Abou Shaaban v Baljak, 2024 ABKB 028

Court of King’s Bench of Alberta Citation: Abou Shaaban v Baljak, 2024 ABKB 028 Date: 20240116 Docket: 1701 15317 Registry: Calgary Between: Neveen Abou Shaaban and Nav Sha Inc. Plaintiffs/Appellants - and - Sasa Dusko Baljak, Rada Baljak, NT Exploration Inc., Mark Bajramovic, Deanmark Ltd., and ABC Corporation and XYZ Corporation Defendants/Respondents _______________________________________________________ Reasons for Decision of the Honourable Justice M.A. Marion _______________________________________________________ Appeal from the Decision by J.R.

Farrington, The Honourable Applications Judge Filed on the 22 nd day of October, 2022 Dated the 20 th day of September, 2022 I.

Introduction [ 1 ] The Plaintiffs/Appellants ( Plaintiffs ), Neveen Abou Shaaban ( Abou Shaaban ) and Nav Sha Inc ( Nav Sha ) appeal ( Appeal ) the September 20, 2022 order ( Dismissal Order ) of Applications Judge Farrington ( Judge ) dismissing this action ( Action ) pursuant to applications ( Dismissal Applications ) filed by the Defendants/Respondents ( Defendants ) pursuant to rule 4.33 of the Alberta Rules of Court , Alta Reg 124/2010 ( Rules ). [ 2 ] This Appeal addresses when any of the following steps sufficiently advance an action to resist dismissal under rule 4.33 : (

a) filing an affidavit containing evidence of a non-party witness about some of the events at issue in the action, if the affidavit is not filed in support of an application or process and is not served on any of the other parties until much later;

(

b) unsuccessfully attempting to obtain records disclosure from third parties in a separate action, without the other parties to the action knowing; (

c) otherwise unsuccessfully attempting to obtain records from other parties or third parties; or (

d) obtaining inadvertent disclosure of records by a non-party to the action which continue to be in a party’s possession notwithstanding a request that the records be returned and destroyed. [ 3 ] Most of these questions were not argued or raised before the Judge. For the reasons below, in this case the answer to these questions is no. [ 4 ] The Appeal is dismissed on its merits, with costs of the Action to be dealt with by agreement or subsequent order. II. Background A.

The Parties [ 5 ] The Amended Statement of Claim alleges, among other things, that Abou Shaaban incorporated Nav Sha in 2013 to develop, build and manufacture new technologies in alternative energy for specific use in real estate, oil and gas, agriculture, and electric systems. In 2015, Abou Shaaban and the defendant, Sasa Baljak ( Baljak ), started a romantic relationship. Baljak signed a non-disclosure agreement with Abou Shaaban and Nav Sha.

Abou Shaaban and Baljak opened a joint chequing account and purchased a rental property together which was allegedly governed by a joint venture agreement. [ 6 ] Starting sometime in 2016, Abou Shaaban and Baljak rented premises and lived together in Calgary ( Premises ) in the “Keynote One” residential tower. The defendant Deanmark Ltd. was Abou Shaaban and Baljak’s landlord, and the defendant Mark Bajramovic ( Bajramovic ) was its director. B.

The Assault, Loss of the Premises and Personal Property, and the Criminal Proceedings [ 7 ] By early 2017, the personal and business relationships between Abou Shaaban and Baljak soured. The claim alleges that Baljak assaulted Abou Shaaban in their home on January 3, 2017, and further alleges intimidation, harassment, intentional infliction of mental suffering, breach of the joint venture agreement, defamation, invasion of privacy, the tort of intrusion upon seclusion, interference with economic interests, breach of confidence and breach of the non-disclosure agreement.

On January 6, 2017, Baljak was charged and released on his own recognizance on assault charges under

section 266 of the Criminal Code – these charges were eventually referenced as docket file #170056667P1 ( Criminal Proceedings ). [ 8 ] The amended statement of claim alleges that, in March 2017, Abou Shaaban left Calgary to stay with her sister for a month to recover from the assault, and while she was away Deanmark Ltd. and Bajramovic ( Landlord Defendants ) illegally entered the Premises and removed and converted Abou Shaaban’s property, and then, when she returned to Calgary in April 2017, took the position that her lease of the Premises was abandoned.

The claim pleads breach of the Residential Tenancies Act , SA 2004, c R-17.1 , harassment, conversion, defamation breach of confidence, and invasion of privacy. [ 9 ] On September 21, 2017, Baljak pleaded guilty to committing assault on Abou Shaaban in the Criminal Proceedings. [ 10 ] On January 24, 2018, Baljak was sentenced to a conditional discharge, with conditions including, among others, a 12 month probation order, having no contact with Abou Shaaban and being banned from being within 200 metres of any known Abou Shaaban address.

Abou Shaaban was aware of Baljak’s sentence and, through her counsel at the time, she made submissions to Honourable Judge Dinkel of the then Provincial Court of Alberta before Baljak’s formal discharge. C. The Action [ 11 ] On November 14, 2017, the Plaintiffs filed the statement of claim in the Action against Baljak, Rada Baljak (Baljak’s mother), NT Exploration Inc (Baljak’s corporation), ABC Corporation and XYZ Corporation (collectively Baljak Defendants ).

