The Applicant (Plaintiff) applied to have the requirement of an alternative dispute resolution (“ADR”) process waived so that the matter could be set for Trial (“Original Application”). The parties entered a consent adjournment of the Original Application due to counsel unavailability, which provided that the hearing of the Original Application would be heard as if it was the date it was originally scheduled for because the re-scheduled date was after the agreed upon drop dead date created by Rule 4.33. After the drop dead date passed, the Defendants applied to dismiss the Action pursuant to Rules 4.33 and 4.31, noting the Notice to Profession dated February 12, 2013 suspending the requirement for a mandatory ADR process. The Plaintiff subsequently amended the Original Application to request an Order to set the matter down for Trial (“Amended Application”).

The Plaintiff argued that Defendant counsel had breached the Law Society of Alberta’s Code of Conduct by failing to notify Plaintiff counsel that the mandatory ADR process had been waived, and that such a breach disentitled the Defendants from invoking Rule 4.33. The Plaintiff also argued that had the Original Application been heard prior to the expiry of the drop dead date, he would have become aware of the suspension of the mandatory ADR process, and would have applied to amend the Original Application and set the matter down for Trial then.

Justice Shelley adopted the functional approach to determining whether either of the Original Application or the Amended Application constituted a significant step in the Action, having regard to its nature, value, quality, genuineness, timing, and outcome. Justice Shelley found that the Amended Application did not significantly advance the Action because merely filing and serving an Application but not having it heard does not significantly advance an Action.  Justice Shelley also found that the Original Application did not significantly advance the Action as there was no need to apply to waive the mandatory ADR process. Shelley J. also found that Defendants’ counsel was not required to notify Plaintiff’s counsel of the waiver of the mandatory ADR process, and thus did not engage in conduct which would disentitle the Defendant from relying on Rule 4.33.

Shelley J. then considered whether the Court should exercise it’s broad discretion to grant any remedy necessary in the circumstances by granting an Order setting the matter down for Trial, despite it not having been sought or claimed by the Applicant in the Original Application. Shelley J. cited the Rules generally, and particularly Rules 1.3, 1.4, 4.9, 4.11 and 4.31 for the authority to do so. Justice Shelley also noted that Rule 1.3(2) in particular, grants a Chambers Judge the authority to grant a remedy regardless of whether it is claimed or sought by the parties. Justice Shelley held that granting an Order which has not been sought by any of the parties should only be done where such an Order would not (1) surprise any of the parties; (2) contravene any specific provisions provided in the Rules, and (3) prejudice the party against whom the Order is made. Justice Shelley found that the Defendants would not be surprised by an Order setting the matter down for Trial, however, they would be prejudiced by the Order. Shelley J. therefore declined to grant an Order setting the matter down for Trial.

Justice Shelley also considered the Defendants’ Application under Rule 4.31, and noted that the Action was 11 years old and pertained to events which took place nearly two years before the Action was commenced. Justice Shelley rejected the Plaintiff’s assertion that this length of time to advance an Action involving concurrent criminal and disciplinary proceedings, and multiple Defendants, including the Edmonton Police Service. Justice Shelley found that there was no evidence that the concurrent proceedings had delayed the matter, nor that any of the Defendants had contributed to the delay. Justice Shelley also rejected the Plaintiff’s argument that a dispute between his counsel as to who would retain conduct of the file after counsel of record left the firm constituted a reasonable excuse for the delay, noting that no steps were taken to deal with the matter until the 11^th hour. Justice Shelley accepted that the presumption of prejudice to the Defendants applied given that memories fade or change over time, notwithstanding that the concurrent proceedings generated significant evidence, including transcripts of witness testimony. Justice Shelley also noted that the nature of the claims (involving allegations of professional misconduct) required the claims to be prosecuted expeditiously to minimize the damage caused to the Defendants’ reputations, and the failure to do so weighed in favour of dismissing the Action pursuant to Rule 4.31.

The Plaintiff’s Application was dismissed and the Defendants’ Application was granted, with the result that the Action was dismissed.