Alston v Municipal District of Foothills No 31, 2021 ABQB 592

Court of Queen’s Bench of Alberta Citation: Alston v Municipal District of Foothills No 31, 2021 ABQB 592 Date: 20210728 Docket: 1001-10269 Registry: Calgary Between: Ellen Alston, Leslie Vecsey and EL Alston & Associates Ltd Applicants/Respondents - and - The Municipal District of Foothills No 31 Defendant/Applicant _______________________________________________________ Reasons for Decision of the Honourable Madam Justice M.H.

Hollins _______________________________________________________ [ 1 ] The Plaintiffs have sued the Defendant for approximately $8M in damages arising from alleged contamination of the groundwater on their property in De Winton, Alberta (the “Property”). The Statement of Claim and the Statement of Defence were both filed in July of 2010. I was assigned to this matter as the Case Management Justice in 2017. [ 2 ] The Defendant has applied to dismiss this Action for delay in prosecution.

The Defendants alleges 64 months of delay attributable to the Plaintiffs, which it says meets the tests under our Rules of Court for dismissal of the Action. The Plaintiffs opposed this motion, filing a written Brief, but opting not to appear for oral argument.

[ 3 ] I find that, while there is delay attributable to the Plaintiffs, it has not as characterized by the Defendant and does not justify dismissing the Action. However, I am exercising my authority under the Rules of Court to outline a number of steps which must be taken by the Plaintiffs within the times directed, failing which this Action is at risk of being struck as a possible remedy for breach of that Order. Dismissal for Delay (Rule 4.31) [ 4 ] Rule 4.31 of the Alberta Rules of Court reads as follows: 4.31

(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. [ 5 ] Significant prejudice is the test for actionable delay under this Rule; Transamerica Life Canada v Oakwood Associates Advisory Group Ltd , 2019 ABCA 276 at para 21 [ Transamerica Life ]. It can be proven by the moving party or can be presumed based on inordinate, inexcusable delay.

Either way, significant prejudice must be present to dismiss an action under Rule 4.31(1)(a). If there is delay that does not cause significant prejudice, actual or presumed, the Court may still make a procedural order to address that delay. [ 6 ] Inordinate delay is a temporal reference to how long the lawsuit has taken to get to the point at which the moving party makes his application under Rule 4.31.

Whether that passage of time has been too long will depend on the nature and circumstances of each case; there is no formula; Transamerica Life at para 15 . [ 7 ] Inordinate delay has been described as “much in excess” of what would be reasonable; Kuziw v Kucheran Estate , 2000 ABCA 226 at para 31 [ Kuziw ] or as litigation which is progressing much slower than the pace of the lawsuit prosecuted by “a litigant acting reasonably”; Humphreys v Trebilcock , 2017 ABCA 117 at para 115 . [ 8 ] If the Plaintiffs have delayed the prosecution of this Action in a way that is inordinate, then the burden of proof shifts to the Plaintiffs to prove that such delay is excusable: ML Bruce Holdings Inc v Ceco Develop ments Ltd , 2015 ABQB 604 , 2015 CarswellAlta 1790, 50 CLR (4th) 70 at para 47 . [ 9 ] If the Defendant proves inordinate delay and the Plaintiffs offer no acceptable excuse for that delay, significant prejudice to the Defendant is presumed.

The burden would then again be on the Plaintiffs to prove that the Defendant has not suffered significant prejudice as a result of the Plaintiffs’ delay; Kuziw at para 37 . [ 10 ] The Defendant on this motion has broken down the alleged delay into delay occurring in distinct phases of the litigation; a delay in the Defendant’s testing of the Property well, a non-descript delay in advancing the action between 2015 and 2017 and delay occasioned by the Plaintiffs’ reaction to various events in the Case Management of the action between 2017 and the present.

These phases are examined below, but the analysis of the delay is done collectively; Arbeau v Schulz , 2019 ABCA 204 at para 27 . [ 11 ] While I must also consider whether the Defendant has contributed to the delay in a way that might excuse the slow pace of litigation, that is also just part of a comprehensive review of the action as a whole; Alston v Haywood Securities Inc , 2020 ABQB 107 at para 56 . Litigation History [ 12 ] As mentioned, this Action was commenced in 2010, 11 years ago. While there is no hard and fast global time limit for getting civil actions to trial, that is undeniably a long time.

