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Monday Morning Case Bites for June 10, 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

Jacobs v. McElhanney Land Surveys Ltd., 2019 ABCA 22
Court of Appeal | 3 Year Delay/ “Drop Dead” Application | Test for Significant Advance

McAllister v Calgary (City), 2019 ABCA 214
Court of Appeal | Occupiers’ Liability | Municipal Liability

Lynk v Co-Operators General Insurance Company, 2019 ABQB 417
Summary Judgment | Interpretation of Policy | Vicarious liability of Insurer for Broker

Beniwal v Kahlon, 2019 ABQB 411
Dismissal for Long Delay | Undertaking Responses

McKay v Eriksson, 2019 ABQB 408
Dismissal for inordinate Delay

A & M Auto Sales Inc v Feldman, 2019 ABPC 133
Provincial Court | Extension of Time for Service

Jacobs v. McElhanney Land Surveys Ltd., 2019 ABCA 22

This was a successful application to dismiss a claim for long delay. The Court of Appeal concluded that a sixty-six paragraph affidavit filed and served in support of a Summary Judgment application that was never heard did not significantly advance the Action.  The Court commented that a supporting Affidavit typically recounts facts already contained in the Statement of Claim, and the Affidavit is of minimal value until tested at a hearing:

[105]      A summary judgment application usually is based on allegations that are contained in a statement of claim and legal principles that are expressly or implicitly embedded in a statement of claim. They present nothing new.

[106]      A supporting affidavit generally documents a version of facts more or less reflective of factual allegations advanced in the statement of claim. It may provide some elaboration.

[107]      The fact that the plaintiff has devoted resources to filing an application for summary judgment and produces a product that identifies with more precision the important facts on which it relies is of minimal value until it is tested by a court hearing.

The Court distinguished this situation from one where a Summary Judgment application is dismissed, because both sides have a better understanding of the issues and differences in their positions:

[108]      A summary judgment application that is dismissed may be characterized as a significant advance factually and legally.

[109]      This is because both the moving and nonmoving parties have probably filed affidavits, cross-examined the deponents and filed briefs. Both sides have a better understanding of the facts-in-issue and the legal differences that divide them. A dismissed summary judgment application may advance the parties understanding of the facts that may be proven and how the law applies to the facts.

Ultimately the Court of Appeal concluded that the rule measures results, and not what could have occurred at a hearing:

[113]      We fundamentally disagree with the concept that the potential of an unheard application is a marker of the advancement of an action.


[115]      “What ifs” do not count in most walks of life. And they do not count here.

[116]      Rule 4.33(2) measures results, not what might have happened if something had been done. What is important is not a step’s potential, but what was done.[112]

[117]      Justice Graesser suggests that a dismissed summary judgment application “may still narrow the issues and focus the parties on the real (remaining) issues in dispute”.[113]

[118]      We do not disagree.[114] But this is not what happened here. Mr. Jacobs never pressed ahead to secure a hearing of his summary judgment application.

The Court of Appeal also considered whether a Notice to Admit, and response to the Notice to Admit, which said the Notice to Admit was “wholly inappropriate” advanced the Action.    The Court concluded that the Notice to Admit did not elicit a meaningful response and on that basis, it did not significantly advance the action:

[127]      A notice to admit that a responder claims is “irrelevant, improper or unnecessary” has no legal effect – other than a possible future costs consequence[120] – and cannot be characterized as a step that advances an action.[121]

[128]      If a notice to admit produces no response or a response that admits some of the facts set out in the notice to admit, it may or may not be characterized as an advancement in the action.

[129]      Suppose a notice to admit lists only facts that the defendant has already admitted in a statement of defence. A party that secures a second admission of facts cannot be said to have advanced its suit.[122]

[130]      Justice Graesser erred in concluding that “the sticks were moved forward to June 1, 2015 (the Notice to Admit date) or June 16, 2016 (the reply date). Serving the Notice to Admit on McElhanney advanced the action significantly, because McElhanney provided no meaningful response, and no response within the scope of Rule 6.37(3)”.[123]

Finally, the Court of Appeal directed that sending an unanswered email to opposing counsel requesting hearing dates was not a significant advance.

