Slovak v Canada (Attorney General), 2017 ABQB 761

Court of Queen’s Bench of Alberta Citation: Slovak v Canada (Attorney General), 2017 ABQB 761 Date: 20171211 Docket: 1210 00453 Registry: Red Deer Between: Christopher Slovak Plaintiff - and - The Attorney General of Canada, Dan Williams, Ryan Edwards, Francois Gibeault and Derek Rose Defendant _______________________________________________________ Memorandum of Decision of A. R. Robertson , Q.C., Master in Chambers _______________________________________________________ Introduction [ 1 ] The defendants apply to have this claim dismissed under rule 4.33 for long delay.

The plaintiff opposes on the basis that there has not been a three-year period “without a significant advance in [the] action”, and alternatively, if there has, then the exception in rule 4.33(2)(

b) applies, because the plaintiff argues that, “proceedings have been taken since the delay and the [defendants have] participated in them for a purpose and to the extent that, in the opinion of the Court, warrants the action continuing.”

[ 2 ] The application pivots around the meaning of the word “proceedings” and whether some interaction between counsel amount to “proceedings” that defence counsel participated in. [ 3 ] As well, the word “participated” in rule 4.31 requires some consideration, to determine if defence counsel “participated” in anything at all after the three year period had passed. Background [ 4 ] The lawsuit relates to an alleged assault by RCMP officers in July 2010. The action was commenced May 2012, or roughly two months before the limitation likely ran.

The statement of defence was not filed until April 25, 2013 . [ 5 ] Affidavits of records were apparently exchanged, and questioning occurred on September 16, 2013.

The defendants requested a number of undertakings, including information about the damages and injuries claimed. [ 6 ] On April 8, 2014, plaintiff’s counsel and defence counsel discussed settlement in a telephone call, following which plaintiff’s counsel sent a letter July 21, 2014 requesting that they continue settlement discussions. [ 7 ] Counsel for the defendants advised that he continued to take the position that there was no liability, but invited the plaintiff’s counsel to try to convince him otherwise.

He indicated plaintiff’s counsel was “most welcome to forward to us a ‘without prejudice’ assessment of your client’s injuries and damages.” [ 8 ] That is where things sat for a considerable period of time. [ 9 ] There were various communications about settlement, by telephone on February 15, 2015 by email of November 4, 2015, and by a detailed letter of November 24, 2015 from plaintiff’s counsel to defence counsel in which he made a proposal of a lump sum plus costs and disbursements.

By letter of February 2, 2016, defence counsel advised that the offer was not acceptable, and he continued to assert that there was no liability. He enclosed a formal offer to settle. [ 10 ] The three year anniversary from the questioning was September 16, 2016. Shortly before that date, and during the next two and a half months, there were some communications between counsel. In one email, a document (a resume) that the plaintiff had undertaken to produce over three years before was finally produced, but it contained no new information.

The plaintiff argues firstly that the exchanges prior to September 16, 2016 significantly advanced the proceedings, and secondly that these communications show that after September 16 there were “proceedings” that were taken that the defendants participated in, “for a purpose and to the extent that [the Court should conclude] warrants the action continuing.” Communications: “Proceedings”? [ 11 ] By letter of August 30, 2016, plaintiff’s counsel attached a request to

schedule a trial date to be completed by defence counsel, and indicated that if he was not in receipt of the information, he would be bringing an application to have the matter set down for trial. [ 12 ] It was not completed.

No such application was brought. [ 13 ] The defence lawyer who had originally handled the file had been away for a period of time, so the communications in 2016 prior to September 6, when he was back in his office, were with another defence lawyer who was filling in. [ 14 ] Thereafter, there were some communications, mostly by email, that did not result in any progress in the action or narrowing of the issues. They discussed possible settlement, but nothing was agreed on. [ 15 ] On September 6, 2016 the original defence lawyer sent an email to plaintiff’s counsel saying: I am handling this file again.

