Crawford v Marsh, 2022 ABKB 815

Court of King’s Bench of Alberta Citation: Crawford v Marsh, 2022 ABKB 815 Date: 20221208 Docket: 1401 05166 Registry: Calgary Between: James Crawford Plaintiff/Respondent - and - Christy Lindsay Marsh and Calgary Independent Realty Ltd operating as CIR Realty Defendants/Applicants _______________________________________________________ Reasons for Decision of the Honourable Justice M.H.

Hollins _______________________________________________________ [ 1 ] This is an application by the Defendants, Calgary Independent Realty Ltd operating as CIR Realty (CIR) and Christy Marsh, to dismiss the Plaintiff’s claims against it under Rule 4.33 of the Alberta Rules of Court because of long delay. Background

[ 2 ] The Plaintiff is the purchaser of real property who is suing his real estate broker (Marsh) and the brokerage (CIR) for fraudulent misrepresentation. The Statement of Claim, filed on May 12, 2014, alleges breach of contract and fraud against Marsh and names CIR as vicariously liable. The Statement of Claim pleaded the existence of an agreement called an Exclusive Buyer Brokerage Agreement (the Agreement) between all three parties. The Defendant Marsh, who was and is represented by separate counsel, filed a Statement of Defence that expressly denied the existence of the Agreement.

CIR filed a Statement of Defence that denied the existence of the Agreement by implication as it was not admitted therein. CIR claimed over against Marsh in third party proceedings, which were also defended. [ 3 ] The Plaintiff served Ms. Marsh with a Notice to Admit Facts on November 5, 2018. Among other things, it sought her admission that the Plaintiff had “...entered into an Exclusive Buyer Brokerage Agreement with CIR and Ms. Marsh”. On February 1, 2019, Ms. March provided her Reply to the Notice to Admit and admitted that fact.

The Plaintiff says that this was the last material step taken in this Action. [ 4 ] The Defendants dispute that. They say that the existence of the Agreement had been established in Marsh’s Questioning on November 25, 2015. Thus, they say, the Reply to Notice to Admit contained no new admissions regarding the Agreement and cannot be characterized as a step that significantly advanced this Action.

They rely on Rule 4.33 of the Alberta Rules of Court - the “drop dead” rule – which requires the Court to dismiss any lawsuit in which no significant advances have been made in the last 3 years. [1] [ 5 ] The issue is whether or not Marsh’s Reply to a Notice to Admit (the Reply) was a step that significantly advanced the action, within the meaning of Rule 4.33 of the Alberta Rules of Court .

The Plaintiff says it was a step that significantly advanced the action and the Defendants say it was not, as the admission therein relied on by the Plaintiff was a fact already established at earlier Questioning. [ 6 ] I have come to the conclusion that the admission in the Reply relied on by the Plaintiff did not significantly advance the action and therefore the drop-dead rule obligates me to dismiss the Plaintiff’s action.

The Law on Long Delay [ 7 ] Rule 4.33(2) of the Rules of Court says that an action must be dismissed as against an Applicant “if 3 or more years have passed without a significant advance” in the action. [ 8 ] While we historically focused on the type of step taken, it is now clear that we are to employ a functional analysis, looking more closely at what the step did or did not accomplish; Flock v Flock Estate , 2017 ABCA 67 at para.17 referring to its decision in Ro- Dar Contracting Ltd v Verbeek Sand & Gravel Inc , 2016 ABCA 123 . [ 9 ] I am to focus on the substance of the step taken – here, the admission of the Agreement in Marsh’s Reply to Notice to Admit - to determine whether it significantly advanced the action by moving the lawsuit forward; Ursa Ventures Ltd v Edmonton (City) , 2016 ABCA 135 at para.19.

Steps which significantly advance an action may do so by narrowing the issues for trial, putting the parties in a better position to assess the merits of their positions or creating opportunities for settlement; Edinburgh Tower Development v Curtis , 2021 ABQB 239 at para.8. The Reply to the Notice to Admit [ 10 ] In my opinion, there would be little question that proving the contract under which a plaintiff claims breach and consequent damages would be, in the normal course, “essential to the resolution of the action”; Alberta v Morasch , 2000 ABCA 24 at para.13. In fact, the Defendants do not argue otherwise.

