The Defendant by Counterclaim applied to strike the Counterclaim under the “drop dead rule”.

With regard to Rule 4.33, the Court referred to Morasch v Alberta, 2000 ABCA 24 for the proposition that a “thing” is usually grounded in the Rules of Court, even if it is not an actual procedural step, and such a “thing” must “move the law suit closer to Trial in a meaningful way”. After referring to case-law, Master Hanebury determined that a functional analysis must be undertaken of the facts in each case in which a party seeks to strike a claim under the “drop dead rule”. Master Hanebury determined that, in this case, it would have been inequitable to look only at “things” done in relation to the Counterclaim: there had been responses to undertakings in the original Action within the relevant 5-year time-frame that had served to move the Action as a whole forward.

With regard to Rule 4.31, Master Hanebury determined that the test under the former Rules relating to the formation of a presumption of serious prejudice still applies. The Court stated the test as follows: a finding of inordinate, inexcusable delay raises a presumption of serious prejudice, which if rebutted means that all of the facts must be examined. Master Hanebury determined that there was sufficient evidence to displace the presumption in this case, given the extensive and detailed records kept by the Applicant. Master Hanebury then examined all the facts and concluded that the Applicant had not satisfied the Court that significant prejudice had arisen from the delay. The Court dismissed both the Rule 4.33 and 4.31 Applications.