HUERTO v CANNIFF, 2015 ABCA 316
BERGER, WATSON AND VELDHUIS JJA
4.31: Application to deal with delay
4.33: Dismissal for long delay
5.10: Subsequent disclosure of records
5.2: When something is relevant and material
The Applicant, Huerto, appealed a decision dismissing his Action for long delay pursuant to Rules 4.33 and Rule 4.31. The Chambers Judge found that neither Huerto’s filing of a Supplemental Affidavit of Records nor the retention of experts significantly advanced the Action.
The Court of Appeal considered Huerto’s argument that his Action should not be dismissed because he had disclosed allegedly relevant documents in his Supplemental Affidavit of Records pursuant to Rule 5.10. Huerto argued that since Rule 5.10 was a required step under the Rules the disclosure automatically qualified as a step that significantly advanced the Action. The Court of Appeal rejected this argument noting that, in order for the records to significantly advance the Action, they must actually be relevant and material as defined in Rule 5.2(1). Huerto also argued that the gathering of expert evidence also significantly advanced the Action. The Court of Appeal dismissed this argument and noted that the expert opinions were never actually shared with the Defendants and therefore could not have significantly advanced the Action.
The Court of Appeal upheld the lower Court’s Decision and dismissed the Action under Rule 4.33. The Court also upheld the Order for solicitor-client Costs under Rule 4.33 noting that, although there was no direct evidence of improper motivation, there was significant circumstantial evidence showing that Huerto acted only to avoid the operation of Rule 4.33. The Appeal was dismissed.View CanLII Details