University of Alberta v. Chang et al.

• Jurisdiction: Alberta
• Court: Court of Queen's Bench of Alberta (Canada)
• Judge: Lee, J.
• Citation: 2011 ABQB 596,(2011), 525 A.R. 33 (QB)
• Date: 20 September 2011

Alta. Univ. v. Chang (2011), 525 A.R. 33 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. OC.091

The Governors of the University of Alberta (plaintiff/respondent) v. Lung-Ji Chang and AMDL Inc. (defendants/AMDL Inc. - applicant)

(0303 15662)

Acuvector Group Inc. (plaintiff) v. Lung-Ji Chang, AMDL Inc., John Tkachuk, JGT Management Services Limited, Briana Bio-Tech Inc. and AMDL Canada Inc. (defendants) and Lung-Ji Chang (plaintiff by counterclaim) and John A. Knebel, John A. Knebel Professional Corporation, Coolcadia Corporation, Neil Dunwald, Dunwald & Co. Ltd., Cheryl Knebel and Acuvector Group Inc. (defendants by counterclaim)

(0203 03831; 2011 ABQB 596)

Indexed As: University of Alberta v. Chang et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

September 29, 2011.

Summary:

The dispute in this case dealt with bio-technology protected by patents. The defendant AMDL Inc. applied for an order dismissing for long delay two actions brought by AccuVector Group Inc. and the Board of Governors of the University of Alberta, commenced in 2002 and 2003 respectively. The litigation had languished since 2005 without any significant activity, despite attempts by counsel for AMDL to proceed with examinations for discovery. In addition to dismissal for long delay, AMDL alternatively sought a judgment that the delay in the actions had been inordinate, inexcusable and had caused serious prejudice to AMDL. Rules 4.31, 4.33 and 15.4 of the Alberta Rules of Court (2010) governed the dismissal of actions for delay.

The Alberta Court of Queen's Bench dismissed both actions for long delay under rules 4.33 and 15.4, as nothing had been done to significantly advance either action in the last five years. In any event, the actions ought to be dismissed for delay under rule 4.31. During the period of delay, AMDL had undergone a corporate reorganization and name change, and key management and employees with knowledge of the litigation had left the company. The prejudice to AMDL's institutional memory caused by the delay had been significant and incurable. No evidence of any excuse for the delay had been put forward.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - The dispute in this case dealt with bio-technology protected by patents - Two actions were brought by AccuVector Group Inc. and the Board of Governors of the University of Alberta, commenced in 2002 and 2003 respectively - The litigation had languished since 2005 without any significant activity, despite attempts by counsel for the defendant AMDL to proceed with examinations for discovery - In addition to dismissal for long delay, AMDL alternatively sought a judgment that the delay in the actions had been inordinate, inexcusable and had caused serious prejudice to AMDL - Rules 4.31, 4.33 and 15.4 of the Alberta Rules of Court (2010) governed the dismissal of actions for delay - The Alberta Court of Queen's Bench concluded that both actions ought to be dismissed for long delay under rules 4.33 and 15.4, as nothing had been done to significantly advance either action in the last five years - "[U]nder the current Rules 4.33 and 15.4, as with the former Rule 244.1, the Court has no discretion whether or not to dismiss an action for long delay upon finding that five or more years have expired since the last thing was done that significantly advanced the action. The question of prejudice to the party applying for the dismissal is irrelevant where there has been a delay over five years" - See paragraphs 53 to 55 - In any event, the actions ought to be dismissed for delay under rule 4.31 - First, the delay in both of the actions had been inordinate: the actions had lingered for nine and seven years, respectively, without significant advancement towards adjudication on the merits - Second, neither AcuVector nor the University had put forward any excuse for such inordinate delay - Third, the delay had caused serious prejudice to AMDL's defence in both actions, most significantly through the loss of institutional memory - The AMDL's executive and officers who were most involved with the technology at issue in the litigation, and those most familiar with the litigation itself, had since left the company or had passed away - AMDL had also suffered the loss of key employees overseeing the technology - See paragraphs 65 to 77.

Practice - Topic 5362

Dismissal of action - Grounds - General and want of prosecution - Prejudice to defendant - [See Practice - Topic 5360 ].

Practice - Topic 5362.1

Dismissal of action - Grounds - General and want of prosecution - Inference of prejudice (incl. rebuttal of) - [See Practice - Topic 5360 ].

Practice - Topic 5384

Dismissal of action - Application or motion for dismissal - Circumstances when granted - [See Practice - Topic 5360 ].

Cases Noticed:

Brar v. Pawa (2010), 506 A.R. 325; 2010 ABQB 779, refd to. [para. 21].

Kuziw v. Kucheran Estate (2000), 266 A.R. 284; 228 W.A.C. 284; 2000 ABCA 226, appld. [para. 22].

Volk v. 331323 Alberta Ltd. et al. (1998), 212 A.R. 64; 168 W.A.C. 64 (C.A.), refd to. [para. 27].

Ravvin Holdings Ltd. v. Ghitter (2008), 437 A.R. 66; 433 W.A.C. 66; 2008 ABCA 208, refd to. [para. 29].

Cooke v. Calgary Civic Employees Benefit Society et al. (2003), 350 A.R. 228 (Q.B.), refd to. [para. 31].

Hooda et al. v. HSBC Canadian Direct Insurance Inc. et al., [2011] A.R. Uned. 254; 2011 ABQB 196, refd to. [para. 54].

Bahcheli v. Yorkton Securities Inc. et al., [2010] A.R. Uned. 923; 87 C.C.E.L.(3d) 80; 2010 ABQB 824, refd to. [para. 54].

Morash v. Alberta (2000), 250 A.R. 269; 213 W.A.C. 269; 2000 ABCA 24, refd to. [para. 56].

Phillips v. Sowan, [2007] A.R. Uned. 27; 40 C.P.C.(6th) 378; 2007 ABCA 101, refd to. [para. 56].

Co-operators Life Insurance Co. v. Rollheiser (1998), 231 A.R. 98; 1998 ABQB 874, refd to. [para. 61].

Brentech Services Ltd. v. Sunray Manufacturing Inc. et al. (2008), 445 A.R. 278; 2008 ABQB 301, refd to. [para. 62].

Gianis v. Cunningham Lindsey Canada Ltd. (2007), 416 A.R. 105; 2007 ABQB 239, refd to. [para. 62].

Wiens et al. v. Dewald et al. (2011), 520 A.R. 229; 2011 ABQB 400 (Q.B. Master), refd to. [para. 67].

Statutes Noticed:

Rules of Court (Alta.) (2010), rule 4.31(a) [paras. 20, 52]; rule 4.33, rule 15.4 [para. 52].

Counsel:

Justin Lambert (Bennett Jones LLP), for the defendant/applicant, AMDL Inc.;

Stephen G. Parker (Fraser Milner Casgrain LLP), for the plaintiff/respondent, University of Alberta;

Aron M. Bookman (Carfra & Lawton), for the defendant, Dr. Chang.

This application was heard on September 20, 2011, before Lee, J., of the Alberta Court of Queen's Bench, who delivered the following judgment, with reasons, dated at Edmonton, Alberta, on September 29, 2011.