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Monday Morning Case Bites for September 27, 2021

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

Edited by Steven Graham

LR v Semenjuk, 2021 ABCA 318
Medical Malpractise | Causation

Kahlon v Khalon, 2021 ABQB 683
Answers to Undertakings | Rule 4.33

Casman Building Ltd. V Weir-Jones, 2021 ABQB 761
Inordinate Delay | Rule 4.31 | Prejudice

LR v Semenjuk, 2021 ABCA 318

The Plaintiffs alleged at trial that the Defendant physician breached the standard of care in regard to the treatment of the Plaintiff’s infant. The infant developed a buildup of fluid which caused enlargement of the ventricles of the brain. The trial judge found that Dr. Semenjuk breached the standard of care required in accurately measuring the infant’s head growth and failing to determine the reason behind the discrepancy in her measurements and measurements taken by her staff. Nonetheless, the trial judge determined that notwithstanding the breach of standard of care, there was no legal or factual causation of the injuries sustained by the infant because any cognitive impairment caused by the brain swelling would have been similar, no matter how early it was treated, given the swelling did not progress after the first time Dr. Semenjuk saw the infant.

On appeal, the Court of Appeal focused on whether any error had been made by the trial judge regarding causation. After outlining the expert evidence available to the trial judge, the Court of Appeal found no error in the trial judges’ preferring the opinion of the Defendants’ expert over that of the Plaintiffs, and noted that choosing which experts to prefer is precisely within the scope of a trial judge’s authority. The Court of Appeal saw no reason to interfere with the trial judge’s conclusion and dismissed the appeal.

Kahlon v Khalon, 2021 ABQB 683

The Plaintiffs appealed from a Master’s decision dismissing the action for delay pursuant to Rule 4.33. At issue in the appeal was whether the answers to undertakings provided by the Plaintiff were enough to advance the action.

The Chambers judge relied on the Court of Appeal’s summary of the relevant principles pertaining to a Rule 4.33 application as set out in Patil v Cenovus Energy Inc. (2020 ABCA 385): 

  • The rule must be applied within the context of the foundational rule (r 1.2) to resolve claims fairly and justly in a timely and cost-effective way.
  • Plaintiffs bear the responsibility of prosecuting their claims in a timely way: XS Technologies Inc v Veritas DGC Land Ltd2016 ABCA 165at para 7.
  • Defendants are obliged (pursuant to r 1.2) to not obstruct, stall or delay an action that the plaintiff is advancing: Janstar Homes Ltd v Elbow Valley West Ltd2016 ABCA 417at para 26.
  • A functional, as opposed to a formalistic, approach is appropriate to determine if a step constitutes a significant advance: Ursa Ventures Ltd v Edmonton (City),2016 ABCA 135 at para 19.
  • The functional approach to r 4.33 is context-sensitive: “[C]ases that have considered a particular advance in an action will be useful precedents, but they are not determinative”: Ursa Ventures at paras 19, 23.
  • A significant advance is one that moves the action forward in an essential way, having regard to the nature, quality, genuineness and timing of the advancing action: Ursa Ventures at para 19; Ro-Dar Contracting Ltd v Verbeek Sand & Gravel Inc.2016 ABCA 123at para 21.
  • Rule 4.33 functions like a limitations period. It only requires one significant advance within the three-year period, not “continuous significant advancement”. Rule 4.33 is not designed to determine what a “reasonably diligent litigant” would do over the course of the three-year period: Ursa Venturesat para 11.
  • Whether an agreement between counsel constitutes a significant advance is context-dependent. Rule 4.33 was not designed to encourage an “ambush” by one side after the parties had agreed to take a particular step: Turek v Oliver2014 ABCA 327at para 6.
  • Courts assessing whether an action is a significant advance under r 4.33 should focus on substance, not form. As an example, agreement to participate in a judicial dispute resolution process may not constitute a significant advance if it was merely an agreement to schedule a JDR, which was not carried out: Weaver v Cherniawsky2016 ABCA 152at paras 20-21.

The Chambers judge assessed each undertaking response to determine if it could be seen to have advanced the action within the relevant three year period. The first undertaking was a real estate contract, which the Court found had nothing to do with the allegations in the pleadings. The second undertaking merely confirmed that documents in the possession of the bank no longer existed. The third undertaking provided a copy of a cheque, which was relevant, but did nothing to advance the action, given that it provided no information that was not already available to the parties.

