Grandin Park Properties Inc v, 2021 ABQB 805

Court of Queen’s Bench of Alberta Citation: Grandin Park Properties Inc v 803677 Alberta Ltd, 2021 ABQB 805 Date: 20211008 Docket: 1003 20189 Registry: Edmonton Between: Grandin Park Properties Inc. Plaintiff/Applicant/Respondent - and - 803677 Alberta Ltd.; carrying on business as Spasation Salon & Day Spa and Hussein Rahal, also known as Hasoon Rahal Defendants/Respondents/Applicants _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice James T.

Neilson _______________________________________________________ [ 1 ] This action by Grandin Park Properties Inc. (“Grandin”) is brought against 803677 Alberta Ltd. carrying on business as Spasation Salon & Day Spa (“Spasation”) and its sole director and shareholder, Hussein Rahal also known as Hasoon Rahal (“Rahal”). The action stems from damages resulting from a flood on June 8, 2008 of the premises leased by Spasation from Grandin at a commercial property in St.

Albert, Alberta. [ 2 ] The premises were originally leased to Spasation from 444347 British Columbia Ltd by a lease agreement in writing dated January 11, 1999 (the “Lease Agreement”). On April 30, 2007, Grandin assumed a 100% interest in the Lease Agreement pursuant to an acquisition of the property. [ 3 ] The trial of the action was originally scheduled for March 2-4, 2020 but was adjourned. Grandin now brings application seeking the following relief: a. Grandin’s February 17, 2021 application seeking an order for i.

Thrown away costs, on a full indemnity basis, as against the Defendants relating to the adjournment of the trial of this action; ii. Striking of the Statement of Defence for the Defendant Rahal, for spoliation of evidence; iii. By virtue of the striking of the Statement of Defence,

summary judgment against Rahal, in

favour of Grandin, in the amount of $658,716. b. In the alternative, to the relief requested in paragraphs 1a(i)and 1a(ii) above, the relief requested in Grandin’s February 10, 2020 application seeking to permit i. Questioning of Mr. Alnoor Virji (“Virji”) an accountant and relevant witness for the within proceedings and; ii. Amendments to Grandin’s Amended Statement of Claim. [ 4 ] Rahal brings his own application seeking the following: a.

An order for dismissal of the Plaintiff’s claim for inordinate and inexcusable delay causing prejudice, pursuant to Rule 4.31 of the Alberta Rules of Court , as the incident giving rise to the action occurred approximately 13 years ago and the Statement of Claim having been filed over 11 years ago; b. An order for thrown away costs arising from the adjournment of the scheduled trial on a solicitor and his own client basis; c. Alternatively, an order for thrown away costs arising from the adjournment of the scheduled trial for preparation for the trial pursuant to

Schedule C of the Alberta Rules of Court . Procedural History [ 5 ] The flood occurred on June 8, 2008. Grandin filed its Statement of Claim against Spasation on December 3, 2009. The action was defended and the parties served Affidavits of Records and conducted questioning of the corporate representatives. [ 6 ] Counsel for Spasation withdrew from the record on March 22, 2012. On August 14, 2012, the Statement of Claim was amended by court order dated August 13, 2012 to add Rahal as a Defendant asserting certain causes of action against him personally.

The amended claim alleged that Rahal was sole director and 100% shareholder of Spasation, who caused Spasation to breach the lease agreement with the Plaintiff. It alleged that Spasation was merely an agent or alter ego of Rahal, and that Spasation and Rahal has been unjustly enriched following the flood by payments by Spasation’s insurer, and by a tenant improvement allowance that had not been repaid. The order also directed Rahal, as corporate representative, to answer certain undertakings and questions taken under advisement arising out of questioning. [ 7 ] Rahal was noted in default on September 12, 2012.

Grandin applied for

summary judgment against Spasation and obtained an uncontested order against Spasation pronounced by T. D. Clackson, J. in the mount of $1,212,554 plus interest and costs. [ 8 ] Grandin then applied for and obtained an uncontested order for judgement against Rahal pronounced by Master W. S.

