The Defendants brought Applications to dismiss the Action for delay pursuant to Rule 4.31 or alternatively, Rule 4.33.

Justice Malik first noted Rule 1.2, which promotes the resolution of disputes in a timely, efficient, and cost-effective way, and is applicable to delay Applications. His Lordship noted that it is the burden of the Plaintiff to advance their lawsuit in a timely manner, but also noted that a Defendant cannot complain of prejudice arising from their own delay. Justice Malik also noted the difference between Rule 4.31, a discretionary remedy for inordinate and inexcusable delay which is presumed to cause prejudice, and Rule 4.33 a mandatory remedy to dismiss an Action that is not significantly advanced in three years. Finally, His Lordship also noted that one of the Defendants, William Edward Curtis, had passed away in the intervening years of litigation. The deceased’s passing triggered a stay of the proceedings pursuant to Rule 4.34, but Justice Malik cited Kametani v Holman, 2018 ABQB 18 and Willard v Compton Petroleum Corp, 2015 ABQB 766 to decide that a Rule 4.34 stay does not preclude parties from bringing delay Applications.

The Action had been initiated in 2011 and had significantly advanced until 2013. From 2014 to 2019 Justice Malik categorized the efforts of the Plaintiff into two categories: (i) efforts to substantiate their damages claim, and (ii) efforts to set the matter down for Trial and obtain agreement on procedural next steps.

With respect to the first category, there was continual back and forth in 2013 and 2014 regarding damages and production. In April 2016, the Plaintiff provided a second breakdown of their damages claim with new invoices. On November 8, 2016, a further answer to Undertaking was provided which produced new documentation. In April 2018, a Supplemental Affidavit of Records was filed. In April 2019, the Plaintiff provided the Defendants with an assessment of damages. Further Questioning of the Plaintiff’s corporate representative was completed in February 2020. Both the corporate representative and Plaintiff’s counsel categorized the Supplemental Affidavit of Records as being a presentational difference in records rather than substantive difference, which was designed to better organize the damages.

With respect to the second category, the Plaintiff filed their first Application for a Trial date in November 2015, their second Application in February 2017, and their third Application in July 2019. All Applications were adjourned. Throughout this period the Plaintiff also proposed a number of consent Orders for procedural steps, but none were agreed upon.

Justice Malik found that there had been inordinate delay since the Plaintiff’s first Application in 2015 to set a Trial date, and considered the period from 2013 to 2019 as a “six-year period of inactivity” with respect to the completion of substantive pre-Trial steps. This six-year period was, in Justice Malik’s determination, inordinate and inexcusable. As noted by His Lordship, despite the Plaintiff being frustrated by perceived delay by the Defendants, they did not utilize the Rules to compel the Defendants’ participation. As a result, Justice Malik was unable to find that the prejudice presumption was rebutted.

Justice Malik went on to consider whether His Lordship was required to dismiss the Action pursuant to Rule 4.33. The Applications to dismiss for delay were filed in October 2019. Justice Malik found that no significant step had occurred in the preceding three years. Specifically, His Lordship noted that steps such as a filed Notice of Appointment for Questioning, filed Applications or requests for Trial dates, and unreciprocated proposals which do not crystallize into enforceable obligations, are not steps which significantly advance the Action. Although the Plaintiff provided an assessment of damages in April 2019 and a Supplemental Affidavit of Records in April 2018, Justice Malik found that this assessment did not provide materially new information and was of minimal consequence. Although His Lordship did not find the production efforts to be merely perfunctory, he did not find these steps to advance the Action in any meaningful way. And although these steps were taken in response to the Defendants’ requests, Justice Malik did not find that to be determinative as to His Lordship’s decision on Rule 4.33.

Justice Malik found that it was just and appropriate to strike the Action for delay as per Rule 4.31 or Rule 4.33.