Wiens v. Dewald, 2012 ABQB 172

Court of Queen ’ s Bench of Alberta Citation: Wiens v. Dewald, 2012 ABQB 172 Date: 20120315 Docket: 0401 11316 Registry: Calgary Between: George Wiens, Susan Wiens, and Wye-Knott Millenium Carriers Ltd. Plaintiffs - and - Jim Dewald and Wye-Knott Holdings Ltd. Defendants _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] In a standard, rather than a complex, case, does an application to compel compliance with a litigation plan requiring, among other things, that the parties file a Form 37 outside the drop-dead deadline, relieve from the imposition of Rule 4.33? [ 2 ] Jim Dewald and Wye-Knott Holdings Ltd., the defendants, appeal Master Laycock ’ s refusal to strike out these proceedings under the “ drop-dead ” rule.

They argue that the Master erred in holding that an application by the plaintiffs scheduled for April 21, 2011 for an order imposing a litigation plan requiring the parties to file a Form 37 prior to October 30, 2011 materially advanced the action and therefore relieved the plaintiffs from the effect of Rule 4.33 which would have taken effect on April 25, 2011.

[3] The appeal is denied. [4] Although the Master made an error of law when he stated that a litigation plan was a required step in an ordinary case, hedecided to not dismiss the proceedings on an analysis of whether the plaintiffs’ litigation plan proposal would have significantlyadvanced the action. He concluded that he would have granted a procedural order adopting two of the three proposals made by theplaintiffs, including their proposal that a Form 37 be filed by a specified date which was outside the drop dead period.

Such a decision isa matter of mixed fact and law on which the standard of review is reasonableness. [5] The Master’s decision that the action would be significantly advanced by setting a date, outside the drop dead period, bywhich questioning on answers to undertakings, if any, would be completed and by setting a date, also outside the drop dead period, bywhich a Form 37 to obtain a trial date would be filed was reasonable. In coming to that conclusion, the court observes that, according tothe very wording of Rule 4.33(1)(

b) and (c), even things proposed to be done outside the drop dead period may have the effect ofshielding an action from the effect of Rule 4.33. Completing and filing a Form 37 to obtain a trial date is the contemporary equivalent offiling a certificate of readiness; filing that form is a required step to get an action to trial and setting a date by which that filing must becompleted therefore significantly advances the action. Cases and authority cited [6] By the appellants: Weins v Dewald 2011 ABQB 400, [2011] A.J. No. 714; David M.

Gottlieb Professional Corp. vChampion Homes Inc. 2012 ABQB 64, 2012 CarswellAlta 121; Lanset Capital Corp. v Waterloo Geological Consulting Ltd. 2006ABCA 77; Alberta v Morasch 2000 ABCA 24; Angevine v Blue Range Resource Corporation 2007 ABQB 443. [7] By the respondents: Alberta v Morasch 2000 ABCA 24; Petersen v Kupnicki 1996 ABCA 323; Apex Land Corp. vHeikkila 2011 ABCA 87. [8] By the court: 369413 Alberta Ltd. v Pocklington 1998 ABQB 603, [1998] A.J. No. 793; Bentley v Stringer 1999 ABQB432, [1999] A.J. No. 659; Seabord Development Ltd. v Purkis [1978] B.C.J.

No. 1060; Petersen v Kupnicki 1996 ABCA 323 ,[1996] A.J. No. 862 (C.A.); Bishop v Grotrian 1998 ABCA 23 , [1998] A.J. No. 80 (C.A.). 1. Background [9] The background facts to this application are set out in paras. 2 - 7 of the Master’s decision, cited above.

For the purposes ofthis appeal, it is sufficient to note that: - the “drop-dead” date was April 25, 2011; and, - the plaintiffs made an application returnable on April 21, 2011, to compel the defendants to adopt a litigation plan that would,among other matters, have required the defendants: - to agree to a date to complete questioning on answers to undertakings, and - to file a Form 37 request for a trial date by October 20, 2011. 2. Standard of review [10] The parties agree, and I agree with them, that the standard of review on an appeal from a Master is, in relation to errors oflaw, correctness.