Schlosser on February 19, 2013, in the amount of $1,212,554 plus interest and costs. [ 9 ] Rahal filed an appeal of the Schlosser order, primarily based upon the failure of Grandin to properly serve him and the fact that he had no knowledge or notice of the Amended Statement of Claim, the noting in default or the application for default judgment. [ 10 ] On December 12, 2014, P.B. Michalyshyn, J. issued an order setting aside the Schlosser order, which was entered on September 9, 2015. Rahal filed a Statement of Defence on September 10, 2015. [ 11 ] On August 10, 2016, D. J.

Manderscheid, J. granted an order that Rahal shall post security in the amount of $30,000 in due course as security for Grandin’s costs representing the anticipated costs for the steps required to bring the within action to resolution. Upon depositing the security, the writ registrations against Rahal’s property shall be discharged. [ 12 ] On October 3, 2016, Rahal’s counsel again withdrew from the record. [ 13 ] Rahal attended for questioning, self-represented, on August 14, 2017.

In May, 2018, Grandin filed an application seeking, amongst other relief, an order for questioning on undertakings and to set a date for trial. Rahal attended for questioning on his undertakings on September 27, 2018. [ 14 ] On June 15, 2018, a Consent Order was pronounced by L. Ackerl, J. (the “trial order”) which among other things, set this matter for trial. On May 22, 2019, Grandin filed a form 37 Request to

Schedule a Trial Date. In the Request, counsel for Grandin confirmed, among other things, the following:

a) All questioning and undertakings given by persons questioned, under

part 5 of the Alberta Rules of Court have been conducted and discharged;

b) Grandin would be ready for trial by September 1, 2019; and

c) All known amendments to pleadings have been filed and served. [ 15 ] The action was scheduled to proceed to trial in the period March 2-4, 2020. On November 29, 2019, counsel for Grandin filed a form 39, Confirmation of Trial Date, confirming to the court on behalf of Grandin, that Grandin will be ready to proceed with trial and the scheduled trial dates. [ 16 ] On January 3, 2020, Rahal’s current counsel filed a notice of change of representation. On January 24, 2020, Grandin swore a supplemental Affidavit of Records.

[ 17 ] On January 30, 2020, counsel for Grandin wrote to the court to provide its list of witnesses as follows: “

a) Randy Baker;

b) Alfons Rosel;

c) Alnoor Virji (please note that the Plaintiff reserves the right not to call this witness pursuant to an agreement between counsel that Mr. Virji is to attend trial solely if counsel for the Plaintiff is able to question him and noting further that counsel for the Plaintiff has not questioned Mr. Virji as of the date of this letter)”. [ 18 ] On February 3, 2020, counsel for Rahal provided the Defendant’s list of witnesses as follows: “

a) the Defendant, Hussein Rahal, also know as Hasson Rahal;

b) Yehia Assaf;

c) in the event that the Plaintiff does not call Alnoor Virji as a witness, then the Defendant anticipates calling him as a witness.” The Events Leading to the Adjournment of the Trial [ 19 ] On February 10, 2020, less than one month prior to the trial, Grandin filed an application seeking an order permitting an Amended Amended Statement of Claim that included new causes of action against Rahal. Grandin also sought an order to vary the Trial Order to grant Grandin the opportunity to question Mr.

Alnoor Virji on or about February 24, 2020, approximately six days before commencement of the scheduled trial. [ 20 ] On February 19, 2020, Justice Manderscheid ordered that the application to further amend the Amended Statement of Claim be heard at the trial of the action. [ 21 ] On February 24, 2020, Rahal swore a supplemental Affidavit of Records, in anticipation of having to respond to new allegations against him if the application to further amend the Amended Statement of Claim was granted by the trial judge. [ 22 ] On March 2, 2020, Justice Ouellette ordered that the trial scheduled to begin on March 2, 2020 be adjourned sine die .

Grandin’s February 17, 2021 Application [ 23 ] I will consider the issues of spoliation and the application to strike Rahal’s Statement of Defence and enter

summary judgment against him, as raised by Grandin in its February 17, 2021 application. Spoliation [ 24 ] The Plaintiff contends that, since the loss caused by the flood and during the course of the subsequent litigation, Rahal has intentionally or negligently caused relevant and material records to be destroyed or lost, thereby affecting the Plaintiff’s ability to prove its claims which could affect ultimately the litigation’s result. Grandin contends that Rahal’s Statement of Defence should therefore be struck.

