Huerto v. Canniff et al., (2014) 591 A.R. 329 (QB)

• Judge: Shelley, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 08, 2014
• Citations: (2014), 591 A.R. 329 (QB);2014 ABQB 534

Huerto v. Canniff (2014), 591 A.R. 329 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. SE.053

Carlos Huerto (respondent/plaintiff) v. James Canniff, J.R. Canniff & Associates Counseling Services Ltd., J.R. Caniff & Associates Counseling Services Ltd., operating as Canniff and Associates Psychological and Support Services, and operating as Professional Assessment Services, Gordon Drysbrough, Doug Spaner, Uwe Newmann, Ian Forster and Lifemark Health Institute Inc. (applicants/defendants)

(0703 08490; 2014 ABQB 534)

Indexed As: Huerto v. Canniff et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Shelley, J.

September 2, 2014.

Summary:

Huerto's licence to practice medicine was terminated by the College of Physicians and Surgeons of Saskatchewan. In the course of his disciplinary proceedings, a number of mental health professionals and their associated corporations (the applicants) provided an unfavourable psychological and psychiatric evaluation of Huerto. Huerto commenced a lawsuit against the applicants in July 2007, alleging that they had injured him by improperly and negligently evaluating his professional and mental health status. In March 2014, the applicants applied to strike the action on the basis that (a) three or more years had passed without a significant advance in the action; and (b) inordinate and inexcusable delay in the action had caused them significant prejudice.

The Alberta Court of Queen's Bench allowed the application and struck the action.

Editor's Note: for related decisions involving this plaintiff, see (2005), 263 Sask.R. 214 and (2014), 444 Sask.R. 127.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - Huerto's licence to practice medicine was terminated by the College of Physicians and Surgeons of Saskatchewan - In the course of his disciplinary proceedings, a number of mental health professionals and their associated corporations (the applicants) provided an unfavourable psychological and psychiatric evaluation of Huerto - Huerto sued the applicants in July 2007, alleging that they had injured him by improperly and negligently evaluating his professional and mental health status - In March 2014, the applicants applied to strike the action on the basis that three or more years had passed without a significant advance in the action (Alberta Rules of Court, rule 4.33(1)) - Huerto argued that the action had been significantly advanced when he provided a Supplementary Affidavit of Documents in January 2012 - The Alberta Court of Queen's Bench allowed the application and struck the action - Most of the documents provided in January 2012 had already been produced to Huerto by the applicants as part of the applicants' disclosure obligation - As such, the documents did not provide any new evidence or information which related to an issue in the action - "Re-disclosing" material did nothing to advance the action - It was a meaningless step taken to insulate against a delay application - See paragraphs 32 to 39.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - Huerto's licence to practice medicine was terminated by the College of Physicians and Surgeons of Saskatchewan - In the course of his disciplinary proceedings, a number of mental health professionals and their associated corporations (the applicants) provided an unfavourable psychological and psychiatric evaluation of Huerto - Huerto sued the applicants in July 2007, alleging that they had injured him by improperly and negligently evaluating his professional and mental health status - In March 2014, the applicants applied to strike the action on the basis that three or more years had passed without a significant advance in the action (Alberta Rules of Court, rule 4.33(1)) - Huerto argued that the action was significantly advanced when he contacted experts to evaluate the applicants' report between February 2012 and April 2013 - The Alberta Court of Queen's Bench allowed the application and struck the action - While gathering information to resolve an issue in question was a potential significant advance to a lawsuit, simply starting that process was insufficient - Huerto's efforts were incomplete - Further, there was no basis on which to test the potential utility of the expert investigations - The critical step was not merely acquiring information, but disclosing that information which addressed potential issues and points of disagreement - See paragraphs 41 to 45.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - Huerto's licence to practice medicine was terminated by the College of Physicians and Surgeons of Saskatchewan - In the course of his disciplinary proceedings, a number of mental health professionals and their associated corporations (the applicants) provided an unfavourable psychological and psychiatric evaluation of Huerto - Huerto sued the applicants in July 2007, alleging that they had injured him by improperly and negligently evaluating his professional and mental health status - In March 2014, the applicants applied to strike the action on the basis that three or more years had passed without a significant advance in the action (Alberta Rules of Court, rule 4.33(1)) - Huerto argued that the action had been significantly advanced by related lawsuits that he had initiated in Saskatchewan and the United States in an attempt to have his medical licenses reinstated - The Alberta Court of Queen's Bench allowed the application and struck the action - The related litigation did not limit or resolve any outstanding issues in the present action; in both cases, Huerto's application for re-admission was rejected - The actions were not "inextricably linked" - Further, Huerto neglected the present action when its resolution might have provided him with an advantage in the related litigation - He chose to pursue reinstatement without the facts to back it up - See paragraphs 46 to 51.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - Huerto's licence to practice medicine was terminated by the College of Physicians and Surgeons of Saskatchewan - In the course of his disciplinary proceedings, a number of mental health professionals and their associated corporations (the applicants) provided an unfavourable psychological and psychiatric evaluation of Huerto - Huerto sued the applicants in July 2007, alleging that they had injured him by improperly and negligently evaluating his professional and mental health status - In March 2014, the applicants applied to strike the action on the basis that inordinate and inexcusable delay in the action had caused them significant prejudice (Alberta Rules of Court, rule 4.31) - The Alberta Court of Queen's Bench allowed the application and struck the action - Six years had passed without a significant advance in the action - This constituted an inordinate delay which the court presumed had resulted in prejudice to the applicants - Huerto had engaged in extensive litigation activities in an unsuccessful attempt to have his medical licence reinstated - He prioritized other proceedings, which were found to be frivolous, vexatious and an abuse of process, while the current action languished - See paragraphs 54 to 63.

