McCarthy v Schindeler, 2017 ABQB 511

Court of Queen’s Bench of Alberta Citation: McCarthy v Schindeler, 2017 ABQB 511 Date: 20170818 Docket: 0703 12459 Registry: Edmonton Between: Rene Michael McCarthy Plaintiff - and - Kevin Albert Schindeler, Russell Neil Hewson, Tervor Czernik, Scott Andrew Gargan, Alexandra Simpson, Travis Cunningham, Lenore Hladky, Shane Darda, Sean Jenkinson, Geoff Gibson and Darryl da Costa Defendants Corrected judgment: A corrigendum was issued on August 24 2017; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons of Decision of W.S.

Schlosser , Master in Chambers _______________________________________________________ Introduction [ 1 ] This is a Rule 4.31 application to strike a claim for long delay. The leading case is Humphreys v Trebilcock , 2017 ABCA 116 . Authorities By the Parties: 1. Humphreys v Trebilcock , 2017 ABCA 116 ; 2. Servus Credit Union Ltd v BRB Building Corp , 2016 ABQB 428 ; 3. Brace v Williams , 2016 ABCA 384 ;

4. R v McCarthy , 2008 ABQB 14 ; 5. R v McCarthy , 2008 ABQB 215 . By the Court: 1. R v Jordan , 2016 SCC 27 ; 2. Mintage Financial Corporation v Altenhofen , 2013 ABQB 486 ; 3. Ravvin Holdings Ltd v Ghitter , 2008 ABCA 208 . Facts [ 2 ] In general terms, the lawsuit arises from an alleged use of excessive force when the Plaintiff was arrested in the parking lot of the Outback Steakhouse in Edmonton. Mr. McCarthy was charged with a number of offences (six), arising out of the incident; which were ultimately stayed on October 28, 2010. [ 3 ] Mr.

McCarthy was held in custody from October 2, 2005 to March 24, 2006. [ 4 ] Among with some housekeeping amendments sought in March of this year, the Plaintiff wanted to amend his Statement of Claim to include a claim for malicious prosecution. An earlier conviction would likely have precluded this claim. [ 5 ] Expert Psychologist evidence was provided in late January of 2016. The report itself is dated June 11, 2007 and can best be described as establishing a base line for psychological harm alleged to have risen from this incident. [ 6 ] The chronology of the lawsuit is set out in paragraph 10 below.

Analysis [ 7 ] Rule 4.31 provides: 4.31(1) If delay occurs in an action, on application the Court may (

a) dismiss all or any part of a claim if the Court determines that the delay has resulted in significant prejudice to a party, or (

b) make a procedural order or any other order provided for by these rules.

(2) Where, in determining an application under this rule, the Court finds that the delay in an action is inordinate and inexcusable, that delay is presumed to have resulted in significant prejudice to the party that brought the application. [ 8 ] The Court of Appeal in Humphreys instructs us (at para 150 – 156 ): 150 In order to apply r. 4.31 an adjudicator must answer six distinct questions. 151 First, has the nonmoving party failed to advance the action to the point on the litigation spectrum that a litigant acting reasonably would have attained within the time frame under review? 152 Second, is the shortfall or differential of such a magnitude to qualify as inordinate? 153 Third, if the delay is inordinate has the nonmoving party provided an explanation for the delay?

If so, does it justify inordinate delay? 154 Fourth, if the delay is inordinate and inexcusable, has this delay impaired a sufficiently important interest of the moving party so as to justify overriding the nonmoving party's interest in having its action adjudged by the court?

Has the moving party demonstrated significant prejudice? 155 Fifth, if the moving party relies on the presumption of significant prejudice created by r. 4.31(2), has the nonmoving party rebutted the presumption of significant prejudice? 156 Sixth, if the moving party has met the criteria for granting relief under r. 4.31(1), is there a compelling reason not to dismiss the nonmoving party's action? This question must be posed because of the verb "may" in r. 4.31(1). [ 9 ] In calculating the delay, the Jordan decision is instructive.

