Takacs v International Union of Operating Engineers, 2023 ABKB 248

Court of King’s Bench of Alberta Citation: Takacs v International Union of Operating Engineers, 2023 ABKB 248 Date: 20230426 Docket: 1813 00615 Registry: Ft. McMurray Between: Csaba Takacs Plaintiff - and - International Union of Operating Engineers, Local 955, Pension Trust Fund Defendants _______________________________________________________ Reasons for Decision of the Honourable Justice Douglas R. Mah _______________________________________________________ A. Background [ 1 ] The plaintiff Takacs applies for an Order that a Judicial Dispute Resolution (JDR) under Rules 4.17–4.20 be directed.

The defendant Pension Trust Fund cross-applies for mandatory dismissal of the action for long delay under Rule 4.33. [ 2 ] At its core, Mr. Takacs says in this action that the Pension Trust Fund represented to him that the commuted value of his union pension at one point was about $161,000 and he insists on payment of that amount. The Pension Trust Fund says that commuted

value fluctuates with interest rates and that it remains ready and willing to pay whatever the commuted value is, according to law and under the plan rules, on the date of payment. [ 3 ] The discrepancy in value alleged by Mr. Takacs arises from a regulatory change made under the Employment Pension Plans Act effective November 21, 2017. The regulatory change permitted eligible plans (of which the defendant was one) to apply, at their option, for a solvency moratorium applicable to the calculation of commuted value.

The Pension Trust Fund applied for this solvency moratorium and received approval for it from the Superintendent of Pensions effective December 15, 2017. The change meant that the Pension Trust Fund would, going forward, calculate and pay out commuted values on the same basis that the plans are funded, i.e. on a going-concern basis.

The effect was that members of the Pension Trust Fund cashing out their pensions after December 31, 2017 would receive less than what would have been received prior to that date. [ 4 ] A notice announcing the change dated December 15, 2017 and addressed to members was posted to the Pension Trust Fund website on February 20, 2018. [ 5 ] Mr. Takacs is a member of the plan. He left his union employment in August 2015.

On July 15, 2016 he contacted the Pension Trust Fund’s office to inquire about pay out and was apparently told (under the pre-solvency moratorium calculation method) his pay out consisted of $127,000 that could be transferred into a LIRA and a further $33,000 in cash. He was also advised that he could not take his cash value until two calendar years had elapsed after his last contribution, which meant as of January 1, 2018. [ 6 ] After an inquiry with the Pension Trust Fund in January 2018, Mr.

Takacs was alarmed to learn that the commuted value of his pension had diminished to $91,000 from the $161,000 he had been advised of earlier. He was provided with an explanation from the Pension Trust Fund, including the documents related to the application for and approval of the solvency moratorium. Mr. Takacs disputes that the regulatory change was validly applied to this pension plan or that it applies in his case. One of his complaints is that the change was not properly communicated either to the membership or to him in particular. B.

Litigation History [ 7 ] The steps taken in this lawsuit are summarized as follows: • The Statement of Claim was issued August 31, 2018, and the Statement of Defence on October 3, 2018. • The Statement of Claim was amended as February 28, 2019 to substitute the Pension Trust Fund as defendant as opposed to the union local, and the Statement of Defence to the Amended Statement of Claim was filed on March 7, 2019. • Mr. Takacs filed his Affidavit of Records on August 20, 2019. • The Pension Trust fund filed its Affidavit of Records on October 18, 2019. • Mr.

Takacs filed an application on September 29, 2022 to set the matter down for trial, returnable November 28, 2022. • The Pension Trust Fund, by its counsel, obtained an Order from ACJ Nielsen on November 18, 2022 adjourning the application to January 18, 2023, for reason of counsel unavailability. • I heard the application on January 18, 2023 and dismissed it. • Mr.

Takacs filed this application on February 28, 2023 returnable April 5, 2023 requesting that the Court direct a JDR. • The Pension Trust Fund filed a cross-application returnable the same date seeking dismissal of the action for long delay. [ 8 ] For the purposes of the dismissal-for-long-delay application, the parties agree that the period of delay should be measured from October 18, 2019, the date on which the defendant filed its AOR.

The parties also seemed to agree that the three-year period in Rule 4.33 was extended by 75 days through Ministerial Order, because of the COVID-19 pandemic, meaning that it lapsed on January 3, 2023. [ 9 ] Mr. Takacs says that the filing of his application on September 29, 2022 counts as a step and the Pension Trust Fund says it does not. C. Application for JDR [ 10 ] Mr. Takacs requests a JDR for two reasons.

