Richardson Pioneer Ltd v Hutterian Brethren Church of Silver Valley, 2021 ABQB 20

Court of Queen’s Bench of Alberta Citation: Richardson Pioneer Ltd v Hutterian Brethren Church of Silver Valley, 2021 ABQB 20 Date: 20210108 Docket: 1603 05986 Registry: Edmonton Between: Richardson Pioneer Limited Appellant - and - Hutterian Brethren Church of Silver Valley, Operating As Silver Valley Colony Respondent _______________________________________________________ Reasons for Decision of the Honourable Madam Justice Bonnie L. Bokenfohr _______________________________________________________

Appeal from the Decision by L.A. Smart, Master in Chambers Order proclaimed on the 4 th day of December, 2019 I. Introduction [ 1 ] This is an appeal of the decision of a Master-in-Chambers dismissing an action on the basis of long delay pursuant to Rule 4.33 of the Alberta Rules of Court . The central issue in this appeal is whether an unfiled affidavit that was sworn and provided to opposing counsel significantly advanced the action.

The analysis of this issue necessarily includes an assessment of whether there was something new in the affidavit that narrowed the issues, completed disclosure, or clarified the position of the parties such that it moved the matter closer to resolution. The affidavit can only be found to significantly advance the action if it meets this threshold. [ 2 ] For the reasons that follow, I find that the affidavit did not significantly advance the action and therefore dismiss the appeal. II.

Litigation Timeline [ 3 ] Richardson Pioneer Limited (Richardson or the Plaintiff) brought an action against Hutterian Brethren Church of Silver Valley operating as Silver Valley Colony (Silver Valley or the Defendant) for breach of contract. The Statement of Claim pleads that Richardson entered into a written contract with Silver Valley for the sale and delivery of grain by a certain date failing which Silver Valley agreed to pay damages.

Richardson claims that Silver Valley did not deliver the grain as required by the contract and therefore owes Richardson damages. [ 4 ] Silver Valley’s Statement of Defence denies the existence of a valid contract on the basis that the individual who signed the contract on behalf of Silver Valley did not have authority to enter into contracts on Silver Valley’s behalf. [ 5 ] The timeline of what occurred in the litigation on what dates is not in dispute: April 5, 2016 Statement of Claim filed May 2, 2016 Statement of Defence filed July 28, 2016 Affidavit of Records filed by Plaintiff October 3, 2016 Affidavit of Records filed by Defendant September 26, 2017 Plaintiff advises Defendant of its intention to file an application for

summary judgment October 6, 2017 • Plaintiff provides the Defendant with an unfiled copy of the

summary judgment application and an unfiled but sworn affidavit in support (the Graye Affidavit) and asks whether the Defendant wishes to examine on the Affidavit and availability for Chambers in October. Plaintiff advises that if they do not hear from the Defendant they will set the application down. • Defendant responds to the documents by advising that they will likely want to question on the Affidavit and will try to obtain instructions by October 11, 2017.

October 12, 2017 • Plaintiff follows up with Defendant and asks for a response by next day on whether they intend to question on the Graye Affidavit. • Defendant advises that they are waiting for instructions and provides counsel’s availability in October. October 26, 2017 Counsel for the Plaintiff advises counsel for the Defendant that they are passing the file to a colleague and advises that the new lawyer will contact them shortly to

schedule questioning October 2018 [date unknown] Plaintiff contacts Defendant by telephone to discuss the scheduling of questioning. November 7, 2019 Application to dismiss for long delay file by Defendant December 4, 2019 Master Smart dismisses the action on the basis of long delay pursuant to R 4.33.

