Inderpal Singh Sangha Plaintiff - v. -, 2017 ABQB 91

Court of Queen’s Bench of Alberta Citation: Sangha v Alberta (Motor Vehicle Accident Claims Act, Administrator), 2017 ABQB 91 Date: 20170210 Docket: 0401 16558 Registry: Calgary Between: Inderpal Singh Sangha Plaintiff - and - The Administrator of the Motor Vehicle Accident Claims Act Defendant Corrected judgment: A corrigendum was issued on February 13, 2018; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of J.T.

Prowse , Q.C., Master in Chambers _______________________________________________________ [ 1 ] The Administrator applies to dismiss this action under Rule 4.33, alleging that there was no significant advance in the action during the three year period between May 31, 2013 and May 31, 2016 (the “drop dead period”). [ 2 ] The plaintiff, Inderpal Singh Sangha (“Sangha”) was injured in a motor vehicle accident on October 28, 2002.

He commenced this action, as a self-represented litigant, on October 27, 2004. [ 3 ] Sangha asserts that his vehicle was hit and pushed off the road by another vehicle, which then left the scene. The Administrator asserts that this was a single vehicle accident, and that there was in fact no ‘unknown driver’ involved. [ 4 ] The Administrator says that the issue of whether or not the accident involved an unknown and unidentifiable driver is the real issue in dispute, and that nothing occurred in the drop dead period which significantly advanced that issue.

[ 5 ] Sangha responds that there was a significant advance during the drop dead period on this and other aspects of the case, including damages.

Timeline [ 6 ] Following is the timeline of the action: • the statement of claim was filed on October 27, 2004; • the statement of defence was filed on November 8, 2005; • a notice of motion with a supporting affidavit was filed on behalf of the Administrator on March 20, 2007 regarding Sangha’s failure to provide an affidavit of records; • an affidavit of records was filed by Sangha on April 18, 2007; • a second supplemental affidavit of records was filed by Sangha on September 11, 2007; • Sangha was questioned for discovery on January 23, 2008; • a third supplemental affidavit of records was filed by Sangha on February 26, 2009; • a fourth supplemental affidavit of records was filed by Sangha on August 26, 2009; • a continuation of Sangha’s discovery occurred on April 12, 2010; • on November 12, 2010, the Administrator’s counsel wrote to Sangha advising that the Administrator would no longer be assisting Sangha to fulfil undertakings and that Sangha would have to prosecute the action ‘in the normal course of litigation’; • a fifth supplemental affidavit of records was filed by Sangha on May 29, 2012; • a sixth supplemental affidavit of records was filed by Sangha on April 30, 2013; {May 1, 2013 – the beginning of the 3 year drop dead period} • Sangha wrote a letter to former counsel for the Administrator, stating that he had retained Jeffrey Woodruff of Low Glenn & Card as counsel and serving the sixth supplemental affidavit of records, on May 9, 2013; • a notice of change of representation to Low Glenn & Card Barristers & Solicitors was filed by Sangha on June 2, 2013; • Jeffrey Woodruff, then counsel for Sangha, sent a letter to Mr.

Roberts, counsel for the Administrator, serving the notice of change of representation by Sangha, on June 6, 2013; • Mr. Roberts sent a letter to Mr. Woodruff on July 2, 2013, acknowledging service of the notice of change of representation and informing Mr.

Woodruff that the Administrator’s position was that there was no liability and that his instructions were to defend the claim, to trial if necessary; • a notice of change of representation of the Administrator to First West Law LLP was filed by the Administrator on July 2, 2013, which was served the next day; • an informal, without prejudice settlement offer was made by Mr. Woodruff on March 13, 2014, which was rejected by Mr. Roberts, who confirmed that the Administrator wished to proceed to trial on its denial of liability; • a seventh supplemental affidavit of records was filed by Sangha on July 3, 2014.

This was filed and served by Sangha notwithstanding his representation by Low Glenn & Card at the time. In the cover letter Sangha advised of his intention to deliver, in the future, the Sintra Accident Reconstruction Report and the Biomechanical Report. Sangha also answered undertaking # 13; • an eighth supplemental affidavit of records was filed by Sangha on January 30, 2015, and served the next day. Sanga provided the Sintra Report and confirmed his intention to provide the Biomechanical Report.

