the defendants in actions 0801 09808 and 0801 09809 will be collectively referred to as the “Calgary Catholic School District Defendants”) Affidavit sworn September 13, 2016 by Ms.

Brinsmead in action 0801 09809 Affidavit sworn March 22, 2016 by Roxanne Goldade, defendant in action 0801 09810 Affidavits sworn September 30, 2016 by A.E. in each of actions 0801 09807, 0801 09808, 0801 09809 and 0801 09810 [ 10 ] A.E. also filed four binders, one in each action, entitled “Summary of the Facts in this Action”. The defendants agreed that these binders are the same as those delivered to them by the plaintiffs in June and August of 2013.

Rule 4.33 and guiding principles [ 11 ] As at March 23, 2016, when these applications were filed, rule 4.33(1) provided that if three or more years has passed without a significant advance in an action, the court must dismiss the action against the applicant. The rule is subject to four exceptions, which were not relied on in this case.

The governing rule is attached as Appendix “B” to these reasons. [ 12 ] The end goal of significant advancements within the meaning of rule 4.33 is not necessarily trial, but resolution: Nash v Snow , 2014 ABQB 355 at paragraphs 32 , 35; Canada (Attorney General) v Delorme , 2016 ABCA 168 at paragraph 27 . For a step to significantly advance an action, it must move the parties closer to resolution: Weaver v Cherniawsky , 2016 ABCA 152 at paragraph 26 . [ 13 ] The purpose and intent of the rules as a whole inform the approach the court should take in applications for long delay.

The Court of Appeal recently addressed this in its reasons in Ursa Ventures Ltd v Edmonton (City) , 2016 ABCA 135 at paragraph 18 : The new Rules use a functional approach. Their purpose and intent, as emphasized in foundational rule 1.2, is to provide fair and just resolution of claims in a timely and cost effective manner. The foundational rules parallel a cultural shift in litigation that deemphasises a trial as the dominant mechanism resolving civil disputes in favour of procedures such as

summary dismissal and alternative dispute

resolution: Windsor v Canadian Pacific Railway Ltd. , 2014 ABCA 108 , Ro-Dar Contracting Ltd. v Verbeek Sand & Gravel Inc. 2016 ABCA 123 , Heurto v Caniff , 2014 ABQB 534 at paras 13-15 , aff’d 2015 ABCA 316 . [ 14 ] The Court went on to describe the application of this functional approach to long delay applications. At paragraphs 19 and 23, the Court stated that: Under the delay Rules the functional approach inquires whether the advance in an action moves the lawsuit forward in an essential way considering its nature, value, importance and quality.

The genuineness and the timing of the advance in the action are also relevant. This analysis is undertaken in the context of the particular lawsuit. The focus is on substance and effect, not form: St Jean Estate v Edmonton (City) , 2014 ABQB 47 ...at para 19, 585 AR 81. ... Rule 4.33 cases that have considered a particular advance in an action will be useful precedents, but they are not determinative. Each piece of litigation is unique, and the content, value and timing of the advance said to “reset the clock” must be assessed within the context of that lawsuit.

This is the heart of the functional approach. [ 15 ] The outcomes or consequences of anything done by the litigants are relevant to whether there has been a significant advance in the action: Ro-Dar Contracting Ltd. v Verbeek Sand & Gravel Inc. at paragraph 21 . [ 16 ] Prejudice is not a consideration under rule 4.33.

The court has no discretion to allow the action to continue if the requirements of the rule are met, “no matter how tragic [the] loss and devastating the result”: St Jean Estate v Edmonton (City) at paragraphs 13, 39 ; Ursa Ventures Ltd v Edmonton (City) at paragraph 10 . [ 17 ] Finally, while the obligations of foundational rule 1.2(3) apply to all parties, it is the plaintiff that bears the ultimate responsibility for prosecuting its claim: XS Technologies Inc. v Veritas DGC Land Ltd. , 2016 ABCA 165 at paragraph 7 . [ 18 ] With these general principles in mind, I will now consider the specific activities at issue in these applications.