In reply, Rahal has attested that there was no destruction of evidence, intentionally or negligently, that would impede the ability of the trier of fact to find the truth and reach a just determination of the issue. [ 25 ] The Alberta Court of Appeal, in McDougall v Black & Decker Canada Inc , 2008 ABCA 353 has analyzed the law of spoliation.

Spoliation is not an independent cause of action but is, rather, an evidentiary principle. [ 26 ] The Court in McDougall summarized the law of spoliation at paragraph 29 as follows: In conclusion, therefore, I would summarize the Canadian law of spoliation in the following way: 1. Spoliation currently refers to the intentional destruction of relevant evidence when litigation is existing or pending. 2. The principal remedy for spoliation is the imposition of a rebuttable presumption of fact that the lost or destroyed evidence would not assist the spoliator.

The presumption can be rebutted by evidence showing the spoliator did not intend, by destroying the evidence, to affect the litigation, or by other evidence to prove or repel the case. 3. Outside this general framework other remedies may be available – even where evidence has been unintentionally destroyed. Remedial authority for these remedies is found in the court’s rules of procedure and its inherent ability to prevent abuse of process, and remedies may include such relief as the exclusion of expert reports and the denial of costs. 4.

The courts have not yet found that the intentional destruction of evidence gives rise to an intentional tort, nor that there is a duty to preserve evidence for purposes of the law of negligence, although these issues, in most jurisdictions, remain open. 5. Generally, the issues of whether spoliation has occurred, and what remedy should be given if it has, are matters best left for trial where the trial judge can consider all of the facts and fashion the most appropriate response. 6.

Pre-trial relief may be available in the exceptional case where a party is particularly disadvantaged by the destruction of evidence.

But generally this is accomplished through the applicable rules of court, or the court’s general discretion with respect to costs and the control of abuse of process. [ 27 ] In the case at bar, I consider that the issues relating to the claim of spoliation are best left for trial, where the trial judge can consider all of the facts and fashion the most appropriate response. Rahal denied any intentional destruction of evidence.

The trial court would have to determine, if intentional spoliation is established, what remedy must follow, whether it be the imposition of a rebuttable presumption against the Defendant, or any other remedy available under the court’s rules of procedure. This is not an exceptional case where the issue can be resolved in a pre-trial application.

Striking the Statement of Defence [ 28 ] Under the Alberta Rules of Court , Rule 3.68 sets out the circumstances where the court may strike out pleadings: 3.68(1) If the circumstances warrant and a condition under subrule (2) applies, the Court may order one or more of the following: (

a) that all or any part of a claim or defence be struck out; (

b) that a commencement document or pleading be amended or set aside; (

c) that judgment or an order be entered; (

d) that an action, an application or a proceeding be stayed.

(2) The conditions for the order are one or more of the following: (

a) the Court has no jurisdiction; (

b) a commencement document or pleading discloses no reasonable claim or defence to a claim; (

c) a commencement document or pleading is frivolous, irrelevant or improper; (

d) a commencement document or pleading constitutes an abuse of process; (

e) an irregularity in a commencement document or pleading is so prejudicial to the claim that it is sufficient to defeat the claim. [ 29 ] In the circumstances of this case, none of the conditions for an order striking the Statement of Defence as set out in Rule 3.68(2) are met. There is no issue with respect to jurisdiction, a reasonable defence to the claim is pleaded, the pleading is not frivolous, irrelevant or improper, nor does it constitute an abuse of process. There is no irregularity in the Statement of Defence prejudicial to the claim.

