K. v. Caseley et al., 2006 ABQB 396

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 18, 2006
• Citations: 2006 ABQB 396;(2006), 400 A.R. 73 (QB)

K. v. Caseley (2006), 400 A.R. 73 (QB)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. JN.036

Ms. K. (plaintiff/respondent) v. David Caseley and Investors Group Financial Services Inc. (defendants)

David Caseley (plaintiff by counterclaim) v. Ms. K. (defendant by counterclaim)

(9503 21870; 2006 ABQB 396)

Indexed As: K. v. Caseley et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

May 29, 2006.

Summary:

The plaintiff sued the defendants in 1995 for sexual harassment and sexual assault. In March 1999, the last examination for discovery was held. The defendants applied under rule 244.1 to dismiss the plaintiff's action because nothing was done to materially advance the action between March 1999 and March 2004.

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

Editor's note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - The plaintiff sued the defendants in 1995 for sexual harassment and sexual assault - In March 1999, the last examination for discovery was held - The defendants applied under rule 244.1 to dismiss the plaintiff's action because nothing was done to materially advance the action between March 1999 and March 2004 - The plaintiff argued that she obtained the police file of the investigation of the 1995 incident that was the basis for her action - The Alberta Court of Queen's Bench allowed the application and dismissed the plaintiff's action - Obtaining the police investigation file presumably helped the plaintiff prepare her position for trial, but it did not advance the action - Obtaining information that led a party to potential evidence to support their position was not a required step under the Rules of Court - See paragraphs 40 to 46.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - The plaintiff sued the defendants in 1995 for sexual harassment and sexual assault - In March 1999, the last examination for discovery was held - The defendants applied under rule 244.1 to dismiss the plaintiff's action because nothing was done to materially advance the action between March 1999 and March 2004 - The plaintiff argued that she obtained a publication ban - The Alberta Court of Queen's Bench allowed the application and dismissed the plaintiff's action - Obtaining a publication ban might have allowed the plaintiff to feel more comfortable about going to trial but it did not advance the action to trial - Obtaining a publication ban was not a step that was required by the Rules of Court - See paragraphs 47 to 52.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - The plaintiff sued the defendants in 1995 for sexual harassment and sexual assault - The defendant Caseley counterclaimed - In March 1999, the last examination for discovery was held - The defendants applied under rule 244.1 to dismiss the plaintiff's action because nothing was done to materially advance the action between March 1999 and March 2004 - The plaintiff argued that she applied, and was denied, a medical examination of Caseley - The Alberta Court of Queen's Bench allowed the application and dismissed the plaintiff's action - Being denied the opportunity to conduct a medical examination of Caseley was not a thing that materially advanced the main action - In her own lawsuit, where the plaintiff was looking for damages, there was obviously no need to get an independent medical examination of Caseley - Further, the plaintiff's actions in the counterclaim had no direct bearing on the main action - See paragraphs 53 to 55.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - The plaintiff sued the defendants in 1995 for sexual harassment and sexual assault - In March 1999, the last examination for discovery was held - The defendants applied under rule 244.1 to dismiss the plaintiff's action because nothing was done to materially advance the action between March 1999 and March 2004 - The plaintiff argued that she made settlement offers to the parties - The Alberta Court of Queen's Bench allowed the application and dismissed the plaintiff's action - The mere sending out of settlement offers did not materially advance an action - The parties were acting severally - The defendant Caseley did not respond to the plaintiff's offer - The defendant Investors Group Financial Services Inc. did not participate in the plaintiff's settlement offer - See paragraphs 56 to 62.

Cases Noticed:

Howard v. Calgary Chief of Police et al. (2001), 302 A.R. 266 (Q.B.), refd to. [para. 14].

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. 14].

Riviera Developments Inc. and Jo-Ker Ventures Ltd. v. Midd Financial Corp. (2002), 325 A.R. 48; 2002 ABQB 853, refd to. [para. 14].

Morasch v. Alberta (2000), 250 A.R. 269; 213 W.A.C. 269; 75 Alta. L.R.(3d) 257 (C.A.), refd to. [para. 14].

Co-operators Life Insurance Co. v. Rollheiser (1998), 231 A.R. 98 (Q.B.), refd to. [para. 15].

Tire City & Auto Inc. v. Harrison et al. (2002), 319 A.R. 75 (Q.B.), refd to. [para. 15].

Campbell (J.K.) & Associates Ltd. (Bankrupt) v. Lethbridge General and Auxiliary Hospital and Nursing Home District No. 65 et al. (2000), 264 A.R. 107; 2000 ABQB 331, refd to. [para. 15].

Webber v. Canada (Attorney General) et al. (2005), 385 A.R. 209; 2005 ABQB 718, refd to. [para. 15].

Volk v. 331323 Alberta Ltd. et al. (1998), 212 A.R. 64; 168 W.A.C. 64 (C.A.), refd to. [para. 16].

Bishop et al. v. Calgary et al. (1998), 228 A.R. 73; 188 W.A.C. 73 (C.A.), refd to. [para. 16].

Kuziew v. Kucheran Estate (2000), 266 A.R. 284; 228 W.A.C. 284 (C.A.), refd to. [para. 16].

Moeckl et al. v. Canadian Premier Life Insurance Co. (2002), 322 A.R. 389 (Q.B. Master), refd to. [para. 16].

Protasiwich v. Archer Memorial Hospital et al. (1999), 251 A.R. 332 (Q.B.), refd to. [para. 16].

Calgary (City) v. Chisan (2000), 271 A.R. 384; 234 W.A.C. 384 (C.A.), refd to. [para. 16].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 33 C.R.(4th) 1; 103 C.C.C.(3d) 1, refd to. [para. 17].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 18].

Sierra Club of Canada v. Canada (Minister of Finance) et al., [2002] 2 S.C.R. 522; 287 N.R. 203; 2002 SCC 41, refd to. [para. 18].

Doe v. Roe et al. (1999), 243 A.R. 146 (Q.B.), refd to. [para. 18].

John Doe v. Joe Smith (2001), 288 A.R. 184 (Q.B.), refd to. [para. 18].

Vallance v. Gourlay-Vallance (2002), 325 A.R. 296 (Q.B.), refd to. [para. 18].

Statutes Noticed:

Rules of Court (Alta.), rule 244.1 [para. 1 et seq.].

Counsel:

Shelley L. Miller, Q.C. (Fraser Milner Casgrain LLP), for the plaintiff, Ms. K.;

Barry D. Young, Q.C. (Bryan & Company), for the defendant, Investors Group Financial Services Inc.;

D'Arcy Depoe (Fleming DePoe Gubbins), for the defendant, David Caseley.

This application was heard on May 18, 2006, by Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on May 29, 2006.