The Plaintiff was a passenger on an Edmonton Transit Service bus when it was struck by another bus. The City of Edmonton was served with the Statement of Claim and asked not to be Noted in Default without prior written notice. Plaintiff’s counsel granted this indulgence to the City, but no Defence was ever filed.

The Plaintiff apparently lost interest in the lawsuit, and disappeared. Nothing further happened until the City of Edmonton told Plaintiff’s counsel that the City was going to proceed with an Application for Dismissal for Delay. Plaintiff’s counsel responded by Noting the City in Default.

The City of Edmonton applied for an Order Striking the Action for Long Delay. There had been a gap of at least seven years between the service of the Statement of Claim and the Application to Strike for Long Delay. The Court held that events after the gap do not count unless the Defendant participates. Further, a Defendant who has been Noted in Default may make an Application to Strike for Long Delay (as was the case under former Rule 244.1).

The Court noted that Rule 15.4 is mandatory, and that no exceptions apply to the circumstances. Accordingly, the Application was granted and the Action dismissed.