The claim seeks numerous declarations, injunctive relief, damages in the amount of $1,000,000, special damages, restitution, an accounting, interest, and costs. [ 12 ] On December 7, 2017, the Baljak Defendants defended and filed a counterclaim against Abou Shaaban for unpaid rent and an unpaid loan, amongst other things.

The counterclaim sought damages of approximately $46,000. [ 13 ] On December 22, 2017, Abou Shaaban filed her statement of defence to the counterclaim. [ 14 ] On March 7, 2018, Abou Shaaban swore her affidavit of records. [ 15 ] On March 29, 2018, the Baljak Defendants served their sworn affidavits of records and provided the Plaintiffs copies of the producible records. [ 16 ] On May 2, 2018, the Plaintiffs filed an application to amend the claim to add the Landlord Defendants as defendants. The proposed amended claim was permitted by a June 4, 2018 consent order and the amended claim was filed on June 5, 2018.

The amended claim seeks declarations, damages in the amount of $150,000, interest and costs against the Landlord Defendants.

[ 17 ] On June 25, 2018, the Landlord Defendants filed their statement of defence. [ 18 ] On August 22, 2018, the Landlord Defendants swore and served their affidavit of records. D. The Niehaus Affidavit [ 19 ] On May 17, 2019, on behalf of the Plaintiffs, Jensen Shawa Solmon Duguid Hawkes LLP ( JSS ) filed an affidavit ( Niehaus Affidavit ) sworn by Samantha Niehaus, who described herself as an employee of Keynote One residential tower. Ms. Niehaus appears to have been working as or for the Keynote One building manager (not the Landlord Defendants) in February and March 2017.

The Niehaus Affidavit provides details about Ms. Niehaus’ dealings with Abou Shaaban and Bajramovic in February through May 2017 relating to the Premises. [ 20 ] The filing of the Niehaus Affidavit is unusual. First, it was sworn on January 24, 2018 and there is no explanation in the evidence why it was not filed for 16 months. Second, there is no evidence that the Niehaus Affidavit was ever served on the Defendants. It appears they likely became aware of it in 2022 in the context of the Dismissal Applications.

Third, based on the procedure card and the record before me, the Niehaus Affidavit does not appear to have been filed in support of any application or other process in the Action. There was nothing filed between the June 25, 2018 filing of the Landlord Defendants’ defence and the May 17, 2019 filing of the Niehaus Affidavit, or between the filing of the Niehaus Affidavit and a September 17, 2019 notice of withdrawal of JSS as the Plaintiffs’ counsel. No evidence has been provided to explain the purpose or timing of the filing of the Niehaus Affidavit. E.

The Records Application [ 21 ] On August 26 2019, the Plaintiffs commenced a separate action (action number 1901-11904) by filing an Originating Application ( Records Application ) seeking production of records from, among others, the Calgary Police Service ( CPS ), the Calgary Chief of Police, the Deputy Attorney General of Canada, the Alberta Crown Prosecution Service, Alberta Health Services, Rogers Communications Inc, the City of Ottawa Police Services, and the Royal Canadian Mounted Police.

The requested records related to, among other things, allegations that the Defendants falsely stated that Abou Shaaban suffered from mental illness and had committed embezzlement, fraud, theft, and other criminal activity. The Records Application also sought production of all records “related or pertaining” to this Action and the Criminal Proceedings that the respondents had in their possession from 2014 to present. [ 22 ] The Defendants were not served with the Records Application. Abou Shaaban indicated that she did not believe she was required to serve the Defendants.

She intentionally proceeded in a separate action to “protect her private records” and, not knowing what would be released by the third parties, didn’t want those records to be part of the Action. [ 23 ] On September 17, 2019, Justice Hillier granted an order ( Hillier Order ) dismissing the Records Application in respect of records relating to the Action and the Criminal Proceedings. For the other records sought, the application was adjourned until the Plaintiffs had exhausted other statutory processes to attempt to obtain the records.

The Plaintiffs may have thereafter taken some steps to use statutory or other processes to obtain records from the third parties, but there is no evidence on this Appeal that those efforts bore any fruit. Further, there is no evidence that the Plaintiffs ever brought the adjourned portion of the Records Application back before the court. Ultimately, the Records Application process does not appear to have led to the production of any records, let alone any relevant and material to this Action. [ 24 ] The Hillier Order was filed in the Action, although there is no evidence explaining why that happened.

The version on the file in the Action has the action number 1901-11904 crossed out and the action number for the Action handwritten on it. The Plaintiffs were unable to explain why this occurred. [ 25 ] The Hillier Order was also never served on the Defendants in the Action. Again, like the Niehaus Affidavit, the Defendants appear most likely to have learned about the Records Application and the Hillier Order in the context of the Dismissal Applications. F.

Criminal Proceedings Records and the Crown’s Erroneous Disclosure [ 26 ] On September 30, 2019, JSS wrote to the Baljak Defendant’s counsel (HMC Lawyers) ( HMC ) and took the position that Baljak was obligated to disclose and produce records related to the Criminal Proceedings ( Criminal Proceedings Records ) in the Action and that Baljak’s affidavit of records was deficient. In October 2019, after JSS was no longer the Plaintiffs’ counsel of record, and when Abou Shaaban was representing herself, Abou Shaaban advised that she would be filing a Wagg [1] application to obtain Criminal Proceedings Records.