Preparation and provision by the plaintiffs of “summaries” of the four actions [ 19 ] Between June 13, 2013 and August 7, 2013, then counsel for the plaintiffs delivered binders prepared by A.E. entitled “Summary of Facts in this Action” to the defendants.

A.E. prepared one binder for each action. [ 20 ] Each binder contains a typed document which reproduces the plaintiffs’ allegations from their pleadings, along with what appear to be excerpts from records previously produced in the actions, portions of transcripts from questioning, and commentary from A.E. [ 21 ] The contents of this document also extend to matters beyond the scope of the plaintiffs’ pleadings in a variety of ways. For example, in action 0801 09810 against the children’s pediatrician, Roxanne Goldade, the typed document contains assertions that Ms.

Goldade engaged in a conspiracy to cause the children to become “permanent wards of the state” and that her conduct violates the

section 7, 9, 10 and 12 Charter rights of the infant plaintiffs. [ 22 ] Each of the typed documents has multiple attachments, featuring large “maps” prepared by A.E. These “maps” contain reduced images of portions of records produced in the litigation, excerpts from communications generated in the litigation, excerpts from questioning and evidence given in the provincial court proceedings concerning the apprehension of the children, and commentary. A.E. submits that that in arranging the information in this fashion, he was able to cut down about 80 binders full of records into four.

The attachments also include full size copies of the records depicted in the “maps”. [ 23 ] A.E. deposes that he spent 337 days preparing these summaries, working an average of 12.5 hours each day. He further states in a footnote to Table 1 in his affidavits that these summaries are: [n]ot “Summaries” at all. Expert use of maps to extensively display evidence helped cut about 20 binders into one per QB action.

Info in these binders is still about 20 binders! [ 24 ] A.E. told the court that the plaintiffs’ then-counsel advised him that if A.E. prepared summaries of the plaintiffs’ claims, they could be provided to the defendants to explain and clarify the claims, and serve as a platform for resolution. This is consistent with the correspondence from the plaintiffs’ counsel to the defendants exhibited to A.E.’s affidavits, in which the summaries were referenced and settlement meetings sought. [ 25 ] No settlement meetings were held, nor were any issues resolved as a result of the provision of these binders.

A.E. deposes that the defendants did not express any appreciation for receiving them, or even give them “a passing mention” when addressing the merits of the plaintiffs’ claims in the

summary dismissal applications the following year. [ 26 ] It appears to me that A.E. sincerely believes that in preparing them, he was taking steps to advance the actions toward resolution. It is obvious that he spent a great deal of time in creating the “maps”, and arranging the information into a different format that made sense to him.

He may have considered that the binders would serve to illuminate the plaintiffs’ claims and convince the defendants of their merits. [ 27 ] Unfortunately, the summaries are at best a representation of the plaintiffs’ position at that time, which exceeded the scope of the pleadings in several respects. They did not prompt consent to the amended pleadings proposed in early March of 2013 by then counsel to the plaintiffs, assist in the resolution of any of the issues between the parties, narrow the scope of the claim or otherwise move the parties closer to resolution in any significant way.

Applications for

summary dismissal that were never determined by the court [ 28 ] Unresolved applications have frequently been found not to significantly advance an action: see for example, Steparyk v Alberta , 2014 ABQB 367 at paragraphs 13-14 , affirmed 2015 ABCA 125 at paragraph 10 . [ 29 ] On July 14, 2014, the defendants in actions 0801 09808 and 0801 09809 filed applications for

summary dismissal of the claims against them. [ 30 ] These applications were adjourned several times. They were initially returnable on the Masters’ morning chambers list on July 22, 2014, and adjourned to be heard in a special hearing. The special was scheduled for November 24 and 25, 2014, but the plaintiffs were not able to complete their responsive affidavits in time. Counsel for the defendants agreed to adjourn on that basis, but had to eventually seek court assistance in rescheduling the applications. On December 3, 2014, Master Hanebury directed that the applications be heard on June 8 and 9, 2015.

