Gjergji v Hyatt Mitsubishi, 2017 ABQB 500

Court of Queen’s Bench of Alberta Citation: Gjergji v Hyatt Mitsubishi, 2017 ABQB 500 Date: 20170814 Docket: 1001 13486 Registry: Calgary Between: Nikollaq Gjergji Plaintiff - and - Hyatt Mitsubishi and AMA Insurance Calgary Defendants _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Douglas R. Mah _______________________________________________________ Introduction [ 1 ] The Plaintiff, Nikollaq Gjergji, appeals the June 6, 2017 oral decision of Master A.

Robertson which, invoking Rule 4.33, dismissed his action against both Defendants for reason of long delay and awarded costs. The matter came before me in morning Chambers on July 26, 2017. I heard lengthy submissions from Mr. Gjergji during both morning and afternoon sessions and brief replies from counsel for each Defendant. At the conclusion of the hearing, I reserved my decision in order that I could fully review the record, in particular the affidavits and written argument filed by Mr. Gjergji before Master Robertson, and the transcript of the previous proceeding. [ 2 ] This is my decision on the appeal.

Factual Background to the Lawsuit [ 3 ] Some time prior to September 12, 2009, Mr. Gjergji purchased a Mitsubishi Outlander motor vehicle from Hyatt Mitsubishi, the first Defendant. It came equipped with Yokohama tires. On that day, he was driving on a highway in Alberta with his wife and two other family members as passengers when the vehicle was involved in a single vehicle rollover accident. All four occupants apparently reported injuries. The second Defendant, AMA Insurance, had insured the vehicle under a policy purchased by Mr. Gjergji. [ 4 ] Mr.

Gjergji has maintained throughout that the cause of the accident was a defective Yokohama tire or tire-rim. On September 10, 2010 he commenced this action. Without saying as much, the action against the first Defendant appears to be for breach of warranty and negligence in supplying a defective product. The allegations against the second Defendant are basically that it has failed in its obligations under the policy and has engaged in bad faith. In particular, Mr. Gjergji objects to the second Defendant not compensating him properly for his injuries under

Section B of the policy, concluding that the accident was the result of driver error and forcing his family members to sue him as the driver for the injuries that they sustained. No action was commenced against the tire manufacturer Yokohama. [ 5 ] On September 6, 2011 a personal injury action was commenced on behalf of the other occupants against Mr. Gjergji. The second Defendant had appointed counsel to defend the claims. Mr.

Gjergji relates in his affidavits that he was served with the statement of claim on or about August 16, 2012 and attended upon the offices of the second Defendant on August 21, 2012 to deliver the document. An incident or altercation then ensued which resulted in (as far as I can tell) Mr. Gjergji being apprehended and detained for mental health purposes. In his affidavits, he makes allegations of assault and unlawful confinement relating to this episode. He also vividly described the incident during his oral submission. At no point did Mr.

Gjergji amend the Statement of Claim or apply for an amendment to encompass this incident within his lawsuit. [ 6 ] The personal injury action against Mr. Gjergji brought on behalf of his wife and family members was eventually settled by the second Defendant. During the hearing before Master Robertson, it was suggested that this other action was settled in December 2015. [ 7 ] Mr. Gjergji asserts that as a result of the original accident and his treatment at the hands of the two Defendants, he has suffered extensive loss and damage of a physical, psychological and financial nature.

Factual Background to the Original Application [ 8 ] According to the affidavit evidence filed by the two Defendants, which is uncontroverted, the last action taken in the litigation taken by any party was on July 13, 2013 when Mr. Gjergji responded to a number of undertakings from his March 20, 2013 questioning. [ 9 ] An excerpt from the March 20, 2013 questioning (as attached to Mr Gjergji’s affidavit) shows that it was contemplated, at least at the time, that there would be a resumption of the questioning at a later date. [ 10 ] On January 14, 2015 counsel for both Defendants advised Mr.

Gjergji that they intended to bring an application for

summary dismissal on May 6, 2015. However, they subsequently changed their minds and no application was ever filed. [ 11 ] Mr. Gjergji indicates that he was always been willing and available to resume the questioning or respond to the

summary dismissal application. He emailed both counsel to that effect on January 27, 2015. Standard of Review [ 12 ] The standard of review in an appeal to a Judge from a decision of the Master, on all issues, is correctness: Bahcheli v Yorkton Securities Inc , 2012 ABCA 166 at para 30 . Incidentally, Bahcheli is a case dealing with dismissal of a plaintiff’s lawsuit for want of prosecution. Issue [ 13 ] The issue here is whether Master Robertson was correct in dismissing Mr. Gjergji’s action against both Defendants under Rule 4.33 and awarding costs. Argument [ 14 ] Mr.

