994552 NWT Ltd Plaintiff - v. -, 2017 ABQB 741

Court of Queen’s Bench of Alberta Citation: 994552 NWT Ltd v Bowers, 2017 ABQB 741 Date: 20171205 Docket: 0803 06533 Registry: Edmonton Between: 994552 NWT Ltd Plaintiff - and - Terrance D. Bowers, 1121052 Alberta Inc, Carol Ann Bowers, Donald Bowers, Wayne Bowers, Carl Bowers, Kathleen Morris-Melenka, Erin Bowers, Caitlin Bowers, Donna Morris and D. Caer Management Inc. Defendants _______________________________________________________ Reasons for Decision of W.S.

Schlosser , Master, Court of Queen's Bench of Alberta _______________________________________________________ [1] This is an application to strike for delay. List of Authorities By the Parties: 1 . Alberta Rules of Court , Alta Reg 124/2010, Rules 4.33 and 4.31 ; 2 . Nash v Snow , 2014 ABQB 355 ; 3 . Heikkila v Alberta (Workers’ Compensation Board Appeals Commission), 2011 ABCA 87 ; 4 . Humphreys v Hanne , 2015 ABQB 143 ; 5 . Ravvin Holdings Ltd v Ghitter , 2008 ABCA 208 ;

6. Ro-Dar Contracting Ltd v Verbeek Sand & Gravel Inc, 2016 ABCA 123; 7. Turek v Oliver, 2014 ABCA 327; 8. Angevine v Blue Range Resource Corp, 2007 ABQB 443; 9. Danek v Levine, 2016 ABQB 422; 10. Franchuk v Schick, 2013 ABQB 532; 11. Ursa Ventures Ltd v Edmonton (City), 2016 ABCA 135; 12. XS Technologies Inc v Veritas DGC Land Ltd, 2016 ABCA 165; 13. Krieter v Alberta, 2014 ABQB 349; 14. Fletcher Challenge Energy Canada Inc v Jonust Farms Ltd, 2014 ABQB 517; 15. Huerto v Canniff, 2014 ABQB 534; 16. ML Bruce Holdings Inc v Ceco Developments Ltd, 2015 ABQB 604; 17. Phillips v Phillips, 2005 ABCA 405; 18.

Horrey v Litterst (1995), 1995 ABCA 228 , 32 Alta LR (3d) 40 (CA); 19. Kumra v Luthra, 2011 ABQB 366; 20. Calgary (City) v Chisan, 2000 ABCA 313; 21. 473440 Alberta Ltd v Lenaco Homes Masterbuilder Inc, 2017 ABQB 538; 22. Hover v Metropolitan Life Insurance Company, 1999 ABCA 123; 23. Amalgamated Transit Union, Local No 569 v Edmonton (City), 2015 ABQB 620; 24. Chemerinski v Richter, 2011 ABQB 417; 25. Boe v Hamilton, 1988 Carswell BC 426 (BCCA); 26. Larkin v Glase, 2009 BCCA 321; 27. Hadkinson v Hadkinson, [1952] 2 All ER 567 (Eng CA); 28. Riviera Developments Inc v Midd Financial Corp, 2002 ABQB 954; 29.

Bourne v Alberta, 2008 ABCA 165. By the Court: 1. Flock v Flock Estate, 2017 ABCA 67; 2. 1406998 Alberta Ltd v Dorbandt, 2017 ABQB 321; 3. Chak v Sun Media Corporation, 2017 ABQB 614; 4. Yaremchuk v Haight, 2001 ABCA 7; 5. Prince v Edmonton (City), 2012 ABQB 637 (M); 6. Janstar Homes Ltd v Elbow Valley West Ltd, 2016 ABCA 417; 7. Maligne Lodge Ltd v Stuart Olson Construction Inc, 2005 ABQB 451 (M); 8. Dressler v. Dressler, 2005 ABQB 93. Facts [2] Terrance Bowers stole roughly two million dollars from the Plaintiff and gave some of it to the other Defendants.

TerranceBowers has admitted the theft in the civil action. He has been charged criminally, though his trial is not set until next spring. [3] Questioning of six parties took place between October, 2012 and June, 2013. The Defendants, Carl Bowers, Wayne Bowersand Donald Bowers were questioned by written interrogatories. By July 31, 2013, Donna Morris and Kathleen Morris-Melanka hadprovided their answers to undertakings. Carol Bowers, Wayne Bowers and Donald Bowers provided answers to their written

interrogatories. [4] On September 6, 2013, there was a Consent Order setting a September 20, 2013, deadline for the undertaking responses of Caitlin Bowers. She did not comply with this Order and became bankrupt sometime in February, 2014. The action against her was stayed by operation of the Bankruptcy and Insolvency Act . The bankruptcy renders the application moot with respect to her. i. The September 6, 2013 Order [5] An advance in an action against one, if it advances the action as a whole, is an advance against all (Rule 4.33(2) and Heikkila, on old Rule 244, for example).

