Hartson v Park Paving Ltd, 2021 ABQB 742

Court of Queen’s Bench of Alberta Citation: Hartson v Park Paving Ltd, 2021 ABQB 742 Date: 20210917 Docket: 1403 14220 Registry: Edmonton Between: Jennifer Hartson & Her Majesty the Queen in the Right of Alberta Plaintiffs - and - Park Paving Ltd. & Sun Life Assurance Company of Canada & John Doe I & John Doe II Defendants _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice K. Feth _______________________________________________________ [ 1 ] The Plaintiffs appeal from an Order of Master W.S.

Schlosser, QC striking their action because the Plaintiff, Jennifer Hartson, failed to fully respond to undertakings given at questioning for discovery. A prior Court Order directed her to answer all outstanding undertakings by a specific date failing which her claim would be struck. [ 2 ] The Plaintiffs contend that the learned Master incorrectly decided that Ms. Hartson did not comply with some of her undertakings and failed to consider alternatives to striking the action.

The appeal also raises the novel question of whether the prior Court Order contemplated striking the entire action or only the claim against one of the Defendants.

[ 3 ] For the reasons to follow, the appeal is dismissed. Background [ 4 ] In a Statement of Claim filed on September 30, 2014, Ms. Hartson alleged that she sustained bodily injuries to her knee, wrist and arm as a result of a slip and fall incident in an Edmonton parking lot on November 1, 2012. [ 5 ] Sun Life Assurance Company of Canada was allegedly an occupier of the parking lot.

Park Paving Ltd. was allegedly the contractor tasked with removing snow from the parking lot. [ 6 ] On January 6, 2015, Park Paving entered a Statement of Defence, represented by Borden Ladner Gervais LLP. [ 7 ] On September 22, 2016, Borden Ladner Gervais LLP filed an Amended Statement of Defence by which it assumed carriage of the defence for Sun Life as well. [ 8 ] Questioning for discovery occurred on August 16, 2017, during which Ms. Hartson gave twenty-five undertakings. [ 9 ] By April 2019, twenty-two of the undertakings remained outstanding. On May 2, 2019, Master Schlosser granted an Order compelling Ms.

Hartson to answer the undertakings within 90 days (the “Deadline Order”). The

preamble to the Deadline Order states the application was brought by Park Paving. [ 10 ] Ms. Hartson failed to provide the answers by the deadline. [ 11 ] On August 9, 2019, Master L.R. Birkett, QC granted a Consent Order directing Ms. Hartson to provide the outstanding undertakings by close of business on August 23, 2019 “failing which the Plaintiff's claim shall be automatically struck without further application to this Honourable Court” (the “Consent Order”). The

preamble to the Consent Order states the application was brought by Park Paving. The two lawyers who endorsed the Consent Order signed it, respectively, as “solicitor for the Plaintiff, Jennifer Hartson” and “solicitor for the Defendant, Park Paving Ltd.” Sun Life was not referred to in the Consent Order. [ 12 ] The Consent Order did not expressly indicate whether the “Plaintiff’s claim” exposed to striking was the entire action or just the claim against Park Paving. [ 13 ] On August 9, 2019, Ms.

Hartson’s counsel provided a letter to counsel for the Defendants addressing the outstanding undertakings (“Undertakings Letter”). The Defendants’ position is that deficiencies still remained. I have organized the deficiencies into two groups. [ 14 ] First, Ms. Hartson was advancing claims for special damages, past and future loss of income, and loss of housekeeping capacity. She had undertaken to provide a breakdown and any supporting documents for each of those claims. The Undertakings Letter stated that those responses would be provided “by way of settlement proposal.” [ 15 ] Second, Ms.

Hartson undertook to use her best efforts to provide contact information for several individuals, to obtain the benefits file from her insurance company, and to determine her husband’s benefits provider.

To each of those undertakings, the response was that she was “unable to obtain” the information. [ 16 ] The Undertakings Letter stated that the Plaintiffs considered “all answers to Undertakings to be complete.” [ 17 ] As of the Court’s deadline on August 23, 2019, no additional information was furnished to substantively answer the undertakings. [ 18 ] On September 9, 2019, counsel for the Defendants wrote to the Plaintiffs’ lawyer identifying undertakings he believed to be outstanding or deficient, and giving Ms.

