Buhr v Buhr, 2021 MBCA 63

Citation: Buhr v Buhr , 2021 MBCA 63 Date: 20210616 Docket: AI20-30-09493 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Christopher J. Mainella Madam Justice Jennifer A. Pfuetzner Madam Justice Karen I. Simonsen BETWEEN : vernon dean buhr ) K. D. Toyne ) for the Appellant ) (via videoconference) (Plaintiff) Appellant ) ) A. B. Graham, Q.C. and - and - ) K. L.

Vartsakis ) for the Respondents GREGORY WILLIAM BUHR, WENDY MAY ) (via videoconference) BUHR, JODI BUHR, LAWRENCE EDWIN ) BUHR and SEAN BURTON ) Appeal heard: ) January 25, 2021 ) (Defendants) Respondents ) Judgment delivered: ) June 16, 2021 COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the MB, Court of Appeal Rules , MR 555/88R , this appeal was heard remotely by videoconference. Corrected Judgment: A corrigendum was issued on October 6, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment.

On appeal from 2020 MBQB 107 simonsen JA [ 1 ] The plaintiff appeals the dismissal of his action for delay. The action was dismissed by a motion judge under r 24.02(1) of the MB, Court of Queen’s Bench Rules , MR 553/88 (the QB Rules ), which provides for dismissal in cases of long (three- year) delay. Alternatively, the action was dismissed under r 24.01(1), applying the presumption of significant prejudice prescribed by r 24.01(2).

Rule 24.01(2) provides that, where there has been inordinate and inexcusable delay, that delay is presumed, in the absence of evidence to the contrary, to have resulted in significant prejudice to the moving party, such that the Court may dismiss the action for delay under r 24.01(1). [ 2 ] Although the plaintiff appeals the rulings made under both rules, I will not address the decision made under r 24.01(1) because, for the reasons that follow, I would dismiss the appeal from the decision made under r 24.02(1).

I am not persuaded that the motion judge erred in determining that more than three years had passed without a significant advance following September 2016 when examinations for discovery were held, as a consequence of which he was required to dismiss the action. [ 3 ] The focus of the appeal is on whether the motion judge erred in his

interpretation of r 24.02(1) and his determination that the plaintiff’s provision, in July 2019, of answers (the answers) to some, but not all, of his undertakings and matters taken under advisement at the examination for discovery did not constitute a significant advance in the action. Because I have concluded that he did not so err, I need not consider whether additional steps taken by the plaintiff in December 2019 constituted a significant advance because

they were taken more than three years after the examinations for discovery. [ 4 ] Notably, this appeal presents this Court’s first opportunity to examine r 24.02, which came into force on January 1, 2018 (see Manitoba, Court of Queen’s Bench Rules , amendment , Man Reg 130/2017,

section 9). Rule 24.02 is a distinct departure from the former r 24.01, which previously governed motions for dismissal for delay. The Rules [ 5 ] Although this decision turns on r 24.02, r 24.01 (which also came into force on January 1, 2018) provides context for some of the discussion that follows. Rules 24.01 and 24.02 state: Dismissal for delay 24.01(1) The court may, on motion, dismiss all or part of an action if it finds that there has been delay in the action and that delay has resulted in significant prejudice to a party.

Presumption of significant prejudice 24.01(2) If the court finds that delay in an action is inordinate and inexcusable, that delay is presumed, in the absence of evidence to the contrary, to have resulted in significant prejudice to the moving party. What constitutes inordinate and inexcusable delay 24.01(3) For the purposes of this rule, a delay is inordinate and inexcusable if it is in excess of what is reasonable having regard to the nature of the issues in the action and the particular circumstances of the case.

Dismissal for long delay 24.02(1) If three or more years have passed without a significant advance in an action, the court must, on motion, dismiss the action unless (

a) all parties have expressly agreed to the delay; (

b) the action has been stayed or adjourned pursuant to an order; (

c) an order has been made extending the time for a significant advance in the action to occur; (

d) the delay is provided for as the result of a case conference, case management conference or pre-trial conference; or (

e) a motion or other proceeding has been taken since the delay and the moving party has participated in the motion or other proceeding for a purpose and to the extent that warrants the action continuing. Excluded time 24.02(2) A period of time, not exceeding one year, between service of a statement of claim and service of a statement of defence is not to be included when calculating time under subrule (1). Excluded time — period under disability 24.02(3) Any period of time when a person is under disability is not to be included when calculating time under subrule (1). Transitional — no application to motions before January 1, 2019

24.02(4) The court may only apply subrule (1) in a motion to dismiss an action for delay that has been brought after January 1, 2019. [ 6 ] The former r 24.01, which governed motions for dismissal for delay prior to January 1, 2018, is also referenced in my analysis; it is included at Appendix A. [ 7 ] The current rr 24.01 and 24.02 are similar, but not identical, to rr 4.31 and 4.33 respectively of the AB, Rules of Court , AR 124/2010 , which are included at Appendix B. Rule 4.33 was last amended in 2016 (see Alberta Rules of Court (Miscellaneous) Amendment Regulation , AR 85/2016, section 1(3)).

The earlier version, which was in effect when a number of the decisions to which I will refer were released, is included at Appendix C. [ 8 ] Because Alberta is the only Canadian province with a rule similar to r 24.02, jurisprudence from that province is of particular assistance. The Background [ 9 ] The relevant facts are straightforward and not in dispute. [ 10 ] The statement of claim was filed on June 1, 2012 and amended on January 10, 2013.

The plaintiff alleged that, on July 3, 2010, he was physically and sexually assaulted by the defendants, or some combination of them, causing him personal injury and resulting damages. [ 11 ] In the prayer for relief of the amended statement of claim, the plaintiff sought general damages; special damages, including loss of past and future income, past and future costs of care, past and future medical, occupational and rehabilitation therapy and professional counselling costs, the Manitoba Health Services account, and any other special damages to be incurred; aggravated damages; punitive damages; interest; and costs. [ 12 ] The statement of defence and counterclaim was filed on August 21, 2013.

