Anglin v Resler, 2022 ABKB 737

Court of King’s Bench of Alberta Citation: Anglin v Resler, 2022 ABKB 737 Date: 20221104 Docket: 1703 06642 Registry: Edmonton Between: Joseph V. Anglin Plaintiff (Respondent) - and - Glen L. Resler in his capacity as Chief Electoral Officer, Her Majesty the Queen in Right of Alberta, Pieter Broere, Rick Pankiw, and Richard Roe Defendants (Applicants) _______________________________________________________ Decision of the Honourable Mr. Justice J.J. Gill _______________________________________________________

Introduction: [ 1 ] The Defendant/Applicant, Rick Pankiw (“Pankiw”) applies to set aside a Noting in Default by the Plaintiff /Respondent (Anglin). Background [ 2 ] Anglin unsuccessfully sought election as a Member of Legislative Assembly in the 2015 Alberta provincial election.

He filed this action on April 6, 2017. [ 3 ] The Statement of Claim relates to matters that took place during the 2015 election, and to a number of subsequent actions brought by the Defendant, the Chief Electoral Officer of Alberta, Glenn Resler (Resler) against Anglin. [ 4 ] In the Statement of Claim Anglin alleged that “John Doe”, worked with Resler and others, with a common goal to create an unfair advantage for the Plaintiff’s opponents in the election. [ 5 ] Anglin specifically alleged that Resler, “John Doe” and others unfairly or wrongly required Anglin to cover over elements of his campaign signs; commented to the media that the campaign signs were illegal; and authorized or allowed individuals to remove and damage his campaign signs. [ 6 ] At the time of filing the claim, Anglin was not aware of the names of the individuals who were allegedly acting in concert with Resler.

In early February 2018, Anglin discovered that Pankiw was the actual individual he had designated as “John Doe” in the Statement of Claim. [ 7 ] On February 13, 2018, Anglin handed the Statement of Claim (which he had not amended to substitute Rick Pankiw for John Doe) to Pankiw and informed Pankiw that he was suing Pankiw as John Doe. [ 8 ] Pankiw sought legal advice from McLennan Ross LLP, and counsel, for Pankiw, exchanged a series of communications with counsel for Anglin between February 21 and March 7, 2018. [ 9 ] The substance of the communications was: (

a) Counsel for Pankiw advised counsel for Anglin that they had been retained, and advised that there was no obligation to file a Statement of Defence, as Pankiw had not been named as a Defendant; (

b) Counsel for Anglin responded that Pankiw “is John Doe” and that if he did not file a defence he would be obliged to “note John Doe in default” as of March 6, 2018; (

c) Counsel for Pankiw responded that it was not possible to file a defence for Pankiw until he is named as a party in the action; (

d) Finally, counsel for the Anglin advised that “John Doe has now been noted in default”. [ 10 ] The Noting in Default was filed on March 6, 2018 and states: Joseph Anglin, Plaintiff, requires the court clerk to enter in the court record of this action a note to the effect that John Doe, identified as Mr.

Rick Pankiw in an Affidavit of Service filed February 27, 2018, has not filed a statement of defence and consequently is noted in default. [ 11 ] On August 5, 2021 Anglin filed an application seeking an order to amend the Statement of Claim and Noting in Default to substitute Rick Pankiw for John Doe. [ 12 ] Pankiw opposed the amendment application on the grounds that he had not been named as a Defendant in the action; that Anglin’s limitation time period to sue Pankiw had expired; and that Anglin had acquiesced in the expiration of his limitation to sue Pankiw by failing to apply to amend in his pleading for more than three years after discovering that he wished to sue Pankiw. [ 13 ] That application was heard by the Honourable Mr.

Justice M. J. Lema on March 11, 2022 and Justice Lema granted the Plaintiff’s application to amend in reasons released on March 28, 2022. [ 14 ] On April 20, 2022 counsel for Pankiw wrote to me in my role as Management Judge, to advise of Pankiw’s intention to apply to set aside the Amended Noting in Default and to seek a Case Management hearing date for that application. The application to set aside was eventually scheduled for October 17, 2022 in accordance with the Court’s availability. [ 15 ] The formal Order from the Amendment Decision was filed on June 17, 2022.

