The Plaintiff appealed a decision of a Master to dismiss its claim pursuant to Rule 4.33 upon finding that no step in the Action had occurred since 2009.

The Plaintiff advanced three arguments for why Rule 4.33 does not apply to the Action. First, the Plaintiff argued that constitutional principles of due process and abuse of process would be offended if Rule 4.33 applied in this case. There were allegations of multiple Charter breaches that allegedly remained unresolved which, the Plaintiff submitted, caused significant delay and contributed to the tortious losses claimed in the Action. Further, the Plaintiff argued that the Rules could not be used to override his constitutional right to due process. The Plaintiff argued that his inability to significantly advance the Action was due to his imprisonment and ill health. He submitted that as the imprisonment was caused or contributed to by the Minister’s decision to surrender him to Germany, it would be a miscarriage of justice not to deduct that time from the delay calculation. Finally, the Plaintiff submitted that the Defendant engaged in tactics during the course of the litigation which had the effect of causing delay. He alleged that he was held in Canada for five years during an ethics investigation before he was eventually extradited and noted that the Courts have refused to apply Rule 4.33 where a defendant has purposely obstructed, stalled, or ambushed an Action. He argued that equity required the Court to consider whether Canada should benefit from its “incongruous” conduct.

Shelley J held that Rule 4.33(2) is mandatory and the Court’s discretion may only be exercised in the “clearest of circumstances”. Relying on Humphreys v Trebilcock, 2015 ABCA 116, Her Ladyship found that a person’s constitutional right to commence a claim or to access the Court is not absolute. While there are cases where the conduct of the Defendant is such that applying Rule 4.33 would be inequitable, the Plaintiff had failed to point to any specific conduct on the part of the Defendant which could be categorized as intentionally obstructing, stalling or delaying the prosecution of the Action. There were no unfulfilled promises made by counsel for the Defendant and no act of lulling the Plaintiff into thinking that the Defendant would not assert its right to strike the Action.

Her Ladyship found that the Plaintiff’s argument that he should be excused from the delay because of his incarceration was not supported by the case law. During this time, the Defendant received documents and phone calls from the Plaintiff’s counsel and it was open to the Plaintiff to request a standstill agreement or apply to the Court pursuant to Rule 4.33(9). While the ethics investigation and extradition proceedings, and the Plaintiff’s subsequent incarceration and health issues, may have diverted his attention from pursuing the Action, there was no evidence that the governmental activities were undertaken for any purpose related to causing a delay in the Action.

Shelley J held that the Master’s Decision to dismiss the Plaintiff’s Action on the basis of Rule 4.33 was correct and dismissed the Appeal.