The Court considered an Application by the Defendant/Applicant, Roteliuk, to dismiss an Action commenced by her late father, the Plaintiff/Respondent, Dobransky. Dobransky filed the Action following a dispute between he and Roteliuk regarding a parcel of land. Dobransky had transferred ownership of the land to himself and to Roteliuk as joint tenants in 1984, but then took steps in 2007 to sever the joint tenancy and declare that Roteliuk held the land in trust for Dobransky. Roteliuk responded by seeking a declaration that the land transfer was an inter vivos gift to her including an irrevocable right of survivorship.

An Order was granted by a Justice in 2010 severing the joint tenancy and directing the issues in dispute regarding the land to litigation. Dobransky filed a Statement of Claim in July of 2010 and Roteliuk filed a Statement of Defence in October of 2010. Roteliuk was questioned in October of 2011 but no further Questioning had occurred and no Affidavits of Records were filed or exchanged.

The Court Order severing the joint tenancy was never successfully registered at Land Titles despite several attempts. However, in September of 2014, the Executor of Dobransky’s Estate filed a Caveat claiming an interest in the land following his death. In August 2017, Roteliuk brought this Application to dismiss Dobransky’s Action for delay and to discharge the Caveat. In January of 2018, the Executor of Dobransky’s Estate also brought an Application to dismiss the Application for delay and to enforce the unregistered Court Order.

The Court started by confirming that the delay Rules, like all of the Rules, must be interpreted in the context of Rule 1.2, which states that the purpose of the Rules is to provide a fair, timely, and cost-effective way to resolve claims. The Court then considered whether Dobransky’s Action could be dismissed for long delay pursuant to Rule 4.33.

The Court confirmed that Rule 4.33 is mandatory in nature: an Action will be dismissed if three years have passed without a significant advance in the Action. Making this determination requires a “functional approach” whereby the Court evaluates the substance of a step taken by the parties to determine whether it significantly advanced an Action. The Court ruled that three years or more had passed since the last significant advance in the Action. The last significant advance in the Action was the Questioning of Roteliuk in October of 2011. The subsequent activities on the file including unsuccessful attempts to file a Court Order, the filing of a Caveat to preserve an interest, changes in counsel, and fruitless settlement negotiations did not significantly advance the Action in the view of the Court.

The Court also considered whether the Action could be dismissed under Rule 4.31 in case that its analysis of Rule 4.33 was incorrect. The Court has discretion to dismiss an Action under Rule 4.33 if the delay caused significant prejudice to a party. The Court then assessed the six factors articulated in the leading case of Humphreys v Trebilcock, 2017 ABCA 116.

The delay in this case was clearly unreasonable. The Action was commenced in 2010 with the Questioning of only one party completed and the other party now dead. Clearly this delay qualified as “inordinate” and no reasonable excuse had been provided for it. As such, there was a presumption of prejudice. On this point the Court added that, despite the presumption of prejudice, there was also tangible evidence that Roteliuk had suffered prejudice as a result of the delay. The Plaintiff had not been questioned and was now dead.

The Court ruled that the Action could also be dismissed for delay pursuant to Rule 4.31. Bokenfohr J. concluded by assessing the fate of a Counterclaim within the Action. The Court noted that Rules 4.31 and 4.33 are silent about Counterclaims. Therefore, the Court’s inherent jurisdiction is engaged giving the Court the discretion as to the appropriate remedy. As the Counterclaim stemmed from the same factual matrix, and given the delay on both sides, Bokenfohr J. ruled that the Counterclaim was also dismissed.

The parties were directed to provide written submissions on Costs within 30 days if they could not agree.