While the Court accepted the Respondent’s position that answering the undertakings was a necessary step, the critical inquiry is whether doing so significantly advanced the action. Having considered the answers to undertakings provided, the Chambers Judge determined that the action had not been significantly advanced by them, and dismissed the appeal.

Casman Building Ltd. V Weir-Jones, 2021 ABQB 761

The Defendants applied to strike the Plaintiff’s claim for delay, pursuant to Rule 4.31. The Master in Chambers focused on whether the Defendants had established significant prejudice to warrant dismissing the claim.

While Rule 4.31 does contain a presumption of significant prejudice if inordinate delay is made out, the Master indicated that the preferable approach is to directly address the question of prejudice:

[22]           This is only one approach to the question of significant prejudice. If delay is both inordinate and inexcusable an applicant enjoys the presumption of significant prejudice (r 4.31(2)), which can be rebutted. The other approach and the one that should be preferred, is to deal with the question of significant prejudice directly.

[23]           In Transamerica we find:

[43] The initial burden of proving prejudice is on the defendant who is applying to strike out the action. However, if the defendant can establish “inordinate and inexcusable” delay, then significant prejudice is presumed: R. 4.31(2). In that event, however, the presumption is still rebuttable: Kuziw at para. 50Ravvin Holdings Ltd v Ghitter2008 ABCA 208 at paras. 38-9, 44, 437 AR 66, 96 Alta LR (4th); Humphreys v Trebilcock at para. 155. It is still open to the plaintiff to show that, despite the presumption, there is insufficient prejudice to warrant striking out the action.

[24]           In Transamerica, the Court does not discuss the standard necessary to rebut the presumption. (And also see Kuziw at para 50).  Ravvin (CA), at paras 38, 39 and 44, considering old rule 244(4), suggests that raising a legitimate doubt is sufficient to rebut the presumption. The Court in Humphreys (at paras 148) concludes that the standard to rebut the presumption is the ‘balance of probabilities’. Some cases have gone even further, stating that the strength of the presumption is a function of the length of delay: Stabilized Water, per Mahoney J at para 22 citing Cooke v Calgary Civic Employees Benefit Society, 2003 AJ No. 1725 which, with respect, would make it a moving target.

[25]           If we operate on the basis that the presumption in 4.31(2) is rebuttable on a balance of probabilities, it is difficult to see that the two burdens are entirely equal. It will certainly be more difficult for a plaintiff to discharge the burden of disproving the presumption of significant prejudice when inordinate and inexcusable delay is proved, than it would be for a defendant to address and prove significant prejudice directly. An applicant can identify what is missing from their case, but a respondent would have to anticipate the entire defence, search for what might be missing, and then show how it could be cured. While this may be an appropriate punishment for laggard plaintiffs, the job of proving a negative is inherently more difficult to discharge than the burden imposed on an applicant under r 4.31(1)(a).

[26]           While I understand the logic of having only one standard of proof, it is difficult to say that the burdens are symmetrical and identical.

[27]           As noted, the burden of proving actual prejudice is on the applicant, Alderson (CA), at para 21 and Arbeau (at para 30). It goes without saying that it is the prejudice to the applicant that matters (eg Song v Fong at paras 23 – 41). The prejudice must also arise during the delay occasioned by the respondent/plaintiff (eg Ristorante Cosa Nostra, per Robertson M at paras 46 – 47, and Royal Bank v Levy).

[28]           This case is distinguishable from Arbeau to the extent that there is not just ‘some evidence’ of prejudice. In this case the parties have addressed it fully and directly.

[29]           Given the choice between direct proof of actual prejudice and a presumption of inferred prejudice, direct proof is always to be preferred. Otherwise, circumstantial evidence of significant prejudice would be given more probative value than direct evidence: Sopinka (5th ed) at para 4.12 citing Schiff, Evidence in the Litigation Process, 4th ed, v 2 p1669, (which refers to Fleming and poses this as a question).

 The Master further noted that as Rule 4.31 is discretionary, the Court can elect to dismiss or not dismiss even if prejudice is demonstrated or presumed.

On analysis of the prejudice claimed by each of the Defendants, the Master determined that notwithstanding the passage of time, witnesses remained available. The Master also rejected the argument that the Defendants were prejudiced by the fact that the property in question was destroyed in the Fort McMurray wildfire, concluding that those Defendants had opportunities to have their reports finalized prior to the wildfire.

Ultimately, the Master exercised his discretion not to dismiss the action.