FIELD, FIELD & FIELD ARCHITECTURE-ENGINEERING LTD v TEMPO CONSTRUCTION (2000) LTD, 2015 ABQB 471
3.58: Status of counterclaim
3.59: Claiming set-off
4.33: Dismissal for long delay
5.5: When affidavit of records must be served
The Plaintiff (Field) sued the Defendant (Tempo) in debt. Tempo filed its Defence and also claimed set-off. As well, Tempo Counterclaimed for damages resulting from negligence and breach of contract. The allegations of negligence triggered the involvement of Field’s insurer. As a result, separate law firms represented Field in its capacities as Plaintiff and as Defendant by Counterclaim. Tempo served Field with an Affidavit of Records, but sent it only to counsel representing Field as Plaintiff, and not counsel representing Field as Defendant by Counterclaim.
Field subsequently applied to strike Tempo’s Counterclaim for long delay under Rule 4.33. Field argued that service of the Affidavit of Records on the other counsel did not serve to interrupt a delay of more than three years in the Counterclaim Action.
Justice Browne noted that, pursuant to Rule 3.58, a Counterclaim is an independent Action. Further, pursuant to Rule 3.59, set-off may be claimed by Counterclaim or pleaded as a defence. Browne J. reviewed the applicable case law relating to Rule 4.33, and held that a thing done in an Action that materially advances the Action may be considered an event in a closely related Action when the proceedings are inextricably linked.
Justice Browne concluded that the Actions were inextricably linked as they related to the same parties and the same contract. Her Ladyship held that service of the Affidavit of Records materially advanced the Action as a whole. Accordingly, the Application was dismissed.View CanLII Details