MCKAY v PROWSE, 2020 ABCA 131
VELDHUIS, STREKAF AND HUGHES JJA
1.2: Purpose and intention of these rules
4.33: Dismissal for long delay
This was an Appeal from a Decision dismiss a claim pursuant to Rule 4.33. In the underlying Action it was determined that the last steps that had constituted a significant advance in the Action took place on July 12, 2013. The Respondents applied in November 2016 to have the Action dismissed. A Master struck the Action in November 2017, and in November 2018 a Chambers Judge upheld the Master’s Decision.
The Appellant alleged that the Chambers Judge had erred in determining that three or more years had passed since a significant advance in the Action and in determining that Rule 4.33 should apply regardless of the fact that some of the delays were a result of the Respondents’ conduct. They submitted that (1) settlement negotiations, (2) the production of documents, and (3) proceeding to an Application to vary an Order to permit the production of unredacted documents from an American proceeding, constituted a significant advance in the Action.
The Court of Appeal determined that the Chambers Judge’s conclusion regarding the settlement negotiations was entitled to deference, that the Judge did not err in finding that the production of documents did not constitute a significant advance, and that the Appellant had failed to demonstrate that the Application to vary an Order advanced the Action.
With respect to the Appellant’s assertion that some delays in the Action were a result of the Respondents’ conduct, the Court noted that the Appellant reached out to the Respondents in order to resolve the claim through alternative dispute resolution, and there was no evidence that the Respondents had responded to those requests. Rule 1.2 provides that the Rules were intended to facilitate expeditious and cost-effective ways to resolve claims, encouraged parties to resolve claims themselves, and oblige the parties to communicate in a timely manner. However, the Court reviewed the applicable case law and found that Rule 1.2 did not override the mandatory language of Rule 4.33 and that it was the responsibility of the Plaintiff to pursue the lawsuit.
The Court of Appeal determined that the Chambers Judge did not err and dismissed the Appeal.View CanLII Details