Huk v Hudson’s Bay Company, 2021 ABQB 236

Court of Queen’s Bench of Alberta Citation: Huk v Hudson’s Bay Company, 2021 ABQB 236 Date: 20210326 Docket: 2001 03359 Registry: Calgary Between: Linda Gay Huk Appellant - and - Hudson's Bay Company Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice O.P. Malik _______________________________________________________ I. Introduction [ 1 ] Ms. Huk appeals the dismissal of her action by a Provincial Court Judge due to delay, pursuant to Rule 4.31 of the Alberta Rules of Court . [ 2 ] For the reasons that follow, I do not allow the appeal. II.

Chronology [ 3 ] On August 26, 2015, Ms. Huk commenced an action in the Civil Division of the Provincial Court. Hudson’s Bay Company (“HBC”) filed its dispute note on September 15, 2015. [ 4 ] On December 4, 2015, the parties attended mandatory mediation but the matter was not resolved. [ 5 ] On December 15, 2015, the Provincial Court Trial Coordinator wrote to counsel for the parties, advising that they could request a pre-trial conference or trial date on the condition of having exchanged their production. [ 6 ] On November 20, 2018, Ms. Huk’s lawyer sent a letter to HBC enclosing Ms.

Huk’s production and requested the scheduling of a pre-trial conference. Several days later, on November 23, 2018, Ms. Huk’s lawyer sent a letter to the Provincial Court requesting a pre-trial conference.

[ 7 ] The Provincial Court notified the parties on December 3, 2018, that a pre-trial conference was scheduled for September 4, 2019. [ 8 ] On August 30, 2019, HBC notified Ms. Huk that it would bring an application to dismiss the action on the basis of delay. [ 9 ] The application was heard on January 24, 2020. III.

The Analytical Framework for Considering Rule 4.31 [ 10 ] The foundational rules found in Rule 1.2 promote the resolution of disputes in a timely, efficient, and cost-effective way and must be taken into consideration when applying Rule 4.31 ( Jacobs v McElhanney Land Surveys Ltd. , 2019 ABCA 220 at paras 57–72 ).

While a plaintiff bears the ultimate responsibility of advancing their lawsuit in a timely manner, a defendant bears the responsibility of complying with the Rules and cannot complain about prejudice caused by their own delay ( Transamerica Life Canada v Oakwood Associates Advisory Group Ltd , 2019 ABCA 276 at paras 27–31 ). [ 11 ] Rule 4.31 grants the court the discretion to dismiss all or part of a claim or to make a procedural order where a party’s delay in prosecuting the action results in significant prejudice to the other party.

Where the delay is found to be inordinate and inexcusable, the delay is presumed to have caused significant prejudice pursuant to Rule 4.31(2). [ 12 ] In applying Rule 4.31, the court begins with the six-part test set out by the Alberta Court of Appeal in Humphreys v Trebilcock , 2017 ABCA 116 at paras 151–156 , although there is no “universal mandatory formula” to follow ( TransAmerica at para 15; Arbeau v Shultz , 2019 ABCA 204 at para 23 ). [ 13 ] The parties agree that this analytical framework applies equally to delay applications brought in the Provincial Court due to section 8(2)(

a) of the Provincial Court Act which allows the Rules of Court to be applied where necessary to ensure the expeditious and inexpensive resolution of a matter. IV. What Are the Issues for This Appeal? [ 14 ] In their written materials, the parties approached the issues to be determined in this appeal somewhat differently. Having heard oral submissions for the parties, I agree with HBC that the central issues in this appeal may be framed as follows: i. Did the Provincial Court Judge err in concluding that Ms. Huk’s nearly three-year delay in moving her action forward was inordinate and inexcusable? ii.

Did the Provincial Court Judge err in concluding that Ms. Huk failed to rebut the presumption that the delay resulted in inordinate prejudice? V. Standard of Review [ 15 ] The standard of review that applies to an appeal from the Civil Division of the Provincial Court (see for example, McCallum v Edmonton Frame and Suspension

(2000) Ltd ., 2016 ABQB 271 at paras 48-50 ) on a question of law is correctness. Questions of fact, factual inferences, and the application of a legal standard to questions of fact are reviewed for palpable and overriding error. [ 16 ] Findings of fact made by a Provincial Court Judge are entitled to a high level of deference. This is particularly the case here, where the Provincial Court Judge conducted an extensive review of the file and had familiarized herself with the pleadings, Affidavits and cross-examination transcript.

Further, the Provincial Court Judge has the requisite experience to assess how quickly it should reasonably take for a civil action to move towards trial and whether the delay is excessive in the circumstances, having particular regard to the nature and complexity of an action. VI. Analysis i. Did the Provincial Court Judge Err in Concluding that Ms.

Huk’s Nearly Three-Year Delay in Moving Her Action Forward Was Inordinate and Inexcusable? [ 17 ] It is agreed by the parties that the operable period of delay is two weeks shy of three years (short of the three years required to bring an application for long delay pursuant to Rule 4.33): from December 4, 2015, when the parties attended mandatory mediation to November 20, 2018, when Ms.

Huk provided HBC with her production. [ 18 ] I cannot discern any palpable and overriding error in the Provincial Court Judge’s finding that a delay of nearly three years was inordinate and inexcusable. [ 19 ] In her Affidavit of January 7, 2020, Ms. Huk addressed the issue of delay. She attributes that eleven months of delay was caused by her previous lawyer who failed to follow up with her. She explains that the remainder was due to her difficulty in locating and retrieving documents in storage and the time it took to request and obtain documents from her physicians.

