4.31: Application to deal with delay
4.33: Dismissal for long delay
5.5: When affidavit of records must be served
13.18: Types of affidavit

Case Summary

Two separate Actions were commenced in 2009 and 2010 which related to a building built on shifting land. The Third Party in the 2009 Action, CT & Associates Engineering Inc. (“CT”), was also a Defendant in the 2010 Action. CT applied to strike both Actions for delay pursuant to Rule 4.33 and, in the alternative, Rule 4.31.

Kingsway General Insurance Company argued that its Affidavit of Records was served in 2010; however, CT, without proffering supporting first hand evidence on the point, disputed that they had received the Affidavit of Records until 2014. Master Schlosser noted that service of an Affidavit of Records is a required step under Rule 5.5 and, as such, will re-start the clock for the purpose of Rule 4.33; holding a sworn affidavit on file is not enough to re-start the clock. Master Schlosser observed that Rule 13.18(3) requires that an Affidavit sworn in support of an Application that may dispose all or part of a Claim, such as a Rule 4.33 or 4.31 Application, must be sworn on the basis of personal knowledge. Master Schlosser held that, while normally all of CT’s evidence which violated Rule 13.18(3) would be ignored, the determination of the Application did not turn on this point.

During the course of the 2009 Action, CT had appealed the striking of its Fourth Party Notice to the Court of Appeal. Master Schlosser considered whether Reasons following an Application, a Formal Order or the passing of an appeal period counts as an advance which would re-start the clock under Rule 4.33. Master Schlosser held that the events following the Court of Appeal hearing, such as the written Reasons and formal Order and “possibly” the passing of an appeal period, restarted the three year clock.

In the result, the Application to dismiss the two Actions for delay under Rule 4.33 and 4.31 was dismissed.

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