Hartson a “courtesy extension” until September 16, 2019 to provide full responses. [ 19 ] On September 16, 2019, the Plaintiffs’ lawyer informed the Defendants’ counsel that the settlement proposal addressing the first group of undertakings would be delivered by September 20, 2019. His position remained that all undertakings were complete. [ 20 ] On September 24, 2019, the Plaintiffs’ lawyer emailed a settlement proposal marked “without prejudice” to the Defendants’ counsel, which provided information about the special damages, loss of income, and loss of housekeeping capacity claims (“Settlement Letter’).

The Settlement Letter is not in evidence. The submissions before me state that the Settlement Letter contained “a one line, lump- sum assessment of the Plaintiff’s special damages claim without a breakdown or any documentation in support” and “estimated past and future loss of income and loss of housekeeping capacity claims without any documentation in support.” [ 21 ] On October 1, 2019, Sun Life filed a Notice of Change of Representation and was then represented by another law firm.

Park Paving continued to use Borden Ladner Gervais LLP. [ 22 ] On October 10, 2019, Park Paving’s counsel requested particulars from the Plaintiffs’ lawyer about what efforts, if any, Ms. Hartson had made in trying to obtain the information sought through the second group of undertakings. No response was provided. [ 23 ] Park Paving and Sun Life then brought separate applications to strike Ms. Hartson’s claim due to a breach of the Consent Order. [ 24 ] On November 22, 2019, Master Schlosser struck the action in its entirety. [ 25 ] On this appeal, no new evidence has been filed. Ms.

Hartson has not deposed to any affidavit addressing her responses to the

undertakings. [ 26 ] Counsel before me are not the lawyers who dealt with Ms. Hartson’s undertakings or the applications before the Masters. Issues [ 27 ] The appeal raises the following issues: a. Did the Consent Order contemplate striking the entire action or just the claim against Park Paving? b. Did Ms. Hartson fail to comply with the Consent Order? c. Should the remedy contemplated by the Consent Order be varied? Standard of review [ 28 ] An appeal from a Master’s Order is heard de novo . No deference is owed.

The standard of review is characterized as correctness: Bahcheli v Yorkton Securities Inc , 2012 ABCA 166 at para 30 . [ 29 ] New evidence is admissible on an appeal from a Master’s judgment or order: Rule 6.14(3) of the Alberta Rules of Court , Alta Reg 124/2010 (“ Rules ”). Defining the “claim” to be struck [ 30 ] Court orders are not interpreted in a vacuum. The

interpretation of an order, whether granted on consent or otherwise, involves consideration of the following: a. The pleadings in the action to which the order relates; b. The language of the order itself; and c. The circumstances in which the order was granted.

See: Manseau & Perron Inc v ThyssenKrupp Industrial Solutions (Canada) Inc , 2018 ABQB 949 at para 31 ; Campbell v Campbell , 2016 SKCA 39 at para 15 ; Sutherland v Reeves , 2014 BCCA 222 at para 31 . [ 31 ] An order, “whether by consent or awarded in an adjudicated disposition, is a decision of the court” and as such, “it is the court, not the parties, that determines the meaning of its order”: Yu v Jordan , 2012 BCCA 367 at para 53 .

However, the common intentions and understanding of the parties may inform the circumstances in which the order was granted, particularly for a consent order. [ 32 ] The Appendix to the Rules defines “claim” to mean “a claim in respect of a matter in which a plaintiff, originating applicant, plaintiff-by-counterclaim or third party plaintiff seeks a remedy.” [ 33 ] Master Schlosser understood the Consent Order to contemplate that the entire action would be struck if the outstanding undertakings were not answered.

The word “claim” was construed as the Plaintiffs’ entire claim against all parties, the action, or the Statement of Claim. [ 34 ] The Plaintiffs did not contest that

interpretation of the Consent Order before Master Schlosser.

In their Notice of Appeal and written submissions, no issue was raised about the Consent Order only applying to the claim against Park Paving. [ 35 ] On this appeal, Sun Life raised the issue in its written submissions, apparently out of an abundance of caution. [ 36 ] In oral argument, counsel for the Plaintiffs submitted that the word “claim” might refer to the claim against Park Paving alone since the singular tense was used, not “claims”, and the Consent Order was signed by a lawyer on behalf of Park Paving without reference to Sun Life. [ 37 ] I am not persuaded that the Consent Order was referring only to the claim against Park Paving.