The Amended Statement of Claim was filed on June 22, 2022. The Order and Amended Statement of Claim were served upon counsel for Pankiw on June 23, 2022. An Amended Noting in Default has not been served upon counsel for Pankiw and counsel does not know whether one has been filed. [ 16 ] Pankiw has filed an affidavit denying involvement in any of the parties alleged in the amended statement of claim and specifically denying knowing the co-defendant Resler with whom he is alleged to have in essence conspired to commit the activities

alleged in the Amended Statement of Claim. The Law Setting Aside a Default Judgment 9.15

(3) The Court may, on any terms the Court considers just, (

a) permit a defence to be filed by a party who has been noted in default, (

b) set aside, vary or discharge a judgment granted upon application against a defendant who was noted in default, or whose statement of defence was struck out under Rule 3.37, or (

c) set aside, vary or discharge a judgment entered in default of defence by the plaintiff for the recovery of property under Rule 3.38, or for a debt or liquidated demand under Rule 3.39 . [ 17 ] The Alberta Court of Appeal addressed the issue of setting aside Default Judgment in Anstar Enterprises Ltd. v. Transamerica Life Canada , 2009 ABCA 196 . At paragraph 13: [13] Because a Default Judgment does not involve an adjudication on the merits of a claim, the plaintiff must act in “the utmost good faith and in strict compliance with the Rule s”: William Stevenson and J.E.

Côté, Civil Procedure Encyclopedia (Edmonton: Juriliber Limited, 2003) at 17-2. In other words, a party seeking to hold an opposing party in default must strictly comply with the procedural Rule s. Accordingly, where there is a flaw in the procedure leading up to default judgment, a defendant, proceeding promptly, is entitled to open up the Default Judgment as of right.

In the absence of a procedural flaw, the defendant can only rely on the court's indulgence and must then demonstrate that there is an arguable defence, that they did not they deliberately let judgment go by default and have a valid excuse for the default, and that they promptly attempted to open up default judgment: see Stevenson & Côté, Alberta Civil Procedure Handbook , (Edmonton: Juriliber Limited, 2009) at 177 - 78, Graylake Holsteins Ltd. v. Kzam Farms Ltd. , 2004 ABQB 828 at paras. 1 & 19 , 49 Alta.

L.R. (4th) 103. [ 18 ] Also in Fort McKay Metis Community Association v Morin , 2020 ABCA 311 at paragraph 11 . [11] … The three criteria reviewed by the court on an application to open up a noting in default in such circumstances were summarized in Kraushar v Kraushar , 2019 ABCA 186 at para. 5 , 88 Alta LR (6th) 69: (

a) an arguable defence ; (

b) that the defendant did not intend to allow the judgment to go by default and offer some reasonable excuse for the default such as illness or a solicitor' s inadvertence; and, (

c) that once the noting in default came to the defendant ' s attention they promptly applied to set it aside. There is a discretion involved; as R. 9. l 5(3)(

a) states, the Court can open up a noting in default “on any term the Court consider just”. [ 19 ] Also relevant is a comment of Veit J in Alberta Court of Queen's Bench Don Reid Upholstery Ltd. v. Patrie 1995 CanL11 9147 (ABQB), para 21: The appellant suggests that the case law has established " Rule s" that must be followed before a Default Judgment can be set aside. There are no such Rule s; there is only one Rule - the court must do what is fair. The case law merely provides guidance for the exercise of judicial discretion in setting aside judgments. Issues

a) Was there a procedural flaw in obtaining the Noting in Default such that Pankiw is entitled to have it set aside as of right?

b) Is Pankiw entitled to the setting aside of the Noting in Default pursuant to the Court’s discretion? Analysis. [ 20 ] Pankiw submits that this is a case where there was a procedural flaw and the facts support the court exercising its discretion to open up the default. (

a) Was there a procedural flaw in obtaining the Noting in Default such that Pankiw is entitled to have it set aside as of right? [ 21 ] Pankiw submits that the noting in default of “John Doe” represents a flaw in the procedure utilized by Anglin, because Anglin knew his identity and name prior to attempting to serve Pankiw, and therefore Pankiw is entitled to the setting aside of the Amended Noting in Default as of right .

[ 22 ] Rule 3.76(1) states: Action to be taken when defendant or respondent added 3.76(1) If a defendant or respondent is added to or substituted in an action, the plaintiff, originating applicant, plaintiff-by-counterclaim or third party plaintiff must, unless the Court otherwise orders, (

a) amend the commencement document, as required, to name the new party, and (

b) serve the amended commencement document on each of the other parties. [ 23 ] Upon learning the identity of John Doe (i.e. that it was Pankiw) Anglin had an obligation under Rule 3.76 (1) to amend the statement of claim to name Pankiw and to serve that amended statement of claim upon Pankiw. Anglin failed to do so. The language of Rule 3.76 (1) is clear. Anglin was required to act and failed to do so. [ 24 ] Anglin knew that Pankiw had legal representation and would file a defence upon being properly named and served as a defendant.

Pankiw’s lawyers told Anglin that he was required to amend the statement of claim and that Pankiw intended to defend once he was served with a properly amended document. Pankiw had the right to expect Anglin to comply with the Rules of Court . Anglin failed to do so and has provided no reasonable explanation for this failure. [ 25 ] Rule 1.2(1) states: Purpose and intention of these Rule s 1.2(1) The purpose of these Rule s is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way.

