The Defendants brought an Application to strike the Action for long delay, pursuant to Rule 4.33. The Plaintiffs had applied to compel responses to undertakings on February 28, 2023 (the “Undertakings Application”). The Applications Judge found that the Undertakings Application did not meet the test of a significant advance in the Action, and the Action was therefore dismissed. The Plaintiffs appealed. Michalyshyn J. found that the Applications Judge erred in striking the Action and granted the Appeal.

The Court held that, distinct from those cases in which parties are exploring steps toward a Judicial Dispute Resolution, case management or the like, the Undertakings Application was “a proceeding”. As such, the Applications Judge erred in finding the Undertakings Application was not a significant advance in the Action.

The Court further found that an Affidavit providing a fuller response to the Defendants’ undertakings, which was filed March 17, 2023, constituted a significant advance in the Action as it was necessary for the litigation to proceed.

Michalyshyn J. cited Western Industrial Services Ltd v Brennan, 2024 ABKB 50 (“Western Industrial”) for the law around an “Applicant’s participation” that might save the Action. Justice Michalyshyn also cited Western Industrial for the proposition that “[i]t is not necessary [under Rule 4.33(2)(b)] that such participation represent a ‘significant advance’, only that the requirements of R. 4.33(2)(b) are met”. Applying the law set out in Western Industrial, Michalyshyn J. found that the Defendants’ participation in the proceedings, including filing an Affidavit and consenting to adjournments, constituted engagement that warranted the Action continuing.

Michalyshyn J. concluded that the Defendants’ actions indicated a willingness to engage in the Action, thus justifying its continuation.