Barath et al. v. Schloss et al., (2015) 617 A.R. 224 (QB)

JudgeLee, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateJanuary 14, 2015
Citations(2015), 617 A.R. 224 (QB);2015 ABQB 332

Barath v. Schloss (2015), 617 A.R. 224 (QB)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MY.126

John Barath, Alpha Prime Developments Ltd. and Full Moon Entertainment Ltd. (appellants) v. Barry Schloss and Alleghany Holdings Ltd. (respondents)

(0303 23710; 2015 ABQB 332)

Indexed As: Barath et al. v. Schloss et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

May 22, 2015.

Summary:

The plaintiffs filed a statement of claim on December 22, 2003. The subject of the law suit was projects involving residential apartment buildings which were started in or about 2000. A statement of defence was filed on March 17, 2004. Several court orders were issued in 2004 and further orders were issued until 2008 when a consent order was granted between the plaintiffs and the trustee in bankruptcy of the defendant BAR 2 Developments Ltd. on April 2, 2008. The order directed the trustee to provide the financial records of BAR 2 to the plaintiffs. The defendants Schloss and Holdings did not participate in that application. On May 22, 2009, a letter was issued by the plaintiffs' then counsel notifying the defendants that the plaintiffs were in the process of preparing an expert report. On or about April 4, 2013, counsel for the plaintiffs delivered to counsel for the defendants a copy of their expert report. The defendants moved to dismiss the action pursuant to rule 4.33 of the Alberta Rules of Court on the basis that three or more years had passed without a significant advance in the action. Alternatively, the defendants asserted that the court should exercise its discretion to dismiss the action under rule 4.31(1)(a) on the basis that there had been inordinate and inexcusable delay in its prosecution that had resulted in significant prejudice to the defendants.

A Master of the Alberta Court of Queen's Bench, in a decision not reported in this series of reports, dismissed the action pursuant to rules 4.31, 4.33 and 15.4. The plaintiffs appealed.

The Alberta Court of Queen's Bench dismissed the appeal.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - See paragraphs 6 to 17.

Practice - Topic 5362

Dismissal of actions - Grounds - General and want prosecution - Prejudice to defendant - See paragraphs 12 to 17.

Practice - Topic 5362.1

Dismissal of action - Grounds - General and want of prosecution - Inference of prejudice - See paragraphs 12 to 17.

Practice - Topic 5364

Dismissal of action - Grounds - General and want of prosecution - Bars - Waiver or estoppel - See paragraphs 6 to 11.

Counsel:

David F. Holt (Hladun & Company), for the appellants;

Donald R. Cranston, Q.C. (Bennett Jones), for the respondents.

This appeal was heard on January 14, 2015, by Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on May 22, 2015.

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5 practice notes
  • Fode v Paragon Gaming EC Company, 2020 ABQB 266
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • April 21, 2020
    ...2013 ABQB 486 M L Bruce Holdings Inc. v Ceco Developments, 2015 ABQB 604 Kuziw v Kucheran Estate, 2000 ABCA 226 Barath v Schloss, 2015 ABQB 332 Condominium Plan No. 982 6403 v CPI Crown Properties International Corporation, 2017 ABQB 562 Appendix C STYLE OF CAUSE AND CITATION THE EXCUSABLE ......
  • Rahmani v 959630 Alberta Ltd.,
    • Canada
    • Court of Appeal (Alberta)
    • March 22, 2021
    ...the last significant advance: Trout Lake Store Inc v Canadian Bank of Imperial Commerce, 2003 ABCA 259 at paras 25-33; Barath v Schloss, 2015 ABQB 332 at para 9. In this case, the last uncontroversial significant advance was the provision of answers to undertakings on July 8, [17] When coun......
  • Riehs Estate (Re),
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • October 18, 2021
    ...the action must be dismissed: Trout Lake Store Inc v Canadian Bank of Imperial Commerce, 2003 ABCA 259 at paras 25-33; Barath v Schloss, 2015 ABQB 332 at para 9; Rahmani at paras [21]        In this case the three-year period starts to run on July 31, 2017......
  • Kingsway General Insurance Co. v. Fekete Construction Co. et al., 2016 ABQB 149
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • March 15, 2016
    ...2015, ABCA 316 (at para 12) 3. Nash v Snow , 2014 ABQB 355 4. 155569 Canada Ltd v 57618 Manitoba Ltd, 2006 ABQB 919 5. Barath v Schloss, 2015 ABQB 332 6. Ro-Dar Contracting Ltd v Verbeek Sand & Gravel Inc, 2015 ABQB 300 7. Terroco Drilling Ltd v Tusk Energy Corp, 2014 ABQB 419 (at paras......
  • Request a trial to view additional results
5 cases
  • Fode v Paragon Gaming EC Company, 2020 ABQB 266
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • April 21, 2020
    ...2013 ABQB 486 M L Bruce Holdings Inc. v Ceco Developments, 2015 ABQB 604 Kuziw v Kucheran Estate, 2000 ABCA 226 Barath v Schloss, 2015 ABQB 332 Condominium Plan No. 982 6403 v CPI Crown Properties International Corporation, 2017 ABQB 562 Appendix C STYLE OF CAUSE AND CITATION THE EXCUSABLE ......
  • Rahmani v 959630 Alberta Ltd.,
    • Canada
    • Court of Appeal (Alberta)
    • March 22, 2021
    ...the last significant advance: Trout Lake Store Inc v Canadian Bank of Imperial Commerce, 2003 ABCA 259 at paras 25-33; Barath v Schloss, 2015 ABQB 332 at para 9. In this case, the last uncontroversial significant advance was the provision of answers to undertakings on July 8, [17] When coun......
  • Riehs Estate (Re),
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • October 18, 2021
    ...the action must be dismissed: Trout Lake Store Inc v Canadian Bank of Imperial Commerce, 2003 ABCA 259 at paras 25-33; Barath v Schloss, 2015 ABQB 332 at para 9; Rahmani at paras [21]        In this case the three-year period starts to run on July 31, 2017......
  • Kingsway General Insurance Co. v. Fekete Construction Co. et al., 2016 ABQB 149
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • March 15, 2016
    ...2015, ABCA 316 (at para 12) 3. Nash v Snow , 2014 ABQB 355 4. 155569 Canada Ltd v 57618 Manitoba Ltd, 2006 ABQB 919 5. Barath v Schloss, 2015 ABQB 332 6. Ro-Dar Contracting Ltd v Verbeek Sand & Gravel Inc, 2015 ABQB 300 7. Terroco Drilling Ltd v Tusk Energy Corp, 2014 ABQB 419 (at paras......
  • Request a trial to view additional results

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