Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.
Edited by Steven Graham
National Home Warranty Group Inc. V Burton, 2022 ABQB 123
Rule 4.33 | Undertakings | Delay
Dueling v Shell Canada, 2022 ABQB 125
Slip and Fall | Hazard | Summary Dismissal
National Home Warranty Group Inc. V Burton, 2022 ABQB 123
The Plaintiff Appellant appealed the decision of the Master dismissing the action for delay, pursuant to Rule 4.33. At issue in the appeal was whether the Respondent’s providing undertaking responses to their counsel, and counsel not providing those responses to counsel for the Appellant, could be considered a substantial advance of the action. The Appellant argued that it was, and in the alternative, counsel for the Respondent breached foundational rule 1.2 by engaging in tactics meant to obstruct or delay the litigation, such that it would be unfair to dismiss the action.
Despite the fact that counsel for the Appellant requested the Respondents’ undertakings on several occasions, no explanation was given by the Appellant as to why it did not make use of the remedies available to it to compel production of the Respondent’s undertaking responses. While the Justice did find the lack of response by the Respondent’s counsel to be inconsistent with and in breach of Rule 1.2 and “not to be commended”, he found that they were not precluded from relying on Rule 4.33 if the criteria of that Rule are met.
When considering whether the three year period of delay was satisfied, the Justice determined that a settlement offer by the Appellant was insufficient to avance the action. Further, the fact that some of the Respondents provided answers to their counsel was not found to advance the action either. The Court maintained the functional analysis applies to information in this context:
[45] The question of whether information collected by one party that is not shared with the opposing party constitutes a material advance of an action issue is addressed in Huynh v Rosman, 2013 ABQB 218. The Court confirmed it must undertake a functional analysis and determine if the collection of information is a thing that moved the litigation closer to trial in a meaningful way.
[46] However, the Court concluded at para 38 that in most cases where information gathering by one party has been held to materially advance the action, the information was provided to the opposing party:
The other party’s knowledge and/or receipt of the information is, in my view, a very important consideration because the advancement of an action to trial necessarily requires the involvement of both parties. Litigation is an interactive process between opposing parties, each of whom are required to both initiate steps and respond to actions taken by the opposing party. Moreover, litigation is about the exchange of information and positions between and among parties on various factual and legal issues relevant to the action. One party cannot rely solely on its own efforts to allege that they advanced the action when the defendant has no knowledge such work was being done. It is not until the information is actually shared with the other side that the litigation has some prospect of actually moving forward. As stated by Master Hanebury in Schulze v Whitby Business Development Corp at para 30:
…From a functional perspective, the material advancement of an action involves both parties to the action. While only one may be doing the behind the scenes collection of information that is the ‘thing’ that advances the action, the party must at least have some knowledge during the five year period that this is occurring for the action to be materially advanced.
[47] I agree that without something more being done, the mere collection of information by one party in furtherance of its obligation to answer replies to undertakings does not materially advance the action, particularly where the opposing party had no knowledge of this being done (Riehs Estate (Re), 2021 ABQB 821 at para 35).
The Justice found the mere fact of providing information to counsel was insufficient to substantially advance the action, as the Court was unable to assess the value of that information. Accordingly, the Court confirmed the action should be dismissed.
Dueling v Shell Canada, 2022 ABQB 125
At first instance, the Master, despite having concerns about the lack of evidence, ultimately found that it was appropriate to summarily dismiss the Plaintiff’s claim alleging damages out of a slip and fall. The evidence from the Plaintiff at questioning was that he noticed some snow in the parking lot when he first arrived, but when he returned to his car some time later there was just water around his vehicle. It was while the Plaintiff walked through the puddle of water that he fell, though his evidence was consistent that he did not feel ice underneath him or anywhere else. Additional evidence was raised by the Appellants on appeal.
On Appeal the Court had to consider the questioning evidence before it, as well as the new affidavit evidence filed by the Plaintiff. Notably, the Court did find that the affidavit evidence differed and conflicted with some of the Plaintiff’s evidence regarding the presence of ice in the parking lot where the fall was alleged to have occurred. The Court had to determine whether the additional evidence offered by the Plaintiff established the presence of a hazard on the day of the accident or otherwise rendered the action unsuitable for summary dismissal. An affidavit from the Plaintiff’s wife, who was not present at the time of the accident, was totally dismissed for having been sworn nearly 5 years after the incident and providing hearsay statements.
With respect to the Plaintiff’s affidavit, the Court found it similarly unhelpful:
[21] Mr. Deuling’s evidence is unhelpful for a different reason. It conflicts in significant ways with the evidence he gave at Questioning, particularly as it relates to whether or not he recalls observing or sensing any ice beneath the puddle. After receiving the Master’s decision, he recalls slipping and falling on “ice that was below the surface of a puddle”. At best this calls into question the reliability of his memory and the influence of the Master’s comments on his recollections. At worst it calls into question the veracity of the evidence he swore 2 years after providing very different evidence at Questioning.
[22] I find that the Appellants have still not established that there was a hazard. There is therefore no obligation on the Respondents to provide evidence concerning what steps they took to avoid a hazard which has not been established. In that regard, the wording used in para 7(c) of the Appellants’ written argument is telling:
“… the Defendants have not provided any policies, procedures, or logs pertaining to ice maintenance that would go towards establishing liability…”
Given that the Plaintiff had not established the presence of a hazard, the Court found the policies and procedures of the Respondents irrelevant. As such, the action was dismissed.