She states that she was busy working full-time and did not have the spare time to locate the relevant materials. [ 20 ] I empathize with Ms. Huk. But she was represented by a lawyer and it is ultimately a plaintiff’s obligation to prosecute his or

her action in a timely manner. As noted by the Provincial Court Judge, The Provincial Court has simplified court procedures which allows parties, many of whom are self-represented, to achieve a cost-effective and timely resolution of their claims. Indeed, had Ms. Huk been diligent in prosecuting her action, it is quite likely that her action would have proceeded to trial by the time the pre-trial conference was scheduled, in September, 2019. [ 21 ] Ms. Huk’s lawyer acknowledged that the explanations Ms. Huk advanced for her delay “are not strong”.

The Provincial Court Judge agreed. [ 22 ] I have reviewed the cases provided by Ms. Huk in support of her argument that a delay of three years in provincial court should not be considered inordinate. None of these cases help her.

While in Total Image Interiors Inc v Bentley Investments Ltd , 2017 ABPC 137 , Cabrera v Steed , 2013 ABPC 361 , and Brownlee v Security National Insurance Company , 2020 ABPC 111 , the courts concluded that delays of seven and three-and-a-half to four years and four years respectively, amounted to inordinate delay, these cases do not foreclose the argument that a shorter period of delay may be inordinate (See for example, Fraser v Jeffries , 2019 ABQB 145 at para 44 where the court found that a two year delay was inordinate). [ 23 ] Each delay application requires its own separate, contextual analysis with regard to the factors identified in Humphreys , including the nature and complexity of the action, what progress has occurred in moving the lawsuit forward, whether the defence has contributed to the delay, and whether the delay is excusable.

There may be other factors, unique to the particular circumstances of the particular lawsuit, that require consideration as well. [ 24 ] The Provincial Court Judge was particularly well placed to assess the speed at which Ms. Huk’s action should have proceeded in light of comparable wrongful dismissal actions and to conclude that Ms. Huk’s progress had not attained a point on the litigation spectrum that should reasonably have been expected.

The Provincial Court Judge found that this delay was inordinate in the circumstances and that no reasonable explanation has been provided. [ 25 ] I cannot identify any overriding and palpable error in the Provincial Court Judge concluding that the nearly three-year delay it took for Ms. Huk to provide her production was inordinate and inexcusable. ii. Did the Provincial Court Judge Err in Concluding That Ms. Huk Failed to Rebut the Presumption That The Delay Resulted in Inordinate Prejudice? [ 26 ] The Provincial Court Judge held that as Ms.

Huk’s delay was inordinate and inexcusable, the delay was presumed to have caused significant prejudice to HBC pursuant to Rule 4.31(2). However, this presumption can be rebutted if a plaintiff can demonstrate that there is insufficient prejudice that would warrant dismissing the action ( Transamerica at para 43). [ 27 ] The meaning of “significant prejudice” includes “litigation prejudice ( Humphreys at para 131 ). For prejudice to be significant, it must be more than minor or trivial and it must impair a party’s ability to defend its interests at trial ( Humphreys at paras 124–31 ).

Examples of significant prejudice include the unavailability of crucial witnesses ( Humphreys at para 130 ), a witness’ fading memory due to the passage of time, and whether a witness is being asked to provide evidence for the first time ( Humphreys at paras 182–83 ). [ 28 ] The Provincial Court Judge found there to be “clear evidence on the record of prejudice”: that key witnesses would be difficult to locate, or if they could be located, lived abroad and that a trial would not be completed until 2021 at the earliest, more than 6 years after Ms. Huk’s action was commenced. [ 29 ] In her civil claim, Ms.

Huk alleges that she was wrongfully dismissed by HBC General Manager, Ms. Kovac-Nemedi in retaliation for having reported Ms. Kovac-Nemedi to human resources for what Ms. Huk believed was abusive behavior and misconduct. Clearly, Ms. Kovac-Nemedi is the key witness. [ 30 ] It appears that Ms. Kovac-Nemedi lives in Costa Rica. It is unknown whether there are any measures that would compel her personal attendance in Canada or for the purpose of testifying remotely from Costa Rica. [ 31 ] In my view, HBC has proven litigation prejudice. In addition to the challenges involved in compelling Ms.

Kovac-Nemedi’s testimony, she would be giving evidence for the first time, 7 to 8 years (depending on when a trial can be scheduled) after the events giving rise to Ms. Huk’s action arose. It is likely that by the time this matter gets to trial, Ms. Kovac-Nemedi’s memory will have faded on her interactions with Ms. Huk that are the subject of the action. [ 32 ] I find there to be no palpable and overriding error in the Provincial Court Judge’s findings that Ms. Huk failed to rebut the presumption that the delay resulted in significant prejudice to HBC.

Further, I decline to interfere with the Provincial Court Judge’s decision not to grant a procedural order. This is a discretionary decision which is subject to a high level of deference. VII. Conclusions [ 33 ] Ms. Huk’s application is thereby dismissed. [ 34 ] If the parties are unable to reach an agreement with respect to costs, they may provide written submissions, not exceeding 3 pages each, within the next 15 days. Heard on the 19 th day of March, 2021.

Dated at the City of Calgary, Alberta this 26 th day of March, 2021. O.P. Malik J.C.Q.B.A. Appearances: Michael Gaber for the Plaintiff Danielle Douglas for the Defendant