Little J

4.31: Application to deal with delay
4.33: Dismissal for long delay
7.3: Summary Judgment (Application and decision)

Case Summary

The Forest Resource Improvement Association of Alberta (“FRIAA”) commenced two separate debt Actions against the Applicants, Moore and Ringwald, for unpaid reforestation levies. Several steps occurred in both Actions, including Ringwald serving a Supplementary Affidavit of Records in January 2011 and FRIAA sending Notices of Appointments for Questioning in June 2013 which were refused. FRIAA applied to compel Moore to attend Questioning, which Application was granted November 4, 2013. On January 24, 2014, the Applicants filed an Application to transfer the Actions to Lethbridge from Edmonton, which FRIAA consented to. The Applicants then applied to dismiss both Actions for delay pursuant to Rules 4.31 and 4.33, and FRIAA applied separately for Summary Judgment.

Justice Little held that setting a date for Questioning, when it was known that the party would not attend, does not significantly advance an Action. While seeking an Order to compel attendance at Questioning could significantly advance an Action, simply filing an Application itself does not. Moore’s Application to strike for long delay under Rule 4.33 was therefore granted. Similarly, Ringwald’s Application to strike under Rule 4.33 was granted on the basis that the service of the Supplemental Affidavit of Records in the Ringwald Action did not significantly advance the Action because the records produced were records which had already been conveyed to Mr. Ringwald during the course of business between the parties, and because they were not relevant and material to the main issue in dispute.

With respect to the Application to dismiss for inordinate delay pursuant to Rule 4.31, Little J. held that the Actions had aged five years and four years with “nothing much of consequence accomplished”. The Defendants’ Applications for dismissal for inordinate delay were nonetheless denied on the basis that the Plaintiff had raised sufficient evidence to rebut the presumed prejudice arising from the delays.

Finally, Little J. considered FRIAA’s Application for Summary Judgment out of an abundance of caution, and in case the Court’s prior considerations were insufficient to determine the matter. FRIAA asserted that the Defendants’ positions had no merit. Little J. however, held that some of the Defendants’ defences had merit; specifically those with respect to limitations dates. The Application for Summary Judgment was therefore dismissed.

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