Practice - Topic 5362

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

Practice - Topic 7453

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Delaying tactics and unduly prolonging proceedings - Huerto commenced a lawsuit against the applicants in July 2007 - In March 2014, the applicants applied to strike the action on the basis that (a) three or more years had passed without a significant advance in the action; and (b) inordinate and inexcusable delay in the action had caused them significant prejudice - The Alberta Court of Queen's Bench allowed the application and struck the action - The court rejected Huerto's submission that he had significantly advanced the action by providing a Supplementary Affidavit of Documents in January 2012 - The Supplementary Affidavit consisted largely of documents that had already been disclosed to Huerto by the applicants - The court concluded that Huerto had provided the Supplementary Affidavit in an attempt to avoid a delay application and his obligations under the Rules of Court - This was an improper purpose that warranted an order for solicitor-client costs from January 2012 onward - See paragraphs 65 to 71.

Cases Noticed:

Huerto v. College of Physicians and Surgeons (Sask.) (2005), 263 Sask.R. 214; 2005 SKQB 94, refd to. [para. 3].

Huerto v. Salte et al. (2014), 444 Sask.R. 127; 2014 SKQB 127, refd to. [para. 4].

Balfour Moss LLP v. Huerto et al. (2011), 373 Sask.R. 32; 2011 SKQB 63, refd to. [para. 4].

Envision Edmonton Opportunities Society et al. v. Edmonton (City) (2011), 507 A.R. 275; 2011 ABQB 29, refd to. [para. 14].

Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 15].

Windsor v. Canadian Pacific Railway Ltd. (2014), 572 A.R. 317; 609 W.A.C. 317; 371 D.L.R.(4th) 339; 2014 ABCA 108, refd to. [para. 15].

Steparyk v. Alberta, [2014] A.R. Uned. 419; 2014 ABQB 367, refd to. [para. 16].

Carter v. Sears Canada Inc. (2011), 529 A.R. 394; 2011 ABQB 732, refd to. [para. 17].

St. Jean Estate et al. v. Edmonton (City) et al. (2014), 585 A.R. 81; 2014 ABQB 47, refd to. [para. 17].

Nash et al. v. Snow et al. (2014), 590 A.R. 198; 2014 ABQB 355, refd to. [para. 18].

Franchuk v. Schick, [2013] A.R. Uned. 578; 2013 ABQB 532 (Master), refd to. [para. 18].

Vincent et al. v. Moduline Industries (Canada) Ltd. et al. (2011), 517 A.R. 350; 2011 ABQB 571, refd to. [para. 18].

Donnelly v. Brick Warehouse Corp. et al. (2013), 573 A.R. 29; 2013 ABQB 621, refd to. [para. 20].

Le v. 1055168 Alberta Ltd. et al. (2013), 567 A.R. 206; 2013 ABQB 431, refd to. [para. 20].

Bahcheli v. Yorkton Securities Inc. et al., [2010] A.R. Uned. 923; 87 C.C.E.L.(3d) 80; 2010 ABQB 824, affd. (2012), 524 A.R. 382; 545 W.A.C. 382; 2012 ABCA 166, refd to. [para. 20].

Phillips v. Sowan, [2007] A.R. Uned. 27; 40 C.P.C.(6th) 378; 2007 ABCA 101, refd to. [para. 21].

Lanset Capital Corp. v. Waterloo Geological Consulting Ltd. (2006), 380 A.R. 210; 363 W.A.C. 210; 2006 ABCA 77, refd to. [para. 22].

Ravvin Holdings Ltd. v. Ghitter (2008), 437 A.R. 66; 433 W.A.C. 66; 2008 ABCA 208, refd to. [para. 22].