The procedural directions in that order did not serve to assist in the timely determination of the applications. On June 8, 2015, A.E. applied for an adjournment on the basis that the plaintiffs’ counsel retained for the hearing had suddenly withdrawn just days before. The defendants opposed the request. Master Prowse allowed the adjournment, with directions that new dates be set as soon as possible with new counsel. Counsel for the defendants continued to press the plaintiffs to reschedule the applications, and A.E. continued to advise that the search for new counsel was ongoing.

New counsel was not retained and the applications have never been heard. [ 31 ] In short, nothing was achieved in the filing and subsequent adjournments of these

summary dismissal applications. [ 32 ] A.E. submits that the preparation of his responding affidavits, and their subsequent delivery to the defendants between January and May of 2015 significantly advanced the actions. [ 33 ] It appears that A.E. spent a great deal of time preparing these affidavits that he believed would demonstrate the merits of the plaintiffs’ claims. However, their contents have never been adjudicated upon. They do not narrow the issues, or raise new relevant and material information.

They contain a significant amount of argument and allegation, and address further grievances that exceed the scope of the pleadings. In the circumstances, they did not significantly advance the actions toward resolution in any fashion. [ 34 ] A.E. also points to the first page of an unsworn affidavit of Virginia Nemetz as something which advanced the actions. Table 2 of his affidavits suggests that this affidavit remains unsworn and was never provided to the defendants. This does not represent any progress in the actions.

Circulation of a proposed litigation plan [ 35 ] The proposal of a litigation plan, without more, does not significantly advance an action: Wiens v Dewald , 2012 ABQB 400 , aff’d 2012 ABQB 172 . Simply planning a step in an action, or discussing the taking of a step does not significantly advance the action.

It is “just talk”: Simpson v Canada , 2015 ABQB 45 at paragraph 34 , citing Fletcher Challenge Energy Canada Inc. v Jonust Farms Ltd ., 2014 ABQB 518 at paragraph 42 . [ 36 ] On October 16, 2014, counsel for the defendant in action 0801 09810 circulated a proposed form of Complex Litigation Plan in an apparent attempt to bring some structure to the proceedings. It was never signed, filed, or reduced to a court order. This did not advance the actions in any way.

Withdrawal of legal counsel for the plaintiffs [ 37 ] Changes of legal representation are typically found not to significantly advance an action: see for example, Huerto v Canniff at paragraph 22, citing Donnelly v Brick Warehouse Corp . 2013 ABQB 621 at paragraphs 17-18 , Calliou v Bouchard , 2006 ABQB 925 at paragraph 15 , Riviera Developments Inc v Midd Financial Corp ., 2002 ABQB 853 at paragraph 22 and Kerr v McDonald & Bychkowski Ltd ., 2015 ABQB 473 at paragraph 13 . [ 38 ] Here, the plaintiffs have been represented by counsel from time to time.

On October 23, 2014, their last counsel filed a Withdrawal of Lawyer of Record. This did not contribute to the advancement of the actions toward resolution. Proposals of Amended, Amended Statements of Claim that were never consented to by the defendants nor the subject of a court application [ 39 ] On March 13, 2013, then counsel for the plaintiffs forwarded proposed Amended, Amended Statements of Claim in all four of the actions to each of the defendants. The amendments were prepared by A.E. [ 40 ] None of the defendants were prepared to consent to the proposed amendments.

The plaintiffs did not apply to the court for leave to make them. [ 41 ] On March 27, 2015, A.E. provided another proposed Amended, Amended Statement of Claim to counsel for the defendant in action 0801 9810. On August 11, 2015, the plaintiffs provided further proposed amendments to the defendants in actions 0801 9808 and 0801 9809. [ 42 ] The defendants again did not consent to these proposed amendments, nor did the plaintiffs bring an application for a court order permitting them to the make the amendments. [ 43 ] Functionally, nothing came of these proposed amendments.

