Babiuk v Heap, 2023 ABKB 410

Court of King’s Bench of Alberta Citation: Babiuk v Heap, 2023 ABKB 410 Date: 20230706 Docket: 0503 16843 Registry: Edmonton Between: Elizabeth Babiuk Plaintiff - and - Dennis Keith Heap and Candace Lynn Goeckel Defendants _______________________________________________________ Decision of the Honourable Justice S.N. Mandziuk _______________________________________________________ I. Introduction [ 1 ] The Plaintiff was a passenger in a vehicle that was rear-ended on October 7, 2003.

She was injured. [ 2 ] The Plaintiff’s former counsel filed a Statement of Claim on October 4, 2005, on the eve of expiry of the limitation period. [ 3 ] The Defendants were uninsured. Thus, the Administrator of the Motor Vehicle Accident Claims Act , RSA 2000, c M-22 (the

" Administrator ") represents the Defendants. [ 4 ] In the last 17 ½ years, there have been very few meaningful steps taken in this action. Those steps taken have primarily been driven by the Administrator . [ 5 ] The Administrator applies for an order dismissing the Plaintiff's claim under Rules 4.31 or 4.33 of the Alberta Rules of Court , Alta Reg 124/2010 . II. Facts [ 6 ] The collision that underlies this action occurred near Gibbons, Alberta.

At the time, the Plaintiff was 56 years old and was seated in the front passenger seat of her husband's vehicle when it was struck from behind by a vehicle driven by the Defendant Goeckel. The vehicle’s registered owner was the Defendant Heap.

The October 4, 2005 Statement of Claim names the two Defendants as driver and owner. [ 7 ] Service on the Defendants appears to have been effected in March 2006. [ 8 ] In 2008, the Plaintiff’s former counsel made a settlement proposal to the Administrator . [ 9 ] Shortly thereafter, the Administrator ’s lawyer contacted the Plaintiff’s former counsel asking whether the registered owner of the Defendant Heap’s vehicle was also the beneficial owner. [ 10 ] On May 6, 2008, the Administrator ’s lawyer advised the Plaintiff’s former counsel that another individual – Mark or Mike Zahacy - might be the beneficial owner of the vehicle and suggested that Plaintiff’s counsel amend the Statement of Claim to include this individual, pursuant to s 5(3)(

c) of the Motor Vehicle Accident Claims Act . [1] [ 11 ] The Plaintiff took no steps to amend the Statement of Claim. [ 12 ] The Administrator filed Statements of Defence on July 23, 2008, with respect to the Defendant Goeckel, and on December 12, 2008, with respect to the Defendant Heap. [ 13 ] The Plaintiff swore her Affidavit of Records on January 10, 2009. On January 13, 2009, the Plaintiff was questioned, and she gave some undertakings. [ 14 ] The first undertaking answer was not provided until October 2013.

To date, undertakings have still not been completely answered, with some answers being to the effect that inquiries have been made but giving no substantive answer. [ 15 ] Nothing happened in the action during the 2010-2012 calendar years. [ 16 ] On November 22, 2013, the Administrator ’s lawyer sent the Plaintiff’s former counsel a Litigation Plan. There was follow up communication on December 18, 2013, and then a Consent Procedural Order was sent to Plaintiff’s former counsel on January 7, 2014.

Plaintiff’s former counsel did not reply. [ 17 ] Finally, on February 25, 2014, the Administrator applied for a Procedural Order, which was ordered on March 19, 2014, by Applications Judge Wacowich. [ 18 ] The Plaintiff provided some answers to undertakings on April 16, 2014.

However, the Plaintiff did not comply with the Procedural Order deadlines and did not answer all of the undertakings and therefore a contempt application was brought by the Defendants, scheduled for August 28, 2014. [ 19 ] In response to the contempt application, the Plaintiff provided further answers to undertakings and the contempt application was adjourned. [ 20 ] The Administrator brought an application pursuant to r 5.13, seeking information related to the Plaintiff from third parties, which was heard on October 15, 2014. [ 21 ] On September 3, 2015, the Plaintiff questioned the Defendant Goeckel, and at that time Goeckel admitted that she thought the vehicle was owned by Zahacy. [ 22 ] On January 23, 2017, the Plaintiff finally applied to an Applications Judge to have Zahacy added as a Defendant.

