This Decision arose from case management proceedings involving the Defendant and a series of related lawsuits. The case management protocol in place mandated that a party must seek permission to bring an Application against parties in the case management proceedings.

The Defendant applied for a Fiat to proceed with an Application to strike the Plaintiff’s Claim for delay and for a Fiat to proceed with an Application for Summary Trial. Justice Graesser declined both.

With respect to the Application to strike for Delay, Graesser J. identified several issues, and held that the Application lacked a reasonable chance of success.

First, the Defendant’s success would depend on whether her Counterclaim could be severed from the Plaintiff’s Statement of Claim. Justice Graesser was unaware of Alberta cases where the Plaintiff’s claim was struck for delay yet the Defendant’s Counterclaim was allowed to proceed. The claim and Counterclaim are joined, and one step in one would move the entire Action towards Trial.

Second, the Defendant had previously obtained an Order staying the running of time under Rules 4.31 and 4.33. Rule 4.31 provides that an Action should be dismissed where delay causes significant prejudice to a party. Rule 4.33 provides that an Action must be dismissed if three or more years have passed without a significant advance in the Action. The Order was granted in case management pursuant to Rule 4.14, which provides Case Management Judges with broad powers to resolve issues in the litigation. The Order provided for a suspension period under Rules 4.33(2)(a) and 4.33(9), which caused the time to stop running against both parties.

Further, there was delay from the transition of case management from various Judges to Graesser J., for which neither party would be responsible.

Lastly, the Plaintiff’s Statement of Claim sought a declaration that it no longer had a duty to defend or indemnify the Defendant. Even if the Plaintiff’s Statement of Claim would be struck for delay, the Plaintiff would not lose the ability to maintain its position. If necessary, it could start a new Action seeking a declaration as to its obligations.

With respect to the Application for Summary Trial, Graesser J. found that the matter was not appropriate for summary determination, especially because the Defendant had to prove damages on her Counterclaim. There was no benefit to either party in trying to have the matter determine summarily, either by Trial or Application. The materials before Graesser J. made it clear that there were significant factual issues that could only be addressed through oral testimony and cross-examination at Trial.