The defendants denied that the plaintiff sustained the damages alleged and, in the alternative, denied that their conduct caused any damages. The plaintiff filed a reply and defence to counterclaim on February 6, 2014. [ 13 ] Between September 27 and 30, 2016, examinations for discovery of the plaintiff and the defendants were held, but the examination of the plaintiff was not completed, due to time constraints. When the examination of the plaintiff was adjourned, counsel for the defendants stated that he “specifically put on the record” his request for a damages assessment and breakdown.

Counsel for the defendants also swears that he still intended to examine the plaintiff with respect to both his claim for damages and his involvement in the police investigation of the alleged incidents.

Counsel for the plaintiff acknowledged that the examination for discovery would be reconvened. [ 14 ] Nothing further occurred until July 8, 2019, when counsel for the plaintiff provided the answers to counsel for the defendants. [ 15 ] On December 9, 2019, counsel for the plaintiff sent to counsel for the defendants a proposed amended reply and defence to counterclaim with a request for consent to the amendment and, on December 10, 2019, sent a pre-trial brief. He also advised that the plaintiff would be seeking

summary dismissal of the counterclaim and requested attendance at a pre-trial conference in March 2020. [ 16 ] On December 13, 2019, counsel for the defendants wrote to counsel for the plaintiff expressing surprise at the plaintiff’s attempt to proceed with the action, given the lengthy delay since the examinations for discovery. He advised of his availability for a pre-trial conference in March 2020, stating that his availability was not an acknowledgment that the matter was ready for trial or that a pre-trial conference was appropriate.

He also indicated that he was “expressly reserving [his] rights to bring on whatever interlocutory motions may be required.” [ 17 ] On March 10, 2020, the defendants filed the motion to dismiss for delay. [ 18 ] On March 12, 2020, the defendants filed their pre-trial brief, indicating that the motion for dismissal for delay had been filed.

The plaintiff filed a supplementary pre-trial brief that same day. [ 19 ] On March 16, 2020, counsel appeared before the motion judge in chambers for the pre-trial conference, which was adjourned pending the determination of the motion for dismissal for delay. [ 20 ] The motion was granted on July 15, 2020. Citing the functional test in Ro-Dar Contracting Ltd v Verbeek Sand & Gravel Inc , 2016 ABCA 123 at para 21 , the motion judge concluded that the plaintiff’s provision of the answers did not constitute a significant advance in the action.

Key to his reasoning was his finding that the answers provided on July 8, 2019 were, “at best, a modest, not significant, advance of the action toward trial” (at para 15). The motion judge also noted that the steps taken in December 2019 occurred outside the three-year period following the examinations for discovery. [ 21 ] He concluded that, because three or more years had passed without any significant advance and none of the exceptions enumerated in rr 24.02(1)(

a) to (

e) applied, the action must be dismissed (see para 17). The Positions of the Parties [ 22 ] The plaintiff asserts that the motion judge erred in his

interpretation and application of r 24.02(1). There are two key areas of complaint. First, the plaintiff says that the motion judge erred by failing to conclude that the relevant period was the three-year

period immediately prior to the filing of the notice of motion for dismissal for delay. Second, the plaintiff says that the motion judgefailed to recognise a general presumption or rule that the delivery of answers to undertakings is a significant advance in an action. [23] Ultimately, the plaintiff contends that the motion judge made a palpable and overriding error of mixed fact and law inhis determination that the provision of the answers was not a significant advance. [24] Although the plaintiff expressly says that he does not rely on the exceptions in rr 24.02(1)(

a) or (e), sprinkledthroughout his submissions are assertions of acquiescence on the part of the defendants.

With respect to his argument about which three-year period was to be considered, the plaintiff contends that, because the defendants failed to move promptly for dismissal when entitledto do so, the clock is “reset”, such that “the relevant three-year period becomes the three years prior to the filing of the notice of motionto dismiss for delay.” With respect to his argument that the motion judge erred in concluding that the provision of the answers was not asignificant advance, the plaintiff says that the defendants’ conduct, in particular their failure to complain about the quality of the answersonce received, supports the conclusion that the provision of the answers constituted a significant advance in the action. [25] The defendants maintain that the motion judge did not err in considering the three-year period following theexaminations for discovery.

Nor, according to the defendants, did the motion judge err in utilising the functional test without theapplication of a general rule or presumption, in determining that the provision of the answers was not a significant advance. [26] The defendants say that they had no obligation to move the matter along, object to the quality of the answers provided,or file a motion for dismissal within a certain timeframe.

They also contend that there is no evidence of acquiescence here. [27] The defendants submit that the motion judge’s conclusion that the provision of the answers was not a significantadvance is a question of fact or mixed fact and law that is entitled to deference absent palpable and overriding error, which has not beendemonstrated. Standard of Review [28] It is well established that a decision to dismiss an action for delay under either the former r 24.01(1) or the current r24.01(1) is discretionary, as both rules provide that the court “may” dismiss an action for delay.

In The Workers Compensation Board vAli, 2020 MBCA 122, this Court recently confirmed that, even where the criteria of the current r 24.01(1) are met in that a moving partyhas demonstrated delay resulting in significant prejudice, a court nonetheless retains discretion to dismiss the motion and allow the actionto proceed.

That discretion should be exercised only in exceptional circumstances where there is a “compelling reason” to do so (at para46). [29] Given the discretionary nature of a decision made under r 24.01(1), the Court, in Ali, confirmed the applicability of thetraditional standard of review for a discretionary decision (at para 20): The standard of review for these issues is set out in Kostic v Merrill Lynch Canada Inc, 2010 MBCA 81 (at para 41): The standard of review for a discretionary order is not at issue.

