NAMMO v CANADA (JUSTICE AND ATTORNEY GENERAL), 2021 ABQB 245
MARTIN, VELDHUIS AND ANTONIO JJA
2.28: Change in lawyer of record or self-representation
4.33: Dismissal for long delay
This was an Appeal of a Chamber Judge’s Decision to uphold a Master’s Decision to dismiss and strike a Statement of Claim against the Respondent on the grounds that: (1) the Statement of Claim was a collateral attack, (2) the Statement of Claim was filed outside of the limitations period, and (3) three or more years had passed without a significant advance in the Action under Rule 4.33.
The Appellant was involved in a motor vehicle accident in 2006 and sued another individual in Provincial Court in 2007. The Respondent, who was the Defendant’s insurer, hired legal counsel and the claim was dismissed. The Appellant appealed that Decision. That Appeal was heard in September 2008 and dismissed. The Appellant then filed a complaint regarding the claim with the Calgary Police Service (“CPS”). After receiving an unsatisfactory response, the Appellant then filed a complaint with the CPS regarding their investigation of his initial complaint. Multiple complaints and Appeals to the Alberta Law Enforcement Review Board, Calgary Police Commission and Chief Judge of the Provincial Court were filed and dismissed.
The Appellant commenced the underlying Action in July 2014 alleging that the police, lawyers, Judges, and the insurance industry were part of a conspiracy to extort citizens. A number of other justice system participants were named in this Action. Several Defendants to the underlying Action had applied to have the claim struck or dismissed against them. The Appellant’s appeals of those Decisions were dismissed as were his two Applications for leave to argue at the Supreme Court of Canada. The last Application for leave was dismissed on January 17, 2019.
One June 28, 2016, the Appellant wrote to the Chief Justice of the Alberta Court of Queen’s Bench seeking a jury Trial. The Chief Justice responded on August 2, 2016, noting that there were no Defendants remaining and that no jury Trial would be permitted. The Appellant wrote on August 4, 2016, clarifying that the Action remained against the Respondent.
On February 20, 2019, the Respondent applied seeking to strike or summarily dismiss the underlying Action as against them. The Application did not refer to Rule 4.33 but the Affidavit and submissions before the Master made it clear that the Respondent was relying on a period of long delay pursuant to Rule 4.33. The Respondent did not refer to Rule 3.68 in the Application when making its arguments on collateral attack and limitations, however the language used in the Application and Affidavit made it clear that the arguments were before the Court and the parties provided submissions.
On the Rule 4.33 argument, the Master had determined that the last step in the Action was a Court of Appeal decision in 2015 and that the communication with the Chief Justice in 2016 did not significantly advance the litigation. On the limitation period argument, the Master considered the history and successful Applications of the other Defendants regarding limitations periods. The Master had also concluded that the Appellant’s claim was a collateral attack on a number of other proceedings. Ultimately, the Master dismissed the underlying Action against the Respondent and remaining Defendants. The Chambers Judge found no errors in the Master’s reasons.
In the current Appeal the Appellant argued, amongst other things, that the Chambers Judge erred: in his Rule 4.33 analysis by concluding no steps had been taken to advance the Action; by granting the 4.33 Application and dismissing the Action against the other Defendants who were not Applicants; and that the Chambers Judge violated his rights and allowed the Respondents to violate Rule 2.28 by allowing a lawyer to make representations when no notice of change of lawyer was filed.
The Appellant argued that the communications with the Chambers Judge in 2016 and the Supreme Court of Canada’s Decision to deny leave in 2019 constituted steps that advanced the litigation. The Court of Appeal was not satisfied that any of these steps advanced the litigation and dismissed this ground of appeal.
The Appellant argued that the Master exceeded their jurisdiction by dismissing the Action against the other Defendants when deciding the Rule 4.33 Application. The Court of Appeal found that the Master did not exceed their authority in granting that remedy, and that the Chambers Judge did not make a jurisdictional error in upholding the Decision.
The Court of Appeal noted that there was no language in Rule 2.28 stating that an Application must be dismissed or that a Court must not hear submissions if notice of change in legal counsel was not provided to a party. Counsel for the Respondent provided the Chambers Judge with a copy of the notice which was filed before the second appearance in front of the Master. There was no evidence that the notice was served on the Appellant. The Appellant did eventually learn of the identity of counsel for the Respondents and did not suffer any harm or prejudice. Accordingly, the Court of Appeal dismissed this ground of appeal.
After considering all of the Appellant’s arguments, the Court of Appeal dismissed the Appeal.View CanLII Details