Armitage v Alberta, 2021 ABQB 831

Court of Queen’s Bench of Alberta Citation: Armitage v Alberta, 2021 ABQB 831 Date: 20211021 Docket: 1503 07589 Registry: Edmonton Between: Brett Armitage Plaintiff - and - Her Majesty the Queen in Right of Alberta Defendant _______________________________________________________ Reasons for Decision of W.S. Schlosser , Master of the Court of Queen's Bench of Alberta _______________________________________________________ [ 1 ] This is a r 4.33 application to dismiss a wrongful dismissal lawsuit for delay. The lawsuit is not just about reasonable notice. Just cause is in issue.

The question for this application is whether the Defendant’s production of more than 1,700 records in electronic form constituted a significant advance. Facts [ 2 ] The relevant chronology is as follows: 1. On January 14, 2016, the Plaintiff’s Affidavit of Records was provided. It listed nine producible documents. 2. On Mach 14, 2016, the Defendant, HMQ, provided their Affidavit of Records, which listed more than 1,700 producible records. However, it was incomplete. The affidavit listed a set of ‘unnumbered’ records identified as ‘electronic information’ on ‘various dates’.

The numbered records consisted of performance reviews, disciplinary documents and internal communications which may have been on Mr. Armitage’s employment file but which he had not seen before.

3. On May 3, 2016, Plaintiff’s counsel asked whether HMQ could provide their records in electronic form. Plaintiff’s counsel also asked for questioning dates in late July or early August of 2016. 4. On May 30, 2016, HMQ’s records were produced in electronic form except for the unnumbered portion which HMQ was “currently vetting for confidential information”. HMQ provided no response to the request for questioning availability. 5. Then there were counsel changes on both sides. Plaintiff’s counsel moved to a different firm. HMQ’s counsel changed three times. 6.

On April 17, 2019, Plaintiff’s counsel wrote saying (in part); I have instructions to proceed to Questioning on this matter. It has taken some time to get instructions, and we are now coming up to the three-year period. I do not want to serve a notice to attend and force you and your representative to suddenly lurch into action on a file that has been sitting.

I would prefer that people have time to prepare, and that the questioning dates are mutually selected and not imposed on existing scheduling. [ 3 ] Plaintiff’s counsel was plainly operating on the basis that the three-year drop-dead period started with HMQ’s partial production of 1,700 electronic records on May 30, 2016. HMQ’s response to the April letter was that they had instructions to bring a r 4.33 application.

The parties entered into a standstill agreement effective April 17, 2019. [ 4 ] On October 1, 2019, despite the standstill agreement, HMQ provided a substantially revised Affidavit of Records removing privileged records and redacting confidential information. It is unclear whether the unnumbered records which HMQ had undertaken to review have ever been produced. [ 5 ] In December, 2020, HMQ finally took out a r 4.33 application. The application was initially set for regular morning chambers and then moved to a special chambers hearing September 20, 2021.

Context [ 6 ] This is a wrongful dismissal lawsuit by a 10-year employee whose lateral transfer did not work out. HMQ filed a comprehensive ‘kitchen-sink’ defense. However, the central issue plainly appears to be just cause. It is not your run-of-the-mill wrongful dismissal lawsuit where the only issue is the length of reasonable notice. [ 7 ] The roughly 1,700 documents produced by HMQ cover the last three years of Mr. Armitage’s employment. The Defendant’s production makes it clear that Mr.

Armitage’s conduct and performance was under the microscope during that time. [ 8 ] HMQ also provided very detailed descriptions of the documents they listed as producible records. The descriptions are coloured and suggest that the information these records contain are not favourable to Mr. Armitage. It seems clear from the production that the central issue will be hard fought. It is unclear how many of these documents Mr. Armitage would have known about in advance of HMQ’s Affidavit of Records.

However, it is also clear, given the context of this lawsuit, that virtually each producible record would have to be reviewed and explained if Mr. Armitage was to have any chance of success. [ 9 ] The merits of the lawsuit are irrelevant to a r 4.33 application, except to put the events in the lawsuit into context. It is the uncontroverted position of both parties that the Defendant’s Affidavit of Records, though incomplete, was a significant advance.

The issue in this application is whether production of these documents in electronic form also constituted a significant advance. [ 10 ] The r 5.6(2)(c)/5.14 notice on the Affidavit of Records provided: Notice the time when the producible records listed in this affidavit may be inspected is on weekdays between 9 am and 4pm. The place at which the producible records may be inspected is 9 th Floor, Peace Hills Trust Tower, 1011 – 109 Street, Edmonton, AB or as otherwise arranged. (Emphasis added) [ 11 ] The Plaintiff could have attended Peace Hills Trust Tower with his lawyer to review the records.

However, given the context and that potentially all of these records would have to be reviewed in some detail, that arrangement was less than ideal. In my view, the Plaintiff counsel’s letter of May 3, was an appropriate response and to be preferred over in-person paper inspection. The Law [ 12 ] Rule 4.33 and its predecessor (r 244.1) started out as bright-line rules. The decided cases listed steps and things that moved an action ahead.

The 2010 revision to the rules did away with ‘things’ and ‘steps’; instead, requiring the Court to look for significant advances. [ 13 ] The decided cases essentially took two approaches. On the one hand, there were a number of cases that listed events that did or did not constitute advances (eg Huerto v Caniff , 2014 ABQB 534 per Shelley J, Donnelly v Brick Warehouse Corporation , 2013 ABQB 621 per Yamauchi J).

