Debut Developments Incorporated v the Town of Redcliff, 2022 ABKB 809

Court of King’s Bench of Alberta Citation: Debut Developments Incorporated v the Town of Redcliff, 2022 ABKB 809 Date: 20221202 Docket: 1108 00105 Registry: Medicine Hat Between: Debut Developments Incorporated Plaintiff - and - The Town of Redcliff Defendant Docket: 1608 00404 Registry: Medicine Hat Between: Randy Giesbrecht, Robert Hazelaar and Shanon Simon Plaintiffs - and - Danica Prpick Defendant _______________________________________________________ Decision on Adjournment Application of the

Honourable Justice N.E. Devlin _______________________________________________________ [ 1 ] In 2005, the plaintiff, Debut Developments Incorporated (“Debut”) commenced a residential housing development in the Town of Redcliff (“Redcliff”). The corporation existed solely for this purpose and was the corporate vehicle for its joint owners, Danica Prpick and Joel Barrett. [ 2 ] While Debut completed the project and marketed the homes, the venture was marred by conflict with the Town, and appears not to have been profitable.

In 2011, Debut sued Redcliff, together with two of its officials with whom the company had dealings (the “Debut action”). Eleven years later, that lawsuit has arrived at its second trial date. Contrary to an order of this Court, made over a year ago, Debut remains unrepresented. Through Ms. Prpick as its spokesperson, it seeks an adjournment to attempt to secure counsel for a future third attempt at conducting this litigation. [ 3 ] In 2016, the two individual defendants from the Debut action, together with another senior employee of Redcliff, filed a defamation action against Ms.

Prpick in relation to statements she is alleged to have made about their conduct in connection with Redcliff. That suit (“the defamation action”) was joined with the Debut action by an Order of Master Robertson in April 2017. [ 4 ] Acting on her own behalf, Ms. Prpick also asks for an adjournment of the defamation action. She newly takes the position that she feels unqualified to defend herself. [ 5 ] The defendants in the Debut action, who largely overlap with the plaintiffs in the defamation action, and share counsel on both, oppose any adjournment.

They argue that the Debut action should be dismissed for its failure to retain a lawyer and be ready to prosecute its claim. They further argue that Ms. Prpick should defend herself on the defamation action, as she has been telling the Court she intends to do for quite some time. i. Basic facts [ 6 ] Debut and Ms. Prpick have had a series of counsel representing them since the outset of the litigation. In April 2019, their third counsel set the matters for a 13-day trial in December 2020. Ultimately, that lawyer was permitted to withdraw from the record on August 28, 2020. While Ms.

Prpick objected to this on behalf of herself and Debut, Justice Hartigan permitted counsel to withdraw on the basis of a breakdown in the solicitor client relationship, both over retainer and substantive confidence matters. Ms. Prpick advised the Court that she and Debut had subsequently hired a local lawyer who specialized in family law for some period of time, but had amicably parted ways with that lawyer, who never formally came on record. [ 7 ] As a result of Debut and Ms. Prpick losing their lawyer, there was little or no prospect that the December 2020 trial could proceed, and it was adjourned sine die.

The matter ultimately entered case management under Justice Ashcroft’s guidance. A second trial was set for 15 days in late November through into December 2022. [ 8 ] A series of case management appearances and motions were heard by Justice Ashcroft. Early on in those, Debut was ordered to retain counsel to represent it.

Specifically, on November 4, 2021, Justice Ashcroft issued an Order which included the following term: The Plaintiff Debut Developments must retain counsel in Court of Queen’s Bench Action No. 1108 00105 prior to the exchange of Case Conference Summaries. [ 9 ] Those summaries were due on January 17, 2021. No counsel was retained. This Order was then varied a month later to require Debut to retain counsel no later than March 15, 2022. [ 10 ] Ms. Prpick repeatedly advised the Court that it was her intention to represent herself in the defamation action.

This was twice memorialized in Orders of Justice Ashcroft, dating back to November 2021. Her application to represent Debut as well was brought on the basis that, since the two actions had common issues and common witnesses, and she had a right to self-represent in the deformation action, it only made sense for her to represent the corporation in its action as well. [ 11 ] Throughout the case management process, Justice Ashcroft granted Ms. Prpick a right of audience to speak on behalf of the corporation. This culminated in an application by Ms.