The motion judge’s exercise of discretion is entitled to deference andshould not be interfered with unless he misdirected himself or if his decision is so clearly wrong as to amount to an injustice. (See Elsomv. Elsom, (SCC), [1989] 1 S.C.R. 1367, R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, and Homestead Properties(Canada) Ltd. v. Sekhri et al., 2007 MBCA 61, 214 Man.R. (2d) 148.) Whether there is a misdirection with respect to a question of lawis assessed on the standard of correctness.

For errors of mixed fact and law, or fact alone, the standard is palpable and overriding error,unless an error of mixed fact and law involves an error relating to an extricable principle of law, in which case the standard of correctnessapplies to that extricable question. See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, and Homestead, at para. 13.

See also Oliver v The Government of Manitoba et al, 2019 MBCA 62 (Oliver CA) at para 4; and Ian Dmytriw et al v Jonah NK Odim etal, 2020 MBCA 112 at paras 42-44. [30] Unlike the former and current rr 24.01(1), r 24.02(1) states that a court “must” dismiss an action if there has been aperiod of three or more years without a significant advance and none of the exceptions in rr 24.02(1)(

a) to (

e) apply. There is no realdispute between the parties and, as I will later explain, that this requirement is mandatory. As a consequence, the standard of review fordiscretionary orders set out in Elsom v Elsom, (SCC), [1989] 1 SCR 1367, is not applicable.

Rather, appellate reviewof a decision made under r 24.02(1) is to be conducted on the standard set out in Housen v Nikolaisen, 2002 SCC 33, which was wellsummarised in the long-delay case of Flock v Flock Estate, 2017 ABCA 67 (at para 13): Articulation and application of the correct legal test to be applied under rule 4.33 attracts review on the correctness standard.Interpretation of the Alberta Rules of Court in dismissal for long delay applications specifically raises questions of law: Ro-DarConsulting Ltd v Verbeek Sand & Gravel Inc, 2016 ABCA 123 at para 11.

Palpable and overriding error is the standard of review forfailing to dismiss an action for long delay when questions are of mixed fact and law: Weaver v Cherniawsky, 2016 ABCA 152 at para15, such as determining whether the established facts satisfy the legal test set out in the Rules: Ro-Dar at para 11; see also Brost vKusler, 2016 ABCA 363 at para 8. Findings of fact are entitled to deference absent palpable and overriding error: Housen vNikolaisen, 2002 SCC 33 at paras 8 and 10.

See also Delver v Gladue, 2019 ABCA 54 at paras 3-4; and McKay v Prowse, 2020 ABCA 131 at para 11. Analysis Introduction [31] This Court and others have repeatedly emphasised that there is a strong public interest in promoting the timelyresolution of disputes in our civil justice system. A fair and just civil dispute resolution process becomes illusory unless it isproportionate, timely and affordable (see Glenwood Label & Box Mfg Ltd v Brunswick Label Systems Inc et al, 2019 MBCA 12 atpara 5; and Ali at paras 85-86). [32]

Interpretation of court rules is governed by the same principles as the

interpretation of other legislation. The principlesapply equally to

interpretation of transitional provisions, such as r 24.02(4) (see Ian Dmytriw et al v Jonah NK Odim et al, 2020 MBCA112 at para 46). The modern approach to statutory

interpretation requires that “the words of

an Act are to be read in their entire contextand in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of [theLegislature]” (Rizzo & Rizzo Shoes Ltd (Re), (SCC), [1998] 1 SCR 27 at para 21, quoting Elmer A Driedger,Construction of Statutes, 2nd ed (Toronto: Butterworths, 1983) at 87; see also Manitoba Housing v Amyotte et al, 2014 MBCA 54 atparas 50-51). [33] Rule 24.02 is part of an overhaul of the QB Rules intended to expedite and bring finality to civil proceedings.

Itintroduces a fundamentally different approach to delay than the former and current rr 24.01. Both the former and current rr 24.01 focuson the overall delay in the litigation as a whole; r 24.02 focusses on gaps. Rule 24.02 is a drop-dead rule that provides for dismissalwhen there has been three or more years of inactivity on a case. The rationale for the rule is to weed out inactive cases, and addresscomplacency in advancing civil actions. With respect to r 24.02 in particular, I note the following passage from DL et al v CP et al, 2019MBQB 42 (at para 32): . . .

The revised Rules change the focus to spotlight delay, which is often more defined and demonstrable than prejudice. A sharper,perhaps harsher, dawn is at hand. Particularly with Rule 24.02 now in force, with its very limited exceptions, counsel and parties willhave to be most vigilant to advance actions. Stagnant actions will be weeded out, and active claims finished swifter. Balancing for “akind of essential justice” will not save the day. [34] The word “must” in r 24.02(1) is imperative (see The

Interpretation Act, CCSM c I80 at

section 15). This Court, inSteinmann v Kotello, 2012 MBCA 30, accepted the following explanation given by Ruth Sullivan, Sullivan on the Construction ofStatutes, 5th ed (Markham: LexisNexis, 2008) at 74, about terms such as “shall” or “must” (at para 17): . . . When “shall” and “must” are used in legislation to impose an obligation or create a prohibition or requirement, they are alwaysimperative.