Summary Judgment [ 30 ] Grandin asserts that

summary judgment ought to be granted as the result of the striking of Rahal’s Statement of Defence. However, in addition, Grandin contends that it has made out a case for

summary judgment against Rahal pursuant to Rule 7.3 and the principles relating to

summary judgment as set out by the Court of Appeal in Weir-Jones Technical Services Incorporated v Purolator Canada Ltd , 2019 ABCA 49 . [ 31 ] In Weir-Jones , the Court of Appeal sets out its

summary of the proper approach to

summary dispositions at paragraphs 47, as follows: [47] The proper approach to

summary dispositions, based on the Hryniak v Mauldin test, should follow the core principles relating to

summary dispositions, the standard of proof, the record, and fairness. The test must be predictable, consistent, and fair to both parties. The procedure and the outcome must be just, appropriate, and reasonable. The key considerations are:

a) Having regard to the state of the record and the issues, is it possible to fairly resolve the dispute on a

summary basis, or do uncertainties in the facts, the record or the law reveal a genuine issue requiring a trial?

b) Has the moving party met the burden on it to show that there is either “no merit” or “no defence” and that there is no genuine issue requiring a trial? At a threshold level the facts of the case must be proven on a balance of probabilities or the application will fail, but mere establishment of the facts to that standard is not a proxy for

summary adjudication.

c) If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate from the record that there is a genuine issue requiring a trial. This can occur by challenging the moving party’s case, by identifying a positive defence, by showing that a fair and just

summary disposition is not realistic, or by otherwise demonstrating that there is a genuine issue requiring a trial. If there is a genuine issue requiring a trial,

summary disposition is not available.

d) In any event, the presiding judge must be left with sufficient confidence in the state of the record such that he or she is prepared to exercise the judicial discretion to summarily resolve the dispute. To repeat, the analysis does not have to proceed sequentially, or in any particular order. The presiding judge may determine, during any stage of the analysis, that

summary adjudication is inappropriate or potentially unfair because the record is unsuitable, the issues are not amenable to

summary disposition, a

summary disposition may not lead to a “just result”, or there is a genuine issue requiring a trial.

[ 32 ] The Plaintiff contends that the Court record is actually complete enabling the Court to render judgment on a

summary basis – notwithstanding the previous assertion that relevant and material records have been lost or destroyed impairing the Plaintiff’s ability to prove its claims against Rahal. [ 33 ] The claim for judgment in the total amount of $658,716 is derived from deposits and payments made by Spasation’s insurer following the flood. Among other coverages, the insurer had issued “all risks” coverage for Spasation’s property located on the leased premises. [ 34 ] The insurance coverage that Spasation was obliged by the lease term to put into place, and was put into place, included the coverage in

article 11.01 (a)(

i) as follows: “All Risk” Insurance upon its merchandise, stock-in- trade, furniture, fixtures, improvements, doors and windows and upon all other property in the Premises owned by the Tenant or for which the Tenant is legally liable, in an amount equal to the full replacement value thereof, which amount shall be determined by the decision of the Landlord, acting reasonably, in the event of a dispute. [ 35 ] The policy further provided in

article 11.01(

b) as follows: Each policy of insurance required of the Tenant as aforesaid shall name the Landlord and any person or corporations designated by the Landlord as additional named insureds as their interests may appear and shall be primary, non-contributing with, and not excess of any other insurance available to the Landlord, contain a prohibition against cancellation or material change that reduces or restricts such insurance…be in a form with insurers satisfactory to the Landlord, and shall include a waiver of rights of subrogation against the Landlord, its employees and those for whom the Landlord is in law responsible, a cross liability and/or severability of interest clause protecting the Landlord against claims by the Tenant as if the Landlord were separately insured as well as a clause that the insurer will not cancel or change or refuse to renew the insurance without first giving the Landlord 30 days prior written notice.

All such policies will be with insurers acceptable to the Landlord and the Tenant shall deliver to the Landlord immediately upon request, but in any event prior to January 31 and each year of the term thereof, a copy of all such polices or certificates of such insurance. [ 36 ] Spasation’s insurer made payments to it totalling $658,716 as the result of the flood damage sustained Spasation. These payments are as follows: a. A deposit of $25,174.80 from December 31, 2008; b. A deposit of $91,335.20 from December 31, 2008; c. A deposit of $85,134 from March 31, 2009; d.

Insurance deposits of $170,000 from Spasation’s financial year end, June 30, 2009; e. $104,932 from Spasation’s financial year end, June 30, 2011; and f. $182,140 from Spasation’s financial year end, June 30, 2011.

