Ross v Rancho Realty (Edmonton) Ltd, 2021 ABQB 921

Court of Queen’s Bench of Alberta Citation: Ross v Rancho Realty (Edmonton) Ltd, 2021 ABQB 921 Date: 20211117 Docket: 1412 00137; 1612 00275 Registry: Wetaskiwin Between: Docket: 1412 00137 Jane Ross and Her Majesty the Queen in Right of Alberta Plaintiffs - and - Rancho Realty (Edmonton) Ltd and Condominium Corporation No 0621607 Defendants And Between: Docket: 1612 00275 Norman Martz and Lorraine Martz as the Personal Representative of Neil Joseph Martz Plaintiffs - and - Blair MacCormac and Sharon MacCormac Defendants _______________________________________________________ Reasons for Decision of B.W. Summers , Master, Court of Queen's Bench of Alberta

_______________________________________________________ [ 1 ] These Reasons for Decisions apply to two unrelated actions. In both actions the Defendants apply for dismissal for delay under Rule 4.33 or alternatively under Rule 4.31. [ 2 ] The reason why they are brought together is that counsel in both actions are the same and the two actions proceeded in lockstep with respect to the latter steps taken in each action. [ 3 ] The Ross v Rancho Realty action deals with a slip and fall that occurred in 2012 (“ Ross Action”).

The Martz v MacCormac action deals with a collision between a motorcycle and a vehicle in 2014 (“ Martz Action”). Liability and damages are in issue in both actions (“Both Actions”). With respect to the Martz Action damages are sought under the Survival of Actions Act and the Fatal Accidents Act as Neil Joseph Martz died in the collision. [ 4 ] Questioning of the Plaintiffs in the Martz Action occurred in June of 2017.

Questioning of the Plaintiff Jane Ross in the Ross Action occurred in September of 2017. [ 5 ] As there was delay in the Plaintiffs answering undertakings, the Defendants filed applications to compel answers to undertakings. A consent order dated April 3, 2018 was granted in each action. Responses to undertakings were provided in the Ross Action on May 28, 2018. Responses to undertakings were provided in the Martz Action on May 29, 2018. [ 6 ] There has been no questioning of the Defendants in either Action.

Rule 4.33 [ 7 ] Rule 4.33 provides in part: Dismissal for long delay 4.33(1) In this rule, (a) “applicant” means a party to an action who makes an application to dismiss the action for delay as set out in this rule; (b) “respondent” means a party who has filed a commencement document; (c) “suspension period” means, in subrules (5) to (9), a period that ends on (

i) a specific date, or (ii) the happening of a specific event.

(2) If 3 or more years have passed without a significant advance in an action, the Court, on application, must dismiss the action as against the applicant, unless (

a) the action has been stayed or adjourned by order, an order has been made under subrule (9) or the delay is provided for in a litigation plan under this Part, or (

b) an application has been filed or proceedings have been taken since the delay and the applicant has participated in them for a purpose and to the extent that, in the opinion of the Court, warrants the action continuing. [ 8 ] The key provision in this rule is that the Court must dismiss an action if three or more years have passed without a significant advance in the action. [ 9 ] Counsel for the Defendants acknowledges that the responses to undertakings given by the Plaintiffs were significant advances in each of the Actions.

However, he asserts that they were the last steps that significantly advanced the Actions. [ 10 ] On August 13, 2021 an application was filed in each Action on behalf of the respective Defendants, seeking dismissal for delay. Counsel for the Defendants says that he waited to file his applications on that date because it was after expiry of the three year anniversary of the last step in the Martz Action (May 29, 2018) plus 75 days. (Since the responses to undertakings in the Ross Action were provided on May 28, 2018 it would be plus 76 days in that action).

He states that he allowed for the extra days in case the effect of Ministerial Order 27/2020 was to extend the time deadline of three years under Rule 4.33. [ 11 ] The key provisions within Ministerial Order 27/2020 are as follows: 1. Limitation periods are suspended in the enactments under Appendix A from March 17, 2020 to June 1, 2020. 2. Any period of time within which any step must be taken in any proceeding or intended proceeding is suspended subject to the discretion of the court, tribunal, or other decision-maker from March 17, 2020 to June 1, 2020. 3.

