MA v KWAN, 2018 ABQB 852


1.2: Purpose and intention of these rules
4.33: Dismissal for long delay

Case Summary

The Applicant, Kwan, made two separate Applications to dismiss for long delay in regards to the Respondent, Ma’s, Action for oppression.

The parties were 50% owners of a corporation established to operate a restaurant. Ma applied to the Court for relief from oppression in regards to the corporation, and in the year following the oppression Application, Ma made a series of Applications to sell the restaurant. The final Application was filed in July of 2014 and requested the sale of the restaurant for $85,000. The Application was adjourned but the parties ultimately agreed to sell the restaurant to the bidder who had made the offer of $85,000.

Kwan filed his Application to dismiss for long delay on June 14, 2017, but it was not heard until October 10, 2018. Kwan also filed a second Application to dismiss for long delay five days before the hearing with a returnable date also of October 10, 2018. The issues before the Court were: whether there had been a significant advance of the Action in the three years prior to the first dismissal Application, and if so, whether the fact that the first dismissal Application had not yet been heard continued the clock’s running such that the second dismissal Application could succeed.

In regards to the first issue, Master Prowse found that the sale of the restaurant on September 4, 2014 was a “significant advance” as required by Rule 4.33. The sale did not resolve the overall Action; however, it did narrow the issues to be determined in the Action by addressing what was to happen with the restaurant. Therefore, the first dismissal Application was premature, as a significant advance had occurred 2 years and 9 months prior.

In regards to the second issue, Master Prowse confirmed that the time that passes following a Defendant’s Application to dismiss for long delay does not work against a Plaintiff, as this is properly characterized in the case law as “institutional delay.” Therefore, a moving Defendant cannot strategically leave an Application to dismiss for long delay in effective abeyance by not advancing it to a hearing, and then protect against the risk that the Application is premature by simply filing a second Application closer to the hearing date. This would require a Plaintiff to expend resources to advance a claim after an Application to dismiss has been filed even though these resources would be wasted if the Action is ultimately dismissed. This is not a cost-effective or efficient method of resolving disputes as required by Rule 1.2.

Both of the Defendant’s Applications for long delay were dismissed with Costs to be spoken to if the parties could not agree.


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