Pro-Man Construction v. Lennie DeBow and Martin, (1998) 213 A.R. 1 (QB)

• Judge: D. Lee, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 31, 1997
• Citations: (1998), 213 A.R. 1 (QB)

Pro-Man Constr. v. Lennie DeBow (1998), 213 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [1998] A.R. TBEd. JA.019

Pro-Man Construction (plaintiff) v. Lennie DeBow and Martin (defendants)

(Action No. 8203 36622)

Indexed As: Pro-Man Construction v. Lennie DeBow and Martin

Alberta Court of Queen's Bench

Judicial District of Edmonton

D. Lee, J.

January 8, 1998.

Summary:

The plaintiff applied for the requisite leave to take the next step in its action. The appli­cation was adjourned by consent and was never proceeded with. The leave requirement was subsequently abolished. A new delay rule (rule 244.1(1)) required the court to dismiss an action where nothing has been done to materially advance the action within five years. The defendant applied under rule 244.1(1) to dismiss the action for want of prosecution.

A Master of the Alberta Court of Queen's Bench, in a decision not reported in this series of reports, dismissed the action. The plaintiff appealed.

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

Practice - Topic 12

General principles and definitions - Sub­stantive versus procedural rules or rights - A plaintiff sought leave to take the next step in its action - The application was adjourned by consent - The leave require­ment was subsequently abolished - No further steps were taken - A new delay rule (rule 244.1(1)) required the court to dis­miss an action where nothing had been done to materially advance the action within five years - The defendant sought to dismiss the action - The plaintiff claimed that rule 244.1(1) was substantive law and therefore ultra vires the Rules of Court as it affected the plaintiff's alleged vested rights to have its leave application decided - The Alberta Court of Queen's Bench held that rule 244.1(1) was likely a limita­tion period and therefore a substan­tive rule - However, due to the statutory confirma­tion it received in 1997, rule 244.1 was not invalid whether or not it affected vested substantive rights - See paragraphs 52 to 54 and 150 to 160.

Practice - Topic 5366

Dismissal of action - Grounds - General and want of prosecution - Delay - Leave to proceed or take next step - Examination for discoveries were held in 1989 - In March 1994, the plaintiff sought leave to take the next step in its action - The application was adjourned by consent and not proceeded with - In September 1994, the leave requirement was repealed - A new delay rule (rule 244.1(1)) required the court to dismiss an action where nothing had been done to materially advance the action within five years - Nothing further was done to advance the action - In 1997, the defendant applied to dismiss the action - The Alberta Court of Queen's Bench dismissed the action where: (1) rule 244.1(1) was valid; (2) the delay which occurred both prior and after September 1994 was rel­evant; (3) the last material advance occurred in 1989; (4) there was no imped­iment to the plain­tiff proceeding with the action after Sep­tember 1994 - See para­graphs 107 to 199.

Practice - Topic 5366

Dismissal of action - Grounds - General and want of prosecution - Delay - Leave to proceed or take next step - Examination for discoveries were held in 1989 - The plaintiff answered undertakings in 1991 - In 1994, the plaintiff sought leave to take the next step - The application was adjourned by consent - The leave require­ment was subsequently repealed - The plaintiff's application was not proceeded with - No further steps were taken - In 1997, the defendant applied under rule 244.1(1) to dismiss the action where the plaintiff had failed to take a step to materially advance the action within the last five years - The plaintiff asserted, inter alia, that the application seeking leave to take the next step had materially advanced the action - The Alberta Court of Queen's Bench dismissed the action, holding that the last material advance occurred in 1989 - The plaintiff's abandoned or unsuccessful application or compliance with its under­taking did not materially advance the action - See para­graphs 107 to 135 and 167 to 180.