But she never did that. [ 27 ] HMC was not averse to seeking the Criminal Proceedings Records and advised they would look into the issue and would provide a supplemental affidavit of records if Baljak’s criminal defence lawyer (which was not HMC) had obtained a copy of the Crown disclosure in the Criminal Proceedings. [ 28 ] In early October 2019, it became apparent that CPS would consent to the disclosure of Criminal Proceedings Records, but Alberta Justice’s position was that a formal request for disclosure would have to made and, if necessary, a Wagg application for their disclosure would be necessary.

The Crown initially advised that it take no position on the production of Criminal Proceedings Records in the Action provided certain personal information of an independent witness was redacted. Later, it appears to have taken the position that because the Criminal Proceedings were concluded, a FOIP request would be required. [ 29 ] HMC took some steps to help facilitate obtaining the Criminal Proceedings Records.

It contacted Baljak’s criminal defence counsel to see if he had them, but that does not appear to have been responded to or resulted in any disclosure. [ 30 ] HMC also contacted the Alberta Crown Prosecution Service to make a request for the Criminal Proceedings Records.

However, its October 3, 2019 request referenced the wrong file number, namely a different file number involving Baljak (#1810311048P1) rather than the file number for the Criminal Proceedings (#170056667P1). The error appears to have occurred through a miscommunication by the Crown Prosecution Service to HMC. Nobody flagged the error until 2020. [ 31 ] By October 25, 2019, HMC had not heard back from Baljak’s defence counsel, and it appeared to HMC that the Plaintiffs would have to bring a Wagg application or a FOIP request.

HMC advised that, if the Plaintiffs brought a Wagg application, HMC would take no position on it. The Plaintiffs did not bring a Wagg application. FOIP requests may have been made, but there are no results of any FOIP requests relied on in the Appeal. [ 32 ] By January 20, 2020, Abou Shaaban appears to have become aware of the error in HMC’s October 3, 2019 request to the Crown Prosecution Service, and she brought it to HMC’s attention. HMC responded and advised that it was their position they had discharged any obligations to obtain records and that the onus was on the Plaintiffs to bring a Wagg application.

Notwithstanding that position, however, on January 21, 2020 HMC made a refreshed request to the Crown Prosecution Service using the correct file number. [ 33 ] There is no evidence that HMC ever received a response to its refreshed request with the correct file number. However, in what appears to be another error, on February 21, 2020, HMC received disclosure from the Crown ( 2020 Disclosure ) related to file #180311048P1, not the Criminal Proceedings. HMC reviewed the 2020 Disclosure and noted that it also appeared “to contain, among other things, disclosure related to [the Criminal Proceedings]”.

On February 26, 2020, HMC provided Abou Shaaban a USB with the 2020 Disclosure. Abou Shaaban did not respond to an invitation to contact HMC if she had any questions about it. [ 34 ] On May 22, 2020, Chief Crown Prosecutor wrote to HMC and advised that 2020 Disclosure had been provided in error because it was in relation to a matter in which the court declined to issue process. Alberta Justice requested that the 2020 Disclosure be returned immediately, and any copies destroyed. HMC complied with that request.

None of the Defendants possess the 2020 Disclosure. [ 35 ] On May 25, 2020, HMC sent an email to Abou Shaaban about the letter from the Chief Crown Prosecutor and, in an attached letter, requested she delete her copies of the 2020 Disclosure. Abou Shaaban testified that she did not receive this email or letter at that time. She continues to possess the 2020 Disclosure. [ 36 ] Until May 2020, Abou Shaaban continued to follow up with HMC about whether it had heard a response from the Crown on HMC’s January 2020 refreshed request for the Criminal Proceedings Records. On May 25, 2020, HMC confirmed that it had not.

There is no evidence Abou Shaaban took any further steps to have Baljak or HMC obtain the Criminal Proceedings Records from the Crown after that, but her evidence is that she was waiting for them to do so or to advise of the results of their efforts. G. Attempts to

Schedule Questioning [ 37 ] In May 2020, during the COVID-19 pandemic, Abou Shaaban made inquiries about questioning the Landlord Defendants. Despite various communications amongst the parties and counsel throughout the period May to August 2020, no questioning took place. Abou Shaaban deposed that the COVID-19 pandemic made it difficult to focus on the Action. H. The Dismissal Applications [ 38 ] Due to COVID-19 distractions and “pre-occupations generally”, Abou Shaaban did not take further steps in the Action until she retained Llewellyn Law in late 2021.

On February 1, 2022, Llewellyn Law wrote to counsel for the Defendants seeking their availability for questioning in June and July 2022.

The Defendants did not agree to participate, instead filing the Dismissal Applications on February 3 and 4, 2022 respectively, supported by affidavits of Baljak and Bajramovic. [ 39 ] On April 8, 2022, Bajramovic and Baljak were questioned on their affidavits. [ 40 ] On June 21, 2022, Master Farrington (as he then was) granted a procedural order in respect of the Dismissal Applications. [ 41 ] In July 2022, the Plaintiffs filed notices of change of representation confirming that Abou Shaaban was now self-represented and that it was Nav Sha’s intention to be self-represented. [ 42 ] On July 7, 2022, Abou Shaaban filed a response affidavit, and was questioned on it on July 29, 2022. [ 43 ] On August 16 and 17, 2022, the Baljak Defendants and the Landlord Defendants each re-filed the Dismissal Applications. [ 44 ] On August 26, 2022, Parisa Jiwa (practicing under the name Calgary Legal Coaching) filed a notice of change of representation confirming that she was lawyer of record for the Plaintiffs. [ 45 ] On August 29, 2022, the Plaintiffs filed three notices of appointment for questioning to conduct questioning of Bajramovic, Baljak and Rada Baljak on November 2, 2022.

