This was an Appeal of a Master’s Decision to dismiss an action for long delay pursuant to Rule 4.33. The lawsuit commenced in 2015 and the last significant step was taken in June 2016 when the Defendants served their Affidavit of Records. On May 26, 2020, new solicitors came on record for the Plaintiffs and wrote a letter to the Defendant’s lawyers noting that they were mindful of the lack of progress and enclosed a Notice of Appointment for Questioning (the “Notice”) which specified that Questioning should take place on June 15, 2020, the day before the three-year anniversary of the last significant step. The Defendants responded on June 10, 2020, stating that their client would not attend Wuestioning because, in their view, the Action was stayed by the operation of Rule 4.34 as two of the parties has died. They further asked if an Application would be brought to lift the stay of the Action. The next step the Plaintiffs took was to serve a New Statement of Claim on July 6, 2020. On February 3, 2021, the Defendants served an Application to dismiss the Action for long delay. Master Mason granted the motion on.

Justice Devlin noted that the essence of Rule 4.33 is that the Plaintiffs must keep the litigation moving at a meaningful pace or face having their actions dismissed. The Rules ask whether truly substantial steps have taken place. The question in this case was whether the Notice coupled with the Defendant’s refusal to comply with it, amounted to a significant step. His Lordship found that, though Questioning was a substantial step, an attempt to commence Questioning was not a significant step and the service of the Notice did not suffice as a significant step. When the Defendants raised a legitimate procedural concern, the Plaintiffs did not try to resolve the issue or obtain an Order compelling attendance at Questioning.

In the underlying decision Master Mason accepted that the Action was stayed pursuant to Rule 4.34. In this Action there were multiple Plaintiffs and Defendants and a Plaintiff and Defendant had died by the time the Notice was served. Rule 4.34 had not been previously addressed by a Court in Alberta. After reviewing the case law surrounding a similar Rule in Ontario, Justice Devlin found that Rule 4.34. stayed the action only against the parties who had passed.

Ultimately, Justice Devlin dismissed the Appeal.