BRIAN W CONWAY PROFESSIONAL CORPORATION v PERERA, 2015 ABCA 404
PAPERNY, MARTIN AND MCDONALD JJA
4.33: Dismissal for long delay
14.45: Application to admit new evidence
14.70: No new evidence without order
The Appellant, Perera, applied for dismissal of a debt Claim on the basis of long delay as provided by Rule 4.33. The Application was denied by a Master and a Chambers Judge, who both found that a standstill agreement existed between the parties. Perera appealed the Chambers Judge’s Decision.
Perera also applied for an Order to strike an Appendix to the Respondent’s factum on the basis that it amounted to fresh evidence for which the Respondents were required to bring an Application pursuant to Rules 14.45 and 14.70. The Respondents did not bring an Application, and therefore failed to comply with the requirements under the Rules. The Court held that the contents of the Appendix in question should be disregarded in their entirety.
With respect to Rule 4.33, the Court examined the former Rules, and observed that the Court of Appeal has previously decided that a standstill agreement must be “express,” and not ambiguous or implied. Under former Rule 243.1(1), “express” meant that the parties’ intention must be clear and not left to inference. The Chambers Judge had reviewed the law on the interpretation of Rule 4.33, and concluded that there was sufficient evidence in this case to support a reasonable interpretation that the Appellant had agreed to a standstill agreement. The Court of Appeal held that there was no reviewable error, and the Appeal was accordingly dismissed.
In obiter, the Court observed that, although the law does not require standstill agreements to contain the words “standstill agreement”, it would be prudent practice for counsel to include those specific words and a reference to the Rule, where a standstill agreement under Rule 4.33(1)(a) is intended.View CanLII Details