1.2: Purpose and intention of these rules
4.32: Agreement about delay
4.33: Dismissal for long delay
13.6: Pleadings: general requirements

Case Summary

The Defendant insurer brought an Application to strike for long delay. The Plaintiff had started four separate Actions relating to two separate motor vehicle accidents. Two of the Actions involved the Plaintiff’s Section B insurer. The main negligence Actions proceeded through the normal litigation steps, but the Claims against the Section B insurer did not advance after the Affidavits of Records were delivered. The central issue in this case was whether the four related Actions were so closely linked that an advance in one Action represented an advance in the other. Master Schlosser observed that allowing delay without seeking an agreement or a Court Order was risky and should be condemned. Rules 4.32 and 4.33 were the instruments of such condemnation.

Master Schlosser cited Angevine v Blue Range Resource Corp, 2007 ABQB 443 (CanLII) for the applicable test to assess if a related Action is “inextricably linked” to the primary Action:

(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?

Master Schlosser noted that to apply the principles, it was necessary to examine the Pleadings. Master Schlosser stated that while drafting their Pleadings, the parties should be mindful of their obligations under Rule 1.2(3) to identify and narrow the issues in the lawsuit, and to include only those matters which would defeat the Claim or raise a Defence as stipulated under Rule 13.6. Master Schlosser held that the central issues appeared to be identical in all four Actions. While the extent of injuries and determination of causation was not “automatically transferable” from one Action to another, it would certainly go a long way towards a global resolution of the lawsuits. Master Schlosser noted that doubts as to whether there has been a significant advance ought to be resolved in favour of the Respondent. Master Schlosser further stated that a strike for delay is the “capital punishment” of a civil Action, but before the Court “puts on its black hat” to terminate an Action, it should have no reasonable doubts about whether the Action has advanced. The Defendant’s Applications were dismissed.

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