Wiens et al. v. Dewald et al., (2012) 535 A.R. 264 (QB)

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 23, 2012
• Citations: (2012), 535 A.R. 264 (QB);2012 ABQB 172

Wiens v. Dewald (2012), 535 A.R. 264 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. MR.138

George Wiens, Susan Wiens and Wye-Knott Millenium Carriers Ltd. (plaintiffs) v. Jim Dewald and Wye-Knott Holdings Ltd. (defendants)

(0401 11316; 2012 ABQB 172)

Indexed As: Wiens et al. v. Dewald et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Veit, J.

March 9, 2012.

Summary:

This action commenced in 2003 was for an accounting between parties for transactions to a joint venture that operated between February 2002 and September 2003. Examination for discovery took place in April 2006. The plaintiffs applied for an order under rules 4.4(2) and 4.31(b), requiring answers to the undertakings within 30 days. The defendants cross-applied for an order under rules 4.31 and 4.33, dismissing the action for delay.

A Master of the Alberta Court of Queen's Bench, in a decision reported at (2011), 520 A.R. 229, allowed the plaintiffs' application and dismissed the defendants' application. The defendants appealed.

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

Courts - Topic 8442

Provincial courts - Alberta - Masters - Appeals from - A Master held that the application by the plaintiffs scheduled for April 21, 2011, for an order to compel compliance with a litigation plan requiring, inter alia, that the parties file a form 37 requesting a trial date prior to October 30, 2011, materially advanced the action and, therefore, relieved the plaintiffs from the imposition of rule 4.33 (dismissal for long delay), which would have taken effect on April 25, 2011 - The Alberta Court of Queen's Bench affirmed the decision - The Master decided not to dismiss the proceedings on an analysis of whether the plaintiffs' litigation plan proposal would have significantly advanced the action - He concluded that he would have granted a procedural order adopting two of the three proposals made by the plaintiffs, including their proposal that a form 37 be filed by a specified date, which was outside the "drop dead" period - Such a decision was a matter of mixed fact and law on which the standard of review was reasonableness - See paragraphs 10 to 18.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - A Master held that the application by the plaintiffs scheduled for April 21, 2011, for an order to compel compliance with a litigation plan requiring, inter alia, that the parties file a form 37 requesting a trial date prior to October 30, 2011, materially advanced the action and, therefore, relieved the plaintiffs from the imposition of rule 4.33 (dismissal for long delay), which would have taken effect on April 25, 2011 - The Alberta Court of Queen's Bench affirmed the decision - The Master's decision that the action would be significantly advanced by setting a date, outside the drop dead period, by which questioning on answers to undertakings, if any, would be completed and by setting a date, also outside the drop dead period, by which a form 37 to obtain a trial date would be filed was reasonable - According to the very wording of rules 4.33(1)(b) and 4.33(1)(c), even things proposed to be done outside the drop dead period might have the effect of shielding an action from the effect of rule 4.33 - Completing and filing a form 37 to obtain a trial date was the contemporary equivalent of filing a certificate of readiness - Filing that form was a required step to get an action to trial and setting a date by which that filing must be completed therefore significantly advanced the action - See paragraphs 19 to 24.

Cases Noticed:

Gottlieb (David M.) Professional Corp. et al. v. Champion Homes Inc. et al. (2012), 528 A.R. 284; 2012 CarswellAlta 121; 2012 ABQB 64, refd to. [para. 6].

Lanset Capital Corp. v. Waterloo Geological Consulting Ltd. (2006), 380 A.R. 210; 363 W.A.C. 210; 2006 ABCA 77, refd to. [para. 6].

Morash v. Alberta (2000), 250 A.R. 269; 213 W.A.C. 269; 2000 ABCA 24, refd to. [para. 6].

Angevine v. Blue Range Resource Corp. et al. (2007), 423 A.R. 37; 2007 ABQB 443, refd to. [para. 6].

Petersen v. Kupnicki et al. (1996), 187 A.R. 251; 127 W.A.C. 251 (C.A.), refd to. [para. 7].

Heikkila v. Apex Land Corp. et al. (2011), 502 A.R. 243; 517 W.A.C. 243; 2011 ABCA 87, refd to. [para. 7].

369413 Alberta Ltd. v. Pocklington et al. (1998), 225 A.R. 173; 1998 ABQB 603, refd to. [para. 8].

Bentley v. Stringer (1999), 246 A.R. 1 (Q.B. Master), refd to. [para. 8].

Seabord Development Ltd. v. Purkis, [1978] B.C.J. No. 1060, refd to. [para. 8].

Bishop et al. v. Calgary (City) et al. (1998), 228 A.R. 73; 188 W.A.C. 73; 1998 ABCA 23, refd to. [para. 8].

Bishop v. Grotrian - see Bishop et al. v. Calgary (City) et al.

Authors and Works Noticed:

Stevenson & Côté, Annotation to the Rules of Court, generally [para. 21].

Counsel:

Katrina Edgerton-McGhan (Scott Venturo LLP), for the appellants/defendants;

Michelle C. Freebairn, Student at Law (Venture Law Group LLP), for the respondents/plaintiffs.

This appeal was heard on February 23, 2012, by Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following memorandum of decision on March 9, 2012.