Prpick to act both for herself and the company at this trial. [ 12 ] As noted, Justice Ashcroft heard that application in April of 2022. While agreeing that Ms. Prpick had a right to represent herself in the defamation action as a personal defendant, Justice Ashcroft found that

section 106 Legal Profession Act , RSA 2000, c L-8 , barred a non-lawyer, such as Ms. Prpick, from running a trial by examining and cross-examining witnesses. After a thoughtful analysis, she concluded, correctly in my respectful opinion, that the newly added rule 2.23(4), which preserves the Court's discretion to grant a “right of audience” for a non-lawyer to speak on behalf of another party, does not extend to allowing such an individual to fully conduct a trial. [ 13 ] For the sake of completeness, Justice Ashcroft also held that Ms.

Prpick was substantively not in a position to represent Debut, observing that: She has recently demonstrated that she is very personally invested in this litigation, and it would be challenging for her to conduct the litigation in an orderly, professional, and economical manner. … while she has indicated that she's the only one who knows the 18-year history, it is exactly her penchant for being distracted from the

main issues – for example, allegations of collusion, costs paid to prior lawyers, alleged misrepresentations to the court regarding adjournments, etc – that is contributing to the complexity of this matter. [ 14 ] Therefore, Debut was again ordered to get Counsel to represent it in this proceeding. Despite this history, no lawyer has ever appeared for Debut since August 28, 2020, when the first trial was adjourned. [ 15 ] Before Justice Ashcroft, Ms. Prpick attested to having canvassed 70 lawyers and being unable to find a suitable individual willing to represent Debut at trial.

In her submissions before me, she similarly indicated having spoken to a very large number of lawyers and having identified only four who were willing to take the case, and then only upon receiving a retainer in the range of $200,000, which she and her spouse were having difficulty raising for the company. [ 16 ] In the fall of 2022, I was assigned as the trial judge in these matters. I held a case readiness conference with the parties to ascertain the situation. Debut still did not have counsel and I permitted Ms. Prpick to speak on its behalf as to the situation.

I alerted her that Debut may have a serious problem if it was unable to secure counsel in time for the trial. Counsel for Redcliff indicated he would be seeking to have the Debut action struck if no Counsel appeared. [ 17 ] Ultimately, Ms. Prpick filed an adjournment application in the defamation action on her own behalf on October 27, 2022, one month before this trial was to commence. It was understood that she intended this to extend to the Debut action as well, though she had no standing to file on behalf of the corporation. [ 18 ] In her adjournment application, Ms.

Prpick stated that Debut had found legal counsel willing to represent it at trial but that they were unable to prepare for the 2022 trial date and required a very significant retainer. In the affidavit supporting the adjournment request, Ms. Prpick renewed her request to be permitted to represent Debut. She did not name the lawyer that had been identified as potentially available later, and no lawyer had contacted counsel for the other party or the Court. [ 19 ] In oral argument, Ms. Prpick explained that she was concerned about telling Mr.

McCully (counsel for Redcliff and in the individual parties) who the lawyers were who might be able to take the case for fear that he would interfere with them in some way. She ultimately did name a lawyer in Calgary with whom she had had phone and email communications on a preliminary basis. [ 20 ] More realistically, she came to acknowledge that she really was not in a position to effectively represent Debut. When asked directly by the Court whether she was ready to represent herself on the defamation, as she had previously repeatedly advised the Court she intended to do, Ms.

Prpick became somewhat emotional and very honestly stated that she felt overwhelmed by the prospect of representing herself, did not feel ready or prepared, and really did want to have a lawyer for the defamation action as well. [ 21 ] Ms. Prpick initially argued that what she needed ideally was a limited scope retainer whereby a qualified lawyer could advise her as she conducted the case.

She ultimately came around to the position that both she and Debut really needed counsel to fully conduct the trial. [ 22 ] Redcliff and the personal plaintiffs in the defamation action oppose the adjournment of either proceeding. They point to the age of the matter, the declining health of one of the personal parties, the costs thrown away, Ms. Prpick’s shifting position on self- representation, the unknown and significant length of time it would take Debut and Ms. Prpick to find and retain a lawyer, and the improbability that counsel will ever be durably retained, as reasons to reject the adjournment. ii.

Procedure followed at this hearing [ 23 ] Given the late filing of the adjournment request, I heard it as the trial judge on the first day of period reserved to her the case. At the outset of the proceeding, I asked Ms. Prpick if she was seeking permission to appear as a spokesperson for the Debut pursuant to rule 2.23(4), and she said she was. On behalf of the opposite parties, Mr. McCully graciously did not oppose her being granted this right of audience. I felt it appropriate that she be permitted to speak on behalf of Debut and allowed this. The adjournment hearing proceeded Monday afternoon with Ms.

Prpick’s initial submissions. It resumed on Tuesday after she had had time to consider the Court’s questions and Mr. Cully’s position. [ 24 ] The Court received a good deal of unsworn evidence from Ms. Prpick in the course of her submissions and this was not objected to. For the purposes of these reasons, I accept what she has told the Court about her efforts to retain counsel, and disregard the large volume of factual allegations she made against opposing counsel. iii.

