L. ANTHONY BENTLEY Plaintiff - v. -, 1999 ABQB 432

Bentley v. Stringer , 1999 ABQB 432 Date: 1999 0603 Action No. 9101- 03696 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF CALGARY BETWEEN: L. ANTHONY BENTLEY Plaintiff - and - WESLEY STRINGER ROSE CAROLINE STRINGER Defendants _______________________________________________________ REASONS FOR DECISION by MASTER K.R.

LAYCOCK _______________________________________________________ [ 1 ] The defendant, Stringer, applies for an order to strike out the statement of claim pursuant to rule 129 (1) or alternatively, for an order dismissing the claim for want of prosecution pursuant to rule 244.1 or rule 244. [ 2 ] The plaintiff filed the statement of claim March 6, 1991, and alleges that the defendant assaulted him on or about May 7, 1990, which resulted in personal injuries and psychological damage. A statement of defence on behalf of both defendants was filed March 18, 1991.

The action was subsequently discontinued against the female defendant January 28, 1993. [ 3 ] On November 30, 1992, the plaintiff filed a notice of motion returnable for December 10, 1992, asking for an order pursuant to rule 243 for leave to take the next step. The application was adjourned to December 17, 1992, then to January 15, 1993 and thereafter adjourned sine die by consent. A consent order was granted by Master R. B. Waller Q.C., March 24, 1993, allowing the plaintiff to take the next step in the action.

[ 4 ] Examinations for discovery were held January 5, 1993. The defendants then solicitor wrote to the plaintiffs then solicitor on April 14, April 29, May 21 and June 22, 1993, requesting that the plaintiff respond to his undertakings. On July 26, 1993, the plaintiffs solicitor filed a notice of ceasing to act. The plaintiff's new solicitor forwarded some answers to the plaintiff's undertakings on June 20, 1994.

Defendant's counsel argues that the undertakings are not satisfactorily completed but no application requiring compliance with the undertakings nor examination on the undertakings have been proceeded with. On March 20, 1996, the plaintiff's solicitor requests that the defendant's new solicitor provide answers to the defendants undertakings arising from the examination for discovery. The plaintiff's solicitor, on April 15, 1996, again wrote and asked for the delivery of the undertakings and forwarded a completed certificate of readiness for the defendants review and execution.

On September 3, 1996, the plaintiff's counsel sends further answers to undertakings of the plaintiff and requested the defendant produce its undertakings within 14 days. On September 27, 1996, the defendant's solicitor responds and provides answers to his clients undertakings. In addition, he requests income tax information and medical reports. On September 30, 1996, plaintiff's counsel requests the defendant's counsel to sign the certificate of readiness. On October 7, 1996, the defendant's counsel forwards to the plaintiff's counsel a notice to produce documents.

On May 7, 1999, this application is filed by the defendant. [ 5 ] The defendant's first argument is that the statement of claim discloses no cause of action or is frivolous and vexatious and should therefore be struck. During argument the defendant's counsel acknowledged that a cause of action is plead in the statement of claim and acknowledged that his client was convicted in criminal courts of assaulting the plaintiff. Based on these acknowledgements counsel conceded that it was unlikely the court would grant his application under rule 129(1).

The defendant's counsel is correct and that portion of the application is dismissed. [ 6 ] The real argument between the parties dealt with the events which took place in the five years prior to the filing of the notice of motion on May 7, 1999. In June 1994 and September 1996 the plaintiff provided answers to his undertakings. In September 1996 the defendant provided answers to his undertakings. In October 1996 the defendant served the plaintiff with a notice to produce documents.

In April 1996 the plaintiff provided to the defendant a draft certificate or readiness for completion. [ 7 ] Neither party provided any authorities for their position in this matter. [ 8 ] Alberta courts have held that complying with an undertaking in your own lawsuit is not a material advancement of an action. ( Smith v. Alberta 1996 A.J. #563 and Appleyard v. Reed 1997 A.J. #1067), 1997 CanLII 14870 (AB KB) , 208 A.R. 236 and Pro-Man Construction v. DeBow 1998 ABQB 17 ) [ 9 ] Several days after Pro-Man the Alberta Court of Appeal in Peterka v.

Nieman 1998 ABCA 14 held that the provision of a certificate under the Mental Health Act in the context of that lawsuit was a step that materially advanced the action. The court held that the provision of the certificate was very important evidence which the defendant needed and therefore it is arguable that the provision of documents or information arising from undertakings from an examination for discovery may, in the context of the particular lawsuit, be things that materially advanced the lawsuit. The provision of undertakings is really a continuation of the discovery process.

If the production of one document outside of an examination for discovery in Peterka is found to be a thing that has materially advanced the action how could it be said that the production of documents arising from an examination for discovery is not a thing that materially advances the action. Although the Court of Appeal in Peterka , did not mention the Smith , Appleyard and Pro-Man Construction cases , it must be taken to have narrowed the absolute statements in those cases which held that provision of undertakings by the plaintiff are not things that materially advance the action.

Clearly if the undertakings provide important evidence on any of the issues raised in the pleadings then the delivery of documents or answers to undertakings must be things that materially advance the lawsuit. The provision of undertakings by all parties is generally a prerequisite to the completion and filing of the certificate of readiness.

