DION v RASHID, 2026 ABKB 492

The Defendants sought to dismiss five related Actions for long delay pursuant to Rules 4.33 and 4.31. At issue was whether one Defendant’s response to an Undertaking and another Defendant’s failure to answer Undertakings, despite an Order compelling answers, constituted a significant advance in the Actions.

Applications Judge Summers reviewed the functional approach to Rule 4.33 and confirmed that whether a step significantly advances an Action depends on its nature, quality, genuineness, and timing. The Court further emphasized that, while responses to Undertakings generally constitute a significant advance since they form part of the discovery process, that determination is context specific and depends on whether the response meaningfully advances the litigation.

Applying those principles, the Court held that the response to one Defendant’s Undertaking did not significantly advance the Action. While relevant, the response did not meaningfully assist the parties in resolving the dispute or the Court in adjudicating the issues. Conversely, Applications Judge Summers found that the unanswered Undertakings sought from another Defendant related to the central issue of consent and, if answered, would have constituted a significant advance.

The Court held that a Defendant could not rely on Rule 4.33 where that Defendant failed to comply with a Court Order compelling production of Undertakings that would have significantly advanced the Action. Applications Judge Summers concluded that the Order compelling answers to the Undertakings, together with the Defendant's continued non-compliance, prevented dismissal for long delay under Rule 4.33.

With respect to Rule 4.31, the Court held that the Defendants could not establish significant prejudice. Applications Judge Summers noted that the Defendants previously maintained that the outstanding Undertakings addressed a central issue in the litigation that required resolution before other procedural steps could be taken. Further, the Court noted that no evidence of prejudice was adduced in support of the Application.

In the result, the Court dismissed the Applications under Rules 4.31 and 4.33. The parties were directed to speak to costs in morning chambers, if required.