Kurian v. Administrator, Motor Vehicle Accident Claims Act (Alta.) et al., (2007) 431 A.R. 141 (QB)

• Jurisdiction: Alberta
• Court: Court of Queen's Bench of Alberta (Canada)
• Judge: Sulyma, J.
• Citation: (2007), 431 A.R. 141 (QB),2007 ABQB 369
• Date: 04 December 2006

Kurian v. MVA Admin. (2007), 431 A.R. 141 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. NO.073

John Kurian (plaintiff) v. The Administrator of the Motor Vehicle Accident Claims Act, John A. Doe, John B. Doe, John Doe Limited and Jason Matthew Miller (defendants)

(9503-24647)

John Kurian (plaintiff) v. Kenneth B. Trudgeon (defendant)

(9503 24982)

John Kurian and Sheila Kurian, a minor, by her next friend, John Kurian (plaintiffs) v. Willard E. Rogers (defendant)

(9503 249830; 2007 ABQB 369)

Indexed As: Kurian v. Administrator, Motor Vehicle Accident Claims Act (Alta.) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Sulyma, J.

June 1, 2007.

Summary:

In 1995, the plaintiff brought three actions for damages for injuries sustained in three motor vehicle accidents which occurred between December 1993 and January 1994. The defendants applied to dismiss the actions pursuant to rule 244.1 on the basis that more than five years had expired from the time that the last thing was done to materially advance the actions or, alternatively, pursuant to rule 244 on the basis that there had been inordinate delay.