(2) In particular, these Rule s are intended to be used (

a) to identify the real issues in dispute, (

b) to facilitate the quickest means of resolving a claim at the least expense , (

d) to oblige the parties to communicate honestly, openly and in a timely way, and

(3) To achieve the purpose and intention of these Rules the parties must, jointly and individually during an action, (

a) identify or make an application to identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense, (

c) refrain from filing applications or taking proceedings that do not further the purpose and intention of these Rule s, and (

d) when using publicly funded Court resources, use them effectively. (Emphasis added). [ 26 ] Taking into account the circumstances of this case (particularly the communication between the lawyers) and the purpose and intention of the Rules I find that the actions of Anglin amount to a significant procedural flaw and that Pankiw is entitled to set aside the default judgement. [ 27 ] Based on his communication with Pankiw’s lawyers Anglin knew or should have known that not amending the statement of claim and noting Pankiw in default did not further the purpose and intention of the Rule s. [ 28 ] Anglin deliberately failed to take the simple step of properly amending his pleadings to replace John Doe and add Pankiw and then serve the amended pleadings despite being requested to do so.

Instead, he quickly noted Pankiw in default. The Rule s of Court make it clear that the civil litigation process is not a forum to be used by parties to gain an unfair advantage or to play a game of “gotcha”. [ 29 ] Anglin’s failure to take the simple and reasonable step of properly naming and serving Pankiw also resulted in an unnecessary application three years later: Anglin v Resler , 2022 ABKB 685 . That application could easily have been avoided if Anglin had followed the Rule s or even used common sense. (

b) Is This a Case Where the Court Should Exercise Its Discretion and Set Aside the Noting in Default? [ 30 ] If I am in error concerning the presence of a procedural flaw, I am satisfied that this is a case where the court should exercise its discretion and open up the default judgment . 1) Pankiw has An Arguable Defence [ 31 ] Pankiw has filed an affidavit denying involvement in any of the alleged activities set out in the amended statement of claim and specifically denying knowing the co-defendant Resler with whom he is alleged to have, in essence, conspired. A cross-examination of Pankiw on his affidavit has not undermined his evidence in any relevant or material degree.

[ 32 ] In his sworn evidence Pankiw states that he has an arguable ground of defence in this action. I agree. I find that Pankiw has an arguable defence. [ 33 ] I note also that the action against Defendant Resler has been struck. That decision is under appeal.

But there is also at least an arguable case that without Resler that there is no viable cause of action against Pankiw. 2) Pankiw did not intend to allow the judgment to go by default and offered some reasonable excuse for the default [ 34 ] The evidence confirms that Pankiw did not intend to allow the judgment to go by default and that if he had been named properly (as requested by his lawyers) he would have defended. [ 35 ] Pankiw relied on what I find to be the reasonable advice of his counsel to the effect that if the Plaintiff knows who you are but chooses not to name you, there is no obligation to defend. [ 36 ] In

summary I find that Pankiw did not in intend to allow the judgment to go by default and that he has offered a reasonable excuse for the default. 3) Pankiw applied promptly to set aside the default judgment [ 37 ] Once he was properly named Pankiw has acted promptly to apply for an order setting aside the Amended Noting in Default. The order of Justice Lema allowing Anglin to file the Amended Statement of Claim and Amended Noting in Default was served on June 23, 2022. Pankiw took steps to obtain dates for this application very shortly thereafter. [ 38 ] In comparison there has been a lack of diligence by Anglin.

As outlined, he waited approximately 3 years to apply to amend the statement of claim to properly add Pankiw; something he could have done without the court’s approval in 2018. In addition, there has been very little progress in pursuing the claims. [ 39 ] In Anstar Enterprises Ltd. v. Transamerica Life Canada supra at paragraph 18 the ABCA noted the expectation that a party act with diligence: [18] As noted by this court in Yaremchuk v.

Haight , 2001 ABCA 7 at para. 6 , 277 A.R. 160 a plaintiff that has noted a defendant in default is expected "to pursue his claim for damages in a diligent manner in the same way a defendant who has filed a statement of defence has this entitlement.' Decision [ 40 ] For these reasons the application by Pankiw to open up the Default Judgment is granted with costs to Pankiw. [ 41 ] Pankiw will file his Statement of Defence within 30 days of the date of this judgment. Heard on the 17 th day of October, 2022. Dated at the City of Edmonton, Alberta this 4 th day of November, 2022. J.J. Gill J.C.K.B.A.

Appearances: Donald F. Bur Barrister and Solicitor

for the Respondent/Plaintiff, Joseph V. Anglin Robert Muller For the Applicant/Defendant, Rick Pankiw