The Court should look at a delay occasioned by the Plaintiff, the institutional delay, and the delay occasioned by the Defendants. Unlike Jordan , a Plaintiff should not be held accountable for periods attributed to institutional delay, such as the time between scheduling Special Chambers application and its actual hearing, or the time between an application and a reserved decision. I note, however, that a pending application, even an application for

summary judgment,

will not necessarily act as a stay but it often has the practical effect of stopping or slowing activity in a lawsuit.

So that part of the delayought to be assessed on a case-by-case basis. [10] The time comparison with the Humphreys case (which alleged fraud) is as follows: Item (Humphries) (McCarthy)Events giving rise to action 2006 – 2008 Oct 2, 2015Number of parties 10 12Filing of Statement of Claim Dec. 14, 2006 Sept 28, 2007Service of Statement of ClaimNot reported Sept – Oct 2008Demand for Statement ofDefence Not reported Nov 2, 2012 Filing of Statements of DefenceFeb. 2007 – Oct. 2008 Dec 3 – 5, 2012Service of Affidavits ofRecords May 2007 Jun 2013 – Nov 2015 Questioning of Defendants Jan. 2010 – May 2015 Nov 2015 (incomplete: 6defendants yet to be examined)Questioning of Plaintiff Incomplete Started Apr 11, 2016(incomplete)Rule 4.31 application filed June 16, 2016 May 31, 2017Total delay from events toapplication date 10 years 11.5 years Total delay fromcommencement of action toapplication date 9.5 years 9.5 years Incomplete steps as ofapplication date • Questioning of Plaintiffs • Pending application to amendStatement of Claim • First-round questioning of 6Defendants • Completion of Questioning ofPlaintiff • Completion of Plaintiff’sAnswers to Undertakings • Questioning of Defendants ofUndertakings • Completion of Expert Reports [11] The lawsuit flirted with the drop-dead time limits (first five, then three years) over the course of its history.

In late 2007 andearly 2008, the Plaintiff sought disclosure of the Defendants’ complaints and disciplinary files, first under R v Stinchcombe, (SCC), [1991] 3 SCR 326, and, then, under R v O’Connor, (SCC), [1995] 4 SCR 411 (reported at 2008ABQB 14 and 2008 ABQB 215 per Sullivan J. sub nom R v McCarthy). Neither application was successful [12] The Defendants might have insisted on a strict litigation plan but they were under no obligation to move the matter forwardand there is no positive evidence of acquiescence.

Until delay becomes inordinate and inexcusable, a defendant is more or less powerlessto strike languid claims, unless there is a specific instance of prejudice arising during the plaintiff’s delay. [13] The original hiatus arouse while the criminal charges were dealt with. However, there is no reason that the action could nothave been advanced in the three year period between the Statement of Claim and the Stay. Very little occurred then. The Plaintiff hadbeen released from custody the year before the Statement of Claim was filed. There is no evidence his ability to prosecute his lawsuitwas impaired.

There were no disciplinary proceedings that might have held things up or, otherwise, provided evidence supporting someof the allegations in the Statement of Claim. Prejudice [14] Among the types of prejudice that can arise from delay is “litigation prejudice”, discussed in Humphreys at paras 131 – 138: 133 Sometimes the very existence of litigation may threaten an important and legitimate interest of the moving party. If so, thenonmoving party's failure to advance the claim against the moving party with reasonable diligence may significantly prejudice themoving party.

In other words, the nature of the allegations may themselves provide an obligation to advance the matter with greater expedition(Humphreys at para 123). [15] The allegations in this case concern a serious derelection of the Defendants’ duties. If proven, they would be enough to makea member of the public lose confidence in the ability of these members to serve or protect them. Although the allegations are unproven,they put the accused members under a cloud. The lawsuit essentially alleges that the Defendants are lying, racist, thugs. Punitive and

aggravated damages are claimed. If the intent of it was to punish the Defendants, merely having this lawsuit hanging over their heads fora lengthy period will have had this effect, without the Plaintiff having to prove any of his claims. [16] If a specific instance of prejudice is claimed during a period of delay, it matters who is responsible for that delay. Specificinstances of prejudice, in order to be blameworthy must be attributable to the delay (Ravvin v Ghitter, 2008 ABCA 208 at para 37).