Gjergji’s presentation before me in both written and oral form was diffuse and far-ranging but can be summarized essentially as follows: • The learned Master erred in applying Rule 4.33 in isolation. He should have had regard to the foundational rules as well, namely Rules 1.1, 1.2 and 1.3. • The learned Master was wrong in failing to find that a suspension period within the meaning of Rule 4.33(5) was in effect. • The learned Master failed to consider the significance of the dates January 27, 2015 or May 6, 2015.

• The hearing before Master Robertson was unfair. Mr. Gjergji was feeling unwell on the day of the hearing before the Master, the Master dealt with the matter too hastily and Mr. Gjergji was disadvantaged by his own poor submission. • The claim should not be dismissed because it is meritorious, the wrongdoing of both Defendants has been serious and Mr. Gjergji has suffered greatly. His delay, if any, is explainable. • On the issue of costs, I heard no argument from the Plaintiff’s side at the hearing other than a spontaneous exclamation from Mr.

Gjergji’s wife (whom I had asked not to speak) that the costs ordered are beyond their means to pay. In his written argument, Mr. Gjergji makes the statement that the costs order is wrong too because his claim is meritorious. [ 15 ] Counsel for the first Defendant stated that Master Robertson had made no error and offered case law in support, some of which I will discuss below. He noted that Master Robertson reviewed the proposed Bills of Costs during the hearing and made reductions in his Order. These submissions were adopted by counsel for the other Defendant.

Analysis Alleged error in applying Rule 4.33 to the exclusion of foundational rules [ 16 ] Mr.

Gjergji argues that it was wrong for the learned Master to apply Rule 4.33 at the expense of the foundational rules, being Rules 1.1, 1.2 and 1.3. [ 17 ] Rule 4.33 provides that the Court on application, must dismiss an action where three or more years have passed without a significant advance, absent certain exceptions. [ 18 ] Foundational Rules 1.1, 1.2 and 1.3 state respectively what the Rules govern, their purpose and intention, and the general authority of the Court to provide remedies. [ 19 ] Rules 1.1(1) and 1.3 provide no additional insight into how Rule 4.33 should be applied in this case.

I note below that Rule 1.1(2) does have relevance to Mr. Gjergji’s position that standards should be relaxed for him because he is a self-represented litigant. [ 20 ] Mr. Gjergji particularly relies on Rule 1.2, which speaks to how the Rules are intended to promote fair and just resolutions of disputes. With regard to the interplay between Rule 1.2 and Rule 4.33, the Court of Appeal in Janstar Homes Ltd v Elbow Valley West Ltd , 2016 ABCA 417 stated : With respect to the foundational Rule 1.2, two comments are in order. First, it does not override the clear mandatory language of Rule 4.33.

Second, it does not have the effect of requiring a defendant, in any manner, to assume carriage of an action where the plaintiff is not actively advancing its own claim. The initiative at all times remains with the plaintiff to pursue its lawsuit in a timely fashion: XS Technologies Inc v Veritas DGC Land Ltd , 2016 ABCA 165 at para 7 . On the other hand, a defendant is obliged, pursuant to the foundational Rule 1.2, not to engage in tactics that obstruct, stall or delay an action that the plaintiff is advancing. [ 21 ] Mr. Gjergji seemed to suggest that the failure of the Defendants to

schedule further questioning and proceed with the

summary dismissal application was the source of delay. In effect, he says, he was waiting for them, not the other way around. However, as Janstar indicates, the onus to advance the plaintiff’s action never shifts from the plaintiff. By way of example, in this case what Mr. Gjergji could have done, was entitled to do and was in a position to do in the face of inactivity by the Defendants at that stage of the litigation, was request a trial date. He had until July 12, 2016 to do so.

He never did, nor did he do anything else to advance his action. [ 22 ] Accordingly, this ground fails because there was no error in the Master not subordinating Rule 4.33 to the foundational rules. All of the Rules discussed in this decision are attached as an Appendix. Alleged suspension period [ 23 ] At the conclusion of the March 13, 2013 questioning, which (as described to me) had become quite heated, there was a discussion between Mr. Gjergji and the two counsel about adjourning and resuming another day. The questioning transcript from that day concludes with: Q MS.