A person who “shall” or “must” do something has no discretion to decide whether or not to do it. . . . . . . [35] Consistent with this, Alberta jurisprudence regarding its long-delay rule, which also uses the word “must”, makes clearthat dismissal is mandatory if there has been no significant advance in an action for three or more years and none of the exceptions apply(see Ro-Dar at para 12; Ursa Ventures Ltd v Edmonton (City), 2016 ABCA 135 at para 10; Altex International Heat Exchanger Ltd vFoster Wheeler Limited, 2018 ABQB 620 at para 93; Jacobs v McElhanney Land Surveys Ltd, 2019 ABCA 220 at para 62, leave toappeal to SCC refused, 38939 (16 April 2020); and Alderson v Wawanesa Life Insurance Company, 2020 ABCA 243 at para 12(Alderson CA)). [36] Therefore, the motion judge did not err in concluding that he was required to grant the motion and dismiss the action ifthe requirements of r 24.02(1) were satisfied.

Which Three Years? [37] The plaintiff argues that the motion judge erred by not considering, for the purpose of determining whether there hadbeen a significant advance under r 24.02(1), the three-year period that immediately pre-dated the filing of the motion for dismissal fordelay.

The plaintiff contends that, by virtue of the defendants’ conduct, it was those three years that should have been considered. [38] At the appeal hearing, counsel for the plaintiff acknowledged that, in the context of r 24.02(1), the defendants had noobligation to attempt to move the matter along during the 33 months between the examinations for discovery and the provision of theanswers. I agree. However, counsel for the plaintiff maintained that, once the plaintiff had taken steps, the defendants had an obligationto move with dispatch to dismiss for delay.

He argued that where, as here, the plaintiff took steps after years of inactivity; the defendantsthen failed to move promptly to obtain a dismissal when entitled to do so (in October 2019); the plaintiff then made a significant advance

in December 2019; and the defendants again did not act for sometime, until March 2020 when they filed the motion for dismissal fordelay, the clock is “reset”, such that “the relevant three-year period becomes the three years prior to the filing of the notice of motion todismiss for delay.” Essentially, the plaintiff’s argument seems to be that the defendants, by their acquiescence, postponed the applicabletimeframe and thereby lost their right to a dismissal. [39] The plaintiff relies on comments in Trout Lake Store Inc v Canadian Imperial Bank of Commerce, 2003 ABCA 259 andFlock, as well as the decision of this Court in Pankhurst v Matz (1991), (MB CA), 79 DLR (4th) 721 (Man CA),about a defendant potentially losing his right to dismissal where he waits before taking initiative to rid himself of a lingering claim. [40] The plaintiff says that this argument is separate from the notions of agreement or acquiescence prescribed by rr24.02(1)(

a) and (e), upon which, as I have indicated, he expressly does not rely. [41] As I will explain, I am not persuaded by the plaintiff’s submission. The authorities upon which he relies do not assisthim. In addition, his position conflates a determination of which three years are to be considered with the concept of acquiescence on thepart of a defendant that operates to bar dismissal for delay. Rule 24.02(1)(

e) governs any argument, like the one advanced by theplaintiff, that the defendants’ acquiescence precludes them from having the action dismissed. That is so regardless of the plaintiff’sassertion that he places no reliance on that rule. Furthermore, a proper

interpretation of r 24.02(1), informed by a review of the Albertaauthorities, does not support the plaintiff’s position about which three years are to be considered. [42] With respect to the authorities relied upon by the plaintiff, Pankhurst, from 30 years ago, was not decided in the contextof a mandatory drop-dead rule like r 24.02.

The relevance of the role of a defendant, as articulated in Pankhurst, was to the balancing tobe done under the former r 24.01, which is not part of the analysis under r 24.02 (see Dubois v Manitoba Lotteries Corporation et al,2009 MBCA 108 at para 37). [43] Trout Lake (cited and considered in Flock) stands for the principle, with which I agree, that a plaintiff cannot resurrectan action by unilaterally taking a step outside the period of long delay prescribed by the court rule and before a motion to dismiss isfiled.

The Court also recognised a common law exception to the then Alberta long-delay rule in circumstances where a defendantacquiesces to steps taken by a plaintiff outside the period of delay prescribed by the rule.

Specifically, the Court noted that a defendantshould move to dismiss on a timely basis where a plaintiff takes a step following a period of long delay—because of the risk that adefendant, by his or her conduct, may be found to have acquiesced in the delay, such that a court could refuse a dismissal (see TroutLake at para 28). [44] However, when Trout Lake was decided in 2003, the Alberta long-delay rule did not include an exception comparableto the current r 4.33(2)(

b) or its predecessor r 4.33(1)(d) (very similar to Manitoba’s r 24.02(1)(e)), which incorporates much of theCourt’s commentary in Trout Lake about the role of acquiescence on the part of a moving party (see Krieter v Alberta, 2014 ABQB 349at paras 49-50; Ursa at paras 76-81; and CWC Well Services Corp v Option Industries Inc, 2019 ABCA 331 at paras 5-6). [45] With the enactment of r 24.02(1)(

e) in Manitoba, that rule prescribes the circumstances under which a moving party’sacquiescence precludes dismissal in a long-delay case.

The purpose of such an exception was explained in Flock, as being “to enshrinein the rules the ability of the Court to dismiss drop dead applications where defendants have actively participated in an action to an extentand degree that could lead a plaintiff to fairly assume that the defendant has waived the delay” (at para 17, point 10). [46] While the plaintiff says that he does not rely on r 24.02(1)(e), or contend that the motion judge erred by concluding thatit was inapplicable, he cannot pick and choose amongst rules. [47] The QB Rules apply to all civil proceedings (see r 1.02(1)).

Courts have also observed that the rules apply in all cases. While speaking about self-represented litigants, Mainella J (as he then was) made the following comment in Moss v Crane et al, 2013MBQB 135 (at para 55): There are not two sets of rules of court, one for parties with lawyers and one for self-represented litigants. The plaintiff does not have aright to pick and choose the rules he wishes to follow or make up new rules as he likes. See Ridout v.

