Vasiljevic v Kotur, 2023 ABKB 292

Court of King’s Bench of Alberta Citation: Vasiljevic v Kotur, 2023 ABKB 292 Date: 20230512 Docket: 1201 12951 Registry: Calgary Between: Igor Vasiljevic and His Majesty the King in the Right of Alberta Plaintiffs/Respondents - and - Miran Kotur and Bojan Babic Defendants/Applicants Corrected judgment: A corrigendum was issued on June 1, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision: Appeal and New Applications by Defendants for Dismissal Based on Delay of the Honourable Justice G.H. Poelman _______________________________________________________ I. Introduction

[ 1 ] The defendants applied before Farrington A.J. for dismissal of the action or part of the action, on the ground of delay. They relied on rule 4.31 (dismissal for inordinate delay) and rule 4.33 (dismissal for long delay). The learned applications judge dismissed the applications on September 2, 2020. [ 2 ] The defendants appeal the dismissal of their applications, and under second applications for delay, once again seek the same relief before me in the first instance. Their second applications were set down to be heard at the same time as the appeals. II.

Facts [ 3 ] The claims are for personal injury damages on behalf of the individual plaintiff, Mr. Vasiljevic and costs of medical care advanced by the provincial Crown. Unless the context requires otherwise, I mean Mr. Vasiljevic when I refer to the plaintiff. [ 4 ] The action concerns a physical altercation between the plaintiff and the two defendants on October 16, 2010. As a result of the altercation, the plaintiff was hospitalized and underwent extensive medical treatment. He alleges that the sequelae of his injuries continue.

The action was commenced on October 12, 2012; the defendants were served on September 17 and 18, 2013. In the meantime, both defendants pleaded guilty to criminal charges of aggravated assault and were convicted in the Provincial Court on March 11 and 14, 2013. [ 5 ] In August 2014, both defendants filed statements of defence which denied liability. The plaintiffs took the position that liability should not be an issue because of the criminal convictions. Thus, they filed a

summary judgment application on November 13, 2014 seeking that the statements of defence be struck. [ 6 ] That application was adjourned twice, at the defendants’ request. It was heard on November 5, 2015 by Mason A.J., resulting in

summary judgment against the defendants for two distinct batteries: one, a beating by both defendants and two, a stabbing by Mr. Babic alone. The order set out the issues remaining for determination, gave leave for the defendants to file their proposed amended statements of defence (admitting some facts related to liability) and directed Mr. Vasiljevic to “prepare and serve a Supplemental Affidavit of Records on or before December 31, 2015, or upon such other date as may be agreed to amongst counsel in the within matter.” [ 7 ] The parties could not agree on the form of order.

They blame each other for the impasse. It required corresponding with Mason A.J., who signed it on June 27, 2016; it was filed the next day. [ 8 ] Once the issues were narrowed and identified, very little happened. The plaintiff had filed his affidavit of records on March 31, 2015, but the defendants criticized it as seriously deficient. Leading up to the

summary judgment hearing, the defendants applied for a supplementary affidavit of records which, as I noted, was ordered on November 5, 2015 (though the order was not filed until over six months later). The plaintiff provided two unfiled supplementary affidavits on April 8 and May 2, 2016. Ultimately, a further supplementary affidavit was sworn, filed and served on February 13, 2017. [ 9 ] As noted, Mason A.J.’s November 5, 2015 order gave the defendants leave to file their proposed amended statements of defence. They had not done so by fall 2018.

On September 27, 2018, the plaintiff requested their filed amended statements of defence. They were not produced until after the plaintiff filed an application on October 7, 2018; thereafter, the defendants filed and served their amended pleadings on October 11 and 22, 2018. [ 10 ] Only at this stage, as far as the record shows, did the parties address their minds to questioning. (The only questioning that had occurred previously was on affidavits filed for the

summary judgment application.) [ 11 ] The sequence of correspondence on questioning began on October 29, 2018 with the defendants inquiring of the plaintiff’s availability for questioning, asking for available dates in February and March 2019. On November 5, 2018, plaintiff’s counsel advised that he was seeking instructions from his client. On December 18, 2018, he advised that the plaintiff was available for the month of February and asked for defence counsel’s availability.