Other comments made in the decision are also instructive.   The Court of Appeal commented that Questioning may not advance the action if no new information is learned:

[93]           Sometimes questioning will not provide the parties with new information and cannot be a significant advance.[103]

Settlement discussions may advance an action if concessions are made:

[95]           Settlement discussions that produce concessions may or may not focus the dispute and bring the parties closer to resolution.

McAllister v Calgary (City), 2019 ABCA 214

This was a partially successful appeal of a trial decision finding the City of Calgary liable for an assault. The assault occurred on a pedestrian overpass connected to the C-Train system in Calgary in the early hours of New Year’s Day in 2007. The assault was described as follows:

[4]               The trial judge described the assault at para. 30.2:

2      As Kyle and Chelsea approached A.B., A.B. confronted Kyle and pushed him. Kyle kept walking and tried to ignore A.B. Then A.B. pushed Kyle again and took a swing at him at which time Kyle started fighting back. Another male, eighteen year old D.L., a friend of A.B., stepped in and pulled Kyle away from A.B. D.L. then began punching the side of Kyle’s head and Kyle ended up fighting both A.B. and D.L. During the fight, Kyle was knocked to the ground and he believes he lost consciousness. A.B. continued to punch and kick Kyle repeatedly in the head while he was on the ground.

Approximately six minutes elapsed from the point of the initial encounter to when the respondent fell to the ground. The trial judge found that another unidentified group of youths also became involved in the assault. A “melee of kicking” continued for about 15 minutes, with the entire assault on the respondent lasting nearly 20 minutes.

The City of Calgary had 337 video surveillance cameras monitored by two employees.  Two cameras were dedicated to the location in question.  Part of the assault was captured, but the images were unclear.  Operators did not notice the assault while it was happening.   12 Protective Services Officers were responsible for patrolling the entire C-Train system, but after 12:45 am only two Officers were left on duty.

The Court accepted that the City was not required to control access to the overpass:

[37]           Neither the duty of care nor the standard of care require the City to control access at each end of the overpass so that it can screen those who want to use it. The expense to the City of such precautions would be unreasonable. Likewise, the “expense” to pedestrians using the overpass that would arise from the delays at the security points would be unreasonable. Restricting access in that way would unreasonably interfere with the “amenity which local people had of passing through the grounds to the neighbouring streets”, and would undermine the very purpose of the pedestrian overpass: Keown v Coventry Healthcare NHS Trust, [2006] EWCA Civ 39 at para. 17, [2006] 1 WLR 953.

The Court also accepted that the City had little control over the activities on the overpass:

[52]           In the present appeal, the City had little “control” over much of what happened on the overpass on an hour-by-hour basis; the amount of “control” that the occupier reasonably has is a critical factor in the analysis. The very definition of “occupier” in s. 1(c)(ii) refers to “control over . . . the activities conducted on those premises and the persons allowed to enter those premises”. The statute does not intend to hold occupiers liable for matters that are not reasonably within their control. Dr. Sundberg, the City’s expert, described the assault as being “grievance based violence” that is difficult to deter, and reasonably concluded:

Considering the assault on Kyle McAllister constituted an emotionally triggered attack that by chance occurred on the pedestrian overpass that crosses above Macleod Trail SE, I believe it to be highly improbable that any design consideration – irrespective if the principles of CPTED were applied or not – would have deterred the offenders. (EKE A90)

The City had no control over A.B., and specifically over whether he would “lose it” when he saw the respondent with Chelsea.

As a result, the City was no liable for the assault, and the sole issue was whether the City failed to detect the assault, and whether it was negligent in how it responded to it.

