The Defendants in a debt Action applied for an Order dismissing the Plaintiff’s Action under Rules 4.33 and 4.31. Justice Bokenfohr considered Rule 4.33 first. In so doing, Her Ladyship noted that the parties had agreed that a Consent Order entered on February 1, 2010 significantly advanced the Action. At issue were a Statement of Defence to Counterclaim filed by the Plaintiff on September 27, 2013 and a Supplemental Affidavit of Records served by the Plaintiff on the Defendants on September 26, 2016.

Bokenfohr J. noted that though the proceedings commenced in 2007, the Rules that came into effect on November 1, 2010 apply to existing proceedings pursuant to Rule 15.2. Justice Bokenfohr also noted Rule 15.8 provides for increased or decreased time limits (under the Rules) and that there was formerly a transitional Rule dealing with dismissal for long delay (the now repealed Rule 15.4), which applied during the life of the Action. Interpreting the now repealed Rule 15.4, Justice Bokenfohr maintained that:

R 15.4 provides that in this situation a court could have dismissed the Action if three years elapsed after the Rule came into force without a significant action (November 1, 2010-November 1, 2013), or five years elapsed without a significant advancement (February 1, 2010 (Consent Order) – February 1, 2015), whichever came first. After November 1, 2013 the three year drop dead period under r 4.33 applied.

Her Ladyship then noted that the Action would have to be dismissed if the Statement of Defence to Counterclaim did not significantly advance the Action, as the delay between the Consent Order and the next possible advance, the Supplemental Affidavit of Records, was six and a half years. Similarly, the Action would have to be dismissed if the Supplemental Affidavit of Records did not significantly advance the Action (but if the Statement of Defence to Counterclaim did), as more than three years had passed between the filing of the Statement of Defence to Counterclaim and the service of the Supplemental Affidavit of Records.

Bokenfohr J. proceeded to review case law pertinent to Rule 4.33, remarking that the functional approach ought to be adopted in applying Rule 4.33. Considering the five paragraph Statement of Defence to Counterclaim at issue, Bokenfohr J. remarked that “a pleading will usually significantly advance an action”. Justice Bokenfohr then proceeded to contrast the Statement of Defence to Counterclaim at issue to a fulsome Statement of Defence to Counterclaim that the Court of Appeal analyzed in Brost v Kusler, 2016 ABCA 363 (CanLII), and found that it was a “boilerplate denial”. Based on this, Her Ladyship held that the Statement of Defence to Counterclaim did not significantly advance the Action.

Next, Justice Bokenfohr considered whether the Supplemental Affidavit of Records had significantly advanced the Action. Bokenfohr J. noted that it contained a general ledger, which ought to have been included in the original Affidavit of Records, but was instead provided almost ten years after the Action began. In addition, the other records included in the Supplemental Affidavit of Records (balance sheets) did not significantly advance the Action. Accordingly, Her Ladyship concluded that the Supplemental Affidavit of Records also did not significantly advance the Action. Thus, Bokenfohr J. concluded that the Action should be dismissed pursuant to Rule 4.33.

Justice Bokenfohr then considered whether the Action should be dismissed pursuant to Rule 4.31 as well. Bokenfohr J. remarked that one difference between Rule 4.31 and Rule 4.33 is that Rule 4.33 is mandatory, while Rule 4.31 is discretionary.

Justice Bokenfohr noted that Humphreys v Trebilcock, 2017 ABCA 116 (CanLII) sets out the questions that are relevant in applying Rule 4.31. Considering these questions in the circumstances, Bokenfohr J. found that the Action had been ongoing for over 10 years, with a Trial still being “a long time away”. According to Justice Bokenfohr, the Plaintiff had “failed to advance the Action to a point on the litigation spectrum that a reasonable claimant ought to have attained in ten years”. This delay was inordinate according to Her Ladyship. Further, upon review of the evidence, Justice Bokenfohr found that there was “no real evidence to explain the delay”.

Bokenfohr J. noted that prejudice is presumed upon finding “inordinate and unexplained delay”. The Plaintiff had not rebutted the presumed prejudice. Of note, though the Defendants also argued that they had suffered actual prejudice, Bokenfohr J. held that it was unnecessary to decide on actual prejudice given the presumption of prejudice.

Justice Bokenfohr then remarked the plaintiff has the onus of advancing the litigation, and that the defendant ought not to come in the way of that advancement, in accordance with Rule 1.2. However, they are not expected to carry the action where the plaintiff fails to. Here, Bokenfohr J. found that the Defendants “did not actively obstruct or delay any steps taken” by the Plaintiff.

Finally, in holding that there was no compelling reason not to dismiss the Action, Justice Bokenfohr found that there was inordinate and inexcusable delay resulting in significant prejudice to the Defendants, and also dismissed the Action pursuant to Rule 4.31.