The Defendants sought an Order dismissing the Action as 5 years had elapsed since the last thing was done to significantly advance the Action. The last thing done in respect of the Action was the filing of one of the Defendant’s Affidavit of Records on October 7, 2005. Between the filing of the Affidavit of Records on October 7, 2005 and the filing of the Defendants’ Application on October 22, 2010, there had been no communication between the Plaintiff or anyone acting on his behalf and any of the Defendants or their counsel.

The Defendants argued that Rule 15.4(1)(b) applied, which provides that the Court must dismiss an Action if 5 years have elapsed since the last thing done to significantly advance the Action, unless Rule 15.4(2) applies.

The Plaintiff argued that counsel for the Plaintiff misplaced the file and no steps were taken as a result of counsel’s failure to advance the Action. The Plaintiff also argued that Rule 15.4(2)(c) applied, which states that the Court must not dismiss the Action if “an application has been filed or proceedings have been taken since the delay and the applicant has participated in them for a purpose and to an extent that, in the opinion of the Court, warrants the action continuing”. Specifically, the Plaintiff argued that Questioning in respect of one of the Defendants in a second Action, similar to the proceeding before the Court, constituted a step in this Action for the purposes of Rule 15.4(2)(c).

The Court referred to the decision in 155569 Canada Limited v Clarkson Gordon, 2004 ABQB 17, which held that a step in another Action, where the two Actions are inextricably linked, may constitute a thing which material advances the other Action. However, in the case at bar, the Court held that although the two Actions involved the same Defendants and claims of the same nature, “the result in one would not dictate the result in the other”.

Further, the Court held that the Defendant’s participation in Questioning in the second Action was not for the purpose of advancing the Plaintiff’s claim in this Action and, given the privilege which attaches to Questioning in an Action, the evidence obtained in the second Action could not be used in this Action.

The Court, in granting the Defendants’ Application, held that none of the exceptions in Rule 15.4(2) applied and that no other exceptions could be considered by the Court. Moreover, the Court noted that, outside of the exceptions enumerated at Rule 15.4(2), the Court has “no discretion when an application is made under Rule 15.4(1)”, and “[i]t must dismiss the action”.