Aug 23, 2017

Concurrent Personal Injury Actions Don't Justify Glacial Proceedings

Van Fossen v Edmonton (City), 2017 ABQB 503 (CanLII)

Procedural Background

The underlying action involved a claim for personal injury damages arising out of a motor vehicle accident between the plaintiff’s vehicle and a City of Edmonton transit bus. The accident occurred on March 10, 2005. The mechanics of the accident are not reported, but liability was apparently in dispute. The operator of the transit bus passed away on February 8, 2006, unrelated to any trauma suffered in the accident.

Following the March 10, 2015 accident, the plaintiff was involved in three further accidents that caused her injury:

  • September 10, 2008 MVA;
  • September 10, 2008 slip and fall; and
  • August 14, 2009 MVA.

The statement of claim for the March 10, 2005 accident was filed on May 9, 2007, naming the City of Edmonton and its transit bus operator. The claim was served on the City on March 5, 2008. The written reasons of Master Smart provide that “some” settlement discussions took place between counsel for the respective parties after service. Plaintiff’s counsel had previously provided medical records on February 23 and August 17, 2006.

On August 1, 2012, the City brought an application under 4.33.[1] That application was successful and an order dismissing the plaintiff’s claim was granted on September 4, 2012. It was subsequently set aside on September 19, 2012 after the parties realized that 5 years had not passed since the service of the Statement of Claim. The plaintiff demanded a Statement of Defence on February 25, 2013, with the City obliging on March 1, 2013.

The plaintiff changed counsel in late 2014, with a Notice of Change of Representation served on the City on February 11, 2015. The plaintiff served her Affidavit of Records on February 29, 2016, providing her producible records on March 1, 2016. The City filed and served an application under 4.31 and 4.33 the same day, March 1, 2016.

Analysis of Master re 4.31:

Inordinate Delay

In reviewing the entire progress of the action from its start to the date of the 4.31 application, the Master found that 10 years had passed since the Statement of Claim was filed, with nothing occurring to advance the action in the 5 years prior to the Statement of Defence being demanded. A further 3 years (less one day) passed before the Affidavit of Records was served.

Noting that he had “no difficulty in concluding there was delay and that it has been inordinate”, the Master wrote:

Although one must be cautious not to minimize the impacts upon those injured in motor vehicle accidents, there is nothing to suggest there are complexities here that would take this action outside the “run of the mill” motor vehicle personal injury claim. Nor can it be said that there were any significant impediments even in light of the later accidents that have prevented Van Fossen from actively pursuing this litigation.[2]

Is the Inordinate Delay Excusable?

The respondent’s affidavit evidence before the Master exhibited:

  • Six letters to five physicians/clinics that treated the plaintiff, all sent in 2015;
  • A statement of benefits paid from AHS (February 1, 2007 – January 27, 2015); and
  • Chart provided by the physicians/clinics.

The respondent argued that the efforts to obtain these records excused the delay. The Master reviewed the exhibits. He found it noteworthy that what was obtained and provided were treatment charts only, and not all of them dealt with the injuries sustained in the March 2005 accident. The Master went on to write:

Even on a cursory review, it is readily apparent that no attempt has been made to include only relevant and material records but rather it is simply a dump of the records received. Again, notable is the lack of records demonstrating consultation with experts to obtain opinions crucial to resolution of this action and the others, never mind the actual preparation of any experts’ reports.[3]

The Master concluded that the inordinate delay was not excused by the steps taken in 2015.

Did the Inordinate Delay Cause Prejudice?

The defendant transit bus operator predeceased the filing of the Statement of Claim, which was noted to be prejudicial but not attributable to the delay. The Master was, however, prepared to accept that, because of the death of the transit bus operator, the only other witnesses that might be available were likely to have limited recollection of an accident that occurred 12 years prior (with many years to go before a trial of the action was actually heard).[4]

Ultimately, the presumption found in 4.31 was triggered by the Master’s finding of inordinate and inexcusable delay, and there was no evidence proffered to raise a legitimate doubt about the existence of significant prejudice.[5]

Conclusion:

The Master concluded that the requirements of Rule 4.31 were met and the action would be dismissed (if it were necessary to the disposition of the application; he also found Rule 4.33 was engaged, which requires a court to dismiss).


[1] Note that this application appears to have been brought under Rule 244.1 of the former Alberta Rules of Court, Alta Reg 390/1968.

[2] At para 8.

[3] At para 9.

[4] At para 11.

[5] Supra.