For clarity, the limitation period or period of time resumes running on June 1, 2020 and the temporary suspension period shall not be counted.

[ 12 ] Counsel for the Defendants states that it is only the second paragraph that I need to consider as the time period of three years set out in Rule 4.33 is not a limitation period in an enactment under Appendix A. That assertion may not be correct. [ 13 ] There is no Appendix A to Ministerial Order 27/2020 but there is an Appendix I. At the top of that Appendix it states: “The following enactments including all regulations under these statutes:”. There are over 100 enactments listed in this Appendix. In the list of enactments is the Judicature Act.

The Alberta Rules of Court are found within Regulation 124/2010. This is a regulation enacted under and pursuant to the Judicature Act. [ 14 ] In Rahmani v 959630 Alberta Ltd , 2021 ABCA 110 (“ Rahmani” ) the Court of Appeal provided a very useful list of legal principles that could be discerned from the decisions of that Court in interpreting Rule 4.33.

Included in that list (at paragraph 14) was the statement that: “Rule 4.33 functions like a limitations period.” [ 15 ] However, I need not decide if Rule 4.33 creates a “limitation period” within the meaning of the first paragraph of Ministerial Order 27/2020 as I believe that the extension of 75 days is available under the second paragraph of the Ministerial Order. The second point states that any period of time within which any step must be taken in any proceeding is suspended, subject to the discretion of the court.

To me, that means that the court has the discretion to take away the suspension, but the starting point is that it is available. [ 16 ] In this case, I will not exercise my discretion to take away the 75 day suspension allowed under the Ministerial Order for the simple reason that such discretion should only be exercised with respect to Rule 4.33 under the most compelling circumstances, since the application of the rule is a death sentence for the cause of action.

There are no compelling circumstances such that I should exercise my discretion to take away the 75 day suspension under the second paragraph of Ministerial Order 27/2020. [ 17 ] The net result of this ruling is such that I must determine if a significant advance was made within three years and 75 days from May 28, 2018 in the Ross Action and from May 29, 2018 in the Martz Action.

The Ross Action [ 18 ] The chronology of events listed in the Plaintiffs’ Brief in the Ross Action, after the response to undertakings were given on May 28, 2018 is as follows: March 15 to June 26, 2020 - Adjournment sine die of all non-urgent civil matters as a result of Ministerial Order 27/2020... June 3, 2021- Dates were obtained from the trial coordinator for a J.D.R. on this matter, and forwarded to the Defendants’ counsel. No reply was received.

June 3, 2021 – Plaintiffs’ counsel again provided Defendants’ counsel with a proposed consent order for a revised litigation plan and a request to set up examinations of the Defendants. No response was received by the Defendants. July 20, 2021 – Plaintiffs filed an application for a procedural order approving the Litigation Plan with a return date of August 10, 2021, which was the earliest date that the Court could provide. A return date of July 27, 2021 had originally been requested.

August 10, 2021 – A procedural order approving the Litigation Plan and setting out specific dates for completion of steps was issued by Feth, J. Counsel for the Defendants did not file an affidavit in response to the application, but did attend the hearing and advised the Court that he would not take

part in the application because he intended to bring an application for delay. [ 19 ] The evidence from the Defendants in the Ross Action states that Plaintiffs have not forwarded any updated or current medical expert reports or made settlement proposals of any sort and that a settlement proposal from the Defendants was never responded to.

