Fraser, Paperny and Greckol JJA

4.33: Dismissal for long delay
7.5: Application for judgment by way of summary trial
7.8: Objection to application for judgment by way of summary trial
15.4: Dismissal for long delay: bridging provision

Case Summary

The Crown commenced two separate Actions against the Appellant, Cox, relating to the Appellant’s harvesting and sale of timber on various parcels of Crown land. The Crown sought damages for unpaid fines, penalties, fees, and interest.

The fines and penalties were levied between July 2004 and April 2005, and the Crown commenced the Actions in May 2005. The Appellant defended the Actions, and counterclaimed alleging negligent misrepresentation against the Crown and its agents. Affidavits of Records were exchanged between June 2006, and March 2007. The Appellant failed to respond to requests by the Crown to inspect the records disclosed in the Appellant’s Affidavit of Records, and on January 29, 2009, the Crown served a motion for an Order requiring the Appellant to provide the records listed in his Affidavit of Records. On February 2, 2009, the Appellant provided his producible records. On January 19, 2012, the Crown served an Application to have the Actions set for Summary Trial. On March 17, 2012 the Parties set dates for the Summary Trial suitability hearing, and on May 29, 2012, the Appellant served a Notice of Objection to Summary Trial, and applied for dismissal due to long delay under transitional Rule 15.4.

At the suitability hearing, Justice Sulyma held that the filing and service of the Applications for Summary Trial significantly advanced the Actions, and that this occurred within five years of the last undisputed significant advance of the Actions. Sulyma J. determined that the Actions were suitable for Summary Trial and set the matters down. At Summary Trial, the Crown was successful in both Actions.

On Appeal, the Appellant contended that the Summary Trial Judge erred in failing to dismiss the Actions for long delay, relying on authorities which stated that a “step” must be “completed” for it to significantly advance an Action, and accordingly, the “unilateral” act of the mere filing on an Application for Summary Trial is insufficient to significantly advance the Actions. The Court of Appeal confirmed that the law in Alberta with respect to examining delays under Rules 15.4 and 4.33 had shifted from the formalistic approach suggested by the Appellant’s authorities, to a functional and substantive analysis, that requires the Court to assess whether the Action has advanced toward resolution in a meaningful way. Whether an Action has been significantly advanced depends on the various factors, including “the nature, value and quality, genuineness, timing, and in certain circumstances, the outcome of what occurred”. Further, if a step narrows the issues in dispute, clarifies the positions of the parties, or completes discoveries, depending on the circumstances, that may be sufficient to significantly advance the Action.

The Court held that the delay Application was properly dismissed as the Application for Summary Trial narrowed the issues for Trial, and clarified the parties’ positions. The Court noted that the Order setting the matter down for Summary Trial under Rule 7.11 significantly advanced the Actions, as did the production of the Appellant’s outstanding documents, given that many proved pivotal to the issues at Trial. The Court confirmed that the test for whether a Summary Trial is appropriate is twofold: whether disputed questions of fact can be decided based on Affidavits or any of the other processes authorized by the Rules for a Summary Trial; and whether it would be unjust to decide the issues in that way.

The Summary Trial Judge held that the Appellant could not prove reasonable reliance for his allegation of misrepresentation, therefore his Counterclaim was bound to fail. The Court held that this Decision was reasonable. The Appeal was dismissed.

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