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Monday Morning Case Bites for September 14, 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

Lapp v Jag Grewal Holdings Ltd. 2020 ABQB 524
Delay | Rule 4.31 | Rule 4.33

The Defendants applied to strike the Plaintiffs’ claim for damages arising out of a September 2, 2012 slip and fall, for long delay, under Rules 4.31 and 4.33.

The Plaintiffs argued that certain correspondence from the Defendants’ adjuster constituted a significant advance:

[4]               The Plaintiffs assert that steps taken in May, November and December of 2016 constitute a significant advance. Those steps are described in the Affidavit of the Plaintiff Robyn Valpy Lapp at paragraphs 9-15.

[5]               Ms. Lapp’s Affidavit states that in May the Defendants’ adjuster (Ms. Wright) asked the Plaintiffs’ former counsel (Mr. Romanchuk) for further documentation and to set up a conference call “…so she could ask me a number of questions regarding the incident and my injuries.”

[6]               Mr. Romanchuk provided ten pages of hospital records on May 10, 2016.

[7]               With respect to the conference call, Ms. Lapp states, at paragraphs 11 and 12:

11 . On May 31, 2016 I was involved in a conference call involving my previous lawyer Mr. Romanchuk, as well as Erin Wright for Claimspro. She spent an extensive amount of time asking me questions regarding the incident, my injuries and how they affected me and any previous injuries. More specifically she asked me about all of the out-of-pocket expenses that I incurred as a result of my injuries, how it affected my work, when my work had to be discontinued because of my injuries and how much I was making at my job. She went into detail about the nature of the headaches that I was suffering from, how my memory was affected, who I talked to regarding the incident, how I was removed from the premises and taken to the hospital by employees of the Defendants, what the conditions were like, where it took place, what happened when I returned to the hotel after the incident, questions about how the injuries had affected me and would continue to affect me as a result of the brain injury that I suffered in the incident, where I had sought treatment, and how my injuries had progressed.

12. There was an extensive amount of questioning and information provided by me during this phone call.

The Defendants countered on the basis that the extent of the new production was minimal, and that correspondence in a phone call while not under oath should not be considered an advance:

[9]               With respect to this evidence from the Plaintiffs, the Claims Representative for the Defendants states in her Affidavit:

(a)   of the documents produced on May 10, only three of the documents were new;

(b)   the conversation among Ms. Wright, Ms. Lapp and Mr. Romanchuk only lasted 34 minutes and Ms. Wrights’ Adjuster’s Notes only stated:

“conference call with lawyer and claimant and went over incident, medical issues last 4 years, employment and work history etc handwritten notes taken during the call”.

(c)   Ms. Wright’s handwritten notes could not be located;

(d)   The documents produced by Mr. Romanchuk on November 8, 2016 were duplicate records to those produced on January 20, 2016.

[10]           Counsel for the Defendants states that because only three pages were produced on May 10, that such production could not be a significant advance. However, he could not specifically identify those pages or establish how it must be that those pages were not significant.

[11]           Counsel for the Defendants also states that the conference call of May 31 could not have been a significant advance because Ms. Lapp was not under oath—she could have said anything and consequently it may not be truthful.

The Court concluded that the Plaintiffs had significantly advanced the action, but was careful to note that not every exchange of information between parties could be considered as a significant advance:

[14]           In my view, the Plaintiffs have established that there was a significant advance of the action in the three year period prior to January 31, 2019. Cumulatively, what occurred between May and December of 2016 was a significant advance. But more particularly, in my view the conference call of 34 minutes is a significant advance. It seems that the adjuster was able to question Ms. Lapp quite extensively. There is no evidence of any limitation in that questioning. The Defendants are unable to provide evidence to counter Ms. Lapp’s statement that: “There was an extensive amount of questioning and information provided by me during this phone call.”

[15]           It does not lie in the mouths of the Defendants to complain that the questioning by their adjuster and the information obtained by her were not under oath. That adjuster is the one that requested this conference call and chose this method to obtain information from Ms. Lapp.

[16]           In coming to this conclusion, I am adopting and following a functional approach. It seems to me that the Plaintiff providing extensive information on the issues of liability and damages does functionally advance the action in a material way. I am sure that the adjuster, Ms. Wright, pursued this course of action so that she could advance this action: either by using the information to form the basis for a settlement; or alternatively, to narrow issues and form the basis for a defense to the claim. Likewise, I am sure that Mr. Romanchuk allowed this procedure of questioning of his client for the very same reason: either it would ground the basis for the parties to pursue settlement; or alternatively to pursue the litigation.

[17]           I find that the comment of Master Farrington in Paquin v Whirlpool Canada LP, 2016 ABQB 147 applicable (at paragraph 23): “Indeed, if the informal posing of questions was not designed to be a productive exercise, it is curious why the defendants were even asking the questions they posed”.

[18]           I do not want my comments to be taken that any exchange of information between parties may be considered as a significant advance. Rather, my conclusion on this point may be unique to this case, where the questioning of Ms. Lapp and the information that she provided were extensive, on the issues relative to liability and damages.

The Court also found that the Defendants had not met the requisite criteria to dismiss an application under Rule 4.31, but directed the parties to provide a litigation plan within 30 days of the order, noting that the slip and fall occurred over 8 years ago.