III. Issues [ 6 ] The primary issue in this appeal is whether the Graye Affidavit was a significant advance in the action. If so, the drop-dead application pursuant to R 4.33 cannot succeed. [ 7 ] The Plaintiff also argues that the application should not succeed because the Defendant was unresponsive to requests to

schedule dates to move the

summary judgment application forward. IV. Law [ 8 ] The law is clear and the parties agree that the appropriate standard of review is correctness. On appeal from a decision of a Master-in-Chambers the reviewing court owes no deference to the decision of the Master and may substitute their own views for those of the Master. [ 9 ] R 4.33 provides: 4.33(2) If 3 or more years have passed without a significant advance in an action, the Court, on application, must dismiss the action as against the applicant, unless (

a) the action has been stayed or adjourned by order, an order has been made under subrule (9) or the delay is provided for in a litigation plan under this Part, or (

b) an application has been filed or proceedings have been taken since the delay and the applicant has participated in them for a purpose and to the extent that, in the opinion of the Court, warrants the action continuing. [ 10 ] Determining whether something significantly advanced an action requires a functional approach: Ursa Ventures Ltd v Edmonton (City) , 2016 ABCA 135 at para 18 [ Ursa Ventures ]; Ro-Dar Contracting Ltd v Verbeek Sand & Gravel Inc , 2016 ABCA 123 at para 14 [ Ro-Dar Contracting ]. [ 11 ] The functional approach asks “whether the advance in an action moves the lawsuit forward in an essential way considering its nature, value, importance and quality.

The genuineness and the timing of the advance in the action are also relevant.

This analysis is undertaken in the context of the particular lawsuit”: Ursa Ventures at para 19 . [ 12 ] A significant advance exists: if the non-moving party in the applicable timeframe has done something that increased by a measurable degree the likelihood that either the parties or the court would have sufficient information to rationally assess the merits of the parties' positions and be in a better position to either settle or adjudicate the action: Morrison v Galvanic Applied Sciences Inc , 2019 ABCA 207 at para 35 ; Jacobs v McElhanney Land Surveys Ltd , 2019 ABCA 220 at para 86 [ Jacobs ]. [ 13 ] An unheard

summary judgment application will not, by itself, significantly advance an action. Moreover, an affidavit filed in support of a

summary judgment application “generally documents a version of facts more or less reflective of factual allegations advanced in the statement of claim”: Jacobs at para 104 . [ 14 ] Where an affidavit filed in support of a

summary judgment application contains new information it may significantly advance the action if that information narrows the issues, completes disclosure, or clarifies the position of the parties: Ro-Dar Contracting at para 20 . This assessment must be done in the context of the pleadings and what is relevant to the action: Ma v Kwan , 2019 ABQB 89 at para 12 .

A review must be made of the value of the information in the context of the action and whether it moved the matter closer to resolution through trial or otherwise: Huynh v Rosman , 2013 ABQB 218 at para 36 ; Forest Resource Improvement Assn of Alberta v Moore, 2015 ABQB 588 at para 32 . V. Analysis The Graye Affidavit [ 15 ] Richardson argues that the Graye Affidavit narrowed the issues in the litigation and clarified the position of the Plaintiff by presenting new evidence and a new position that the Defendant had not previously heard.

Specifically, Richardson points to the following paragraphs of the Graye Affidavit: Para 18: “I have had dealings with Tschetter, on behalf of Silver Valley, since at least January 2015, and I have been given no reason to believe by Tschetter, or otherwise, that he did not have sufficient capacity to enter into contracts on behalf of Silver Valley.” Para 19: “[P]rior to dealing with Tschetter in respect of the Purchase Contract […] I have had dealings with him on behalf of Silver Valley in respect of a purchase contract for peas [… with the] Cluny Colony.” Para 20: “The Peas Contract was subsequently assigned to Silver Valley.” [ 16 ] Richardson argues that the Graye Affidavit directly addresses the assertion in the Statement of Defence that the individual who signed the contract on behalf of Silver Valley (Mr.

Tschetter) did not have authority to do so by providing evidence of the affiant’s

previous dealings with Mr. Tschetter. This, they argue, narrows the issues to Mr. Tschetter’s apparent authority. [ 17 ] I disagree with the Plaintiff. The Graye Affidavit does not move the claim forward in any meaningful way. The Affidavit does little more than posit that Mr. Tschetter had actual or ostensible authority to enter into the contract, a position that is, in effect, a reiteration of the allegation in Richardson’s Statement of Claim that there was a contract between the parties. [ 18 ] The Graye Affidavit does not address in any meaningful way Mr.