An Order allowing the addition of Zahacy was granted on February 8, 2017. This application to add Zahacy was made sixteen months after the Defendant Goeckel was questioned and more than nine years after the Plaintiff’s former counsel was advised that Zahacy was a possible owner. [ 23 ] Zahacy filed a Statement of Defence.

On March 24, 2017, Zahacy filed an application to have the action against him dismissed on the basis that the limitation period had expired. [ 24 ] During examination on affidavit (on April 10, 2017) associated with Zahacy’s application, Zahacy admitted that he had been the real owner of the vehicle driven by the Defendants. [ 25 ] On July 31, 2017, Applications Judge Smart granted Zahacy’s application for

summary dismissal. [ 26 ] The Plaintiff filed a Notice of Appeal from the Order for

summary dismissal on September 13, 2017. On December 11, 2017,

this Court dismissed an application to Restore the Plaintiff’s Appeal. This Court granted an Order for costs following Zahacy’s application; that Order was filed January 31, 2018. [ 27 ] The Law Society of Alberta took custody of the Plaintiff’s former counsel’s file between July 2018 and October 2019 as he had been suspended from the practice of law.

The Plaintiff claims that she learned that her former counsel was suspended on October 25, 2019, and was told to pick up her file. [ 28 ] The Plaintiff then retained her present counsel. [ 29 ] Nothing seems to have happened immediately, but starting on July 16, 2020, the Plaintiff claims that there were settlement discussions including a suggestion by the Administrator , on December 10, 2020, that mediation or a JDR be pursued.

The Plaintiff apparently agreed to this. [ 30 ] However, nothing actually happened. [ 31 ] Subsequently, the Plaintiff asked for a Litigation Plan, and this was declined by the Administrator . [ 32 ] The present application was filed on April 21, 2021, and served on the Plaintiff’s counsel on May 10, 2021. On June 3, 2021, the Plaintiff filed a cross-application to have the Administrator ’s application dismissed and asked for a Procedural Order.

On June 16, 2021, Applications Judge Schlosser directed this matter to the present Special Chambers Hearing. [ 33 ] The last actual activity in this action prior to the filing of this application to dismiss and the cross-application for a Procedural order, was the granting of an Order of Costs, which was filed on January 31, 2018, nearly five years before this application was heard by me in Special Chambers. III.

Steps Still Required Before Trial [ 34 ] It appears that a number of steps remain to be taken before this matter can proceed to trial. [ 35 ] First, I assume that there will be further Questioning required given the many years that have elapsed since Questioning last occurred. Further, the Defendant Heap has never been questioned. [ 36 ] Second, the expert reports, such as they are, are 15 to 17 years old, including a “work ability” and orthopedic report prepared around 2006-2007.

Plaintiff’s counsel indicated in court that she had not received some rebuttal reports, which apparently were prepared in that same time frame and likely provided to Plaintiff’s former counsel. [ 37 ] Third, the parties have not participated in an alternative dispute resolution process. That would have to be scheduled, subject to any court-ordered waiver. [ 38 ] Finally, it is unclear whether or not the Plaintiff’s undertakings have been answered in full. It is obvious that Questioning on undertakings is, at present, a distant bell. IV. Analysis A.

Foundational Rules and Judicial Commentary [ 39 ] The lens through which the Rules – including Rules 4.31 and 4.33 - are to be read and applied is found in Rule 1.2. Efficiency is at the Rules’ core: 1.2

(1) The purpose of these rules 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 rules 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, (

c) to encourage the parties to resolve the claim themselves, by agreement, with or without assistance, as early in the process as practicable, (

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

(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, (

b) periodically evaluate dispute resolution process alternatives to a full trial, with or without assistance from the Court, (

c) refrain from filing applications or taking proceedings that do not further the purpose and intention of these rules . . .

