4.31: Application to deal with delay
4.33: Dismissal for long delay

Case Summary

The Appellant appealed the dismissal of their Action pursuant to Rule 4.33 in a claim that alleged that the Respondent was negligent in providing dental treatment. The Appellant argued that the Chambers Judge erred in failing to find a significant advance in the Action, largely relating to whether the parties’ counsel had a shared understanding after a phone call in April 2019 that the Appellant would gather additional medical evidence.

A Trial set for ten days was to commence on June 1, 2015. On March 23, 2015, the Appellant’s counsel forwarded to the Respondent’s counsel a new expert report from a doctor who had not been listed as one of the Appellant’s expert witnesses. Chief Justice Wittmann endorsed a Consent Order, dated April 21, 2015, adjourning the Trial sine die and providing the parties leave to set the matter down again for a further Trial date. The parties participated in an unsuccessful Judicial Dispute Resolution (“JDR”). On February 25, 2020, the Respondent applied for an Order dismissing the Action for delay pursuant to either Rule 4.33 or 4.31.

Both the Applications Judge and the Chambers Judge found that there was no significant advance of the Action for over three years between the JDR and the Application to dismiss for delay. The Appellant’s Action was dismissed pursuant to Rule 4.33. As a result, the Chambers Judge did not need to address the companion Application to dismiss pursuant to Rule 4.31.

The Court surveyed Alberta jurisprudence where one party’s information and document gathering was put forward as significantly advancing an Action. The Judgments showed that Courts consider the importance of the documents, the information in the documents, the relevance and quality of the information, and, importantly, whether the information and documents were provided to the other party. The Court emphasized that the purpose for which documents are sought is not determinative on its own, and whether the documents, or the document-gathering process, was communicated to the opposing party must be considered. In the case at hand, it was undisputed that the medical information was not provided to the Respondent until February 28, 2020, after they brought the Application to dismiss.

The Appellant argued that the process for gathering additional evidence was communicated during an April 5, 2019 telephone conversation. Though the contents of that conversation were disputed, the Respondent sent a draft Order Scheduling Trial Date to the Appellant. Among other things, it would have required the Appellant to serve a further Supplemental Affidavit of Records. The Appellant never responded or followed-up. The Chambers Judge found this inaction was “wholly inconsistent” with the existence of any agreement between the parties as to the further production of medical documents by the Appellant. This ground was dismissed.

The Appellant raised a final ground of Appeal: that the Order of April 21, 2015 stayed or adjourned the Action as contemplated within the meaning of Rule 4.33(2)(a). This ground was also dismissed, as the Court agreed with the Chambers Judge’s findings that the terms of the April 21, 2015 Order adjourned the Trial, not the Action, as it did not prevent any party from taking any further steps.

The Appeal was dismissed.

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