Gresiuk v. Wawanesa Mutual Insurance Co. (2002), 316 A.R. 269 (Q.B.), refd to. [para. 22].

Matthews v. Great-West Life Assurance Co. et al. (2002), 313 A.R. 86; 2002 ABQB 297, refd to. [para. 22].

Heikkila v. Apex Land Corp. et al. (2011), 502 A.R. 243; 517 W.A.C. 243; 2011 ABCA 87, refd to. [para. 22].

Courtoreille v. Edmonton (City) et al. (2008), 429 A.R. 58; 421 W.A.C. 58; 2008 ABCA 90, refd to. [para. 22].

525812 Alberta Ltd. v. Purewal (2004), 366 A.R. 1; 2004 ABQB 938, refd to. [para. 22].

Bourne v. Alberta et al., [2008] A.R. Uned. 69; 55 C.P.C.(6th) 1; 2008 ABCA 165, refd to. [para. 22].

Huynh et al. v. Rosman et al. (2013), 559 A.R. 319; 2013 ABQB 218 (Master), folld. [para. 22].

Co-operators Life Insurance Co. v. Rollheiser (1998), 231 A.R. 98; 1998 ABQB 874, refd to. [para. 22].

Lamont Highway Service Ltd. v. Scraba, [1999] A.J. No. 421; 1999 ABQB 1057 (Master), refd to. [para. 22].

Calliou et al. v. Bouchard et al. (2006), 406 A.R. 44; 2006 ABQB 925, refd to. [para. 22].

Riviera Developments Inc. and Jo-Ker Ventures Ltd. v. Midd Financial Corp. (2002), 325 A.R. 48; 2002 ABQB 853, refd to. [para. 22].

Morash v. Alberta (2000), 250 A.R. 269; 213 W.A.C. 269; 2000 ABCA 24, refd to. [para. 22].

Webber v. Canada (Attorney General) et al. (2005), 385 A.R. 209; 2005 ABQB 718, refd to. [para. 22].

CRC-Evans Pipeline International Inc. et al. v. Noreast Services & Pipelines Ltd. et al., [2014] A.R. Uned. 172; 2014 ABQB 128 (Master), refd to. [para. 22].

Krieter v. Alberta et al. (2014), 590 A.R. 109; 2014 ABQB 349, refd to. [para. 22].

Matco Investments Ltd. et al. v. Dhow Properties Ltd. et al. (2010), 486 A.R. 272; 2010 ABQB 104, refd to. [para. 22].

Volk v. 331323 Alberta Ltd. et al. (1998), 212 A.R. 64; 168 W.A.C. 64; 1998 ABCA 54, refd to. [para. 25].

Kuziw v. Kucheran Estate (2000), 266 A.R. 284; 228 W.A.C. 284; 2000 ABCA 226, refd to. [para. 26].

155569 Canada Ltd. v. 248524 Alberta Ltd. et al. (2004), 350 A.R. 201; 2004 ABQB 17, refd to. [para. 46].

Angevine v. Blue Range Resource Corp. et al. (2007), 423 A.R. 37; 2007 ABQB 443, refd to. [para. 47].

Chutskoff Estate v. Bonora et al. (2014), 590 A.R. 288; 2014 ABQB 389, refd to. [para. 61].

Polar Ice Express Inc. v. Arctic Glacier Inc. (2009), 446 A.R. 295; 442 W.A.C. 295; 2009 ABCA 20, refd to. [para. 67].

Brown v. Silvera (2010), 488 A.R. 22; 2010 ABQB 224, refd to. [para. 68].

Paniccia Estate et al. v. Toal (2012), 521 A.R. 73; 2012 ABQB 11, affd. (2012), 539 A.R. 349; 561 W.A.C. 349; 2012 ABCA 397, refd to. [para. 68].

Counsel:

Matt W. Mulholland (Phillips Gill LLP), for the respondent/plaintiff;

Jennifer A. Miller, Q.C., and Heather D. Goetz (Bennett Jones LLP), for the applicants/defendants, Doug Spaner and Ian Forster;

Brian E. Thompson (Chomicki Baril Mah LLP), for the applicants/defendants, James Canniff, Gordon Drysbrough and Uwe Newmann and as agent for Vivian R. Stevenson (did not attend);

Duncan & Craig LLP, for the applicants/defendants, J.R. Canniff & Associates Counseling Services Ltd., J.R. Canniff & Associates Counseling Services Ltd., operating as Canniff and Associates Psychological and Support Services, and operating as Professional Assessment Services.

This application was heard on April 8, 2014, before Shelley, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on September 2, 2014.