Practice - Topic 5366

Dismissal of action - Grounds - General and want of prosecution - Delay - Leave to proceed or take next step - The last step in a plaintiff's action occurred in 1989 - The plaintiff sought leave to take the next step in March 1994 - The application was adjourned by consent - The leave require­ment was repealed in September 1994 - The plaintiff's application was not pro­ceeded with - No further steps were taken - In January 1997, the defendant applied under rule 244.1(1) to dismiss the action where the plaintiff had failed to materially advance its action within the last five years - The plaintiff asserted that it was caught in a "Catch-22" situation akin to Petersen v. Kupnicki (Alta. C.A) where the last material advance occurred over five years before rule 244.1(1) came into effect - After September 1994, it could only bring its leave application, but rule 244.1(1) would instead mandate the action's dis­missal - The Alberta Court of Queen's Bench rejected the argument, distinguish­ing Petersen v. Kupnicki on the facts - See paragraphs 30 to 38 and 161 to 166.

Statutes - Topic 2263

Interpretation - Presumptions and rules in aid - Against interference with vested rights - A plaintiff sought leave to take the next step in its action - The applica­tion was adjourned by consent - The leave requirement was subsequently abolished - No further steps were taken - A new delay rule (rule 244.1(1)) required the court to dismiss an action where nothing had been done to materially advance the action within five years - The defendant sought to dismiss the action - The plaintiff claimed that it had substantive vested rights as a result of filing its leave appli­cation and that rule 244.1(1) was ultra vires where it affected such vested rights - The Alberta Court of Queen's Bench held that the plaintiff was entitled to proceed with its action under the new Rules and that rule 244.1 did not retroactively affect the plaintiff's alleged vested rights - Fur­thermore, the plaintiff did not have any vested rights resulting from the filing of its application - See paragraphs 39 to 45, 55 to 70, 65 to 82 and 137 to 149.

Statutes - Topic 5313

Operation and effect - Delegated legisla­tion - General and definitions - Prohibition against altering substantive law - [See Practice - Topic 12 ].

Statutes - Topic 6706

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Practice rules - [See Statutes - Topic 2263 ].

Statutes - Topic 6708

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Procedural and substantive matters defined - [See Statutes - Topic 2263 ].

Cases Noticed:

Petersen v. Kupnicki et al. (1996), 187 A.R. 251; 127 W.A.C. 251; 44 Alta. L.R.(3d) 68 (C.A.), dist. [para. 19].

Hnatiuk v. Edmonton (City) et al. (1996), 193 A.R. 76; 135 W.A.C. 76 (C.A.), appld. [para. 21].

Richardson v. Honeywell Ltd. (1996), 181 A.R. 247; 116 W.A.C. 247 (C.A.), refd to. [para. 33].

Ostrowski v. Beef Stabilization Board (Sask.) et al., [1993] 4 W.W.R. 441; 109 Sask.R. 40; 42 W.A.C. 40 (C.A.), refd to. [para. 46].

Paquin v. Gainers Inc., [1990] 2 W.W.R. 378; 101 A.R. 290 (C.A.), refd to. [para. 47].

Hubbard v. Edmonton, [1917] 3 W.W.R. 732 (Alta. C.A.), refd to. [para. 48].

Jardine Estate, Re, [1952] 1 S.C.R. 260, refd to. [para. 52].

Stanley v. Douglas - see Jardine Estate, Re.

Grosvenor Hotel London, Re (No. 2), [1964] 3 All E.R. 354 (C.A.), refd to. [para. 53].

Montreal Trust Co. v. Pelkey (1970), 73 W.W.R.(N.S.) 7 (Man. C.A.), refd to. [para. 53].

Circosta v. Lilly, [1967] 1 O.R. 398 (C.A.), refd to. [para. 53].

Schanz v. Schanz v. Richards et al. (1970), 72 W.W.R.(N.S.) 401 (Alta. S.C. Mas­ter), refd to. [para. 53].

Upper Canada College v. Smith (1920), 61 S.C.R. 413, refd to. [para. 55].

Acme Board of Education v. Steele-Smith, [1933] S.C.R. 47, refd to. [para. 59].

Snider v. Edmonton Sun et al. (1988), 93 A.R. 26; 55 D.L.R.(4th) 211 (C.A.), refd to. [para. 60].

D.D.S. v. R.H. (1993), 141 A.R. 44; 46 W.A.C. 44 (C.A.), refd to. [para. 60].

Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; 7 N.R. 401, refd to. [para. 61].

Martin v. Perrie, [1986] 1 S.C.R. 41; 64 N.R. 195; 12 O.A.C. 269, refd to. [para. 61].

Angus v. Hart and Angus and Sun Alliance Insurance Co., [1988] 2 S.C.R. 256; 87 N.R. 200; 30 O.A.C. 210, refd to. [para. 61].

Teperman & Sons Ltd. v. Toronto (City) (1975), 55 D.L.R.(3d) 653 (Ont. C.A.), refd to. [para. 66].

Oshawa (City) v. 505191 Ontario Ltd. (1986), 14 O.A.C. 217 (C.A.), refd to. [para. 66].

Beaton and Bryant v. Canada, Government of (1981), 37 N.R. 478 (F.C.A.), refd to. [para. 66].

Bank of Nova Scotia v. Plastic & Allied Building Products Ltd., [1993] O.J. No. 2655 (Gen. Div.), refd to. [para. 73].

Cadillac Fairview Corp. v. Allin et al. (1979), 100 D.L.R.(3d) 344 (Ont. H.C.), refd to. [para. 80].

R. v. Ali, [1980] 1 S.C.R. 221; 27 N.R. 243; 21 Nfld. & P.E.I.R. 361; 56 A.P.R. 361, refd to. [para. 84].

Robertson v. Wright (1958), 16 D.L.R.(2d) 364 (Sask. C.A.), refd to. [para. 85].

Tolofson v. Jensen and Tolofson, [1994] 3 S.C.R. 1022; 175 N.R. 161; 77 O.A.C. 81; 51 B.C.A.C. 241; 84 W.A.C. 241; [1995] 1 W.W.R. 609; 120 D.L.R.(4th) 289; 100 B.C.L.R.(2d) 1; 7 M.V.R.(3d) 202, refd to. [para. 95].

Paitson v. Rowan & Cuthill (1919), 15 Alta. L.R. 74 (C.A.), refd to. [para. 97].

Smith v. Christie et al., [1920] 3 W.W.R. 585 (Alta. C.A.), refd to. [para. 99].

R. v. Rivet, [1944] 2 W.W.R. 132 (Alta. C.A.), refd to. [para. 102].

Robitaille v. Vancouver Hockey Club Ltd. (1981), 124 D.L.R.(3d) 228 (B.C.C.A.), refd to. [para. 155].

Alberta v. Yellowhead Wood Products Inc., [1997] A.R. Uned. 260 (Q.B.), refd to. [para. 169].

Dennison v. Devlin (1864), 11 Gr. 84 (Ont.), refd to. [para. 169].

Dugdale v. Johnson (1845), 5 Hare 92; 67 E.R. 841 (Ont.), refd to. [para. 169].

Smith v. Alberta et al. (1996), 188 A.R. 159 (Q.B. Master), refd to. [para. 175].

Appleyard et al. v. Reed et al. (1997), 208 A.R. 236 (Q.B. Master), refd to. [para. 176].

Statutes Noticed:

Interpretation Act, R.S.A. 1980, c. I-7, sect. 31, sect. 32, sect. 33 [para. 67].

Judicature Act, S.A. 1997, sect. 47(1), sect. 47(2) [para. 50].

Rules of Court (Alta.), rule 244.1(1) [para. 164]; rule 964 [para. 151].

Authors and Works Noticed:

Alberta Institute of Law Research and Reform, Validity of the Alberta Rules of Court, Report No. 15 (December 1974), generally [para. 153].

Black's Law Dic­tionary (6th Ed. 1991) [para. 65].

Stevenson and Côté, Civil Procedure Guide (1992), vol. 1, p. 1566 [para. 158].

Stevenson and Côté, Civil Procedure Guide (1996), vol. 1, pp. 2 [para. 155]; 11 [para. 160].

Counsel:

D. Cavanagh and P. Kirman (Weir Bowen), for the plaintiff/appellant;

K. Bailey, Q.C. (Parlee McLaws), for the defendant/respondent.

This appeal was heard on October 31, 1997, before D. Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on January 8, 1998.