4.33: Dismissal for long delay

Case Summary

The Plaintiff, Mr. Takacs, applied for an Order that a Judicial Dispute Resolution (JDR) be directed. The Defendant Pension Trust Fund cross-applied for mandatory dismissal of the Action for long delay, pursuant to Rule 4.33.

The Action arose from a discrepancy in the commuted value of Mr. Takacs’ union pension plan due to a regulatory change made under the Employment Pension Plans Act, SA 2012, c E-8.1. Mr. Takacs filed a Statement of Claim on August 31, 2018 and an Amended Statement of Claim to substitute the Pension Trust Fund as Defendant, rather than the union local, on February 28, 2019. The Pension Trust Fund filed its Statement of Defence to the Amended Statement of Claim on March 7, 2019. Mr. Takacs’s and the Pension Trust Fund’s Affidavits of Records were filed on August 20, 2019 and October 18, 2019, respectively. Mr. Takacs filed an Application on September 29, 2022 to set the matter down for Trial, which was eventually dismissed by Justice Mah on January 18, 2023. Mr. Takacs filed the current Application on February 28, 2023, returnable April 5, 2023, requesting that the Court direct a JDR, and the Pension Trust Fund filed a cross-Application returnable the same date seeking dismissal of the Action for long delay. For the purpose of the cross-Application, the Parties agreed that the three-year period in Rule 4.33 was extended by 75 days through Ministerial Order because of the pandemic and lapsed on January 3, 2023.

Justice Mah agreed with the Pension Trust Fund’s submission that the long delay Application had to be decided first to see if there was any Action that survived that could go to JDR. He did not make a finding on Mr. Takacs’ complaint about deficient service of the cross-Application and concluded that any deficiency had been waived based on Mr. Takacs’ desire to proceed with both Applications. 

Mr. Takacs argued that his Trial Application should count as a step that advanced the Action. Alternatively, he argued that the Pension Trust Fund acquiesced to his delay by taking part in his Trial Application. On the latter point, given that the Pension Trust Fund’s deponent opposed the Trial Application in his Affidavit, Justice Mah held that the Pension Trust Fund was not waiving its position with respect to the delay by simply defending the Application.

Considering Mr. Takacs’ first point, Justice D.R. Mah stated that the question was whether functionally the Trial Application had any meaningful effect in advancing the Action. Citing Jacobs v McElhanney Land Surveys Ltd, 2019 ABCA 220, Justice Mah held that the dismissed Trial Application was not a significant advance in the Action because nothing was accomplished: the state of knowledge and the positions of the Parties were the same after the Application was heard, and the Court was in no better position to adjudicate - the Action was in the identical state it had been before the Trial Application. In addition, Mr. Takacs’ Application for a JDR after January 3, 2023 could not resuscitate his Action.

In the result, the Court granted the Pension Trust Fund’s Application under Rule 4.33.

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