Ridout, 2006 MBCA 59, 205 Man.R. (2d) 146 at para. 12. . . . [48] Similarly, in Pawis v Jones, 2019 ONSC 1123, Wilcox J opined, “[The applicant] was content to seek the court’sassistance when he brought his application. He is not now free to pick and choose which of the court’s rules to follow when it suits him”(at para 9). [49] In my view, when a court rule is being considered by a court, a litigant cannot dictate which subrules may or may not beproperly applicable to the facts.

Such an approach is wrong in principle and can lead to confusion. [50] Therefore, it cannot be argued that a defendant’s acquiescence precludes dismissal under r 24.02(1), apart from aconsideration of the applicability of r 24.02(1)(e). [51] I will later address the applicability of r 24.02(1)(

e) on the facts of this case. [52] Aside from the plaintiff’s argument about the impact of the conduct of the defendants, what three years are to beconsidered under r 24.02(1)? The rule contains no specific language to support the proposition that the three years must cover the periodimmediately prior to filing a motion for dismissal for delay. Rather, the rule is triggered (subject to the exceptions stated) once any“three or more years have passed without a significant advance in an action”. This approach is consistent with the Alberta authorities.

[ 53 ] In Flock , the Court referenced “any three-year period of inactivity” (at para 17, point 3), but also noted that the relevant period works backward from the date the application was filed (see para 17, point 8). Subsequent decisions have clarified the approach, indicating that, in the absence of a statement by a defendant designating a period of three years with specific start and end dates, the end date correlates to the filing of the motion.

As stated in Jacobs (at para 102 ): In the absence of an express statement in a r. 4.33(2) application designating a period in excess of three years with specific start and end dates, the end date will be the date the r. 4.33(2) application was filed and the start date will be three years earlier. [ 54 ] The Court, in Jacobs , also determined that the moving party is entitled to frame the application in the most advantageous manner possible, and may select a period longer than three years (see n 93; see also Ursa at para 151). [ 55 ] Therefore, when a court is counting time for the purpose of r 24.02(1), it is to be calculated forward from the last significant advance — and the counting stops, at the latest, on the date the motion for dismissal was filed.

The time between the motion being filed and the motion being heard does not count against a defendant (see Rahmani v 959630 Alberta Ltd , 2021 ABCA 110 at paras 16-17 ). [ 56 ] Applying this

interpretation to the present case, I conclude that the motion judge made no error in considering the period from September 30, 2016 (when the examination for discovery of the plaintiff was held) to September 30, 2019. It is clear from his reasons for decision (see para 6) that the defendants had selected for his consideration the period following September 30, 2019 — which they said extended to December 10, 2019 (when the plaintiff served a pre-trial brief). On appeal, the defendants rely on the three-year period following September 30, 2016.

Regardless, the motion judge correctly counted forward starting on September 30, 2016, when the last uncontroversial significant advance occurred; both September 30, 2019 and December 10, 2019 were three or more years later, and well before the motion for dismissal for delay was filed. [ 57 ] For the reasons outlined, the motion judge did not err in considering the three-year period following September 2016.

Transitional Considerations [ 58 ] With respect to transitional concerns that may affect which three years are to be considered, there are, as will become apparent, no transitional issues with respect to the application of r 24.02(1) in the present case.

Nonetheless, I will provide guidance in this area, as some recent Manitoba Court of Queen’s Bench decisions have, in transitional cases, considered three-year periods, the entirety of which pre-dated the coming into force of r 24.02 (see, e.g., Fehr et al v Manitoba Public Insurance Corporation et al , 2019 MBQB 64 ; and Nygard International Partnership v Canadian Broadcasting Corporation et al , 2020 MBQB 71 ). [ 59 ] It is clear that r 24.02(1) may apply to any three-year period, where the full three years post-date the coming into force of r 24.02 on January 1, 2018 (see Ro-Dar at para 6). [ 60 ] However, to what extent can the three-year period encompass delay that occurred prior to r 24.02 coming into force?

How is the transitional provision in r 24.02(4) to be interpreted? [ 61 ] In Dmytriw , this Court set out the principles to be applied in determining whether a court rule has retrospective effect (see paras 47-51, 53-54). The presumption under r 1.02(2) provides that a current court rule applies even to a proceeding that was commenced before the rule came into force, but a court may order that the proceeding be conducted under the rule that governed immediately before the rule coming into force. This reflects basic principles of statutory

interpretation that no one has a vested right in any procedure (see Ruth Sullivan, Sullivan on the Construction of Statutes , 6th ed (Markham: LexisNexis, 2014) at

section 25.107). A court may make an order that the former rule applies if there is a compelling reason, such as a legal limbo or serious or special prejudice that would result from the application of the current rule (see Dmytriw at para 53). [ 62 ] In my view, there is a compelling reason not to apply r 24.02(1) to three-year periods that fully elapsed prior to January 1, 2018.

Rule 24.02, unlike the current r 24.01, is a significant departure from the former r 24.01, by which the parties would have governed themselves prior to January 1, 2018. [ 63 ] In Dmytriw , this Court concluded that the current r 24.01(1) applied even where the motion for dismissal was filed before that rule came into force. That was because the current r 24.01(1) is substantially similar to the former r 24.01, with the focus being on prejudice caused by delay (see para 56), and the result would have been the same regardless of whether the current r 24.01(1) or the former r 24.01 was applied.

As well, on the facts in Dmytriw , this Court concluded that there was no compelling reason not to apply the current r 24.01(2) (see para 60), again concluding that the result would have been the same whether the current r 24.01(2) or the former r 24.01 was applied. [ 64 ] In Ali , this Court further explained the similarity between the former and current rr 24.01, in that the determination of whether a delay is “inordinate and inexcusable” under the current r 24.01(2) continues to be informed, in part, by the first four factors in Law Society (Manitoba) v Eadie , 1988 CarswellMan 157 at para 16 (CA) , which were applicable to the former r 24.01 (see para 41). [ 65 ] However, as I have indicated, r 24.02 represents a significant departure from the former r 24.01.

