PHILLIPS v WHYEW, 2015 ABQB 365
1.2: Purpose and intention of these rules
4.33: Dismissal for long delay
15.4: Dismissal for long delay: bridging provision
15.6: Resolution of difficulty or doubt
The Plaintiffs in two separate Actions appealed the Decision of a Master dismissing their Actions for long delay pursuant Rule 4.33. In both Actions, the last step taken was service of a Notice of Appointment for Questioning before November 1, 2013. The Defendants filed their Applications to dismiss the Actions for long delay on November 1, 2013 which was the date that Rule 4.33 came into force, and the period for dismissal for long delay was set at three years. Both Plaintiffs conceded that the mere service of an Appointment for Questioning does not materially advance the Action, but argued that they should be able to continue their Actions because service of an Appointment for Questioning before November 1, 2013 engages the exceptions under Rule 4.33(1)(c) or (d) which avoids the application of Rule 4.33 and 15.4.
Pentelechuk J. considered whether service of an Appointment for Questioning fell within the exceptions in Rule 4.33, noting that Rule 4.33(1)(c) contemplates that, due to unique circumstances, it may not be appropriate to advance the Action within the three year period. Her Ladyship held that the words “written proposal” in Rule 4.33(1)(c) should be given their plain and ordinary meaning which did not include an Appointment for Questioning. Pentelechuk J. observed that, the Defendants were not given two months to respond to the Appointments for Questioning as required under Rule 4.33(1)(c) since the Appointments were served less than two weeks prior to the three year period coming into effect. Accordingly, the exception in Rule 4.33(1)(c) did not apply. Additionally, Justice Pentelechuk held that the exception in Rule 4.33(1)(d) did not apply since the Defendants’ did not “participate” in the litigation after filing their Rule 4.33 Application. Her Ladyship opined that the exception under Rule 4.33(1)(d) refers to the situation where the Plaintiff files an Application or takes proceedings in which a Defendant participates; the Court may then refuse to dismiss the Action notwithstanding that three or more years have passed since the last significant advance in the Action.
The Plaintiff argued that if none of the enumerated exceptions under Rule 4.33 applied, then transitional Rule 15.6 should save the Actions. They maintained that the five year period in transitional Rule 15.4 should apply instead of Rule 4.33. Pentelechuk J. dismissed this argument, noting that the Plaintiffs had plenty of time to order their affairs to avoid the absolute and mandatory nature of the Rule. In addition, Pentelechuk J. held that delay is contrary to all of the foundational principles in the Rules, including Rule 1.2; as such, it would be inappropriate to continue an Action which was over 10 years old, and which had not been diligently pursued. The Appeal was dismissed.View CanLII Details