The Defendants’ lawyer attended the Questioning while counsel for both Defendants, as confirmed by the Amended Statement of Defence. The claims against both Defendants substantially overlapped. No one suggests that the undertakings were given only for the benefit of Park Paving. [ 38 ] No rationale is offered for why the relief contemplated by the Consent Order would be limited to one Defendant. That narrow

interpretation of the remedy provision in the Consent Order implies that only Park Paving was compromised by Ms. Hartson’s failure to answer the undertakings in a timely manner and therefore Park Paving alone required relief. However, the undertakings were relevant to both Defendants’ interests. Both were prejudiced if she failed to answer. [ 39 ] The underlying implication of the narrow

interpretation is that the Defendants’ lawyer was only conducting the Questioning on behalf of Park Paving. If so, Sun Life’s Questioning was reserved for another time. However, the Plaintiffs’ lawyer fairly conceded before me that such an approach to the discovery process would be unusual. It would be inefficient and unduly expensive, particularly since the Defendants’ interests substantially overlapped. Personal injury litigators would not likely countenance such a strange

arrangement for a modest slip and fall claim. [40] When the application to strike was heard by Master Schlosser, the Plaintiffs did not advance this narrow

interpretation of theremedy provision. The Consent Order was the consequence of negotiations between counsel. If any party thought the negotiatedagreement confined the remedy to striking the claim against Park Paving alone, the issue presumably would have been mentioned at thattime. [41] The Deadline Order stated in the

preamble that the application to compel answers to undertakings was brought: “Upon theapplication of the Defendant, Park Paving Ltd.” The

preamble to the Consent Order similarly stated: “Upon the application of theDefendant, Park Paving Ltd.” and was consented to by the “solicitor for the Defendant, Park Paving Ltd.” [42] The

preamble to the Order does not form part of the Court’s decision, but can assist with

interpretation: Brook andSunnybrook Holdings Ltd v Calgary (City), (AB CA), [1971] 1 WWR 429 at 435. The purpose generally is to recitethe necessary antecedent events or findings to provide context and to enable a proper understanding of the Order granted: TLG v CJE,2020 ABQB 57 at para 6; Geherman v Geherman, 2004 ABQB 785 at paras 4-7. [43] In the context of these proceedings, I find that the reference to Park Paving alone was probably an error or slip as a result ofthe lawyer having originally represented only Park Paving.

The slip does not alter the terms of the decision in the Consent Order. [44] The circumstances in which the Consent Order was granted, the pleadings and the language of the Consent Order satisfy methat the parties and Master Birkett understood that the “claim” was the entire action. Compliance with the Consent Order [45] Given the de novo nature of the appeal, I have conducted a fresh inquiry into the Defendants’ applications.

a) Clarity of the Court Orders and actual notice [46] The Plaintiffs acknowledge that the obligation to answer the undertakings was clearly and unequivocally stated in both theDeadline Order and the Consent Order. [47] The Plaintiffs do not take issue with Ms. Hartson having been made aware of the contents of the Consent Order and herobligation to answer the undertakings prior to Master Schlosser’s decision.

b) Noncompliance with the undertakings [48] No additional responses to the undertakings have been delivered since Master Schlosser’s Order striking the action. However,the Plaintiffs contend that Ms. Hartson adequately responded to the undertakings before the deadline in the Consent Order oralternatively, fully satisfied her obligations when the Settlement Letter was delivered. [49] I reject both of those contentions. [50] First, a promise to provide a response in the future is not an answer. It is just another undertaking.

Substituting promise afterpromise is no delivery at all. [51] In Bains Engineering Corporation v 734560 Alberta Ltd, 2004 ABQB 780, affirmed 2005 ABCA 187, a response to anundertaking stating that an answer would be given at trial by an expert was held to be a “clear and apparent breach.” Such an answergives no particulars to the Defendants and denies them knowledge of the case to be met. [52] Second, responses to undertakings cannot be clothed in settlement privilege.

As explained in Nash v Snow, 2014 ABQB 355at para 44, “the inclusion of answers to undertakings in a without prejudice document, without a waiver of privilege, would render theanswers useless at trial or another process.” If the intention was that the Settlement Letter should serve a dual function, the letter couldhave expressly stated as much. The Settlement Letter is absent from the record before me because the privilege claim is still beingasserted. [53] Supplying undertaking responses shielded by privilege denies the other parties the ability to question the witness about theresponses at discovery and trial.