The Alberta Court of Queen's Bench dismissed the applications.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - In 1995, the plaintiff brought three actions for damages for injuries sustained in three motor vehicle accidents which occurred between December 1993 and January 1994 - The only examination for discovery occurred in 1998 - Subsequent to that, the majority of time was taken up with numerous applications surrounding the provision of documents and compliance with undertakings - The last of the affidavits of disclosure was provided in 2003 - The defendants applied to dismiss the actions pursuant to rule 244 on the basis that there had been inordinate delay - The Alberta Court of Queen's Bench dismissed the application - There had been inordinate delay and the plaintiff's reasons for the delay (his long and complex medical history, his disabilities and his difficulties obtaining counsel) were not credible excuses - However, the plaintiff had rebutted the presumption of serious prejudice to the defendants - Since liability was not an issue in at least two of the actions, the court agreed with the plaintiff's statement that any prejudice could be remedied by reference to information available through his records, his examination for discovery and investigations - The passage of time alone and the possibility of failed memories was not proof of serious prejudice - See paragraphs 80 to 90.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - In 1995, the plaintiff brought three actions for damages for injuries sustained in three motor vehicle accidents which occurred between December 1993 and January 1994 - In January 2002, the court ordered that the plaintiff be held in contempt of court and that he pay costs in each of the three actions for applications which were held in June 2001 - Costs were directed to be payable forthwith and in any event of the cause and the plaintiff's actions were stayed until costs were paid - In 2005, the plaintiff filed a Notice of Motion to vary the contempt order and remove the stays - The defendants subsequently applied to dismiss the actions pursuant to rule 244.1 on the basis that more than five years had expired from the time that the last thing was done to materially advance the actions - The Alberta Court of Queen's Bench dismissed the application - The court held that the Notice of Motion filed by the plaintiff in 2005 to vary the contempt order and remove the stays constituted a thing that materially advanced the actions - See paragraphs 73 to 79.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - In 1995, the plaintiff brought three actions for damages for injuries sustained in three motor vehicle accidents which occurred between December 1993 and January 1994 - The defendants applied to dismiss the actions pursuant to rule 244.1 on the basis that more than five years had expired from the time that the last thing was done to materially advance the actions - The Alberta Court of Queen's Bench held that the following acts did not materially advance the actions in the relevant time frame: 1. the provision of any undertakings; 2. the granting of a contempt order in January 2002; 3. a consent order entered into in August 2003 agreeing to stay the contempt order pending the appeal and adjourning the trial sine die; 4. the taxation relating to the contempt order; 5. the change of counsel by the plaintiff; and 6. the formal appointment and settlement of the co-plaintiff's claim - See paragraph 61.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - In 1995, the plaintiff brought three actions for damages for injuries sustained in three motor vehicle accidents which occurred between December 1993 and January 1994 - The defendants applied to dismiss the actions pursuant to rule 244.1 on the basis that more than five years had expired from the time that the last thing was done to materially advance the actions - The Alberta Court of Queen's Bench held, inter alia, that "the June 25, 2000 order directing a Conditional Certificate of Readiness be entered and setting the matter down for a 20-day trial did constitute a step taken to materially advance the actions. However, the order is outside of the temporal window to be considered for the purpose of this application. I further find that the plaintiff's refusal to complete that Certificate frustrated any material advancement of the actions and for that reason also my order cannot be considered to be a step that occurred to materially advance these actions" - See paragraph 63.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - In 1995, the plaintiff brought three actions for damages for injuries sustained in three motor vehicle accidents which occurred between December 1993 and January 1994 - The defendants applied to dismiss the actions pursuant to rule 244.1 on the basis that more than five years had expired from the time that the last thing was done to materially advance the actions - The Alberta Court of Queen's Bench held that the plaintiff's affidavits of disclosure which were provided pursuant to the court's January 2002 order were not things that materially advanced the lawsuit - The court stated that "These affidavits of disclosure were not required by the Rules of Court. Therefore, the documents produced must be found to be things that moved the lawsuit closer to trial in a meaningful way" - The court concluded that "The provision of the two affidavits of disclosure and the documents listed within did not move the actions towards trial in a meaningful way" - See paragraphs 64 to 69.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - In 1995, the plaintiff brought three actions for damages for injuries sustained in three motor vehicle accidents which occurred between December 1993 and January 1994 - The defendants applied to dismiss the actions pursuant to rule 244.1 on the basis that more than five years had expired from the time that the last thing was done to materially advance the actions - The Alberta Court of Queen's Bench held that the pursuance of and preparation for a Judicial Dispute Resolution (J.D.R.) was not a thing that materially advanced the actions - The court stated that "it does not appear that the materials exchanged for J.D.R. were helpful in advancing the litigation. Instead, it appears that the parties merely exchanged and copied previously supplied materials and ultimately disagreed on the usefulness of completing the process. Had the J.D.R. ensued or if the preparation for the J.D.R. had helped the parties to narrow down issues or be in a better position to proceed to trial, it may have been a thing that materially advanced the actions. That did not occur and in the end the parties were farther from litigating these claims than they were prior to the process" - See paragraphs 70 to 72.

Practice - Topic 5360.1

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

Practice -Topic 5362.1

Dismissal of action - Grounds - General and want of prosecution - Inference of prejudice (incl. rebuttal of) - [See first Practice - Topic 5360 ].

Cases Noticed:

Morasch v. Alberta (2000), 250 A.R. 269; 213 W.A.C. 269; 2000 ABCA 24, refd to. [para. 19].

Kuziew v. Kucheran Estate (2000), 266 A.R. 284; 228 W.A.C. 284; 2000 ABCA 226, refd to. [para. 23].

Zazulak v. Verbeek (2006), 400 A.R. 146; 2006 ABQB 261, refd to. [para. 26].

Malcolm et al. v. Canada (Minister of Indian Affairs and Northern Development) et al. (2006), 395 A.R. 233; 2006 ABQB 152 (Master), refd to. [para. 30].

Volk v. 331323 Alberta Ltd. et al. (1998), 212 A.R. 64; 168 W.A.C. 64; 1998 ABCA 54, refd to. [para. 32].

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. 33].

Deis v. Koch Oil Ltd. et al. (2001), 304 A.R. 371; 2001 ABQB 997, refd to. [para. 36].

