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Monday Morning Case Bites for September 16, 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

Wythe v Grande Prairie Regional Agricultural and Exhibition Society, 2019 ABQB 689
Bullock and Sanderson Orders | Defendant’s successful Summary Dismissal Application | No final determination of liability

CWC Well Services Corp v Option Industries Inc, 2019 ABCA 331
Drop Dead Application | Litigation Plan after 3 year Delay

Wythe v Grande Prairie Regional Agricultural and Exhibition Society, 2019 ABQB 689

This was a successful application for Bullock and Sanderson orders. The Defendant County was successful in a Summary Dismissal Application, which both the Plaintiff and Co-Defendant Society opposed. The Plaintiff then brought an Application to have the Co-Defendant pay costs that the Plaintiff would otherwise have to pay the County on the basis that the Plaintiff had no money as a result of his accident related injuries. As a result, the issue was whether a Bullock or Sanderson order is available after one of two Defendants exited the action after a Summary Dismissal Application. The Court described the difference between the two as follows:

[4]               Bullock and Sanderson orders are available in Canada. A Bullock order permits an unsuccessful party to claim an indemnity for costs from another unsuccessful party. A Sanderson order permits a direction that the indemnifying party under a Bullock order pay the costs of the other unsuccessful party to the successful party, directly.

The Court affirmed the following three part test set out in UBG Builders Inc.:

[6]               Yamauchi J in UBG Builders Inc. (at para 7), citing authority, provides a recent update of the application of these two cost principles:

[7]        Courts in Alberta have made Bullock orders and Sanderson orders. The test to determine whether a court should grant such an order was articulated by Perras J in Allen (Next friend of) v University Hospitals Board, 2000 ABQB 965 (CanLII) at para 6, 276 AR 345, where he said the following:

The test is this:

  1. was it reasonable for [the Plaintiff] to join the successful defendants given the circumstances;
  2. is there any good reason to deprive the successful defendants of costs; and
  3. were the unsuccessful defendants vis a vis the successful defendants wholly responsible for the action.

The Co-Defendant argued that the third part of the test was not met because the action was not over, it had a strong defence, and there was a strong argument for contributory negligence.

The Court concluded that the test does not require the unsuccessful Defendant to be wholly responsible, and ordered that costs be paid by the Co-Defendant on the following basis:

[10]           The Society’s excavation was responsible for the action. I acknowledge that whether there is an apportionment of liability at the end of the day may be an open question. But the test does not require that the unsuccessful Defendant be wholly responsible for the accident.

[11]           The Court has a wide discretion with respect to costs. The acts of the Society and the impecuniosity of the Plaintiff all support having the Society pay the costs the Plaintiff would otherwise owe to the County. I acknowledge that there may be a defense, or an apportionment at the end of the day but there will also be a final cost determination at which point the County’s costs paid to the Society might be revisited by the trial Judge.

CWC Well Services Corp v Option Industries Inc, 2019 ABCA 331

This was a Court of Appeal decision affirming the Master and Justice’s decisions to decline to strike a claim for failing to advance the action in three years. The Court of Appeal accepted that there was a period of three years of inactivity. However, the parties entered into a Litigation Plan after the three year delay. As a result, the Court of Appeal directed that the Master was entitled to conclude that the parties participated in the litigation after the three year drop dead period:

[9]                Here the parties agreed to a detailed litigation plan despite the three year period of delay, and filed it with the court. Both parties had to re-assemble the relevant documents, which prevented the first round of questioning from proceeding as scheduled. It appeared that an affidavit of records had been served, but since it could not be located by either counsel, a second one was constructed from the documents. The second round of questioning did not proceed as scheduled because the appellants’ counsel withdrew. New counsel then brought this application to dismiss for delay. The Master and the chambers judge were entitled to conclude that, considered functionally and without attempting to isolate what constitutes a “proceeding” in the abstract, the consent to the litigation plan, and the initial attempts to comply with it, triggered the exception in R. 4.33(2)(b). The appellants could not in fairness disown their signatures on the litigation plan, and argue there had been a delay of three years.

[10]            This is not a case where there were only good faith, although unsuccessful settlement discussions, which may well not “warrant the action continuing” despite the delay: Nash v Snow, 2014 ABQB 355 (CanLII) at para. 46-47, 590 AR 198. It is also not a case of the plaintiff unilaterally trying to foist litigation activity on a passive defendant: Slovak v Canada (Attorney General), 2017 ABQB 761 (CanLII) at paras. 10, 38, 21 CPC (8th) 236. It was not an “. . . attempt to advance the action without the consent or acquiescence of Trout Lake”: Trout Lake Store at para. 6.

The Court of Appeal also concluded that the Master’s decision was entitled to deference:

[11]            Whether “in the opinion of the Court” a continuation of the action is warranted involves an element of discretion. Appellate intervention is not appropriate absent an error of principle or an unreasonable exercise of the discretion. The decisions of the Master and the chambers judge are justified on this record.

[12]            The appellants argued in the alternative that there was prejudice resulting from delay, requiring dismissal of the action under R. 4.31. Both the Master and the chambers judge found inordinate and inexcusable delay, trigging the presumption of significant prejudice in R. 4.31(2). They both, however, found that there was no actual significant prejudice, as the action is largely document based. This is a finding of fact available on this record, which does also not justify appellate interference.