There was no reply. [ 12 ] On March 12, June 6 and July 8, 2019, plaintiff’s counsel continued to propose dates and inquire of availability and whether questioning was still required. There were no replies. [ 13 ] The plaintiff filed an application for directions on October 7, 2019, seeking an order requiring the defendants to proceed with questioning in October 2019 and complete it by November 15, 2019. There was a telephone conversation between plaintiff’s counsel and Mr. Babic’s counsel on October 11, 2019, in which the latter proposed an adjournment of the application, promising to offer questioning dates.

He denied this conversation when the application was heard. [ 14 ] Prowse A.J. granted an order for questioning with a November 30, 2019 deadline, but during the hearing was advised that an application for dismissal based on delay was contemplated. As expected, the defendants filed their applications later in October 2019.

Prowse A.J. then gave an order adjourning the questioning pending the outcome of the defendants’ applications and directing that the time between filing of the dismissal applications “through the determination of the said Applications, shall not be used by either Defendant in support of an application for dismissal for want of prosecution.” [ 15 ] The delay applications were heard and dismissed by Farrington A.J. on September 2, 2020.

The period between filing the applications and their hearing was used in part by filing affidavits, cross-examining on them and then submitting briefs. [ 16 ] Once again, the parties could not agree on the terms of the order. Farrington A.J. settled the terms on January 25, 2022. [ 17 ] The defendants filed second dismissal applications on January 12, 2022 (Kotur) and March 18, 2022 (Babic). They rely on delay prior to the September 2, 2020 hearing and the fact that no new steps have been taken in the action from September 2, 2020 to the filing of the new applications.

III. Standard of Review [ 18 ] The parties agree that the standard of review on an appeal from an applications judge, on all issues, is correctness: Bahcheli v Yorkton Securities Inc , 2012 ABCA 166 at para 30 . IV. Principles of Law A. Dismissal for Inordinate Delay (Rule 4.31) [ 19 ] Rule 4.31 provides that if delay occurs in an action, the court may dismiss all or any part of a claim if the delay resulted in significant prejudice to a party.

Where there has been inordinate and inexcusable delay, it is presumed to have resulted in significant prejudice. [ 20 ] Delay is assessed by looking at whether a plaintiff failed to advance an action to a point where a reasonable litigant would have, having regard to the nature of the action and the period under review: 330626 Alberta Ltd v Ho & Laviolette Engineering Ltd , 2018 ABQB 398 at paras 77 and 79 ; Recycling Worx Solutions Inc v Hunter , 2023 ABKB 51 at paras 55-56 and cases cited.

The period to consider for purposes of delay begins with commencement of the action, not the cause of action, as is evident from the wording of the rule and the authorities: Edmonton (City) v Alberco Construction Ltd , 2021 ABQB 1006 at paras 166-74 . [ 21 ] The more difficult part of the analysis usually is whether the delay has been inordinate and inexcusable.

Again, there is no fixed test, because every action is slightly different: Royal Bank of Canada v Levy , 2020 ABCA 338 at para 14 . “Delay is inordinate where it is in excess of what is reasonable or justifiable” considering the issues and circumstances of the case, and “it is a relative concept that is to be assessed by comparing the actual timeline in question to that of a reasonably based lawsuit of similar complexity”: Laviolette Engineering at para 79. [ 22 ] Next, there is the question of whether an inordinate delay is excusable. A helpful

summary of the principles is found in Recycling Worx at paras 82-89 with reference to many authorities.

These include matters beyond a plaintiff’s control; conduct of defendants (who are not responsible for advancing the action, but still have obligations under a number of rules which create joint responsibility); and sometimes, defendants who participate in a culture of complacency. [ 23 ] Finally, where there has been delay found to be excusable, the presumption of significant prejudice cannot be relied upon but the defendants may still be entitled to dismissal if they show actual significant prejudice: Recycling Worx at para 99.

As summarized in that case (with reference to other authorities), significant prejudice is more than minor or trivial; it can include professional, business or reputational damage or potentially the stress and inconvenience of litigation and delayed resolution; and, in cases where it can be shown to be actual and important, memory loss of witnesses.

To determine whether there has been significant prejudice it might be asked “whether the delay has impaired a sufficiently important interest of the defendant so as to justify overriding the plaintiff’s interest in having its action adjudged by the Court”: Recycling Worx at para 104. B.