The Court of Appeal affirmed that the City was entitled to consider the cost of mitigating risk:

[70]           The trial judge found the 337 video surveillance cameras associated with the C-Train system to be inadequate. The number of cameras dictated by the standard of care was never specified. It would, in any event, be unreasonable to suggest that a staff member had to be available to monitor every one of those cameras every minute. Further, it is desirable for the City to have Protective Services Officers on staff, but the standard of care does not require that there be Officers on every station, or within the proximity of any potential assault. The City was only required to “take such care as in all the circumstances of the case is reasonable”. A potential tortfeasor is entitled to consider the cost of mitigating risk when determining what preventative measures are reasonable: Latimer v A.E.C. LD., [1952] 2 QB 701 at p. 711 affm’d [1953] AC 643 at pp. 653, 659, 662.

[71]           A new trial might be one way of dealing with the absence of evidence on this key point. That is an undesirable solution. If one assumes that (i) there should have been 500 cameras on the C-Train system, (ii) that  the Calgary Transit staff should have been able to monitor each camera at least every minute (as the trial judge assumed), and (iii) each meaningful viewing of a monitor would require 20 seconds, that would require one staff member for every 3 cameras. Requiring the City to have 167 staff members monitoring 500 security cameras on the C-Train system far exceeds any reasonable standard of care. Even an average monitor review time of 20 seconds every five minutes, which would assume 33 staff members, would set a high standard. Obviously, the chances of observing events that lasted fewer than five minutes would be reduced proportionally. Since the assault in this case lasted 20 minutes, it is probable that it would have been observed by the monitoring staff under this standard.

Once the standard for detecting the assault was established, it was necessary to determine the standard for responding to it.  In this case, experts did not comment on an appropriate response time.  However, the Court of Appeal directed that a response time of 5-10 minutes was reasonable:

[74]           On this record, the evidence was that the Protective Services Officers travelled between the C-Train stations on the trains. The stations were about four to six minutes apart. In addition, the Calgary City Police were available to respond to serious assaults. Putting in a call for help within five minutes would not guarantee that help would arrive in five minutes, because the Protective Services Officers might be involved with other incidents. Requiring a five to ten minute response time to any observed incident would be reasonable, having regard to all the circumstances.

[75]           To summarize, the respondent failed to introduce expert evidence on the standard of care respecting the detection of events on the C-Train system, or the response time. The trial judge’s finding that the assault should have been observed within the first minute sets too high a standard of care, and is unreasonable. Drawing inferences from the record, there would be a reasonable probability that the assault on the respondent should have been detected within five minutes if adequate monitoring had been in place. Once the call for assistance was made, a response could reasonably have been expected in a further five to ten minutes.

As a result, the City was liable for the incremental injury to the Plaintiff after the assault had been in progress for 10 minutes:

[80]           It is clear from the record that there are no reasonable steps that the City could have taken to prevent the assault. The overpass was legitimately open 24 hours a day. There was no duty on the City to monitor access to it, or screen pedestrians who wanted to use it. A.B. was apparently on the overpass for lawful reasons, and there was no reason for any security guard to question his presence or tell him to leave. His meeting with the respondent was coincidental; A.B. was not there as part of a plan to ambush pedestrians. The assault happened suddenly because the immature, impulsive and intoxicated A.B. “lost it”. There is no indication that if there had been more lights, security cameras, or security patrols that A.B. would not have “lost it”. The City did not breach whatever duty of care it had to take reasonable steps to ensure a reasonable level of safety on the pedestrian overpass.

[81]           The City was, however, in breach of its duty for failure to have in place reasonable systems for detecting and responding to the assault on the respondent. As such, the City is liable for the incremental damages suffered by the respondent, after the reasonable response time of ten minutes.

Lynk v Co-Operators General Insurance Company, 2019 ABQB 417

This was an unsuccessful application for summary dismissal. The Plaintiff insureds purchased their homeowners policy from a broker, DHI. They disclosed that a shop on the property would be used by their numbered company. The Policy contained the following exclusion:

We do not insure that part of buildings or structures used in any way for business or farm purposes, unless permission for the business or farm use has been given by us.

The application for insurance stated:

Applicant is a truck driver who is a leases owner/operator of a couple of trucks with a big trucking company. He does not have a CGL he is under their policy (being piggy-backed). The client is buying a house with this shop on the property but he will be keeping his trucks in it and also working on them so it can not be insured under a habitational policy. He did say that he would let friends work on their trucks in the shop as well.

