The Defendants sought to have the claims against them dismissed for long delay pursuant to Rule 4.33 (the “Application”). Feasby J. dismissed the Application and ordered that the parties provide the Court with a Consent Order attaching a litigation plan.

Feasby J. took note of the following findings made by Alberta Courts in relation to Rule 4.33:

• Time is counted forward from the date of the last uncontroversial significant advance and the count stops on the date the Rule 4.33 Application was filed.
• In determining whether there has been a significant advance, the Court asks whether anything has happened in the applicable period increased by a measurable degree the likelihood either the parties or the Court would have sufficient information to assess the merits of the parties’ positions and either settle or adjudicate the Action.
• An advance that occurs in a different proceeding that is inextricably linked to the Action in question can constitute a significant advance for the purpose of Rule 4.33.
• The four factors to consider in determining whether Actions are inextricably linked (the “Angevine Analysis”):

(a)  Are the two Actions inextricably linked in the sense that the result in the related Action would be “legally or factually determinative” of the issues in the primary Action?

(b)  Will the issue determined in the related action be “relevant and binding” in the primary Action?

(c)   Does the related Action materially advance the primary Action?

(d)  Could the decision in the related Action be a “barrier in law” to the Court’s adjudicating the primary Action?

• Not all four elements of the Angevine Analysis must be satisfied. The related Action also need not be determinative of all issues.
• The Angevine Analysis should be approached in a functional, not formalistic way.

Feasby J. held that a criminal proceeding against the Applicants (the “Criminal Proceeding”) was inextricably linked to the present Action and that the Applicants’ conviction and the Agreed Statement of Facts in the Criminal Proceeding constituted a significant advance in the present Action. Taking note of the fact that the parties agreed to stay the present Action for the duration of the Criminal Proceeding (the “Stay”), Feasby J. found that the clock for calculating delay accordingly started to run once the Stay expired. Since the Respondents attempted to take several steps prior to expiration of the Stay that would have advanced the Action but for the Applicants giving notice of their intention to bring the Application, the delay period fell short of the three years required to trigger mandatory dismissal.