3.31: Statement of defence
4.33: Dismissal for long delay
15.4: Dismissal for long delay: bridging provision

Case Summary

This was an Application to Strike for long delay. The Plaintiff filed a Claim in August of 2006 and took no further steps to advance the matter. The Defendant filed a Statement of Defence on February 9, 2010. The Statement of Defence, however, was not served on the Plaintiff. Master Schlosser relied on the decision in Bugg v Beau Can Exploration Ltd, 2006 ABCA 201, and held that the filing of a Statement of Defence is a thing that materially advances the Action and dismissed the Application. However, Master Schlosser went on to suggest that the Court may not maintain this precedent because the filing of a Statement of Defence does not fulfill the requirements for Rule 3.31, which requires that a Statement of Defence be filed and served within 20 days:

A Statement of Defence that has been filed but not served is not a completed step required by the Rules. Accordingly, it may not be immune from examination to see whether it has somehow moved the matter closer to trial in a meaningful way.

Master Schlosser also stated that Parties may agree to delay, as per Rules 15.4(2)(a) and 4.33(1)(a). The agreement need not be in writing but must be “express”, and a “Defendant’s request not to be noted in default isn’t enough”. However, a request that no steps be taken can suffice.

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