[ 11 ] The parties do not, however, agree about whether the obvious error of law committed here by the Master - a litigation plan is not, in fact, a procedural step required by the Rules for a standard case - was a material, or even relevant, error in light of his actual decision. [ 12 ] In order to better characterize the Master ’ s decision, it may be useful to review the Rules referred to by him. [ 13 ] Rule 4.4(2) reads as follows: 4.4(2) A party to an action categorized as a standard case may serve on the other party a proposed litigation plan or a proposal for the completion or timing of any stage or step in the action, and if no agreement is reached, any party may apply to the Court for a procedural or other order respecting the plan or proposal. (Emphasis added) Because everyone, the parties and the Master, all agreed that this is a “standard case”, it follows that a litigation plan was permissive here, but not required, and that the Master erred when he stated in para. 9 of his decision that, “a completed litigation plan is therefore a procedural step required by the Rules of Court. [ 14 ] Rule 4.33 was referred to by the Master, but not reproduced, in his decision.

That Rule reads as follows: Dismissal for long delay 4.33(1) If 2 or more years has passed after the last thing done that significantly advanced an action, the Court, on application, must dismiss the action as against the applicant, unless (

a) the parties to the application expressly agreed to the delay, (

b) the action has been stayed or adjourned by order, an order has extended the time for doing the next thing in the action, or the delay is provided for in a litigation plan , (

c) the applicant did not respond to a written proposal by the respondent that the next thing in the action not occur until more than 2 years after the last thing done that significantly advanced the action , or (

d) 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.

(2) If the Court refuses an application to dismiss an action for delay, the Court may still make whatever procedural order it considers appropriate.

(3) Rule 13.5 does not apply to this rule. (Emphasis added) Although this Rule speaks of a two year delay, because of the timing of these specific proceedings, the effective drop-dead period here is five years rather than two. [ 15 ] Although the Master erred in stating that a completed litigation plan is a procedural step required by the Rules, he did not base his decision on that conclusion.

Rather, he noted that merely proposing a litigation plan would not have materially advanced the action. (He did not express an opinion about whether merely proposing a litigation plan could come within the provisions of s. 4.33 (1) (c) ). The Master then went on to consider each of the components of the plaintiffs ’ litigation plan with a view to determining whether the components would have materially advanced the action.

He concluded that setting a date for the completion of the questioning on answers to undertakings would have materially advanced the action, that confirming the effect of Rule 15.3 would not have advanced the action, and that requiring the parties to complete and file a Form 37 would have materially advanced the action. He stated that, if the matter had been able to be heard on April 21, as requested, he would have made a procedural order supporting the first and the third parts of the plaintiffs ’ proposed litigation plan.

The court observes that although there may be a difference between the phrase “ materially advance ” which was used by the Master in his decision and also used in the case law in relation to the former Rule and the phrase “ significantly advance ” which is used in the current rule, for the purposes of this application, there is no difference between them. [ 16 ] A determination of whether a particular thing materially or significantly advances an action is a mixed question of law and fact.

As the appellants themselves recognize, on a mixed question of fact and law, the standard of review is reasonableness: David M. Gottlieb . As the case law makes clear, if the thing that was done was a required step, then, by definition, the thing did significantly advance the action.

If, however, the thing that was done was not a required step, the court must look at all the circumstances, i.e. look at all the facts, to determine whether the thing did significantly advance the action. (Incidentally, despite his remark at para. 9 of his decision, the Master notes at para. 14 of his decision that the filing of a litigation plan was not required but at least permissive.) The answer to the question of whether a particular thing significantly advanced the action is determined on a case by case basis.

As Lee J. pointed out at para. 96 of 369413 Alberta Ltd. even unsuccessful settlement conferences or mediations may significantly advance an action. I mention that decision because the Master referred to the fact that there had been three sets of settlement correspondence exchanged in these proceedings: see para. 5 of his decision.

Even though he did not later use those settlement exchanges as a basis for determining whether a thing had actually been done within the 5 year drop dead period to materially or significantly advance this action, it is not inconceivable that he might have done so. [ 17 ] Rule 4.31 was referred to by the Master in his decision and was reproduced by him as follows: Division 6 Delay in an Action Application to deal with delay 4.31 If delay occurs in an action, on application the Court may (

a) dismiss all or any part of a claim if the Court is satisfied 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. This Rule is reproduced only because the Master referred to it and concluded that it was not engaged here. Neither of the parties disagree with that conclusion, and no more will be said about this Rule. [ 18 ] In the result, the Master did not base his decision on whether a litigation plan was a necessary step in the litigation. Rather, he based his decision on whether the litigation plan, if endorsed by the court prior to the drop-dead date, would have significantly advanced the litigation. Therefore, his decision was one of mixed fact and law with respect to which the standard of review is reasonableness.