[ 40 ] Litigants are mandated to litigate cost-effectively, in a timely fashion, with a focus on the issues and on well-timed resolution, in a transparent fashion. [ 41 ] In Weaver v Cherniawsky , 2016 ABCA 152 , the Court noted (at para 17) that: Application of the new Rules requires a functional approach. Their purpose and intent, as emphasized in the foundational rule 1.2, is to provide fair and just resolution of claims in a timely and cost effective manner. The foundational rules parallel a cultural shift in litigation that deemphasises trial as the dominant mechanism for resolving civil disputes in favor of

summary procedures and ADR: Hryniak v Mauldin , 2014 SCC 7 , [2014] 1 SCR 87 and Windsor v Canadian Pacific Railway, 2014 ABCA 108 , 572 AR 317 at para 15 ; Heurto v Canniff, 2014 ABQB 534 at paras 13-15 , aff’d 2015 ABCA 316 . [ 42 ] In Condominium Corporation 052 0580 (o/a The Tradition at Southbrook) v Carrington Holdings Ltd , 2022 ABKB 623 at paras 97-99 I stated: Litigation delay is a “longstanding and corrosive problem”: Humphreys v Trebilcock, 2017 ABCA 116 at para 90 , In Humphreys , the Alberta Court of Appeal made pointed comments about litigation delay (at para 90): Litigation delay harms those who are directly and indirectly involved in an action tainted by inaction, the civil justice system as a whole and the greater community.

Litigation is a form of stress that has the potential to make those directly and indirectly affected unhappy – litigation is expensive, introduces uncertainty and may undermine a person’s ability to earn a livelihood and to plan ahead – and may diminish the productivity of the persons affected by the unresolved dispute. People understandably expect that the mechanisms our state has constructed for the resolution of disputes will process them at a reasonable rate and not allow stale actions to survive.

When these legitimate expectations are not met, individuals most closely linked to actions and the greater community may lose confidence and respect for the manner in which justice is administered. Litigation delay is a corrosive force in a free and democratic state committed to the rule of law.

The Court goes on to say, at para 96, that claimants who do not proceed with proper expedition may face “harsh consequences” including losing “their right to prosecute their actions.” Indeed, Rules 4.31 and 4.33 both allow for some “harsh consequences”. [ 43 ] Additionally, litigation affects private interests but also draws the public interest (and the public purse) into its circle: “[o] nce formal litigation commences, the interests of the parties remain importantly affected, but the broader public interest is engaged and there is a significant ripple effect that must be considered as the public becomes, in a sense, another affected party” ( Condominium Corporation 052 0580 at para 181).

B. Rule 4.33 Application [ 44 ] Rule 4.33 mandates dismissal “[i]f 3 or more years have passed without a significant advance in an action” (R 4.33(2)) subject to exceptions (such as a standstill agreement) which are not present in the evidence in this case.

It is a “drop dead” rule. [ 45 ] Our Court of Appeal in Ro-Dar Contracting Ltd v Verbeek Sand & Gravel Inc , 2016 ABCA 123 stated (at para 11 ): “[w]hether an action has been ‘significantly advanced’ involves an assessment and measurement of the effect of what happened in the action during the period of alleged delay, measured in light of the facts and the objectives of the Rules of Court. ” [ 46 ] Referring to the functional approach specific to the delay rules, the court in Weaver stated (at para 18 ): Under the delay Rules the functional approach requires the chambers judge to determine whether the step said to be a “significant advance in an action” actually moves the lawsuit forward in a meaningful way considering its nature, value, importance and quality.

The genuineness and the timing of the step are also relevant.

The focus is on the substance of the step taken and its effect on the litigation, rather than on its form . . . [ 47 ] Finally, the legal framework with respect to Rule 4.33 was outlined in Patil v Cenovus Energy Inc , 2020 ABCA 385 at paras 7-8 : 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 . 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. [ 48 ] To determine whether three or more years have passed without a significant advance, I must look at the date of the last uncontroversial significant advance, and then count forward.

