Procedure; Alberta Rules of Court; 'Drop Dead' Rule

Ursa Ventures Ltd. v. Edmonton (City), 2016 ABCA 135

Areas of Law: Procedure; Alberta Rules of Court; "Drop Dead" Rule

~A mandatory step under the Rules does not always significantly advance an action for the purposes of R. 4.33~

BACKGROUND

The Respondent, Ursa Ventures Ltd., sued the Appellant City of Edmonton for damages relating to a contract to provide electrical components. The Statement of Claim and Statement of Defence were both filed in November of 2010. The Respondent was granted several extensions of time for filing its affidavit of records. A final deadline of December 12, 2011 passed without the affidavit. The parties corresponded in late December 2011, and in February 2012 counsel for the Respondent confirmed that he would still be conducting the file. Then a year and a half went by without any correspondence or steps being taken. On October 31, 2013, within three years from the filing of the Statement of Defence, the Respondent served the affidavit. On February 12, 2014, the Appellant stated that it intended to apply under R. 4.33 to have the action dismissed for long delay. The Appellant continued to press the Respondent for documents. On October 28, 2014, the Appellant informed the Respondent that one of its representatives would be attending at Respondent's counsel's office to inspect records. Respondent's counsel advised that he would be away, and inspection could not take place. The parties did not undertake any subsequent inspection of records, nor did the Appellant file its affidavit of records. The chambers judge noted that neither party had delivered its affidavit of records in accordance with the time limits in the Rules. He indicated that there had been a "sea change" in the law regarding delay in civil litigation, and he noted that there was no doubt the Respondent's affidavit of records had been served within three years of filing the Statement of Claim. The judge framed the question as being whether, using a purposive approach, the filing of the affidavit significantly advanced the action. He found that it did and dismissed the application to have the action dismissed.

APPELLATE DECISION

The appeal was dismissed. The majority considered that two issues were raised on appeal: whether a mandatory step under the Rules, such as providing an affidavit of records, always significantly advances the action; and whether the chambers judge erred in finding that the Respondent's affidavit of records significantly advanced...