Alderson v Wawanesa Life Insurance Company, 2019 ABQB 894

Court of Queen’s Bench of Alberta Citation: Alderson v Wawanesa Life Insurance Company, 2019 ABQB 894 Date: 20191122 Docket: 1201 02744 Registry: Calgary Between: Daniel Alderson Plaintiff/Appellant - and - The Wawanesa Life Insurance Company, Technicoil Corporation and Essential Energy Services Ltd. Defendants/Respondents _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice R.E. Nation _______________________________________________________ Appeal from the Memorandum of Decision by Master J.L. Mason, Master in Chambers Filed on the 13 th day of February, 2019

[ 1 ] This is an appeal from the February 13, 2019 decision of Master Mason, 2019 ABQB 96 . In that decision, she granted an application under rule 4.33(2) of the Alberta Rules of Court , Alta Reg 124/2010 to strike out the action of the plaintiff against all defendants, based on the fact that no steps had been taken for three years. The Issues [ 2 ] The appellant plaintiff, Mr. Alderson, argues that the Master erred in that decision, and asks that the action be restated. The respondents argue that the decision was correct.

In the alternative, if it is reversed; they ask this court to consider the second part of the original application they argued before the Master (which she did not decide), and strike the action under rule 4.31. [ 3 ] The standard of review that applies to the decision of a Master, the applicable law to the rules around delay, and the relevant facts are not in issue.

The sole issue in the appeal, or in considering the application under rule 4.31, is how the law should be applied to the facts in this case. [ 4 ] The standard of review on the decision of a Master is correctness: Bahcheli v Yorkton Securities Inc , 2012 ABCA 166 . The Appeal on the rule 4.33(2) Decision [ 5 ] The relevant facts to the rule 4.33(2) appeal are easy to articulate. The only thing that could be a step in the three year period in issue occurred on July 27, 2015.

On that date, the officer of the defendants Technicoil and Essential answered his undertakings that were given at a questioning that was held on February 12, 2013. If that was a "significant advance in the action" under rule 4.33(2) then the appeal must be allowed. If it was not, the appeal must be dismissed.

The Law [ 6 ] The applicable part of rule 4.33 (2) states: “if three or more years have passed without a significant advance in an action, the Court, on application, must dismiss the action as against the applicant...”. [ 7 ] Case law has dealt with what is a "significant advance" in an action, and particularly the question here: whether the provision of answers to undertakings is a significant advance. [ 8 ] It is clear that the response to an undertaking is usually a thing that materially advances the action: Ravvin Holdings Ltd v Ghitter , 2008 ABCA 208 .

The Court of Appeal's reasoning in making this statement is that an undertaking given at questioning is an extension of the questioning, or discovery process, which is given at a time when relevant information requested is not readily at hand at the questioning. It is often important to the advancement of the lawsuit, the same way questioning is; particularly where the existence of the information, or its importance, was not known prior to questioning. The significance of an undertaking is that it must be received before entering the matter for trial.

As noted by the Court at para 24: "No one would seriously deny that an examination for discovery is a thing that materially advances an action, and we find no reason to treat a response to an undertaking differently". [ 9 ] The Court of Appeal did indicate that there could be exceptions to that general rule.

For example, a response to an undertaking may not advance the action when it is merely perfunctory, nothing hinges on the response, or if the party has deliberately dragged out the process of providing it to delay the lawsuit: para 25. [ 10 ] Various Justices at the Queen's Bench level in Alberta have followed the Ravvin case, in determining whether the provision of answers to undertakings materially advanced the action before them. [ 11 ] Justice Graesser in Le v 1055168 Alberta Ltd , 2013 ABQB 431 , indicated that the analysis of whether an action has been significantly advanced does not end with a determination that a step has been taken.