The principles governing adjournment applications [ 25 ] In dealing with an adjournment request, the Court must take into account all the relevant factors informing what is just and in keeping with the objectives of the Rules : 1038055 Alberta Ltd v Khatri , 2014 ABCA 421 at para 5 . [ 26 ] A list of common factors that the Court must take into consideration was helpfully enumerated by Justice Yamauchi in Lameman v Alberta , 2011 ABQB 40 at 33.

These include the reasons for the adjournment sought, the implications on the Court’s ability to resolve of the trial on its merits, the prejudice to each of the parties of granting or refusing the adjournment, the reasons for which the adjournment is sought, the history of the matter, and the likelihood that the adjournment will fulfill the purposes for which it is sought. [ 27 ] These factors apply differently to the two actions before the Court. Therefore, I will consider them in turn, commencing with the Debut action. iv.

Adjournment analysis on the Debut action [ 28 ] Debut seeks an adjournment principally because it cannot proceed with the trial. Its inability to prosecute this action is the

product of both practical reality and operation of law. On the practical front, even if Ms. Prpick were permitted to act for the company, she quite candidly states that she is doubtful of her ability to do so and is presently unprepared in any event. From the legal perspective, Debut has been ordered to get a lawyer and has not been able to comply with that judicially imposed condition. [ 29 ] With the greatest respect to my colleagues who have, on a few rare occasions, permitted individuals to represent corporations at trials before this Court, I am of the view that the law does not permit this.

The statutorily recognized discretion of this Court to grant non-lawyers a right of audience does not extend to allowing such individuals to run a full-blown trial for a third party: Champagne v Sidorsky , 2012 ABQB 522 at para 15 ; Lameman v Alberta , 2012 ABCA 59 [“ Lameman CA ”]at paras 12-13 . That is the unauthorized practice of law. [ 30 ] There is an understandable appeal to the idea that closely held corporations can “self represent” through the medium of a director or officer. However, a company is an incorporeal entity and, by definition, cannot “self represent”.

It is a misnomer to describe the act of an individual with a close connection to a corporation performing quintessentially legal functions on its behalf as “self representation”. In reality, this is one person representing another as its lawyer. [ 31 ] Ms. Prpick has repeatedly suggested that it is somewhat absurd that she is allowed to represent herself on the defamation action but cannot represent the corporation which, in substance, is really just her, when dealing with what she says are going to be common issues and witnesses.

This argument ignores the foundational principle that the corporation is a separate legal entity. In cases like this, the individuals in Ms. Prpick’s shoes chose to act through a corporate vehicle because of the perceived advantages of doing so. These include insulating themselves from personal liability. It is entirely unprincipled to pierce the corporate veil in litigation where this suits the shareholders, but to enforce that legal distinction elsewhere, to the detriment of others. [ 32 ] Individuals who choose to act through corporations must take the good with the bad.

One of the consequences of the legal separateness of corporations from their shareholders is that the corporation requires someone to speak on its behalf in Court proceedings. A director, officer or shareholder may be allowed to fulfill this role on a limited basis as a spokesperson, under the new rule 2.23(4). They may not, however, effectively practice law by representing the corporation as trial counsel. [ 33 ] If the legislature had intended to create such a bold exception to the limits on legal practice and legal acts by non-lawyers, it would have said so.

This Court does not have the power or discretion to make exceptions to explicit statutory limits on legal practice: Lameman CA at para 35 .

Therefore, in my respectful view, this Court does not have jurisdiction to permit a non-lawyer to engage in the full representation of a corporation as a trial plaintiff or defendant: Vizor v 383501 Alberta Ltd (Val Brig Equipment Sales , 2022 ABQB 5 at para 70 . [ 34 ] At the end of the day, there is nothing unfair in saying to individuals who wish to do business through corporate vehicles that one of the risks of doing so is that, if they end up in litigation, they must incur the cost of hiring a properly qualified lawyer to act on the company’s behalf. [ 35 ] Therefore, I conclude that Debut must, both as a matter of law and according to the previous Orders of this Court, have a lawyer to prosecute its case.

It does not have such a lawyer today and has not had one since August 2020. The consequence of this is that if the adjournment is denied Debut’s case will be dismissed for want of prosecution. [ 36 ] This brings me to the first factor to be considered in respect of the adjournment request, namely the impact of allowing or denying this adjournment on the ability of the Court to make a just determination of the real matters in dispute on their merits. In this case, denial of the adjournment is fatal to Debut’s action. This factor weighs very heavily in favor granting the adjournment.