In that respect counsel for the Defendants wrote to counsel for the Plaintiffs on June 7, August 9, September 20, and November 8, 2018, without response. [ 20 ] In the Ross Action, the application under Rule 4.33 comes down to the issue as to whether the procedural order approving the Litigation Plan is a significant advance of the action. [ 21 ] Some important concepts identified by Alberta courts in determining whether a significant advance has occurred under Rule 4.33 include the following: (

a) The rule must be applied within the context of the foundational rule (r 1.2) to resolve claims fairly and justly in a timely and cost effective way: Rahmani , paragraph 14 ; (

b) The application of the Rule is mandatory. If three years or more have passed without a significant advance the Court must dismiss the action: St. Jean Estate v Edmonton (City), 2014 ABCA 47 ; (

c) Plaintiffs bear the responsibility of prosecuting their claims in a timely way: XS Technologies Inc v Veritas DGC Land Development Ltd, 2016 ABCA 165 ; (

d) Defendants are obliged (pursuant to r 1.2) to not obstruct, stall or delay an action that the plaintiff is advancing: Rahmani , paragraph 14 ; (

e) The court must use a functional approach in determining whether something is a significant advance. The functional approach inquires whether the advance in an action moves the lawsuit forward in an essential way considering its nature, value, importance and quality. The genuineness and timing of the advance in the action are also relevant. The focus is on substance of the step taken and its effect on the litigation, rather than its form: Ursa Ventures Ltd v Edmonton (City), 2016 ABCA 135 , (“ Ursa Ventures ”) , Ro-Dar Contracting Ltd v Verbeek Sand & Gravel Inc, 2016 ABCA 123 and Weaver v Cherniawsky, 2016 ABCA 152 ;

(

f) The functional approach to r. 4.33 is context-sensitive: “[C]ases that have considered a particular advance in an action will be useful precedents, but they are not determinative”: Ursa Ventures at paras 19, 23 , Rahmani , paragraph 14 ; (

g) The test is not whether steps could have advanced the action but whether they actually did significantly advance the action: Delver v Gladue, 2019 ABCA 54 . [ 22 ] I have no doubt that the intent of counsel for the Plaintiffs to advance the action in a meaningful way was genuine. He knew that he was facing a deadline and tried to meet it. But he was gambling on the position that a procedural order approving a Litigation Plan was a significant advance of the action.

He was also gambling that the 75 day suspension under the Ministerial Order would be available. [ 23 ] The Litigation Plan set time frames in which steps must be taken. The Plan has very aggressive dates.

For example, the Litigation Plan provides for a JDR by December 1, 2021; Questioning of the Defendants by December 31, 2021; and Plaintiffs to provide expert reports by February 1, 2022. [ 24 ] The Plaintiffs’ application for a procedural order was made absolutely last minute, but that was in part due to the difficulty the Plaintiffs had in getting a court date. [ 25 ] Has the procedural order moved the lawsuit forward in an essential way considering its nature, value, importance and quality? [ 26 ] Counsel for the Plaintiffs refers to the decision of Master Schlosser in MHK Insurance Inc v Wass, 2021 ABQB 328 in support of his position that a procedural order is a significant advance of an action.

In that case the Master found that a procedural order put an action back on track and consequently constituted a significant advance of the action. However, in that action Master Schlosser noted that the action was largely ready for trial and that the appointment of a litigation representative also constituted a significant advance. [ 27 ] As noted by the Court of Appeal, the functional approach is context sensitive.

Cases that have considered a particular advance in an action will be a useful precedent, but are not determinative. [ 28 ] In my view, the procedural order in this action has not significantly advanced the action, considering its nature, value, importance and quality. Reviewing the history of the litigation, it is apparent that a procedural order was not required to get the litigation moving. The litigation history shows that it was counsel for the Defendants who repeatedly tried to move the action along and it was counsel for the Plaintiffs who was not responding.

If the Defendants were dragging their heels and were the authors of the delay, it is possible that a procedural order approving a Litigation Plan might have more value and importance and consequently be a significant advance. But that is not the case here. [ 29 ] I appreciate that in the Plaintiffs’ chronology of events counsel for the Defendants did not reply to communications from the Plaintiffs’ counsel on June 3, 2021.

I do not attribute any fault to the Defendants in this respect as they took the position that the 3 year period from the last significant advance had expired (May 28, 2021 in the Ross Action and May 29, 2021 in the Martz Action) and the suspension under the Ministerial Order did not apply. Furthermore, prior to that it was the Defendants’ counsel who made most of the efforts to get the litigation going and it was the Plaintiffs’ counsel that failed to respond. [ 30 ] This action is also distinguishable from MHK in that there is still very much to be done in the action and it is not ready for trial.

