The Applicant (“Alberta”) filed a Notice of Motion pursuant to old Rule 244.1, now Rule 15.4, for an Order dismissing the Respondent’s (“Briggs”) Action on the basis that five years had passed without a “thing” having been done that materially advanced the Action.

In 1998, Briggs applied for a tax rebate pursuant to s. 4(3) of the Fuel Tax Act (“Act”). This provision allowed consumers to obtain a fuel tax rebate for fuel consumed in certain vehicles (in this case, school buses) while they were being used for commercial purposes. Briggs was entitled to a rebate under the Act and received a cheque accordingly.

In 2001, Alberta disallowed the 1998 rebate because it was not satisfied that Briggs established the fuel consumption rate for idling yellow school buses. Briggs’ Notice of Objection was denied, and a Notice of Appeal was filed with the Court of Queen’s Bench in 2003 (the “Appeal”). Throughout these proceedings, Briggs continued to apply for fuel tax rebates under the Act which were also denied on the basis that Briggs failed to establish the fuel consumption rate of idling yellow school buses. Briggs filed Notices of Objections to these denials (“Other Objections”).

Briggs provided Alberta with fuel consumption surveys to show the average fuel consumption for yellow school buses was 4.83 litres per hour (Alberta originally applied a rate of 2.0 litres per hour). In 2009 and early 2010, Alberta accepted Briggs’ fuel consumption surveys and resolved the Other Objections by applying a fuel consumption rate of 5.17 litres per hour (4.83 plus 7% margin of error). 

In 2010, Alberta applied to dismiss Briggs’ Appeal for long delay pursuant to Rule 15.4, claiming that five years had elapsed since the last thing done to significantly advance the Action. The sole issue before the Court was this:

Is the determination by the government of the applicable fuel consumption rate for idling yellow school buses in October 2009 to February 2010 of 5.17 litres per hour a “thing done to significantly advance” this Appeal within the meaning of Rule 15.4(1)?

Justice Lee stated that while the wording of the current Rule has been altered slightly from the old Rule 244.1, the change from “materially advance the action” in the old Rules to “significantly advance the action” in the current Rules carried no difference in meaning. To determine what constituted a “thing” done to significantly advance the Action, the Court referred to the following authorities:

Alberta v Morasch, 200 ABCA 24 – A “thing” is not required to be a procedural step, but may be anything that moves the Action closer to Trial.

Calgary (City of) v Chisan, 2000 ABCA – A “thing” does not have to be done in the within Action, but may be done in a closely related Action, when the proceedings are “inextricably linked”.

The Court considered four non-exhaustive factors from Haekel v Canada, 2008 ABQB 701, in determining whether the Other Objections were “inextricably linked” to the Appeal:

1. Are the two Actions inextricably linked in the sense that the result in the related Action would be “legally or factually determinative” of the issues in the primary Action?

2. Will the issue determined in the related Action be “relevant and binding” in the primary Action?

3. Does the related Action materially advance the primary Action?

4. Could the Decision in the related Action be a “barrier in law” to the Court’s adjudicating the primary Action?

Justice Lee found that Alberta’s decision in 2009 and 2010, when it accepted Briggs’ rate of idle fuel consumption, was factually determinative of the primary issue in the Appeal:

By determining the idling rate in the Other Applications, the government has therefore also determined the rate for this Appeal, and so was “materially advancing” this Appeal by resolving one of the matters in issue.

Accordingly, Alberta’s Motion to Dismiss the Appeal for long delay was denied.