Rather, they say, this essential admission was made much earlier in the proceedings and so its repetition or adoption in Marsh’s Reply to Notice to Admit cannot be said, substantively, to have significantly advanced the action. [ 11 ] A similar issue was addressed by Master Hanebury in Krieter v Alberta , 2014 ABQB 349 . In that case, the plaintiffs had sued for environmental contamination of their real property. Although more than 3 years had admittedly passed after the exchange of Affidavits of Records with nothing happening in the lawsuit, the plaintiffs then served a Notice to Admit and received a Reply.

The Reply, however, denied each fact or declined to answer. [ 12 ] Following a number of previous Alberta cases, Master Hanebury explained that refusals do not significantly advance an action.

Although in obiter , Master Hanebury said that “If none of the admitted facts were in contention by the parties, the test will not be met; Davidchuk v Wolansky , 2002 ABQB 409 at paras.15-17 (MC); AG Lennox & Associates Management Consultants Ltd v 854087 Alberta Ltd, 2010 ABQB 367 at para.6; Matco Investments Ltd v Dhow Properties Ltd , 2010 ABQB 104 at paras.37-41.” [ 13 ] Justice McDonald writing for the court in Jacobs v McElhanney Land Surveys Ltd , 2019 ABCA 220 at paras. 128-129 said similarly: If a notice to admit produces no response or a response that admits some of the facts set out in the notice to admit, it may or may not be characterized as an advancement in the action.

Suppose a notice to admit lists only facts that the defendant has already admitted in a statement of defence. A party that secures a second admission of facts cannot be said to have advanced its suit. [emphasis added] [ 14 ] The question therefore boils down to whether or not the existence or relevance of the Agreement, which the Defendants had initially denied, had already been admitted before the February 1, 2019 Reply to Notice to Admit. [ 15 ] On November 25, 2015, Ms. Marsh was Questioned by counsel for CIR in connection with the third-party notice issued against her.

Although this was not the Plaintiff Questioning Ms. Marsh, the transcript of her Questioning was provided to the Plaintiff and would have been available for the Plaintiff to rely upon as a party adverse in interest.

[ 16 ] At that Questioning, Ms. Marsh admitted every element of the alleged Agreement (see pages 8-10 and 21). Though Ms. Marsh did not explicitly confirm the existence of the Agreement in the Third-Party Questioning (and was not asked to), she admitted she “worked as Mr. Crawford’s real estate agent for his acquisition of the subject property” and that she was the “single agency relationship with Mr. Crawford” on behalf of CIR. [ 17 ] Further, when CIR filed its material in support of its application to summarily dismiss the Plaintiff’s claim, its supporting Affidavit of Mr.

Stader, dated June 23, 2017, contained those Questioning excerpts and also attached as an Exhibit the fully executed copy of the Agreement, bearing Ms. Marsh’s signature. Ms. Marsh did not respond with any further denials of the Agreement, nor could she have. [ 18 ] Considering the foregoing admissions to the Third-Party Questioning and the copy of the Agreement bearing her signature, name, and initials, Ms. Marsh could not credibly deny the existence of the Agreement nor being party to it.

Securing a further admission of this through the Notice to Admit Facts was, therefore, of little importance to the Plaintiff’s case. The Reply to Notice to Admit Facts was not, as counsel for the Plaintiff argued, a step that significantly advanced the Action by reason of the admission of the existence of the Agreement. That fact was no longer in dispute. [ 19 ] Accordingly, the next last step in the Action prior to the Reply to Notice to Admit would have been the Questioning in 2015 or CIR’s 2017 motion for

summary dismissal, although it did not proceed. In any event, there was no other step taken that could have brought the Plaintiff within the 3-year limit contemplated by Rule 4.33. Conclusion [ 20 ] As a result of the foregoing, this Action is dismissed by operation of Rule 4.33 of the Rules of Court . Parties may speak to costs if they cannot agree. Heard on the 18 th day of July, 2022. Dated at the City of Calgary, Alberta this 8 th day of December, 2022. M.H. Hollins J.C.K.B.A. Appearances: Jorge Alas, student-at-law appearing as agent for Marc F.

Crarer for the Defendant/Applicant, Christy Lindsay Marsh James M. Doyle for the Defendant/Applicant, Calgary Independent Realty Ltd operating as CIR Realty Krista Gibson For the Plaintiff, James Crawford/Respondent