Dismissal for Long Delay (Rule 4.33) [ 24 ] Rule 4.33(1) provides that “if three or more years has passed without a significant advance in an action, the Court, on application, must dismiss the action.” There are exceptions in rule 4.33(2), primarily where “the action has been stayed or adjourned by order” or proceedings have been taken since the delay in which the defendant has participated. [ 25 ] What constitutes a significant advance in an action has been the subject of many decisions.

Some general principles relevant to this case are that rule 4.33 must be applied within the context of foundational rule 1.2; plaintiffs are responsible for prosecuting claims in a timely way; defendants must not obstruct, stall or delay; a functional rather than formalistic approach should be used to determine if a step constitutes a significant advance; and 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”: Patil v Cenovus Energy Inc , 2020 ABCA 385 at para 7 . V.

Findings: The Plaintiff Vasiljevic A. Dismissal for Inordinate Delay (Rule 4.31) 1. Introduction [ 26 ] In my view, the defendants have established that there has been inordinate delay. The time from commencement of the action (October 12, 2012) to filing the dismissal applications (October 22 and 24, 2019) was seven years. During that time, there was no general questioning, no expert reports and no efforts to enter the action for trial. This is not a complex lawsuit.

The timeline is far longer than one for a reasonably similar lawsuit. [ 27 ] Both defendants provided affidavit evidence of litigation and non-litigation prejudice they contend they have suffered as a result of this delay. Additionally, as I have found the delay in this case to be inordinate, there is a presumption of significant prejudice. [ 28 ] That leaves for consideration whether it is excusable, involving analysis of several matters:

a) The time taken with respect to the

summary judgment application;

b) The time taken for production of records;

c) Efforts to obtain the amended statements of defence; and

d) Efforts to arrange general questioning. These will be addressed separately, but of course ultimately cannot be looked at in isolation. 2.

Summary Judgment [ 29 ] When the pleadings finally closed in August 2014, both defendants denied liability although, by that time, criminal convictions had been entered for conduct that was alleged to be tortious. The defendants’ briefs for the

summary judgment application argue various points, including whether the convictions were conclusive for civil purposes and the distinctions between how each of the two defendants acted. Each defendant proposed draft amended statements of defence before the hearing which admitted their role in battery with qualifications. [ 30 ] Those proposed amended statements of defence were provided well after the application was commenced. It seems that the outcome of the hearing was largely consistent with the proposed amended pleadings: confirming the two batteries and leaving damages quantification and allocation of liability for trial. [ 31 ] In my view, the

summary judgment application was a reasonable, substantive step in the action that resulted in narrowing the issues. I recognize that the defendants proposed settlement of the application but that occurred only with the spur of the pending application. [ 32 ] The

summary judgment application was filed on November 13, 2014, not long after the defendants filed their statements of defence denying liability. After two defence adjournment requests, it was heard and decided on November 5, 2015 but disputes over costs and the form of order delayed its entry to the end of June 2016. 3. Production of Documents [ 33 ] The plaintiff took an extremely dilatory approach to document production. His first sworn, filed and served affidavit of records was March 31, 2015 with a note from plaintiff’s counsel that additional documents would be forthcoming. It was a perfunctory affidavit of records, as it contained only an ICU transfer

summary (5 pages) and a non-particularized collection of various medical records, comprising about 350 pages. [ 34 ] Not surprisingly, the defendants criticized the production as inadequate, asking for more records. Forthcoming were two additional unfiled supplementary affidavits of records – April 8 and May 2, 2016 – each of which added something new. On February 13, 2017, a sworn and filed supplementary affidavit of records was provided. [ 35 ] The plaintiff’s brief sets out in detail the documents included in each affidavit of records.

They seem relevant and material to injuries, pre-morbid condition, treatment, expenses and financial circumstances. It took too long – March 2015 to February 2017 – but there is no indication this stalled the action. Defendants often conduct questioning of personal injury plaintiffs before production is completed. 4. Efforts to Obtain Statements of Defence [ 36 ] Even though the statements of defence were finalized by November 5, 2015 (the date of the hearing before Mason A.J.), it took the defendants until October 2018 to file them – after requests by the plaintiff, which were ignored, and then an application.