Courts are loathe to see a matter determined other than on the merits. A tremendous amount of time, human energy, and money has been poured into this litigation. For it to die without determination on the merits would be an unfortunate and unsatisfying result. This is the strongest factor weighing in favor of the adjournment application in the Debut action. [ 37 ] The second consideration for the Court is the related one of prejudice to the parties flowing from an adjournment, or the denial of one. The prejudice to Debut is self-evident as described above. Its action ends. It recovers nothing.

It will be liable in costs for the steps taken to date. [ 38 ] Mr. McCully persuasively points out that there is also a significant human sympathy for the individuals behind Debut, but that that should not inure to the benefit of their inactive and asset-less corporation. I agree. The Court has great sympathy for what the shareholders of Debut have personally been through as a result of his litigation, but the question of prejudice is limited to the actual party. [ 39 ] Prejudice cuts both ways in this case.

One of the personal defendants is in a long running battle with a serious illness that is under active treatment. The impact of this litigation continuing to hang over his head takes on additional significance under those circumstances. Beyond that, memories fade. This became very evident in my discussions about the claim with Ms. Prpick. She had clear and significant challenges recalling the timing and sequence of significant events underlying the litigation. That is not the least bit surprising given that they took place in the mid to late 2000s. The fact that memories fade is notorious.

The length of time that has elapsed since the crucial events in this case is near the outside limit of what the Courts sees. Every day that problem becomes worse. I am satisfied that significant prejudice has already been suffered by the defendants in this case due to the passage of time and that this will only accelerate going forward.

There is significant potential for the defendants to be prejudiced by an adjournment due to tenuous health and deteriorating memory. [ 40 ] There is significant mutual prejudice here, though Debut stands to lose more. [ 41 ] The next factor to consider is the explanation for why the moving party needs the adjournment. In the case of Debut, it is a product of its inability to secure counsel. I join with Justice Ashcroft in rejecting Ms. Prpick’s claims that Mr.

McCully and his clients are in any way to blame for the present circumstances. [ 42 ] Rather, I am satisfied that Debut’s unreadiness to proceed has two roots. The first relates to the age and nature of this case.

Multiple counsel have gone before and had client-confidence breakdowns – including being sued, the parties and pleadings are fixed and largely immutable, collateral actions of a personal nature have arisen, and the instructing individuals are deeply emotionally vested. [ 43 ] From the materials provided to me in Court, it became evident that Debut’s final lawyer had made his continued involvement contingent on a suit being brought against the first lawyer who originated the action. Reading the now-abandoned Statement of Claim against that first lawyer reveals why this is.

Specifically, it appears that many of Debut’s action in this case which led to their ultimate dissatisfaction involved an intermediary who they had hired to advise them and deal with the town of Redcliff directly on development issues. [ 44 ] That entity was never sued. Many of the steps in which that entity was involved are key to Debut’s complaints but appear to fall outside of the applicable limitation periods. An action against the unnamed party for breach of fiduciary duties might have been able to overcome this apparent hurdle.

It appears that Debut’s last counsel was alive to this problem, and that many of Debut’s grievances stem from contractual relationships it voluntarily entered, three to five years before the Statement of Claim was filed. [ 45 ] Getting competent counsel to step into a file of this nature is more than a matter of money. The Court can understand why many litigators would look at this matter and decline to become involved. In short, part of the reason Debut needs this adjournment is because the litigation has become a tangled knot.

Indeed, experienced counsel appears to have advised that it may have been partly misconceived from the outset. [ 46 ] The second, related, problem is financial. All litigation is expensive. Getting a lawyer to step into a decade-old mess, that has been rendered intensely complex along the way, is particularly expensive. It is far from clear that this is a problem that Debut’s shareholders have the resources to fix. With unlimited money they could no doubt involve counsel would do their best to move this to trial if adequately retained. Debut, however, has no assets and no ongoing business.

I am advised that its shareholders take work to fund, or attempt to fund, this litigation on a day-to-day basis, and struggle to do so. Debut’s shareholders are good and hardworking people, but they may well lack the resources to fund a salvage operation on this scale. [ 47 ] The reasons for the adjournment, therefore, weigh against granting it. [ 48 ] The next factor to consider is the length of adjournment that would be required. Retaining counsel would be a very expensive proposition for the reasons just discussed. Ms.

Prpick told the court that she had been quoted $200,000 as the sort of fee lawyers indicated they would need before taking on this file in any capacity. Considering the history and complexity of what new counsel would be stepping into, this is not surprising. Since Ms. Prpick indicated that her spouse takes jobs to raise the money to fund this litigation, coming up with that sum would take a long time. [ 49 ] If adjourned to allow Debut to secure counsel, this trial would have to be adjourned sine die again.

