MASTER Schlosser

1.2: Purpose and intention of these rules
4.28: Confidentiality of formal offer to settle
4.33: Dismissal for long delay

Case Summary

The Action was commenced in late 2013, arising out of an assault at the Calgary Remand Centre. An Application to dismiss the Action for long delay pursuant to Rule 4.33 was brought in mid-2018. The Court noted that in the three years preceding the Application “three events which, either individually or collectively, are in contention to count as a significant advance: 1. A detailed settlement proposal with accompanying formal offer; 2. Further production of records; and, 3. An amendment to add a party.”

The Court first considered the extent to which the settlement offer moved the Action forward. While acknowledging that Rule 4.28 prohibits disclosure of a Formal Offer to the Court prior to either the offer’s acceptance or the Action’s disposition, it was nonetheless observed that the offer quantified damages far below the amount claimed, and presented as genuine. In fact, the Formal Offer referenced some of the newly produced documents, which the Plaintiff argued to be materially supportive of his claim.

Taking direction from recent precedent, Master Schlosser sought to “view the whole picture” that had transpired in the three years period preceding the Application. Colourfully, Master Schlosser referred to the recent trend away from viewing Rule 4.33 as a “drop dead rule”, and rather as a “zombie killer”. In result, the Court held that the Formal Offer and document production advanced the Action collectively even if they failed to do so individually. In fact, Master Schlosser suggested that the purposive approach to the Rules set out in Rule 1.2 would discourage rewarding the Applicant for failing to provide a considered response to the Formal Offer.

Though it was unnecessary to consider the addition of parties, the Court indicated that adding a party to an Action “should almost always count as a significant advance”. Master Schlosser also took occasion to remark that the use of placeholder parties such as “John Doe”, and the substitution of new parties in their stead, was an anachronistic exercise. The Application was dismissed.

View CanLII Details