Brar v. Pawa

• Jurisdiction: Alberta
• Court: Court of Queen's Bench of Alberta (Canada)
• Judge: Hanebury
• Neutral Citation: 2010 ABQB 779
• Citation: 2010 ABQB 779,(2010), 506 A.R. 325 (QBM),506 AR 325,(2010), 506 AR 325 (QBM),506 A.R. 325
• Date: 23 November 2010

Brar v. Pawa (2010), 506 A.R. 325 (QBM)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. DE.039

Makhan Brar (plaintiff) v. Surinder Pawa (defendant)

Surinder Pawa (plaintiff by counterclaim) v. Makhan Brar and Gabor Zinner (defendants by counterclaim)

(0001 09502; 2010 ABQB 779)

Indexed As: Brar v. Pawa

Alberta Court of Queen's Bench

Judicial District of Calgary

Hanebury, Master

December 6, 2010.

Summary:

Brar, as vendor, and Pawa, as purchaser, entered into transactions relating to the purchase of two movie theatres. Zinner was allegedly counsel for both parties and involved financially in the transaction. Brar sued Pawa. Pawa defended and counterclaimed against Brar and Zinner. Zinner applied to dismiss the counterclaim against him pursuant to rules 4.33(1) and 4.31. He argued that the action should be dismissed as nothing had been done for five years to either materially or significantly advance the action. In the alternative he argued that the action should be dismissed for inordinate, inexcusable delay that had caused him serious prejudice.

A Master of the Alberta Court of Queen's Bench dismissed the application.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - Zinner applied pursuant to rule 4.33(1) to dismiss a counterclaim brought against him by Pawa on the basis that nothing had been done for five years to either materially or significantly advance the action - Pawa argued that an appointment to continue the examination of Zinner, served April 28, 2009, was sufficient to avoid the drop dead rule - A Master of the Alberta Court of Queen's Bench stated that "By the time that appointment was served, nothing had been done to advance the action against Mr. Zinner for more than five years. Mr. Zinner's counsel responded by advising that he was seeking instructions to bring this application. There was no acceptance of the appointment or waiver of the already-existing five year delay. The service of an appointment is insufficient to avoid the effect of the drop dead rule" - See paragraphs 14 to 15.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - Brar, as vendor, and Pawa, as purchaser, entered into transactions relating to the purchase of two movie theatres - Zinner was allegedly counsel for both parties and involved financially in the transaction - Brar sued Pawa - Pawa defended and counterclaimed against Brar and Zinner - The transaction at issue occurred in 1996 - The action was commenced in 2000 - Zinner applied to dismiss the counterclaim against him pursuant to rules 4.33(1) and 4.31 - He argued that nothing had been done for five years to either materially or significantly advance the action - In the alternative he argued that the action should be dismissed for inordinate, inexcusable delay that had caused him serious prejudice - A Master of the Alberta Court of Queen's Bench dismissed the application under rule 4.33(1) - The court considered that Pawa, as a defendant and plaintiff by counterclaim, was not in a position to drive the litigation - Zinner had also continued to be aware of the litigation both through his counsel and personally as counsel to the Brar family - Although there was nothing done by Pawa in relation to her counterclaim against Zinner during the relevant five year period that could be seen to materially or significantly advance the action, on these facts, it would be inequitable to look only at the things done in relation to Pawa's counterclaim against Zinner - It was appropriate to examine what was done in the entire action - Over 100 undertakings had been responded to, voluminous correspondence was exchanged that dealt with more than superficial matters, and discussions were undertaken about the retention of an expert - From a functional perspective, steps were taken by the parties during the alleged five year gap to materially and significantly move the matter toward trial - The court also dismissed the application under rule 4.31 - The period of inordinate, inexcusable delay was, at most, from the time Zinner provided answers to undertakings in March 2004, until he received an appointment to attend for his continued examination in April 2009 - Zinner had not satisfied the court that the five year period had caused memory loss to a degree that significant prejudice would arise.

Cases Noticed:

Morasch v. Alberta (2000), 250 A.R. 269; 213 W.A.C. 269; 2000 ABCA 24, refd to. [para. 9].

Horne et al. v. Sioux Oilfield Consultants Ltd. et al. (1999), 240 A.R. 50 (Q.B. Master), refd to. [para. 10].

Trout Lake Store Inc. v. Canadian Imperial Bank of Commerce et al. (2003), 330 A.R. 379; 299 W.A.C. 379; 2003 ABCA 259, refd to. [para. 16].

Young v. Dei-Baning (A.) Professional Corp. et al. (1996), 184 A.R. 209; 122 W.A.C. 209; 39 Alta. L.R.(3d) 93 (C.A.), refd to. [para. 16].

Johnston v. Wawanesa Mutual Insurance Co., [2002] A.R. Uned. 27; 2002 ABCA 80, refd to. [para. 16].

Danek v. Calgary (City), [2006] A.R. Uned. 687; 2006 ABQB 807 (Master), refd to. [para. 22].

Heikkila v. Apex Land Corp. et al., [2010] A.R. Uned. 825; 2010 ABQB 55, refd to. [para. 23].

Heikkila v. Workers' Compensation Board Appeals Commission (Alta.) - see Heikkila v. Apex Land Corp. et al.

Phillips et al. v. Sowan et al., [2007] A.R. Uned. 27; 2007 ABCA 101, refd to. [para. 24].

Ravvin Holdings Ltd. v. Ghitter (2008), 437 A.R. 66; 433 W.A.C. 66; 2008 ABCA 208, refd to. [para. 32].

Cooke v. Calgary Civic Employees Benefit Society et al. (2003), 350 A.R. 228 (Q.B.), refd to. [para. 40].

Lethbridge Motors Co. et al. v. American Motors (Canada) Ltd. et al. (1987), 79 A.R. 321; 40 D.L.R.(4th) 544 (C.A.), refd to. [para. 49].

Oancia v. Rempel et al. (2000), 278 A.R. 348; 2000 ABQB 810, refd to. [para. 49].

Statutes Noticed:

Rules of Court (Alta.), rule 4.31, rule 4.33(1) [para. 2].

Counsel:

Robert D. Maxwell (Fasken Martineau DuMoulin LLP), for the applicant/defendant by counterclaim, Gabor Zinner;

Steven L. Major (Bennett Jones LLP), for the defendant/plaintiff by counterclaim, Surinder Pawa.

This application was heard on November 23, 2010, before Hanebury, Master, of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following memorandum of judgment on December 6, 2010.