The defendants say these were merely formalities but they were a required step. [ 37 ] The defendants’ lackadaisical approach is indicative of their approach to the entire action. 5. Efforts to Arrange Questioning [ 38 ] Most telling, however, is the episode about attempts to arrange questioning. As I stated, from November 2018 to July 8, 2019, the plaintiff made numerous requests of the defendants to

schedule questioning of the plaintiff, giving ample periods of availability. None were answered. Thus, the plaintiff brought an application to compel questioning on October 7, 2019, which succeeded but ultimately was stayed pending determination of the delay applications. 6. Conclusions on Excusable Inordinate Delay [ 39 ] In my view, the delay in advancing this action has been excusable.

It is hardly a model for prosecuting a civil action, but the circumstances do not justify striking it out. [ 40 ] Broadly, the timeline becomes important when the defendants filed their statements of defence denying liability in August 2014. At that stage, the plaintiff had the option to go forward with all issues in play or seek partial

summary judgment. It was not unreasonable for him to choose the latter, although the length of that process may have caused him to repent of the decision. The plaintiff did not get everything he wanted in the application but did get a ruling on battery and a setting out of the remaining issues – which, unfortunately, was not finalized until the end of June 2016.

[ 41 ] While the defendants say their proposed amended statements of defence made the

summary judgment application of little importance, the record is clear that if the application had not been filed and prosecuted the issues would not have been narrowed. [ 42 ] A vigorous plaintiff may have attempted to go to questioning while this was under way, but it was not unreasonable to wait for final determination of the issues. As to whether the plaintiff is responsible for not settling the application, that is a matter of the reasonableness of the position taken by the parties before the hearing which is of limited relevance for present purposes.

It was a matter for costs, which was addressed by Mason A.J. requiring each party to bear their own costs. [ 43 ] However, the plaintiff did proceed with document production during the

summary judgment process. The plaintiff’s affidavit of records was due three months after receipt of the statements of defence – thus its filing on March 31, 2015 was late by about four months. Each of his subsequent productions added new records and therefore cannot be entirely disregarded. Whether they significantly advance the action will be considered later. [ 44 ] As far as the record shows, the defendants were almost entirely silent through this period, except when contesting applications and their consequences. They declined to respond to requests to file their amended statements of defence.

Most notably, they ignored requests for questioning from November 5, 2018 until the fall of 2019, contrary to their obligations of professional courtesy and their responsibility to cooperate under rule 1.2. [ 45 ] In

summary, looking at the timeline from when the first statements of defence were filed, most of the following two years involved various stages of the

summary judgment application. Activity following that period was desultory in nature but did involve additional production of documents. It became apparent by the fall of 2018 that the defendants would not cooperate with any further steps. Thus, the periods consumed by the

summary judgment application and its aftermath and the need to obtain amended statements of defence and then

schedule questioning, all without cooperation of the defendants, are an adequate excuse for a significant portion of the delay complained of. 7. Actual Prejudice [ 46 ] Since I find that the delay, though inordinate, was excusable, the defendants cannot rely on the presumption of significant prejudice. Nevertheless, as noted above, they still may be entitled to dismissal if they can show actual significant prejudice, whether litigation prejudice, non-litigation prejudice or both. [ 47 ] Each defendant filed affidavits in 2020 setting out the prejudice they assert they have suffered.

Each defendant attests to frustration with what he contends is the plaintiff’s failure to pursue this action in a timely and cost-effective way. Each asserts that, despite having pleaded guilty to the assault and served time in prison, he is unable to “move forward with [his] life.” Each alleges that aspects of his family life such as purchasing a home, getting married and having children is essentially on hold because of the uncertainty associated with the pending lawsuit.

Questioning on these affidavits, while brief, tends to suggest that the defendants are in long term relationships, have families and have not sought any medical attention for stress. Each defendant also swears that his memory of the incident is not what it was and that he has lost touch with individuals who could be witnesses at the trial of this action. [ 48 ] I am not persuaded by the evidence that the defendants have suffered the type of significant prejudice that would justify dismissing the action.

The comments of Schlosser A.J. in Fode v Paragon Gaming EC Company , 2020 ABQB 266 , at paras 27 and 28 , seem apt for this case as well: This is not a case of having untoward, unproven allegations hanging over your head and a delay in being able to clear your name. The Applicant admitted liability six years ago. What difference have these many days made? All they really amount to is a postponement of the Applicant’s obligation to pay damages.