It would not be put back on the list until counsel were fully retained to run it, and only if that lawyer acknowledged to the Court that there would be almost no circumstances under which they would be permitted to withdraw. [ 50 ] Therefore, Debut is a very long way away from setting down another trial date.

Even assuming such a trial could be reduced to between five and ten days, it would be optimistic to think a new trial could even be scheduled before the very end of 2023 and would be likely having to wait until 2024 to save the Court from ending up in exactly the same place it is today. [ 51 ] Therefore, the adjournment under consideration is likely to be a long one. I accept that that is not Ms. Prpick’s wish. But it is the practical reality.

Interacting with the factors discussed above, this weighs against an adjournment. [ 52 ] The Court must also consider whether the adjournment request is an attempt to delay. I am satisfied that it is not. Debut, or rather its shareholders, very much want this case heard. I do not believe that Ms. Prpick is actively seeking to delay it through this adjournment. [ 53 ] The Court is also required to consider the impact of an adjournment on other Court users. Many more parties are waiting to get into Court than there are available dates.

Approximately six weeks of trial time have already been committed to this matter. A further adjournment would only worsen the scarcity of court resource for the residents of southeastern Alberta. While not a definitive or particularly significant factor in this case, this weighs against adjournment. [ 54 ] The next factor is the importance of enforcing Court orders. In this case, Debut has been under an Order to get counsel for more than a year. It has not done so, even for the limited purpose of addressing outstanding motions. I do not find that this is a willful contempt or disregard for the Court’s directives.

However, there is a manifest inability by Debut to come into compliance with this Court’s previous Order that it be represented. This factor, while not a dominant one, weighs against an adjournment. [ 55 ] The next factor is the proper marshalling and prosecution of a potentially complex case. This is synonymous with the retainer of good counsel. This case requires an adjournment not only for its survival, but to be prosecuted efficiently and effectively. An adjournment is obviously needed to find the brave and skilled soul able and willing to undertake that task.

This weighs in favor of an adjournment. [ 56 ] That brings the analysis to consideration of whether there is a realistic chance that the adjournment will accomplish its stated purpose. This is deeply interrelated to the reasons for the adjournment, as discussed above. The purpose of an adjournment here would be for Debut to find counsel willing and able to bring this matter to trial and for that lawyer to be sufficiently retained that their attendance at trial is all but guaranteed.

I have doubts that this is likely to occur for several reasons. [ 57 ] First, Debut has not been successful in finding the right lawyer and being able to retain him or her for nearly 27 months. It is unclear to me how things will get much better in the future. Accepting Ms. Prpick’s evidence that she has talked to many lawyers and found only four who might be willing and able to take on this case does not fill the Court with confidence that such a retainer will come to fruition.

[ 58 ] Second, Ms. Prpick’s efforts over those 27 months have not even generated a level of interest or commitment by a lawyer sufficient for them to approach opposing counsel or the Court to indicate their potential involvement. Ms. Prpick explained why she had not previously revealed names, but the reality remains that her contacts with counsel have all been relatively preliminary. [ 59 ] Third, subsumed in the primary goal of getting a lawyer to handle this case for Debut lies a more fundamental unstated goal, namely seeing this case presented in a coherent and potentially successful manner.

I have grave doubts that this goal can be achieved. [ 60 ] The Court normally does not look too deeply into the merits of a case when considering whether to grant an adjournment. However, my examination of the pleadings here, as supplemented by a detailed conversation with Ms. Prpick as to what Debut is really claiming and how they would prove it, leave me with concerns about what viable cause of action lies here. [ 61 ] Despite her best attempts in an open conversation, Ms.

Prpick could not articulate what Debut’s cause of action against Redcliff specifically is, and what concrete actions or omissions it is relying on as compensable wrongful. Eighteen years into these events, and eleven years into this litigation, Ms.

Prpick, like the pleadings themselves, is somewhat lost in amorphous allegations of unfairness and wrongdoing by Debut’s contractual counterparties. [ 62 ] Having spent considerable time examining and considering the Statement of Claim, it is not easy to discern exactly what wrongful acts or omissions, falling within relevant limitation periods, are alleged against Redcliff and the individual defendants. My lengthy discussion with Ms.

Prpick about this, after asking her to spend the evening preparing to tell me about the cause of action, left me with decreased confidence that this case can be easily prosecuted. [ 63 ] A measure of clarity, focus, and simplicity are required to move a claim to a successful outcome. While legitimate claims may well be complex, the basic outline of wrongful conduct or omissions should be readily discernable. From what I can gather, there was a lack of clarity between Debut and Redcliff as to the terms on which the development was going to be permitted.

