4.33: Dismissal for long delay
15.4: Dismissal for long delay: bridging provision

Case Summary

The Defendants applied for an Order dismissing the Plaintiffs’ Action, pursuant to Rule 15.4(1), on the basis that the Plaintiffs did nothing to significantly advance the Action for five years prior to the date the Application was filed. In deciding this Application, Master Smart relied on Bahcheli v Yorkton Securities Inc, 2010 ABQB 824, for the proposition that the jurisprudence under former Rule 244.1(1) continues to be applicable to Rule 15.4 and that there is no difference between the term “significantly” advanced under the new Rule and “materially” advanced under the old Rule.

Master Smart stated that the question to be decided was whether or not there was an express agreement between the Plaintiff and Defendant for a standstill agreement that added time onto the five year period contemplated under Rule 15.4. In determining whether there was an express agreement, Master Smart relied on Bugg v Beau Canada Exploration Ltd, 2006 ABCA 201, where the Court stated that a standstill agreement can be written, oral, or partly written and partly oral, as long as it is express and not based on intent or inference. Further, not all agreements that remove the need to take an immediate step automatically add time to the period contemplated in Rule 15.4. Master Smart concluded that the interpretation of an alleged standstill agreement should be based on the words used or there must be a reasonable implication or inference that adds time onto the five year period contemplated by the Rule. Master Smart also held that the Court must consider whether or not the facts and circumstances support an inference of a standstill agreement.

The Court found that an extension of time was requested by the Defendants, and was granted by the Plaintiffs, but only in order to provide the Plaintiffs with an opportunity to correct a material defect in their Statement of Claim. Master Smart stated that the Court was unable “to clearly (or at all) find by inference or implication a standstill agreement by time tacking or otherwise”. The Application of the Defendants was granted and the Action was dismissed.

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