The individual insured’s evidence was that he understood the policy would cover the shop and business, which he disclosed. He denied seeing the application.

The Court dismissed the application for Summary Judgment on the following basis:

[22] I agree that there are triable issues relating to Co-Operators’ potential vicarious liability for negligence or breach of contract DHI. I do not agree that these issues can be easily distinguished from Co-Operators’ potential liability in contract, as principal for the actions of its agent. While the Plaintiffs have not demonstrated that Co-Operators itself provided permission for business use, there are triable issues regarding DHI’s actual or apparent authority to provide this permission on behalf of Co-Operators.

[23] DHI had actual authority to sell insurance products on behalf of Co-Operators, and may have had authority to provide the Lynks with a policy that covered the Property inclusive of the Shop. As the Plaintiffs point out, information received by DHI concerning the business use of the Shop is arguably information received by Co-Operators. While Co-Operators alleges that DHI was not authorized to “waive” the Business Exclusion, that assertion is not supported by evidence, and does not address DHI’s apparent authority as agent.

Beniwal v Kahlon, 2019 ABQB 411

This was an unsuccessful application for dismissal for long delay. The issue was whether an undertaking response significantly advanced the action. This matter involved a personal injury action arising out of an assault. The records provided were CRA tax summaries from 2010 to 2017. In addition, Plaintiff counsel provided confirmation that no further out of pocket expenses would be sought. The Court concluded that the provision of those records significantly advanced the action, and dismissed the application. However, information was provided well after it should have been and could be described as modest at best. The Court declined to award the Plaintiff costs on the following basis:

[31] In my view, although information was provided long after it should have been, and the information might be described as modest, I conclude that these answers to the undertakings, given at the 11th hour, significantly advanced the claim for the purposes of rule 4.33.

[32] Although that is my conclusion, I echo the sentiment of Peter Martin, J. in Ursa Ventures Ltd v Edmonton (City), 2016 ABCA 135 (CanLII) at paragraph 41:

Still, I remain concerned that such an infantile step should be allowed to reset the clock for another three years of inactivity. That would neutralize the important objective of Rule 4.33(1). The idea is that we usher these malingering files to trial or put them out of their misery. Having found as he did, the chambers judge should have imposed a firm litigation schedule as contemplated by Rule 4.33(2).

[33] Accordingly, I reserve jurisdiction to impose a firm litigation schedule to see that this matter proceeds to trial as quickly as reasonably possible in the circumstances.

[34] In light of my concern about the progress of this claim, and what may be described as a “skin of our teeth” success, I decline to award costs in favour of the plaintiff, despite the success on the application. Of course, if there are special circumstances of which I am not aware that are related costs, I am willing to hear from counsel to make a different ruling on costs if necessary. If so, counsel may make arrangements with the masters’ chambers clerk to address costs.

McKay v Eriksson, 2019 ABQB 408

This was a successful application for dismissal for inordinate delay. The Court noted that a delay of 18 years between an alleged assault and Trial is highly prejudicial:

[18] It is highly prejudicial to the defendants to have their liability determined following a trail (sic) focussing on the above noted incident when the trial will be held 18 years after the relevant events.

The Court also commented on inordinate delay applications generally, and noted that while a Defendant may be unenthusiastic in advancing the action, it remains the Plaintiff’s obligation to move the matter forward:

[25] In a Rule 4.31 situation, often there has been 10 to 15 years of sporadic activity in an action, with activity taking place every year or two, yet somehow the action has not been set down for trial. The defendant then moves for dismissal under Rule 4.31.

[26] I am concerned that some of the wording in decided cases, if taken out of context, distorts the meaning and purpose of Rule 4.31, which is to compel plaintiffs to keep actions moving.

