The Defendants applied to dismiss the Action for delay, pursuant to Rules 4.31 and 4.33. The presiding Master dismissed the Action for long delay, and the Plaintiffs appealed.

Justice Lee discussed the delay (approximately five years) and considered Rule 4.33. The Plaintiffs argued that the Defendants acquiesced to the delay by not bringing their Application on a timely basis and, as such, the exception in 4.33(1)(d) applied. The Plaintiffs also argued that because a step had been taken, albeit after a long delay, prior to the Defendants bringing their Application that the Defendants could no longer seek to dismiss for long delay. Justice Lee, however, noted that this interpretation of the Rule had been rejected by the Alberta Court of Appeal. His Lordship found there was a gap of over five years where nothing was done to advance the Action in a meaningful way, and stated that there was no active acquiescence, that the Defendants did not agree to the delays, and determined that the Action had been properly dismissed by the Master pursuant to Rule 4.33.

Lee J. also considered the Defendants’ alternative argument for dismissal:  that there was an undue delay which resulted in significant prejudice, with the result that the Action should be dismissed pursuant to Rule 4.31. The Court found that the delay had undoubtedly compromised “the availability and the quality of evidence from various contractors who are significant witnesses in this litigation. At least one of the principals of one of the significant contractors has died”.

Justice Lee decided that in, addition to the Defendants having grounds to dismiss the Action pursuant to Rule 4.33, the Action ought to also be dismissed pursuant to 4.31 as a result of an undue delay which was inordinate and inexcusable, and which also resulted in significant prejudice. As a result, the Appeal was dismissed with Costs.