This resulted in Debut acquiescing to two Service Agreements which it did not like, and which were much more costly than it had anticipated. When this dovetailed with the economic and housing downturn of 2007-2008, Debut ended up with a poor financial result for its labours, and its principals became very aggrieved by the treatment they had received from the defendants.

While humanly understandable and sympathetic, this does not obviously establish a legal cause of action, nor show how the relevant events fall within the applicable limitation periods. [ 64 ] To be clear, I am not passing judgment on the ultimate merits of this lawsuit. There may well be a claim of some sort, potentially for excessive charges within the contractual and regulatory relationship between Debut and Redcliff. At this stage I just don't know.

Rather, the fact that, after spending so much time considering the Statement of Claim and speaking with the person who knows the matter best, the cause of action is still very unclear to me causes significant concern. It is a warning sign that the problems the adjournment here seeks to solve may be much bigger, costlier, and more intractable than simply finding a lawyer and paying them money. [ 65 ] It must be borne in mind that Debut is having severe problems mustering the funds to retain counsel for a two or three-week trial. Such a trial has to be relatively simple.

In this case, the intersectional impact of Debut’s financial challenges, coupled with the ostensible challenges in reducing this claim to a presentable form, combine to create very serious doubt that an adjournment will fix the problem we face today.

Regrettably, I conclude there is well under a 50% chance that, irrespective of the length of adjournment granted, a qualified lawyer will ever stand before this Court ready to take Debut’s claim to trial. [ 66 ] It is dispiriting to see a company, and the people behind it, in this position after having been represented by members of the bar for the better part of a decade. [ 67 ] Some of the problem here lies, as Ms. Prpick very honestly acknowledged, in her intense focus on details.

This trait, combined with the intense emotional toll these events and the litigation have taken on her family, has unfortunately led Ms. Prpick to a place where she views the events in this case, and the people on the other side, as her personal tormentors who have conspired against her. I mean no disrespect by saying this and acknowledge the evident anguish that this whole situation has caused her and her spouse for far too long. However, I am now the second judge to observe this phenomenon. Without placing any blame, this undoubtedly makes Ms.

Prpick a more challenging client to serve as Debut’s instructing principal. [ 68 ] If nothing else, this case serves as a warning to members of the litigation bar that claims should be kept as clear and simple as possible, scaled appropriately to the size of the dispute and the means of the parties, and kept free of the emotional detritus that inevitably accretes around almost all prolonged litigation. [ 69 ] The fact that an adjournment has limited prospects of achieving its purpose in this case weighs heavily against granting it.

Adjourning this trial will, more likely than not, result in throwing good money, energy, and Court time after bad. [ 70 ] Given my previous observations, I have also given consideration to the final factor listed in Lameman , namely that a party seeking the adjournment should not bear the consequences of their counsels’ failures. In this case, Ms. Prpick has not alleged that she is here today because of mistakes by her lawyers. Indeed, quite the opposite. Moreover, I simply lack the factual basis and insight to levy any criticism against the counsel who commenced and carried this complex action on Debut’s behalf.

Therefore, such considerations do not impact on the adjournment application. [ 71 ] Finally, the Court must consider the history of the matter. That analysis has largely been subsumed in the foregoing factors. There is an adage that ‘some dogs just won’t hunt’.

The history of this case strongly suggests that aphorism applies here. [ 72 ] At the end of the day, this Court must balance the very significant prejudice of terminating the plaintiff’s case against the prospect of the long or indefinite adjournment of an already excessively aged trial, to the further detriment of the defendants, in the hopes that the improbable will happen, and the plaintiff can come into compliance with long standing Orders of this Court that it get a lawyer who can move the matter forward.

[ 73 ] In most instances, the Court’s reticence to terminate a case except on its merits will win the day. However, weighing all the factors I have enumerated, I conclude that the right thing to do in this case is to deny the adjournment. There has already been prejudice in the delay. This is a second trial date. The corporate plaintiff has been unable to get Counsel for over two years, and has been in breach of Court Orders to do so for almost twelve months. Its current efforts are preliminary at best. The case has an unfortunate history of counsel getting off the record.

There are serious questions about the viability of the claim. [ 74 ] An adjournment here does not serve anyone’s real interests. This is an unfortunate outcome at a human level for the people behind Debut. However, the proper administration of justice requires acknowledging that an adjournment here will not solve the problems Debut is having getting this case to trial. Therefore, the adjournment application in the Debut action is denied. [ 75 ] The necessary consequence of that finding is that Debut stands before this Court unrepresented and unable to advance its claim. Its action is accordingly dismissed v.