However, the decided cases tell us that we are now to consider all events in the lawsuit, even those mandated by the rules, using a functional analysis to determine whether the event moved the action ahead in an essential way. There are a number of

definitions of what constitutes a significant advance, including an event that puts a party ‘in a better position rationally to assess the merits of their position ...’: Jacobs v McElhanney Land Surveys Ltd , 2019 ABCA 220 (at para 86 ).

[ 14 ] The most recent

summary of the correct approach to r 4.33 is provided by our Court of Appeal in Rahmani v 959630 Alberta Ltd , 2021 ABCA 110 at para 14 . This case tells us that notwithstanding the listing exercises that might provide guidance in determining whether an event constitutes a significant advance, each event is to be considered in context using the functional approach.

Previous cases are useful, but they are not determinative. [ 15 ] The result is that all events under scrutiny are to be considered, not only in the context of the particular lawsuit, but also in the context of the Foundational Rules. [ 16 ] These developments mean that what was once a bright-line rule has become almost entirely discretionary. The operation of the rule is mandatory, provided that there has not been a significant advance in the three years following the last uncontroverted significant advance ( Rahmani , para 15 ). [ 17 ] I acknowledge that HMQ brought this application on a solid foundation.

They cited Terroco Drilling Ltd v Tusk Energy Corporation , 2014 ABQB 419 . In that case, Master Hanebury found that the provision of 829 paper copies of records produced in an Affidavit of Records in a debt collection lawsuit did not amount to a significant advance. In the Tusk Energy decision, the paper copies, (apparently) consisted primarily of unpaid invoices. [ 18 ] This case is distinguishable from Tusk Energy . The context of this lawsuit is substantially different. It is much more complex than a debt collection.

Each of the produced documents in this case will have to be reviewed and responded to by the Plaintiff, who would not have known the case he had to meet until these documents were produced and inspected. [ 19 ] A party’s documents are technically produced when the Affidavit of Records is prepared and served. However, it is much more aligned with the practicalities of modern litigation to provide multiple records in electronic form rather than to appear in person and review paper copies individually. In this context, the provision of the electronic records constituted a significant advance.

It was production ‘as otherwise arranged’ as per the r 5.6(2)(c)/5.14 notice. Certainly, the questioning could not have occurred without these records being reviewed. Mr. Armitage could not have rationally assessed the merits of his position without going over these records one- by-one. Production of these records in this form and in this manner is consistent with Foundational Rule 1.2.

Accordingly, there is less than a three-year gap between the production of records in electronic form and the standstill agreement. [ 20 ] It might be added that in this case, document production was more of a process than a discrete event. As noted, Crown production was incomplete because there were a number of documents that HMQ had to review before they could be produced. This second part of the process was initiated by HMQ but apparently never completed. [ 21 ] The Court should consider events in a lawsuit pragmatically within the exigencies of modern litigation.

A more artificial and formalistic approach would frustrate the direction signified in Rahmani . [ 22 ] Rahmani also affirms that the purpose of r 4.33 is to prune out actions that have truly died (cf Alghazawi v Alberta , 2019 ABQB 208 at paras 12 and 13 ). I acknowledge that there was nearly a three-year gap in this case. However, I am not convinced that it had truly died. [ 23 ] Litigation delay is a corrosive problem, but the cause is almost never one-sided.

I note that the time between the standstill agreement and the hearing of this application involved one of the most dire public health events in modern history. However, the 28- month delay in having this motion heard is just shy of the drop-dead period set by the rule. The Plaintiff’s delay in moving things forward and the Defendant’s delay in bringing this motion has, in effect, doubled the problem that the delay rule is meant to solve. [ 24 ] Applicants should move with reasonable promptness.

Otherwise, the delay in bringing a delay application might, on its own, count as participation for the purposes of r 4.33(2)(b). [ 25 ] A standstill agreement is not a ‘suspension’ for the purposes of r 4.33(1)(c), (5). Moreover, a standstill is not a stay and it does not bind the Court. The threat of a delay application is itself not a de facto stay, and it does not relieve a party from ongoing obligations in the lawsuit. Whether a formal stay can be granted should be considered on a case-by-case basis commensurate with the situation when a

Summary Judgment application has been brought: P. Burns Resources Limited v Honourable Patrick Burns Memorial Trust , 2015 ABCA 390 (paras 7 , 9). [ 26 ] While a standstill agreement may relieve a party from the obligation to take steps in a lawsuit, it does not prevent the Court from considering events voluntarily undertaken following such an agreement. In this case, and were it necessary for my decision, the substantial revision of the Affidavit of Records might, on its own, constitute a significant advance. It might also constitute participation for the purposes of r 4.33(2)(B).

The fact that this file is so well papered speaks strongly in favour of the matter proceeding. [ 27 ] There are very few things that one party can do individually or unilaterally to advance an action. However, I would not rule out reviewing documents produced electronically as a significant advance where appropriate in context on the principle of Phillips v Sowan, 2007 ABCA 101 at para 3 . I note parenthetically, that ‘review of documents’ is a scheduled costs item under

Schedule C Item 3(2) included under the disclosure of information. [ 28 ] In all cases where an application to dismiss for delay under r 4.33 is not allowed, the parties should agree, or the Court should direct, a procedural order readying the case for determination. Disposition [ 29 ] The application is dismissed. Each side is to bear its own costs. The parties are to choose dates for Questioning within 30 days of the date of this decision.

Heard on the 20 th day of September, 2021. Dated at the City of Edmonton, Alberta this 21 st day of October, 2021. W.S. Schlosser M.C.Q.B.A. Appearances: Coralie Mohr Witten LLP for the Plaintiff/Respondent Frances Chiu/Lisa Friesenhan Alberta Ministry of Justice and Solicitor General for the Defendant/Applicant