The Appellant applied for a determination of whether a possessory lien survived after the Court dismissed the related debt Action for long delay, pursuant to Rule 4.33.

The Appellant, AB Logistics, stored pipe for the Respondent, Dowcar Metals Inc. (“Dowcar”), at two leased storage facilities. A dispute arose when AB Logistics asserted a possessory lien over the pipe for unpaid storage fees. In 2015, AB Logistics commenced a debt Action and concurrently defended a Replevin Action brought by Dowcar seeking return of the pipe. Both Actions stalled after 2018.

In 2022, Dowcar successfully applied to dismiss the debt Action pursuant to Rule 4.33 and sought an Order for the release of the pipe. AB Logistics argued that the request for release amounted to post-delay participation sufficient to preclude dismissal under Rule 4.33(2)(b). It also submitted that the expiry of the limitation period did not extinguish the debt itself or its right to retain possession.

The Applications Judge rejected those arguments, and that decision was upheld by a Chambers Judge, who found that the dismissal of the debt Action also extinguished the possessory lien. AB Logistics appealed further, maintaining that Dowcar’s request for release constituted strategic post-delay participation and that its lien survived as a defence, not a cause of action.

The Majority (Slatter and Kirker J.J.A.) dismissed the Appeal. The Court found that Dowcar’s request did not significantly advance the Action or trigger Rule 4.33(2)(b). Post-delay procedural steps arising from, or collateral to, dismissal do not constitute material participation. The dismissal eliminated AB Logistics’ pleaded claims for judgment on the debt, lien-based priority, and an Order for sale of the pipe. It also rendered continued possession unnecessary under a prior Order. The request for release was therefore a natural consequence of the dismissal—not conduct that could reasonably be viewed as waiving delay.

The Court also rejected AB Logistics’ alternative argument that Dowcar’s request amounted to an abuse of process. AB Logistics argued that seeking the return of the pipe through the debt Action was duplicative of relief sought in the Replevin Action and an improper attempt to avoid the consequences of Dowcar’s delay in prosecuting that claim. The Court disagreed. The overlapping Actions had run in parallel since 2015, and while duplicative litigation may, in some cases, be abusive, the time for objection had long passed. The Court noted that a multiplicity of proceedings is not necessarily abusive, and referred to Rule 1.5(2) and the Supreme Court’s guidance in Saskatchewan (Environment) v Métis Nation–Saskatchewan, 2025 SCC 4.

Appeal Justice Grosse dissented and would have allowed the Appeal and reinstated the lien, finding that Dowcar’s use of the debt Action to obtain the release Order amounted to strategic participation. Grosse J.A. emphasized that procedural fairness does not permit a party to secure the benefits of an Action while simultaneously seeking its dismissal.