Our Rules provide that a plaintiff must take a material step every 3 years at a minimum or risk dismissal of her claim; Rule 4.33(2). The Defendant has not applied under that Rule because, despite the longevity of this lawsuit, there is no 3-year period in which nothing has happened . The Early Years – The Defendant’s Expert Testing [ 13 ] The first part of this Action proceeded with relative dispatch. The Statement of Claim was filed on July 13, 2020 and the pleadings were closed by August of 2020. The parties exchanged their Affidavits of Records in October of that year.

Questioning of witnesses took place from November of 2011 through January of 2012. After a change of counsel, both parties exchanged their undertaking responses between September of 2012 and May of 2013. Questioning on undertaking responses was done between October of 2013 and March of 2014. [ 14 ] Fall of 2014 is when the lawsuit hit its first snag, at least according to the Defendant. In August of 2014, the Defendant filed an application for access to the Plaintiff’s property in order to allow their experts to conduct testing of the well on the Property.

That application was heard some 8 months later in a Special Chambers Application before Master Robertson on April 21, 2015. He granted

the Order. The Plaintiffs appealed that Order, but abandoned the appeal in June, 2015. Apparently, the Plaintiffs’ mortgagee, Manulife Bank, commenced foreclosure proceedings in respect of the Property around that time. [ 15 ] The Defendant argues that the delay in accessing the Property for testing was occasioned by the Plaintiffs’ forcing them to a court application with no reasonable prospect of success. The Plaintiffs argue that the court application was never necessary and therefore it is the Defendant who delayed matters.

They maintain in their Brief that their then-counsel wrote to the Defendant agreeing to offer unfettered access to the Property for the purposes of completing the Defendant’s experts’ testing and that the Defendant simply failed to ever avail itself of that invitation. [ 16 ] While this assertion was not explored in any cross-examination, it seems highly unlikely that counsel for the Plaintiffs (they were still represented at this point) would prepare for and argue a contested half-day Special Application if there was no issue between the parties about the Defendant’s testing.

The only logical conclusion must be that the parties remained at loggerheads about the testing, at least in some respect. [ 17 ] Unfortunately, before the Defendant could complete its experts’ testing, they received notice on July 3, 2015 that Manulife Bank had poured sodium hypochlorite down the well. This interfered with the Defendant’s ability to obtain the expert evidence it had commissioned and also precipitated the Plaintiffs’ contempt motion. It appears that both sides may believe the other had advance knowledge of this, which they each deny.

The Middle Years – Undertakings and Document Production [ 18 ] After the application regarding testing, which appears to have been rendered moot by the actions of Manulife, the Plaintiffs picked things up in March of 2016 when they requested the Defendant’s outstanding undertaking responses. From 2016 to mid-2017, both parties renewed their attempts to finalize their document production and complete undertaking responses. [ 19 ] In May of 2017, the Plaintiffs became self-represented parties and shortly thereafter, filed an application to set the matter for trial.

The Justice hearing that application, Justice Brooker, sent the matter to Case Management. This filing, in my view, indicated a genuine intention by the Plaintiffs to pursue their claim to trial and to be responsible for doing so. The Later Years – Case Management [ 20 ] Our first Case Management Conference was on October 4, 2017. It was apparent to me, as it had been to Brooker, J, that the matter was not ready for trial and a number of things needed to be dealt with in order to secure trial dates.

Among other things, the Defendant had not yet provided its expert reports or committed to proceeding to trial without its own expert evidence. For their part, the Plaintiffs had filed contempt motion in July of 2017 relating to the actions of Manulife. Following this initial Case Management Conference, the Plaintiffs and Ms. Alston in particular, resisted attempts to reconvene to actually deal with scheduling of these outstanding pre-trial matters. [ 21 ] In April of 2018, a second Case Management Conference was held, but the Plaintiffs did not attend.