The defamation action [ 76 ] Ms. Prpick also asks for the defamation action against her to be adjourned. That action was commenced in 2016 and was set for trial in 2020, after being joined with the Debut action. It was joined at the plaintiffs’ request, on the basis that there were common issues, parties and witnesses. While that is largely the case, the two matters do not entirely overlap. Specifically, the defamation action is related to two pieces of correspondence allegedly sent by Ms.

Prpick in 2015 and 2016. [ 77 ] The 2015 letter was sent to the RCMP in Calgary, with copies to the Premier, Minister Municipal Affairs, a staff member at the Town of Redcliff, and reporters at the CBC, Medicine Hat News, Cypress Courier and CHAT TV. It is said to have contained the heading “Organized Crime in Redcliff Alberta”, and made defamatory, criminal allegations. The plaintiffs allege that these statements would be understood as referring to them, given their role in the town’s administration. [ 78 ] The second allegedly defamatory communication was an e-mail sent by Ms.

Prpick to a regional vice president of the Bank of Montreal in May 2016. This e-mail contains statements about the plaintiffs by name, alleging misfeasance against them in relation to the Debut action and Debut’s business. [ 79 ] Ms. Prpick denies publication and also defends on the basis of truth and qualified privilege. Her defence also relies on the fact that none of the Plaintiffs were individually named or identified in the defamatory 2015 letter.

She further pleads that: The plaintiffs’ own conduct in the management of the affairs of the Town of Redcliff and other conduct had by January 27, 2015, been so egregious and well known that no alleged letter by the defendant or any other allegations at that time had provided any information beyond what was already known by the public of the Town of Redcliff, and further the reputations of the Plaintiffs was [sic] already so negative and so sullied by their own conduct and actions, completely independently of any conduct by the defendant, such that the alleged letter of January 27, 2015 or any other further letters or allegations did no further damage or harm to the Plaintiffs’ Reputations. [ 80 ] In respect of the May 2016 e-mail, Ms.

Prpick pleads that this was obtained by the plaintiffs through undertakings provided in the Debut litigation and is protected by truth and fair comment. [ 81 ] Although initially opposed to the joinder of the defamation and Debut actions, Ms. Prpick now argues that they should not be separated because of their alleged commonalities. While there is some overlap in the relevant parties and events, what is said about Ms.

Simon in the May, 2016 e-mail all postdates the subject matter of the Debut action. [ 82 ] Similarly, the principal paragraph complained about in the January 2015 letter also makes broad, generalized allegations that do not specifically refer to any actions or events pled in the Debut claim.

It is said to state that: Evidence includes a double set of books; an illicitly obtained revenue stream from public coffers; false registries at land titles; forgery; creating false documents; misappropriation of public money; misappropriation of grant money (both federal and provincial); third party land sales slash registries; and other fraudulent activity. [ 83 ] The defamation action is thus very much its own proceeding, irrespective of the overlap with Debut’s claims. vi.

Adjournment analysis [ 84 ] The plaintiffs’ basic case establishing publication, defamatory content, and reference to them individually is factually straightforward and ready to go. The adjournment is not required to reach a determination on the merits. The only concern is whether the defendant could fairly put forward her position as a self-represented litigant.

This leads naturally to consideration of the prejudice that would flow from granting or denying the adjournment. [ 85 ] For two of the individual plaintiffs, these defamatory statements relate to conduct in their role as town officials more than a decade ago. One of these plaintiffs is suffering health challenges. Neither are young. One traveled to the trial from outside the country. If, in fact, these individuals are referenced in both of these statements, and they are shown to be defamatory, their opportunity to vindicate their reputations is long overdue.

In particular, given that the defendant may seek to justify her statements on the basis of events that occurred more than 10 years ago, fading recollections present a significant prejudice as well. [ 86 ] As regards Ms. Simon, she is much more recently an employee of the Town of Redcliff and continues in a senior managerial position there. The imperative of clearing her name is a much more pressing concern given her prominent role in a small community. In sum, there is significant potential prejudice to delaying this matter further. [ 87 ] From Ms.

Prpick’s perspective, the potential prejudice of being denied the adjournment is that she will have to defend herself,

which will almost inevitably result in a somewhat inferior presentation of her case. This would ordinarily be quite a significant factor weighing in favor of an adjournment. In this case, however, that weight is attenuated by the fact that Ms. Prpick has relied on her right and intention to self-represent in the defamation action repeatedly in previous court appearances. She largely took that position to assist in advancing her main argument that she should be permitted to represent Debut as well.

