MHK Insurance Inc v Gurr (Estate), 2021 ABQB 328

Court of Queen’s Bench of Alberta Citation: MHK Insurance Inc v Gurr (Estate), 2021 ABQB 328 Date: 20210426 Docket: 1303 15716 Registry: Edmonton Between: MHK Insurance Inc Plaintiff Defendant by Counterclaim - and - Glenn Gurr, deceased, by his litigation representative Patricia Gurr Defendant Plaintiff by Counterclaim _______________________________________________________ Endorsement of W.S. Schlosser , Master of the Court of Queen's Bench of Alberta _______________________________________________________ [ 1 ] This is an application to dismiss for delay. Mr. Mason and Mr. Dalshaug are new to the file.

Neither the law nor the facts are in dispute. Rule 4.33 [ 2 ] The application was taken out November 26, 2020, so we are to look back three years from that date to see whether any of the events in the lawsuit constitute a significant advance. [ 3 ] The law is nicely stated in the complete and up-to-date briefs. A useful

summary can also be found in a case from the Court of Appeal arising after the briefs : Rahmani v 959630 Alberta Ltd , 2021 ABCA 110 (citing Patil v Cenovus Energy Inc, 2020 ABCA 385 at paras 7-8 ). [ 4 ] There are two candidates for a significant advance in that three-year period: 1) A Procedural Order in December 2017 that

put this dormant action back on track and provided for an exchange of information that would assist both sides. 2) Answers to Written Interrogatories in February 2018. [ 5 ] I note as well that there was a Plaintiff’s application to appoint a litigation representative for the deceased Defendant/Plaintiff by Counterclaim. This application resulted in an Order granted December 11, 2020. It is outside the three years preceding the motion but it was a necessary step and the Defendant acquiesced, or participated in this step.

It was an application that should have been initiated by the Defendant’s estate. [ 6 ] I am satisfied that the Procedural Order of December 2017 constituted a significant advance in this lawsuit and, further, that the appointment of the litigation representative satisfies the requirements for 4.33(2)(

b) of the rule. In the circumstances, I need not consider the quality of the Answers to the Written Interrogatories given in February 2018 in the context of this lawsuit. [ 7 ] The rule 4.33 Application is dismissed.

Rule 4.31 [ 8 ] The rough chronology is as follows: Statement of Claim (- relating to a 2011 breach of an employment and non-competition agreement.) November 4, 2013 Defence and Counterclaim January 20, 2014 Examinations: Glenn Gurr Feb 17 and 18, 2015 Glenn Gurr March 19, 2015 Robert Rogers March 20, 2015 Robert Rogers July 23 and 24, 2015 Glen Gurr June 13, 2016 Procedural Order of Master Smart December 2017 Further Written Interrogatories requested (the deadline specified in the Order) Answers to written interrogation Appointment of a Litigation lawyer (by consent) December 31 2017 February 2018 December 2020 [ 9 ] The Answers to the Undertakings required by the Order were not provided by the January 19, 2018 deadline specified by that Order. [ 10 ] Mr.

Gurr passed away February 16, 2018, from an aggressive form of brain cancer. I have no doubt that Mr. Gurr’s illness had a direct and profound effect on Mr. Gurr’s ability to defend the lawsuit and to prosecute his Counterclaim. I note that no one in the lawsuit appears to have known about Mr. Gurr’s condition until his final days approached. [ 11 ] In that time-frame the action had been languishing.

The Undertakings given at the June 13, 2016 Questioning had not been answered, making the Procedural Order not only necessary to compel answers but to revive the action and to help it move towards conclusion. [ 12 ] Rule 4.34 provides for an automatic stay of an action if a party has died (r 4.34(1)). The action is stayed ‘until an order to continue the action … has been obtained’. Mr. Gurr passed away February 16, 2018. The action (and the Counterclaim) were automatically stayed by the operation of r 4.34 until a litigation representative was appointed.

This process was not initiated by the Estate despite probate being issued in August 2018. Moreover, the Application was taken out at the instance of the Plaintiff. I expect, in part, this reflects the devastating effect that Mr. Gurr’s passing had on his widow, Patricia Gurr, who was appointed as litigation representative. But, as noted, the action could not proceed until this step had occurred. [ 13 ] The action is now largely ready for trial.