I explained that the Plaintiffs were not obligated to advance their Action, but if they wished to do so, they would need to

schedule any further court appearances through the Case Management process and my office. They opted to do nothing until May of 2020, when the Plaintiffs filed a

summary judgment motion and renewed their push to have their contempt motion heard. [ 22 ] As of this date, the

summary judgment motion (which will be heard by a different Justice) is scheduled for December 3, 2021. The Plaintiffs’ contempt motion (which will also be heard by a different Justice) is not yet scheduled. The Plaintiffs filed their contempt motion last July. The Defendant then contested the scope of that motion as being effectively a

summary judgment motion dressed as a contempt motion. Justice Phillips of our Court issued an Order defining the issues for the contempt motion. Justice Phillips’ Order has been appealed by the Plaintiffs and the appeal is pending.

I therefore assume that the contempt motion will not proceed until the Court of Appeal has ruled on the propriety of Justice Phillips’ Order. [ 23 ] Technically, the Plaintiffs’ motion to set trial dates, filed in 2017, remains outstanding as we have been unable to get the Plaintiffs to re-attend at Case Management to put a litigation plan in place that could be filed as a procedural order coming out of that motion. [ 24 ] Unfortunately, the longest period of incontrovertible delay – 2 years – occurred while the matter was in Case Management for the express purpose of moving it forward more quickly and efficiently.

Analysis of Delay [ 25 ] Although both parties argued that pre-litigation delay was or was not a factor, it is not relevant to the analysis. Pre-litigation time is generally considered as already having been addressed in limitations statutes; E(

N) v D(DR) , 1995 CarswellAlta 170 (CA) at para 17 and Forest Resource Improvement Assn of Alberta v Moore , 2015 ABQB 588 at paras 42-44 . [ 26 ] I will also note here that the Plaintiffs’ repeated references to errors and inaccuracies in the Defendant’s facts as part of a “standard of review” is misplaced. Selecting and applying the proper standard of review is something done only on appeals from another body. This is not an appeal and therefore there is no standard of review.

I mention this only because the Plaintiffs’ material is replete with “corrections” of the Defendant’s facts which are really just different descriptions of what happened on certain dates. While the Plaintiffs urged that “this Application cannot just focus on the dates given in the Defendant’s submission”, the reality is that motions regarding delay generally focus on the timeline, not the underlying arguments about the substance of the lawsuit. [ 27 ] I agree with the Defendant that the overall delay in this action is inordinate. The parties have been in litigation for 11 years

already and will not likely secure trial dates until 2023, roughly 13 years from the filing of the claim. The claim has not changed in its nature or its scope in that time. There is nothing particular odd or unmanageable about this type of claim that would make 11 years of litigation to get to this point “reasonable”.

Many negligence actions of this type have undoubtedly been commenced and completed within this same time frame. [ 28 ] However, although the delay is inordinate, I find it excusable for a number of reasons, albeit none of those cited by the Plaintiffs. [ 29 ] First, with respect to the Defendant’s motion to access the Property for testing, I decline to fault the Plaintiffs for opposing that motion. As mentioned, both parties were represented by counsel at that point so it is reasonable to assume that there were issues, tangential perhaps, that required adjudication.

Further, the Defendant could have applied to ensure access for testing at the very outset of the action. It was not solely the fault of the Plaintiffs that the Defendant’s motion was scheduled and heard in the timeframe it was, certainly not to the extent that would justify seeing their claim dismissed some 6 years after that motion was heard. [ 30 ] In general, the Plaintiffs have pushed the matter along, not with rigour, but with relative consistency, at least until they landed in Case Management.

The problem for the Defendant on this motion is that the Plaintiffs have been taking intermittent steps in the Action, including bringing their motion to set trial dates and alternatively, for

summary judgment. While some of their motions have not advanced the action, some arguably have. [ 31 ] As to the lack of progress while in Case Management, some of this is properly attributed to the Plaintiffs, but not all. COVID has slowed the progress of most civil actions.

