4.33: Dismissal for long delay
11.21: Service by electronic method
13.4: Counting months and years

Case Summary

The Appellant appealed the Chambers Judge’s Decision to dismiss the Action for long delay. The Appellant was an individual Plaintiff who, in 2015, had commenced an Action against his former employer. After the filing of the Statement of Claim and Statement of Defence, the Respondent employer successfully applied to strike portions of the Statement of Claim. Subsequently, the Appellant failed to take any steps until 3 years less a day later when he purported to serve an Affidavit of Records (the “AOR”) on the Respondent by email after business hours.

The Respondent applied to dismiss the Action pursuant to Rule 4.33. Rule 4.33 permits a party to apply for dismissal of an Action where, absent certain extenuating circumstances, “3 or more years have passed without a significant advance in an [A]ction”. The Respondent argued that the AOR was insufficient to satisfy the requirements imposed by Rule 4.33 because it had been served too late, was incomplete, and was inaccessible to the Respondents since it contained privileged materials. The Respondent’s argument was bolstered by the fact that the Appellant had later provided significant additional documentation in a supplementary Affidavit of Records. 

In evaluating the Appellant’s argument, the Court applied the “functional approach”, as set out in Weaver v Cherniawski, 2016 ABCA 123. The Court observed that this approach “requires the Chambers Judge to determine whether the step said to be a ‘significant advance in an action’ actually moves the lawsuit forward in a meaningful way considering its nature, value, importance and quality. The genuineness and timing of the step are also relevant. The focus is on the substance of the step taken and its effect on the litigation, rather than on its form.” Applying this test in light of the Respondent’s assertions, the Court upheld the Chambers Judge’s Decision to dismiss the Action for delay pursuant to Rule 4.33, and dismissed the Appeal.

Despite this, the Court went on to address two of the Respondent’s alternative arguments. The Respondent’s alternative arguments concerned the proper method of calculating three years pursuant to Rule 4.33 and the consequences, if any, of the Appellant’s failure to serve the AOR within regular business hours. Addressing the first alternative argument, the Court held that Rule 4.33’s reference to “3 or more years” means that a party must have taken some step to significantly advance the Action by the “end of the day” on the day “that is the same number date”, three years from the date of the last significant advance. In coming to its Decision, the Court applied Rule 13.4(3) (Counting months and years), and also the Foundational Rules, insofar as they require that the Rules be accessible to all litigants and encourage fair and just resolutions.

Regarding the Appellant’s alleged failure to serve the AOR within regular business hours, the Court of Appeal held that it was irrelevant that the AOR was emailed after close of business when calculating time for Rule 4.33. The Court noted that Rule 11.21(1)(b) states that electronic service is not deemed effective until receipt of confirmation that service has been received. Since there was no evidence presented to determine when confirmation was provided, it could not be said when service was effected. In general, service will be effected where a document is sent and confirmation is received, regardless of whether that confirmation is received during regular business hours.

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