221198 ALBERTA LTD v DOBRESCU, 2017 ABQB 460


4.31: Application to deal with delay
4.33: Dismissal for long delay

Case Summary

Following a Master’s dismissal of the Defendants’ Application to dismiss two Actions pursuant to Rules 4.31 and 4.33, the Defendants appealed. The Defendants argued that there had been no significant advance of the Actions since their commencement. They submitted that the Plaintiffs had only provided two answers to undertakings as well as a purported expert report in that time, and that neither had significantly advanced the litigation.

Shelley J. summarized the relevant principles established by Alberta’s Court of Appeal in regards to a Dismissal Application pursuant to Rules 4.31 and 4.33. Her Ladyship confirmed that Rule 4.31 is prejudice-based, and relies on a finding of significant prejudice to a party rather than any specific delay in an Action. Conversely, dismissal is mandatory under Rule 4.33 if there has been no significant advance of the Action for three years. The only exception to this is if the defendant opposing the Application participated in steps after the expiry of the three years to such an extent that it would be unjust to grant the Application.

Shelley J. rejected the Defendants’ submission that the undertaking responses and purported expert report did not significantly advance the Actions. Further, Justice Shelley rejected the Defendants’ submission that delay had caused them prejudice. The purported prejudice consisted merely of a potential witness’ indication that she may no longer be willing to testify. As Shelley J. noted, the witness would still be compellable with a Notice to Attend. Moreover, it was the Defendants who had been a principal cause of the delay. The Plaintiffs’ counsel had attempted for some time to set a date for Trial but was stymied by the Defendants’ counsel and later the Defendants themselves. For these reasons, Shelley J. dismissed the Defendants’ Appeals.

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