Van Wezel v. Hoshowski (1993), 147 A.R. 308 (Q.B. Master), refd to. [para. 37].

Young v. Dei-Baning (A.) Professional Corp. et al. (1996), 184 A.R. 209; 122 W.A.C. 209 (C.A.), refd to. [para. 38].

Miller v. Carter et al. (2002), 319 A.R. 95; 2002 ABQB 100, refd to. [para. 38].

Cooke v. Calgary Civic Employees Benefit Society et al. (2003), 350 A.R. 228 (Q.B.), affd. (2004), 354 A.R. 30; 329 W.A.C. 30; 2004 ABCA 207, refd to. [para. 39].

Gribben v. Downer, [1953] O.W.N. 408; 1953 CarswellOnt 220 (H.C.), refd to. [para. 44].

Metropolitan Life Insurance Co. v. Hover (1999), 237 A.R. 30; 197 W.A.C. 30; 1999 ABCA 123, refd to. [para. 44].

Bains Engineering Corp. v. 734560 Alberta Ltd. et al. (2004), 366 A.R. 291; 2004 ABQB 780, refd to. [para. 45].

Canada (Attorney General) v. Boeing Co. et al., [1998] O.T.C. Uned. 211; 1998 CarswellOnt 4668 (Gen. Div.), refd to. [para. 52].

Bostrom v. Kumar Estate, 1994 CarswellOnt 4216 (Gen. Div.), refd to. [para. 53].

Landry v. Pollock (1995), 44 C.P.C.(3d) 140; 1995 CarswellOnt 1337 (C.A.), refd to. [para. 54].

Craft v. Craft (1983), 55 A.R. 21; 1983 CarswellAlta 175 (Q.B.), refd to. [para. 56].

S.W. et al. v. K.T. et al. (2005), 379 A.R. 320; 2005 CarswellAlta 566 (Q.B.), refd to. [para. 56].

Berube et al. v. Wingrowich et al. (1999), 251 A.R. 128; 1999 CarswellAlta 1429 (Q.B.), refd to. [para. 59].

Co-operators Life Insurance Co. v. Rollheiser (1998), 231 A.R. 98; 1998 ABQB 874, refd to. [para. 64].

Howard v. Calgary Chief of Police et al. (2001), 302 A.R. 266; 2001 ABQB 904, refd to. [para. 65].

Smith v. Alberta et al. (1996), 188 A.R. 159; 49 C.P.C.(3d) 94 (Q.B. Master), refd to. [para. 66].

Gresiuk v. Wawanesa Mutual Insurance Co. (2002), 316 A.R. 269 (Q.B.), refd to. [para. 66].

Reimer et al. v. Simms et al. (2006), 399 A.R. 334; 2006 ABQB 326 (Master), refd to. [para. 66].

Swan v. Holmes et al. (2004), 358 A.R. 397; 2004 ABQB 162, refd to. [para. 66].

Appleyard v. Reed, [1997] A.J. No. 1067, refd to. [para. 66].

Peterka v. Nieman et al., [1998] A.R. Uned. 18; 1998 ABCA 14, refd to. [para. 67].

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. 75].

Peterka v. Nieman et al. (2001), 299 A.R. 163; 266 W.A.C. 163; 2002 ABCA 23, refd to. [para. 77].

Statutes Noticed:

Rules of Court (Alta.), rule 244, rule 244.1 [para. 1].

Counsel:

John Kurian, appeared on his own behalf;

G.J. Bigg and J.A. Kemp, Agents of the Court, for the plaintiff;

P.G. Kirman, for the defendants, The Administrator of the Motor Vehicle Accident Claims Act, John A. Doe, John B. Doe Limited, and Jason Matthew Miller;

J.R. Black, Q.C., for the defendant, Willard Rogers;

B.A. Harnum, for the defendant, Kenneth Trudgeon.

These applications were heard on December 4, 2006, before Sulyma, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on June 1, 2007.