Since the Plaintiffs have taken very few steps to prosecute the action, there remains much to be done in the action. [ 31 ] A further issue that I must consider is whether the attendance of counsel for the Defendants at the Plaintiffs’ application for a procedural order is a participation that warrants the action continuing. In my view it does not. Counsel for the Defendants made it very clear in his submissions to Justice Feth that he was not consenting to or opposing the granting of the procedural order, but was just in attendance to let the court know of his upcoming application.

Justice Feth said that what he would do is “create a window” to allow counsel for the Defendants to bring his delay application. [ 32 ] The Ross Action is dismissed for long delay pursuant to Rule 4.33. The Martz Action [ 33 ] Is there anything to differentiate the Martz Action to bring about a different result? [ 34 ] The chronology of events occurring after the Plaintiffs’ responses to undertakings on May 29, 2018 set out in the Plaintiffs’ Brief is as follows: February 20, 2019 – Norman Martz, personal representative of the Estate of Neil Martz, passed away.

December 2019 – Plaintiffs requested that the parties seek a date for JDR. Agreement on this date could not be reached and no date was secured. March 15 to June 26, 2020 - Adjournment sine die of all non-urgent civil matters as a result of Ministerial Order 27/2020... March 11, 2021 – Plaintiffs conferred with an expert in Financial Forensics & Business Evaluation to assist in the file. A formal retainer was signed June 4, 2021. March 9, 2021 – Counsel for the Plaintiffs forwarded to counsel for the Defence a consent order with a Litigation Plan to move the matter forward.

Defence indicated that he was seeking instructions, and would not agree to the timelines set out.... March 25, 2021 - A proposal for mediation to be conducted in May 2021 was made by the Defendants, which the Plaintiffs declined as they required further information from the Defendants before their expert could complete his report.

June 3, 2021 – Plaintiffs’ counsel again provided Defendants’ counsel with a proposed consent order for a revised litigation plan and a request to set up examinations of the Defendants. No response was received from the Defendants. July 19, 2021 – Plaintiffs filed an application for a procedural order approving the Litigation Plan, with a return date of August 10, 2021 which was the earliest date that the Court could provide. A return date of July 27, 2021 had originally been requested.

August 10, 2021 – A procedural order approving the Litigation Plan and setting out specific dates for completion of steps was issued by Feth, J. Counsel for the Defendants did not file an affidavit in response to the application, but did attend the hearing and advised the Court that he would not take

part in the application because he intended to bring an application for delay. [ 35 ] The Plaintiffs brief went on to state: “During the above chronology there were several requests by the Plaintiffs to

schedule questioning of the Defendants. Plaintiffs were never able to secure agreement from the Defendants for a date for Questioning”; and “The Plaintiffs are unable to complete their expert report without further information from the Defendants. To date, the Defendants’ disclosure has consisted of only one document, the accident report, and no affidavits providing evidence of the Defendants concerning the circumstances of the accident itself have been provided”. [ 36 ] An affidavit was provided in support of the Plaintiffs’ position sworn by the legal assistant for Plaintiffs’ counsel. It did not depose to the “several requests by the Plaintiffs to

schedule questioning of the Defendants” (as stated in the Plaintiffs’ Brief). Rather, it stated, in part (at subparagraph 3(a)): The Defendants’ lawyer has indicated to Martin West that the Defendant Blair MacCormac, was not well enough to conduct questioning in 2017 and has possibly gotten worse since then. In July of this year, Mr. Romanow advised that he did not know if Blair MacCormac had recovered enough to be questioned yet. [ 37 ] The response of counsel for the Defendants to the consent procedural order put forward on behalf of the Plaintiffs was three letters dated March 16, 22 and 25, 2021.

The first indicated that he would discuss the timelines with his client, but for the moment counsel for the Defendants proposed that the Plaintiffs not wait until November of 2021 to get its expert report, but move the matter along by getting that expert report now. The second letter made a formal offer to settle and commented on the timeline proposed in the Litigation Plan to the extent of proposing that the Plaintiffs provide their expert report by July 1, 2021.

