Kehew Construction Ltd v Kehewin Cree Nation, 2017 ABQB 763

Court of Queen’s Bench of Alberta Citation: Kehew Construction Ltd v Kehewin Cree Nation, 2017 ABQB 763 Date: 20171208 Docket: 1003 14867, 1103 05257 Registry: Edmonton Between: Docket: 1003 14867 Kehew Construction Ltd Plaintiff - and - Kehewin Cree Nation and Minister of Indian & Northern Affairs Canada Defendants And Between: Docket: 1103 05257 Kehewin Cree Nation, Russell Everett, Raymond Gadwa, Ernest Gadwa and Eric Gadwa Plaintiffs (Defendants by Counterclaim) - and - Kehew Construction Ltd Defendant (Plaintiff by Counterclaim) _______________________________________________________

Reasons for Decision of W.S. Schlosser , Master, Court of Queen's Bench of Alberta _______________________________________________________ Introduction [ 1 ] This is an application for a procedural order following dismissal of an application to strike for delay. [ 2 ] On July 25, 2017, Kehewin took out a motion to strike for delay. The application was heard August 29, 2017. The decision was reserved. Supplementary materials were filed August 30 and September 8.

The reserved decision came out September 18, 2017. [ 3 ] The reasons found that the answers to undertakings provided November 5, 2014, counted as a significant advance. Thirty- five undertakings remain unanswered. The Court expressed displeasure that a Rule 4.33 applicant should rely, in part, on its own intransigence as a basis for the application. [ 4 ] The order dismissing the application to dismiss for delay has been appealed. The appeal is scheduled to be heard in the summer of 2018.

There was no formal application for a stay in the interim. [ 5 ] In the meantime, three years from November 5, 2014 have come and gone. Kehewin has launched a second application to strike for delay. This one is returnable December 12, 2017. Discussion 1. Should the time between the date of the application and the time that it is heard count against a Respondent in a 4.33 Application? [ 6 ] In Trout Lake Store Inc v Canadian Imperial Bank Commerce , 2003 ABCA 259 (an old Rule 244.1 case), Madam Justice Conrad (for the Court) held: In

summary, I believe the appropriate approach on a 244.1 application to dismiss is as follows: 1. The proceedings should be examined as at the date of the application to dismiss for want of prosecution pursuant to Rule 244.1. . . . These steps will avoid the foot race to the courthouse and it will encourage the party seeking to process its claim to proceed in an expeditious manner throughout. At the same time, it will encourage the non-delaying party to act in a timely basis and, at a minimum, to object to any further action taken by the delaying party at the first opportunity. [ 7 ] This is sound logic.

The time between the date of the application and the time it is heard should not count. Any delay, especially for a special application, is essentially an institutional delay and should not be counted against the Respondent. The time between the date of the application and the time that it is heard counts as a kind of standstill period to be tacked on to the end. 2. Should the time between the application and the reserved decision count? [ 8 ] This time period does not count in the Jordan context for the purpose of 11(

b) of the Charter : • R v Manouni , 2017 ABCA 347 at paras 29 , 55-56, per Watson JA and paras 71, 84-94 per Slatter JA. • R v Lavoie , 2017 ABQB 66 at paras 38-39 , per Belzil J and • R v Kehler , 2001, 2017 NBQB 96 at paras 29-33 , 43-80, 95,104. [ 9 ] I do not think it should count here. [ 10 ] In my estimation, there was essentially a standstill in this case between the date the application was filed, July 25, 2017 to the date of the reserved decision September 18, 2017 (at the earliest). The order giving effect to the decision was filed September 28, 2017.

The effect of the standstill is to tack time onto the end of the period within which something is to be done. If we add this roughly two months’ time period on to the end, the three year deadline for an advance, that would otherwise have expired on November 5, 2017, has not yet expired. The application for a Procedural Order is not out of time. [ 11 ] The application seeks: 1. An Order that the application by Kehew Construction Ltd. for

summary judgment and the application to compel answers to undertakings (“Kehew’s applications”) are adjourned until the final determination of the Rule 4.33 application.

2. An Order that from the date of the Rule 4.33 application until final determination of the application, the time running for a further Rule 4.33 application shall be suspended. 3. Costs in favour of the Applicant Kehew Construction Ltd. as against the Respondent Kehewin Cree Nation. 4. Such further and other relief that this Honourable Court deems just. Decision [ 12 ] I am unwilling to simply put this action on hold while the parties wait for an appeal, especially in the absence of a stay. It is time that this matter is moved towards disposition or trial: 1.

The 35 answers to undertakings said to be pending are to be answered within 30 days from the date of this Order or the Defence and Counterclaim are struck without further order. 2. If the application for

summary judgment cannot be heard in ordinary chambers, the applicant’s materials for their

summary judgment application are to be filed and served no later than February 28, 2018 (or such date as provided by further order). The defendant’s materials are to be filed and served within 14 days of service of the applicant’s materials. The parties are then to request that their matter be scheduled for the first mutually available special date and, in the interim, that the matter be placed on the wait list. 3. If the matter cannot be disposed of summarily, the parties are to agree on a

schedule for the completion of questioning, including questioning on undertaking answers, the exchange of expert reports and completion of a Form 37, or return to the Court for direction. [ 13 ] Kehewin is free to apply for a stay of the action and of the steps pending appeal if it wishes. [ 14 ] The parties may speak to costs. Dated at the City of Edmonton, Alberta this 8 th day of December, 2017. W.S. Schlosser M.C.Q.B.A. Appearances: Coralie J Mohr Witten LLP for Kehew Construction Ltd Kenneth Slupek Hladun & Company for Kehewin Cree Nation, Raymond Gadwa, Ernest Gadwa and Eric Gadwa