BARON REAL ESTATE INVESTMENTS LTD v TRI-ARROW INDUSTRIAL RECOVERY INC, 2026 ABCA 249

This Appeal sought to restore an Action which was dismissed for long delay, pursuant to Rule 4.33. Prior to the dismissal of the Action, the parties had exchanged Affidavits of Records and had scheduled Questioning. However, Questioning was postponed to allow the Appellant to provide a supplemental Affidavit of Records. Shortly after receiving the Appellant’s Affidavit of Records, the Respondents applied to dismiss the Application for long delay pursuant to Rule 4.33.

The primary issue between the parties was whether the service of the supplemental Affidavit of Records constituted a significant advance in the Action. The Chambers Judge held that while the documents in the supplemental Affidavit of Records were relevant and material, they did not address the central issue of the dispute. Further, the documents provided were in the Appellant’s possession prior to service of the original Affidavit of Records and no explanation was given for why they were not provided at first instance. As such, the Chambers Judge concluded that the supplemental Affidavit of Records did not significantly advance the Action and dismissed the Action for long delay.

The Appellant argued that the Chambers Judge had mischaracterized the significance of the supplemental records by erroneously narrowing the issues beyond what the pleadings disclosed. Further, the Appellants submitted that the Chambers Judge wrongfully placed the burden under Rule 4.33 on the Appellants to prove a significant advance had occurred in the Action rather than requiring the Respondents to establish the absence of such an advance.

The Respondents maintained the position they had advanced before the Chambers Judge—that the supplemental Affidavit of Records did not advance the Action and addressed issues that did not require resolution.

In assessing the requirements of Rule 4.33, the Court noted that, in considering whether a significant advance had occurred, the Court must consider if the step moved the Action forward in an essential way considering the nature, value, importance, and quality of the matter. The question for the Court to determine was whether anything had occurred that could put either the Court or the parties in a better position to either settle or adjudicate the Action. The Court determined that the documents in the Appellant’s supplemental Affidavit of Records were relevant and material to the Action and, although the Respondents took issue with the timing of the production, the Appellant was able to provide a reasonable explanation for when the records were produced.

Given the relevance and materiality of the records, the Court held that the Appellant had significantly advanced the Action. The Appeal was allowed and the Action was restored.