Rather, the quality of the step - as to whether it advances the action - must be analyzed in the context of the lawsuit. The case held that it would be a rare situation where compliance with an undertaking would be characterized as perfunctory. The reasoning is that it is not the person producing the undertaking that asks for the undertaking, it is opposing counsel who is required to ask relevant and material questions. Although not always the case, the presumption in these applications is the Court should presume that counsel has been asking only questions that they consider important.

The undertaking is requested because the answer or information is important to the questioner. [ 12 ] Graesser J. stated that in an application such as this, the onus is on the applicant to demonstrate why compliance with an undertaking sought by the applicant should not be considered to have significantly advanced the action. In Le , eleven undertakings had been requested by the defendant of the plaintiff, with the applicant defendant subsequently arguing that the undertakings provided by the plaintiff had not materially advanced the lawsuit.

This onus was also followed by Gates J. in JDC Contracting Ltd v Mosse Mountain Equipment Inc , 2015 ABQB 98 . Both of these cases held that the provision of the undertakings in those actions was something that did advance the lawsuit. [ 13 ] In Altex International Heat Exchanger Ltd v Foster Wheeler Limited , 2018 ABQB 620 , the defendant was asking to strike out the action of the plaintiff, arguing that the plaintiff's provisions of answers to undertakings was "perfunctory" and did not significantly advance the action.

Mandziuk J. looked at answers provided by the plaintiff, which he found were not acceptable, as the plaintiff basically either would not answer or stated it had no further or better information than provided in answers given a few years earlier. He found the answers were provided just before the expiry of the three year period, and moved the matter no closer to trial. [ 14 ] In Davenport Homes Ltd v Cassin , 2015 ABQB 138 at para 31 , Shelly J commented that she found the answers to the plaintiff's undertakings were not complete and were in effect "non-answers".

She determined they did not materially advance the action.

[ 15 ] In 1406998 Alberta Ltd v Dorbandt , 2017 ABQB 321 , Master Schlosser characterized answers to undertakings by the plaintiff as “ancillary events”, or were merely a “gloss on what had gone before”, as opposed to events that helped to determine the issues between the parties. [ 16 ] A number of cases have examined steps other than answering undertakings, to see if the action or step was sufficient to advance the action.

These cases take a functional approach when looking at the steps taken; by looking at the issues in dispute, and assessing factors including the nature, value and quality, genuineness, timing and - in certain circumstances - the outcome of what occurred as informing on whether there had been an advancement. The focus is on the step taken and its effect on the litigation, rather than on its form. See: Nash v Snow , 2014 ABQB 355 para 30 , Weaver v Cherniawsky , 2016 ABCA 152 para 18 .

Application of the Law to the Facts of This Case [ 17 ] The salient feature of this case is that the applicant defendants are arguing that it is the undertakings of one of the defendants that do not advance the litigation. It is clear they have the onus to prove this fact, in order to be successful. However, the contextual lens in which the answers have to be examined is that the undertakings were given and provided by the applicant party, a defendant, it is not undertaking answers provided by the plaintiff that are under review.

This distinguishes this case significantly from the cases summarized above, where it was the plaintiff's answers to undertakings that were under review. [ 18 ] One starts with the presumption that the provision of undertaking answers is a significant step. The context is that Mr. Newman, the officer of Technicoil and Essential, was questioned on February 12, 2013, one day after the questioning of Cheryl Sonley, a past employee of Technicoil, but at that time an employee of Essential. Ms. Sonley was the only person questioned by the plaintiff before Mr. Newman was examined. Mr.

Newman had no personal involvement in the matters in issue in this lawsuit, and thus had to inform himself and rely on the information of others. He had been present at the questioning of Ms. Sonley. [ 19 ] Sixty one undertakings were given in the questioning, none of which were answered until the plaintiff applied for and obtained a court order on April 27, 2015 directing the undertakings to be answered by June 2, 2015.

