Western Industrial Services Ltd v Brennan, 2024 ABKB 50

Court of King’s Bench of Alberta Citation: Western Industrial Services Ltd v Brennan, 2024 ABKB 50 Date: 20240126 Docket: 0803 08445 Registry: Edmonton Between: Western Industrial Services Ltd. Plaintiff (Respondent) - and - Brendan Sean Brennan also known as Sean Brennan Defendant (Applicant) _______________________________________________________ Reasons for Judgment of the Honourable Justice M. J. Lema _______________________________________________________ I. Introduction [ 1 ] Is the joint filing of a request to

schedule a trial date (Form 37) a “significant advance” (per Rule 4.33 – dismissal for long delay) where the parties did not participate in a dispute-resolution process or obtain an order dispensing with that requirement and, as a result, no trial date was scheduled? [ 2 ] In any case, are a defendant’s unsuccessful efforts to rouse a dormant plaintiff --suggesting dispute resolution (no take-up) and applying unsuccessfully for case management and then a case conference -- “participation” in “proceedings” such that the defendant should be regarded as having waived the accumulated delay?

[ 3 ] The answers are no and no. [ 4 ] As a result, the plaintiff’s action is dismissed under R. 4.33(2) given more than three years since the last significant advance and no waiver of that delay by the defendant. II.

Background [ 5 ] Here is an action chronology, with the key events (and non-events) bolded: • statement of claim for breach of contract and breaches of fiduciary, agency and trust obligations (filed June 19, 2008) • noting in default (August 7, 2008) • order for judgment (January 22, 2009) • writ of enforcement (February 4, 2009) • garnishment recoveries paid into court (February 11, 2009 through December 2, 2009) • order staying enforcement (December 29, 2009) • questioning of defendant (December 8, 2010) • undertakings provided (January 12, 2011) • order setting aside noting in default and default judgment (August 22, 2012) • statement of defence and counterclaim (January 30, 2013) • statement of defence to counterclaim (May 3, 2013) • affidavit of records (defendant / plaintiff by counterclaim) (April 9, 2014) • order to pay garnisheed monies into court (May 6, 2015) • appointment for questioning (October 8, 2015) • application by defendant for security for costs (June 15, 2016) • application by plaintiff for defendant to attend questioning (July 14, 2016) • order to pay security for costs (November 9, 2016) • order for defendant to attend questioning (November 9, 2016) • further questioning of defendant (on affidavit) (February 15, 2017) • request for trial date (Form 37) provided by plaintiff to defendant (August 28, 2019) • signed-by-defendant Form 37 returned to plaintiff (September 18, 2019) • request for trial date filed (Form 37) (October 28, 2019) • Form 37 rejected (no dispute resolution or dispensation) (October 30, 2019) • per plaintiff: will seek ADR-dispensation order if no consent (November 12, 2019) • per defendant: no consent – plaintiff should apply for order (January 17, 2020) • defendant requests JDR; plaintiff fails to respond (January 17, 2020; July 29, 2020; October 7, 2021; January 12, 2022; and January 20, 2022) • defendant asks ABKB for case management (January 20, 2022) – declined • defendant asks ABKB for case conference (February 3, 2022) – declined • defendant applies for long-delay dismissal (August 10, 2023) • application heard and reserved on December 19, 2023.

III. Dismissal-for-long-delay rule

[ 6 ] Here are the key parts of Rule 4.33:

(1) In this rule, (a) “applicant” means a party to an action who makes an application to dismiss the action for delay as set out in this rule; (b) “respondent” means a party who has filed a commencement document; (c) “suspension period” means, in subrules (5) to (9), a period that ends on (

i) a specific date, or (ii) the happening of a specific event.

(2) If 3 or more years have passed without a significant advance in an action, the Court, on application, must dismiss the action as against the applicant, unless (

a) the action has been stayed or adjourned by order, an order has been made under subrule (9) or the delay is provided for in a litigation plan under this Part, or (

b) an application has been filed or proceedings have been taken since the delay and the applicant has participated in them for a purpose and to the extent that, in the opinion of the Court, warrants the action continuing. [emphasis added] IV. “Significant advance” A.

Interpretation of “significant advance” [ 7 ] Per Loncikova v Goldstein , 2023 ABCA 358 : To constitute a significant advance, the lawsuit must move forward in a meaningful way. In this case, the appellant points to the allegedly mutual understanding that her then-counsel would obtain updated medical records and to the gathering of those records as advancing the lawsuit.

