Master Schlosser

4.33: Dismissal for long delay

Case Summary

Kehewin Cree Nation’s (“Kehewin”) unsuccessfully applied to strike for long delay pursuant to Rule 4.33 (“first delay Application”) and then appealed. The Court held in the first delay Application that the last significant advance was on November 5, 2014. With an Appeal pending and no stay in place, Kehewin applied again for dismissal for delay as three years had passed from November 5, 2014 (“second delay Application”). The return date for Kehewin’s second delay Application was six months prior to the hearing of the Appeal. Kehew Construction Ltd (“Kehew Construction”) applied for a procedural Order seeking, among other things, an Order that time be suspended from the date of the second delay Application until the determination of the second delay Application.

Master Schlosser considered whether the time between the date of a Rule 4.33 Application and the date of the hearing count as delay. Referring to prior leading authority, Master Schlosser noted that the proceedings should be examined as at the date of the Application, and the time between the date of the Application and the hearing should not count. Master Schlosser also considered whether the time between the Application and date of the Court’s Decision counted for the purposes of a delay Application under Rule 4.33. Master Schlosser held that the time should not count towards a calculation for delay in this case. There was effectively a standstill in place from the date of the Notice of Application to the date of the Court’s Decision.

As a result of the findings with respect to the elapsed time, Master Schlosser held that the Action should not be put on hold pending Appeal.

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