Nicholson-Phillips v Shell Canada Limited, 2019 ABQB 929

Court of Queen’s Bench of Alberta Citation: Nicholson-Phillips v Shell Canada Limited, 2019 ABQB 929 Date: 20191204 Docket: 0701 02522 Registry: Calgary Between: Samantha J. Nicholson-Phillips Plaintiff - and - Shell Canada Limited Defendants _______________________________________________________ Reasons for decision of J.T.

Prowse , Master in Chambers _______________________________________________________ [ 1 ] The plaintiff has sued the defendant (“Shell”) for wrongful dismissal. [ 2 ] Shell applies to dismiss the action for delay pursuant to rule 4.31 or, alternatively, for an order granting security for costs pursuant to rule 4.22. [ 3 ] For the reasons which follow I dismiss a part of the plaintiff’s claim and allow the other part to proceed. I dismiss the application for security for costs. The delay application

[ 4 ] Shell’s application to dismiss for delay is made pursuant to rule 4.31, which states:

(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.

Chronology of the litigation • March 9, 2005 – the plaintiff’s employment was terminated. • March 7, 2007 – the statement of claim was filed. • March 5, 2008 – the statement of claim was served. • February 28, 2012 – Shell filed its statement of Defence. • May 10, 2012 – the plaintiff served her affidavit of records on shell. • May 7, 2015 – the plaintiff filed an application for a litigation plan. • May 22, 2015 – an order was granted establishing a litigation plan. • July 23, 2015 – Shell served its affidavit of records on the plaintiff. • April 13, 2018 – the plaintiff served notices of appointment for questioning on Shell. • April 27, 2018 – Shell brought the current application to dismiss for delay.

Analysis of the delay application [ 5 ] Guidance regarding applications under rule 4.31 is provided by the decisions in Humprheys v Trebilcock , 2017 ABCA 116 , 2017 CarswellAlta 647 and Transamerica Life Canada v Oakwood Associates Advisory Group Ltd , 2019 ABCA 276 , 2019 CarswellAlta 1388. [ 6 ] I will organize my analysis around the following topics: (

i) Has the plaintiff 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? Is the shortfall or differential of such a magnitude to qualify as inordinate? (ii) If the delay is inordinate has the plaintiff provided an explanation for the delay? If so, does it justify inordinate delay? (iii) If the delay is inordinate and inexcusable, has the plaintiff rebutted the presumption of significant prejudice created by rule 4.31(2)? (iv) If Shell has met the criteria for granting relief under rule 4.31(1), is there a compelling reason not to dismiss the plaintiff’s action? (

i) Has the plaintiff 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? Is the shortfall or differential of such a magnitude to qualify as inordinate? [ 7 ] By the time Shell’s application for dismissal was filed the action was 11 years old and had not progressed to the stage of questioning. Clearly the delay has been inordinate. (ii) If the delay is inordinate has the plaintiff provided an explanation for the delay?

If so, does it justify inordinate delay? [ 8 ] The plaintiff has not provided an adequate explanation or justification for the delay which has occurred. [ 9 ] A review of the chronology reveals a pattern.

The plaintiff repeatedly moves the action ahead at the very last minute, just in time to avoid the action being struck out under rule 4.33, the ‘drop dead’ rule. • She filed the statement of claim 1 year and 363 days after her employment was terminated. • She served the claim 363 days after it was filed. • Four years then elapsed before she sought a statement of defence from Shell, and shortly after that she provided her affidavit of records. • 2 years and 362 days then elapsed before she applied for a litigation plan.

• 2 years and 11 months then elapsed following the receipt of the litigation plan order until she served notices of appointment forquestioning. [10] The plaintiff points to delay caused by Shell. It is true that some delay is attributable to Shell, as follows: • Under rule 5.5(3) Shell was obligated to provide its affidavit of records on July 10, 2012. It did not do so until 2015. On the otherhand, the plaintiff could have applied to compel compliance and to obtain penalty costs in 2012.

The plaintiff did not apply to compelcompliance (via a litigation plan order) until almost 3 years later. • The litigation plan order required Shell to appoint an officer for questioning by August of 2015 and for that representative to bequestioned by approximately late October, 2015. The officer was not appointed until October of 2015 and while Shell’s counsel initiallyattempted to set up questioning following the order, when the plaintiff’s lawyer responded (in October 2015) to set up that questioning,Shell’s lawyer failed to reply.

However, it was only in April of 2018 that the plaintiff’s counsel then pursued questioning by unilaterallysending an appointment for questioning, something he could have done anytime after October of 2015. [11] While these delays weigh against Shell’s delay application, they do not lead to the conclusion that Shell is complaining aboutdelays that are “directly and primarily caused’ by Shell: see Transamerica at paragraph 28. [12] The plaintiff points to delay caused when Shell changed counsel, first when their outside counsel moved to another firm, andthen, in 2018, when in-house counsel took over.

