Thoreson The Final Chapter Greg Weber Barrister Solicitor

Thoreson: The Final Chapter Greg Weber, Barrister & Solicitor

December 3, 2003

The Business Loss Trial …. that never was. Thoreson and 360672 Alberta Ltd. v Alberta (Infrastructure), 2020 ABCA 146 1. Do the Rules of Court apply to expropriation proceedings brought in Queen’s Bench? 2. Was the case properly dismissed under Rule 4. 31?

Outline 1. Brief overview of the business loss claim 2. Litigation chronology 3. Decision a) Applicability of Rules of Court b) Application of Rule 4. 31 c) Contempt

1. Business Loss • Quarter horse stallion breeding • Western Wear - Manufacturing - Retail - Trade shows

2. Chronology First Market Value Trial – Sullivan J • February 8, 2005 – Statement of Claim • March 14 -15, 2005 – Questioning • July 11 -22, 2005 – Trial • August 12, 2005 – Decision released • September 7, 2006: CA overturns trial decision

2. Chronology Second Market Value Trial • • August 25, 2009: Application to sever business losses May 17 -27, 2010: 2 nd Market Value Trial before Mc. Carthy J December 1, 2010: Decision released May 9, 2012: CA hears appeal of Mc. Carthy’s decision June 4, 2012: CA dismisses appeal June 15, 2012: Mc. Carthy J releases costs decision January 29, 2014: CA dismisses appeal of costs decision

2. Chronology Business Loss Proceedings • • • June 30, 2011: Plaintiffs served its expert report August 30 -31, 2011: Ms. Thoreson was questioned; gave Uts December 7, 2012: Business Loss trial set for Sept 16, 2013 June 14, 2013: Plaintiffs apply to adjourn trial June 15, 2013: Plaintiffs become self-represented July 15, 2013: Trial adjourned sine die; Ms. Thoreson ordered to answer further questions • February 27, 2014: Ms. Thoreson provides partially completed answers

2. Chronology Business Loss Proceedings • • July 20, 2017: Plaintiffs retain new counsel November 2, 2017: Trial set by consent to commence March 18, 2019 December 8, 2017: Plaintiffs terminate counsel, become self-represented April-June 2018: Plaintiffs ordered to retain counsel; stay of proceedings September 11, 2018: Stay lifted, conditions put in place by consent October 26, 2018: Ms. Thoreson questioned November 9, 2018: Plaintiffs advise they will not be able to file Form 39

2. Chronology Business Loss Proceedings • November 14, 2018: Mc. Carthy J revises the Sept 11 th Order: - Deadlines to complete remaining steps, failing which pleadings would be struck subject to the parties attending before Mc. Carthy J to address the striking. • December 7, 2018: Deadline for UT’s. Only some provided. • December 17, 2018: Alberta applied to strike pleadings on two grounds 1. Failure to meet deadlines as per the November 14, 2018 Order 2. Inordinate and Inexcusable delay under Rule 4. 31 • January 7 & 17: Application subject to this appeal heard and rendered

3. Court of Appeal 2020 ABCA 146: Slatter JA, Bielby JA, Antonio JA Grounds of Appeal a) b) c) Rules of procedure cannot be used to take away substantive rights granted by the Expropriation Act Improperly applying appropriate test for Rule 4. 31 If decision was based on a finding of contempt, test for contempt improperly applied

3. a) Applicability of Rules of Court Expropriation Act, Section 29(3): (3) Notwithstanding subsection (1), when the expropriation is by the Crown, the owner may elect to have the compensation fixed by the court and in that case the provisions of this Act relating to determination of compensation by the Board apply with all necessary modifications to the proceedings before the court.

3. a) Applicability of Rules of Court Thoreson v Alberta (Infrastructure), 2007 ABCA 272 Expropriation Act, s 37(1) “An appeal lies to the Court of Appeal from any determination or order of the Board except when it is carrying out the functions of an inquiry officer under Part l. ” At para 17: Court of Appeal found that s 37 gave a substantive right of appeal on costs decisions

3. a) Applicability of Rules of Court 2020 ABCA 146, at paras 25 -26: [25] We reject the appellant’s submission that the Court of Queen’s Bench can never dismiss an expropriation claim, regardless of any amount of delay. The superior court has – and must have – the ability to control its own process. Its inherent power in this regard is not overridden by lacunae in a slim procedural regulation that applies to an administrative forum. [26] Absent a conflict with the Expropriation Act, the Rules of Court apply to expropriation claims brought in the Court of Queen’s Bench. It follows that Rule 4. 31 applied in the case at bar.

3. b) Application of Rule 4. 31(1) If delay occurs in an action, on application the Court may (a) dismiss all or any part of a claim if the Court determines that the delay has resulted in significant prejudice to a party, or (b) make a procedural order or any other order provided for by these rules. (2) Where, in determining an application under this rule, the Court finds that the delay in an action is inordinate and inexcusable, that delay is presumed to have resulted in significant prejudice to the party that brought the application.

3. b) Application of Rule 4. 31 • Humphreys v Trebilcock, 2017 ABCA 116 and the “reasonable litigant” is not necessary • Transamerica at para 19: “There is such a wide variety in the detail of particular claims, and in the procedural journeys that particular litigation may follow, so as to make this test untenably theoretical”

3. b) Application of Rule 4. 31 • Thoreson, para 29: “The appellants accurately observe that the case management judge did not expressly define the progress that a reasonable litigant would have made or compare it to the progress in the case at bar. This omission is not fatal. The case management judge properly considered the reasonableness of the delay in the case before him, given its history and circumstances. ”

3. b) Application of Rule 4. 31 The “history and circumstances” before Mc. Carthy J included: • • Appellants had failed to answer key undertakings Crown had taken steps in good faith without acquiescing to delay Appellants’ Form 39 indicated 3 experts when only 1 was disclosed Good Faith in Expropriation: 4. 33 notice, provision of litigation documents, applying for additional time for Thoreson to retain counsel • The initial delay in prosecuting the business loss claim • Mc. Carthy J convinced Plaintiffs would not be ready for trial and proceeding would prejudice Alberta.

3. b) Application of Rule 4. 31 • Appellants argued that the presumption of significant prejudice had been rebutted. - This ground of appeal was dismissed on the standard of review of overriding and palpable error. • Residual discretion

3. c) Contempt “Contempt” vs “Non-compliance” [34] …Though he made these findings of non-compliance, he did not make any finding of contempt. [35] Nor does contempt arise by implication. As a condition of granting the appellants additional indulgences, the order of November 14, 2018 provided that if any of the specified steps was not completed on time, the action would automatically be struck. Striking out as a result of failure to meet one of those conditions would simply have been an implementation of the conditions of that order, and would not require a finding of contempt. ”

Take Away’s 1. 2. 3. 4. The Rules of Court will apply, even if they extinguish the ability to advance a claim, so long as there is no express contrary provision in the Expropriation Act. Good faith conduct of the Authority is relevant in the residual discretion under Rule 4. 31. Non-compliance ≠ Contempt Relevance of prejudice in the face of trial

Thank You For Your Attention Questions Are Welcome Greg Weber 780. 497. 3315 Toll Free: 1. 800. 661. 7673 (RMRF) www. rmrf. com