SUTHERLAND v BROWN, 2018 ABCA 123
BERGER, MCDONALD AND STREKAF JJA
4.33: Dismissal for long delay
The Appellant appealed a Chambers Judge’s decision, which upheld a Master’s decision to dismiss the Appellant’s Action for long delay pursuant to Rule 4.33. The issue on Appeal was whether a settlement offer (the “Settlement Offer”) significantly advanced the Action so as to re-start the three year period set out in Rule 4.33.
The Settlement Offer was a 12-page letter sent on a “without prejudice” basis. It summarized the facts at issue, referenced case law, and proposed that the Plaintiff and Defendant equally share liability. The Appellant argued that the partial liability admitted in the Settlement Offer significantly advanced the Action. It was also argued that the Chambers Judge erred in holding that the without prejudice Settlement Offer was not properly before the Court, and that the Chambers Judge placed too much emphasis on the outcome of the Settlement Offer. The Court of Appeal noted that the Chambers Judge had acknowledged that the Settlement Offer was before the Court; as such, the Appellant’s argument that the Chambers Judge erred on that basis was without merit.
The Court of Appeal explained that a step may significantly advance an Action if it serves to narrow issues or clarify the parties’ positions. While the outcome of a step should not be over-emphasized, outcomes are not irrelevant. Rather, the functional approach to Rule 4.33 requires that the Court assess the step by reviewing the “whole picture of what transpired over the three year period”. In some cases, this necessarily includes the outcome of the step.
The Court of Appeal noted that progress towards settlement, including the exchange of settlement offers, may constitute a significant advance in an Action. However, here, the Master and Chambers Judge reasonably held that the Settlement Offer did not advance the Action in this case. The Chambers Judge did not err in interpreting Rule 4.33. The Appeal was dismissed.View CanLII Details