It provides for mandatory dismissal in the event of a delay of three years or more (where the exceptions do not apply), regardless of whether significant prejudice is established. In my view, a serious injustice would arise if parties were governed by r 24.02 with respect to three-year periods of delay that fully elapsed prior to January 1, 2018 — without being given an opportunity, with notice of the enactment of r 24.02, to make a significant advance in the action. [ 66 ] That being said, the transitional provision in r 24.02(4) makes clear that a party need not wait for three years after

January 1, 2018 to succeed on a motion for dismissal under r 24.02(1). In Nygard , the Court appropriately rejected an argument that the only three-year periods that could be considered were those which post-date January 1, 2018 in their entirety (see para 30). Not only does r 24.02(4) specifically contemplate the application of the rule to motions brought after January 1, 2019, the purpose of r 24.02 would not be furthered if a defendant, long involved in a case with a dilatory plaintiff, had to wait another three years to have the action dismissed. [ 67 ] Utilising the modern approach to statutory

interpretation and searching for the purpose for which r 24.02(4) was enacted, it was intended to provide for a transition that would not unfairly catch parties who had no opportunity to address the new rule, but does not require a defendant to wait a further three years after January 1, 2018 to have an action dismissed. Rule 24.02(4), by providing that r 24.02(1) can be relied upon only in a motion brought after January 1, 2019, allows parties one year after the coming into force of r 24.02 to make a significant advance in the action.

As a consequence, r 24.02(1) applies to any continuous three-year period of delay, some of which may have elapsed prior to January 1, 2018, provided that the one year between January 1, 2018 and January 1, 2019 is included in the three-year period. [ 68 ] In this case, the three-year delay found by the motion judge commenced in September 2016. Thus, while it included a period of time prior to r 24.02 coming into force, it also included the entire period between January 1, 2018 and January 1, 2019.

Therefore, as I have said, there are no transitional concerns here which affect the three-year period considered by the motion judge. Significant Advance/Functional Test/Answers to Undertakings [ 69 ] The parties adopt, as do I, the approach the Alberta Court of Appeal has taken in defining a “significant advance” in an action, for the purpose of application of the long-delay rule.

In Morrison v Galvanic Applied Sciences Inc , 2019 ABCA 207 , the Court confirmed the following definition that it had set out in Ro-Dar at para 20 (at para 35): A significant advance exists if the nonmoving party in the applicable timeframe has done something that increased by a measurable degree the likelihood that either the parties or the court would have sufficient information to rationally assess the merits of the parties’ positions and be in a better positon to either settle or adjudicate the action. Has the nonmoving party done something that “narrow(ed) the issues, complete(

d) the discovery of documents and information, or clarif(ied) the positions of the parties”? [footnotes omitted] [ 70 ] Similarly, the Alberta Court of Appeal has recently described a “significant advance” as one that constitutes “important or notable progress towards the resolution of an action” ( Jacobs at para 85 ; see also para 86). [ 71 ] In determining whether there has been a “significant advance”, Ro-Dar articulated the applicable functional test, citing Nash v Snow , 2014 ABQB 355 at para 30 (at para 21 ): . . . . . .

Put another way, the court must view the whole picture of what transpired in the three-year period, framed by the real issues in dispute, and viewed through a lens trained on a qualitative assessment.

This necessarily involves assessing various factors including, but not limited to, the nature, value and quality, genuineness, timing, and in certain circumstances, the outcome of what occurred. . . . [ 72 ] Applying the functional test, the matter must be examined as at the date the motion for dismissal for delay was filed, not when the motion is heard (see Trout Lake at para 33, point 1; and Nelson v Emsland , 2008 ABCA 387 at para 9 ). [ 73 ] The functional test has been adopted by the Manitoba Court of Queen’s Bench in Fehr and Nygard , as well as by the motion judge in this case.

The parties and I also endorse that test. [ 74 ] However, the plaintiff urges upon this Court what I would characterise as a modified functional test.

He argues that, although the functional test is generally applicable to a determination of whether the provision of answers to undertakings constitutes a significant advance, that analysis must start with the premise that it is a significant advance, requiring the moving party to then establish that the answers are perfunctory, non-responsive or not genuine (see Alderson v The Wawanesa Life Insurance Company , 2019 ABQB 96 at para 24 , point 1). [ 75 ] The plaintiff relies on the following comments in Ravvin Holdings Ltd v Ghitter , 2008 ABCA 208 (at para 24 ): We would go further and suggest that providing a response to an undertaking is usually a thing that materially advances the action.

An undertaking given at an examination for discovery is really an extension of the discovery process – given at a time when relevant

information requested during an examination is not immediately at hand. It is often as important to the advancement of the lawsuit as the examination for discovery itself, particularly where the existence of the information, or its importance, was not known prior to discovery. The significance of a response to an undertaking in trial preparation is confirmed by the requirement that all responses must be received before an action may be entered for trial.

No one would seriously deny that an examination for discovery is a thing that materially advances an action, and we find no reason to treat a response to an undertaking differently. Thus, even though it is in the power of the one party to respond to the undertaking, that does not change the nature of the response. It is, as a rule, a thing that materially advances the action. [ 76 ] The Court went on to state (at para 25): Having said this, we note that there will always be exceptions to the general rule.

A response to an undertaking may not advance the action when it is merely perfunctory and nothing hinges on the response. Nor should a response to an undertaking be considered a thing that materially advances an action where a party has deliberately dragged out the process of providing it to delay the lawsuit. For example, a party who provides his responses at a rate of one per year for the purpose of delay, should not be entitled to have each response considered a thing that materially advanced an action.

