STUREK v FERNWOOD DEVELOPMENTS LTD, 2026 ABKB 564V

This was an Application to dismiss an Action for long delay pursuant to Rule 4.33. The underlying Action alleged a conspiracy by the Plaintiff’s landlord, its officers and property managers, and the Plaintiff’s business partner to evict him and take over his business.

The Parties accepted that service of the Fernwood Defendants’ Affidavit of Records in May 2022 significantly advanced the Action. The Plaintiff argued that two later steps also significantly advanced the Action: a partial Discontinuance against two Defendants in November 2024, and the Applicants’ January 2025 consent to a proposed Amended Statement of Claim that was never filed.

Applications Judge Wanke held that the Discontinuance significantly advanced the Action. Removing the Defendants narrowed the parties and issues, clarified the Plaintiff’s position, and improved the efficiency of the litigation. The timing of the Discontinuance, following new counsel’s review of the file, supported its genuineness. Applications Judge Wanke also noted that the strength or weakness of the abandoned claims was not determinative.

The consent to the proposed Amended Statement of Claim provided relevant context but did not independently advance the Action. The Court noted that Rule 4.33 requires one significant advance within the three-year period, not continuous diligence.

Although it did not affect the disposition, the Court commented on the practice of serving unsworn affidavits of records. An unsworn affidavit does not satisfy Rule 5.5, because it is not sworn as Form 26 requires under Rule 5.6(1), and it does not trigger a defendant’s reciprocal obligation under Rule 5.5(3).

Accordingly, the Application was dismissed.