HARTSON v PARK PAVING LTD, 2021 ABQB 742
6.14: Appeal from master’s judgment or order
9.15: Setting aside, varying and discharging judgments and orders
The Plaintiff appealed a Master’s decision that struck her claim. The Plaintiff argued the Master had incorrectly decided that she had not complied with undertakings given at Questioning and the Master had failed to consider alternatives to striking the Action.
The Court noted that new evidence is admissible on appeal of a Master’s Judgment or Order pursuant to Rule 6.14(3) of the Rules. The Court determined and in turn rejected the Plaintiffs’ assertions: (1) that a promise to provide a response to an undertaking in the future was a satisfactory response to an undertaking (2) and that responses to undertakings could be clothed in settlement privilege.
The Court relied on Custom Metal Installations Ltd v Winspia Windows (Canada) Inc 2020 ABCA 333 in finding that the Consent Order that obligated the Plaintiff to comply with undertakings and document production was an interlocutory procedural matter. The Court thereby determined that it retained the discretion to vary or discharge the Order per Rule 9.15(4) and was entitled to consider whether a variation or discharge of the Order was just.
The Court found that striking the action was just in the circumstances by taking into consideration that:
- Noncompliance with the Consent Order was substantial and persistent,
- No reasonable excuse had been offered,
- No appropriate Affidavit had been proffered explaining the reasons for non-compliance,
- The overall pattern of delay in fully responding to the undertakings extended beyond four years, and
- Even after striking the Action, the Plaintiff had not provided sufficient responses.
The Appeal was dismissed.View CanLII Details