The answers are not binding so the trial issues cannot be narrowed and the litigation simplified. Inaddition, the Court cannot assess whether the undertakings have been properly answered, which interferes with the Court’s supervisionof the litigation process. [54] The latter concern is acute in this case. The description of the particulars provided by the Settlement Letter, even ifadmissible, is cursory. The vague description offers no comfort that the undertakings were fulfilled. A brief “lump sum” assessment ofspecial damages does not offer a breakdown. No supporting receipts have been supplied.

Similarly, any estimated loss of income, absentdocumentation, immunizes the estimate from any objective confirmation. The nature of the estimate for loss of housekeeping capacity isnot described. [55] The Plaintiffs argue that numerous medical documents have been produced from which the impact on Ms. Hartson’s incomeearning potential and housekeeping capacity can be deduced.

But the Defendants are not required to be detectives searching for clues.They sought and received promises of clarity. [56] The added complication is that the Settlement Letter apparently does not explain whether the lump sum and estimated losses

are the trial claim or a compromised claim for the purposes of settlement. The Defendants should not have to divine the meanings of the answers. [ 57 ] Ms. Hartson’s lawyers previously suggested that the answers are a first step and can be the subject of further questioning at discovery.

However, the purpose of such undertakings is to define the scope of and factual foundation for the claims so that repeated discoveries can be avoided, thereby minimizing the expense and delay for all litigants. [ 58 ] Providing nothing more than a lump-sum assessment of special damages fails to deliver either a breakdown or supporting documents.

Providing an estimated loss of income without documentation (e.g. pay records, income tax records, records of employment) fails to answer the undertaking. [ 59 ] At the hearing of the appeal, the Plaintiffs argued that if the answers to undertakings were clothed in privilege, the privilege could be unilaterally waived by the Plaintiffs. I do not agree. Settlement privilege belongs to both parties and cannot be unilaterally waived by one of them: Leonardis v Leonardis , 2003 ABQB 577 at para 5 ; TAM v MOG , 2021 ABQB 699 .

Moreover, no evidence is before me that the Plaintiffs communicated any waiver to the Defendants. [ 60 ] As for the second group of undertakings, Ms. Hartson pledged to use her best efforts to provide contact information for several individuals, to obtain the benefits file from her insurance company, and to determine her husband’s benefits provider. Her responses simply stated that she was “unable to obtain” the information. The Defendants raise concerns about the sufficiency of her efforts. [ 61 ] Ms. Hartson did not undertake to describe her efforts in obtaining the contact information for these individuals.

Concerns about the adequacy of her efforts are little more than speculation. While the evidence overall reveals some lack of diligence in pursuing third party contact information, that patina of neglect is not enough to impugn her responses to these undertakings. [ 62 ] The benefits file is more concerning. On August 9, 2019, the response to the undertaking was that Ms. Hartson could not obtain the file. By September 16, 2019, Ms. Hartson’s lawyer confirmed that a request had been submitted to her insurer for the benefits file, but that the insurer had not yet responded.

The implication is that a request had not been made before that time. [ 63 ] I find that Ms. Hartson failed to request the benefits file by the Court’s deadline. However, she took steps towards obtaining it by September 16, 2019. [ 64 ] Nothing before me indicates that a response from the insurer or the benefits file itself has now been produced to the Defendants. No explanation for the delay in conveying that information has been communicated to the Defendants. [ 65 ] On appeal from a Master’s order, the promising party has another opportunity to establish the necessary compliance, confirmed by new evidence.

Even though the action has been struck, the promisor can still comply with the Court’s previous order and in so doing, demonstrate that a variation is warranted so that the litigation may proceed. [ 66 ] The record here offers no comfort that Ms. Hartson is currently committed to honouring this undertaking in full. To the contrary, the obstinance in refusing to supply complete and admissible answers reveals that the discovery process will be further delayed. [ 67 ] Finally, Ms. Hartson reported that she was unable to determine her husband’s benefits provider.