They do not constitute any advancement toward resolution of the actions. Preparation and delivery of other materials by the plaintiffs

[ 44 ] On November 4, 2014, A.E. sent a letter to the defendants and advised that the plaintiffs had been attempting to reduce the complexity of the four actions by: ...combing through all documents: Court transcripts, affidavits, Discoveries/Questioning and all other documents to identify and properly present inconsistencies, lies, deceit, conspiracies, collusions and/or “frauds” embedded in all sources... [ 45 ] A.E. describes this work as “Removing the complexities in the litigation process of the QB Actions to enhance adjudication, Defendants’ understanding of the issues and Plaintiffs’ claims” in Table 4 of his affidavits. [ 46 ] He deposes that he spent 321 days on this project, before the plaintiffs were served with the

summary dismissal applications in 0801 09808 and 0801 09809. He then had to stop this work in order to turn his attention toward the preparation of responsive affidavits. [ 47 ] A.E. states that on March 23 and 28, 2015, he sent the results of his findings to counsel for the defendants, in the form of a letter exhibited as “K” to his affidavits. These letters are expressed as containing excerpts or extractions from his previously served affidavits in response to the

summary dismissal applications, “intended to further simplify your perusal of the document”. [ 48 ] To the extent these letters appear to have formed part of the plaintiffs’ response to the

summary dismissal applications that were never heard, they did not serve to advance the action. Their contents do not provide new relevant and material information, or a basis for narrowing the issues, or any other form of progress toward resolution. [ 49 ] Subsequently, A.E. used the results of this work to generate the “Vital Maps” which appear as Exhibit “A” to each of his four affidavits provided in response to these applications. These maps are similar in format to the maps that form part of the “summaries” described above.

These were completed and provided after the defendants filed these applications, and in the circumstances cannot function to advance the actions within the meaning of rule 4.33.

Delays caused by defence counsel, including collusion with counsel for the plaintiffs [ 50 ] A.E. emphasizes the actions of counsel for the defendants in actions 0801 09808 and 0801 09809, who has since retired and did not appear on this application. [ 51 ] He submits that this lawyer manipulated, tricked, deceived and bullied the plaintiffs’ lawyers in succession, to the point that they had to terminate their services, and start all over again with a series of new lawyers at a great expenditure of time and money. He describes this lawyer as the “architect” of the delays in this case.

A.E. further asserts that this lawyer colluded with the last counsel for the plaintiffs in a scheme to thwart the proceedings. He describes this last counsel as a “mole” planted by this lawyer and his clients. [ 52 ] These submissions appear to be based on the general concept that one cannot profit from one’s own wrong: see the discussion in Simpson v Canada (Attorney General) at paragraphs 38-41. [ 53 ] The evidence tendered by A.E. does not support his submissions. It does not demonstrate manipulation, trickery, deceit, bullying or collusion on the part of any counsel.

The communications and correspondence in evidence demonstrate typical communications between opposing lawyers, and also unsuccessful efforts by counsel for those defendants to get on with resolution of the litigation in some fashion. [ 54 ] A.E. points to specific instances of delay by this counsel and counsel to the defendant in 0801 09807 in regard to their provision of undertaking responses. These delays occurred prior to the period of delay under consideration. Conclusion [ 55 ] No significant advancement of these four actions occurred in the three year period after March 21, 2013.

The applications filed March 23, 2016 to dismiss the plaintiffs’ actions for long delay pursuant to rule 4.33 are granted. [ 56 ] If the parties seek to make submissions on costs, they may contact the Masters’ office within 30 days of the date of these reasons. Heard on the 4 th day of October, 2016 and October 19, 2016. Dated at Calgary, Alberta this 20 th day of October, 2016 . J.L.Mason M.C.Q.B.A. Appearances:

Kate Bridgett Alberta Justice and Solicitor General for Alberta John H. Gescher Brownlee LLP For the Calgary Catholic School District Defendants Megan L. McMahon Gowlings WLG (Canada) LLP For Roxanne Goldade A.E. On his own behalf No appearance by the other plaintiffs Appendix “A” Chronology of Actions 0801 09807 – action against Alberta August 15, 2008 – Statement of Claim filed by A.E. October 7, 2008 - Statement of Defence filed May 25, 2010 – Affidavit of Records filed by plaintiffs July 20, 2010 Notice of Intention to Cease to Act filed by plaintiffs’ counsel, C.