Assessing whether those events constituted significant advances requires asking, as in Jacobs v McElhanney Land Surveys Ltd , 2019 ABCA 220 at para 86 , “Has anything that happened in the applicable period increased by a measurable degree the likelihood either the parties or a court would have sufficient information – usually a better idea of the facts that can be proven – and be in a better position to rationally assess the merits of the parties’ positions and either settle or adjudicate the action?” [para 9] [emphasis added] [ 8 ] The Court of Appeal summarized this and other key R 4.33 principles in Patil v Cenovus Energy Inc , 2020 ABCA 385 : Several legal principles can be discerned from decisions of this Court interpreting r 4.33: • The rule must be applied within the context of the foundational rule (r 1.2) to resolve claims fairly and justly in a timely and cost- effective way. • Plaintiffs bear the responsibility of prosecuting their claims in a timely way : XS Technologies Inc v Veritas DGC Land Ltd , 2016 ABCA 165 at para 7 . • Defendants are obliged (pursuant to r 1.2) to not obstruct, stall or delay an action that the plaintiff is advancing: Janstar Homes Ltd v Elbow Valley West Ltd , 2016 ABCA 417 at para 26 . • A functional , as opposed to a formalistic, approach is appropriate to determine if a step constitutes a significant advance: Ursa Ventures Ltd v Edmonton (City) , 2016 ABCA 135 at para 19 . •The functional approach to r 4.33 is context-sensitive : “[C]ases that have considered a particular advance in an action will be useful precedents, but they are not determinative”: Ursa Ventures at paras 19, 23. • A significant advance is one that moves the action forward in an essential way , having regard to the nature, quality, genuineness and timing of the advancing action: Ursa Ventures at para 19; Ro-Dar Contracting Ltd v Verbeek Sand & Gravel Inc. , 2016 ABCA 123 at para 21 . • Rule 4.33 functions like a limitations period .

It only requires one significant advance within the three-year period, not “continuous significant advancement”. Rule 4.33 is not designed to determine what a “reasonably diligent litigant” would do over the course of the three-year period: Ursa Ventures at para 11. • Whether an agreement between counsel constitutes a significant advance is context-dependent .

Rule 4.33 was not designed to encourage an “ambush” by one side after the parties had agreed to take a particular step: Turek v Oliver , 2014 ABCA 327 at para 6 . • Courts assessing whether an action is a significant advance under r 4.33 should focus on substance, not form . As an example, agreement to participate in a judicial dispute resolution process may not constitute a significant advance if it was merely an agreement to

schedule a JDR, which was not carried out: Weaver v Cherniawsky , 2016 ABCA 152 at paras 20-21 . Importantly, r 4.33 is “not designed to regulate the efficient prosecution of actions, but rather to prune out actions that have truly died ”: Ursa Ventures at para 10. [paras 7 and 8] [emphasis added]

[ 9 ] Below I gauge whether, in light of these principles, steps proposed by each side were significant advances. B.

Filing of Form 37 (request for trial) [ 10 ] At the application, counsel for the defendant argued that the last significant advance was the joint filing of the request for trial (Form 37) on October 28, 2019 (with no significant, or any advances, after that), that October 28, 2022 thus represented three years without a significant advance, and that, as a result, per R. 4.33(2), I must dismiss the plaintiff’s action. [ 11 ] I disagree on the significance of the Form 37. [ 12 ] Merely filing a Form 37 is not a significant advance, especially where the form is submitted prematurely.

See Ivkovic v Tingle Merrett LLP , 2018 ABQB 308 (Hall J.): The Plaintiff argues that the completion and filing of Form 37 significantly advanced the action. Counsel put their minds to how many witnesses they would call and how much trial time would be required. The learned Master agreed, saying the parties had to give serious consideration to these issues and to the evidence necessary to be called. She said these are important and significant steps towards trial readiness, and they are not wasted, even though the trial did not take place as scheduled.

Counsel for the Applicant argues, however, that without completion of Form 39, the step is incomplete; nothing has been accomplished. The matter is no closer to trial or resolution. [In Ivkovic , trial dates booked when the Form 37 was filed were cancelled when no Form 39 (confirmation of trial dates) was filed.] He relies upon Huerto v Canniff , 2014 ABQB 534 at para 22 where Justice Shelley listed steps that do not materially advance an action, including “commencing a step that is not then completed.” As authority she referenced Alberta v Morasch , 2000 ABCA 24 (“ Morasch ”) at paras 6 and 7 .