There is no evidence that this caused any delay. [13] The plaintiff points to a tolling agreement as a reason for not moving forward with the action.

However: • The only evidence is one sentence in the plaintiff’s affidavit that “I am informed by my counsel that Shell agreed to hold itsdefence in abeyance pending resolution of the Sun Life Action” [the plaintiff’s claim regarding disability coverage]. • Despite a number of letters and emails between counsel, there is nothing in this correspondence referring to the alleged tollingarrangement. • If the plaintiff’s counsel alleges that the tolling arrangement was made by telephone or personal meeting with Shell’s counsel,there are no particulars provided. [14] The self serving assertion of a tolling agreement is not of any weight absent detailed facts and supporting evidence: seeGuarantee Co of North America v Gordon Capital Corp, (SCC), [1999] 3 S.C.R. 423, [1999] S.C.J.

No. 60, 1999CarswellOnt 3171 (S.C.C.) at para 31. [15] The plaintiff says that anxiety and depression have impeded her ability to advance the action. Here is the relevant portion ofher affidavit: After my employment was terminated by Shell and after my statement of claim was filed, it took years for me to muster the courage toshare my situation with my caregivers, including my psychologist, to fully receive treatment. I have continued to receive treatment foranxiety, acute stress, depression and despair up to the present day.

This has impeded my ability to advance the within Action. [16] While these health difficulties may have existed when the plaintiff’s employment was terminated, the plaintiff provides nomedical report which indicates that the shecontinued to suffer from these problems to a degree which impaired her ability to advance theaction over the next 14 years. [17] Health problems were raised by an appellant facing an application to strike her appeal for delay in Wong v Chambers, 2011ABCA 278.

The Court of Appeal commented on that assertion at paragraph 6 as follows: Nothing has been done to advance this appeal for two years; that delay calls for an explanation. The appellant argues that healthproblems have kept her from preparing her factum. She attaches to her affidavit several doctor's prescription pad sheets, from a number ofdifferent doctors, containing one line handwritten statements suggesting that the appellant is recovering from a motor vehicle accident in2000. These cursory, unsworn handwritten notes are not sufficient evidence to provide a medical explanation for the delay.

If, 11 yearsafter the accidents, the appellant is still not able to prosecute this appeal, it seems likely that further delays could be expected. It isprejudicial to the respondents to have to wait indefinitely for this matter to be finalized. [18] I cite this passage to highlight the difference in this case, where the plaintiff has not even adduced ‘one line’ doctors notes tosupport her evidence regarding her health.

Her assertions of health difficulties sufficient to prevent her from instructing counsel toadvance the claim are not supported by the evidence. [19] The last sentence in the above quote from Wong engages another topic. What if a plaintiff in fact is clearly prevented fromheath problems from advancing an action. If the point arrives where a fair trial is no longer possible due to the passage of time does theCourt refuse to strike the action because the delay was ‘no fault’? [20] The question of fault is relevant to rule 4.31(2) as to whether there is a ‘inexcusable delay’.

In my view the question of fault isnot relevant to rule 4.31(1). [21] Rule 4.31(2) deals with whether a presumption of significant prejudice exists. In rule 4.31(1) the only requirement for strikingan action for delay is the existence of significant prejudice. [22] Under rule 4.31(2) I conclude that the delay is both inordinate and inexcusable. (iii) If the delay is inordinate and inexcusable, has the plaintiff rebutted the presumption of significant

