Barnes v. RBC Dominion Securities Inc. et al., 2006 ABQB 290

• Judge: Lee, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 11, 2006
• Citations: 2006 ABQB 290;(2006), 393 A.R. 115 (QB)

Barnes v. RBC Dominion (2006), 393 A.R. 115 (QB)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. MY.035

Sandra Gail Barnes (respondent/plaintiff) v. RBC Dominion Securities Inc. and Tony Mah (appellants/defendants)

(9703 07929; 2006 ABQB 290)

Indexed As: Barnes v. RBC Dominion Securities Inc. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

April 21, 2006.

Summary:

In April 1997, Barnes sued RBC Dominion Securities Inc. and Mah on the basis that she was given negligent investment advice by Mah, which negligence RBC was vicariously liable for. In December 2004, RBC applied for an order dismissing the action for want of prosecution (delay).

A Master of the Alberta Court of Queen's Bench, in a decision not reported in this series of reports, dismissed the application. RBC appealed.

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

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - The Alberta Court of Queen's Bench held that filing and serving a Notice of Change of Solicitors did not materially advance the action within the meaning of rule 244 of the Rules of Court (Alta.) and merely served to notify all other parties of the change that had already occurred - See paragraph 34.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - The Alberta Court of Queen's Bench held that a plaintiff's request for a pre-trial conference did not materially advance the action within the meaning of rule 244 of the Rules of Court (Alta.) - The action was also not materially advanced by a plaintiff's counsel sending a letter requesting a date for a pre-trial conference - Merely requesting that a trial date be set also did not cause the action to be materially advanced - See paragraph 35.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - The Alberta Court of Queen's Bench held that answering undertakings did not materially advance the action within the meaning of rule 244 of the Rules of Court (Alta.) unless it involved the provision of a number of critical documents - The delivery of a few undertakings whether delivered all at once or spread over a period of time would generally not advance an action - Moreover, where a plaintiff was advised of her delay in responding to outstanding undertakings was inordinate, any subsequent delays would be treated more seriously - See paragraphs 38 to 41.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - In April 1997, Barnes sued RBC Dominion Securities Inc. and Mah on the basis that she was given negligent investment advice by Mah, which negligence RBC was vicariously liable for - Barnes' examination for discovery was held in April 2000 and she provided two undertakings - She finally answered the undertakings in December 2004 - RBC applied for an order dismissing the action for want of prosecution (delay) - The Alberta Court of Queen's Bench dismissed the application - Barnes' delay was inordinate, as nothing had been done to materially advance the action in the nearly five years between the last examination for discovery in April 2000 and the application - There was no credible excuse for the delay - However, there was insufficient evidence to establish or even suggest that any prejudice had arisen or accrued in or as a result of the alleged delay period - See paragraphs 31 to 62.

Practice - Topic 5360.1

Dismissal of action - Grounds - General and want of prosecution - Excuse for delay - [See fourth Practice - Topic 5360 ].

Practice - Topic 5362

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

Cases Noticed:

Volk v. 331323 Alberta Ltd. et al. (1998), 212 A.R. 64; 168 W.A.C. 64 (C.A.), refd to. [para. 12].

Oancia v. Rempel et al. (2000), 278 A.R. 348 (Q.B.), refd to. [para. 13].

Deis v. Koch Oil Ltd. et al. (2001), 304 A.R. 371; 2001 ABQB 997, refd to. [para. 15].

Maligne Lodge Ltd. v. Olson (Stuart) Construction Inc., [2005] A.R. Uned. 491; 2005 ABQB 451 (Master), refd to. [para. 19].

Gresiuk v. Wawanesa Mutual Insurance Co. (2002), 316 A.R. 269; 2002 CarswellAlta 1815 (Q.B.), refd to. [para. 23].

Peterka v. Nieman et al., [1998] A.R. Uned. 18; 1998 CarswellAlta 42 (C.A.), refd to. [para. 24].

Guccione v. Bell et al., [2004] A.R. Uned. 640; 2004 ABQB 729, refd to. [para. 27].

Hansraj v. Ao et al. (2002), 314 A.R. 262; 2002 ABQB 385, revd. in part (2004), 354 A.R. 91; 329 W.A.C. 91; 2004 ABCA 223, refd to. [para. 27].

Bentley v. Stringer (1999), 246 A.R. 1; 33 C.P.C.(4th) 182 (Q.B. Master), refd to. [para. 30].

Morasch v. Alberta (2000), 250 A.R. 269; 213 W.A.C. 269; 2000 ABCA 24, refd to. [para. 31].

Kuziw v. Kucheran Estate (2000), 266 A.R. 284; 228 W.A.C. 284; 2000 ABCA 226, refd to. [para. 33].

Rooney v. Murphy (1960), 31 W.W.R.(N.S.) 429 (Sask. Q.B.), refd to. [para. 34].

Hamilton v. Westfair Foods Ltd. et al., [2001] A.R. Uned. 116; 2001 ABQB 267 (Master), refd to. [para. 34].

Smith v. Alberta et al. (1996), 188 A.R. 159 (Q.B. Master), refd to. [para. 36].

Appleyard et al. v. Reed et al. (1997), 208 A.R. 236; 55 Alta. L.R.(3d) 279 (Q.B.), refd to. [para. 36].

Pro-Man Construction v. Lennie DeBow and Martin (1998), 213 A.R. 1; 59 Alta. L.R.(3d) 178 (Q.B.), revd. (2001), 277 A.R. 190; 242 W.A.C. 190; 2001 ABCA 28, refd to. [para. 36].

Swan v. Holmes et al. (2004), 358 A.R. 397; 2004 ABQB 162 (Master), refd to. [para. 38].

Bennison v. Provident Life & Accident Insurance Co. (2000), 269 A.R. 172; 2000 ABQB 409 (Master), refd to. [para. 39].

Springman et al. v. Rosenbaum and Murray et al. (1991), 71 Man.R.(2d) 32 (C.A.), refd to. [para. 41].

Fraser v. Kokan (1993), 24 C.P.C.(3d) 21 (B.C.S.C. Master), refd to. [para. 41].

Lucas v. Mydland (1997), 214 A.R. 313 (Q.B.), refd to. [para. 49].

Matthews v. Great-West Life Assurance Co. et al. (2002), 313 A.R. 86; 2002 CarswellAlta 438 (Q.B.), refd to. [para. 51].

Lethbridge Motors Co. et al. v. American Motors (Canada) Ltd. et al. (1987), 79 A.R. 321; 40 D.L.R.(4th) 544; 53 Alta. L.R.(2d) 326 (C.A.), refd to. [para. 54].

Demarco Oil and Gas Inc. v. 309506 Alberta Ltd. et al. (1993), 135 A.R. 233; 33 W.A.C. 233 (C.A.), reving. (1992), 126 A.R. 265 (Q.B.), reving. (1991), 122 A.R. 372 (Q.B. Master), refd to. [para. 54].

Filipchuk v. Ladouceur et al. (2001), 277 A.R. 192; 242 W.A.C. 192 (C.A.), refd to. [para. 62].

Backsight Holdings Ltd. et al. v. Welter et al. (1998), 220 A.R. 128; 1998 ABQB 121, refd to. [para. 65].

Statutes Noticed:

Rules of Court (Alta.), rule 244, rule 244.1 [para. 11].

Counsel:

Frederica L. Schutz (Emery Jamieson LLP), for the respondent/plaintiff;

James J. Heelan (Bennett Jones LLP), for the appellant/defendant, RBC Dominion Securities Inc.

This appeal was heard on April 11, 2006, by Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on April 21, 2006.