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Monday Morning Case Bites for December 9, 2019

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

Edited by Amanda Kostek & Christie Dewar

Scheerschmidt v Chrapko-Deib, 2019 ABQB 928
Long Delay | Application for Advice and Direction

This was an application for long delay and inordinate delay. The long delay application was not successful, however, the inordinate delay application was. There was a delay of just under three years between Questioning and an Application for dismissal of the claim, and a cross application for advice and direction. The Court directed that an application for advice and direction is not a thing that significantly advances an action:

[30]           In my view, the plaintiffs’ application for advice and directions does not constitute a significant advance of the action as is required to avoid striking for long delay under rule 4.33. I see the plaintiffs’ application for advice and direction to be of the same nature or quality as the pretrial conference considered in St. Jean Estate v. Edmonton (City), 2014 ABQB 47 (CanLII) and the notice of written questioning considered in XS Technologies Inc v Veritas DGC Land Ltd, 2016 ABCA 165 (CanLII). In both cases, the court employed a functional analysis as to whether the step in question brought about a significant advance in the action and determined that it did not. They were incomplete steps. Adopting a phrase from the decision in the St. Jean case, the plaintiffs’ application for advice and directions in this case, just a few days before the three year period was about to expire, was a “hollow exercise”. In fact, the application for advice and directions became moot when June Scheerschmidt filed her affidavit (on October 28, 2019) stating that Louis Flamant could be questioned at the Hardisty Care Center.