Sangha also answered undertakings # 12 and # 24; • a ninth supplemental affidavit of records was filed by Sangha on August 21, 2015, and served that same day. Included was the Biomechanical Report. Sangha also answered undertakings # 7, 13, 23, 36, 37 and 43; • a notice of withdrawal of lawyer of record was filed by Low Glenn & Card Barristers & Solicitors on September 15, 2015. Sangha advised Mr. Roberts of this change on October 8, 2015; and • a tenth supplemental Affidavit of Records was filed by Sangha on January 21, 2016. The Administrator’s position that liability is the ‘real issue in dispute’

[ 7 ] The Administrator says that the question of whether there was an unknown driver is the real issue in dispute, and that there was no progress on this issue during the drop dead period. [ 8 ] I disagree with this approach. Damages are as much in issue as liability, and a significant advance on damages qualifies as a significant advance in the action. The Administrator has never admitted the quantum of damages being sought by Sangha.

Comingling of ‘drop dead’ delay and undue delay [ 9 ] Somewhat surprisingly, given that almost 15 years has passed from the date of the accident, the Administrator did not apply, in the alternative, to have the action struck for undue delay pursuant to Rule 4.31. Of course, if the Administrator sought relief under Rule 4.31 then the Administrator would have to discuss what prejudice it suffered as a result of the delay.

The topic of prejudice through delay was not dealt with in this application. [ 10 ] The Administrator argued that a factor in favor of dismissing the action under Rule 4.31 is that steps taken by the plaintiff during the drop dead period could have been taken earlier. In my view that is not a sound argument. The test is simply whether there was a significant advance in the during the drop dead period or not. [ 11 ] A case which might have provided some support for the Administrator’s position, Smith v Alberta , 1996 CarswellAlta 534 (Alta.

Master) , which indicated late compliance by the plaintiff of its own undertakings could not be viewed as a step advancing an action, has been overtaken by the more recent decision in Le v 1055168 Alberta Ltd. , 2013 ABQB 431 , 2013 CarswellAlta 1571 (Alta.Q.B.). [ 12 ] I reviewed the case law on the topic of a plaintiff providing late answers to undertakings in Precision Label Ltd. v Milburn , 2016 ABQB 481 , 2016 CarswellAlta 1641, and at para’s 27 to 29, I came to the following conclusion: Undertakings provided in an arguably tardy fashion can significantly advance an action provided that they are not being provided under a 'year-by-year' scenario where the plaintiff is deliberately stretching out the three year drop dead period.

As I indicated earlier, there is nothing in the record to support the conclusion that Precision was providing answers "year-by-year" in order to extend the usual three year period. And so, we are left back at the initial enquiry, which is simply this - did the answers to undertakings provided by Precision significantly advance the action? [ 13 ] There is nothing in the evidence to suggest that Sangha is deliberately dragging out this action by taking steps sporadically in order to avoid having the action struck under Rule 4.31.

Accordingly I do not consider the fact that Sangha could have earlier provided some of the evidence which he provided during the drop dead period to be relevant. The question is simply whether the action significantly advanced during the drop dead period. I shall now turn to that question. Sangha’s assertions as to a significant advance in the action [ 14 ] Sangha says that providing one or all of the following during the drop dead period constitute a significant advance in the action: (

i) the Sintra Report; (ii) the Biomechanical Report; (

i) answers to undertakings and supplemental affidavits of records. (

i) Provision of the Sintra Accident Reconstruction Report [ 15 ] By way of background, Sangha had already provided the Administrator with an accident reconstruction report prepared by Keith and Associates dated June 17, 2003 (the “Keith Report”) and a revised version of the Keith Report dated March 18, 2009 (the “Revised Keith Report”). [ 16 ] The Keith Report addressed the question of whether the damage to Sangha’s car was consistent with it having collided with a DeVry Institute sign during the accident (as alleged by Sangha), and the mechanics of the collision between the car and the sign. [ 17 ] The Revised Keith Report dealt with whether there was damage to Sangha’s car consistent with it having been struck by another car from the right (as Sangha alleged had caused the accident). [ 18 ] The Sintra Report was initially intended to deal with whether Sangha’s injuries were consistent with the mechanics of the collision with the DeVry sign, but Sintra disagreed with the mechanics of the collision set out in the Keith Report, and so the Sintra Report provided a different conclusion as to the mechanics of the collision.

The Sintra Report did not go on to discuss whether Sangha’s injuries were consistent with the mechanics of collision that it found. [ 19 ] The Sintra report also dealt with, as had the Revised Keith Report, whether the Sangha vehicle after the accident had indications that it had been in a collision with another vehicle from the right (as asserted by Sangha).