The defendant ultimately provided the answers on July 27, 2015, more than six weeks after the ordered deadline. [ 20 ] The parties filed pages of argument as to whether the answers advanced the action, with the plaintiff arguing their relevance and the defendants arguing they were perfunctory and did nothing to advance the action.

The Master spent a considerable part of her written decision going through groups of undertakings and analyzing whether they added any more information to what was already disclosed in documents and known to the plaintiff at the time of the 2013 questioning. [ 21 ] With respect, this approach missed the big picture, and missed the fact that the previous authorities examined conduct of the plaintiff and undertakings provided by the plaintiff.

I find it difficult to accept that the jurisprudence in this province is that a defendant who provides answers to undertakings from the only questioning of its corporate officer, pursuant to a court order, can argue that the inadequacy or content of its answers, means the undertakings did not materially advance the lawsuit. The presumption is that answers to undertakings do advance the action. The basis of this as articulated by the Court of Appeal is that one needs questioning and undertakings to be finished to set the matter for trial.

A detailed analysis of the answers of the corporate officer in this case is not informative, as the undertakings form part of the first opportunity for the plaintiff to know the extent of the knowledge of the corporation.

The officer did not have personal involvement, so when his answer to an undertaking is that the corporation has no further information on a matter, that does materially advance the lawsuit, as it informs the plaintiff to know how to treat the documentary evidence provided, and what else, if anything, the corporation has been able to find out, or will say about the documents. [ 22 ] The irony of letting the defendant advance this argument is illustrated by the following answer to undertaking.

The officer’s first undertaking was "to confirm, pursuant to rule 5.29, that the evidence provided by Cheryl Sonley forms part of the information of Technicoil". Rule 5.29 provides that the evidence of Ms. Sonley can only be read-in as evidence at trial if the corporate representative acknowledges that the evidence forms some of the information of the corporation. The rule puts certain duties on the corporate representative if he disbelieves or disagrees with some or all of the evidence of a corporate witness.

The answer to the undertaking was: "Technicoil objects to the omnibus scope of this question and requires specific question and responses to be identified so that it can properly respond". The defendants, as applicants, argue that this was non-responsive so it did not significantly advance the litigation. I find it difficult to accept that they can argue that a “non-response” to a legitimate inquiry at the first questioning of the officer in this action, means the answer to the undertaking was perfunctory or did not advance the action. [ 23 ] I do not intend to go line by line through the sixty one undertakings.

The answers speak to the corporations’ knowledge, or lack of knowledge, including information about: the positions of the employees referenced in or who had written various produced documents; and whether the corporation could determine what had happened in some conversations or meetings.

These were relevant questions the plaintiff wished to have answered about the companys’ knowledge or lack thereof. [ 24 ] The issue of onus and the big picture, and the ability of the defendant to rely on its own answers to undertakings as not advancing the litigation was not argued or addressed in the application before Master Mason. She conducted a very detailed review of the undertakings, and looked to see if they advanced the plaintiff's case, in the context of the central question; whether Mr. Alderson was temporarily laid off, to be recalled within 120 days, or terminated from his employment.

The analysis missed the big picture view, and the fact that this was the first time the officer had answered any undertakings from a questioning that is a right of the plaintiff in gathering facts and information about the information of the corporate defendant. [ 25 ] Clearly if within three years of the undertakings being answered, the plaintiff had brought an application asking that the officer specifically address line by line, question by question the evidence of Ms.

Conley (as it seems the defendant wanted the plaintiff to do), it could not possibly lie in the mouth of the defendants to argue that the application could not be brought, as the lawsuit should have already been struck, as the “non-answer” had not materially advanced the lawsuit. The acceptance of the evidence of the only employee questioned as knowledge of the corporation, and its adoption or the existence of contrary information within the defendant company's knowledge is material to a lawsuit.

