PORTER v ANYTIME CUSTOM MECHANICAL LTD, 2018 ABQB 1058
4.31: Application to deal with delay
4.33: Dismissal for long delay
The Applicants applied for dismissal of the Action for long delay pursuant to Rules 4.31 and 4.33. The Action was commenced on June 25, 2007. The long delay Application was set down on March 24, 2017.
On February 24, 2012, the Applicant applied for an Order allowing one of the Applicants to take carriage of the file on behalf of the other Applicant. The Application was dismissed. The Court found that this Application, whether it was successful or not, did nothing to advance to Action.
The Court also found that a related Action was inextricably linked to the present Action, and as such conducted the long delay analysis as though the two Actions were inextricably linked. The issue then, was whether the related Action had been significantly advanced within the relevant three year period.
Ultimately, the Court found that an Application for the preservation of funds and an unsuccessful contempt Application in the related Action did nothing to advance the related Action. Consequently, the Court dismissed the present Action and the Counterclaim in the present Action on the basis of Rule 4.33. The Court held that it was not necessary to consider Rule 4.31 in this matter.View CanLII Details