The Plaintiff claims that the tenant was in breach of its contractual obligations under the lease, to have the Plaintiff named as an insured under the policy. [ 37 ] The Plaintiff claims that none of the insurance proceeds were forwarded to it as landlord, and furthermore, that Spasation did not complete repairs to its premises and ceased to carry on business after the flood. [ 38 ] The Plaintiff claims that Rahal diverted these insurance funds into his own account, and to other related corporations owned and directed by Rahal.

Although it was not specifically addressed in written submissions, counsel for the Plaintiff made oral submissions that this “diversion” constituted an unjust enrichment of Rahal, citing the test in the Supreme Court of Canada’s decision in Garland v Consumers’ Gas Co. 2004 SCC 25 , [2004] 1 SCR 629 namely, an enrichment of the Defendant, a corresponding deprivation of the Plaintiff, and an absence of juristic reason for the enrichment. [ 39 ] The claim is that Rahal has been unjustly enriched by these funds which were properly payable to the Plaintiff. [ 40 ] The Plaintiff points to the covenant in clause 11.01 “Tenant’s Insurance” in the lease agreement entered into between the previous landlord 444347 British Columbia Ltd. and Spasation dated January 11, 1999.

This lease was assigned to Grandin as landlord. Grandin claims that the tenant breached

article 11.01 (

b) in that it failed to designate it as an additional named insured, as its interests may appear and shall be primary, non-contributing with, and not excess of any other insurance available to the landlord.

However, although it appears that the landlord was not included as a named insured, it also appears that this was not brought to the attention of the tenant by the landlord when the policy was assigned to it by the previous landlord. [ 41 ] It appears, however, that the policy proceeds paid by the insurer to Spasation were to indemnify Spasation for the loss or damage to its property as set out in the “All Risk” coverage. There was no obligation by Spasation’s insurer to indemnify Grandin for any of its losses.

On its face, then, there is an issue whether there is any basis for the landlord to claim entitlement to the policy proceeds paid to Spasation. The owner presumably had its own insurance coverage which permitted it to proceed with repairs of damage to its own premises. There is no indication that Spasation’s insurer was advancing any subrogated claim against the landlord resulting from the flood damage, so the landlord was not exposed to any possible liability to the tenant for any loss, notwithstanding that it was not named as an insured under the policy. [ 42 ] There is no contract between Rahal and Grandin.

The lease was between Spasation and the original landlord, and assigned to Grandin. Rahal is not a guarantor of Spasation’s obligations under the lease. Grandin alleges that Rahal was the alter ego of Spasation, this notwithstanding that the lease was entered into in January 1999 and Spasation carried on business in the leased premises, including

the payment of rent, from 1999 until the flood in June 2008. [ 43 ] In its pleading, Grandin asserts that the corporate veil ought to be pierced by the court, in order that Rahal be fixed with liability for any obligations owning by Spasation to Grandin. These are triable issues and are not amenable to

summary judgment. [ 44 ] I conclude, therefore, that Grandin has not made out a case for

summary judgment against Rahal at this stage of the proceedings. Issues remain that would require evidence and consideration by the trial judge. Dismissal for Want of Prosecution [ 45 ] The flood occurred in 2009 and this litigation was commenced in 2011. Rahal was joined as an individual defendant in 2012.

Default judgment was entered against Spasation in 2012 and that judgment remains unsatisfied. [ 46 ] Each party has set out, in detail, the history of this litigation. [ 47 ] In his application to dismiss the action for delay, Rahal cites Rule 4.31 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. [ 48 ] Rahal is not asserting that three or more years have passed without a significant advance in an action, that would result in a dismissal of the action pursuant to Rule 4.33(2). Rather, Rahal asserts that the overall delay has been inordinate and inexcusable.

Courts have held that, where a delay has been at least 10 years prejudice may be presumed because of the passage of time and the fading of memory as well as the possible loss of pertinent evidence: Mintage Financial Corporation v Altenhofen , 2013 ABQB 486 at paragraphs 38-39 ; Regco Petroleums Ltd v Gerling Canada Insurance Co. , 2014 ABQB 459 , Simpson v Canada (Attorney General) , 2015 ABQB 451 ; ML Bruce Holdings Inc v Ceco Developments , 2015 ABQB 604 . [ 49 ] In this case, while the delay may be styled as inordinate, I do not find that it is inexcusable. [ 50 ] There have been periods of time during this litigation when delay can be attributed to Rahal.