ADAMIC: I’m going to adjourn it for today, sir. So we’re adjourning it, and we’ll reconvene at another time, when everything has calmed down. So it’s adjourned. [ 24 ] Mr. Gjergji says that he agreed with or at least acquiesced to this course. As noted, he later emailed both counsel offering his availability for any resumed questioning. He now asks me to construe these events as constituting an agreement for a suspension period for the purposes of Rule 4.33(5). I cannot, by any stretch, do so. No mention is made of a suspension period, much less an agreement.

The email, which does not refer to a suspension period, cannot fulfill the requirement of an agreement in writing. I therefore conclude there was no agreement so as to engage Rule 4.33(5). Whether a significant advance was taken on either January 27, 2015 or May 6, 2015 [ 25 ] Mr. Gjergji says his same email to counsel on January 27, 2015 is a significant advance whereby he committed to a May 6, 2015 attendance for a

summary dismissal application and offered to make himself available for further questioning. However, it is

merely a communication which did not result in anything happening, not even apparently, a response. [ 26 ] The Court of Appeal in Janstar dealt with the effect of communications concerning questioning dates on the 3 year threshold in Rule 4.33: [29] The appellants submit that the communication between counsel, respecting the setting of questioning dates, was done with a goal of significantly advancing the action.

They argued that like settlement discussions, this advanced the matter. [30] On the other hand, the respondent argues that there was nothing that significantly advanced the action during the relevant time period and three years having expired, the requirements of rule 4.33 have been satisfied . [31] Again we agree with both the master and the chambers judge. The exchange of correspondence with respect to dates for questioning in itself did not significantly advance this action.

Accordingly this ground of appeal is also dismissed. [ 27 ] Therefore, the sending of the email here so far as it relates to questioning dates cannot constitute a significant advance. I now turn to the May 6, 2015 date. [ 28 ] In this regard, the Court of Appeal has stated several times on recent occasions that a functional approach must be applied to determine whether a particular act constitutes a significant advance for the purposes of Rule 4.33, that is, did the act move the lawsuit closer to resolution in a meaningful way?

See Canada (Attorney General) v Delorme , 2016 ABCA 168 at para 25 ; XS Technologies Inc v Veritas DGC Land Ltd , 2016 ABCA 165 at paras 8-9 ; Weaver v Cherniawsky , 2016 ABCA 152 at paras 17-18 ; and Ursa Ventures Ltd v Edmonton (City), 2016 ABCA 135 at paras 18-19 . [ 29 ] Here, the proposed

summary dismissal application did not materialize on May 6, 2015 or any other date. No application documents were filed by anyone. Something that did not happen does not move a lawsuit closer to meaningful resolution. Neither does agreeing to a date for an application that ultimately did not occur. Unfairness at the previous hearing [ 30 ] In argument, Mr. Gjergji had three principal submissions under this heading. First, he asserts that he was “unfit” for Court that day, both physically and mentally, due to the debilitating effects of medication he takes as a result of his injuries from the accident.

There is no indication in the transcript that he made Master Robertson aware of this, no request for an adjournment for health reasons was made to Master Robertson and there is no medical evidence before me substantiating this claim. It is a mere assertion, which I do not accept as an appeal ground. [ 31 ] Second, Mr. Gjergji argues that Master Robertson gave Mr. Gjergji’s side of the case the short shrift. I note first of all, that by nature and intent, proceedings in chambers whether before a Justice or Master are supposed to be conducted efficiently.

Applications requiring detailed and lengthy argument should be brought in Special Chambers. Mr. Gjergji did not ask for the matter to be adjourned to Special Chambers. In any event, the transcript of the previous hearing extends over 20 pages. There is no indication that Mr. Gjergji was prevented from making whatever argument he wished to make. Moreover, the learned Master (at p 9) even canvassed an argument favourable to Mr. Gjergji that had not been raised by Mr. Gjergji himself. I cannot say that Master Robertson failed to give Mr. Gjergji’s case proper consideration. [ 32 ] Third, Mr.