The appointments listed specific records to be brought with them, including the Criminal Proceedings Records. The appointments were served on or about August 31, 2022. The Dismissal Order intervened before these questionings took place. [ 46 ] On August 31, 2022, Abou Shaaban swore and filed another affidavit in response to the Dismissal applications (filed September 1, 2022). [ 47 ] On September 20, 2022, the Judge heard the Dismissal Applications. Although the applications relied on both rule 4.33 and 4.31, the parties only argued, and the Judge only considered, rule 4.33 .

The Judge made the Dismissal Order, which dismissed the claim and the counterclaim, and granted costs of $5,000 to the Baljak Defendants and $5,000 to the Landlord Defendants.

I. The Appeal [ 48 ] On September 30, 2022, Abou Shaaban and Nav Sha filed a Notice of Appeal of the Dismissal Order. [ 49 ] On October 28, 2022, the parties agreed to a consent order, providing deadlines for the filing of the transcript and any additional evidence intended to be relied on at the Appeal. In November 2022, Ms. Jiwa filed a notice of withdrawal.

On January 16, 2023, an amended consent order was filed, adjusting the deadlines for the appeal ( Amended Consent Order ). [ 50 ] On August 14, 2023, Abou Shaaban filed a 438-page affidavit ( 2023 Affidavit ), which included written legal argument or notes, pleadings, affidavits of records (and copies of some of the disclosed records), court-filed documents (and related correspondence) and other documents.

It included an unfiled Abou Shaaban affidavit sworn October 27, 2022 ( October 2022 Affidavit ) which provides some information about the 2020 Disclosure. [ 51 ] On January 9, 2024, Abou Shaaban provided my office additional records that were not previously in the record, including a copy of her March 7, 2018 affidavit of records, a copy of the August 2019 Originating Application for the Records Application, and the body of her August 22, 2019 affidavit in support of the Records Application. Following that, the Court was advised that the Plaintiffs had retained Mr.

Vogeli of Lawson Lundell LLP for the Appeal hearing. He provided my office a short bench brief which also attached the originating application and supporting affidavit from the Records Application, among other things. III. Standard of Review and The Record [ 52 ] An appeal from an applications judge is a hearing de novo : Kadco Construction Inc v Sterling Bridge Mortgage Corp , 2021 ABCA 52 at para 11 .

The standard of review is correctness: Bahcheli v Yorkton Securities Inc , 2012 ABCA 166 at para 30 . [ 53 ] Rule 6.14(3) provides that an appeal from an applications judge’s judgment or order is “an appeal on the record of proceedings before the applications judge and may also be based on additional evidence that is, in the opinion of the judge hearing the appeal, relevant and material.” [ 54 ] The Amended Consent Order set out a process for additional Appeal evidence. The Defendants did not file or attempt to rely on any additional evidence and did not question Abou Shaaban on her 2023 Affidavit.

Some of the Plaintiffs’ additional evidence was not provided in accordance with the Amended Consent Order, but the Defendants confirmed that they did not object to those records being part of the Appeal record. I am satisfied that the additional materials are relevant and material to the Appeal. [ 55 ] Accordingly, the record on this Appeal includes: (

a) the August 26, 2019 Originating Application and August 22, 2019 (filed August 26, 2019) Abou Shaaban affidavit filed in the Records Application; (

b) Abou Shaaban’s March 7, 2018 affidavit of records in the Action (which Mr. Vogeli has undertaken to file in the Action); (

c) the January 12, 2022 (filed February 3, 2022) Bajramovic affidavit; (

d) the February 3, 2022 (filed February 4, 2022) Baljak affidavit; (

e) the April 8, 2022 transcript of questioning of Bajramovic on his January 12, 2022 affidavit; (

f) the April 8, 2022 transcript of questioning of Baljak on his February 3, 2022 affidavit; (

g) the July 7, 2022 Abou Shaaban affidavit; (

h) the July 29, 2022 transcript of questioning of Abou Shaaban on her July 7, 2022 affidavit; (

i) the August 31, 2022 (filed September 1, 2022) Abou Shaaban affidavit; (

j) the transcript of the September 20, 2022 proceedings before the Judge; and (

k) the August 14, 2023 Abou Shaaban affidavit, which includes the Niehaus Affidavit and the October 2022 Affidavit. [ 56 ] On January 9, 2024, I wrote to the parties and noted that the questioning transcripts in this matter did not include all the marked exhibits, undertaking responses, or records included in the undertaking responses, all as referenced in McDonald v Sproule Management GP Limited , 2023 ABKB 587 at paras 20-42 . I directed that they provide me copies of the marked exhibits, undertaking answers and appropriate referenced records.

Counsel has undertaken to ensure what was provided to me will be filed. IV. Issues [ 57 ] Rule 4.31 was referenced in the Dismissal Applications but not argued before the Judge. At the Appeal hearing, the parties confirmed that rule 4.31 is not being relied on by any party. Accordingly, like the Judge, I do not consider rule 4.31. [ 58 ] Therefore, the issues on this Appeal are: (

a) Should the Action have been dismissed pursuant to rule 4.33 ?