After the Statement of Claim was amended in 2012, he was noted in default and was obliged to apply for leave to open up the nothing in default. This was granted by order of the court in December 2014 but he did not file a Statement of Defence until September 10, 2015. There were two periods of time when Rahal was no longer represented by counsel, and the Plaintiff applied twice to compel answers to undertakings given by Rahal as corporate representative of Spasation, and later as an individual defendant.

Therefore, much of the delay before the action was set for trial can be attributable to Rahal resulting from the periods of his inactivity and tardy response. [ 51 ] More recently, the parties set the case down for trial on the agreed dates. Rahal’s present counsel were retained in early 2020 and were prepared to proceed to trial as scheduled.

No delay is attributable to Rahal and his counsel leading up to the scheduled date for trial. [ 52 ] I find that, while there has been overall delay in the prosecution of this litigation against Rahal, I do not find that the delays have been inexcusable by the Plaintiff and I do not order that the action against Rahal be dismissed for delay.

Grandin’s February 17, 2020 Application to Amend the Amended Statement of Claim [ 53 ] The Application to amend the Amended Statement of Claim was filed less than a month before the scheduled trial date, and notwithstanding the previous representations by counsel that the matter was ready for trial and no further amendments were required. The original amended statement of claim consisted of 36 paragraphs, whereas the proposed Amended Amended Statement of Claim has 86 paragraphs.

Rahal refused to consent to the proposed Amended Amended Statement of Claim shortly before trial on the basis that it would open up new claims and avenues for further discovery resulting in further delay and prejudice to Rahal. Manderscheid, J. ordered that the application for these further amendments would have to be heard on the first scheduled date of trial. [ 54 ] Some of the proposed new allegations provide particulars of causes of action that had been previously alleged, including alter ego, diversion of funds, and unjust enrichment.

It is generally recognized that amendments can be permitted at any time during litigation and even at trial. However, in this circumstance where the application was made to amend at the eve of trial, a court must also consider any unfairness placed on the opposite party. In particular, I note that the proposed Amended Amended Statement of Claim is now alleging fraud as against Rahal in paragraphs 59, 62, 63 and 78, specifically fraud, fraudulent conveyance and fraudulent preference.

In these circumstances, the courts have ruled that proposed amendments setting out allegations of fraud may not be permitted where they are not properly supported in evidence, as is the case here: Mikisew Cree First Nation v Canada , 2002 ABCA 110 at para. 61 ; Balm v 3512061 Canada Ltd. , 2003 ABCA 98 at para 63 . The evidentiary basis for claims of fraud, requiring a higher bar than other types of allegations, have not been made out in this case. Accordingly, I grant leave to the Plaintiff to file and serve its Amended Amended Statement of Claim, but deleting paragraphs 59, 62, 63 and 78.

Questioning of Alnoor Virji [ 55 ] Alnoor Virji was the independently retained accountant for Spasation. [ 56 ] The Plaintiff complains that Mr. Virji was being produced as a witness at trial, contrary to terms that had been agreed between counsel for the Plaintiff and Rahal’s previous counsel. In particular, Plaintiff’s counsel states at paragraph 117 of its chambers brief as follows: Between February 14, 2019 and February 19, 2019, counsel for Grandin and counsel at the time for Rahal, agreed in writing that Mr.

Virji would not be questioned nor brought as a witness to the trial by either party, without first permitting Grandin to question the witness. [ 57 ] In reviewing the produced correspondence, I do not find that there was any such agreement. Leading up to February 2019, Rahal’s previous counsel had not been able to locate Mr. Virji. The time was approaching to file a list of witnesses. Counsel for Rahal wanted assurance from counsel for the Plaintiff that, if Mr. Virji was not produced as a witness at trial, then no adverse inference would be drawn. [ 58 ] Counsel were insistent on their intent to question Mr.