At least one application in this Action was scheduled many times, in part because of the Court’s COVID scheduling protocols. [ 32 ] As I have found inordinate, but excusable delay, the Defendant could only succeed in having the Plaintiffs’ claims dismissed if it had established significant prejudice, which it has not. [ 33 ] It argues that it has suffered significant prejudice in two respects; the sheer passage of time and its inability to test the well on the subject Property.

I sympathize with the frustrations of the Defendant, who is attempting to defend itself regarding events from many years ago, some as far back as 1991 by its telling. However, as discussed above, the sheer passage of time is part of the analysis under inordinate and inexcusable delay. It does not, at least not here, function as a stand-alone non-descript category of significant prejudice. [ 34 ] The Plaintiffs say that this claim is completely reliant on documents, but that was not explained.

I expect that there will also be viva voce testimony needed at trial from witnesses who can speak to the actions of the Municipality and the effects on the Plaintiffs themselves. I have heard nothing about the unavailability of witnesses or any particular difficulty in preparing for trial. [ 35 ] The second significant prejudice alleged by the Defendant is the loss of its ability to test the well on the Property. Again, I recognize that the actions of Manulife interfering with the biology of the well may have put the Defendant, or even both parties, at an evidentiary disadvantage.

That was not the fault of the Plaintiffs’ delay, but rather the fault of a non-party to this Action. Evidence to the contrary may out at trial, but it is not before me. [ 36 ] It is clear from the nature of the allegations made by the Plaintiffs that expert evidence will play a very important role in the adjudication of this claim. The Plaintiffs’ testing has been completed for some time. The Defendant may still seek some testing opportunities or it may have its experts rebut the Plaintiffs’ evidence. Either way, the barriers to accurate testing which the Defendant now faces have existed since 2015.

Conclusion [ 37 ] The Plaintiffs have obstructed their own action over the course of Case Management beginning in 2017. Because of their attempts to take legitimate steps in 2020 and the institutional delays that contributed to the current state of affairs, I simply do not think it would be fair to outright dismiss their claim.

Because the Plaintiffs have been very “active” in Case Management - albeit generally trying to go around it - the proper remedy, in my view, is not complete dismissal of the Action, but rather a workable and comprehensive litigation plan. [ 38 ] As I have said before, I have no idea whether the Defendant is or is not legally responsible for any watershed problems that caused damage to the Plaintiffs. I do hope that the Plaintiffs can see their way through to cooperating with this Court’s efforts to secure trial dates so that a different judge can hear all the relevant evidence and give the Plaintiffs a decision.

However, if the Plaintiffs will not participate in the formulation of a litigation plan, I will impose it. This is their last chance to show that they believe they have a meritorious claim and are prepared to complete the steps necessary to save that claim from pre-trial dismissal. [ 39 ] I will provide both sides, by letter, with a draft Litigation Plan. I will give both sides the opportunity to raise any objections or concerns with the schedule, absent which it will be issued as a Procedural Order.

If a hearing is requested or required to finalize the Litigation Plan, I will hear the parties out and I may – or may not – amend the draft

Schedule before it becomes an Order. [ 40 ] Rule 4.31(1)(

b) gives me full authority to make any procedural Order required. Combined with the Foundational rules (Rule 1.2, 4.1 and 4.2) and my authority as the assigned Case Management Justice, I have extremely wide discretion to set the deadlines which

will govern this Action from here on out. If the Plaintiffs opt to ignore the draft Litigation Plan, the Defendant will then be at liberty to apply for striking of pleadings, dismissal of this Action, or other steps as a remedy for contempt. This will be true of every step and every deadline for both parties, once the Litigation Plan becomes an Order. [ 41 ] Accordingly, the Defendant’s motion to dismiss this action for delay is dismissed, but relief is granted under Rule 4.31(1)(b). Costs of this motion will be in the cause. Heard on the 3 rd day of June, 2021.

Dated at the City of Calgary, Alberta this 28 th day of July, 2021. M.H. Hollins J.C.Q.B.A. Appearances: Ms. Ellen Alston for the Plaintiffs/Respondents (written submissions only) Mr. David M. Pick For the Defendant/Applicant