[ 26 ] As a result, I find that the defendant's response to court ordered undertakings is a step which materially advanced this lawsuit, when looked at in the context of this lawsuit and in the context of the information provided; what the company did or did not know. [ 27 ] As a result, I would set aside the order of the Master. Analysis under rule 4.31 The Law [ 28 ] Rule 4.31(1) states that:

(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. [ 29 ] The Court of Appeal set out a six-part analysis to consider in an application of this type in Humphreys v Trebilcock , 2017 ABCA 116 .

While the approach taken in Humphreys demonstrates a helpful approach to analyzing delay, there is no universal mandatory formula to be followed: TransAmerica Life Canada v Oakwood Associates Advisory Group Ltd , 2019 ABCA 276 para 15 ; nor must the criteria be approached in any specific order: Arbeau v Schulz , 2019 ABCA 204 para 23 . [ 30 ] Several cases have considered this progression and were provided by the parties. Clearly, as the defendants argued, some of these cases dismiss actions after as little as three or four years.

See: Stein v Greene , 2017 ABQB 590 , Kametani v Holman , 2018 ABQB 18 , and Tamaya Wynd Estates Inc v Condominium Corp 0727774 , 2018 ABQB 466 . However, it must be kept in mind that it is not simply the length of time that has transpired, the time is to be evaluated in terms of the type of lawsuit, the pleadings and any prejudice, real or presumed. Having said that, it is clear that delay in the court system is a problem and it is not to be condoned. Chronology of Events [ 31 ] In looking at the issue of delay, it is necessary to look at the steps taken, in the context of the circumstances.

The following activity occurred in the action: ▪ March, 2012 - statement of claim filed and served ▪ March 28, 2012 - Technicoil and Essential Energy noted in default ▪ April 10, 2012 -Wawanesa defence filed ▪ April 18, 2012 - order granted setting aside noting in default ▪ May 15, 2012 -Technicoil and Essential Energy defence filed ▪ August 2012 - exchange of affidavits of records complete ▪ October 2012 - questioning scheduled, then cancelled by Mr. Alderson ▪ February 11, 2013 - questioning of former Technicoil employee Ms.

Sonley ▪ February 12, 2013 - questioning of Technicoil and Essential Energy corporate representative Mr. Newman ▪ April 10, May 28, 2013 - questioning of Mr. Alderson ▪ August 16, 2013 - Wawanesa's responses to written interrogatories served ▪ November 5, 2013 - Counsel for Mr. Alderson files Notice of Withdrawal ▪ September 20, 2014 -Wawanesa files application to compel Mr. Alderson's responses to undertakings ▪ September 29, 2014 - new counsel goes on the record for Mr. Alderson ▪ October 9, 2014 - Mr. Alderson provides answers to undertakings ▪ January, February, March 2015 - Mr.

Alderson asks Technicoil to provide responses to undertakings ▪ March 27, 2015 - application filed by Mr. Alderson to compel Technicoil's responses ▪ April 27, 2015 - consent order directing Technicoil's responses by June 2, 2015

▪ July 27, 2015 - Technicoil provides responses to undertakings ▪ April 30, 2018 - current counsel goes on the record for Mr. Alderson ▪ May 8, 2018 - Mr. Alderson serves "Supplemental Affidavit of Records #2" disclosing medical assessments conducted in April and May, 2018 ▪ May 29, 30, 2018 - Mr. Alderson files and serves

summary judgment application against Technicoil and Essential Energy ▪ May 30, 2018 - Mr. Alderson serves unsworn "Supplemental Affidavit of Records #3" disclosing reports from clinical neuropsychologist, gastroenterologist and Blue Cross certificate, along with copies of records ▪ June 8, 2018 - Wawanesa files application to dismiss for delay ▪ June 22, 2018 - Technicoil and Essential Energy file application to dismiss for delay ▪ June 26, 2018 - consent order adjourning Mr. Alderson's

summary judgment application pending determination of dismissal applications Additional Affidavit Evidence [ 32 ] Affidavits were filed by: Daniel Alderson, the plaintiff; Jeff Newman, officer for the defendants Essential and Technicoil; and Kim Lafleche, an employee of the defendant Wawanesa. The evidence relates to the delay and prejudice aspects of this application. Evidence of Mr. Alderson [ 33 ] Mr. Alderson swore that his previous counsel was forced to take time away from work for much of 2016 and into 2017 due to complications from Crohn's disease.