The first is that I when I dismissed his earlier application to set the matter down for trial, I noted that not only had questioning not occurred in the action but that participation in a dispute resolution process as contemplated in Rule 4.16(1) had also not taken place. Mr. Takacs sees JDR as a necessary step to achieve trial. [ 11 ] Second, Mr. Takacs believes from email he has received from the Pension Trust Fund’s counsel that it is open to settlement since it offered a higher amount in that email. I told Mr. Takacs that I did not want to hear about without prejudice settlement offers. Mr.

McGown, for the Pension Trust Fund, corrected both Mr. Takacs and myself. The Pension Trust Fund had not “increased” its settlement offer. Rather, Mr. McGown had simply reiterated what the Pension Trust Fund has always been prepared to do, which is to pay out the current commuted value of Mr. Takacs’ pension. Due to interest rate changes, that value was higher on that valuation date than it was in January 2018. [ 12 ] Mr. Takacs submitted that it is not necessary to conduct questioning in this case. He said that all documents have been

disclosed and each side knows the other’s case, and therefore the action is ready for a JDR. [ 13 ] Mr. McGown said the long delay application had to be decided first to see if there was any action that survived that could go to JDR. This is the logical order of decision-making to me. D. Dismissal for Long Delay [ 14 ] Mr. Takacs initially complained about service of the cross-application. After discussion with both sides about service, it appears that Mr. McGown served the across-application materials upon Mr. Takacs at the email address for Mr.

Takacs that the two them habitually use to communicate with another and that Mr. Takacs stated in his court documents. Nonetheless, Mr. Takacs suggested that the service email, if sent, had gone astray. He said he didn’t receive it. I asked Mr. Takacs if he was applying for an adjournment and, if so, I would consider an adjournment. I offered to hear the application remotely the following day. He said that he could briefly review the materials while in court and preferred to proceed. I further asked if he realized that if I granted the cross-application, then his action was dismissed.

He stated that he understood this and could appeal my decision to the Court of Appeal if he didn’t like it. [ 15 ] I did not make a finding that service was deficient but based on Mr.

Takacs’ desire to proceed with both applications, I concluded that any deficiency had been waived. [ 16 ] The Court of Appeal helpfully summarized the principles for application of Rule 4.33 in Patil v Cenovus Energy Inc , 2020 ABCA 385 at paras 7 & 8 : [7] Several legal principles can be discerned from decisions of this Court interpreting r 4.33: • 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. • Plaintiffs bear the responsibility of prosecuting their claims in a timely way: XS Technologies Inc v Veritas DGC Land Ltd , 2016 ABCA 165 at para 7 . • Defendants are obliged (pursuant to r 1.2) to not obstruct, stall or delay an action that the plaintiff is advancing: Janstar Homes Ltd v Elbow Valley West Ltd , 2016 ABCA 417 at para 26 . • A functional, as opposed to a formalistic, approach is appropriate to determine if a step constitutes a significant advance: Ursa Ventures Ltd v Edmonton (City) , 2016 ABCA 135 at para 19 . • 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. • A significant advance is one that moves the action forward in an essential way, having regard to the nature, quality, genuineness and timing of the advancing action: Ursa Ventures at para 19; Ro-Dar Contracting Ltd v Verbeek Sand & Gravel Inc. , 2016 ABCA 123 at para 21 . • Rule 4.33 functions like a limitations period.

It only requires one significant advance within the three-year period, not “continuous significant advancement”. Rule 4.33 is not designed to determine what a “reasonably diligent litigant” would do over the course of the three-year period: Ursa Ventures at para 11. • Whether an agreement between counsel constitutes a significant advance is context dependent.

Rule 4.33 was not designed to encourage an “ambush” by one side after the parties had agreed to take a particular step: Turek v Oliver , 2014 ABCA 327 at para 6 . • Courts assessing whether an action is a significant advance under r 4.33 should focus on substance, not form. As an example, agreement to participate in a judicial dispute resolution process may not constitute a significant advance if it was merely an agreement to

schedule a JDR, which was not carried out: Weaver v Cherniawsky , 2016 ABCA 152 at paras 20-21 . [8] Importantly, r 4.33 is “not designed to regulate the efficient prosecution of actions, but rather to prune out actions that have truly died”: Ursa Ventures at para 10. [ 17 ] Mr. Takacs’ application for a trial was filed before but heard after the putative drop-dead date of January 3, 2023. Mr. McGown submits that the filing of an application of that nature that is, moreover, ultimately dismissed does nothing to advance the action, either significantly or at all. Mr. Takacs says a dismissed

summary judgment application may count as a step: Jacobs v McElhanney Land Surveys Ltd , 2019 ABCA 220 at paras 108 & 177-118 , and therefore so should his application. Alternatively, he says that the Pension Trust Fund acquiesced to any delay by taking

part in his trial application, relying on Rule 22(2)(

d) which codifies the Court of Appeal’s

interpretation of the former rule in Trout Lake Store Inc v Canadian Imperial Bank of Commerce , 2003 ABCA 259 at para 33 ; see also Ro-Dar Contracting Ltd v Verbeek Sand & Gravel Inc , 2016 ABCA 123 at para 17 . [ 18 ] On the last point, I will note that the Pension Trust Fund did not engage with Mr.