The Defendants complain that her efforts are not explained. [ 68 ] Ms. Hartson is estranged from her husband. The undertaking did not ask Ms. Hartson to explain the efforts she took to acquire the requested information if it was not produced. She cannot be faulted for failing to provide an explanation she did not undertake to supply. [ 69 ] I find the answer to be fully responsive. While notes from a paralegal tasked with collecting information from Ms. Hartson raise concerns about the efforts made, that suspicion is not enough to impugn her direct answer. [ 70 ] In

summary, I conclude that multiple undertakings were not answered by the Court’s deadline. Answers to undertakings remained outstanding when Master Schlosser struck the action. They are still outstanding now, almost two years later. [ 71 ] The undertakings seek material information that could narrow the issues in the litigation and assist the Defendants in knowing the case to be met for trial. These are not technical breaches of the Consent Order.

A just remedy in the circumstances [ 72 ] The Defendants submit that the Consent Order is a binding contract, negotiated between the parties, which mandates the remedy on breach.

While I do not agree with that submission, striking the Statement of Claim remains the appropriate remedy. [ 73 ] In Custom Metal Installations Ltd v Winspia Windows (Canada) Inc , 2020 ABCA 333 at para 61 [ Custom Metal ], the Alberta Court of Appeal considered whether a consent order is evidence of a contract between the parties and if so, whether the negotiated remedy for a breach of the order dictates the outcome on a subsequent application.

In that case, the Order directed that the noncompliant litigant’s pleading would be struck if its corporate officer failed to attend for questioning by specified dates. [ 74 ] The Court of Appeal, at paras 42-43 and 57, distinguished between court orders arising in two discrete contexts: final consent orders determining the ultimate, substantive issues between the parties; and interlocutory consent orders advancing the litigation process, which are procedural in nature.

[ 75 ] Where a consent order resolves the ultimate, substantive issues, the order may be evidence of a contract between the litigants.

If a contract is found, the consent order will generally “only be varied on grounds of common or unilateral mistake, misrepresentation, fraud, or unilateral mistake where the opposing party was unaware of the mistaken understanding on a crucial point”: Simonelli v Ayron Developments Inc , 2010 ABQB 565 at paras 66-67 . [ 76 ] Where a consent order concerns an interlocutory procedural matter, the Court retains a discretion to determine whether a variation of the consent order is “just in the circumstances”: Custom Metal at paras 58-59 . [ 77 ] That exercise of discretion operates under Rule 9.15(4), which allows the Court to set aside, vary or discharge an interlocutory order “because information arose ... after the order was made” or “on other grounds that the Court considers just.” [ 78 ] A consent order to compel compliance with undertakings or document production in the discovery process is interlocutory and procedural: Custom Metal at paras 46, 50-51 and the authorities therein. [ 79 ] The Defendants argue that a variation is unavailable because the Plaintiffs have not applied to vary under the Rules .

However, the Plaintiffs’ written response submissions raised the possibility of a variation under Rule 9.15(4). They proposed that the action be restored and that the new remedy be another procedural order compelling Ms. Hartson to provide written answers and re-attend for questioning. I accept that as notice of an application. Even if a formal notice of application should have been delivered, that procedural irregularity could have been cured. [ 80 ] Rule 9.15(4) and the commentary in Custom Metal do not catalogue the considerations for determining what is just in the circumstances.

However, some direction may be taken from the purpose of the Rules and the principles regulating civil contempt remedies for the breach of comparable procedural orders. [ 81 ] The

interpretation and application of the Rules are assisted by the foundational principles in Rule 1.2 , including the following: 1.2(1) The purpose of these rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way.

(2) In particular, these rules are intended to be used ... (

b) to facilitate the quickest means of resolving a claim at the least expense, (

c) to encourage the parties to resolve the claim themselves, by agreement, with or without assistance, as early in the process as practicable, ... (

e) to provide an effective, efficient and credible system of remedies and sanctions to enforce these rules and orders and judgments.

(3) To achieve the purpose and intention of these rules the parties must, jointly and individually during an action, (

a) identify or make an application to identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense, ...

(4) The intention of these rules is that the Court, when exercising a discretion to grant a remedy or impose a sanction, will grant or impose a remedy or sanction proportional to the reason for granting or imposing it. [ 82 ] The foundational principles encourage timely, cost-effective and efficient proceedings.

The parties should be encouraged to settle issues, which invites some deference to their mutual preferences so long as the Court’s objectives are respected in protecting procedural fairness, promoting judicial economy, and advancing just outcomes. [ 83 ] When exercising a discretion, the Court seeks a remedy that is a proportional response to the reasons for granting the relief, given the interests at stake. [ 84 ] Reliance on a remedy provision in a procedural court order does not engage the Court’s civil contempt powers, but the analysis underlying the exercise of those powers has many parallels.