(

b) What is an appropriate order in this case? V. Analysis A. Should the Action Have Been Dismissed under Rule 4.33? 1. Legal Framework for Rule 4.33 Applications [59] Rule 4.33(2) provides:

(2) If 3 or more years have passed without a significant advance in an action, the Court, on application, must dismiss the action asagainst the applicant, unless (

a) the action has been stayed or adjourned by order, an order has been made under subrule (9) or the delay is provided for in alitigation plan under this Part, or (

b) an application has been filed or proceedings have been taken since the delay and the applicant has participated in them for apurpose and to the extent that, in the opinion of the Court, warrants the action continuing. [60] The relevant period of delay must be determined by starting with the last uncontroversial significant advance up to the date thedismissal application was filed (not the date it was heard): Rahmani v 959630 Alberta Ltd, 2021 ABCA 110 at paras 16-17; VanmaeleEstate (Re), 2023 ABKB 456 at para 21; Taschuk v Taschuk, 2022 ABKB 786 at para 13; Babiuk v Heap, 2023 ABKB 410 at para 48.A question to be asked is: “was there a three year period between these dates without any significant advance in the action?”: Rahmaniat para 17.

If the relevant period of delay includes March 17, 2020 to June 1, 2020, then Ministerial Order 27/2020 must be considered,as it suspended the operation of time limits under the Rules for 75 days from March 17, 2020 to June 1, 2020, subject to the court’sdiscretion: Coble v Atkin, 2023 ABKB 10 at para 28. [61] A party resisting the dismissal can point to any step in the action by any party, and related to only some but not all defendants,as long there has been a significant advancement of the action as a whole: Flock v Flock, 2017 ABCA 67 at para 17-7; 1499925 AlbertaLtd v NB Developments Ltd, 2023 ABKB 114 at para 57 (and cases cited therein). [62] Whether a step significantly advances the action is determined by a functional, context-sensitive, substance-over-formapproach: Rahmani at paras 14 and 22; Flock at paras 17-1 and 17-2; Patil v Cenovus Energy Inc, 2020 ABCA 385 at para 7. [63] A significant advance is one that moves the action forward in an essential or meaningful way, reflecting important or notableprogress towards the resolution of an action: Loncikova v Goldstein, 2023 ABCA 358 at para 9; Patil at para 7; Rahmani at para 14;Jacobs v McElhanney Land Surveys Ltd, 2019 ABCA 220 at para 86.

This is assessed by viewing the whole picture of what transpiredduring the relevant period, framed by the real issues in dispute, and viewed through a lens trained on qualitative assessment: Ro-DarContracting Ltd v Verbeek Sand & Gravel, 2016 ABCA 123 at para 21. [64] The assessment requires the Court to ask: Has anything that happened in the applicable period increased by a measurable degree the likelihood either the parties or a court wouldhave sufficient information – usually a better idea of the facts that can be proven – and be in a better position to rationally assess themerits of the parties’ positions and either settle or adjudicate the action?

Are the parties at the end of the applicable period much closer to resolution than they were at the start date? (Loncikova at para 9; Morrison v Galvanic Applied Sciences Inc, 2019 ABCA 207 at para 35; Jacobs at para 86; Weaver vCherniawsky, 2016 ABCA 152 at para 26.) [65] Answering these questions involves an assessment of the nature, quality, genuineness, and timing of the advancing conduct:Patil at para 7; Rahmani at para 14; Ursa Ventures Ltd v Edmonton (City), 2016 ABCA 135 at para 19; Ro-Dar at para 21.

Steps thatnarrow issues, clarify positions, complete discovery of documents and information, or ascertain relevant facts or law, may significantlyadvance an action, but outcomes should not be overemphasized: Ro-Dar at para 20; Stylecraft Developments

(1984) Ltd v CarscallenLLP, 2023 ABKB 504 at para 13. [66] While courts understand the challenges facing self-represented parties, the bottom line is that self-represented litigants areexpected to familiarize themselves with the relevant legal practices and procedures pertaining to their case and to comply with the Rules,including in the context of delay dismissal applications: Owaise v Condominium Corporation 8310969, 2023 ABCA 88 at para 16;Municipal District of Foothills No 31 v Alston, 2023 ABCA 46 at para 3; Morrison at para 27; AF v Alberta, 2020 ABQB 268; Alstonv Haywood Securities Inc, 2020 ABQB 107 at para 114.

The standards and requirements of rule 4.33 are not relaxed, bent, or ignoredfor self-represented litigants, as that would be tantamount to having one set of rules for litigants with counsel and a different set for self-represented litigants: Gjergji v Hyatt Mitsubishi, 2017 ABQB 500 at paras 20-21 and 32; Vanmaele Estate at para 32; Lofstrom vRadke, 2020 ABQB 122 at para 93. [67] The onus is on the party making the dismissal application to lead evidence that no significant advance has occurred within thethree year period: Taschuk at paras 37-40; Nahal v Gottlieb, 2019 ABQB 650 at para 11.