Following counsel’s major intestinal surgery on February 27, 2018, he advised the plaintiff that he should find a new lawyer, due to that counsel’s health issues. This advice was between February and April, 2018. On April 30, 2018 new counsel came on record. [ 34 ] Medical information attached to the affidavit evidence confirms that Mr. Alderson was in multiorgan failure in 2010 and hospitalized from July 8 to November 9, 2010, during which he was in a coma for 43 days.

Assessment of his medical condition conducted in the spring of 2018, provides opinions in relation to chronic fatigue, pain, depression and anxiety symptoms reported by Mr. Alderson. [ 35 ] Mr. Alderson lives with his parents, has limited CPP disability income ($722 a month) and deposes that he has been challenged economically in getting legal counsel. He was diagnosed with Celiac disease in 2016 and had a procedure on April 18, 2016 associated with that diagnosis. Evidence of Ms. Lafleche [ 36 ] Ms.

Lafleche deposed that it has been five years since responses to written interrogatories were provided by Wawanesa and it would be difficult to follow up on responses. The reason provided was that one of the individuals at Wawanesa who assisted with the plaintiff's file retired on September 30, 2014. In addition, the policy was a self administered policy and so Technicoil was directly responsible for the administration of the policy. Thus, Wawanesa has limited information and has to rely on Technicoil in terms of the administration of the policy.

As Technicoil is no longer in business, the delay will impact Wawanesa's ability to defend the claim. [ 37 ] Ms. Lafleche confirmed in her cross-examination on affidavit that the main two individuals that Wawanesa dealt with at Technicoil or Essential were Cheryl Sonley and Lata Parmar. In addition, Wawanesa had dealings with Melanie Rokkochy, Lisa Pitrie and Rani Ashton. Ms. Lafleche was aware in 2013 that Technicoil had sold its drilling operations in November 2012, as that was testimony given at the examination of Mr. Newman at the questioning she attended in 2013. Evidence of Mr. Newman [ 38 ] Mr.

Newman deposed that effective April 4, 2011 through a plan of arrangement, Technicoil became a subsidiary of Essential. When he was questioned in February, 2013, Technicoil was a going concern, but it had already sold its drilling operations, of which Mr. Alderson had been an employee. [ 39 ] As of January 1, 2013, Technicoil ceased carrying on business and its remaining employees were transferred to Essential. Due to layoffs, there are currently no employees of Essential who were employees of the drilling division or human resources group of Technicoil in the 2009-2010 time period.

Cheryl Sonley ceased to work for Essential in December 2013, as did Lata Parma in April 2016. Application of the Law to the Facts [ 40 ] In assessing the application to strike this statement of claim for delay, the easiest way to articulate the analysis is to go through the six questions set out in Humphreys , although I have reserved the order of the fourth and fifth steps in the analysis to avoid duplication of my reasoning.

1. Has the non-moving 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? [ 41 ] When a review is undertaken of the steps in this litigation, I find there is nothing between the years of 2012 to mid-2015 to suggest that the time the lawsuit was taking was unreasonable. However, from July 27, 2015, to May 8, 2018 there were no material steps taken in this action. New counsel had became involved, and there was a flurry of activity on the file, including medical assessments, document production, and the

summary judgement application. When one looks at what was achieved from 2012 to the date the application to strike was filed, June 8, 2018 (a period of just over 6 years) the plaintiff has failed to advance the action to the point on the spectrum that a litigant acting reasonably would have attained. [ 42 ] The plaintiff’s counsel argued that as this is a disability action, it is a claim that by its nature requires some passage of time to determine the long term prognosis. There is no information to suggest that argument applies in this case.

