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Successful Master’s Special Chambers Application to Strike a Claim For Want of Prosecution

Debra Woodske

Debra Woodske

In Berlinic v Peace Hills General Insurance Company, 2016 ABQB 104, Debra Woodske of CBM Lawyers successfully argued a Master’s Special Chambers application to strike a claim for want of prosecution. The claim was advanced against the Insurer, the Broker and the Independent Adjusters retained to adjust a fire loss to the insured’s home. Debra represented the interests of the Broker. In this case, the Insurer paid the policy limits, but the parties were sued on allegations of underinsurance. The claim laid dormant for years until the Plaintiffs brought an application to be heard the day before the drop dead date to compel the Defendants to answer outstanding undertakings. The Plaintiffs also served a supplemental Affidavit of Records listing documents previously produced. The parties agreed to freeze the clock as of that date as Defence counsel were unavailable on the date set unilaterally by Plaintiffs’ Counsel. The Defendants filed their applications to strike in the normal course. The issue for the Court was whether the 11th hour application would have materially advanced the action had it been heard when originally scheduled. If not, the Defendants’ application to strike would be considered. The Court concluded even if the application to compel undertakings had been heard, the broker would not have been required to produce the requested records, a more fulsome response from the Independent adjuster would not have changed anything and the answer to the Insurer’s outstanding undertaking would have been a mere formality. In respect of the service of the supplemental Affidavit of Records, the Court held “simply listing additional documents already provided is usually (as here) just housekeeping and not a significant advance”. As a result, the Court dismissed the action for long delay stating: “This case illustrates the difficulty of trying unilaterally to revive a long-dormant action. It was a valiant attempt. But if the application to compel had gone ahead in November of 2014, the result would not have significantly advanced the action.”