The Applicant applied to dismiss a construction lien Claim for delay pursuant to Rule 4.33.

The Court began by surveying the procedural history of two parallel proceedings, which included: (1) the filing of a lien and commencement of a Calgary-based Action by the Respondent; (2) a Edmonton-based Originating Application, filed by the Applicant pursuant to section 48 of the Prompt Payment and Construction Lien Act, RSA 2000, c P-26.4, seeking the removal of the lien from title; (3) the payment into Court of the lien amount, within the Edmonton-based Originating Application and the corresponding removal of the lien from title; and (4) a successful Application for dismissal by one of two Defendants in the Calgary-based Action. No further steps occurred in the Calgary-based Action.

The substance of the Court’s analysis focused on the procedural errors which led to this Application being brought within the Edmonton-based Originating Application, and the problems which had arisen accordingly.

Because these proceedings were commenced by Originating Application, there were no Pleadings. The Court noted that the starting point for the delay analysis is to measure progress against the issues defined in the lawsuit, as set out in the Pleadings. Furthermore, Rule 4.33 governs Parties to an “Action”, and the Respondent to an Application under Rule 4.33 must be the Party which filed the commencement document.

Here, the Court observed that the Applicant (1) was not a Party to an Action “in the conventional sense”; and (2) was itself the Party which filed the relevant commencement document. The result, per the Court, was that the Applicant was effectively applying to strike out its own Application.

The Court further reviewed Rule 4.33(2), which refers to an absence of “a significant advance in an Action”. Again, the Court noted that there was no “Action” here and therefore held that Rule 4.33 had no direct application in the circumstances.

The Court dismissed the Application.