You can direct all further correspondence to me in this regard. I write further to your request to set a trial date (yours of August 30, 2016). I attempted to call you today, but got your v-m. My call to your paralegal also went to v-m. Perhaps you can call me when you get a chance so that we might discuss the trial time needed and the continued progress of this matter. I look forward to talking further with you. [ 16 ] Plaintiff’s counsel responded a few minutes later, Dave, “good to have you back and I will call you tomorrow if you are around.

Thanks.” [ 17 ] A few minutes later defence counsel wrote, I will be out of the office in the morning at a [sic] appointment but I will be in tomorrow afternoon. [ 18 ] Plaintiff’s counsel responded, “Call you after lunch then” and the defence counsel wrote, “Sounds like a plan.” [ 19 ] Then the three year anniversary passed. [ 20 ] By emails of November 8, 9 and 18, 2016, counsel exchanged emails which did not advance the matter. Plaintiff’s counsel provided some case authority on damages.

Defence counsel expressed difficulty with the “causation” issue – as he had before on February 2, 2016, when he said there was no liability.

[ 21 ] By email of November 24, 2016 counsel for the defendants wrote to plaintiff’s lawyer by email. That email and the response are said to satisfy the exception in rule 4.31(2)(b). He said, Thanks for talking to me. Did you ever comply with the undertakings given? I am reviewing my file and I don’t seem to have them. I could simply be missing them.... Can you let me know..

Thanks.... [ 22 ] By email of November 25, 2016, a paralegal with the plaintiff’s office noted that she had reviewed the file “and it does not appear responses to undertakings have been provided.” She listed the undertakings that she understood to be outstanding and said that she would request these “if required”. [ 23 ] In the midst of the list of outstanding undertakings, as item number six (of nine) she wrote, “produce Mr. Slovak’s resume – Attached”.

Other Activity [ 24 ] By letters of February 1, 2017, the paralegal wrote to Canada Revenue Agency, Taber Health Center, Associate Medical Centre in Taber, Chinook Regional Hospital in Lethbridge, and a doctor in Lethbridge to try to obtain answers for undertakings. By then it was long after the expiry of three years since the questioning. [ 25 ] If any information was received in reply to those requests, it has not been provided to defence counsel. No one even told defence counsel in February that information was being sought. It only came out in response to this application.

From his perspective, he had asked if the undertakings had been provided and he had received one email in response. [ 26 ] There was a debate before me over whether the resume was actually attached to the November 25, 2016 email. A printed version of the original email that shows the supposed attachment was placed in evidence in an affidavit filed shortly before this special application was heard.

It appears, for the purpose of this application, clearly to have been sent with the paralegal’s email as indicated in the text of the email. [ 27 ] However, in my view the question about the attached resume does not matter. The resume itself is of no consequence. It did not provide any new information. The plaintiff had been examined in detail on his work history and the resume had been asked for but providing it did not, in and of itself, significantly advance anything. Hearsay in Reply, Adverse Inference [ 28 ] As well, there is a debate over whether it was appropriate for Mr.

Slovak – the plaintiff -to swear an affidavit in opposition to this application because he does not have personal knowledge of the steps that were done. I am puzzled by this submission by defence counsel, because although the evidence in support of an application to dismiss a claim must be based on personal knowledge, in reply to an application of this nature it is not necessary to rely on personal knowledge. [ 29 ] Rule 13.18 allows an affidavit sworn on the basis of information known to the deponent and his belief that it is true.

Sub-rule 13.18(3) specifically requires an affidavit sworn on the basis of personal knowledge, “if an affidavit is used in support of an application that may dispose of all or part of a claim”. Sub-rule (3) does not apply to an affidavit filed in response . [ 30 ] As well, I am urged to draw an adverse inference from the fact that Mr. Slovak swore the affidavit in reply, but there would be no reason for drawing an adverse inference. He was an appropriate deponent. Furthermore, the nature of the evidence was mostly correspondence between counsel, the existence of which is not in dispute.

