1811133 ALBERTA INC v 1556204 ALBERTA LTD

This was an Appeal from a Chambers Justice’s dismissal of an Application to Strike an Action for delay under Rules 4.31 and 4.33. The underlying dispute arose from a failed real estate transaction in 2014. Trial dates were scheduled for February 2021 but were vacated during the COVID period after the parties entered into a binding Judicial Dispute Resolution (“JDR”) agreement. The JDR proceeded to the point of exchanging briefs, will say statements, expert reports, and legal arguments, but it was terminated and did not resolve the matter. The Chambers Justice found that the JDR process and the related loss of trial dates materially advanced the action and reset the three-year period under Rule 4.33, and that COVID related court scheduling delays could not be attributed to the Respondent.

On appeal, the Court held that the Chambers Justice made no palpable and overriding error in dismissing the Rule 4.33 Application. Applying a functional analysis, the Court concluded that the binding JDR process, including the exchange of detailed materials and positions, significantly advanced the action even though it did not result in resolution. The Court emphasized that Rule 4.33 is not a case management tool but is intended to remove Actions that have truly died, which was not the case here. The Appeal was dismissed.