Virji in advance of trial, but no such application was made on a timely basis. Also, it is not clear what legal basis would permit questioning of Mr. Virji pursuant to Rule 5.17. He was not Rahal’s accountant and Rahal has no control over or property in that witness. [ 59 ] In any event, Mr. Virji was subsequently located. He refused to be interviewed by Plaintiff’s counsel but was served by the Plaintiff with a Notice to Attend the trial scheduled for March 2-4, 2020. He indicated that he would attend. [ 60 ] There would be no unfairness to the Plaintiff if Mr.

Virji testified pursuant to the Plaintiff’s Notice to Attend, but counsel for the Plaintiff held up this as a reason, or excuse, for the Plaintiff’s unpreparedness to proceed with the trial as scheduled. [ 61 ] The questioning of Mr. Virji under the Rules of Court is not specifically before me in this application but was reserved as a matter to be pursued pursuant to the adjournment order. I make no order in these reasons as to the questioning of Mr. Virji under the Rules of Court .

Costs of the Adjournment [ 62 ] Each party blames the other for the adjournment of the trial and is claiming thrown away costs as a result. [ 63 ] However, the adjournment was precipitated by the application on the eve of trial to amend the Amended Statement of Claim, which was not consented to by the Defendant and would have to be decided by the trial judge, with only three days having been scheduled for the trial. It was also precipitated by Grandin’s last minute demand to examine Mr.

Alnoor Virji just days before the trial. [ 64 ] Grandin claims that the adjournment was prompted by the recent disclosure of Rahal’s Supplemental Affidavit of Records involving 650 pages, 25% of which had not been previously produced according to counsel.

It is not apparent, however, as to the relevance and materiality of the records not previously produced, nor is it established that the Plaintiff could not proceed to trial, notwithstanding that recent production. [ 65 ] Grandin also takes the position that Rahal’s counsel did not honour the agreement between the parties concerning the treatment of evidence to come from Mr. Virji for the purposes of trial. Rahal takes the position that there was no such agreement, and I do not find any such agreement. It was Grandin’s decision not to proceed to trial, notwithstanding that Mr.

Virji had been served with a Notice to Attend as Witness and indicated that he would attend to testify. [ 66 ] Rahal’s counsel were prepared to proceed to trial on the scheduled dates, on the basis of the existing pleadings. [ 67 ] I find that the adjournment was precipitated by a strategic decision by the Plaintiff not to proceed with the trial as scheduled. I do not award Grandin its thrown away costs for the adjournment. On the other hand, I do award Rahal his thrown away costs for the adjournment as he was prepared to proceed to trial.

Conclusion and Ruling on Costs [ 68 ] I dismiss Grandin’s February 17, 2021 application for thrown away costs, for an order striking Rahal’s Statement of Defence, and for an order for

Summary Judgment against Rahal. Costs of this application requiring written briefs are payable by Grandin to Rahal under Column 4 of

Schedule C of the Rules of Court. [ 69 ] Grandin’s February 10, 2020 application was only partially successful in relation to the proposed Amended Amended Statement of Claim, and no order was made with respect to the questioning of Mr. Virji. I make no order as to costs with respect to Grandin’s February 10, 2020 application. [ 70 ] Rahal is awarded his thrown away costs arising from the adjournment of the scheduled trial, for preparation for the trial pursuant to Column 4 of

Schedule C of the Rules of Court . [ 71 ] Rahal’s application to dismiss the action for delay is dismissed, but his application for thrown away costs was allowed. Grandin is awarded one half of its costs in relation to Rahal’s application requiring written briefs, payable by Rahal under Column 4 of

Schedule C of the Rules of Court . The costs payable to Grandin by Rahal are to be offset from the costs payable by Grandin to Rahal in respect of Grandin’s February 17, 2021 application and the thrown away costs payable by Grandin to Rahal arising from the adjournment of the trial. Heard on the 22 nd day of April, 2021 to the 23 rd day of April, 2021. Dated at the City of Edmonton, Alberta this 7 th day of October, 2021. James T. Neilson J.C.Q.B.A. Appearances: Bryan West and Myriam Hacault McCarthy Tétrault LLP for the Plaintiff/applicant/respondent Sigurd Delblanc and Robyn Graham Bryan and Company LLP for the Defendants/respondents/applicants