VINCENT v MODULINE INDUSTRIES (CANADA) LTD, 2011 ABQB 571
1.2: Purpose and intention of these rules
1.7: Interpreting these rules
4.31: Application to deal with delay
15.4: Dismissal for long delay: bridging provision
The Defendant applied to have the Action dismissed on the grounds that more than five years had elapsed since the last thing was done that materially advanced the Action; or in the alternative, pursuant to Rule 4.31, there had been an inordinate, inexcusable delay by the Plaintiffs in pursuing the Action, resulting in significant prejudice to the Defendants.
In assessing whether Rule 15.4 applied to the circumstances before it, the Court noted the impact of Rules 1.7(1) and (3), which require that the meaning of the Rules should be “ascertained from the text, in light of the purpose and intention of these rules” and that reference can be made to the headings of the Rules in determining their purpose. Rule 1.2 also details the purpose and intention of the Rules.
The Court noted that the language in Rule 15.4 is mandatory and the Court “must dismiss” the Action if the time prescribed in Rule 15.4(1) has elapsed since the last thing that was done to significantly advance the Action and none of the exceptions in Rule 15.4(2) apply.
The Plaintiff argued that a Praecipe to Note In Default and a Consent Order setting the Noting in Default aside significantly advanced the Action for the purposes of Rule 15.4. The Court engaged in a thorough analysis as to whether those steps constitute things which significantly advanced the Action and relied on cases decided under former Rule 244.1 in determining whether to dismiss the Action.
The Court disagreed with the Plaintiff and held that, in the circumstances, neither the Noting in Default nor the subsequent Consent Order setting aside the Noting in Default, significantly advanced the Action. Accordingly, the Court dismissed the Action against the Defendant.View CanLII Details