Ouellette July 30, 2010 – Affidavit of Service of Notice of Intention to Cease to Act filed by Mr. Ouellette March 28, 2011 – Notice of Change of Representation filed by S.B.G.

Matthews October 31, 2011 – Affidavit of records and disk of electronic images of records served by the defendant on the plaintiffs March 23, 2012 – Amended Statement of Claim filed with consent March 23, 2012 – Consent Order granted directing action be tried together with 0801 09808 and 0801 09810 April 5, 2012 – Disk of electronic images of additional records served by the defendant on the plaintiffs April 12, 2012 – Amended Statements of Defence filed April 13, 2012 - Alberta’s corporate representative questioned by Mr. Matthews, 58 undertakings given August 31, 2012 – Notice of Withdrawal filed by Mr.

Matthews September 5, 2012 – Notice of Change of Representation filed by G.Vogeli

September 13, 2012 – Affidavit of Service of Notice of Withdrawal filed October 22, 2012 –Undertaking responses provided by defendant January 3, 2013 –Updated undertaking responses provided by defendant to Mr. Vogeli, copied to defendants in other actions March 12, 2013 – draft Amended Amended Statement of Claim prepared by A.E. provided by Mr.

Vogeli to defendants, covering 08010 9807, 0801 09808, 0801 09809 and 0801 09810 March 18, 2013 – Undertaking responses provided by counsel for defendant to counsel for defendant in action 0801 09810 March 23, 2015 – Letter from A.E. reporting on findings of “Removing litigation Complexities” project August 7, 2013 – Binder entitled “Summary of the Facts in this Action” provided by the plaintiffs October 23, 2014 – Notice of Withdrawal filed by Mr.

Vogeli March 23, 2016 - application to dismiss for delay filed 0801 09808 – action against the Board of Trustees of the Calgary Roman Catholic Separate School District No. 1 and Sharon Brinsmead August 15, 2008 – Statement of Claim filed by A.E. January 7, 2009 – Consent order granted allowing the plaintiffs to file and serve Amended Statement of Claim on or before February 20, 2009 May 28, 2009 – Consent order granted allowing the plaintiffs to file and serve an Amended Statement of Claim on or before June 30, 2009 July 10, 2009 – Amended Statement of Claim filed by Mr.

Ouellete August 14, 2009 – Consent order granted allowing plaintiffs to file and serve a further Statement of Claim, in replacement of earlier claims filed (“Replacement Statement of Claim”) August 20, 2009 – Replacement Statement of Claim filed September 3, 2009 – Statement of Defence filed October/November/December 2009 – Affidavits of records exchanged July 20, 2010 Notice of Intention to Cease to Act filed by Mr. Ouellette July 30, 2010 – Affidavit of Service of Notice of Intention to Cease to Act filed by Mr.

Ouellette August 4, 2010 – Order granted by Rawlins J directing attendance of adult plaintiffs at discovery August 30, 2010 – Discovery of adult plaintiffs November 23, 2010 – Notice of Withdrawal as Lawyer filed by T. Clarke December 17, 2010 – Consent order granted by Tilleman J extending questioning deadlines February 25, 2011 – Discovery of corporate representative March 28, 2011 – Notice of Change of Representation filed by Mr. Matthews January 13, 2012 – Amended Statement of Claim filed by Mr.

