The Defendant, Ms. Kusler, had both her Statement of Defence and Counterclaim (which dealt with divorce and the division of matrimonial property) struck for long delay, pursuant to Rule 4.33. Ms. Kusler, whose estate continued the Action following her death, appealed.

The Defendant argued that Rule 4.33 does not apply to matrimonial or divorce proceedings, or alternatively that the Trial Judge erred in holding that filing a Statement of Defence to Counterclaim upon demand did not significantly advance the Action.

The Court of Appeal held that Rule 4.33 applies to divorce proceedings. The Court noted that Rule 12.2 provides that Part 12 of the Alberta Rules of Court applies to proceedings under the Divorce Act, RSC 1985, c 3 (2nd supp), and Rules 12.34 and 12.35 set out that the Rules in Part 4 apply to the proceedings listed in Rule 12.2.

The Court of Appeal examined whether the Statement of Defence to Counterclaim constituted a “significant” step in the litigation, noting that the Chambers Judge did not have the benefit of recent authority which recognized that a functional review of the steps in the litigation should be undertaken to determine whether a significant advance occurred. The substance of the step taken, rather than its form, should be assessed to determine whether it was significant.

Although the Respondent, Brost, argued that the Statement of Defence was an “innocuous document which did not narrow the issues”, the Court of Appeal noted that the document raised specific issues and also joined issues, linking the issue of the date of separation with that of the wife’s entitlement to property acquired during the marriage. In addition, context suggested that the document was a significant step, as the litigation was taken over by the wife’s Estate after her death, and the Estate appeared to be proactive in moving the litigation forward. Therefore, the Statement of Defence to Counterclaim was held to have significantly advanced the Action. The Appeal was allowed.