3. Was it reasonable to conclude that setting a date by which questioning on answers to undertakings would be completed and by setting a date by which Form 37 would be filed would significantly advance the litigation? [ 19 ] Although the Master did not expressly refer to R. 4.33(1)(

b) or (

c) in his decision, because of his reference to R. 4.33, and because of the comments at para. 17 of his decision which are directed to the provisions of R. 4.33(1) (c), we know that he was in fact applying all parts of the Rule to the situation before him. [ 20 ] The permissive filing of a litigation plan in a standard - rather than a complex - case, as contemplated in Rule 4.4(2) is a new concept in Alberta practice.

Prior to the adoption of the new Rules of Court, the Rule which was closest in concept to the current Rule was Rule 243.2 which read as follows: 243.2(1) Any party to an action may serve a proposal on another party opposite in interest proposing the pace or timing for some act relating to the action that is already permitted by law, and in default of a written agreement being entered into between those parties in respect of that proposal, either party may move for directions respecting the pace or timing of any act that was the subject of that proposal.

(2) This Rule may be used from time to time. [ 21 ] The Stevenson & C ô t é Annotation to the Rules made this comment about the former Rule: One need not use this Rule before an application to strike an action for delay, but it can be very useful on such an application. If any party fails to agree to the proposal for pace and timing without good reason, the proposal provides an important background to an application to strike, or to an application for terms under R. 244.4, or to an application for case management. [ 22 ] That commentary could well have been the basis for the adoption of new Rule 4.33(1)(c).

Here, the plaintiffs had proposed that things be done outside the drop dead deadline, and the respondents hadn ’ t responded. The defendants ’ failure to respond was, of course, understandable given the length of time that had elapsed since the last actual thing done or step taken and their need to undertake some assessment of the situation; nor did the Master impose upon the defendants/applicants any unreasonable time constraint. Nonetheless, the wording of sub – paragraphs (

b) and (

c) of Rule 4.33 (1) makes it clear that things which are proposed to be done outside the drop dead period may avoid the effect of the Rule. [ 23 ] The Master concluded that he would have given a procedural order prior to the expiry of the drop-dead period to set dates beyond the expiry of that period to complete questioning on undertakings and to file a Form 37 request for a trial date. As to the first issue, he stated that, given the length of time which had elapsed, it would have been useful to have a procedural order setting a deadline for questioning on undertakings, if any .

That is not, on its face, either an unreasonable order, or an unreasonable conclusion, i.e. that putting the issue of questioning on undertakings to rest by forcing the parties to address their minds to the undertakings. [ 24 ] More importantly, the Master ’ s conclusion that requiring the parties to file a Form 37 requesting a trial date was the contemporary equivalent of filing a certificate of readiness and therefore a necessary step in getting a matter onto trial is obviously correct.

If authority were needed for the proposition that filing a certificate of readiness under the old system were a necessary step to getting a matter onto trial, that could be found in the Seaboard decision. Moreover, in Morasch our Court of Appeal suggested the same result. Under the current rules, completing and filing a Form 37 is necessary before a matter can be put on the trial list. As indicated above, setting a date outside the drop dead period for the taking of that step is permissible under the current Rules.

Therefore, the Master ’ s conclusion that the filing of a Form 37 by a specific date outside the drop dead time would significantly advance the action was eminently reasonable. 4. Conclusion

[ 25 ] For the reasons set out above, the court concludes that the Master ’ s decision was reasonable; it therefore denies the appeal and confirms the Master ’ s order. 5. Costs [ 26 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 23 rd day of February, 2012. Dated at the City of Calgary, Alberta this 9 th day of March, 2012. J.B. Veit J.C.Q.B.A. Appearances: Katrina Edgerton-McGhan, Scott Venturo LLP for the Appellants/Defendants Michelle C. Freebairn, Student at Law, Venture Law Group LLP for the Respondents/Plaintiffs