The Defendant applied to have the Action dismissed for long delay, arguing that three or more years had passed without a significant advancement in the Action under Rule 4.33(1) and that the inexcusable delay had caused the Defendant significant prejudice under Rule 4.31. Shelley J. noted that Rule 1.2 is relevant to Rules 4.31 and 4.33 since it encourages parties to resolve claims cost-effectively, in a timely manner, and as early as practicable.

Shelley J. concluded that the Action should be struck for long delay. Her Ladyship observed that, upon an Application pursuant to Rule 4.33, the Court is tasked with determining whether there has been a “significant advance” which provides “meaningful” progress to the litigation in the past three years. This is a functional and qualitative analysis where consideration is given to the quality of the step and how it may be relevant to the action. If no significant advance is shown in the previous three years, Rule 4.33 mandates that an action be struck. The Plaintiff argued that significant advances were made when they provided a Supplementary Affidavit of Records, retained experts, and participated in related litigation outside Alberta. Shelley J. found that the Supplementary Affidavit did not add anything new, the expert information was not disclosed to the Defendant and the related litigation was not “inextricably linked” to the primary Action. None of the steps taken by the Plaintiff were significant advancements in the previous three years.

Justice Shelley noted that the legal rule for terminating an Action under Rule 4.31 is whether there is (a) an inordinate delay, (b) that the delay is inexcusable, and (c) that the delay is likely to cause serious prejudice. An inordinate and inexcusable delay is prima facie proof of serious prejudice under Rule 4.31(2). This presumption can be rebutted by a credible excuse. Having concluded that there had not been a significant advance in over six years, Shelley J. stated that there was an inordinate and inexcusable delay. The Defendant did not submit an excuse to rebut the presumption that there was serious prejudice. The Action was therefore struck out under both Rules 4.31(2) and 4.33.