Any prejudice there might have been can fully be addressed with a determination of costs and interest. [ 49 ] In this case as well the defendants’ liability was established sometime ago. I find that the prejudice attested to by the defendants is not sufficient to justify overriding the plaintiff’s interest in having his claim adjudged in court. B.

Dismissal for Long Delay (Rule 4.33) [ 50 ] When considering whether three or more years passed without a significant advance in the action, first it is required to determine what period is being examined. [ 51 ] The defendants argue the relevant period commenced on December 31, 2015, the date by which Mason A.J. had ordered a supplementary affidavit to be provided.

They argue that “the last step which significantly advanced the action should be deemed to have occurred on December 31, 2015” (Kotur brief, para 205), even though the affidavit was not provided then. [ 52 ] Under the functional approach, that cannot be the basis for measuring the period for a significant advance. A deadline is not something that significantly advances an action. [ 53 ] Thus, the issue is whether anything was done thereafter that significantly advanced the action.

The plaintiff argues that significant advances were made by (1) settling the terms of Mason A.J.’s order, (2) providing supplementary affidavits of records, and (3) filing the amended statements of defence. [ 54 ] Under a functional approach, neither the first nor third constitutes a significant advance. The order was pronounced on November 5, 2015 and nothing happened thereafter to change its effect, however lengthy and contentious the process to settle its terms.

The amended statements of defence were in a form approved by the same order so the fact that the plaintiff unreasonably was put to the trouble of forcing them to be filed did nothing to further narrow or clarify the issues in the action.

[ 55 ] More detailed consideration is required on whether additional record production significantly advanced the action within the meaning of rule 4.33.

As held in Ursa Ventures Ltd v Edmonton (City) , 2016 ABCA 135 at para 21 , “the affidavit of records is an example where a functional approach may or may not lead to the conclusion that a particular affidavit of records significantly advanced an action”; see also para 20 and Top Grade Solutions Inc v Flying Pizza 73 Inc , 2009 ABQB 492 at para 20 . [ 56 ] In Ursa , the defendant City argued that the plaintiff’s production could not constitute a significant advance because all the records listed were already in the City’s possession, it having created or sent them.

The court deferred to the chambers judge’s finding that the production was a significant advance, noting that it could be important to know what documents the plaintiff had and the mere filing of an affidavit of records has consequences under the Alberta Rules of Court . [ 57 ] A different conclusion by a chambers judge was upheld in Huerto v Canniff , 2015 ABCA 316 , where it was found that a supplementary affidavit of records was filed for an improper purpose, namely to block an application to dismiss for delay, and the documents listed were not relevant and material.

All of the information was known to the parties and the documents had been sent to the plaintiff by the defendant. [ 58 ] The plaintiff and the defendant Kotur provided helpful schedules particularizing the records disclosed in each of the affidavits. In some respects the schedules seem to differ as to whether records listed had been produced before; after reviewing the materials, counsel for Kotur confirmed the plaintiff’s

schedule in paragraph 121 of its brief is correct on this detail. [ 59 ] From the schedules in the briefs and the records (reproduced in the application materials) several conclusions can be drawn. The first is that each supplementary affidavit of record contains documents not previously produced. [ 60 ] A second conclusion is that many documents bear dates that allow an inference they could have produced earlier. However, little evidence speaks to whether that was due to lack of diligence.

Some documents were reasonably contemporary with their production, such as income tax returns for the six years 2010 through 2015. [ 61 ] The final conclusion is that each supplementary affidavit contains records that would meet the legal test for relevance and materiality and often were types of documents the defendants had requested. [ 62 ] More detail is needed to elaborate on these conclusions. The April 8, 2016 supplementary affidavit of records included, among other things, correspondence from Airdrie Urgent Care and high school transcripts. The May 2, 2016 affidavit included an entire medical file from Dr.

Musa, enclosing medical chart entries and documents from 2011 to April 7, 2016 – a file the plaintiff had requested on February 9, 2016. The final production, February 13, 2017 (this one sworn and filed) contained income tax returns for 2010 through 2015; receipts for expenses, primarily from a medical supply centre; large amounts of miscellaneous correspondence comprising medical referrals, appointment confirmations and communications with the Alberta Criminal Injuries Board (from which the plaintiff received financial compensation). [ 63 ] The defendants focus their attack on the last affidavit.

