Feehan J

1.2: Purpose and intention of these rules
3.46: Third party defendant becomes party
3.55: Application of rules to third party claims
4.1: Responsibilities of parties to manage litigation
4.2: What the responsibility includes
4.31: Application to deal with delay
4.33: Dismissal for long delay

Case Summary

In an Action relating to a number of roof collapses at a grocery store in Whitecourt, Alberta, four Defendants: Ho & Laviolette, Cameron & Associates, Gulf & Pacific, and Johnson (the “Moving Defendants”), applied for dismissal of the Action against them under Rule 4.31 (the “Prejudice Application”) and under Rule 4.33 (the “Delay Application”).

Justice Feehan noted that under the “standstill” provision of Rule 4.33(5), if the parties agree in writing to a suspension, the three year limitation period under Rule 4.33(2) does not include the agreed period. With respect to the Delay Application, Justice Feehan found that an exchange of correspondence between the Parties in August of 2016 resulted in the Moving Defendants and the Plaintiff entering into a “standstill agreement” pursuant to Rule 4.33(5). For this reason, the Delay Application was dismissed.

With respect to the Prejudice Application, Justice Feehan explained that, collectively, Rules 1.2(1), 4.1, and 4.2 require parties to be responsible in managing their disputes in a timely and cost-effective manner. Feehan J. found that while the roof collapses at issue had occurred in 2007, the Statement of Claim was not filed until 2009. Thereafter, it took over four years for pleadings to close and an additional five years to file Affidavits of Records. Since no Questioning had yet been commenced, let alone completed, Feehan J. emphasized that potential witnesses would now have to be questioned for the first time on events which occurred over 13 years ago.

Justice Feehan, referring to leading Court of Appeal authority, set out the six criteria for analyzing Applications under Rule 4.31. Applying the six criteria the facts, Feehan J. found that: the Plaintiff had failed to advance the Action to the point on a litigation spectrum that a litigant, acting reasonably, would have attained within the time frame; the delay was inordinate and inexcusable; the delay impaired important interests of the Moving Defendants; the delay was sufficient to establish significant prejudice; and there was no compelling reason not to dismiss the Action. As a result, Justice Feehan dismissed the Action pursuant to Rule 4.31.

The Third Party Defendant, RND Engineering (1997) Ltd. had also applied to dismiss the Action under both Rules 4.31 and 4.33. Feehan J. granted this Application by concluding that the dismissal of the Plaintiff’s Claim against the Moving Defendants resulted in the dismissal of all subsequent claims flowing directly from, and dependent on the original Claim, as Rule 3.46 provides that a third party becomes a party to the Action, and Rule 3.55 provides that the Rules apply equally to a third party to the Action.

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