However, while the overall legal or persuasiveburden is on the applicant, if the party resisting the application relies on specific matters as significantly advancing an action, they mayhave an evidential burden to demonstrate or prove how they do so: see, for example, Taschuk at paras 38-40. The general rule is that aparty who asserts a proposition of fact has the burden of proving it: Emeric Holdings Inc v Edmonton (City), 2009 ABCA 65 (perSlatter JA, in dissent) at para 43, citing Robins v National Trust Co, (UK JCPC), [1927] AC 515 at p 520 (JCPC, Ont).

2. Grounds of Appeal and Positions of the Parties [ 68 ] In this case, the last uncontroversial significant advance in the Action was the service of the Landlord Defendants’ affidavit of records on August 22, 2018. The Dismissal Applications were filed on February 3 and 4, 2022. Therefore, the relevant period of assessment is August 22, 2018 to February 3/4, 2022.

The three year period is extended to the benefit of the Plaintiffs during the period of suspension under Ministerial Order 27/2020. [ 69 ] The submissions made by the Plaintiffs’ previous counsel before the Judge, and the legal argument or notes included in Abou Shaaban’s 2023 Affidavit, disclose numerous potential arguments. However, Mr. Vogeli confirmed the Plaintiffs’ position was now more limited, namely, that the following constituted significant advances of the Action: (

a) the Niehaus Affidavit; (

b) the Records Application; (

c) the 2020 Disclosure; and (

d) a related but more general “omnibus” argument that the Plaintiffs were not sitting idly by, were attempting to obtain records during the relevant period, and were clearly intent on proceeding with the Action. I address those matters below. 3. Did the Niehaus Affidavit Significantly Advance the Action? [ 70 ] The Niehaus Affidavit provides details of Ms. Niehaus’ dealings with Abou Shaaban and Bajramovic during the period February to May 2017. It exhibits a daily occurrence report and a letter Ms.

Niehaus prepared about her dealings with Abou Shaaban which she prepared and gave to Bajramovic at his request. [ 71 ] As noted earlier, Ms. Niehuas swore her affidavit in January 2018 (before the start of the relevant time-period) and then it was court-filed in May 2019. It was publicly available on the court file after that, but was not served on the Defendants until after the Dismissal Applications were filed when it was included in other materials. The reason the affidavit was commissioned by the Plaintiffs’ counsel, held for 16 months, then filed but not served, is unknown.

Only the Plaintiffs or its former counsel could have provided that evidentiary context, but they did not. [ 72 ] In the circumstances, the Niehaus Affidavit didn’t help advance any application and does not appear to have been related to the discovery process. However, it could potentially be relied on as part of the Plaintiffs’ evidence, information and document gathering in the Action.

When a party relies on the production of new information or documents to significantly advance an action, the nature of the documents and their importance must be examined: Ro-Dar at para 22. [ 73 ] In Loncikova , the Court of Appeal recently summarized the authorities where one party’s information and document gathering was put forward as significantly advancing an action, at paras 10 and 12: A survey of Alberta judgments where one party’s information and document gathering was put forward as significantly advancing an action shows the courts have considered the importance of the documents, the information in the documents, the relevance and quality of the information, and, importantly, whether the information and documents were provided to the other party.

Relevant, valuable information permits a narrowing of issues, agreement on facts or issues, reconsideration of a party’s position or possible steps towards settlement, but none of that is possible if the other party has no knowledge of the work done: Huynh v Rosman , 2013 ABQB 218 [ Huynh ]; Huerto v Canniff , 2014 ABQB 534 [ Huerto ], aff’d 2015 ABCA 316 ; Phillips v Sowan , 2006 ABQB 579 , aff’d 2007 ABCA 101 ; Top Grade Solutions Inc v Flying Pizza 73 Inc , 2009 ABQB 492 ; Riehs Estate (Re) , 2021 ABQB 821 [ Riehs Estate ]; National Home Warranty Group Inc v Burton , 2022 ABQB 123 [ National Home ]. [...] [12] In any event, the purpose for which the documents were sought is not determinative on its own.

As addressed, an important factor is whether the documents, or the document-gathering process, were communicated to the opposing party: see Huynh at para 37, Huerto at para 43, Riehs Estate at para 36, National Home at para 47. [ 74 ] I accept that the purpose of the Niehaus Affidavit was likely to memorialize evidence of a non-party for the purposes of the Action.

However, the purpose is not determinative on its own. [ 75 ] With respect to the importance of the Niehaus Affidavit, one might consider whether the affidavit or its attachments were disclosed in Abou Shaaban’s affidavit of records since they were clearly in the possession of the Plaintiffs’ counsel when she swore her affidavit of records. [ 76 ] Although it is not entirely discernable, on balance it appears that neither the Niehaus Affidavit nor its exhibits were disclosed in Abou Shaaban’s affidavit of records. They are not expressly disclosed in

Schedule 1 (“Relevant and material records under my control for which there is no objection to produce”). It is difficult to know whether they were disclosed in

Schedule 2 (“Relevant and material records under my control for which there is no obligation to produce”) given there was a generic claim of solicitor’s work product privilege over “records contained in [JSS] file number 13930-001”. They do not appear to be specifically referenced in other listed records in

Schedule 2. Only the Plaintiffs or their former counsel could have explained whether these records were disclosed in the affidavit of records or not. [ 77 ] Regardless of why they were not disclosed earlier, in my view the Niehaus Affidavit and its exhibits in fact do include important, “relevant and material” information as contemplated by rule 5.2. There is no basis, on this record, to suggest Ms. Niehaus’ evidence was not valuable or reliable.

