4.31: Application to deal with delay
4.33: Dismissal for long delay
5.29: Acknowledgment of corporate witness’s evidence

Case Summary

The Plaintiff appealed the Decision of a Master which had granted the Defendant’s Application to strike out the Plaintiff’s Action (the “Action”) under Rule 4.33(2) given that no steps had been taken for over three years. On Appeal, the Defendant argued that should the Court reverse the Master’s Decision, the Action should still be dismissed under Rule 4.31.

Justice Nation noted that the standard of review for the Decision of a Master is correctness. Nation J. reviewed the applicable jurisprudence on the term “significant advance” in Rule 4.33 and noted that a response to an Undertaking is usually seen as a step that materially advances the Action. Nation J. reviewed the quality of the Undertakings and concluded that the Defendant's responses did materially advance the Action. Justice Nation also reviewed a particular response to an Undertaking under Rule 5.29. Justice Nation disagreed with the Defendant’s argument that their non-responsive answer did not significantly advance the Action. Her Ladyship found it difficult to accept the argument that a “non-response” to a legitimate inquiry could mean that the Undertaking was perfunctory. Accordingly, Her Ladyship set aside the Order of the Master which had dismissed the Action under Rule 4.33.

Justice Nation considered the Application brought pursuant to Rule 4.31 and applied the facts to the six factors found in the seminal case of Humphreys v Trebilcock, 2017 ABCA 116. Her Ladyship found that while there was an "inordinate and inexcusable" delay, the Defendant had failed to demonstrate that the delay had caused significant prejudice. Accordingly, Justice Nation allowed the Appeal and the Action was not struck for delay.

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