The parties had previously filed a Form 37 and set a Trial date. Because of new evidence brought by the Appellant, the Parties entered into a Consent Order adjourning the Trial sine die and permitting the parties to obtain a new Trial date once the evidentiary issues had been resolved.

Several years passed and the Respondent applied to a Master for dismissal for long delay pursuant to Rule 4.33. The Master made a preliminary Order stating that a Master has jurisdiction to hear an Application to dismiss for long delay notwithstanding that a Form 37 has been filed and Trial date has been adjourned sine die by Consent Order.

The Master’s Order was upheld on appeal to a Justice in Chambers. The Appellant appealed the Justice’s decision to the Court of Appeal.

The Appellant raised five Grounds of Appeal:

1.                  whether the Chambers Judge’s refusal to consider the written Brief of the Appellant was contrary to natural justice;

2.                  whether the Chambers Judge erred in law in finding that a Master has jurisdiction to hear a delay Application that would have the effect of varying or rescinding an Order of a Justice, contrary to s. 9(1)(a)(i) of the Court of Queen’s Bench Act, RSA 2000, c C-31 (the “Act”);

3.                  whether the Chambers Judge erred in law in finding that a Master has jurisdiction to hear a delay Application in a Trial matter, contrary to s. 9(3)(a) of the Act;

4.                  whether the Chambers Judge erred in law in not finding that the effect of the Consent Order was that the Action had been adjourned by Order within the meaning of Rule 4.33; and

5.                  whether the Chambers Judge erred in law by allowing a pre-Trial Application to dismiss for delay after both parties had certified and filed a Form 37.

The Respondent argued that the first Ground of Appeal was not properly before the Court because the Applicant had never obtained permission to Appeal pursuant to Rule 14.5(1)(b). The Court disagreed that permission was required because the substance of this Ground of Appeal was not the denial of an Adjournment, as suggested by the Respondent. In any event, the Court declined to decide the question because the Appellant raised four further Grounds of Appeal which were characterized as errors in law, reviewed on a standard of correctness. The Court therefore held that any breach of natural justice would have no material effect on the outcome of the Appeal.

The Court dismissed the second Ground of Appeal on the basis that the Master’s dismissal did not vary or rescind the Consent Order. The Consent Order provided that the Action needed to be rescheduled for Trial, which did not occur. It did not have any effect on the operation of Rule 4.33.

The Court dismissed the third Ground on the basis that a dismissal Application is not a “Trial matter” as contemplated by the Act. A dismissal Application, as evidenced by the location of Rule 4.33 in the Rules, is inherently a pre-Trial matter.

With regard to the fourth Ground of Appeal, the Court stated that pursuant to Rule 4.33(2)(a), Rule 4.33 does not apply when “the action has been stayed or adjourned by an order”. The Court dismissed this Ground of Appeal on the basis that the Consent Order adjourned the Trial, but not the Action itself. The parties were left to resolve outstanding issues and carry on with the litigation, which the Appellant failed to do.

On the fifth Ground of Appeal, the Court held that the initial Form 37 was ineffective to provide a new Trial date and was therefore not operative and did not prevent the Master from granting dismissal pursuant to Rule 4.33. The Court held that the Appellant’s position would mean that once a Form 37 was filed, and an Order adjourns the Trial date sine die, a party could wait for longer than three years, do nothing, and suffer no consequences. Such an interpretation would be contrary to the principles set out in Rule 1.2.

The Court, therefore, dismissed the Appeal.