michalyshyn j

4.33: Dismissal for long delay

Case Summary

The Defendant (“Trebilcock”) applied to dismiss the Action against him for long delay. Although other Co-Defendants had been examined within the three year period, nothing had occurred with respect to the Claim against Trebilcock during that time. The issue became whether or not the Action as a whole must be advanced, or whether it must be advanced as against each Defendant.

Michalyshyn J. reviewed Apex Land Corp v Heikkila, 2011 ABCA 87 (CanLII) (“Heikkila”) which considered former Rule 244.1 (now Rule 4.33). The Court held that a proper interpretation of Rule 4.33 is that a “thing” need only materially advance the Action as a whole, not for a specific Defendant. Although Heikkila was decided pursuant to the old Rules, the Court stated that it clearly applies to Rule 4.33. Trebilcock’s Application was dismissed.

View CanLII Details