Frome v. Kapusta, (2006) 403 A.R. 378 (QB)

• Judge: Moen, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 29, 2006
• Citations: (2006), 403 A.R. 378 (QB);2006 ABQB 748

Frome v. Kapusta (2006), 403 A.R. 378 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. JA.052

John Frome (plaintiff/respondent) v. John Kapusta (defendant/applicant)

(9903 12467; 2006 ABQB 748)

Indexed As: Frome v. Kapusta

Alberta Court of Queen's Bench

Judicial District of Edmonton

Moen, J.

October 12, 2006.

Summary:

Frome owned 21 cars that he stored on Kapusta's farm. In 1997, Frome became aware that the cars had been removed. In 1999, Frome filed a statement of claim. In 2000, Kapusta was examined for discovery. Frome filed for bankruptcy in May 2001 and was discharged in October 2003. In November 2005, Frome sought terms for the determination of the action or direction for trial. Frome amended his notice of motion, seeking to amend his statement of claim to add the date on which Kapusta allegedly moved the vehicles. Kapusta applied under rule 244 to dismiss the claim for want of prosecution.

The Alberta Court of Queen's Bench allowed the amendment and declined to dismiss the claim.

Bankruptcy - Topic 6722

Practice - Parties - Status or standing - Frome owned 21 cars that he stored on Kapusta's farm - In 1997, Frome became aware that the cars had been removed - In 1999, Frome filed a statement of claim - Frome filed for bankruptcy in May 2001 and was discharged in October 2003 - The trustee was unaware of Frome's action - In November 2005, Kapusta applied under rule 244 to dismiss the claim for want of prosecution - At issue was Frome's standing to defend the application - The trustee advised that the file had been closed and he had been discharged - While Frome's action should have been the trustee's property, the trustee concluded that there was no likelihood of any recovery and would not apply for the appointment of a trustee to assume responsibility for the asset's realization - Further, it was unlikely that any creditor would take over the action - The Alberta Court of Queen's Bench indicated that while Frome lacked standing to pursue the action, if he did pursue the action, he had to notify the trustee who would then notify the creditors - If Kapusta wished to pursue any further applications for delay, he also had to notify the trustee - See paragraphs 42 to 49.

Bankruptcy - Topic 9248

Discharge of trustee - Effect of discharge - On standing of bankrupt - [See Bankruptcy - Topic 6722 ].

Practice - Topic 224

Persons who can sue and be sued - Individuals and corporations - Status or standing - Bankrupts - [See Bankruptcy - Topic 6722 ].

Practice - Topic 2121

Pleadings - Amendment of pleadings - Statement of claim - Adding particulars or subsequent facts - Frome owned 21 cars that he stored on Kapusta's farm - In 1997, Frome became aware that the cars had been removed - In 1999, Frome filed a statement of claim - In November 2005, Frome sought terms for the determination of the action or direction for trial - Subsequently, Frome sought to amend his statement of claim to add the date on which Kapusta allegedly moved the vehicles - Kapusta opposed the amendment, asserting that because the original statement of claim did not provide sufficient guidance as to whether the action was commenced within the applicable limitations period, the proposed amendment would effectively prohibit him from advancing a legitimate limitations defence at trial - The Alberta Court of Queen's Bench held that due to uncertainty surrounding the evidence and credibility issues, the amendment should be allowed, subject to the limitation issue being determined at trial - This would give Kapusta a clearer idea of the case to be met - Kapusta was also permitted to amend his pleadings to plead limitations - See paragraphs 50 to 60.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - Frome owned 21 cars that he stored on Kapusta's farm - In 1997, Frome became aware that the cars had been removed - In 1999, Frome filed a statement of claim - In 2000, Kapusta was examined for discovery - Frome filed for bankruptcy in May 2001 and was discharged in October 2003 - The trustee was unaware of Frome's action - In November 2005, Frome sought terms for the determination of the action or direction for trial - Kapusta applied under rule 244 to dismiss the claim for want of prosecution - Frome asserted that the delay was excusable due to, inter alia, his bankruptcy - The Alberta Court of Queen's Bench declined to dismiss the claim - The delay was inordinate - The court rejected Frome's excuses - As Frome had failed to disclose the claim, he could not point to the bankruptcy as an excuse for delay - However, there was little likelihood of serious prejudice to Kapusta resulting from the delay - In addition to rejecting Kapusta's specific grounds of prejudice, the court noted that the action was relatively simple and was based primarily on documentary evidence - The action was not particularly susceptible to the adverse effects of decaying memories - See paragraphs 9 to 38.