The purpose of the Court’s civil contempt power is “to achieve compliance with court orders and to uphold the court’s authority”: Dreco Services Ltd v Wenzel , 2004 ABQB 517 at para 66 . If contempt is purged by complying with the Court’s order after the deadline imposed, the sanction may be waived or suspended: Rule 10.53(3). [ 85 ] The reasons for a mandatory remedy provision in a Master’s procedural order are to promote compliance with the Order’s terms and to avoid an abuse of process.

The focus is on advancing the litigation, rather than the goal of upholding the authority of and respect for the Court more generally. The latter objective is regulated principally through civil contempt powers. [ 86 ] The civil contempt jurisprudence discusses many factors that influence a penalty or sanction to be imposed for breach of a court order, including a procedural order: see as examples McDonald Estate (Re) , 2012 ABQB 704 at para 55 and Precision Forest Industries Ltd v Cox , 2013 ABQB 524 at paras 55-56 .

However, those factors must be modified to reflect the confined rationale for the remedy in a Master’s procedural order. [ 87 ] Given that context and without being exhaustive, relevant considerations in assessing a variation that is “just in the

circumstances” may include: a. The magnitude of the breach and the impact on the litigation process; b. Any excuse offered for the breach, including whether intentional defiance or a lack of due diligence speaks to the litigant’s probable litigation conduct in the future; c. The context of the breach in the history of the litigation, including the effect of previous procedural orders and any pattern of conduct; d. Whether and to what extent the noncompliance with the Court’s Order has been addressed by the time the variation is sought; e.

The interests at stake in the litigation and the impact of the remedy on the administration of justice; f. Whether another remedy will adequately ensure timely, cost-effective and efficient proceedings; g. Any agreement between the parties about the remedy, which might invite some deference, subject to the Court’s overriding objectives; h. Whether another remedy provides a more proportional response to the reason for the relief. [ 88 ] In the present lawsuit, the outstanding undertakings concern significant matters and material information for the litigation.

The Defendants might need to retain experts depending on the answers. Further questioning might be necessary. In the absence of the requested information, I find that they will likely be prejudiced at trial. [ 89 ] The noncompliance with the Consent Order is substantial and persistent. No reasonable excuse is offered, except for an inaccurate assertion that Ms. Hartson’s answers are satisfactory. She has tendered no affidavit explaining her reasons for not complying.

The Plaintiffs instead rely on affidavits, from a paralegal working for the Plaintiffs’ lawyers, containing conclusory and erroneous assertions that the answers provided were adequate. [ 90 ] The overall pattern of delay in fully responding to the undertakings is prolonged, extending beyond four years. Neither the Deadline Order nor the Consent Order achieved the desired result. Even when the harshest remedy was imposed – striking the action – Ms. Hartson still did not provide sufficient answers. Some responses still remain outstanding. [ 91 ] Striking the action will deprive Ms.

Hartson of her claim, but the bodily injuries, even as alleged, are modest. Her own insurance benefits might have addressed some of the loss. [ 92 ] In the absence of an order striking the action, Ms. Hartson will be at liberty to withhold material information until trial, creating an abuse of process. Her overall approach has compromised timely, cost-effective and efficient proceedings. [ 93 ] The parties agreed that the remedy for another failure to fully answer the undertakings should be to strike the action. That outcome was negotiated with the benefit of legal counsel.

While not binding on me, the proposed remedy reflected the parties’ mutual sense of a just result. [ 94 ] Ms. Hartson submits that an alternative to striking the action is a procedural order compelling her to “respond in writing” to the undertakings and to re-attend at Questioning. However, a written response to the undertakings is precisely the commitment she has repeatedly failed to honour. [ 95 ] I conclude that striking the action remains just in the circumstances. Conclusion [ 96 ] The appeal is dismissed.

If the parties cannot settle the costs, they may write to me within 45 days to arrange for a process to decide the issues. Heard on the 8 th day of September, 2021. Dated at the City of Edmonton, Alberta this 17 th day of September, 2021. K. Feth J.C.Q.B.A.

Appearances: Martin G. Schulz Martin G. Schulz & Associates for the Plaintiffs Cory Ryan Borden Ladner Gervais LLP for the Defendant, Park Paving Ltd. Keanan Caouette Dentons Canada LLP for the Defendant, Sun Life Assurance Company of Canada