WONG v LEUNG, 2011 ABQB 722


3.72: Consolidation or separation of claims and actions
4.33: Dismissal for long delay

Case Summary

The Defendant applied to dismiss the Plaintiff’s Action for want of prosecution. The Plaintiff cross-applied for, amongst other things, consolidation of the Action with another Action that had been commenced in 2009.

Master Smart referred to Munro v Munro, 2011 ABCA 279 as authority that the Court must weigh several factors when considering consolidation under Rule 3.72. These factors include: the possibility of saving time, saving resources, and the potential prejudice to the parties. The Court rejected the Rule 3.72 request, noting that the two Actions had no common questions of law or fact, and they did not arise from the same transaction.

The Court then considered, under Rule 4.33, whether a “thing” had been done that significantly advanced the Action. Master Smart referred to Hooda v HSBC Canadian Direct Insurance Incorporated, 2011 ABQB 196 for the proposition that there is no material difference between “significantly” and “materially” (“materially” being the word used in the equivalent test under the old Rules). The Court, referring to cases decided prior to the new Rules, noted:

1.         Rule 4.33 is written in absolute terms and is mandatory;

2.         A procedural step that is required by the Rules will always be a “thing” that significantly advances the Action, regardless of whether it actually did so; however, the step must be completed, not just commenced;

3.         A procedural step contemplated (but not required) by the Rules may also be enough, in and of itself, to materially advance an Action; nevertheless, to be a “thing” under Rule 4.33, the step must move a lawsuit closer to Trial in a meaningful way. Further, advancing the Action is not sufficient; the Action must be “significantly” advanced; and

4.         An ordinary Appeal from a Queen’s Bench Judgment/Decision is not a mandatory step; rather, it is the unsuccessful party’s choice to Appeal a Decision.

The Defendant’s Application was allowed, since there had been no “thing” done by the Plaintiff to significantly advance the Action in 5 years.

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