The count stops on the date the r 4.33 application was filed ( Rahmani v 959630 Alberta Ltd , 2021 ABCA 110 at paras 16-17 ). [ 49 ] On July 31, 2017, Zahacy successfully applied to have the action dismissed against him on the basis of it being statute barred. The application to Restore the Appeal of that Order was dismissed on December 11, 2017.

The parties have also each noted an Order regarding costs that was filed January 31, 2018. [ 50 ] After January 31, 2018, the following occurred: the Plaintiff retained new counsel, may have attempted to engage in settlement discussions, there was some discussion of alternative dispute resolution and the Plaintiff requested a litigation plan, which the Administrator declined to prepare.

No dates were suggested for a mediation and no names were put forward. [ 51 ] If I give the Plaintiff the most generous reading of the “last uncontroversial significant advance,” it is arguable that the Order regarding costs, filed January 31, 2018, was the last uncontroversial significant advance.

Between January 31, 2018 and the present application, which was filed April 21, 2021, a period of more than three years, nothing actually happened beyond some discussions. [ 52 ] As has been confirmed many times, discussions and negotiations, while they are to be encouraged, must be viewed as taking place within the broader context of the litigation.

They do not advance an action, nor do they function as a cessation of the requirement to take litigation steps that significantly advance the action. [ 53 ] It is fair to say that the Plaintiff did not know where her file was for 19 months and was eventually told to retrieve her file. Further, the Plaintiff’s current counsel communicated with the Administrator ’s counsel after being retained, attempting to negotiate, discussing possible resolution steps, and so forth. [ 54 ] However, these were not steps that advanced the action in an essential way. There was an offer to

schedule mediation or judicial dispute resolution, but no dates or mediator were suggested. None of the activity, such as it was, falls within the category of steps that significantly or materially advance an action: Huerto v Canniff , 2014 ABQB 534 at para 22 , aff’d 2015 ABCA 316 . [ 55 ] Settlement discussions that do not resolve the dispute but do narrow the issues were characterized as a step that materially advanced the action in Huerto (at para 22) but there is no evidence that any narrowing was accomplished here.

At most, the three year period saw unsuccessful discussions about settlement or mechanisms to achieve settlement, but no actual litigation steps were taken that moved the action forward in an essential way. [ 56 ] Justice Slatter (as he then was) addressed the settlement negotiation argument in 525812 Alberta Ltd v Purewal , 2004 ABQB 938 at paras 16-17 : It is difficult to envision how settlement discussions can materially advance an action. If the settlement discussions are successful, the action will be settled, and the matter is at an end.

If the settlement discussions are unsuccessful, they accomplish nothing, and do not materially advance the action. Since the policy of the Court favours settlement, it would be unfortunate if merely entering into settlement discussions with the other party would in effect extend the time under the drop dead rule. This would discourage, rather than encourage settlement discussions.

There is the possibility that the action might not be settled in whole, but that the settlement discussions might produce a narrowing of the issues, an agreement on certain facts, or an agreement on parts of the action (such as quantum or liability). In the latter case settlement negotiations might amount to things that materially advance the action, but there is nothing like that in this case. While most actions are resolved by settlement, and the Court encourages parties to settle their own differences, settlement discussions are not themselves an excuse for not advancing the action.

If settlement discussions are unsuccessful, that is no excuse for simply doing nothing. In this case there was a period of approximately 20 months between the last settlement discussions and the motion to strike, a delay that cannot be justified under any reasoning. [ 57 ] Put another way, if settlement discussions succeed, the action is resolved. If they are not successful, they do not accomplish anything, with the exception of perhaps narrowing issues relating to agreements on some facts or on procedure. In this case, any negotiations that took place went nowhere.

The issues were the same before and after the settlement discussions. Talking about mediation is not the same as arranging or scheduling it. [ 58 ] Difficulty retaining counsel is not an excusable delay and does not suspend the clock from running. While the file was in custodianship with the Law Society of Alberta, this is not the sort of administrative delay that is contemplated by the Rule. [ 59 ] There has been no significant event which has happened since January 2018 and so three or so more years have passed without a significant advance. I have no difficulty in dismissing this action under Rule 4.33.