Here, the information is that the disability was significant in 2010 and 2011 with extensive hospitalization. There is no evidence of developments in 2015 to 2018 that suggest the disability of this individual somehow crystalized during that period, or that he would be unable to instruct counsel. The Celiac disease diagnosis does not indicate any significant hospitalization or inconvenience that would interfere with the prosecution of this action. 2. Is the shortfall or differential of such a magnitude to qualify as inordinate? [ 43 ] Having found delay, I must next consider whether this delay was inordinate.

"Inordinate" was defined in Humphreys at para 120 to be when "the differential between the norm and the actual progress of the action is so large as to be unreasonable and unjustifiable". The passage of almost three years after receiving the answers to the undertakings before taking any steps is inordinate, as that amount of time falls short of what would be reasonable in advancing litigation.

Again, from the point when the rule 4.31 and 4.33 applications were brought, approximately 6 years had passed with the litigation having failed to progress to where it comparatively should have been, given the nature of the claim. I find this to be much in excess of what is reasonable given the nature of the action and the circumstances of this case. [ 44 ] Counsel for Mr. Alderson argues that the defendant Technicoil did not produce its undertaking responses until some twenty- eight months after Mr. Newman's questioning, and that has to be considered in looking at delay.

TransAmerica Life Canada at paras 27 and 28 specifically looks at defence delay. While recognizing that the plaintiff has the primary obligation to move litigation forward, there are Alberta authorities that indicate that defence delay is relevant, in deciding if defence delay is inordinate or excusable, and in assessing prejudice. However, here it is the almost three years of inactivity by the plaintiff that is under scrutiny as the delay period. [ 45 ] Having found that the delay in this instance is inordinate, I turn to whether it is excusable. 3.

If the delay is inordinate, has the non-moving party provided an explanation for the delay? If so, does it justify inordinate delay? [ 46 ] The explanation given by the plaintiff for the delay from 2016 to the spring of 2018 is the illness of his counsel. The plaintiff's evidence of his own health restrictions does not explain an almost three-year period of no activity. He indicated he did try to contact counsel, but counsel was not available due to counsel's medical condition. [ 47 ] No medical evidence was produced about the counsel's medical condition; undertakings in relation to this were refused.

The Court of Appeal in Travis v D&J Overhead Door Ltd , 2016 ABCA 319 appears to suggest that the onus lies with the plaintiff here to provide evidence about how disabling the counsel's illness is, if he was practicing law during the relevant period: paras 159 to 163. [ 48 ] When I review the evidence, this explanation does not justify the inordinate delay. 4.

If the moving party relies on the presumption of significant prejudice created by rules 4.31(2) has the non-moving party rebutted the presumption of significant prejudice? [ 49 ] Rule 4.31(2) provides that where an applicant has established "inordinate and inexcusable" delay, then significant prejudice is presumed. However, it is still open to the plaintiff to rebut this presumption. In instances where the presumption is not engaged, the applicants may establish that they have suffered actual significant prejudice.

The distinction between the two 'types' of delay was recently commented upon by our Court of Appeal, in Arbeau , at para 35 : Rule 4.31 distinguishes between "delay" (rule 4.31(1)) and delay that is "inordinate and inexcusable" (rule 4.31(2)). In both cases, an action may be dismissed if significant prejudice is established. However, in the case of "delay", the onus is on the moving party to establish that they suffered significant prejudice.

In the case of delay that is "inordinate and inexcusable", there is a rebuttable presumption that significant prejudice was suffered "unless the nonmoving party has proven on a balance of probabilities that the moving party has not suffered significant prejudice" ( Humphreys at para 149 ). It is, therefore, necessary to consider what sort of delay is at issue in this action. [ 50 ] Having found inordinate and inexcusable delay in the case before me, significant prejudice is therefore presumed.