prejudice created by rule 4.31(2)? [ 23 ] I begin by noting that Shell has not alleged that the termination of the plaintiff’s employment was for cause. [ 24 ] If all that the litigation involved was determination of a reasonable notice period (the statement of claim asserts that it is 7 months) and then calculating (in order to deduct) the income that the plaintiff earned or should have earned through mitigation during the notice period, it would seem that the passage of time might not prejudice Shell’s ability to defend the claim as to quantum. [ 25 ] However, the plaintiff seeks, in addition to pay in lieu of working notice and benefits: • general damages of $75,000 • aggravated damages of $55,357.84 [ 26 ] I will refer to these as the ‘additional claims’. [ 27 ] The additional claims are based on various allegations in the statement of claim, some of which I will now quote: • ... [Shell’s] employment environment suffered deterioration marked by increasing demands, intensifying stress, lack of practical, professional or personal support or accommodation, and a work environment decreasingly conducive to gender respect and gender equality. • The deteriorating employment environment began to affect the plaintiff's professional and personal quality of life, creating tension, anxiety, acute stress, depression and despair, as well as stress induced migraines and sleep disruption. • ... the plaintiff sought the assistance of the [Shell’s] Occupational Health Department to address her ongoing health issues and was denied treatment. • [Shell], either by negligence or intent, failed in its duty to the Plaintiff to provide a healthy, respectful employment environment. • [Shell] terminated the employment of the plaintiff in a harsh, insensitive, abrupt, unconscionable manner without just, sufficient or substantive cause, and without warning or notice. • Upon termination of the plaintiff, the plaintiff was abruptly escorted from the building in a professionally and personally demeaning and embarrassing manner, and without the opportunity to gather her personal effects or communicate with her colleagues. • As a result of the reckless and wanton breach of the contract by [Shell], and as a result of the harsh, insensitive, abrupt, unconscionable manner of dismissal, the plaintiff suffered distress and damages. • [Shell] had a duty to the plaintiff to provide a dignified and discrete post​ termination climate that would limit indiscriminate and damaging discussions amongst and between the plaintiff’s former colleagues and co-workers. • [Shell], either by negligence or intent, failed in its duty to the plaintiff to provide the requisite dignified and discrete post- termination climate. [ 28 ] Assuming that witnesses have not died or disappeared by the time of trial (there is no evidence that they have to date) the prospect that these witnesses will have more than vague recollections of what happened over 18 years earlier (by the date of trial), concerning the broad ranging allegations contained in the additional claims, is slim to nil. [ 29 ] As stated in 330626 Alberta Ltd v Ho & Laviolette Engineering Ltd, 2018 ABQB 398 , 2018 CarswellAlta 954 (Alta.

Q.B.) at para 95 : In Middleton Energy Management Ltd v TransCanada Pipelines Limited , 2017 ABQB 669 , 2017 CarswellAlta 2329 (Alta. Q.B.), the Master observed that stale memories are prejudicial; memories are important to the witnesses' recollection of the facts and to allow proper challenges to the witnesses' evidence (paras 30-31 & 38-41; and The Owners: Condominium Plan No 982 6403 v CPI Crown Properties International Corporation , 2017 ABQB 562 , 2017 CarswellAlta 1680 at para's 63-69 (Alta. Q.B.). The Court of Appeal said in Costigan v Ruzicka , 1984 ABCA 234 , 13 D.L.R. (4th) 368 (Alta.

C.A.): " Every trial judge is aware that stale claims with stale testimony produce bad trials and poor decisions " (para 30). (emphasis added) [ 30 ] With respect to the additional claims, in my view Shell has met the onus on it, without using the reverse onus in rule 4.31(2), to show that it has suffered significant prejudice in its ability to defend the plaintiff’s additional claims due to her delay. [ 31 ] With respect to the plaintiff’s claim for 7 months pay and benefits, the Bardal factors such as her length of employment, position held and salary and benefits, are relevant.

Most of those factors are well documented. [ 32 ] Shell notes that it is entitled to deduct wages which were earned or should have been earned by the plaintiff during that 7 month time period. It submits that its ability to mount this defence of failure to mitigate will be prejudiced due to delay. I agree that some prejudice will exist, but due to the much narrower scope of the mitigation issue (compared to the broad ranging assertions in the ‘additional claims’) I do not think that this amounts to significant prejudice. [ 33 ] Therefore, subject to my observations in the following

section of these reasons, I am dismissing the ‘additional claims’ for delay, but allowing the plaintiff to proceed with her claim for 7 months wages and benefits. (iv) If Shell has met the criteria for granting relief under rule 4.31(1), is there a compelling reason not to

dismiss the plaintiff’s action? [ 34 ] As indicated earlier, the vast majority of delay is due to the plaintiff and has resulted in significant prejudice to Shell with regard to the ‘additional claims’. I am not aware of a reason to decline dismissing those additional claims for delay. Conclusion regarding delay [ 35 ] I am dismissing for delay the additional claims, meaning all of the plaintiff’s claims except for the plaintiff’s claim for 7 months pay and benefits as damages in lieu of notice.

Security for costs [ 36 ] The plaintiff’s employment was terminated without notice and Shell does not assert just cause. It is therefore likely that the plaintiff will be awarded some damages, against which Shell can secure itself (via set-off) for any costs which may be awarded to Shell. Costs of these applications [ 37 ] Success has been divided. Costs shall be in the cause. Procedural order [ 38 ] I have directed counsel to attempt to negotiate the terms of a litigation plan to advance the remaining claim for 7 months wages and benefits towards readiness for trial.

If they cannot agree on a litigation plan then they may seek a ruling from me in that regard. Heard on the 28 th day of November, 2019. Dated at the City of Calgary, Alberta this 4 th day of December , 2019. J.T. Prowse M.C.C.Q.B.A. Appearances: Coralie J. Mohr Witten LLP for the plaintiff Sara Babich Shell Canada Limited for the defendant