Practice - Topic 5360.1

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

Practice - Topic 5362

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

Practice - Topic 7452

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Neglectful conduct - Frome owned 21 cars that he stored on Kapusta's farm - In 1997, Frome became aware that the cars had been removed - In 1999, Frome filed a statement of claim - In 2000, Kapusta was examined for discovery - Frome filed for bankruptcy in May 2001 and was discharged in October 2003 - In November 2005, Frome sought terms for the determination of the action or direction for trial - Subsequently, Frome sought to amend his statement of claim to add the date on which Kapusta allegedly moved the vehicles - Kapusta applied under rule 244 to dismiss the claim for want of prosecution - Frome asserted that the delay was excusable due to, inter alia, his bankruptcy - The Alberta Court of Queen's Bench allowed the amendment and declined to dismiss the claim due to lack of serious prejudice resulting from the delay - However, due to Frome's inordinate and inexcusable delay, the court allowed Kapusta solicitor and his own client costs on his application and a subsequent hearing regarding Frome's standing - See paragraph 64.

Practice - Topic 7804

Costs - Solicitor and his own client costs - Entitlement to - Unsuccessful party - [See Practice - Topic 7452 ].

Cases Noticed:

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

Volk v. 331323 Alberta Ltd. et al. (1998), 212 A.R. 64; 168 W.A.C. 64; 1998 ABCA 54, refd to. [para. 12].

Kuziew v. Kucheran Estate (2000), 266 A.R. 284; 228 W.A.C. 284; 2000 ABCA 226, refd to. [para. 13].

Wallersteiner v. Moir, [1974] 3 All E.R. 217 (C.A.), refd to. [para. 13].

Lethbridge Motors Co. et al. v. American Motors (Canada) Ltd. et al. (1987), 79 A.R. 321 (C.A.), refd to. [para. 16].

Riviera Developments Inc. et al. v. Midd Financial Corp., 2002 ABQB 954, refd to. [para. 21].

Barnes v. RBC Dominion Securities Inc. et al. (2006), 393 A.R. 115 (Q.B.), refd to. [para. 37].

Kopr v. Kopr et al. (2006), 403 A.R.29; 2006 ABQB 405, refd to. [para. 44].

Kaup v. Weir et al. (1998), 224 A.R. 347 (Q.B.), refd to. [para. 51].

Hodge v. Carey Industrial Services Ltd. et al. (1997), 202 A.R. 154; 50 Alta. L.R. 306 (Q.B.), refd to. [para. 51].

Getty v. Calgary Herald (1990), 104 A.R. 308 (Q.B.), refd to. [para. 51].

Wood v. Precision Drilling Corp. et al., [2002] A.R. Uned. 498; 2002 ABQB 1076 (Master), refd to. [para. 52].

Madill v. Alexander Consulting Group Ltd. et al. (1999), 237 A.R. 307; 197 W.A.C. 307; 1999 ABCA 231, refd to. [para. 54].

Mikisew Cree First Nation v. Canada et al. (2002), 303 A.R. 43; 273 W.A.C. 43; 2002 ABCA 110, refd to. [para. 54].

Counsel:

Michael Klause (McDonald Street Law Office), for the plaintiff/respondent;

Thomas E. Plupek (Thomas E. Plupek Professional Corp.), for the defendant/applicant.

These applications were heard on June 16 and September 29, 2006, by Moen, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on October 12, 2006.