This was an Application to strike an Action for long delay, which required the Court to consider the circumstances surrounding a Notice to Admit being a “thing” that may have “significantly advanced” the Action.

Although Rule 15.4(1)(b) – the transitional provision between old Rule 244.1 and new Rule 4.33(1) – was not specifically mentioned, its presence as the bridging provision that currently governs the dismissal of actions for delay is worthy of note. Master Schlosser indicated that the test relating to Rule 244.1 from Trout Lake Store Inc v Canadian Imperial Bank of Commerce, 2003 ABCA 259, which summarized in what situations a Rule 244.1 Application to dismiss an Action may or may not have been successful, applied to this Decision. In other words, the Court appeared to tie the test that applied under the old Rule 244.1 (which used the words “materially advance”) to Rule 15.4(1)(b) (which uses the wording “significantly advance”).

With respect to Rule 6.37(6), the Court permitted a withdrawal of a deemed admission relating to a Notice to Admit (such deemed admission resulting from the Defendant’s decision not to respond to the Plaintiff’s Notice to Admit). The Notice to Admit had sought admissions of fact that were refuted in the Statement of Defence and specifically denied in Examinations for Discovery. Master Schlosser noted that withdrawal of the deemed admissions would not result in any prejudice that was not compensable in costs. The Master referred to authorities under the old Rules relating to such withdrawals and concluded that he had difficulty imagining that the test for withdrawal as found in those authorities would not be satisfied in this case.

Master Schlosser allowed the Application, deciding that it would be inappropriate to justify allowing the Action to continue on the basis of deemed admissions that would surely be withdrawn.