The Plaintiffs, Ward Willard and Whispering Winds Stables Incorporated, sued the Defendant, Compton Petroleum Corporation (“Compton”), for breach of a surface lease agreement due to alleged damage to the Plaintiffs’ land. The last formal step taken was service of the Plaintiffs’ undertaking responses on October 18, 2007. Thereafter, settlement discussions ensued and a meeting was held on February 17, 2011 to inspect the Plaintiffs’ land. Mr. Willard’s sister, Marsha Willard, swore an Affidavit that a site inspection of the land did in fact occur on the date of that meeting which conflicted with the Affidavit evidence of the Defendant. However, Ms. Willard did not assert that she was actually in attendance at the meeting or give a source for the basis of that information. As such, her Affidavit evidence was rejected pursuant to Rule 13.18.

On August 22, 2012, Mr. Willard passed away and transferred his Estate to his sister. On October 23, 2013, Compton applied to dismiss the Claim pursuant to Rules 4.31 and 4.33. That Application was adjourned and, on February 7, 2014, Ms. Willard filed to continue the Action under Rule 4.34.

The Master held that Mr. Willard’s death displaced Rule 4.33 by virtue of Rule 4.34, and the requirements of Rule 4.31 were not met. In addition, the Master lifted the stay under Rule 4.34 so that the Action could continue. Compton appealed the Master’s Order. Mahoney J. cited the issue on Appeal as whether a Defendant could apply under Rule 4.33 to dismiss an Action when, as a result of the death of the Plaintiff, the Action was subject to a stay of proceedings under Rule 4.34.

Mahoney J. agreed that the last step taken to significantly advance the Action was service of the undertaking responses on October 18, 2007. The Application to dismiss was filed on October 23, 2013, during the time the bridging provision of Rule 15.4 was in effect. If Mr. Willard’s death and resulting stay had no effect on the calculation of inactive time, then Compton’s Application was well-placed: the earlier date pertinent to Rule 15.4 was October 18, 2007, as the last thing done to significantly advance the Action.

Rule 4.34(4) specifically references Rule 4.31 as the remedy to deal with delay:

(4) If an order to continue an action is not made within a reasonable time after the date on which the action is stayed, the defendant or respondent may apply to the Court to have the action dismissed for delay under rule 4.31.

The Master held that, as a result, Rule 4.33 was not even engaged. Compton argued that the Master interpreted the word “may” in this subrule to mean “shall”, thereby removing the right of an Applicant to seek mandatory dismissal of an Action for long delay. The Respondents argued that, when there are two possible interpretations in interpreting the drop dead rule, the interpretation which favours the Plaintiff’s right to litigate should govern.

Mahoney J. held that Rules 4.33 and 4.34 must be read together and in a manner which achieves the goals of Rule 1.2 to provide a fair and just resolution of disputes in a timely fashion. Given the wording of both Rules, the Legislature could not have intended the permissive language of Rule 4.34(4) to restrict the Defendant to only a Rule 4.31 Application. Rule 4.31 deals with situations where the delay faced is presumably short of the three year period in Rule 4.33. There is nothing in the language of Rule 4.34(4) which indicates a legislative intent to remove the ability of a Defendant to benefit under the drop dead rule. Rules 4.33 and 4.34 can operate together and the permissive language used in Rule 4.34(4) does not displace the availability of alternate remedies under Rule 4.33. Having found that Rule 4.34 does not qualify as an exemption under Rule 4.33, the Action was dismissed.

Mahoney J. also considered the analysis under Rule 4.31 and held that there had been an inordinate and inexcusable delay. However, the Master was correct in holding that no serious prejudice resulted from the delay. Therefore, Compton’s Appeal on this alternative ground was denied.