FORT MCMURRAY AIRPORT AUTHORITY v 994552 NWT LTD

The Defendants applied to dismiss the Action pursuant to Rule 3.68 for significant deficiencies or, alternatively, for long delay pursuant to Rule 4.33.

The Action began on October 21, 2020, when the Plaintiff filed a Statement of Claim alleging that the Defendants had breached a lease. After Pleadings closed, the parties began Questioning pursuant to Part 5 of the Rules, and the Plaintiff provided responses to Undertakings. The Defendants maintained that the last significant step in the Action was the Questioning of the Defendants’ president on May 16, 2022. The Plaintiff, however, argued that the last significant advance occurred on May 18, 2022, when counsel for the Defendants received answers to Undertakings along with the Plaintiff’s Supplemental Affidavit of Records (the “SAOR”). The SAOR included 139 records that had not been previously disclosed (the “New Records”).

The Defendants applied to strike the Plaintiffs’ Pleadings pursuant to Rule 3.68, for failure to comply with Rule 5.10 disclosure requirements. In the alternative, the Defendants sought an Order prohibiting the Plaintiff from relying on the New Records pursuant to Rule 5.16, or an Order dismissing the Action for long delay pursuant to Rule 4.33.

Applications Judge Summers dismissed the Applications brought pursuant to Rules 3.68 and 5.10, finding that striking the Plaintiff’s Pleadings would be a disproportionate remedy, even if there was failure to provide timely notice of the New Records. Applications Judge Summers also dismissed the Rule 5.16 Application on similar grounds, and consequently, dismissed the Rule 4.33 Application which was contingent on the success of the Rule 5.16 Application.

While the Defendants’ Applications were dismissed in their entirety, Applications Judge Summers only awarded the Plaintiff half of Schedule C costs, citing the Plaintiff’s delay in advancing the Action.