Both of these exceptions are consistent with this court’s decision in Morasch v Alberta , 2000 ABCA 24 , (2000), 250 A.R. 269 at para. 11 . [ 77 ] Although the Alberta authorities indicate that the provision of answers to undertakings will usually be a significant advance, that is not necessarily so; instead, “the quality of the step or thing must be analyzed” ( Le v 1055168 Alberta Ltd , 2013 ABQB 431 at para 22 ).

And, while Master Mason, in Alderson , identified a number of instances where the provision of answers to undertakings will not be a significant advance, such as where those answers are perfunctory, non-responsive or an incomplete answer is provided (see para 24), those were examples only, not specific requirements that had to be met to rebut a general rule. Ravvin , too, recognises that a response to an undertaking “ may not advance the action” (at para 25 (emphasis added); see also Alderson CA at para 16 ). [ 78 ] In the end, I do not accept the plaintiff’s position about the analysis required.

The functional test provides for no premise or starting point in the analysis; there is no presumption that the provision of answers to undertakings is a significant advance, which must then be rebutted.

To be clear, the functional test is a broad-based inquiry into whether the advance in an action “moves the litigation forward in a meaningful way considering the nature, value, importance and quality of the action”. “[T]he focus is on substance and effect rather than form” ( St Jean Estate v Edmonton (City) , 2014 ABQB 47 at paras 18-19 ). [ 79 ] Although the provision of answers to undertakings may (depending on the circumstances) constitute a significant advance, there is no authority which requires a court to preliminarily recognise it as such.

Rather, as restated in Ursa , it is the functional test that must be applied, on the facts of a particular case (at para 23): Rule 4.33 cases that have considered a particular advance in an action will be useful precedents, but they are not determinative. Each piece of litigation is unique and the content, value, and timing of the advance in the action said to “reset the clock” must be assessed within the context of that lawsuit.

This is the heart of the functional approach. [ 80 ] Therefore, the motion judge did not err in citing the functional test, without presuming that the provision of the answers constituted a significant advance in the action. [ 81 ] In oral submissions at the appeal hearing, counsel for the plaintiff also suggested that the conduct of the defendants was relevant to the determination of whether the provision of the answers was a significant advance, and that the motion judge erred by failing to take that conduct into account.

He argued that the defendants’ failure to follow up for further information after receipt of the answers or indicate that they were insufficient supported the position that the provision of same was a significant advance. [ 82 ] I agree that, in the application of the functional test, the conduct of a defendant, before or after a plaintiff has taken a step, can be relevant to a determination as to whether that step is a significant advance (see Jondreau v Maclean , 2006 ABQB 265 at para 14 ; and Flock at para 17 , point 7).

For example, the comments made by counsel for the defendants at the adjournment of the examination for discovery about the need for answers to the undertakings and matters taken under advisement were relevant. Furthermore, had counsel for the defendants indicated, upon receipt, that the answers were satisfactory, that too would be relevant. This does not mean, however, that r 24.02(1) requires a defendant to complain about the quality of answers to undertakings provided in order to establish that the provision of same does not constitute a significant advance.

Nor does the rule require a defendant to follow up and attempt to advance an action (see Charik Custom Homes Ltd v Sara Development Inc , 2014 ABQB 63 at para 33 ). While a defendant cannot intentionally obstruct, stall or delay an action, it need not move a plaintiff’s action along (see Flock at para 17 , point 4).

Application of the Functional Test [ 83 ] As outlined earlier, on the facts of this case, the motion judge found that the delivery of the answers “was, at best, a modest, not significant, advance of the action toward trial” (at para 15). [ 84 ] At the examination for discovery, the plaintiff had given a total of 11 undertakings (or matters taken under advisement). In July 2019, he answered eight of those by providing the name of a facility in Quebec that the plaintiff attended for treatment and also a report from that facility; a more legible copy of a document that had previously been produced; the name of a

private investigator and investigation firm; cellphone and landline phone records; contact information for a potential witness; a printout of costs incurred by Manitoba Health Services; and a Pharmacare printout.

However, importantly, two key requests remained outstanding — the response to the request to produce expert reports was “[t]o be provided” and the answer to the request to provide a damages assessment and breakdown was “[p]ending.” As noted by the motion judge, “The plaintiff has not provided any explanation or excuse for the delay in delivering answers to undertakings, or for his failure to take any other step to advance this action in some meaningful way to trial while those answers were being prepared” (at para 23). [ 85 ] Although the plaintiff contends that the motion judge erred by considering that the answers were provided close in time to the expiry of three years following the examinations for discovery, his reasons do not necessarily indicate that he took that into account.

Rather, he stated, as a fact, that that was the timing. [ 86 ] In addition, while the plaintiff says that counsel for the defendants was prepared to resume the plaintiff’s examination for discovery without the damages assessment, it was clearly open to the motion judge to conclude otherwise.

At the adjournment of the examination for discovery of the plaintiff, counsel for the defendants emphasised his request for a damages assessment and breakdown. [ 87 ] The fact that a damages assessment was omitted from the answers, together with there being no response to the request for expert reports to be relied upon, speak directly to the nature and quality of the step taken in answering undertakings. [ 88 ] Notwithstanding the answers, the defendants still required further examination of the plaintiff on material issues, specifically quantum of damages, which they could not meaningfully undertake without more information.

Further, by virtue of r 31.06(3), the defendants would be entitled to examine the plaintiff with respect to the opinion of an expert, as outlined in a report. Had the plaintiff’s examination for discovery been resumed without production of the damages assessment or any of the expert reports to be relied upon, a third round of examination of the plaintiff would have been necessary. [ 89 ] Just because the defendants did not complain about the answers or follow up for more information does not make the provision of same a significant advance in the action.

