Webber v. Canada (Attorney General) et al., (2005) 385 A.R. 209 (QB)

• Judge: Greckol, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 12, 2005
• Citations: (2005), 385 A.R. 209 (QB);2005 ABQB 718

Webber v. Can. (A.G.) (2005), 385 A.R. 209 (QB)

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. OC.052

David Webber (applicant/plaintiff) v. Attorney General of Canada, the Warden of Bowden Federal Penitentiary, Mitch Kassen, Her Majesty The Queen in Right of Alberta, John Doe Nos. 1-5 and Richard Roe (respondents/defendants) and The Attorney General of Canada, the Warden of Bowden Federal Penitentiary, Mitch Kassen (third party)

(9803-12548; 2005 ABQB 718)

Indexed As: Webber v. Canada (Attorney General) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Greckol, J.

October 4, 2005.

Summary:

A Master dismissed the plaintiff's action under rule 244.1 (drop dead rule) on the ground that five years had elapsed since a "thing" was done to materially advance the action. The Master rejected the submission that there was a rule 243.1(1) standstill agreement that excluded the application of rule 244.1. The plaintiff appealed.

The Alberta Court of Queen's Bench dismissed the appeal. The court agreed that there was no "thing" done to materially advance the action for over five years and that there was no express standstill agreement excluding the application of the "drop dead" rule.

Courts - Topic 1127

Masters - Appeals from - Standard of review - A Master applied the five year "drop dead" rule to dismiss the plaintiff's action - The plaintiff appealed - The Alberta Court of Queen's Bench stated that "the appropriate standard to be applied to the Master's decision is that set out in Trout Lake ... This is a hearing de novo for review of the Master's exercise of discretion. The question is whether an error of law has been made or the decision is unreasonable in that no weight or insufficient weight was given to relevant considerations. ... Further, a degree of deference must be accorded to the Master's decision: his discretion will not be interfered with unless it is shown that he did not give proper weight to relevant considerations, he proceeded arbitrarily, or the decision is clearly wrong, leading to an injustice." - See paragraph 22.

Limitation of Actions - Topic 9606

Enlargement of time period - General - By agreement of parties (incl. standstill agreement) - A Master dismissed the plaintiff's action under rule 244.1 (drop dead rule) on the ground that five years had elapsed since a "thing" was done to materially advance the action - The Master rejected the submission that there was a rule 243.1(1) standstill agreement that excluded the application of rule 244.1 - Before the five year period expired, the plaintiff sought dates to examine for discovery one of the defendants - The defendant suggested that discovery be put off to pursue settlement negotiations, which were ultimately unsuccessful - The Alberta Court of Queen's Bench agreed that there was no standstill agreement under rule 243.1(1) - Rule 243.1(1) required an express, rather than implicit, standstill agreement - At no time did the defendant relinquish its right to invoke rule 244.1 - Further, written notice of a standstill agreement must be given to all parties - The plaintiff had sued the federal and provincial governments and there was no evidence that both were given notice - See paragraphs 51 to 56.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - A Master dismissed the plaintiff's action under rule 244.1 (drop dead rule) because no "thing" had been done for over five years to materially advance the action - The plaintiff requested dates for discovery, but one of the defendants requested that a settlement be pursued first - The defendant requested medical information, which the plaintiff promptly obtained, but had not provided to the defendant before the defendant's rule 244.1 application - The Master held that neither the unsuccessful settlement negotiations, nor the obtention of medical reports by the plaintiff, were things that materially advanced the action - Accordingly, absent a standstill agreement, the action must be dismissed - The Alberta Court of Queen's Bench agreed - A procedural step was a thing that materially advanced the action, but the step must be completed - Merely setting a date for examinations for discovery did not materially advance an action - Had the plaintiff provided the medical report to the defendant, that would have constituted a thing that materially advanced the action, restarting the five year clock - See paragraphs 25 to 50.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - Rule 244.1 (drop dead rule) provided for dismissal of an action where there had been no "thing" done to materially advance the action for five years - The Alberta Court of Queen's Bench held that once five years passed with no "thing" done to materially advance the action, the action was to be dismissed, even if the plaintiff took some step before the defendant's application to dismiss - The court stated that "a delaying party cannot extend the five-year period by unilaterally taking an action before the application to dismiss is made" - See paragraph 31.

Cases Noticed:

Trout Lake Store Inc. v. Canadian Imperial Bank of Commerce et al. (2002), 307 A.R. 190; 2002 ABQB 159, refd to. [para. 22].

Bloome v. Herman (1993), 145 A.R. 16; 55 W.A.C. 16 (C.A.), refd to. [para. 22].

Willman v. Administrator, Motor Vehicle Accident Claims Act (1979), 17 A.R. 608; 11 Alta. L.R.(2d) 110 (C.A.), refd to. [para. 22].

Kuziw v. Kucheran Estate (2000), 266 A.R. 284; 228 W.A.C. 284 (C.A.), refd to. [para. 25].

Bennison v. Provident Life & Accident Insurance Co. (2000), 269 A.R. 172 (Q.B.), refd to. [para. 25].

Morasch v. Alberta (2000), 250 A.R. 269; 213 W.A.C. 269 (C.A.), refd to. [para. 26].

Filipchuk v. Ladouceur et al. (2001), 277 A.R. 192; 242 W.A.C. 192 (C.A.), refd to. [para. 27].

Trout Lake Store Inc. v. Canadian Imperial Bank of Commerce et al. (2003), 330 A.R. 379; 299 W.A.C. 379; 31 Alta. L.R.(3d) 243; 2003 ABCA 259, refd to. [para. 28].

Howard v. Calgary Chief of Police et al. (2001), 302 A.R. 266 (Q.B.), refd to. [para. 37].

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. 42].

Pinder v. Sproule et al. (2003), 333 A.R. 132; 2003 ABQB 33, refd to. [para. 43].

Appleyard et al. v. Reed et al. (1997), 208 A.R. 236; 55 Alta. L.R.(3d) 279 (Q.B.), refd to. [para. 46].

525812 Alberta Ltd. v. Purewal (2004), 366 A.R. 1; 2004 ABQB 938, refd to. [para. 54].

Statutes Noticed:

Rules of Court (Alta.), rule 243.1(1), rule 244.1 [para. 21].

Counsel:

Laurie Wood (Wood Law Office), for the applicant/plaintiff;

Barrt Benkendorf (Department of Justice), for the respondents, Attorney General of Canada, Bowden Federal Penitentiary and Mitch Kassen;

Neil R. Boyle (Alberta Justice), for the respondent, Alberta.

This appeal was heard on August 12, 2005, before Greckol, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on October 4, 2005.