However, I find that the plaintiff has demonstrated that despite this presumption, there is insufficient prejudice to warrant striking out the claim.

[ 51 ] The prejudice in this instance relates to the fact that certain individuals are no longer employees of the defendants, as well as to the fact that witness memories fade over time. [ 52 ] Firstly, addressing the evidence of Mr. Newman, it is clear that by the time the claim was filed, Technicoil was a subsidiary of Essential. When he was questioned, Technicoil had already sold its drilling operation. Cheryl Sonley when examined in 2013 had left Technicoil in 2011 and later returned to work for Essential. The plaintiff submits that the evidence of Mr.

Newman shows little specific prejudice due to the passage of time that did not already exist in 2013. He referenced Mr. Newman’s answers to undertakings, and indicated that the responses to undertakings in 2015 shows that most of the undertakings were not capable of response since there were no employees of Technicoil who could assist in providing any information in regard to the questions. [ 53 ] What Mr.

Newman did not discuss in his affidavit was the situation when the undertakings were given in 2013, which would be the relevant time to consider, as delay by the defendant is relevant in looking at striking under this rule. He was able to answer all the undertakings in terms of the time frame during which certain key employees were employed at Technicoil, and also to give the last known contact information for several. It is clear from the undertakings that inquiries were made of Ms. Parma, who gave information that informed some of the answers.

The undertaking to give the last known information about Jill Carruthers was not answered, it was refused. There is no indication it is now known. [ 54 ] Secondly, addressing the evidence of Wawanesa, the fact that the policy was self-administering means Wawanesa may depend on the evidence of some Technicoil employees to supplement or explain the documents produced in the action. Wawanesa in 2013 at the questioning would have been aware of the situation with Technicoil and its operations. There is no difference in its situation in 2019 from 2013.

In addition, although the individual that assisted with the plaintiff's file has retired, there is no suggestion that she is not available, or her whereabouts are not known in terms of testifying at trial if necessary. [ 55 ] I accept the plaintiff's argument that this is not a case where the passage of time and the prejudice of fading memories applies as it may to a generic situation, as the key witnesses were not located or employed even at the time of questioning.

The defendants have not identified anyone they feel is a key witness who is unavailable or could not be found. [ 56 ] The plaintiff points out that this is not a case that relies solely on the evidence of employees, there are documents generated by both Wawanesa and Technicoil that outline the insurance coverage, and the documentation in relation to benefits paid, benefits denied and records of employment. The plaintiff referenced the affidavit he swore in support of the

summary judgement application, which was filed before the applications to strike were filed. In that affidavit, he sets out various documents of enrollment in insurance plans, and communications about his claim. It is an important consideration that there are documents that have been produced in terms of communications between the Plaintiff and Technicoil and Wawanesa. This is not a case that will be run solely only on memories of employees, although some oral evidence may be called to supplement the document trail.

It cannot be said that the issues raised in this lawsuit would not be known to the officers who were amassing the documents and answering questions to undertakings. [ 57 ] As a result, I find the plaintiff has rebutted the presumption of significant prejudice. As with many disability claims, the insurer has a file. It has documentation in terms of communications with Mr. Alderson and Technicoil. Mr. Alderson's employee file is available, along with his Record of Employment, and some other written documentation pertinent to his employment.

What may be issues that arise from delay in many lawsuits, were already there in this case at the time of questioning in 2013. That the defendants may not have taken steps to contact employees or interview them at that time, when they knew the issues and undertakings were made, is not a complaint they can now advance. I am satisfied that the evidence supports the plaintiff's argument to the standard required. 5.

Has the moving party demonstrated significant prejudice? [ 58 ] If the presumption under rule 4.32(2) did not apply, or was not relied upon by the moving party, the Court would consider whether the applicants have established actual significant prejudice caused by the delay. Absent any presumption, the onus lies with the defendants to demonstrate significant prejudice. [ 59 ] Given the evidence and arguments reviewed above, I find that although the applicants have established delay, they have failed to demonstrate that the delay has caused significant prejudice.

