Cooke v. Calgary Civic Employees Benefit Society et al., (2003) 350 A.R. 228 (QB)

• Judge: Rooke, J.
• Court: Court of Queen''s Bench of Alberta (Canada)
• Case Date: Tuesday June 24, 2003
• Citations: (2003), 350 A.R. 228 (QB)

Cooke v. Civic Employees Benefit Soc. (2003), 350 A.R. 228 (QB)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. JL.002

Jo-Anne Cooke (plaintiff/appellant) v. The Calgary Civic Employees Benefit Society and The Calgary General Hospital Board (defendants/respondents)

(Action No. 8801-16359)

Indexed As: Cooke v. Calgary Civic Employees Benefit Society et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Rooke, J.

June 24, 2003.

Summary:

The Calgary Civic Employees Benefit Society (CCEBS) agreed to provide health and sickness benefits for certain unionized civic employees including hospital workers. In 1988, Cooke sued the CCEBS for wrongful termination of benefits. Cooke also sued her former employer. In September 2002, the defendants moved to strike the action for delay. A Master dismissed the action. Cooke appealed.

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

Editor's Note: for a related case see (1996) 185 A.R. 313.

Practice - Topic 5362.1

Dismissal of action - Grounds - General and want of prosecution - Inference of prejudice (incl. rebuttal of) - The plaintiff commenced an action in 1988 - In September 2002, the defendants moved to strike the action for delay - Except for one consent order, the plaintiff did nothing for nine and a half years to materially advance the action - The plaintiff alleged in her supporting affidavit that there had been no serious prejudice to the defendants - The Alberta Court of Queen's Bench held that the plaintiff had not rebutted the presumption of serious prejudice in rule 244(4) - The plaintiff's opinion as to prejudice was inadmissible or, alternatively, irrelevant, because it was an issue for the court to determine - The discoveries and production of documents which had occurred did not negative the presumed prejudice - Unassisted memories (as opposed to assisted or refreshed memories) could be critical in this case - See paragraphs 22 to 41.

Practice - Topic 7242.1

Costs - Party and party costs - Offers to settle - Grounds for denying double costs -A Master dismissed the plaintiff's action - The plaintiff's appeal was unsuccessful - The defendants had offered judgment on the basis that the defendants would waive their costs in all these proceedings in exchange for the plaintiff abandoning her appeal - The defendants sought double costs respecting the appeal (rule 169) - The plaintiff argued the offer was not capable of acceptance under the Rules as the Rules did not contemplate a judgment whereby a plaintiff abandons an appeal - The court could not order someone to abandon an appeal - Therefore, the double costs rule was not engaged - The Alberta Court of Queen's Bench rejected the argument and awarded double costs - The reward and punishment principle under rule 169 should apply without undue technicality - See paragraphs 96 to 120.

Cases Noticed:

Tire City & Auto Inc. v. Harrison et al. (2002), 319 A.R. 75 (Q.B.), refd to. [para. 2].

Morasch v. Alberta (2000), 250 A.R. 269; 213 W.A.C. 269 (C.A.), refd to. [para. 3].

Filipchuk v. Ladouceur et al. (2001), 277 A.R. 192; 242 W.A.C. 192 (C.A.), refd to. [para. 3].

369413 Alberta Ltd. v. Pocklington et al. (1998), 225 A.R. 173 (Q.B.), refd to. [para. 3].

Co-operators Life Insurance Co. v. Rollheiser (1998), 231 A.R. 98 (Q.B.), refd to. [para. 11].

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

Matthews v. Great-West Life Assurance Co. et al. (2002), 313 A.R. 86 (Q.B.), refd to. [para. 24].

Lucas v. Mydland (1997), 214 A.R. 313 (Q.B.), refd to. [para. 26].

Kombo v. Calgary General Hospital Board et al. (2000), 271 A.R. 386; 234 W.A.C. 386 (C.A.), refd to. [para. 26].

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

Wyant Estate et al. v. St. Arnault et al. (1985), 63 A.R. 91 (Q.B.), refd to. [para. 29].

Allen v. McAlpine (Sir Alfred) & Sons Ltd., [1968] 2 Q.B. 229 (C.A.), refd to. [para. 29].

Marshall v. Fire Insurance Co. (1970), 71 W.W.R.(N.S.) 647 (Alta. C.A.), refd to. [para. 29].

Vic Van Isle Construction Ltd. v. Lomenda et al. (1999), 26 B.C.T.C. 321 (S.C.), refd to. [para. 30].

Peterka v. Nieman et al., [1998] A.R. Uned. 18 (C.A.), refd to. [para. 33].

Pauli et al. v. Ace INA Insurance et al. (2003), 336 A.R. 85 (Q.B.), refd to. [para. 55].

Statutes Noticed:

Rules of Court (Alta.), rule 169(2) [para. 96].

Counsel:

Douglas G. Stokes, Q.C., for the plaintiff;

Tara L. Petersen, for the defendant, Calgary Civic Employees Benefit Society;

B.R. Carbert, for the defendant, Calgary General Hospital Board.

This appeal was heard in Chambers by Rooke, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on June 24, 2003.