C. Rule 4.31 Application [ 60 ] Rule 4.31 is a more holistic analysis, with the test centred on inordinate and inexcusable delay. This does not involve a “bright line” analysis like r 4.33; rather, the “action as a whole” must be considered: 4075447 Canada Inc v WM Fares & Associates Inc , 2020 ABCA 150 at para 14 . [ 61 ] The Rule states: 4.31

(1) If delay occurs in an action, on application the Court may (

a) dismiss all or any part of a claim if the Court determines that the delay has resulted in significant prejudice to a party, or (

b) make a procedural order or any other order provided for by these rules.

(2) Where, in determining an application under this rule, the Court finds that the delay in an action is inordinate and inexcusable, that delay is presumed to have resulted in significant prejudice to the party that brought the application.

(3) In determining whether to dismiss all or any part of a claim under this rule, or whether the delay is inordinate or inexcusable, the Court must consider whether the party that brought the application participated in or contributed to the delay. [ 62 ] The Court of Appeal of Alberta in Humphreys , at paras 151-156 , set out a rubric for determining a r 4.31 application (footnotes omitted): First, has the nonmoving party failed to advance the action to the point on the litigation spectrum that a litigant acting reasonably would have attained within the time frame under review?

Second, is the shortfall or differential of such a magnitude to qualify as inordinate? Third, if the delay is inordinate has the nonmoving party provided an explanation for the delay? If so, does it justify inordinate delay? Fourth, if the delay is inordinate and inexcusable, has this delay impaired a sufficiently important interest of the moving party so as to justify overriding the nonmoving party’s interest in having its action adjudged by the court? Has the moving party demonstrated significant prejudice?

Fifth, if the moving party relies on the presumption of significant prejudice created by r. 4.31(2), has the nonmoving party rebutted the presumption of significant prejudice? Sixth, if the moving party has met the criteria for granting relief under r. 4.31(1), is there a compelling reason not to dismiss the nonmoving party’s action? This question must be posed because of the verb “may” in r. 4.31(1). [ 63 ] Subsequent jurisprudence has emphasized the unique nature of each action and the importance of recognizing that determining a r 4.31 application is not a formulaic exercise.

For example in Transamerica Life Canada v Oakwood Associates Advisory Group Ltd, 2019 ABCA 276 the Court held at para 15: There are numerous decisions of this Court on the

interpretation and application of the delay rules. The core source of the legal principles, however, remains in the Rules of Court themselves. While general principles have been established governing delay, each action is slightly different. The application of the rules to the particular facts will always engage an element of judicial discretion, reflected in the word “may” found in R. 4.31(1). There are many different ways that a Master or chambers judge can analyze a delay application; there is no universal mandatory formula. [ 64 ] I will now turn to the application of the law to the facts at bar. D.

H as the Plaintiff advanced the action to the necessary point? [ 65 ] This is not a complicated case. It would be expected, quite reasonably, that this action would have been through production, Questioning, undertakings and trial well before now. Of note: (

a) Nearly three years elapsed between the Questioning of the Plaintiff in January 2009 and her undertakings being answered, some of which were only answered in 2014. Some appear to remain unanswered to this day. (

b) An Application for a Procedural Order was necessary because the Plaintiff did not respond to the Administrator 's letters about creating a litigation plan (March 2014). (

c) The Procedural Order issued in March 2014 was not complied with by the Plaintiff and undertakings were not answered until the eve of a Contempt Application. (

d) No Questioning of Goeckel took place until December 2015, which was 12 years after the accident. There is no explanation for this. At Questioning, Goeckel said that Zahacy, her former boyfriend, owned the vehicle at the time of the accident; this information was first communicated to the Plaintiff by the Administrator in 2008. (

e) Nearly 10 years elapsed from when Zahacy was first identified to the Plaintiff and nearly 16 months passed from the time his ownership status was verified at Questioning before the Plaintiff applied to add Zahacy as a party to the action.