Gjergji basically says that I should relax Rule 4.33 in the interest of fairness because he is not a lawyer and his argument before the learned Master was substandard. I cannot bend or ignore the Rules because Mr. Gjergji is self-represented. That would be tantamount to having one set of rules for litigants with counsel and a different set for self-represented litigants, a situation that no coherent system of justice could tolerate and which would be clearly contrary to Rule 1.1(2). Claim is meritorious? Reason for delay [ 33 ] I had asked Mr.

Gjergji to address the issue of delay rather than the merits of the action. Nonetheless, much of Mr. Gjergji’s written and oral presentation canvassed the merits of his action and the many wrongs he feels he has suffered at the hands of the Defendants. He attempted to link the merits to the issue of delay by attributing any delay on his part to adverse health effects caused by the wrongdoing of both Defendants. [ 34 ] For my part, I refrain from commenting on the merits. Whether the underlying claim is meritorious is irrelevant to the issue of delay.

An explanation for the delay, with a view to forgiveness, is also irrelevant because Rule 4.33 is mandatory not discretionary: Callihoo v Canada (Attorney General) , 2015 ABQB 337 at paras 35-36 and Wilson v Board of Trustees of Aspen View Regional School Division No 19 , 2014 ABQB 741 at para 36 . This is so even in a case where the delinquent plaintiff tenders medical proof of health issues that may have prevented timely advance of the litigation: Milne v Dziadyk , 2014 ABQB 407 at paras 12-13 . [ 35 ] The application of Rule 4.33 can be harsh and unforgiving.

The Court’s comments in Chorney v Thompson , 2014 ABQB 410 are applicable here: [ 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 to know the law and actual ignorance or simple inactivity are beyond the power of equity or the court’s duty of ‘limited assistance’ to cure.

It may mean the end of an otherwise meritorious claim but the purpose of limitations and delay rules are to codify and fix consideration of 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 the exceptions 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 are

intended to be largely impervious to the entreaties of equity, or the blurring of their boundaries. [ 36 ] Accordingly, whatever may be the merits of Mr. Gjergji’s case or the reason for his delay, Rule 4.33 must still be applied where its criteria are met. [ 37 ] Overall, Mr. Gjergji asserts that is unfair to dismiss his action because it is meritorious. He has a different concept of fairness than I do. Fairness is about process not outcome. Fairness does not mean that a person obtains an outcome that is favourable. Rather, it means that the matter is adjudicated impartially and according to established norms.

Those norms, in the context of civil litigation in this province, are the Rules of Court. Whether Mr.Gjergji realizes it nor not, he has received exactly what is contemplated in those Rules. Other action [ 38 ] The learned Master himself raised the question of whether the personal injury action by the family members against Mr. Gjergji might be a related action for the purposes of Rule 4.33, meaning that advancement activity in that action in December 2015 might be sufficient to keep Mr. Gjergji’s action alive. Master Robertson seems to have concluded that the other action was not sufficiently related.

While not specifically raised in this appeal by Mr. Gjergji as an argument, I will address it for the sake of completeness. [ 39 ] Counsel for the Defendants were quick to point out to the learned Master that the second action involved different parties and causes of action, although Mr. Gjergji as a party was common to both and both had their genesis in the September 12, 2009 accident. I find that these commonalities fall well short of the required “inextricable linkage” described in Angevine v Blue Range Resources Corp , 2007 ABQB 443 at para 41 and the analysis in Danek v Levine , 2016 ABQB 422 .

Therefore, litigation activity in the personal injury action in December 2015 does not have the effect of resuscitating Mr. Gjergji’s action today. Decision on Rule 4.33 issue [ 40 ] Mr. Gjergji has not demonstrated that the learned Master was wrong in applying Rule 4.33 to dismiss his action. In consequence, I dismiss the appeal on the main question. Costs [ 41 ] Mr. Gjergji claimed damages in his lawsuit for an amount well exceeding $3 million. As a result, the costs claimed are on Column 5 of

Schedule C. Counsel for the second Defendant advised the Master that a formal offer to settle of a discontinuance without costs was made to Mr. Gergji following questioning, but costs were not being requested on an enhanced basis for any part nor sought for the application before the Master. Even so, the costs ordered here are significant. [ 42 ] The appeal ground with respect to the costs order was nothing more than a further assertion that it is unfair to award costs when the action is meritorious.