Their arguments are that some documents, by their dates, must have been available earlier. That is not an answer, however, to whether, when ultimately produced, they were relevant and material to the issues. Further, on their face some documents were of recent origin, such as medical correspondence during 2016 and receipts for purchases of medical supplies in 2016.

The income tax return for 2015 would not have been available until sometime in 2016 (and there is no evidence whether income tax returns were filed by their required dates). [ 64 ] The defendants also argue that many of the documents are not relevant and material – using as one example pre-driving assessments. To take this example, the assessments contain analysis of the plaintiff’s physical and medical condition; few defence lawyers would not want these records.

The income tax returns and special damages documents also meet the test. [ 65 ] Finally, the defendants argue the plaintiff cannot rely on the supplementary affidavit of records because it was filed after the deadline imposed by Mason A.J. That is answered first by noting that some documents could not have been produced by December 31, 2015, because they did not exist. A second answer is that the fact that a step may have been taken after a court-ordered deadline does not make it irrelevant for all purposes.

Failure to meet deadlines is serious and can lead to enforcement measures and costs and penalties – none of which were pursued here. [ 66 ] In any event, the defendants are in a poor position to argue about non-compliance with Mason A.J.’s order. On November 5, 2015, they were granted leave to file their proposed amended statements of defence, as they had requested in cross-applications.

It took them until October 2018 to do so, and then only after an application was filed. (The distinction they make between a deadline to file and leave to file is valid, but a fine one in the circumstances of a case where the issue is delay.) [ 67 ] In my view, the production of additional affidavits of records, each with some new, relevant and material records demanded by the defendants, constituted an advance. I do not condone a piecemeal approach in general but it often occurs as a means of providing information when it becomes available.

Certainly, the February 2017 affidavit of records is a significant advance – including the prior records, adding new ones and being in a form with evidentiary significance. In contrast to some cases, its timing does not admit of a suggestion that it was filed at the last moment to save an action about to be dismissed. [ 68 ] That being the case, there has been no period of three years without a significant advance. Again, this lawsuit is a poor example of how an action should be conducted and there is some blame to pass around.

But it does not meet the test for dismissal for long delay. [ 69 ] In the alternative, the plaintiff relies upon an exception to the mandatory dismissal of an action if three or more years have passed without a significant advance.

Rule 4.33(2) excepts the case where “proceedings have been taken since the delay and the applicant has participated in them for a purpose and to the extent that, in the opinion of the Court, warrants the action continuing.” He says the defendants’ participation “included filing the Amended Statements of Defence and requesting dates for questioning on October 29, 2018” (brief, para 134).

[70] In my view, these steps do not constitute participating as contemplated by rule 4.33(2). The amended pleadings were filedonly on compulsion by the plaintiff and could not have signalled a willingness to continue to participate in the action. A letter ortelephone call about arranging dates for questioning, without ever settling upon agreed dates, also does not qualify. C.

Second Dismissal Applications [71] Both defendants filed new applications for dismissal to be heard with their appeals of Farrington A.J.’s refusal to grant theirfirst applications. [72] Their calculation of the relevant period on which to calculate delay changed at least twice. At the hearing, it was stated to befrom March 2, 2018 (a date not obviously tied to any particular event) to January 12, 2022, when the defendant Kotur filed a newdismissal application (the defendant Babic filed his on March 18, 2022).

From this period, they exclude 316 days between filing the firstdismissal applications (late October 2019) and Farrington A.J.’s decision (September 2, 2020). [73] These second applications have no merit. First, they ignore the status of the action as of the end of October 2019under theorder of Prowse A.J.

After initially directing questioning by a certain date, he ordered as follows: The time between the filing of the Defendants’ Applications pursuant to Rule 4.31 and 4.33, through the determination of the saidApplications, shall not be used by either Defendant in support of an application for dismissal for warrant of prosecution. After Farrington A.J.’s dismissal of the applications on September 2, 2020, as seems typical in this case, the parties wrangled over theform of order and costs so that it was not finalized until January 25, 2022.

