Focus On

CIVIL PROCEDURE - Disposition without trial - Delay or failure to prosecute

Tuesday, August 03, 2021 @ 9:27 AM  

Lexis Advance® Quicklaw®
Appeal by the plaintiff from a decision upholding a master’s decision to strike out the statement of claim against the respondent based on delay, as being statute barred and as a collateral attack. The appellant sued a third party for damages resulting from a 2006 motor vehicle accident. The respondent was the defendant’s insurer and hired counsel to defend the action. The action was dismissed in 2008. Thereafter, the appellant commenced numerous complaints to police. His complaints to police and the Alberta Law Enforcement Review Board alleging conspiracy and wrongdoing in relation to his court proceedings were all dismissed. The present action was commenced in 2014 asserting the same type of conspiracy and wrongdoing as alleged before the police and the Board as far back as 2008 but adding further defendants. The master dismissed the action in 2019.

HELD: Appeal dismissed. The chambers judge did not err in upholding the master’s finding that no significant steps had been taken in the action for three years. The mediation communications, while required by the Rules of Court in 2016, neither narrowed the issues involved in the action nor resulted in the settlement or resolution of any portion of the claim against the respondent. Similarly, the communications with the Chief Justice in 2016, and the associated Federal Court litigation did not narrow the issues in the action or result in any settlement or resolution of any portion of the claim as against the respondent. There was no merit to the suggestion that either the master or the chambers judge engaged in an abuse of power by deciding the merits of the action or preventing the appellant from making substantive submissions on the evidence related to the merits. The master’s decision to adjourn the hearing pending the Associate Chief Justice’s further review of the file did not breach the appellant’s rights as there was genuine confusion about the status of the action. Allowing for a short adjournment to sort through the record was reasonable, and there is nothing on the record to suggest it was inappropriate in any way.

Nammo v. TD Meloche Monnex Insurance Co., [2021] A.J. No. 886, Alberta Court of Appeal, P.W.L. Martin, B.L. Veldhuis and J. Antonio JJ.A., June 30, 2021. Digest No. TLD-August22021001