The action was dismissed for reason of long delay where the strength of the Plaintiff’s case, whatever it might be, is irrelevant. Consequently, costs should follow the event. I heard no argument from Mr. Gjergji that the costs had been improperly assessed. Further, inability to pay costs is not a shield to a costs order. [ 43 ] There was no error shown in the order for costs as made and accordingly the appeal on costs is also dismissed. Conclusion [ 44 ] It is unfortunate that Mr. Gjerji’s experience with the justice system has been so negative.

That experience underscores the reality that many self-represented litigants do not always appreciate the consequences of their actions. Exposure to costs is one of those consequences. If one chooses to enter the arena of litigation, then one is bound by all the rules, regardless of mode of representation. [ 45 ] If either or both Defendants see fit to seek costs for this appeal, counsel may contact me within 30 days of the date of this decision. Heard on the 26 th day of July, 2017. Dated at the City of Calgary, Alberta this 14 th day of August, 2017. Douglas R. Mah J.C.Q.B.A.

Appearances: Mr. Nikollaq Gjergji for the Plaintiff Mr. Jakub Maslowski Borden Ladner Gervais LLP for the Defendant - Hyatt Mitsubishi Ms. Maryke F. McGinn Alberta Motor Association Insurance Company for the Defendant - Alberta Motor Association Insurance of Calgary Appendix 1.1(1) These rules govern the practice and procedure in (

a) the Court of Queen’s Bench of Alberta, and (

b) the Court of Appeal of Alberta.

(2) These rules also govern all persons who come to the Court for resolution of a claim, whether the person is a self-represented litigant or is represented by a lawyer. 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.

(2) In particular, these rules are intended to be used (

a) to identify the real issues in dispute, (

b) to facilitate the quickest means of resolving a claim at the least expense, (

c) to encourage the parties to resolve the claim themselves, by agreement, with or without assistance, as early in the process as practicable, (

d) to oblige the parties to communicate honestly, openly and in a timely way, and (

e) to provide an effective, efficient and credible system of remedies and sanctions to enforce these rules and orders and judgments.

(3) To achieve the purpose and intention of these rules the parties must, jointly and individually during an action,

(

a) identify or make an application to identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense, (

b) periodically evaluate dispute resolution process alternatives to a full trial, with or without assistance from the Court, (

c) refrain from filing applications or taking proceedings that do not further the purpose and intention of these rules, and (

d) when using publicly funded Court resources, use them effectively.

(4) The intention of these rules is that the Court, when exercising a discretion to grant a remedy or impose a sanction, will grant or impose a remedy or sanction proportional to the reason for granting or imposing it. 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. 4.33(1) In this rule, (a) “applicant” means a party to an action who makes an application to dismiss the action for delay as set out in this rule; (b) “respondent” means a party who has filed a commencement document; (c) “suspension period” means, in subrules (5) to (9), a period that ends on (

i) a specific date, or (ii) the happening of a specific event.

(2) If 3 or more years have passed without a significant advance in an action, the Court, on application, must dismiss the action as against the applicant, unless (

a) the action has been stayed or adjourned by order, an order has been made under subrule (9) or the delay is provided for in a litigation plan under this Part, or (

b) 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.

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

(4) The period of time referred to in subrule (2) does not include the following, whichever ends earlier: (

a) the period of time between the service of a statement of claim on an applicant and the service of the applicant’s statement of defence; (

b) the period of one year after the date of service of a statement of claim

on an applicant.

(5) If a respondent and an applicant agree in writing to a suspension period, the period of time under subrule (2) does not include the suspension period agreed to.

(6) A respondent, whether or not the respondent has sought agreement under subrule (5), may serve an applicant with a written proposal setting out a suspension period and requesting that the suspension period not be included in computing the period of time under subrule (2).

(7) An applicant who receives a proposal referred to in subrule (6) must respond within 2 months, and within that time (

a) if the applicant agrees with the proposal, then the period of time under subrule (2) does not include the suspension period agreed to, or (

b) if the applicant disagrees with the proposal or does not respond to the proposal, then the respondent may apply for an order under subrule (9).

(8) If a suspension period is agreed to under subrule (5) or (7)(a), the respondent must give all other parties to the action written notice setting forth what the suspension period is, when it was agreed to and by whom.

(9) A respondent, whether or not the respondent has sought agreement under subrule (5) or served a proposal under subrule (6), may apply for an order setting out a suspension period that shall not be included in computing the period of time under subrule (2).

(10) Rule 13.5 [Variation of time periods] does not apply to this rule.