[27] If a defendant applies at year 15 of litigation under Rule 4.31, can you say to the defendant “you could have applied at year 13 but instead you participated in an application dealing with undertakings, therefore you have caused delay and/or acquiesced in delay so your application to dismiss under Rule 4.31 must fail”? If you take this approach then few applications to dismiss for delay under Rule 4.31 will ever succeed, and actions will drag on without end.

[28] Defendants often drag their heels. Their participation may be slow, unenthusiastic and provided begrudgingly. At some point the plaintiff must forge ahead and press on to trial by seeking the assistance of the court.

[29] As stated in 330626 Alberta Ltd at para 89:

[the plaintiff] 330626 says that nearly half the period of delay is attributable to the time it took the defendants to initiate third party claims and produce Affidavits of Records. As indicated above, it did take approximately four years and three months to close pleadings, and six years and ten months from the filing of the Statement of Claim to the final Affidavit of Records. However, the plaintiff bears the ultimate responsibility for advancing the claim (XS Technologies Inc v Veritas DGC Land Ltd, 2016 ABCA 165 (CanLII) (Alta. C.A.) at para 7; see also Charik Custom Homes Ltd v Sara Development Inc, 2014 ABQB 63 (CanLII) (Alta. Q.B.) at paras 32-33). It appears that no action was taken by 330626 to expedite these steps. Obvious actions that 330626 could have taken include applying for case conference (r 4.10), requesting a procedural order (r 4.11), or requesting case management (rr 4.12-4.14). (emphasis added)

[30] However, while the defendant is not ultimately responsible for advancing the claim, what the defendant cannot do is engage in “unwarranted obstructive behaviour”. See Humphries at para 26.

[31] The only situation here where one might saddle the CPS defendants with unwarranted obstructive behaviour in this case is a 2 or 3 month delay when the defendants agreed to pre-trial mediation, when it was mandatory, in December of 2012 or January of 2013, and then backed out of that agreement in February of 2013 when the Court suspended mandatory pre-trial mediations generally. This minor obstructive behaviour is not sufficient to cause me to exercise my discretion not to dismiss for delay pursuant to this sixth factor.

A & M Auto Sales Inc v Feldman, 2019 ABPC 133

This was an unsuccessful application to extend the time to serve a Civil Claim. The Plaintiff applied for a second extension of time to serve a Civil Claim after the time for doing so had expired.  The application was dismissed on the following basis:

[10]           By Mr. Angeles’ own submissions of May 13, 2019 the Civil Claim was not served until after March 1, 2019. By this date, time for extended service pursuant to the order of Assistant Chief Judge Sharek had expired. The Civil Claim had expired prior to the date it was served substitutionally on the Defendant.  Where the claim was not served on the Defendant within the one year or within the extended time for service, namely February 23, 2019, no further proceedings may be taken in this action. The acknowledgement of the Defendant of service of the Civil Claim after the time for service had expired is irrelevant as Civil Claim was no longer valid. Rule 3.27 (1)(a)(i) has no application in the current circumstances.

[11]           As for Mr. Angeles’ submissions that the Provincial Court should exercise its discretion to apply the provisions of Rule 3.27 of the Rules of Court, there can be no discretion exercised to apply the Rules of Court when the procedure is set out under the Provincial Court Act and its Regulations. The discretion to apply the Rules of Court in Provincial Court matters only applies if the Provincial Court Act and its Regulations do not provide for a specific practice or procedure. Section 8(2) clearly stipulates when a Judge of the Provincial Court has jurisdiction to exercise his discretion to apply the Rules of Court. The section reads:

“8(2)   Where this act or the regulations do not provide for specific practice or procedure of the court that is necessary to ensure an expeditious and inexpensive resolution of the matter before the court, the court may apply the Alberta Rules of Court, and modify the Alberta Rules of Court as needed.”

[12]           Having reviewed the circumstances of the matter before the Court and upon it appearing that the Provincial Court Act and the Provincial Court Civil Procedure Regulation clearly govern any extension of time for service of the Civil Claim, and in keeping with the purposes of the Provincial Court to ensure expeditious and inexpensive resolution of matters before it, the application of the Plaintiff to retroactively extend the time for service is hereby dismissed