Goshulak et al. v. Van Nguyen,

• Judge: Mason
• Neutral Citation: 2011 ABQB 346
• Citation: (2011), 520 A.R. 1 (QBM),2011 ABQB 346,520 AR 1,(2011), 520 AR 1 (QBM),520 A.R. 1
• Date: 11 April 2011
• Court: Court of Queen's Bench of Alberta (Canada)

Goshulak v. Van Nguyen (2011), 520 A.R. 1 (QBM)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. JN.002

Shaun Goshulak, Crystal Gail Girletz, Jessie Girletz, an infant by his next friend, Crystal Gail Girletz (plaintiffs) v. Thao Van Nguyen and Thuan Van Nguyen (defendants)

(0501-02882; 2011 ABQB 346)

Indexed As: Goshulak et al. v. Van Nguyen

Alberta Court of Queen's Bench

Judicial District of Calgary

Mason, Master

May 27, 2011.

Summary:

The defendants applied under rules 4.33 and 15.4 to dismiss the plaintiffs' motor vehicle negligence action for long delay.

A Master of the Alberta Court of Queen's Bench allowed the application and dismissed the action because nothing had been done to significantly advance the action for more than five years.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - The plaintiffs filed a statement of claim on February 23, 2005 - It was served on the defendants on March 17, 2005 - In April 2005, the defendants' insurer requested updated medical information and settlement proposals from the plaintiffs' counsel - No response was received - In fact, the plaintiffs' counsel made no contact with the insurer for more than five years (August 2010), at which time the insurer referenced dismissal for long delay (five year drop dead rule) - The plaintiffs responded by noting the defendants in default - The defendants applied under rules 4.33 and 15.4 to dismiss the action for delay - The plaintiffs argued that five years had not passed since the last thing done to significantly advance the action - Particularly, the plaintiffs argued that the gathering of medical records and the preparation of damage assessments by counsel, and the noting of the defendants in default, were things done which significantly advanced the action - A Master of the Alberta Court of Queen's Bench dismissed the action for delay exceeding five years without anything being done to significantly advance the action - The gathering of medical evidence and preparation of damage assessments, done by the plaintiffs behind the scenes without the defendants' knowledge, did not constitute the doing of something which significantly advanced the action - Further, the noting in default occurred after the five year delay where nothing was done - The noting in default was done without ever demanding a statement of defence, without notifying the defendants' counsel and in the face of having advised the defendants' insurer that a standstill agreement was in place when there was no evidence of one - The defendants did not participate or acquiesce in the noting in default.

Cases Noticed:

Phillips v. Sowan, [2006] A.R. Uned. 475; 31 C.P.C.(6th) 112; 2006 ABQB 579, affd. [2007] A.R. Uned. 27; 40 C.P.C.(6th) 378; 2007 ABCA 101, dist. [para. 31].

Top Grade Solutions Inc. v. Flying Pizza 73 Inc. et al. (2009), 480 A.R. 181; 2009 ABQB 492, refd to. [para. 32].

Howard v. Calgary Chief of Police et al. (2001), 302 A.R. 266; 2001 ABQB 904, refd to. [para. 33].

Schulze v. Whitby Business Development Corp. et al. (2009), 468 A.R. 231; 2009 ABQB 163, refd to. [para. 34].

Nelson et al. v. Emsland et al. (2008), 440 A.R. 297; 438 W.A.C. 297; 2008 ABCA 387, refd to. [para. 37].

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. 37].

D.S. et al. v. Alberta et al. (2005), 385 A.R. 165; 2005 ABQB 677, refd to. [para. 39].

K. v. Caseley et al. (2006), 400 A.R. 73; 2006 ABQB 396, refd to. [para. 39].

Kapicki v. Kapicki, 2010 ABQB 615, refd to. [para. 39].

Statutes Noticed:

Rules of Court (Alta.), 2010, rule 4.33(1)(c) [para. 43]; rule 15.4(1), rule 15.4(2) [para. 4].

Counsel:

Rodney Wareharm (Allstate Legal Services), for the defendants;

Stacey L. Lee-Szott (Field LLP), for the plaintiffs.

This application was heard on April 11, 2011, before Mason, Master, of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on May 27, 2011.