The provision of undertakings is therefore a thing that is material in the advancement of a lawsuit. [ 10 ] In Volk v. 331323 Alberta Ltd. (1998) 1998 ABCA 54 (CanLII) , 212 A.R. 64 ; 168 W.A.C. 64 the Alberta Court of Appeal determined that things done by plaintiffs and defendants must be considered in determining whether the action has been materially advanced. Therefore, responses to undertakings provided by either the plaintiff or defendant which provide important evidence in the proceedings will amount to things that materially advance the action.

In order to determine whether the provision of undertakings in this case have materially advanced the action it is necessary to review the nature of the information and documents provided in answers to the undertakings. [ 11 ] The plaintiff provides little relevant evidence of the nature and extent of the undertakings provided by him to the defendant and therefore it can not be concluded that the provision of undertakings by the plaintiff in this case was a thing that materially advanced

the matter. [ 12 ] The defendant argues that even if a defendant providing undertakings after an examination for discovery is a thing that materially advances the action, an examination of the 5 defendant's undertakings would reveal that the undertakings are irrelevant to the lawsuit.

Assuming that the provision of a defendant's undertakings may be a thing that materially advances an action, in this case, having regard to the undertakings, I can only conclude that the questions which gave rise to the undertakings were irrelevant and could have been objected to, or were so marginally relevant that the provision of answers would not have assisted the plaintiff in advancing his claim. Correspondingly, the failure to provide the undertakings would not have done any injury to the claim.

In some action the provision of undertakings would materially advance the action, however in this case these undertakings did nothing to materially advance the action. Put in its best context it could only be said that now counsel could complete its certificate of readiness verifying that the defendant had provided its undertakings. [ 13 ] In Co-operators Life Insurance Company v. Rollheiser 1998 ABQB 874 Madame Justice Kent states at page 2 paragraph 6: The thing which is done must be shown as something which moves the lawsuit closer to trial and does so in a meaningful way.

An examination for discovery which occurs clearly advances the action. Setting a date for examinations for discovery does not materially advance the action. It barely advances the action. [ 14 ] In Bishop v. Calgary 20 CPC (4 th ) 231 the Alberta Court of Appeal stated at page 236 paragraph 21: In our view, if a step is necessary for an action to advance then the taking of such step is a 'thing which materially advances the action'.

The essentiality of a step in advancing an action is determined by examining the nature of the step without regard to the conduct of the proceeding subsequent to the step being taken. [ 15 ] The filing of a notice to produce documents is not a step that is required to be taken under the Alberta Rules of Court. The filing of a certificate of readiness is required by rule 236 in order to obtain a trial date. It is a step required by the rules and therefore in accordance with Bishop it is a thing which materially advances the action.

Under rule 236 if the parties can not agree to file a certificate of readiness either party may apply on notice for an order entering the matter for trial. Obtaining an order requiring the matter to be entered for trial or filing a certificate of readiness has clearly materially advanced the action. The mere preparation of a certificate of readiness by plaintiff's counsel does not necessarily advance the action. In this case, a draft of the certificate of readiness was prepared by plaintiff's counsel in April 1996.

Nothing further was initiated by plaintiff's counsel to ensure that the certificate of readiness was completed by the defendant and filed with the court. Defendant's counsel maintained that they would not sign the certificate of readiness because they had not received full and proper answers to undertakings and required further information with respect to the plaintiffs claim for damages. Therefore, merely filling in some of the blanks on a certificate of readiness can not be found to have materially advanced the action.

This is clearly evidenced by the fact that nothing occurred in the three years following the forwarding of the draft certificate of readiness to the defendant's solicitor. The plaintiff, by his lack of action, has thereby conceded that the matter is not in fact ready to be entered for trial.

Therefore the preparation of the draft certificate of readiness and forwarding it to the defendant's counsel has not materially advanced the action. [ 16 ] The Rules of Court do not require the filing of an affidavit of documents in civil actions unless pursuant to rule 186(2) a party to the action by notice in writing requires the other party to discover documents by affidavit.

The filing of an affidavit of documents setting out all of the relevant documents would be a thing that materially advances the action in that it allows a party to know the nature and extent of the documents held by the other side and permits and inspection of the documents (rule 191). The deemed admission provisions in rule 190 also make the filing of an affidavit of documents a material matter.

Arguably the service of a notice to produce that requires the filing of an affidavit of documents is a thing that materially advances the action but where a notice to produce is filed and served and the compliance with the notice is thereafter ignored by both parties, in this case for two and a half years, can it be said that the filing and service of the notice is a thing which has materially advanced this action? The plaintiff has not been tied down to the nature and extent of his documents nor has the defendant obtained knowledge of the documents which will be used at trial.

Therefore, in my opinion, the filing and service of the notice to produce documents in this action has not materially advanced this action. [ 17 ] Therefore on the evidence produced in this application, I conclude that nothing has been done in the last five years that has materially advanced the action and accordingly the action is dismissed with taxable costs of the action payable by the plaintiff to the defendant.

DATED at Calgary, Alberta this 3rd day of June , 1999. M.C.Q.B.A. APPEARANCES: Brian M. Forestell Counsel for the Defendant Richard J. Glenn Counsel for the Plaintiff