One should be very slow to look for guidance in Danis-Sim v. Sim 2023 ABKB 637, JCRD 4810 025698 (Nov 10). I will not try to discuss whether the final decision there is correct or not. But its citation, and non-citation, of case authority could misdirect anyone who has not looked up the law or read any reference book. For one thing, there are about 6 propositions of law in it which are contrary to a considerable body of King’s Bench decisions which it does not cite.
More serious is the fact that there are 10 propositions in it which are contrary to binding decisions of the Alberta Court of Appeal, almost none of which are cited anywhere in the Sim decision. I cite below the correct and binding law which this Sim decision contradicts.
1.
Delay is anathema to all the principles in the 2010 Rules of Court: Jacobs v. McElhanney Land Surveys 2019 ABCA 220, [2019] 12 WWR 19 (¶’s 57-58, 67-72). Yet the Sim decision lists a host of matters which it finds to be more important than delay or R. 4.33.
2.
Rule 4.33 is mandatory; a judge must follow it if its test is met: Alta. v. Morasch 2000 ABCA 24, 250 AR 269, 183 DLR(4th) 742 (¶ 5); Trout L. Store v. C.I.B.C. (#1) 2003 ABCA 259, 330 AR 379 (¶’s 24, 31, 33(3)); Flock v. McKen (Flock Est.) 2017 ABCA 67, 49 Alta LR(6th) 41 (¶’s 17(3), 17(5), 27, 30), leave den (SCC 19 Oct ’17). Yet Sim does refuse to follow the Rule: see ¶’s 34, 39.
3.
Rule 4.33 leaves no room for any discretion in the judge: Flock v. Flock Est., supra (¶ 17(5)). Yet the Sim decision expressly “declines” to strike/dismiss after finding that this Rule is met (¶’s 34, 39).
4.
The wording of R. 4.33 is clear, and so that Rule cannot be overridden by looking at any of the initial “foundational” Rules of Court: Janstar Homes v. Elbow Valley W. 2016 ABCA 417 (Dec 23) (¶ 26). Yet ¶ 40 of Sim does exactly that.
5.
Presence or absence of prejudice is irrelevant to R. 4.33: Volk v. 331323 Alta. 1998 ABCA 54, 212 AR 64 (¶ 16); Alta. v. Morasch, supra (¶ 5); Trout L. v. C.I.B.C., supra (¶ 24); Flock v. Flock Est., supra, (¶’s 17(9), 27); Ursa Ventures v. Edmonton (City) 2016 ABCA 135, 40 Alta LR(6th) 224, 406 DLR(4th) 22 (¶ 10); Jacobs v. McElhanney Land Surveys, supra (¶’s 62, 99). Yet the Sim decision repeatedly relies on lack of prejudice.
6.
Divorce suits are not immune from R. 4.33, which must be followed: Brost v. Kusler 2016 ABCA 363 (Nov 16) (¶’s 9-10); Flock v. Flock Est., supra (¶ 31). The Sim decision recites this proposition, but does not follow it, and speaks at length about how this Rule is not suitable for some common types of proceedings under the Divorce Act. It cites a Court of Appeal decision, Boland v. Carew 2019 ABCA 202. In the Boland case, the King’s Bench chambers judge had been opposed to using R. 4.33 in many Divorce Act cases, but on appeal, the Court of Appeal did not rely on that view, nor adopt the chambers judge’s reasons (though the Court of Appeal mention that that point was not rebutted by argument). The Court of Appeal dismissed the Boland appeal for different reasons.
7.
Rules 4.31 and 4.33 are very different, with different criteria and totally different scope for discretion or exceptions. The decisions bearing in some way on that undisputed point are too numerous to cite in a blog of reasonable length. (See Stevenson & Cote, Civil Procedure Handbook, R. 4.31 n.B; R. 4.33 n.A.1; cf. R. 4.33 n.A.3.) Comparing the case-law tests for the two Rules makes that obvious. Yet the Sim decision says that Alberta courts have repeatedly chosen not to apply “the delay rules” (¶ 29). That is obviously very untrue for both courts, especially under the current wording of the Rules. If that statement in Sim has any remaining truth today for the Court of King’s Bench, then that statement would have to refer to R. 4.31, not to R. 4.33, thus overlooking the complete difference of the two Rules.
8.
Getting ready for a hearing on the merits, e.g. by filing a Form 37, does not let the plaintiff delay for years and so escape R. 4.33: Loncikova v. Goldstein 2021 ABCA 390 (¶’s 32-46). Yet the Sim decision relies on such a provision in the order preceding the three years of inaction here (¶’s 42-45)
9.
Under R. 4.33 the plaintiff or party seeking relief, not the defendant or party opposing the relief, always has the initiative (barring actual obstruction). Failure of the party opposing (and now relying on R. 4.33) is irrelevant: Janstar Homes v. Elbow Valley W., supra (¶ 26); Flock v. Flock Est., supra (¶’s 17(4), 25); Rahmani v. 959630 Alta. 2021 ABCA 110 (¶ 14). The court should be cautious about finding one party’s laches are an excuse for another party’s laches. One should not assume that taking one step requires first completing another step. And a party who is owed a step can always have the court force that step: Nelson v. Elmsland 2008 ABCA 387, 440 AR 297 (¶’s 12, 14). Yet the Sim decision does those forbidden things (¶’s 42-45, 51).
10.
Rarely should an application under R. 4.33 just be denied; usually a remedial procedural order should be given, and conditions (such as a schedule) may be imposed at once, and often are: R. 4.33(3); Ro-Dar Contr. v. Verbeek Sand & Gravel 2016 ABCA 123, 616 AR 366 (¶’s 18, 30-33); Rahmani v. 959630 Alta. 2021 ABCA 110 (¶’s 30-33). Yet the Sim decision did nothing prompt in this regard. It merely told both the parties to go away and try to agree on some unspecified litigation plan. If they could not agree within a specified period, presumably someone was to tell the justice, who then would set a date to make submissions. Neither party was told to take charge or prosecute these additional steps.
– Hon. J.E. Côté
