This was an Appeal of a Decision of a Chambers Judge which had declined to dismiss the Respondent’s claim for delay pursuant to Rules 4.33 or 4.31. The Appellants argued that the Chambers Judge erred in her analysis of Rule 4.33(2) by failing to conduct a discrete analysis of each response to each Undertaking, and also by treating responses to Undertakings by the Defendant and the Plaintiff differently. The Appellants also argued that the Chambers Judge erred in her analysis of Rule 4.31 by finding that the presumption of prejudice had been rebutted, and also by finding a compelling reason not to strike the claim.

The Court began with an analysis of Rule 4.33. The Court surveyed case law to find that a response to an Undertaking materially advances an Action, as Undertakings are an extension of the discovery process. Further, Rule 5.30 requires that a response to an Undertaking be provided in a reasonable time, thus making it clear that Undertakings are an extension of the discovery process. Moreover, Rule 5.29 permits the evidence of a corporate representative to be read in only if it is acknowledged as the evidence of the corporation. The Chambers Judge declined to conduct a review of all 61 Undertakings in issue, noting that the response to the first Undertaking was alone sufficient to significantly advance the Action. The Court agreed with the Chambers Judge’s analysis and dismissed the first ground of Appeal.

The Court then turned to Rule 4.31, applying the six step analysis set out in Humphreys v Trebilcock, 2017 ABCA 116.  In disputing that the presumption of prejudice caused by delay had been rebutted, the Appellants argued that the Chambers Judge placed undue weight on certain evidence. The Court found that this did not amount to a palpable or overriding error, and dismissed the second ground of Appeal.