It is some corroboration of at least some of the allegations in the claim. [ 78 ] However, as noted in Loncikova and the cases cited therein, by not providing or communicating the Niehaus Affidavit to the Defendants during the relevant period of delay, I find its filing did not assist with narrowing issues, reaching agreements on facts or issues, reconsidering of positions, or facilitating settlement. [ 79 ] Further, the step of gathering of the information and its compilation in the Niehaus Affidavit took place by January 24, 2018,

long before the August 22, 2018 start date of the relevant period on this Appeal. Therefore, the substance of the Plaintiffs’ efforts occurred before the relevant period of assessment, not during it. The advance that happened during the relevant period was simply the filing of the affidavit.

To find that the mere act of filing a document at the courthouse, without more, could alone significantly advance an action would be form over substance and inconsistent with a functional approach. [ 80 ] I find that the Niehaus Affidavit did not advance the Action forward in an “essen tial or meaningful way, reflecting important or notable progress towards the resolution” of the Action, during the relevant period of delay. It did not significantly advance the Action during the relevant period. 4.

Did the Records Application Significantly Advance the Action? [ 81 ] The Plaintiffs argue that their efforts in the Records Application, a separate action, significantly advanced the Action. [ 82 ] The Defendants rely on cases they argue set out principles applicable to when a party seeks to rely on steps taken in another action as significantly advancing an action: Danek v Levine , 2016 ABQB 422 at paras 8-9 ; 155569 Canada Ltd v 248524 Alberta Ltd , 2004 ABQB 17 ; Calgary (City) v Chisan , 2000 ABCA 313 ; Angevine v Blue Range Resource Corporation , 2007 ABQB 443 at paras 40-41 .

Those cases suggest that factors to consider are (1) whether the results in the related action would be legally or factually determinative of the issues in the primary action; (2) will the issue determined in the related action be relevant and binding in the primary action; (3) does the related action materially advance the primary action; and (4) could the decision in the related action be a barrier in law to the court’s adjudicating the primary action: Danek at para 9 ; Angevine at para 41 . [ 83 ] The Defendants also argue that any records produced in the Records Application would be bound by the implied undertaking not to use them for collateral purposes, so it cannot be seen to significantly advance the Action: rule 5.33.

I recently summarized the implied undertaking in MBH v CKI , 2023 ABKB 284 at paras 69-82 . [ 84 ] In my view, the Records Application is uniquely connected to the Action because the Hillier Order in the Records Application was, for some reason, filed in the Action. However, like with the Niehaus Affidavit, the Hillier Order was not served on the Defendants, and they were not likely aware of it until after the Dismissal Applications were filed.

The filing of the Hillier Order in the Action did not significantly advance the Action. [ 85 ] In this case, I do not need to go through a detailed analysis of whether, pursuant to the principles in Danek and other cases, the Plaintiffs can rely on the Records Application to support their position.

Even if it is assumed that they could, the reality is that the Records Application was intentionally separated from the Action, was unknown to the Defendants during the relevant period, and did not result in the disclosure or communication of important, relevant or material information or records to which the Plaintiffs have pointed. [ 86 ] The Hillier Order dismissed the application as it related to disclosure of records pertaining to the Action and the Criminal Proceedings.

Even if this might be argued to have narrowed the potential sources of records for the Action, again, the Plaintiffs’ efforts were not known to the Defendants. [ 87 ] In these circumstances, the Records Application did not move the Action toward resolution at all, let alone meaningfully: National Home at para 47 ; Reihs Estate at para 35. [ 88 ] The Records Application did not significantly advance the Action. 5. Did the 2020 Disclosure Significantly Advance the Action? [ 89 ] The Plaintiffs’ efforts to obtain disclosure of the Criminal Proceedings Records led to the inadvertent and erroneous 2020 Disclosure.

The 2020 Disclosure’s contents were reviewed and known by the Baljak Defendants and the Plaintiffs during the relevant period, so had the potential to significantly advance the Action even though they are currently only possessed by the Plaintiffs. The relevance, nature, importance, and quality of the disclosure must be examined: Ro-Dar at para 22; Loncikova at paras 10-12 . [ 90 ] The Plaintiffs argue that the USB shows that producible records had not been disclosed in the Action.

Further, even though the 2020 Disclosure related to a different criminal process, HMC provided the 2020 Disclosure to Abou Shaaban because it appeared “to contain, among other things, disclosure related to [the Criminal Proceedings]”. This might support the 2020 Disclosure as being relevant and material to the Action.

On the other hand, Abou Shaaban complained that this was not the disclosure she had requested and, further, neither the Plaintiffs nor the Baljak Defendants disclosed the 2020 Disclosure in a supplemental affidavit of records despite their obligations to do so if it included relevant and material records: rule 5.10. [ 91 ] By the time of the Dismissal Applications, HMC had honoured the Crown’s request to return, and destroy copies of, the 2020 Disclosure, so only the Plaintiffs could have put the 2020 Disclosure’s content before the Court to support their position that it significantly advanced the Action.

In the October 2022 Affidavit, Abou Shaaban swore: The USB key contains the following: A 485-page PDF document including 50 photographs as well as an information sheet listing charge 2.66 of Sasa Baljak A docx. Disclosure Record referencing docket number 181031048P1 A file named 181031048P1 containing 18 video files. [ 92 ] The October 2022 Affidavit only includes a photograph of the USB and a copy of the information for the Criminal Proceedings.