Analysis [ 31 ] The remaining question revolves around whether or not defence counsel “participated” in “proceedings” such that the exception in rule 4.33 is in play. [ 32 ] The plaintiff argues, referencing Kreiter v Alberta , 2014 ABQB 349 , 2014 CarswellAlta 935, that since the term “proceeding” is not defined in the Rules of Court, a broad definition is applicable. However, in that case, although a notice to admit was found to be a “proceeding”, the reply to the notice to admit did not admit the things sought.

Master Hanebury concluded that the exchange of the notice and reply “did absolutely nothing to advance the action.” [ 33 ] Here the argument is that the exchange of information with the hope of reaching a settlement amounted to defence counsel “participating” in the “proceedings” such that the action should not be dismissed. [ 34 ] However, the case law is clear that merely discussing settlement, without actually making any progress, does not advance the action. It does not even advance the resolution of the dispute by settlement. Talking about doing something, but not doing it, is simply chatter.

Otherwise, a plaintiff could send a new offer of settlement every two years or so, and if the defendant responded “No”, then there would be settlement discussions that re-set the three-year clock. [ 35 ] Unless the information presented in settlement discussions is something new that places the discussion in a different orbit, one cannot even suggest that the issues have been narrowed. [ 36 ] In Nash v Snow , 2014 ABQB 355 , Topolnisky, J. said at paragraph 47, this:

In my view, neither the settlement offer, nor the counter offer of a without costs discontinuance, effectively reset the clock on delay. I agree that a significant advancement towards resolution can mean advancement to settlement. However, a functional analysis mandates something more than a bare offer to settle in the three year window; it must result in progress of some sort in the action…. The result might have been different if the settlement discussion resulted in a narrowing of the issues or other agreement that streamlined the trial or other process on the resolution continuum….

However, nothing like that happened in the present case. [ 37 ] In my view, however broad the word “proceedings” should be interpreted in this context, it means some activity that might significantly advance the action, as in Kreiter . That is, to reset the three-year clock after the three years have passed something must be done that in and of itself constitutes a significant advance in the action, and defence counsel must participate in it. [ 38 ] That did not happen here. The delivery of the resume did not amount to “proceedings”, and defence counsel did not “participate” in anything.

If he had actually taken an active step that moved the file forward, there might be an argument that he did. For example, if the resume were of more significance and he had examined on it, one might say the claim had been advanced. If he attended at a chambers application and made no complaint about the passage of time, there might be an argument that he participated to the extent required to re-start the clock.

Simply asking if something had been done by the plaintiff, that should have been done three years before, cannot fairly be described as “participating”, even if there are some non-productive settlement discussions that follow. Conclusion [ 39 ] Rule 4.33 is mandatory. Accordingly, the action is dismissed. Costs normally follow the event under

Schedule “C”, but I am aware that a formal offer to settle was made, because that came out in the evidence explaining the history of the case up to the point of the application. That may affect the costs analysis. [ 40 ] Counsel who argued this application were not Counsel handling the dispute at the relevant times. [ 41 ] I am based in Calgary, plaintiff’s counsel is in Calgary, defence counsel is in Edmonton, and the action is a Red Deer proceeding.

In the circumstances, if counsel are unable to agree on costs, they may arrange for a hearing by telephone while I am in Red Deer (so that the record is maintained in the proper judicial centre), or they may agree to make submissions in writing. Heard on the 24 th day of October, 2017. Dated at the City of Red Deer, Alberta this 8 th day of December, 2017. A. R. Robertson, Q.C. M.C.C.Q.B.A. Appearances: Barry Benkendorf Department of Justice Canada for the Applicants (Defendants) Stacy Petriuk Jensen Shawa Solomon Duguid Hawkes LLP for the Respondent (Plaintiff)