Cooke v. Calgary Civic Employees Benefit Society et al.

• Jurisdiction: Alberta
• Court: Court of Appeal (Alberta)
• Judge: Conrad, McFadyen and Picard, JJ.A.
• Citation: (2004), 354 A.R. 30 (CA),2004 ABCA 207
• Date: 18 May 2004

Cooke v. Civic Employees Benefit (2004), 354 A.R. 30 (CA);

    329 W.A.C. 30

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. JL.001

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

(0301-0242-AC; 2004 ABCA 207)

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

Alberta Court of Appeal

Conrad, McFadyen and Picard, JJ.A.

May 18, 2004.

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, in a decision reported at (2003), 350 A.R. 228, dismissed the appeal. The plaintiff appealed.

The Alberta Court of Appeal 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) - In 1988, the plaintiff commenced an action against the defendants alleging, inter alia, a wrongful termination of disability payments - 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 by the delay - A Chambers judge concluded that the plaintiff's opinion and the fact of discoveries and the production of documents were insufficient to rebut the presumption of serious prejudice in rule 244(4) - The Alberta Court of Appeal dismissed the plaintiff's appeal - Considering the nature of the case and the length of the delay, the Chambers judge's conclusion was not wrong - There were no alterrnative remedies which would be sufficient relief for the deemed prejudice.

Counsel:

D.G. Stokes, Q.C., and L.M. Berg, for the appellant;

B.R. Carbert and M.L. Colley, for the respondents.

This appeal was heard on May 18, 2004, before Conrad, McFadyen and Picard, JJ.A., of the Alberta Court of Appeal. McFadyen, J.A., delivered the following memorandum of judgment orally from the bench for the court on that date and filed it on June 17, 2004.