March 1, 2024
Defendants are entitled to “poke the bear” without worrying about the consequences of Rule 4.33
In Western Industrial Services Ltd v Brennan, 2024 ABKB 50 (“Western Industrial”), the Court aimed to answer two questions: whether the joint filing of a request to schedule a trial date could be considered a “significant advance” under Rule 4.33, and secondly, whether a Defendant’s unsuccessful efforts to rouse a dormant Plaintiff constituted as “participation” in “proceedings” such that the Defendant should be regarded as having waived the accumulated delay. Ultimately, the Court concluded the answer to either question was no, dismissing the Plaintiff’s Action under Rule 4.33(2).
Significant advance
In arriving at this conclusion, the Court undertook a comprehensive review of the legal principles discerned from previous decisions involving Rule 4.33. At the Application, the Defendant in the Action, who was also the Applicant in the Application, argued that the last significant advance was the joint filing of the request for Trial (“Form 37”) on October 28, 2019. Justice Lema concluded that merely filing Form 37 is not a significant advance, especially where the form is submitted prematurely. In the present case, the Court rejected the Form 37 as a significant advance, noting the parties had not pursued Dispute Resolution or obtained a Dispensation Order (both aspects per Rule 8.4(3)(a)), and no trial date was set.
In the alternative, the Plaintiff proposed that the “last significant advance” was the Defendant’s unsuccessful requests for Case Management and later a Case Conference (January 20 and February 3, 2022, respectively). Per the Plaintiff, these steps significantly advanced the Action in the sense that options for progress were explored and narrowed. However, the Court disagreed, stating that the rejection of the Defendant’s requests was no guarantee that requests by the Plaintiff would also be denied. The Plaintiff may have raised or emphasized different or additional factors or considerations or otherwise convinced the Court that Case Management or a Case Conference would or could be useful. Further, requests by the Plaintiff at a different time may have been treated differently.
The Court went on to emphasize that a significant advance pursuant to Rule 4.33 requires, at a minimum, an advance. The Court did not accept that a request, which was subsequently denied, represented any real advance, as the Action remained where it was before the requests, and did not move any closer to Trial. Though the Court did mention that Case Management Meetings and Case Conferences can represent or be the framework for significant advances, the requests for Case Management and a Case Conference in this case, being both unilateral (Defendant only) and, in any case, unsuccessful, did not represent significant (or any) advances.
Defendant’s participation in proceedings
The Court then turned its attention to the possible exception in Rule 4.33(2)(b), and whether there was sufficient participation to qualify as a waiver of the Defendant’s delay-associated rights. The exception in Rule 4.33(2)(b) operates “where Defendants have actively participated in an action to an extent and degree that could lead a Plaintiff to fairly assume that the Defendant has waived the delay”. In this case, no application was filed at the material time of the litigation the Court was examining. Therefore, on a threshold point, any “participation” by the Defendant in this Action had to fit within the verbiage of “a proceeding being taken” found in Rule 4.33(2)(b). Thus, the Court asked whether the Defendant’s exploratory steps towards a Judicial Dispute Resolution (“JDR”), Case Management, or a Case Conference, or any of them, amounted to “proceedings”.
The Court concluded that even using the broadest understanding of “proceedings”, the letters from the Defendant proposing a JDR were not “proceedings.” At most, they were preliminary steps towards a proceeding, which a JDR itself would represent. The same logic was applied to the Defendant’s letters to the Court requesting Case Management and, later, a Case Conference. Such letters were preliminary steps, which can themselves also be fairly characterized as “proceedings” since, like a JDR, they are also a component or element of an Action. However, both requests were denied, therefore no such “proceedings” were ever launched.
With none of the letters themselves amounting to “proceedings”, and with no JDR, Case Management or Case Conference actually occurring or even agreed to by the Plaintiff, there was no “participation” by the Defendant within the meaning of Rule 4.33(2)(b). Further, the Defendant’s “let’s get moving” activities not only did not get any results, they also could not be read as unequivocal signs of waiver of or acquiescence to the accumulated delay. As the Plaintiff did not respond to the JDR and as the Case Management and a Case Conference were refused, the Defendant did not have to elect between getting on board (or back on board) the Action train or stepping away. As the Court saw it, the Defendant was free to invoke its dismissal-for-delay rights without having signalled waiver or acquiescence to the Plaintiff, at least in any unequivocal sense.
Therefore, the Court ordered that with no significant advance in the Action, no waiver by the Defendant of the accumulated delay, and no other exception explaining or justifying the delay, the Plaintiff’s action must be struck per Rule 4.33(2).
Defendants are entitled to see whether the plaintiff still “has a pulse” without worrying about Rule 4.33
Western Industrial is a unique case for a few reasons. First, when a Defendant makes an application under Rule 4.33, it is usually the Plaintiff, in defending the application, who argues that the Defendant’s inaction (for example, not responding to requests) has added to the delay, and affects what could be considered the last significant step taken in the Action. The Plaintiff will often point to steps that it took, and argue that those steps significantly advanced the Action. Here, in Western Industrial, the Defendants had taken steps in the litigation (i.e., trying to schedule a JDR without getting a response from the Plaintiff, and communicating to the Court in regard to Case Management and a Case Conference), and the Court found that Defendant’s unsuccessful efforts to rouse the dormant Plaintiff (as opposed to a Plaintiff’s unsuccessful efforts to rouse a Defendant) were not significant steps for the purpose of moving the litigation forward.
Further, Western Industrial is also interesting as it suggests that a Defendant, when faced with a long period of inactivity, is entitled to “poke the bear”, to see whether the Plaintiff is willing to move an Action ahead, without it constituting a waiver of their delay-associated rights under Rule 4.33(2)(b). As the Court stated, participation by a Defendant engaging Rule 4.33(2)(b) must be such that it is “fair” for the Plaintiff to assume waiver of the accumulated delay, and that conduct that is equivocal -- that can be reasonably be read other ways -- is not sufficient. Simply “testing the waters” can reasonably be read different ways, where a Defendant may be truly wishing to re-engage in the Action or, on the other hand, may simply be seeking to see whether the Plaintiff still “has a pulse”. The Court ultimately focused on the actions, or more specifically, the inaction of the Plaintiff. If the Plaintiff had signed on to the Defendant’s JDR proposal, and a JDR had proceeded, the Court commented that the Plaintiff would have crystallized a potential participation-reflecting-waiver circumstance, and the exception under Rule 4.33(2)(b) may have applied.
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