Based on the evidence, I do not find that the delay has impaired a sufficiently important interest of the defendants' so as to justify overriding the plaintiff's interest in having this matter adjudicated by the court. Significant prejudice as a result of the delay has not been shown by the defendants, as many of the challenges they now identify in defending the lawsuit existed in 2012 and 2013. 6.

If the moving party has met the criteria for granting relief under rule 4.31(1), is there a compelling reason not to dismiss the non-moving party's action? [ 60 ] Rule 4.31(1) is discretionary in its language, stating that a Court may dismiss the claim or make a procedural order. The discretionary language is in sharp contrast to rule 4.33(2), affectionately referred to as the "drop dead" rule.

Had I found that significant prejudice due to delay existed, I would have had to determine whether there was any reason not to dismiss the action. [ 61 ] Counsel for the plaintiff referenced the case of Goldring v Blue Cross Insurance Company of Canada , 2017 ABQB 618 . He argued that as this is a disability case, some of the considerations there are relevant. There, the Master found most of the delay was caused by the insured, but he looked at it through the lens of the circumstances where the plaintiff was unable to work and did not receive disability benefits, the very thing in issue in the lawsuit.

He decided that he could not find the delay inexcusable, and thus did not decide if there was inordinate delay. He made comments about the documentary nature of the case. [ 62 ] Goldring was dealing with different facts from this case, but the context of a disability claim is a consideration. A reason not to dismiss the plaintiff's action here is that he has provided evidence that supports his medical situation, and that he is battling depressive issues. On top of that, he clearly had a counsel from 2016 to 2017 who was dealing with illness, that was a barrier to the plaintiff when

he called counsel to advance the lawsuit. Once he was advised to get new counsel, he did so and that counsel obtained and filed updated medical information and filed a

summary judgement application, all active steps to try to obtain a resolution of the matter. All this was done before there was any suggestion that the defendants wished to bring an application based on delay. The steps taken were not perfunctory, the affidavit in support of the

summary judgment application is a fulsome chronology of the claim, with attached documents. This was provided to the defendants in conjunction with a detailed functional capacity assessment, a psychologist's report and an updated MRI report, all produced in the spring of 2018. [ 63 ] As a result, there is a compelling reason not to dismiss the non-moving party's action.

The documentary aspect of the case, the type of action, the action of the defendants Technicoil and Essential in not answering undertakings for a substantial period of time (and then, only as a result of a court order, the deadline of which was not met), and the significant steps taken by the plaintiff's new counsel in 2018 to get this action back on track, would lead me to exercise my discretion not to strike, and allow this action to proceed. [ 64 ] Generally, strict deadlines would be given to get this action back on track.

The plaintiff took steps to do exactly that in the spring of 2018, before there was any suggestion by the defendants that they would apply to strike the action. [ 65 ] As a result, the application for

summary judgement should proceed. In the event it is not set down for a hearing (at a time the Court has available) within two months from this decision or the disposition of an appeal, if there is one, then a litigation plan is to be agreed on by the parties to move this matter to completion, including any attempt at alternate dispute resolution that would be necessary before trial. If a litigation plan cannot be agreed upon, a case conference should be scheduled. Conclusion [ 66 ] The appeal from the order of Master Mason is allowed. The action is not struck for delay. Heard on the 22 nd day of October, 2019.

Dated at the City of Calgary, Alberta this 22 nd day of November, 2019. R.E. Nation J.C.Q.B.A. Appearances: Nelson Osamudiamen and Dibyajyoti Tripathy for the Plaintiff David B. Kitchen for the Defendant, The Wawanesa Life Insurance Company Jamie Flanagan for the Defendants, Technicoil Corporation and Essential Energy Services Ltd.