Was the September 6, 2013 Consent Order a significant advance? Ms. Caitlin Bowers’ undertakings were nowhere on the court file. They were to have been attached as a

schedule to the September 6 Order but they are not there. Without more, a Consent Order relating to answers to undertakings tends to fall into the category of ‘housekeeping’, which, in itself, would not materially or significantly advance an action (eg Huerto at para 22 (

b) and Barnes at paras 36-38, and the cases cited there). But we are to apply the functional approach to our evaluation of an event (eg Flock ). Here it is impossible to tell whether answers to her undertakings would have advanced the action significantly, or at all. ii. The July 15, 2013 Order [6] On July 15, 2013, Justice Gill gave a Consent Order requiring ( inter alia ) Carol Ann Bowers to provide answers to her undertakings no later than July 31, 2013. Despite the fact that the deadline in this Order was extended by agreement, her undertaking responses were never provided. Ms.

Carol Ann Bowers is in breach of the Order and is prima facie in contempt, though no formal declaration of contempt has been made. [7] Although I do not need to decide the case on this basis, in my view the principle ought to be this: A person in breach of a Court Order to do something that, if completed, would count as a significant advance, cannot rely on Rule 4.33 .

This is simply an extension of the principle that you can’t rely on your own delay to strike an action under Rule 4.31 or old Rule 244 ( Maligne , Dressler), or that a court should not assist a person in contempt of its orders (eg Phillips at para 14 , Horrey ). [8] Carol Ann Bowers’ five undertakings had to do with production of bank records. The intent appears to have been to provide documentary confirmation of the deposit of three cheques already produced by the Plaintiff (and which, presumably, had been admitted at questioning). Another related to funds that flowed back to Terrance Bowers.

The last related to Line of Credit statements for two further cheques. [9] It is not in issue that Terrance Bowers took the money, nor even that the Defendants received some of it. The main issue against Defendants like Carol Ann Bowers, is whether she received funds in circumstances that would require her to return them to the Plaintiff on a restitutionary basis or to otherwise account for them. The documentary confirmation arising from the bank statements do not go to a significant dispute in the lawsuit and, even if answered, would not have constituted a significant advance ( 1406998 Alberta Ltd ).

This evidence would not be of significant assistance in determining an issue in lawsuit because it will have been proved by the Plaintiffs production, the Plaintiff’s own evidence and admissions made or conceded. The undertaking answers themselves would not constitute a significant advance. Neither the undertakings, nor the Consent Order relating to them, count as significant advances. iii. ‘Unfiling’ the Interrogatory Answers [10] Written interrogatory answers noted in paragraph three above were inadvertently filed with the Clerk on August 9 and 13, 2013.

They were subsequently ‘unfiled’ by a Consent Order in March 2015. This too, does not count as an advance. iv. Related Criminal Proceedings, Withdrawal of Counsel [11] There were some developments in the criminal proceedings over this time. An advance in a closely related proceeding (such as the criminal proceedings) would have to be determinative of one of the issues in the instant case in order to count as an advance (eg Chak , and the cases cited there, Angevine ). [12] Mr. Poitras, counsel for Terrance Bowers, 1121052 Alberta Inc. and D. Caer Management Inc. filed a Notice of Withdrawal on August 2, 2016.

Withdrawal of counsel does not count as an advance. v. The Notices to Admit Facts [13] On July 29, 2016, the Plaintiff served a Notice to Admit Facts on some of the Defendants. On August 17, 2016, these Defendants responded on the basis that they were doing so only in order to comply with the 20 day deadline but without prejudice to their right to bring an application to strike for delay. In other words, they were not willing to acquiesce or participate in this step. Service of a Notice to Admit does not, in itself, significantly advance an action, though admissions gained in response to one might. vi.

The Terrance Bowers Defendants

[14] Counsel for Terrance Bowers, 1121052 Alberta Inc and D. Caer Management Inc withdrew from the Record in August 2016. These Defendants were ordered to provide their application materials no later than Friday, January 20, 2017, if they intended to participate in the application. They did not do so. These Defendants instead retained counsel again before the application and filed materials late. Counsel attended at the application but the Respondent/Plaintiff was not prepared to respond to their application. [15] It does not matter that their position is substantially the same as the other applicants.

I am not prepared to hear them in breach of the Order of Master Smart and they will have to bring their own Rule 4.33 (special) application, presumably sometime in 2019. Disposition [16] The three year clock started with completion of questioning and the undertaking answers July 31, 2013. The three year deadline for a significant advance expired two days after the Notice to Admit was served on July 29, 2016. Service of a Notice to Admit does not itself advance an action. [17] Rule 4.33 requires the Court to dismiss an action against the Applicants if there is a three year gap.

The action is dismissed against Carol Ann Bowers, Donald Bowers, Wayne Bowers, Carl Bowers and Kathleen Morris-Melenka. The action was discontinued against Donna Morris, February 10, 2017. These Applicants are entitled to costs of the action and the application except for Carol Ann Bowers, who is not entitled to the costs of the application. Heard on the 7 th day of November, 2017. Supplemental Briefs filed November 10, 2017 and November 23, 2017. Dated at the City of Edmonton, Alberta this 5 th day of December, 2017. W.S. Schlosser M.C.Q.B.A. Appearances: Robert T.

O'Neill Ogilvie LLP for the Plaintiff Justin Laverty-Harrigan Duncan Craig LLP for the Defendants, Carol-Ann Bowers, Donald Bowers, Wayne Bowers, Carl Bowers and Kathleen Morris-Melenka Ronald W. Poitras Ronald W. Poitras Professional Corporation for Defendants, Terrance D. Bowers, 1121052 Alberta Inc and D. Caer Management Inc.