TD Meloche Monnex Insurance Company (“TD Meloche”) was one of the few remaining Defendants in the underlying Action, which the Plaintiff (“Mr. Nammo”) commenced in 2014.  TD Meloche applied to have the Action struck on various grounds including: (1) delay under rule 4.33; (2) that the Action was commenced out of time pursuant to the Limitations Act, RSA 2000 c. L-12; and (3) that the Action be dismissed because it was commenced as a collateral attack on previous proceedings that Mr. Nammo had brought before the Alberta Law Enforcement Review Board (the “ALERB”).

In addressing the issue of delay, Master Robertson found that the apparent last step in this Action was a request by Mr. Nammo sent to the former Chief Justice for a jury Trial in June of 2016 (the “Jury Trial Letter”). In reviewing the history of the file, Master Robertson noted that the (former) Chief Justice responded to the Jury Trial Letter in August of 2016, denying the request.  Unfortunately, in reviewing the Court file the (former) Chief Justice had made an error believing that the Action had been dismissed as against all Defendants including TD Meloche, which grounded his Lordship’s decision to reject the Jury Trial Letter. Master Robertson further noted that TD Meloche was never advised of the Jury Trial Letter and described two possible ways of dealing with its provision in response to the dismissal for long delay Application brought under Rule 4.33: (1) the Court could view the correspondence as an administrative error which, at best, could be described as “institutional delay” as discussed in Ma v Kwan, 2019 ABQB 89 (CanLII).  If so, that time could be taken into account for purposes of Rule 4.33 and could be considered to have “stopped” pending resolution; or (2) the request itself for a jury Trial, not resolved, might also be said not to have significantly advanced the Action. 

Master Robertson noted analogous jurisprudence and found that if the Application for a jury Trial had been brought as a formal Application to be heard in Chambers, the filing and service of it would not have advanced the Action. Master Robertson emphasized that case law has held that simply filing and serving an Application, but not having it actually heard, does not significantly advance an Action nor does it actually advance the Action at all.

Master Robertson concluded that Mr. Nammo’s letter written to the Chief Justice, not even copied to other parties, could not have a more powerful effect on the advance of the Action than a formal Application would have. Accordingly, Master Robertson, finding that no actions had been taken to advance the Action within the last three years, dismissed the Action pursuant to Rule 4.33 with Costs. Master Robertson invoked Rule 9.4, allowing TD Meloche to prepare the Order without the approval of Mr. Nammo as to its form.