The third letter indicated that the Defendants were prepared to mediate and in fact proposed a mediator. [ 38 ] It is also important to note that the affidavit evidence from the insurance adjuster for the Defendants attached many pieces of correspondence from her lawyer to counsel for the Plaintiffs after the Plaintiffs’ response to undertakings, on a number of issues, all trying to move the matter along. [ 39 ] Although there was much more activity after the responses to undertakings had been given in the Martz Action than in the Ross Action, I find that there was not a significant advance in the Martz Action.

As with the Ross Action, it appears that it was counsel for the Defendants who was the one that was most active in trying to get the action moving. It was the Defendants that made an offer of settlement that was not responded to. It was the Defendants that proposed mediation that was not responded to. Counsel for the Defendants even proposed how the Plaintiffs could make a significant advance—by providing the Plaintiffs’ expert report by July 1, 2021. [ 40 ] As I stated with respect to the Ross Action, the Plaintiffs’ application for a procedural order was certainly genuine.

Counsel for the Plaintiffs knew that he was facing a deadline and he thought this procedural order would be significant advance of the action. Again, counsel for the Plaintiffs gambled that the granting of a procedural order setting a Litigation Plan would be a significant advance of the Martz action. [ 41 ] But has this procedural order approving a Litigation Plan significantly advanced the Martz Action, considering the nature, value, importance and quality of that step? In my view it has not. A procedural order setting the Litigation Plan did not move this action ahead in a significant way.

Like the Ross Action, it has been the Defendants that have been striving to move this action forward. Counsel for the Defendants advised counsel for the Plaintiffs to proceed with preparation of the Plaintiffs’ expert report. The Defendants made a settlement offer that was not responded to.

The Defendants suggested a mediator for a mediation and that was not pursued by the Plaintiffs. [ 42 ] As in the Ross Action, the attendance of counsel for the Defendants at the application for a procedural order to approve the Litigation Plan, in order to allow for a window for him to bring his delay application is not a participation by the Defendants that warrants the Martz Action continuing. [ 43 ] After oral argument had been made in this matter, I had the Masters’ administrative assistant write to both counsel and ask for written submissions on whether Rule 4.34 of Alberta Rules of Court has any impact on the issues before me, as one of the personal representatives of the Plaintiff estate (the deceased’s father, Norman) had died in 2019.

Both counsel provided helpful written submissions. [ 44 ] Rule 4.34 states: Stay of proceedings on transfer or transmission of interest 4.34(1) If at any time in an action prior to judgment the interest or liability of a party is transferred or transmitted to another person by assignment, bankruptcy, death or other means, the action is stayed until an order to continue the action by or against the other person has been obtained.

(2) If a transfer or transmission of the interest or liability of a party takes place while an application or proceeding in an action is pending, an interested person may, on filing an affidavit verifying the transfer or transmission of the interest or liability and without notice to any other party, request the Court to order that the action continue.

(3) An order to continue the action must be served on each of the other parties as soon as it is received by the party requesting the order.

(4) If an order to continue an action is not made within a reasonable time after the date on which the action is stayed, the defendant or respondent may apply to the Court to have the action dismissed for delay under rule 4.31 [ 45 ] In short, the stay under Rule 4.34 does not prevent a Rule 4.33 application being made nor does the period of stay count under a Rule 4.33 application: Edinburgh Tower Development Ltd v Curtis, 2021 ABQB 239 , Kamentani v Holman, 2018 ABQB 18 and Willard v Compton Petroleum Corp, 2015 ABQB 766 . [ 46 ] The Martz Action is dismissed under Rule 4.33. [ 47 ] Costs may be spoken to within 30 days of the filing of these Reasons for Decision if the parties are unable to agree to costs.

Heard on the 1 st day of October, 2021. Dated at Edmonton, Alberta this 17 th day of November, 2021. Brian W. Summers M.C.Q.B.A. Appearances: Martin West Farnham West Stolee Kambeitz LLP for the Plaintiffs in Both Actions Martin D. Romanow Martin D. Romanow Professional Corporation for the Defendants in Both Actions