Takacs in litigation steps after the 3-year period in the manner described in Trout Lake at para 33 (note that the drop-dead period under the former rule was 5 years as opposed to 3): If the delaying party has done a thing to materially advance the action after the five-year gap, and the applicant has participated in that thing, continued to participate in the action, or otherwise acquiesced in the delay, the action shall continue, and the application for dismissal refused. [ 19 ] Furthermore, the Pension Trust Fund’s deponent, Mr. Peiris, in his affidavit filed December 16, 2022 opposing the trial

application at paras 6-8, addressed the issue of delay. The Pension Trust Fund was not waiving its position with regard to delay by simply defending the application. [ 20 ] The real question is whether functionally the trial application had any meaningful effect in advancing the action.

The Court of Appeal in Jacobs at para 86 described this meaningful effect as follows: To determine whether there is a significant advance – important or notable progress – a court must assess at the start and end points of the applicable period the degree to which the factual and legal issues dividing the parties have been identified and the progress made in ascertaining the relevant facts and law that will affect the ultimate resolution of the action.

Has anything that happened in the applicable period increased by a measurable degree the likelihood either the parties or a court would have sufficient information – usually a better idea of the facts that can be proven – and be in a better position to rationally assess the merits of the parties’ positions and either settle or adjudicate the action?

Are the parties at the end of the applicable period much closer to resolution than they were at the start date? (footnotes omitted) [ 21 ] Looking at what happened in the litigation during the whole of the 3-year plus 75-day period, not a single step of any kind was taken by either party, except the filing of the Notice of Application on September 29, 2022; at least, none was in evidence. Of course, the onus for moving the action forward was always on Mr.

Takacs as plaintiff. [ 22 ] In the context of what transpired (or rather, didn’t transpire) during the entirety of the drop-dead period, I find that the filing of the September 22, 2022 application seeking a trial, considered with its outcome (dismissal), is not a significant advance in the action. It was not like an unsuccessful

summary judgment application where something is accomplished. Here, nothing was accomplished. The parties are in exactly the same position they were in when the second of the two AORs was filed on October 18, 2019. The state of knowledge and the positions of the respective parties are the same after the application was heard as they were on October 18, 2019. No issues are narrowed, there is no greater appreciation of the facts by anyone, the parties are not in a better position to negotiate, and the Court is in no better position to adjudicate.

From a litigation management point of view, after the dismissal of the trial application, the action is in the identical state it was in on October 18, 2019. [ 23 ] It also stands to reason that Mr. Takacs’ application for a JDR, filed after the prescription date of January 3, 2023, cannot resuscitate his action. E. Ruling [ 24 ] In both appearances before me, Mr. Takacs made submissions regarding the merits of his action. I make no comment because the merits of the lawsuit are irrelevant for the purposes of Rule 4.33: Gjergji v Hyatt Mitsubishi , 2017 ABQB 500 at para 34 .

Further, the rule is mandatory and does not allow for the exercise of discretion: Flock v Flock Estate , 2017 ABCA 67 at para 17 . [ 25 ] I grant the Pension Trust Fund’s application for dismissal of the action under Rule 4.33. Having so ruled, there is no need to deal further the JDR request. [ 26 ] Mr. Takacs stated in his last Notice of Application that the amount of his claim now consists of a figure slightly under $260,000. In consequence, I award costs to the Pension Trust Fund on Column 3 of

Schedule C for the entire action along with applicable disbursements, except for costs awarded for the previous application. I adopt

Schedule C in this case because Mr. Takacs is a self-represented litigant who has challenged a sophisticated opponent with considerably more resources and neither the action nor this application was overly complex: GG & HH Inc v 2306084 Alberta Ltd , 2022 ABKB 834 at para 28 ; All Good Collective Corp v 314 Pure Cannabis Ltd , 2023 ABKB 127 at paras 7-10 Heard on the 5 th day of April, 2023 . Dated at the City of Ft. McMurray, Alberta this 26 th day of April, 2023. Douglas R. Mah J.C.K.B.A. Appearances: Csaba Takacs, Self-Represented Litigant

Murray D. McGown, KC, McGown Cook for the Defendant