The defendants filed their appeals on January 12, 2022 (Kotur)and March 16, 2022 (Babic). [74] I infer from the history of this action and contentious correspondence between the parties since September 2, 2020 that therewas always a high likelihood the defendants would appeal Farrington A.J.’s order. That meant that the questioning ordered by ProwseA.J. on October 30, 2019 remained adjourned as the outcome of the applications had not been determined. (To support the

interpretationof the order, drafted by the defendants, that a type of stay remained in effect the plaintiff notes the difference between “Applications”and “an application” in the paragraph quoted above. That assists his position, but is not necessary.) [75] There are other reasons why steps could not be taken, as indicated in my decision in Ma v Kwan, 2019 ABQB 89 at paras 17-24. The filing of an application for dismissal for long delay crystallizes the rights of the parties as of the date of filing.

In the usualcourse, there should be no further steps in the action until the dismissal application has been decided. The reasons for this are concernabout a defendant acquiescing in the delay and not unreasonably requiring parties to use their resources by filing repeat applications orengaging in steps that may be wasted. [76] These are satisfactory excuses for no steps being taken (rule 4.31) and one of the exceptions under rule 4.33(2) – the actionwas adjourned or stayed as far as questioning went.

Further, it is telling of the defendants’ overall approach to this action that whenasked for questioning in February 2022, they quickly advised “participating in steps to advance the action in light of this [FarringtonA.J.’s dismissal, the prospects of a successful appeal, and the recently filed second applications] would constitute participating in theaction since the delay as contemplated in the relevant Rules, would prejudice my client’s position on the appeal and Application, andwould be contrary to our obligations under the Foundational Rules.” [77] Both second applications, by both defendants, are dismissed.

VI. Findings: The Crown’s Claim [78] As noted earlier, there are two plaintiffs in this case: Mr. Vasiljevic and the provincial Crown. [79] Rule 4.31 contemplates dismissal of all or any part of a claim and, while rule 4.33 does not say that expressly, it may beimplied where there are two plaintiffs with separate claims. [80] The Crown has taken no steps in this action, other than (I infer) participating in the application for

summary judgment. Thatcame to an end when the order was settled in June 2016. None of the affidavits of records disclose any of its documents. All of this wasconceded by plaintiff’s counsel at the hearing. [81] The plaintiff’s only response to the defendants’ application, as it concerns the Crown, is that the Crown has immunity fromthe limitations effect of the delay rules.

That position is supported by Alberta Mortgage & Housing Corp v Klapstein (1998), 1998ABCA 194 , 62 Alta LR (3d) 1 (CA), affirming Quinn M.’s statement that “in my opinion rule 244(1) [the effective equivalentof the current delay rules] does not bind the Crown”: Alberta Mortgage and Housing Corporation v Tarpon Holdings Ltd (1977), (AB KB), 198 AR 230 (QBM) at para 22. In addition, I note this authority was cited with approval in Saskatchewan CropInsurance Corp v McVeigh, 2018 SKCA 76, paras 147-48. [82] The defendants made no submissions on this point.

Accordingly, in light of the binding authorities cited to me, there is nobasis on which I could dismiss for delay the Crown’s subrogated claim. VII.

Summary of Conclusions [83] For the foregoing reasons, I dismiss the defendants’ appeals from the learned applications judge’s dismissal of theirapplications to dismiss the plaintiffs’ action holding that the learned applications judge was correct in his findings. I also dismiss the

defendants’ applications made before me for dismissal of the actions on grounds other than those argued before the learned applications judge. [ 84 ] If they cannot agree, the parties may

schedule an appearance before me to address costs. Heard on the 30 th day of March, 2023 Dated at the City of Calgary, Alberta this 12 th day of May, 2023. G.H. Poelman J.C.K.B.A. Appearances: Guy Lacourcière, Mehtab Hundal and Omar Tabsh for the Plaintiffs/Respondents Ian A. Miller for the Defendant/Applicant Kotur Timothy Wood for the Defendant/Applicant Babic _______________________________________________________ Corrigendum of the Reasons for Decision: Appeal and New Applications by Defendants for Dismissal Based on Delay of The Honourable Justice G.H.

Poelman _______________________________________________________ “Appearances” has been corrected from Joseph V. Miller, K.C. for the Defendant/Applicant Kotur to Ian A. Miller, for the Defendant/Applicant Kotur.