The Applicant, Atrium Square Investments Ltd, applied for an Order dismissing the Respondent’s claim for delay under both Rules 4.33 and 4.31.

The Respondent argued that several steps had significantly advanced the Action for the purposes of Rule 4.33, including finalizing a consent Order for the payment of money out of Court, and service of an Affidavit of Records which included additional supporting documents for a damages quantification. Hollins J. held that finalizing a consent Order could not constitute a significant advance. However, the production of documents which assisted the parties in understanding the extent of the damages claimed by the Respondent constituted a significant step in the Action. Justice Hollins considered whether the Applicant’s service of its Affidavit of Records after the three year deadline constituted “participation” as contemplated by Rule 4.33(2)(b). Her Ladyship held in obiter that the Courts do not encourage moving parties to further delay matters or lull the non-moving parties into believing that delay has been waived. Justice Hollins observed that service of the Affidavit of Records would not have constituted a waiver of delay under Rule 4.33(2)(b) had that ben an issue. The Rule 4.33 Application was dismissed.

With respect to Rule 4.31, Justice Hollins stated that the Court may dismiss an Action if the delay has resulted in significant prejudice to the Applicant due to inordinate and inexcusable delay. In applying the test set out in recent Alberta Court of Appeal authority, Hollins J. held that the pace of the Action must be assessed “in the context of the claims, its complexity and its history”. Justice Hollins held that the delay was inordinate and inexcusable. However, the Applicant had not suffered prejudice as a result of the delay since no witnesses had disappeared and the Applicant’s director maintained a clear memory of the facts. The Rule 4.31 Application was dismissed.

The Applicant also applied for an Order requiring the Respondent to post Security for Costs to continue its claim. The Applicant argued that Security for Costs was justified because the Respondent had financial difficulties in 2009. Justice Hollins held that, while Security for Costs is not an automatic alternative for a dismissal for delay Application, in the circumstances, it was appropriate to order the Respondent to pay Security for Costs.