Koch v. Warkentin (2011), 518 A.R. 138 (QB)
MLB headnote and full text
Temp. Cite: [2011] A.R. TBEd. AU.056
David Koch (plaintiff) v. Jon Warkentin, Robert Wasylyshen, Acting Chief of the City of Edmonton Police Services, Brent Olynyk, the City of Edmonton Police Services and the City of Edmonton (defendants)
(0203-11304; 2011 ABQB 505)
Indexed As: Koch v. Warkentin et al.
Alberta Court of Queen’s Bench
Judicial District of Edmonton
Burrows, J.
August 11, 2011.
Summary:
The defendants applied under rule 15.4(1) to dismiss an action on the ground that more than five years had elapsed since the last thing was done by the plaintiff to significantly advance the action.
The Alberta Court of Queen’s Bench allowed the application and dismissed the action.
Practice – Topic 5360
Dismissal of action – Grounds – General and want of prosecution – Delay – The plaintiff commenced an action against the defendants on June 7, 2002 – Statements of defence were filed – The last thing done in the action was the filing of an affidavit of records by one of the defendants on October 7, 2005 – On October 22, 2010, the defendants applied under rule 15.4(1) (drop dead rule) to dismiss the action where nothing had been done to significantly advance the action for more than five years – The Alberta Court of Queen’s Bench applied rule 15.4(1) to dismiss the action as nothing had been done for more than five years to significantly advance the action – Rule 15.4(2)(c) did not apply to preclude the court from dismissing the action – The court rejected the submission that things done in a similar second action practically advanced this action, at least as against one of the defendants – There was no extricable link between the two actions – The court had no discretion to not dismiss the action.
Cases Noticed:
155569 Canada Ltd. v. 248524 Alberta Ltd. et al. (2004), 350 A.R. 201; 2004 ABQB 17, refd to. [para. 7].
155569 Canada Ltd. v. Clarkson Gordon – see 155569 Canada Ltd. v. 248524 Alberta Ltd. et al.
Counsel:
Robert D. Gillespie, for the plaintiff;
Debra Curcio Lister, for the defendants, Warkentin and Olynyk;
Simon Johnson, for the defendants, Edmonton Police Services and Robert Wasylyshen, Chief of Police of Edmonton Police Services;
David Woo, for the City of Edmonton.
This application was heard on June 10, 2011, before Burrows, J., of the Alberta Court of Queen’s Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on August 11, 2011.