Matthews with consent March 23, 2012 – Consent Order granted directing action be tried together with 0801 9807 and 0801 9810 August 31, 2012 – Notice of Withdrawal filed by Mr. Matthews September 5, 2012 – Notice of Change of Representation filed by Mr.Vogeli September 13, 2012 – Affidavit of Service of Notice of Withdrawal filed by Mr. Matthews December 31, 2012 – Undertaking responses provided by corporate representative March 12, 2013 – draft Amended Amended Statement of Claim prepared by A.E. provided by Mr.

Vogeli to defendants, covering 0801 09807, 0801 09808, 0801 09809 and 0801 09810 June 13, 2013 – binder entitled “Summary of Facts in this Action” provided to defendants

November 4, 2013 – Formal Offer to Settle served by defendants on Mr. Vogeli, along with advice that they will oppose any application to further amend the Amended Statement of Claim, and intend to apply for

summary dismissal of the action. Defendants suggest applications be brought together July 14, 2014 –application for

summary dismissal filed, returnable July 22, 2014 August 18, 2014 – Consent order granted by Master Prowse adjourning

summary dismissal application, to be heard as a special application along with the

summary dismissal application brought in action 0801 9809, special dates subsequently scheduled for November 24/25, 2014 October 23, 2014 – Notice of Withdrawal filed by Mr. Vogeli October 28/29, 2014 – letters from A.E. advising that the plaintiffs will not be able to finish affidavits in time to proceed with the

summary dismissal applications on November 24/25 November 5, 2014 – special applications adjourned at A.E.’s request, consent order proposed to set new dates December 3, 2014 – order granted by Master Hanebury setting

summary dismissal applications to be heard on June 8/9, 2015 March 28, 2015 – Letter from A.E. reporting on findings of “Removing litigation Complexities” project June 8, 2015 – order granted by Master Prowse to adjourn specials to permit plaintiffs to retain new counsel, with date to be agreed on with new counsel August 10, 2015 – letter from A.E. to counsel for defendants proposing further amendments to statements of claim in actions 0801 09808 and 0801 09809 August 18, 2015 – letter from counsel for defendants advising that application would be necessary for proposed amendments September 23/25, 2015 – exchange of correspondence concerning timing of retainer of new counsel by plaintiff and potential appointment of case management justice March 23, 2016 - application to dismiss for delay filed Action 0801 09809 –action against the Board of Trustees of the Calgary Roman Catholic School District District No. 1, Sharon Brinsmead, Bob Brechard, Jane Easton, John Mooney, Bruce Campbell and Gary Strother August 15, 2008 – Statement of Claim filed by A.E.

October 10, 2008 – Demand for Particulars issued January 7, 2009 – Consent order allowing the plaintiffs to file and serve Amended Statement of Claim on or before February 20, 2009 May 28, 2009 – Consent order allowing the plaintiffs to file and serve an Amended Statement of Claim on or before June 30, 2009 July 10, 2009 – Amended Statement of Claim filed by Mr.

Ouellette August 14, 2009 – Consent order giving leave to plaintiffs to file and serve a further Statement of Claim, in replacement of earlier claims filed (“Replacement Statement of Claim”) August 20, 2009 – Replacement Statement of Claim filed January 26, 2010 – Statement of Defence filed June/July, 2010 – affidavits of records filed by defendants and plaintiffs July 20, 2010 Notice of Intention to Cease to Act filed by Mr. Ouellette July 30, 2010 – Affidavit of Service of Notice of Intention to Cease to Act filed by Mr. Ouellette March 28, 2011 – Notice of Change of Representation filed by Mr.

Matthews August 31, 2012 – Notice of Withdrawal filed by Mr. Matthews September 5, 2012 – Notice of Change of Representation filed by Mr. Vogeli September 13, 2012 – Affidavit of Service of Notice of Withdrawal filed by Mr. Matthews March 12, 2013 – draft Amended Amended Statement of Claim prepared by A.E. provided by Mr. Vogeli to defendants, covering 0801 09807, 0801 09808, 0801 09809 and 0801 09810 June 20, 2013 – binder entitled “Summary of Facts in this Action” provided to defendants