I acknowledge that a portion of this case is a ‘memories case; though virtually all of the evidence has been memorialized in the Questioning that was completed in the 2015-2016 timeframe. I further acknowledge that there may be outsiders to the lawsuit that could be called as witnesses.

Presumably, however, instances of what the Plaintiff alleges to have been breaches of the non-competition agreement (for example) will have been discovered in the Questioning and that it was open to the parties; in particular the Defendant and the Plaintiff by Counterclaim, to approach these individuals to see what evidence they might give at trial. [ 14 ] The Defendant/Plaintiff by Counterclaim argues this evidence may not be available any longer. Ms. Gurr says in her Affidavit: 22.

This case primarily involves a discussion of issues of memories, credibility issues, and discussions with perspective witnesses, and who said what to whom. 23. The problems are further demonstrated by the document that the Plaintiff has produced to demonstrate its damages, which is attached hereto to this my Affidavit and marked as Exhibit "O". I have recently reviewed that document, and can state unequivocally that a number of individuals referred to in that document are now deceased, and a number of the businesses referred to are out of business.

24. The examinations that have taken place, demonstrate a "he said/she said" scenario, with regard to a large number of the issues alleged in the Statement of Claim. It is impossible for me to defend the position, given that people have died, businesses have gone out of business and, as the issue of memories, discussions and relationships, were totally with my late husband, the clients and the principals of MHK, I have no direct knowledge of any of that information, nor do I know most of the clients involved. 25.

In short, I am irreparably prejudiced by the death of my husband and the ongoing long delay that has occurred in getting this matter to trial. [ 15 ] I disagree that this is entirely a memories case. The difficulty with the passages from Ms. Gurr’s Affidavit, cited above, are that no particulars of the prejudice are given. Further, there is no evidence of what steps had, or could be taken to overcome the prejudice. The Court does not know, for example, what credibility issues there might be that could have been resolved with witnesses that are now no longer with us.

There is no evidence of which ‘individuals…that are now deceased, or what businesses … are out of business’, or how these would figure in to the evidentiary equation. [ 16 ] I acknowledge that Mr. Gurr’s passing will make this lawsuit much more difficult to defend. The Counterclaim too will be more difficult to prosecute.

However, I do not see that this un-particularized prejudice is something that occurred during the time when the Plaintiff was delaying the action, and I do not have sufficient particulars to see how the loss of the other information, or the witnesses generically referred to in the paragraphs cited above, fit into the time table. As such, it is very difficult to give this evidence any significant weight. [ 17 ] Mr.

Neuman fairly acknowledges that he could have been more aggressive in prosecuting this lawsuit but a good portion of the delay that might be attributed to the Plaintiff can also be explained by indulgences given to former counsel on this file. It would be a dark day indeed, if a lawsuit were to be struck out on the basis of indulgences, or courtesies afforded to the Defendant’s lawyer by Plaintiff’s counsel. [ 18 ] In cases such as these, responsibility for the delay becomes relevant to the extent that actual prejudice arises during a period of delay occasioned by the other side.

I certainly appreciate the added difficulties in defending this case and advancing the Counterclaim caused by Mr. Gurr’s passing but I do not see this to be attributable to the Plaintiff. [ 19 ] As noted, this matter is largely ready for trial. Much of the evidence appears to have been memorialized through Questioning. I acknowledge that Mr. Gurr’s passing will complicate this matter somewhat with evidentiary issues. However, the delay, while lengthy, is not inordinate, in all of the circumstances.

This applies to both the Claim and the Counterclaim. [ 20 ] As also noted, the impression I have is that the Plaintiff had been largely responsible for moving this action forward, as they are obliged to do. [ 21 ] There are no details about the progress of Mr. Gurr’s illness. However, even if such details were provided, this might only go to the excusability of some of the delay. [ 22 ] Since the delay is neither inordinate nor inexcusable, prejudice is not presumed by the operation of the rule, as indicated, actual prejudice has not been made out. [ 23 ] The r 4.31 Application is dismissed.

A Procedural Order would be appropriate to address some of the evidentiary issues that are bound to arise and to bring this matter to conclusion but I will leave this to counsel. Heard on the 8 th day of April, 2021. Dated at the City of Edmonton, Alberta this 26 th day of April, 2021. W.S. Schlosser M.C.Q.B.A. Appearances: Craig Neuman, Q.C. Neuman Thompson for the Plaintiff/Respondent

Frank Mason and Ryley Dalshaug Masuch Law LLP for the Defendant/Applicant