Prefontaine v Bell, 2017 ABQB 226

Court of Queen’s Bench of Alberta Citation: Prefontaine v Bell, 2017 ABQB 226 Date: 20170329 Docket: 0603 09427 Registry: Edmonton Between: Maurice Prefontaine Plaintiff - and - Ronald Bell, Donald Bowman, Kerry Boyd, John Doe, Jane Doe, the Minister of National Revenue in Right of Canada, the Minister of Justice in Right of Canada, Hal Veale, Rod Wasylyshyn, Ogilvie LLP, the Province of Alberta and the Solicitor General for Alberta in Right of Her Majesty the Queen, and Michael Boyd the Chief of Police for the City of Edmonton Defendants _______________________________________________________ Reasons for Decision of W.

Breitkreuz , Master, Court of Queen's Bench of Alberta _______________________________________________________ [ 1 ] This is an application by the Defendant, the Province of Alberta, to strike the Plaintiff’s Statement of Claim under Rule 4.33. [ 2 ] The application was first filed in 2014 and there have been several appearances since then.

Every possible twist and turn was thoroughly canvassed in Chambers on those occasions and in the second-last appearance, on November 17, 2015, I indicated my conclusion that the Defendant has met all the requirements of Rule 4.33, but no one had addressed the possibility that Rule 15.6 might be a faint hope possibility for the Plaintiff. I therefore asked for briefs on that point. After the briefs were received, a further attendance in Chambers was scheduled and finally heard on November 16, 2016. [ 3 ] Rule 15.6 provides as follows:

15.6 If there is doubt about the application or operation of these rules to an existing proceeding or if any difficulty, injustice orimpossibility arises as a result of this Part, a party may apply to the Court for directions or an order, or the Court may make an order,with respect to any matter it considers appropriate in the circumstances, including: (

a) suspending the operation of any rule and substituting one or more former rules, with or without modification, for particular purposesor proceedings or any aspect of them; (

b) modifying the application or operation of these rules in particular circumstances or for particular purposes. [4] The Defendant’s brief addresses the question of the applicability of Rule 15.6 in the context of a Rule 4.33 application, butunfortunately the Plaintiff has only discussed the matter very obliquely. [5] Defence counsel has provided me with two reported cases at the Masters’ level and one reported Queen’s Bench Justicedecision, all of which rejected the application of Rule 15.6 as a saving provision for someone in the Plaintiff’s position. [6] The first Masters’ case is Chorney v Thomson, 2014 ABQB 410 in which the plaintiff alleged that the defendantsmisdiagnosed him with multiple sclerosis, treated him with steroids, and overprescribed pain killers.

The plaintiff further alleged that thedefendants’ conduct caused him serious mental and physical health issues over a 14 year period, including two years of homelessness. [7] Notwithstanding these allegations of very significant harm, Master Schlosser concluded that Rule 15.6 did not assist theplaintiff. In the context of discussing “difficulty or injustice”, the terms used in Rule 15.6, Master Schlosser commented that thecircumstances of the case invited sympathy but fell short of enabling intervention. [8] Master Schlosser held: 18 ...

Even self-reps are presumed to know the law and actual ignorance or simple inactivity are beyond the power of equity or thecourt’s duty of ‘limited assistance’ to cure. It means the end of an otherwise meritorious claim but the purpose of limitations and delayrules are to codify and fix consideration for the 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. [9] The second Master’s case to consider Rule 15.6 in the context of Rule 4.33 is Phillips v Whyew, 2014 ABQB 495, aff’d at2015 ABQB 365, in which the plaintiff in a motor vehicle accident action served an appointment for questioning on the defendant onOctober 17, 2013 prior to the November 1, 2013 coming into force of Rule 4.33. The questioning was to take place on December 12,2013. On November 1, 2013, the defendant brought an application for dismissal for long delay.

Master Wacowich held that Rule 4.33applied, and Rule 15.6 did not save the plaintiff. Master Wacowich quoted extensively with approval from Master Schlosser’s decision inChorney v Thomson. Master Wacowich concluded: I agree with Master Schlosser that Rule 15.6 is not a tool to be used lightly. The cases are clear that the rules for drop dead applicationsare mandatory and have to be strictly enforced to deal with stale actions and to encourage the litigants to move actions along.

In my view,Rule 15.6 is only to be applied where a rule may have an absurd, ridiculous or unreasonable result which would result in “any difficulty,injustice or impossibility.” None of these exist here.

All this application seeks is an application of the rule for the purpose it wasdesigned. [10] The other case which specifically addressed Rule 15.6 is the appeal from Master Wacowich’s decision (see citation inparagraph [9] above) in which Madam Justice Pentelechuk discussed the application of Rule 15.6 in the context of a Rule 4.33application. [11] At paragraphs 29 and 30, she says the following: 29 Foundational Rule 1.2(2) speaks to facilitating the quickest means of resolving a claim at the least expense and encouragingresolution of claims as early in the process as practicable.

As succinctly stated in Stevenson and Côté, Alberta Civil Practice Handbook(Edmonton: Juriliber, 2015), “Delay in a suit is anathema to all the principles of the 2010 Rules (efficiency, proportionality, andeconomy)”. 30 These causes of action arose over 10 years ago. Using Rule 15.6 to grant the Plaintiffs an equitable remedy in thesecircumstances would ignore these principles. [12] I will now turn to the Plaintiff’s submissions. He approaches Rule 15.6 as the codification of the courts inherent jurisdiction toapply equity in the appropriate circumstances.

He cites the well-known adage, the origin of which I am unaware of, that Rules of Courtare the servants and not the masters of the Court and that the Court’s duty is to interpret them so as to do justice between the parties. Hecites Smith v Acadia Hotels Ltd. (BC CA) as the authority for this proposition. [13] But the courts have ruled that the rules of equity will not override the Rules of Court. What Madam Justice Pentelechuk saidin the Phillips case is an example of this. See paragraph [30]. In my view, it would be more appropriate to cite the well-known adage thathard cases make bad law.

That this is a hard case is beyond dispute. The Plaintiff was arrested and imprisoned for 16 days without beinggiven an opportunity to be released on bail, and without an explanation as to why he was imprisoned. He surmises that it was because ofhis long-standing dispute with the Canadian Revenue Agency. In any event, while in prison, another prisoner two cells away wasmurdered by still another prisoner. He was deprived of his diabetes medication and he missed his daughter’s wedding.

It is impossible tosay whether his claim for damages against this defendant would have been successful, but clearly the facts invite the greatest sympathy.Many years ago, in England, the phrase “equity is an unruly horse”, first originated. To allow judicial discretion or inherent jurisdictionto override the plain meaning of Rule 4.33 would result in uncertainty in the application of Rule 4.33.

[ 14 ] Unfortunately, the only relief I can extend to the Plaintiff is in the matter of costs. I will direct that in these extremely unfortunate circumstances, each party will bear their own costs. Heard on the 16 th day of November, 2016. Dated at the City of Edmonton, Alberta this 29 th day of March, 2017. W. Breitkreuz M.C.Q.B.A. Appearances: Maurice Prefontaine Self-Represented Litigant Sean McDonough Alberta Justice and Solicitor General for the Defendant, Province of Alberta and Solicitor General of Alberta