McDonald, Wakeling and Feehan JJA

1.2: Purpose and intention of these rules
4.31: Application to deal with delay
4.33: Dismissal for long delay
4.4: Standard case obligations
6.37: Notice to admit

Case Summary

The Appellant, McElhanney Land Surveys Ltd. (“McElhanney”) initially applied to have the Action of the Plaintiff, Anthony Jacobs (“Jacobs”), struck for long delay in accordance with Rules 4.31 or 4.33. Master Schulz initially held that Jacobs had not significantly advanced his wrongful dismissal suit against McElhanney in the applicable three-year period and dismissed the Action under Rule 4.33. Master Schulz did not consider Rule 4.31. On Appeal of Master Schulz’s decision, Justice Graesser held that an Application for Summary Judgment that was never heard qualified as a significant advance of the Action and therefore granted the Appeal (the “SJ Application”).

The Majority of the Court of Appeal considered whether three specifics steps either on their own or collectively constituted a “significant advance” such that it would prevent the applicability of Rule 4.33. The three steps were: (1) the SJ Application that was never heard; (2) an improper Notice to Admit provided by Jacobs under Rule 6.37; (3) or a single email from Jacobs to McElhanney’s counsel asking for potential Summary Judgment hearing dates that evoked no response.

The Majority of the Court of Appeal reviewed the relevant jurisprudence in light of the foundational Rule 1.2 and noted that the parties were not any closer to the resolution of their dispute at the end of the three-year period than they were at its start. The Majority found that Jacobs had failed to reasonably advance the Action as prescribed in Rule 4.4. As such, none of the three steps on their own or collectively qualified as a “significant advance” of the Action. Accordingly, the Majority allowed the Appeal, set aside the Order of Justice Graesser, and revived the Order of Master Schulz dismissing the Action.

Justice McDonald, in His Lordship’s dissenting Decision, noted that the Chambers Judge correctly cited Bahcheli v Yorkton Securities Inc, 2012 ABCA 166 (CanLII), for the proposition that the standard of review to be applied by a Chambers Judge on an Appeal from a Masters’ Decision is correctness, such that no deference is owed. McDonald J.A. noted however that the Appeal from Justice Graesser’s Decision is afforded deference and that palpable and overriding error is the standard of review for failing to dismiss the Action for long delay when questions are of mixed fact and law.

Justice McDonald noted that McElhanney’s failure to respond to the Notice to Admit, proper or otherwise, coupled with its counsel’s failure to respond to the email requesting dates for the SJ Application grounded the Chambers Judge’s ruling. Given the record before the Court, Justice McDonald described Justice Graesser’s ruling as “eminently reasonable” and accordingly would have dismissed the Appeal.

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