November 4, 2013 – Formal Offer to Settle served by defendants on Mr. Vogeli, along with advice that they will oppose any application to further amend the Amended Statement of Claim, and intend to apply for

summary dismissal of the action. Defendants suggest applications be brought together July 14, 2014 –application for

summary dismissal filed, returnable July 22, 2014 August 18, 2014 – Consent order granted by Master Prowse adjourning

summary dismissal application, to be heard as a special application along with the

summary dismissal application brought in action 0801 09809, special dates subsequently scheduled for November 24/25, 2014 October 23, 2014 – Notice of Withdrawal filed by Mr. Vogeli October 28/29, 2014 – letters from A.E. advising that the plaintiffs will not be able to finish affidavits in time to proceed with the

summary dismissal applications on November 24/25 November 5, 2014 – special applications adjourned at A.E.’s request, consent order proposed to set new dates December 3, 2014 – order granted by Master Hanebury setting

summary dismissal applications to be heard on June 8/9, 2015 March 28, 2015 – Letter from A.E. reporting on findings of “Removing litigation Complexities” project June 8, 2015 – order granted by Master Prowse to adjourn specials to permit plaintiffs to retain new counsel, with date to be agreed on with new counsel August 10, 2015 – letter from A.E. to counsel defendants proposing further amendments to statements of claim in actions 0801 09808 and 0801 09809 August 18, 2015 – letter from counsel for defendants advising that application would be necessary for proposed amendments September 23/25, 2015 – exchange of correspondence concerning timing of retainer of new counsel by plaintiff and potential appointment of case management justice March 23, 2016 - application to dismiss for delay filed Action 0801 09810 – Action against Roxanne Goldade August 15, 2008 – Statement of Claim filed by A.E.

October 7, 2008- Statement of Defence filed November 17, 2008 – Affidavit of Records filed by defendant September 18, 2009 and March 12, 2010 – Affidavits of records filed by plaintiffs July 20, 2010 Notice of Intention to Cease to Act filed by Mr. Ouellette July 30, 2010 – Affidavit of Service of Notice of Intention to Cease to Act filed by Mr. Ouellette March 28, 2011 – Notice of Change of Representation filed by Mr.

Matthews May 3, 2011 – Application for categorization as complex case and to establish complex case litigation plan filed by defendant August 9, 2011 – Consent Order establishing complex case litigation plan filed October 28, 2011 – Discovery of defendant conducted by Mr. Matthews January 23, 2012 –responses to undertakings provided by defendant March 23, 2012 – Consent Order directing action be tried together with 0801 9807 and 0801 9808 filed March 28, 2012 – Amended Statement of Claim filed with consent August 31, 2012 – Notice of Withdrawal of Lawyer of Record filed by Mr.

Matthews September 5, 2012 – Notice of Change of Representation filed by Mr. Vogeli September 13, 2012 – Affidavit of Service of Notice of Withdrawal filed by Mr. Matthews March 12, 2013 –draft Amended Amended Statement of Claim prepared by A.E. provided by Mr. Vogeli, covering 0801 09807, 0801 09808, 08010 9809 and 0801 09810 March 21, 2013 –3 CDs of producible records in actions 0801 09807, 0801 09808 and 0801 09810 provided by plaintiffs

October 16, 2014 – Proposed Form of Complex Case Litigation Plan circulated by defendant October 23, 2014 – Notice of Withdrawal filed by Mr. Vogeli February 12, 2015 – Dates for questioning suggested by defendant, later declined by plaintiffs March 23, 2015 – letter from A.E. reporting on findings from “Removing litigation Complexities” project March 27, 2015 –proposed Amended Amended Statement of Claim provided by A.E.

March 30, 2015 – letter from defendant advising that consent will not be granted for proposed amendments March 23, 2016 – application to dismiss for delay filed Appendix “B” Rule 4.33 as at March 23, 2016 Filed July 25, 2013 – in force until amendment of June 16, 2016 Dismissal for long delay 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.

(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.

AR 124/2010 s4.33;140/2013