In short, everyone involved in this litigation would have arrived at this trial with the understanding that it was Ms. Prpick’s intention to provide her own defence on this claim. [ 88 ] While I accept her recently expressed worry at the possibility of having to defend herself as genuine, the tension of this when contrasted with the tactical positions she has taken along the road to this juncture attenuate any unfairness of forcing her to now proceed on a self-represented basis. Therefore, on balance, somewhat greater prejudice would flow from adjournment of the defamation trial. [ 89 ] Ms.

Prpick’s explanation for not being ready is the same here as in the Debut action, namely a lack of funds to hire counsel. There is a salient difference, however, as Ms. Prpick has not made any attempts to identify counsel who could assist her specifically with the defamation action, on a limited basis or otherwise.

Despite now professing a genuine desire to have a lawyer on this matter, she has made no separate effort to see if she could solve this much smaller problem of getting some legal help for herself for this trial. [ 90 ] In light of her previous express desire to self-represent, and collateral reliance on that right to gain favorable procedural rulings on the Debut action, Ms. Prpick's explanation for her unreadiness to proceed with the defamation action is understandable, but less convincing.

This explanation weighs somewhat in favor of denying adjournment. [ 91 ] The length of adjournment required in the defamation action alone would be long, though perhaps not as much so as with the Debut action. Ms. Prpick might be able to get some

summary assistance to better run her defence within the next year. Again, however, a trial is only realistically going to happen a year or more from now. This length of adjournment would enhance the prejudice to the plaintiffs discussed above, and weighs against granting it. [ 92 ] The request to adjourn the defamation action to get counsel also interacts uneasily with prior Orders of this Court. The November 4, 2021, Order of Justice Ashcroft specifically stated that Ms. Prpick may represent herself in the defamation action. This term was included at her request.

While this is not a particularly significant point, it illustrates the tension between Ms. Prpick’s present request and her previous positions. [ 93 ] There is no question that the presentation of Ms. Prpick’s defence would benefit from the presence of counsel. The tort of defamation rapidly shifts the tactical burden of proof to the defendant. In this case, certain legal defences have been advanced. The active assistance and guidance of the trial judge is only a partial substitute for the presence of skilled counsel.

This factor weighs in favor of the adjournment. [ 94 ] Turning to the history of the case, while the genesis and timing of the defamation claim are understandable, it served to complexify the already difficult Debut action. On the other hand, the plaintiffs were ready to go on this matter in 2020. I find that the history of this proceeding is a neutral factor on the adjournment. That said, I do not find that Ms. Prpick is attempting to delay the defamation claim.

That is merely a necessary consequence of what she is seeking to do in general. [ 95 ] The final consideration is whether the adjournment sought would achieve its purposes. Much of the reasoning on this ground in relation to the Debut action applies here, given that Ms. Prpick apparently intends to rely relies on facts underlying the Debut action in her defence. The difference, however, is that Ms.

Prpick has some realistic chance of securing limited-retainer assistance with the defamation action, whereas that is not realistic in respect of Debut. [ 96 ] A measure of legal guidance and advice would unquestionably assist Ms. Prpick in her handling of the defamation action and enhance the quality of her defence. Getting that help is probably within her reach. This factor weighs most strongly in favor of granting the adjournment. [ 97 ] In the final analysis, whether to grant the adjournment on the defamation, now that it will travel alone and separate from the Debut action, is a relatively close call.

I find that the balance is tipped by the fact that Ms. Prpick finds herself in this position because she appears largely to have been in denial about the impending reality of the defamation trial while simultaneously leveraging her professed intention to self-represent to seek rulings from the Court allowing her to act for Debut.

The consequences of this should not be visited on the individual plaintiffs who stand to suffer real prejudice if this trial is adjourned in anticipation of an eventual third trial date. [ 98 ] The defamation claim is simple, appears to have some merit on its face, and seeks relatively modest damages. I am satisfied that, on balance, fairness and the proper administration of justice are best served by it proceeding. The adjournment request is accordingly denied. [ 99 ] Ms.

Prpick previously requested some time this week to consult with a lawyer about the defamation action if it is pressed forward and I will grant her that, given that there is sufficient Court time available to complete the matter while allowing her to take this step. The defamation action will proceed as scheduled in the second week reserved for these matters. Heard on the 28 th and 29 th days of November, 2022. Oral Reason for Judgment given on 1 st day of December, 2022. Dated at the City of Medicine Hat, Alberta this 2 nd day of December, 2022.

N.E. Devlin J.C.Q.B.A. Appearances: Danica Prpick for the Self-Represented Litigant Jonathan McCully for the Defendant/Plaintiffs