(

f) The final Order regarding the

summary dismissal as against Zahacy was granted December 11, 2017, and filed January 31, 2018, and again nothing happened until Spring 2021 when the present application was filed. [ 66 ] I note that from the examination on affidavit of Zahacy, filed in this action, that the vehicle was purchased with the intention for it to be Zahacy's, he paid $3,500 for it, but it was put into his stepfather’s (Mr. Heap’

s) name because of insurance. So, Zahacy was put on as a casual driver to lower the payments. [ 67 ] It was at least arguable that he was a beneficial owner even though he wasn’t the legal owner. [ 68 ] Despite Zahacy being identified as a party to the action, almost 10 years elapsed before the Plaintiff did anything about it and by that time the action was dismissed for being commenced outside of the limitation period.

The last formal act in this action was a Costs Order filed on January 31, 2018, then nothing happened until this application was filed. [ 69 ] Thus, the action has not proceeded to a point on the litigation spectrum where it reasonably should be. Delay is clearly established on the evidence. E.

Is the shortfall or differential inordinate? [ 70 ] The meaning of “inordinate” was discussed in Humphreys at para 120 : Webster’s Third New International Dictionary of the English Language Unabridged presents this possible meaning of ‘inordinate ’: “exceeding in amount, quantity, force, intensity or scope the ordinary, reasonable or prescribed limits: extraordinary”.

In this context inordinate means that the differential between the norm and the actual progress of an action is so large as to be unreasonable or unjustifiable. [ 71 ] The biggest gaps in activity in this action are the more than five years between January 13, 2009, when the Plaintiff was questioned and April 16, 2014, when answers to undertakings began to be provided. Then nearly three more years passed before Applications Judge Schultz, on February 8, 2017, ordered that Zahacy be added as a Defendant.

Just over a month later Zahacy filed a Statement of Defence and on March 24, 2017, he applied to dismiss the claim on the basis of limitations. [ 72 ] On April 10, 2017, Plaintiff's former counsel examined Zahacy on his Affidavit and on July 31, 2017, Applications Judge Smart granted an Order for

summary dismissal of the claim against Zahacy. [ 73 ] The delay is inordinate. The action was barely commenced on time and now we are at the 20 year mark since the accident and nearly 18 years since the action was commenced. [ 74 ] The delay is far in excess of what is reasonable given the nature of this case. The Plaintiff has the onus to keep pushing the matter forward.

The Defendant has no delay upon which the Plaintiff can rely, nor it is obliged to take steps to move an action forward, although commendably the Defendant here did. [ 75 ] I have no difficulty in finding the delay in this case inordinate, that is, “exceeding in amount, quantity, force, intensity or scope the ordinary, reasonable or prescribed limits: extraordinary” ( Humphreys at para 120 ). F.

Is the inordinate delay justified by an explanation from the Plaintiff? [ 76 ] The only reasons offered by the Plaintiff relate to her former lawyer, who was blatantly dilatory in his prosecution of this action and advancement of the Plaintiff’s interests. [ 77 ] While the Plaintiff underlines the "unique circumstances of this case", there is actually nothing unique about it. It is a personal injury action. There was an accident and the Plaintiff was injured.

The action started nearly eighteen years ago with respect to events that occurred nearly twenty years ago. [ 78 ] While it is acknowledged that there was a period of time when the Law Society of Alberta was dealing with the file through custodianship and perhaps other steps, that accounts for approximately 15 months out of about 200 months. The Law Society's relatively brief custodianship of the file in the face of the intransigence of Plaintiff's former counsel does not disrupt the delay. Institutional delay is something caused by an institution not by issues with obtaining counsel.

In Oshawa (City) v 536813 Ontario Ltd , 2016 ONCJ 287 at para 129 , the Court noted that institutional or systemic delay: is the period that runs when both parties are ready for trial but the system cannot accommodate them.... A particular period of time cannot be found to be caused by systemic congestion until it is first established that both the prosecution and the defence are ready to try the case. [ 79 ] I consider the lengthy time required to add Zahacy as a party and the prolonged period of delay in answering undertakings (four years).

