Omega owned a building in Calgary. The adjacent land was acquired by Canada Safeway, who hired Ledcor to construct a building. In February 2001, Omega brought an Action for damages against Safeway and Ledcor, claiming that they had trespassed on Omega’s lands and damaged its building. Omega eventually discontinued the Action against Safeway, leaving Ledcor as the only Defendant. Ledcor sought an Order dismissing the Action pursuant to Rule 15.4, on the basis that five years had elapsed since the last thing done by Omega to significantly advance the Action.

Ledcor argued that the five year period during which nothing was done to significantly advance the Action was May 14, 2007 to May 14, 2012. However, Master Prowse noted that in June 2007, Omega filed a Defence to the Counterclaim filed by Safeway. Although Rule 3.58 provides that a Counterclaim is an independent Action, in practice a Claim and a Counterclaim are tied together more closely than two separate Actions. Where there is a Claim and a Counterclaim, Parties hold concurrent Questioning, and set the matter for Trial concurrently. Master Prowse further held that the Court generally applies a functional approach to dismissal for delay, and considers how an Action was advancing as a whole, and not just against a particular Defendant. The former Rules of Court specifically directed the Court to take Counterclaims into consideration in an Order Striking an Action for Delay. The current Rules simply state that an Action must be dismissed where there is a five year delay. However, under the functional approach, a Claim and Counterclaim should be considered together. This avoids one five year time period running under an Action and a different five year time period running under a Counterclaim.

In any event, Master Prowse held that it was not necessary to decide whether filing of the Defence to the Counterclaim materially advanced the Action. Master Prowse held that Omega materially advanced the Action against Ledcor when it discontinued against Safeway in July, 2010. Moreover, in June 2011, Omega amended its Claim against Ledcor, which also significantly advanced the Action. These steps occurred during the relevant five year period, and as such, Master Prowse declined to dismiss the Action pursuant to Rule 15.4.