Sintra had at its disposal some photographs of the post-collision Sangha vehicle not available to the authors of the Keith Reports, namely, 4 additional photographs taken by Sangha at the scene of the accident and 79 additional photographs taken the Administrator’s expert, Graham Ryan Consulting.

[ 20 ] Similar to the Revised Keith Report, the Sintra Report concluded that it “observed physical evidence [to the Sangha vehicle] …that may have resulted from glancing contact with another vehicle or object” (emphasis added). [ 21 ] It is arguable that the Sintra Report merely affirmed the Keith Reports, albeit with a somewhat different conclusion as to the mechanics of the accident.

Given my conclusion on the next two factors, it is not necessary for me to decide whether the Sintra Report itself significantly advanced the action. (ii) Provision of the Biomechanical Report [ 22 ] Sanga says that the Biomedical Report provided on August 21, 2015 addresses the issue of whether a slip and fall accident which Sangha suffered a few months prior to the motor vehicle accident could have left him with a pre-existing condition, which Sangha asserts was exacerbated in the motor vehicle collision. [ 23 ] The Administrator notes that the Biomechanical Report analyzes the impact of a slip and fall accident that occurred in Sanga’s bathroom on September 2, 2002, roughly two months prior to the motor vehicle accident, and the Administrator acknowledges that this report may have some impact on damages. [ 24 ] In my view, the provision of the slip and fall Biomechanical Report significantly advanced the action. (iii) Provision of answers to undertakings and supplemental affidavits of records [ 25 ] The topics of (

i) answers to undertakings and (ii) supplemental affidavits of records cover the same ground because, whenever Sangha answered an undertaking by providing further documents, he included those documents in a supplemental affidavit of documents. [ 26 ] Neither counsel provided, in their written briefs, detailed arguments concerning the importance of individual answers to undertakings and so neither will I. [ 27 ] The Administrator did make the general observation that these answers to undertakings could have been provided a lot sooner.

As discussed earlier in these reasons, that factor is not relevant in considering whether the answers constituted a significant advance in the action. [ 28 ] Sangha’s counsel, in his written argument, refers to paragraphs 25 to 33 of Sangha’s affidavit of December 19, 2016, which asserts that Sangha answered the following outstanding undertakings during the drop dead period: • Undertaking 7 - by providing Dr. Unarket’s note; • Undertaking 10 - by providing Dr. Bhullar’s notes; • Undertaking 12 - by providing Dr. Wong's notes; • Undertaking 13 - by providing: Dr.

Ghuman's chart notes, two Patient Diagnostic Reports showing an Admission Date of February 18, 2002 authored by Dr. Hall, two letters to Dr. Nicholas Mohtadi by Drs. Philip Chen and Jay Zelazo, two confirmations of referral from Dr. Bablns to Dr.

Wong dated October 4,2004 and October 26, 2005, and a series of doctor's charts. • Undertaking 23 - by providing four appraisals or estimates prepared by or for Allianz Canada with respect to repairs on the Sangha vehicle; • Undertaking 24 - by providing a City of Calgary detailed event report confirming attendance of EMS at the accident scene on October 28, 2002; • Undertaking 37 - by providing Dr. Quan's letter dated August 6, 2010; • Undertakings 36 and/or 43 - by providing a diagnostic imaging report from Dr. John Lysak to Dr.

Oliver David dated May 30, 2011; • Undertakings 36 and/or 43 – by providing an MRI study of the hips and gluteal region from Dr. Benjamin Wong to Dr. Oliver David dated March 26,2013. [ 29 ] In my view, these answers to undertakings, dealing largely with damages, significantly advanced the action. Conclusion [ 30 ] I dismiss the defendant’s application to dismiss the action for delay pursuant to Rule 4.33. If the parties cannot agree on costs of the application they may approach me for a ruling in that regard. Heard on the 10 th day of January, 2017.

Dated at the City of Calgary, Alberta this 9 th day of February , 2017.

J.T. Prowse, Q.C. M.C.C.Q.B.A. Appearances: Nicholas Lo Pelletier Litigation for the plaintiff Michael Cashion First West Law LLP for the defendant _______________________________________________________ Corrigendum of the Reasons for Judgment of J.T. Prowse, Q.C., Master in Chambers _______________________________________________________ The case name has been corrected: • from “Sangha v Alberta (Administrator, Motor Vehicle Accident Claims Act)” • to “Sangha v Alberta (Motor Vehicle Accident Claims Act, Administrator)”. Please replace all copies of the judgment with this corrected version.