And just because that step was not characterised by the motion judge as perfunctory or non-responsive does not make it a significant advance. [ 90 ] When considered in the context of the litigation as a whole, the motion judge was entitled to conclude that the provision of the answers did not meaningfully advance the case. He did not make a palpable and overriding error in concluding that that step did not constitute a significant advance in the action.

The Exception in Rule 24.02(1)(e) [ 91 ] As I have explained, the plaintiff’s argument that the defendants were precluded, by their acquiescence, from having the action dismissed must be addressed in the context of r 24.02(1)(e). [ 92 ] In this case, after receipt of the answers, the defendants did nothing.

Following receipt of the other materials in December 2019, counsel for the defendants expressed surprise at the attempt to proceed with the matter, given the lengthy delay since examinations for discovery and, while agreeing to a pre-trial conference date, he also “expressly reserv[ed] [his] rights to bring on whatever interlocutory motions may be required.” He then filed the motion for dismissal. He made clear, with respect to any steps taken thereafter, that the motion was pending, and that it should be heard before the litigation was advanced.

In these circumstances, the motion judge understandably found that r 24.02(1)(

e) had no application. Conclusion [ 93 ] For the foregoing reasons, the motion judge did not err by concluding that the criteria of r 24.02(1) were met, such that he was required to grant the motion and dismiss the action. [ 94 ] Therefore, the appeal is dismissed with one set of costs to the defendants, both in this Court and the Court below. JA I agree: JA I agree: JA APPENDIX A MB, Court of Queen’s Bench Rules , MR 553/88 (former r 24.01): Motion 24.01(1) The court may on motion dismiss an action for delay.

Grounds 24.01(2) On hearing a motion under this rule, the court may consider, (

a) whether the plaintiff has unreasonably delayed the prosecution of the action; (

b) whether there is a reasonable justification for any delay; (

c) any prejudice to the defendant; and (

d) any other relevant factor. APPENDIX B AB, Rules of Court , AR 124/2010 (current rr 4.31, 4.33): Application to deal with delay 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. 4.31(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. Dismissal for long delay 4.33

(1) In this rule, (a) “applicant” means a party to an action who makes an application to dismiss the action for delay as set out in this rule; (b) “respondent” means a party who has filed a commencement document; (c) “suspension period” means, in subrules (5) to (9), a period that ends on (

i) a specific date, or (ii) the happening of a specific event. 4.33(2) If 3 or more years have passed without a significant advance in an action, the Court, on application, must dismiss the action as

against 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 a litigation 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 a purpose and to the extent that, in the opinion of the Court, warrants the action continuing. 4.33(3) If the Court refuses an application to dismiss an action for delay, the Court may make whatever procedural order it considers appropriate. 4.33(4) The period of time referred to in subrule (2) does not include the following, whichever ends earlier: (

a) the period of time between the service of a statement of claim on an applicant and the service of the applicant’s statement of defence; (

b) the period of one year after the date of service of a statement of claim on an applicant. 4.33(5) If a respondent and an applicant agree in writing to a suspension period, the period of time under subrule (2) does not include the suspension period agreed to. 4.33(6) A respondent, whether or not the respondent has sought agreement under subrule (5), may serve an applicant with a written proposal setting out a suspension period and requesting that the suspension period not be included in computing the period of time under subrule (2). 4.33(7) An applicant who receives a proposal referred to in subrule (6) must respond within 2 months, and within that time (

a) if the applicant agrees with the proposal, then the period of time under subrule (2) does not include the suspension period agreed to, or (

b) if the applicant disagrees with the proposal or does not respond to the proposal, then the respondent may apply for an order under subrule (9). 4.33(8) If a suspension period is agreed to under subrule (5) or (7)(a), the respondent must give all other parties to the action written notice setting forth what the suspension period is, when it was agreed to and by whom. 4.33(9) A respondent, whether or not the respondent has sought agreement under subrule (5) or served a proposal under subrule (6), may apply for an order setting out a suspension period that shall not be included in computing the period of time under subrule (2). 4.33( 10) Rule 13.5 ( Variation of time periods ) does not apply to this rule.

APPENDIX C AB, Rules of Court , AR 124/2010 (former r 4.33): Dismissal for long delay

CREST 4.33

(1) If 3 or more years has passed without a significant advance in an action, the Court, on application, must dismiss the action as against the applicant, unless (

a) the parties to the application expressly agreed to the delay, (

b) the action has been stayed or adjourned by order, an order has extended the time for advancing the action, or the delay is provided for in a litigation plan, (

c) the applicant did not provide a substantive response within 2 months after receiving a written proposal by the respondent that the action not be advanced until more than 3 years after the last significant advance in the action, or (

d) an application has been filed or 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. 4.33(2) If the Court refuses an application to dismiss an action for delay, the Court may still make whatever procedural order it considers appropriate. 4.33(3) The following periods of time must not be considered in computing periods of time under subrule (1): (

a) a period of time, not exceeding one year, between service of a statement of claim on an applicant and service of the applicant’s statement of defence; (

b) a period of time, not exceeding one year, between provision of a written proposal referred to in subrule (1)(

c) and provision of a substantive response referred to in that subrule. 4.33(4) Rule 13.5 does not apply to this rule. COURT OF APPEAL PROVINCE OF MANITOBA WINNIPEG R3C OP9 CORRIGENDUM October 6, 2021 TO WHOM IT MAY CONCERN: Re: Buhr v Buhr 2021 MBCA 63 Docket No. AI20-30-09493 Released: June 16, 2021

The attached decision replaces the previous decision which was released June 16, 2021. In para 82, in the second last sentence, the words “a plaintiff” have been replaced with “a defendant”. The sentence in question now reads as follows: Nor does the rule require a defendant to follow up and attempt to advance an action (see Charik Custom Homes Ltd v Sara Development Inc , 2014 ABQB 63 at para 33 ).