Youcan’t blame the Plaintiff if you suffer prejudice while delaying the action. [17] There may be a time when benchmarks are set for certain types of lawsuits but until that time delay is to be assessed in contexton a case-by-case basis. The time limits set in the Jordan decision are much shorter than the delay presently permitted in civil matters.Part of this has to do with civil limitations statutes. The 10 year cap in the Limitations Act might well establish a presumptive evidentiary‘best before date’ for civil litigation (eg Mintage).

Though context is important here as well, the 10 year cap forms a kind of presumptiveceiling beyond which delay can be presumed to be inordinate and unreasonable without a compelling explanation. Application of the Humphreys Test 1. The Plaintiff has failed to advance the action to the point that could reasonably have been attained over the past 10 years. Thematter should have been set for trial or

summary determination by now. 2. The delay (and the differential) is inordinate. 3. While the outcome of a criminal matter may become evidence in a civil matter, it is not decisive of it. This might have been true ofdisciplinary proceedings as well (Complaint or Disciplinary proceedings might also have provided a record, admissible for at least thepurposes of cross-examination: R v Stinchcombe, (SCC), [1991] 3 SCR 326). I acknowledge that a conviction wouldhave afforded the Defendants a defence to the claims of malicious prosecution.

But a ‘wait and see’ approach is not a sufficient excusefor delay when there are criminal charges and civil claims. 4. There is no overriding interest that excuses the delay. In fact, the contrary may be true; the circumstances invite an interest inhaving closure earlier rather than later. 5. Actual prejudice in the form of fading memories has been demonstrated from excerpts of the Questioning transcripts used insupport of this application.

Has prejudice, or the inference of prejudice been rebutted? [18] In Ravvin (at para 38) the Court noted: Evidence sufficient to raise a legitimate doubt as to the existence of a likelihood of serious prejudice may take many forms, such as priordiscovery evidence or affidavit evidence filed by the parties on the application to strike. It may also come from allegations of actualprejudice submitted by the applicant, or it may simply arise naturally from the existence of certain facts.

Once there is evidence sufficientto raise a legitimate doubt as to whether prejudice does in fact exist, the presumption alone is not sufficient to meet the applicant’s burdenof proving prejudice This is an ‘old-rules’ case but still applicable. [19] This is not a documents case. It is a memories case. The memories of the events, over the span of a short few minutes roughly12 years ago may be crucial to its outcome. Excerpts from the questioning of the Plaintiff (over a year ago) show that the Plaintiff’smemory of detail had faded.

Although there are written incident reports produced in this lawsuit, I do not expect that they will besufficient to permit a detailed recall of all of the pertinent events. Disposition [20] There is no compelling reason not to dismiss this claim for delay. There is no clear or unequivocal evidence of acquiescenceon the part of the Defendants (eg Brace, para 8). Twelve years is long enough to prove these claims. [21] The application is allowed. The lawsuit is dismissed for long delay. Heard on the 20th day of July, 2017. Dated at the City of Edmonton, Alberta this 18th day of August, 2017.

W.S. Schlosser M.C.Q.B.A. Appearances: Malcolm W. Jones Weir Bowen LLP for the Defendants, Russell Neil Hewson, Trevor Czernik, Scott Andrew Gargan, Alexandra Simpson, Travis Cunningham, Lenore Hladky, Shane Darda, Sean Jenkinson, Geoff Gibson Jeremy L. Taylor Field LLP for the Defendant Darryl da Costa Lorena Harris Dentons LLP for the Defendant Kevin Albert Schindeler Damian Shepherd Chomicki Baril Mah LLP for the Plaintiff, Rene Michael McCarthy _______________________________________________________ Corrigendum of the Reasons of Decision of W.S. Schlosser W.S.

Schlosser, Master in Chambers _______________________________________________________ The following sentence was moved from paragraph [20] to paragraph [21] “ The application is allowed. The lawsuit is dismissed for long delay”. The following sentence was added to paragraph [20] “Twelve years is long enough to prove these claims”.