Tschetter’s authority to enter into the disputed contract. The affiant, Ms. Graye, is not the person who signed the disputed contract on behalf of Richardson and there is no evidence that she was involved in its negotiation. The only “new” evidence contained in the Affidavit is that Ms. Graye had prior dealings with Mr. Tschetter in a different contract with another colony. [ 19 ] The only new document from the Graye Affidavit that is not publicly available or already disclosed in the Plaintiff’s Affidavit of Records is a peas contract. That contract is signed by Mr.

Tschetter but relates to a different Hutterian colony, not Silver Valley. At most, the Graye Affidavit is an assertion that Mr. Tschetter signed contracts with Richardson on behalf of other colonies. This does not provide clarity as to whether Mr. Tschetter had authority to enter into a contract that would bind Silver Valley. [ 20 ] Applying a functional approach and considering the nature, value, importance and quality of the evidence in the Graye Affidavit I find that it did not advance the litigation forward in an essential way. As such, the Graye Affidavit was not a significant advance in the action.

Delay Caused by the Defendant [ 21 ] The Plaintiff argues that R 4.33 should be read in the context of the foundational rules as set out in the Alberta Rules of Court . Those rules impose duties on both Plaintiffs and Defendants to “communicate honestly, openly and in a timely way” (R 1.2(2)(d)), to “jointly and individually… facilitate the quickest means of resolving the claim at the least expense” (R 1.2(3)(a)), and to “respond in a substantive way and within a reasonable time to any proposal for the conduct of an action” (R 4.2(b)).

The Plaintiff argues that the Defendant failed in these foundational duties. [ 22 ] It is true that R 4.33 is to be considered in the context of the foundational rules. The foundational rules do not, however, override the clear mandatory language of R 4.33 and do not require a defendant, in any manner, to assume carriage of an action where the plaintiff is not actively advancing its own claim.

The initiative at all times remains with the plaintiff to pursue its lawsuit in a timely fashion: Janstar Homes Ltd v Elbow Valley West Ltd , 2016 ABCA 417 at para 26 ; XS Technologies Inc v Veritas DGC Land Ltd , 2016 ABCA 165 at para 7 . [ 23 ] The foundational rules may inform the functional analysis of whether something significantly advanced an action but they do not operate to provide a Court with discretion to allow an action to proceed if 3 or more years have passed without a significant advance in an action.

If 3 or more years have passed without a significant advance in an action the Court must dismiss the action unless one of the two stated exceptions apply. Neither of the exceptions are relevant to this matter. [ 24 ] If I had the discretion to allow the action to proceed despite my finding that there had not been a significant advance in the action I would not exercise my discretion to do so. A defendant is obliged, pursuant to the foundational rules, not to engage in tactics that obstruct, stall or delay an action that the plaintiff is advancing.

The timeline demonstrates that when the Plaintiff contacted the Defendant, the Defendant responded. I recognize that the Defendant did not have a substantive response with respect to moving forward with scheduling questioning on the Graye Affidavit. The Defendant’s response, repeatedly, was that they needed to obtain instructions. This must be viewed, however, in the context of the Plaintiff’s initial email to the Defendant advising of their intention to bring a

summary judgment application and the express caution that the Plaintiff would proceed with scheduling the application if they did not hear back from the Defendant. This was a threat the Plaintiff did not follow through on. The conduct of the Defendant in this matter does not amount to obstructing, stalling or delaying the Plaintiff’s stated intention to proceed with a

summary judgment application. VI. Conclusion [ 25 ] For the reasons set out above the appeal is dismissed. The Richardson action against Silver Valley is dismissed pursuant to R 4.33. [ 26 ] In the event that the parties are unable to agree on costs they may provide written submissions to me within 45 days of receipt of this decision. Heard on the 2 nd day of July, 2020. Dated at the City of Edmonton, Alberta this 8 th day of January, 2021.

Bonnie L. Bokenfohr J.C.Q.B.A. Appearances: Phyllis A. Smith, QC of Emery Jamieson LLP for the Appellant/Plaintiff Brian Doherty of Doherty Schuldhaus LLP for the Respondent/Defendant