In my view, the information for the Criminal Proceedings, while a relevant and material record to the assault allegations in the Action, did not add any material new information when disclosed. By 2020, Baljak had already pleaded guilty, been sentenced, and

formally discharged, all to the knowledge of the Plaintiffs. [ 93 ] Further, the October 2022 Affidavit does not explain what is in the 485-page PDF document in any detail, what the photographs relate to, or whether the video files are relevant and material or important to any issues in the Action. If those records had anything to do with the Action, I expect that Abou Shaaban would have said so. Contrary to Mr. Vogeli’s suggestion, I am not satisfied, based on the evidence before the Court, that it is appropriate to infer that the 2020 Disclosure included important information about the issues in the Action.

Rather, the stronger inference is that the PDF and videos relate to a 2018 information process, which post-dates the assault at issue in the Action. According to the Crown, that 2018 information was never pursued. If the Plaintiffs believed there was important information on the USB, Abou Shaaban could have provided that evidence. She did not. [ 94 ] In the circumstances, I am not satisfied on a balance of probabilities that there was information important to the Action of any quality on the USB. [ 95 ] The 2020 Disclosure did not significantly advance the Action. 6.

Did the Plaintiffs’ Attempts to Obtain Records Advance the Action? [ 96 ] When pressed, Mr. Vogeli referred several times to his “omnibus” argument that the Plaintiffs had established they were taking active steps through “non-judicial” attempts to get records disclosure from third parties and the Defendants. He argued that it was clear that the Plaintiffs were not sitting idly by, were taking steps, and clearly intended to proceed with the Action. He frankly acknowledged that there were numerous other things the Plaintiffs could have done but did not.

He argued that the Plaintiffs’ efforts allowed the parties to get a better idea of the facts that could be proven. [ 97 ] The test on a rule 4.33 application is not about the merits of the claim, fairness, sympathy, prejudice, or justification for the delay: Alberta v Morasch , 2000 ABCA 24 at para 5 ; AF at para 96 ; Delorme v Canada (Attorney General) , 2015 ABQB 240 at para 22 . Further, it is not about a plaintiff’s intention to prosecute the claim or what a party could have done but did not do.

It is a non- discretionary assessment of what actually happened and whether an action was significantly advanced during the relevant period. [ 98 ] It is the plaintiff’s obligation to prosecute its claim in a timely fashion and the defendant’s obligation not to obstruct, stall or delay the action: Janstar Homes Ltd v Elbow Valley West Ltd , 2016 ABCA 417 at para 26 ; XS Technologies Inc v Veritas DGC Land Ltd , 2016 ABCA 165 at para 7 ; National Home at para 6 .

In the context of a rule 4.33 application, it is generally insufficient for the plaintiff to point to things defendants could or should have been doing, or to say that the plaintiff was waiting on a defendant to do something (provided a defendant is not relying on its own breach of an undertaking or agreement to ambush a plaintiff): XS Technologies at para 7; Turek v Oliver , 2014 ABCA 327 at para 5 ; Rahmani at para 14 ; Patil at para 7 . [ 99 ] The Defendants did not agree to any standstill or suspension, or promise to take any particular steps, beyond what they actually did, that would have significantly advanced the Action. [ 100 ] I do not find persuasive the Plaintiffs’ argument that their efforts helped the parties know what facts could be proven.

In my view, the Plaintiffs’ efforts did not meaningfully advance that question one way or the other during the relevant period. [ 101 ] On balance, I find that the Plaintiffs’ general efforts to obtain records from third parties, or other steps taken during the relevant period, did not significantly advance the Action. VI. Conclusion [ 102 ] I find that three or more years passed without a significant advance in the Action during the relevant period (August 22, 2018 to February 3 or 4, 2022). The Judge’s decision was correct.

The Appeal is dismissed on its merits. [ 103 ] The parties did not materially address the Judge’s costs award in argument on the Appeal and I reserve that aspect of the Appeal. If the parties cannot agree on costs of the Action within thirty days of this decision, then the following process shall apply: (

a) within 30 days of this decision, the Defendants shall file and serve on the Plaintiffs and submit to my office a written cost submission setting out their costs position; (

b) within 45 days of this decision, the Plaintiffs shall file and serve on the Defendants and submit to my office a written costs submission setting out their costs position; (

c) each party’s costs submission will be a maximum of 2 pages (excepting attachments, including authorities, draft proposed bill of costs, or reasonable and proper costs

summary), single spaced in letter format, and shall provide: (

i) their position with respect to the factors set out in rule 10.33; (ii) any formal offer under the Rules or other offer they wish considered; (iii) a draft proposed bill of costs pursuant to

Schedule C; and (iv) a

summary of their actual reasonable and proper costs that the party incurred in respect of the Appeal and the Action. Heard on the 11 th day of January, 2024. Dated at the City of Calgary, Alberta this 16 th day of January, 2024.

M.A. Marion J.C.K.B.A. Appearances: Grant Vogeli for the Plaintiffs Meagan Potier for the Defendants/Respondents Sasa Dusko Baljak, Rada Baljak and NT Exploration Inc. Ryan Barata for the Defendants/Respondents Mark Bajramovic and Deanmark Ltd.