There is no explanation for the delay in examining the Defendant Goeckel until 12 years after the accident and never examining the Defendant Heap at all. [ 80 ] There is no excuse for the delay and no compelling explanation. G. Has the moving party demonstrated significant prejudice? [ 81 ] In OmniArch Capital Corporation v Bishop , 2020 ABCA 472 , the Court discussed, at para 31, the test for r 4.31: “whether ‘the delay has resulted in significant prejudice’. If delay is inordinate and inexcusable, significant prejudice is presumed. The concepts of

delay and significant prejudice are causally linked... No concerns other than delay trigger the rule.” [ 82 ] I have found that the delay is both inordinate and inexcusable, thus, according to r 4.31(2) the delay is presumed to have resulted in significant prejudice to the Defendant. However, in this case, I also find there has been actual prejudice to the Administrator . [ 83 ] First, there is no evidence that the Administrator was complicit in the delay in any way. In fact, the Administrator attempted to move this matter along the litigation spectrum.

The Administrator acted promptly, attempting to narrow the issues by identifying the existence of another party, and filing documents on time. [ 84 ] Zahacy is out of the lawsuit due to the delay. He was perhaps a beneficial owner and therefore would have borne some liability, so the Administrator could have collected from him or his insurer if there was Judgment obtained. This is now impossible. [ 85 ] Section 5(3) (

c) of the Motor Vehicle Accident Claims Act obliges the Plaintiff to add anyone who might be liable and she waited until 2017 to do this, two years after the examination of Goeckel. [ 86 ] In terms of prejudice, Zahacy could have been added earlier to the action and if he were insured the Administrator might have been out of the action and instead has been forced to continue in its role. There is significant prejudice in this regard, which goes to the core of who will ultimately bear the costs of this tort. H.

Has the nonmoving party rebutted the presumption of significant prejudice? [ 87 ] The Administrator relies on the presumption of significant prejudice. [ 88 ] I have found the delay to be inordinate and inexcusable. I have also found actual prejudice in addition to presumed prejudice. [ 89 ] The Plaintiff alleges the Administrator has not suffered any prejudice. According to her, liability is not an issue and the only issue left to be resolved is appropriate monetary compensation.

She denies that there has been any fading of memories and alleges that the necessary evidence to determine compensation has been obtained and preserved. I do not accept that these assertions rebut the presumption of significant prejudice. [ 90 ] The Plaintiff has failed to rebut the presumption of significant prejudice in this case. The Plaintiff also failed to address the actual significant prejudice caused by Zahacy’s exclusion from the lawsuit. I. Is there a compelling reason not to dismiss the nonmoving party’s action? [ 91 ] The Plaintiff is now 75 years old and is a widow.

She is a stranger to the legal system and knows nothing about the process.

However, she had a lawyer, and as Wakeling, JA confirmed in Ouellette v Law Society of Alberta , 2021 ABCA 99 at para 99 , even self- represented litigants must abide by the Rules : Rule 1.1(2) of the Alberta Rules of Court states that “[t]hese rules ... govern all persons who come to the Court for resolution of a claim, whether the person is a self-represented litigant or is represented by a lawyer.” (See also Municipal District of Foothills No 31 v Alston , 2023 ABCA 46 at para 9 ) [ 92 ] While the Plaintiff deserves sympathy, this action meets all the criteria for dismissal under r 4.31. [ 93 ] There is nothing in the evidence that invites the exercise of the Court’s residual discretion under the sixth part of the Humphreys test.

V. Disposition and

Summary [ 94 ] The Administrator ’s application succeeds under both r 4.31 and r 4.33. [ 95 ] The Plaintiff’s action is dismissed. [ 96 ] The Administrator shall have costs of this action and this application against the Plaintiff on Column 2 of

Schedule “C” to the Rules . Heard on the 3 rd day of March, 2023. Dated at Edmonton, Alberta this 6 th day of July, 2023.

S.N. Mandziuk J.C.K.B.A. Appearances: Senia Tarrabain for the Plaintiff Brendan Avery Carr for the Defendant [1] 5

(3) The Minister may refuse to authorize payment of any amount in respect of a judgment (

c) when the action in which the judgment was given was not brought against all persons against whom the applicant might reasonably be considered as having a cause of action in respect of the damages in question or prosecuted against every such person to judgment or dismissal . . .