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Monday Morning Case Bites for August 24, 2020

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.

Edited by Amanda Kostek & Steven Graham

Brownlee v Security National Insurance Company, 2020 ABPC 111
Delay Application | Rule 4.31 | Rule 4.33

Dide v GP Truck and Trailer Ltd, 2020 ABPC 133
Setting aside Noting in Default

Brownlee v Security National Insurance Company, 2020 ABPC 111

The Plaintiff sued his insurer under Section C of his motor vehicle policy.  Coverage was denied by the insurer on the basis that the damage complained of was a result of improper maintenance, and therefore was not direct or accidental.   The claim was filed in November, 2016.   The insurer later brought an application to dismiss the claim for delay on the basis of Rule 4.33 and 4.31. 

The Court dismissed the Rule 4.33 delay application, which covers delay spanning 3 years without a significant advance of the action, because the Insurer provided an appraiser’s opinion on causation in August, 2019. 

The Court, however, granted the application to dismiss the claim for inordinate delay under Rule 4.31, which effectively covers claims that have taken too long from start to finish, on the basis that the Plaintiff failed to move forward with the action on a timely basis without excuse.   The Court noted the slow pace with which the Plaintiff provided documents and requested the Defendant’s records, and concluded that the delay was inordinate: 

[25]           Mr. Brownlee’s insurance coverage action was filed in November, 2015; was served in November, 2016; and was defended in December, 2016.  It is a relatively straight-forward action which would require Mr. Brownlee to adduce evidence establishing, on a balance of probabilities, that the damage complained of to his vehicle was caused by an accident. 

[26]           Mr. Brownlee was asked to produce his documents in January and May, 2017.  He did not respond until 18 months later, in November, 2018.  Mr. Brownlee did not ask Security to produce its documents until February and then July, 2019, more than 3 ½ years after he commenced his action.  Security responded with its disclosure in August, 2019.  With the exception of Security’s appraiser’s opinion, none of the documents exchanged significantly advanced the action.  Nothing else has happened to move Mr. Brownlee’s action to resolution.  The action has not proceeded to a pre-trial conference, nor has it been set for trial.  Mr. Brownlee admits that he does not yet have an expert opinion addressing the cause of the damage to his vehicle.  

[27]           I find that Security has established delay, as it has demonstrated that Mr. Brownlee failed to advance his action to the point on the litigation spectrum that a litigant acting reasonably would have attained over this period of time. 

The Court categorized the Plaintiff’s explanations for the delay as legally irrelevant: 

[43]           It is not clear why Mr. Brownlee chose to include “legally irrelevant reasons” for failing to “forcefully” push “the pace of the litigation” in his opposing Affidavit.  While I have already found that the probative value of his legal assistant’s hearsay evidence is limited (if admissible at all), this evidence appears to disclose the “real” explanation for Mr. Brownlee’s failure to prosecute his action in a timely fashion.  Specifically, Mr. Brownlee expresses concerns about the cost of expert fees; concerns about his credibility being impugned; and concerns about having to retain counsel.  In my view, none of these are credible explanations for failing to prosecute an action in this Court.  While they may have been genuine concerns for Mr. Brownlee, they do not meet the test for excusing delay in moving an action forward.  Further, Mr. Brownlee’s (or his legal assistant’s) anecdotal “belief” as to this Court’s willingness to hear detailed trials for amounts claimed within this Court’s monetary jurisdiction has no probative value in providing a credible excuse for delay.  This evidence is irrelevant, elicits Mr. Brownlee’s “opinion”, and is inadmissible. 

[44]           Mr. Brownlee’s legal assistant goes on to attest to settlement, advising based on information and belief, that Security has been made aware that the action could be resolved for substantially less than the amount claimed, “a prospect that has been ignored” by Security.  Signalling to the opposing side that you are willing to compromise your claim for a lesser sum, in my view, is not a credible excuse for failing to move an action forward.  I find further that this hearsay evidence is irrelevant, and is inadmissible. 

[45]           I find that Mr. Brownlee has not offered any credible explanation for his inordinate delay in moving his action forward.  No credible reasons are provided by Mr. Brownlee for his failure to move forward with his action after Security filed its Dispute Note.  Mr. Brownlee was in a position to proceed promptly with his action against Security after the Dispute Note was filed, and he failed to do so.  If I am required to rely on Mr. Brownlee’s legal assistant’s hearsay evidence in opposition to Security’s Rule 4.31 application, I find that Mr. Brownlee has not discharged his onus on the civil standard of balance of probabilities to provide a credible explanation for the inordinate delay in this action.  I further find that Mr. Brownlee has not discharged his onus in excusing inordinate delay in this action on the basis of defence delay.  I find that there has been inexcusable delay in prosecuting this action. 

The claim was dismissed. 

Dide v GP Truck and Trailer Ltd, 2020 ABPC 133

This was an application to open up the Noting in Default of the Defendant on the basis that although an employee had signed for the registered mail serving the Civil Claim, that employee failed to bring it to the company’s attention.  The application was brought 4 months after the claim was served.  Although the Defendant’s office practices were less than diligent, the Court granted the application on the following basis: 

[3]               The Defendants office practices can hardly be called diligent.  Service was clearly affected as required.  I am satisfied that the Defendant acted with dispatch and diligence upon being rudely awakened to the plaintiff’s Judgment. 

[4]               There was a missed step in the Plaintiff’s procedure which could have led to an alert to the Defendant.  The Plaintiff was to serve the Notice of Assessment for February 10, 2020 upon the Defendant.  This simple step, if properly taken, could have given the defendant the notice they lacked to that point.  For that reason alone, I would be prepared to set aside Judgment. 

[5]               As for whether the Defendant has an arguable defence, I am satisfied that there are a number of live issues flowing from the Affidavit and Pleadings.  The Plaintiff here bought a used, serial numbered log hauling trailer for $35,000.00.  From this their initial claim is for over $90,000.00, prior to abandoning $40,000.00.  The Plaintiff would have to convince any trial Judge that this is not simply a case of caveat empter applied to a used piece of equipment.  Moreover, the claim for economic loss flowing from the lack of use is an additional leap on a sale of a used piece of equipment.