The Applicant brought an Application in morning family chambers to dismiss an unjust-enrichment Action for long delay. The Applicant argued that more than three years had elapsed and as such, the Action must be dismissed pursuant to Rule 4.33. He also argued that there had been inordinate delay under Rule 4.31.

Lema J. first discussed the concept of a “significant advance” as described by the Alberta Court of Appeal. A significant advance moves the lawsuit forward in an essential way considering the nature, value, importance and quality. The genuineness and timing of the advance in the Action are also relevant. The analysis must focus on the substance and effect rather than the form.

The Court then set out the framework to use when considering Rule 4.33 Applications. A Court is required to dismiss an Action if three or more years have passed without a significant advance, unless that Action has been stayed or adjourned by Order, an Order has been issued setting out a suspension, the delay is provided for in a litigation plan, or an Application has been filed or proceedings taken since the delay; and the Rule 4.33 Applicant has participated in the proceedings to the extent that warrants the Action continuing.

The Action began on October 13, 2011 by Statement of Claim. On March 26, 2015, the Respondent provided her Undertaking responses. On June 17, 2015, the Applicant provided his Undertaking responses. The Respondent’s position was that the Respondent’s Undertaking responses was the last significant advance in the Action. Alternatively, the Applicant argued that his own Undertaking responses was the last significant advance.

The Respondent took the position that a Consent Order reducing the listing price granted on July 8, 2015, should be the starting date for measuring the three-year period. The Respondent further argued that during this three-year period, she had filed an Application seeking various relief including creation of a litigation plan, she filed and served a Notice to Disclose, the Applicant filed a response to the Notice to Disclose, the Applicant had served his Affidavit of Records, and the Applicant had served a Notice to Produce Affidavit of Records.

The Court held that the Consent Order did not constitute a significant advance in the Action. Among a list of reasons given, the Court found that the Respondent’s claim was a claim for unjust enrichment. The Applicant had already admitted that the parties would share in the value of the home. Both parties agreed that the house should be listed for sale, and both parties agreed that the listing price should be reduced. The Court also noted that the Respondent later refused to co-operate with the listing and even removed the sale sign, thereby rendering the Consent Order moot. Since the parties’ actions did not advance the Action, then it could not be said that the Consent Order constitutes a significant advance.

The Court then analyzed the June 17, 2015 Undertaking responses provided by the Applicant to determine whether they were relevant and material. In citing Rule 5.2(1), the Court held that materiality is determined if the record would significantly help determine one or more of the issues raised in the pleadings or ascertain evidence that could help determine one or more of the issues raised in the pleadings. After a thorough analysis of the nature of the Undertakings responses, Lema J. concluded that the information requested by the Respondent was relevant to her unjust enrichment claim. Accordingly, the responses provided by the Applicant were also relevant to the claim. Having found that the information was relevant and material, the Court then discussed whether the Undertaking information qualified as a significant advance.

In citing the Alberta Court of Appeal, Lema J. noted that a response to an Undertaking is usually a thing that materially advances the Action. However, there will be exceptions where the response is merely perfunctory and nothing hinges on the response. The perspective of the party seeking the information is also relevant. Here, the Respondent believed that the Undertakings received were relevant and material. The Court ultimately held that the Undertaking responses provided the Respondent with useful information, and therefore constituted a significant advance of the Action. Consequently, the three-year period for analyzing Rule 4.33 began on June 17, 2015.

The Court then analyzed the Applicant’s June 11, 2018 response to a Notice to Disclose. The Applicant’s response provided his statement of income, assets and liabilities, which provided the necessary income information should entitlement to support be found. The information sought by the Respondent was material and relevant, and consequently the information provided in the Applicant’s response was also material and relevant as defined by Rule 5.2(1).

The Applicant then argued that as of June 6, 2018, the Respondent was aware of the Applicant’s intent to bring a Rule 4.33 Application. Consequently, the Applicant argued that the June 11, 2018 response was intended as a “without prejudice” step. The Court held that even though Rule 4.33’s shadow was cast over the June 7, 2018 Application, the Applicant’s counsel did not assert that the three-year period had already expired by then. Furthermore, the Applicant counsel’s statement to the Respondent’s counsel regarding his intention to bring a Rule 4.33 Application did not “freeze” matters or insulate the Applicant from his compliance with the Notice to Disclose. The onus was on the Applicant to ensure that disclosures intended to be “without prejudice” to a drop-dead Application makes that unmistakably clear. On this basis, the Court found that even if the three-year period expired before June 11, 2018, the Applicant’s response to the Notice to Disclose constituted sufficient participation and revived the proceeding.

Lema J. then moved on to discuss the Rule 4.31 Application. His Lordship held that Rule 4.31 authorizes a Court to dismiss all or part of a claim if the Court determines that delay in the Action has resulted in significant prejudice to a party. If the delay is “inordinate and inexcusable”, then the delay is presumed to have resulted in significant prejudice to the party that brought the Application. In addition, Rules 1.2, 4.1, and 4.2 are also noteworthy. Rule 1.2 sets out the guiding principles that claims should be fairly and justly resolved in a timely and cost-effective way, Rule 4.1 states that parties are responsible for managing their dispute, and Rule 4.2 provides that parties are required to apply to the Court for direction or case management when the complexity or nature of the Action warrants it.

The Court found that the litigation could be broken down into two phases. The first phase was from the time that the claim commenced to June of 2015, when the Applicant delivered his Undertaking response. During this phase, the Applicant did not intentionally delay the claim, but had to be pushed to complete certain steps. Until June of 2015, the Court held that there had been no inordinate delay. Although the Court recognized that Rule 4.31 requires a view of the entire Action, it is also important to distinguish between Actions where the plaintiff has done the “bare minimum” and Actions where the parties have been responsive and slowly moving through litigation.

The second phase of the litigation ran from June of 2015 to the spring of 2018. During this phase, not much had happened and the Respondent did not move the litigation forward. The question for the Court was whether the three-year period from June of 2015 to spring of 2018 constituted inordinate delay. Lema J. held that it was not necessary to delve into this discussion since even if there was inordinate delay, the Applicant has suffered no prejudice, let alone significant prejudice within the meaning of Rule 4.31.

The Court went even further and held that even if the delay was inordinate and inexcusable and the Applicant had suffered significant prejudice arising from that delay, he waived the delay by participating in the Action in June of 2018 by making disclosure. Lema J. proceeded to dismiss the Application under both Rule 4.31 and 4.33.