Morasch provided that, to be material, the step must be completed, not just commenced. The Court used as an example, an instance where a Certificate of Readiness was drafted but never filed. It certainly stands to reason that a step not completed is not a step that significantly advances the action . Take for example, in this case, that the Plaintiff had commenced an application for

Summary Judgment but did not proceed with it. No one could argue that filing the application significantly advanced the action, when the application did not proceed. Did the filing of Form 37 significantly advance the action? Effect must be given to the adverb “significantly”. To my mind, the fact that the lawyers thought about the number of witnesses to be called and the Trial time required is not a significant advance. They remained free to change their minds. They were not bound to call the number of witnesses they had listed.

Advising the opposition of the number of intended witnesses may have put the opposition on notice but it did not significantly advance the action. Estimating total trial time did little to advance the action. I find that without the filing of the confirming Form 39, no significant advance of the action occurred. [paras 13-19] [emphasis added] [ 13 ] See also Altex International Heat Exchanger Ltd v Foster Wheeler Ltd , 2018 ABQB 620 (Mandziuk J.): In this case, the Plaintiff’s sending of a letter to the Defendant on May 30, 2017, requesting the scheduling of a trial date, did not significantly advance the action.

The letter included a partially completed Form 37; the Plaintiff had filled in its portion, left the Defendant’s portion blank, and asked the Defendant to complete it, sign it and return it. The matter was never set down for trial .

This cannot be characterized , for all of the reasons that I have stated, as a significant advance in the action . [para 123] [emphasis added] [ 14 ] And Nahal v Gottlieb , 2019 ABQB 650 (Master Prowse) I consider that either of the two methods of setting a matter down for trial, either counsel submitting a completed form 37, or a court directing that a matter be set down for trial, are essentially interim steps directed towards the holding of a trial.

If the trial is not held (due to the failure to file a form 39) then I do not believe that the interim step constitutes a significant advance in the action. [para 16] [emphasis added] [citing (at para 17) paras 18 and 19 of Ivkovic ] [ 15 ] And Edinburgh Tower Development Ltd v Curtis , 2021 ABQB 239 (Malik J.) affd. 2022 ABCA 419 : The Plaintiffs filed applications to set trial dates in 2015, 2017, and 2019, but these were adjourned and unheard and cannot be said to advance an action ( Jacobs at para 113 ; Alberta v Morasch , 2000 ABCA 24 at paras 6–7 ).

Generally speaking, the mere filing of a Form 37 ( Ivkovic v Tingle Merrett LLP , 2018 ABQB 122 at paras 18–19 ) or requesting that a trial date be scheduled ( Altex International Heat Exchanger Ltd. v Foster Wheeler Limited , 2018 ABQB 620 at para 123 ) is also not a significant advancement in and of itself. [para 57 of QB decision] [emphasis added] [ 16 ] And Stylecraft Developments

(1984) Ltd v Carscallen LLP , 2023 ABKB 504 (Bourque J.): Generally, “the mere filing of a Form 37 […] is also not a significant advancement in and of itself” ( Edinburgh Tower Development Ltd v Curtis , 2021 ABQB 239 at para 57 ). Here, it is not a significant advancement because it did not clarify the parties’ positions, narrow issues, or have the effect of bringing the parties closer to resolution . The form filed on April 15, 2020, was never signed by the Defendants and was evidently unsuccessful at setting a date for trial . The deadline to file form 37 in the Litigation Plan, with the deadline being July 15, 2022, was notably also missed. [paras 28 and 29] [emphasis added]

[ 17 ] In the present case, the Court rejected the Form 37, noting the parties had not pursued dispute resolution or obtained a dispensation order (both aspects per R. 8.4(3)(a)), and no trial date was set. [ 18 ] As in the cited cases, this was not a significant (or any) advance of the action. C.

Defendant’s requests for case management and case conference [ 19 ] The plaintiff’s current counsel proposed different “last significant advances”, pointing to defendant’s (unsuccessful) requests for case management and (later) a case conference (January 20 and February 3, 2022, respectively). [ 20 ] Per the plaintiff, these steps significantly advanced the action in the sense that options for progress were explored and narrowed.

That is, the plaintiff, looking on, would know that case management and a case conference, both potential options for advancing the file before the defendant’s requests, were not on (at least circa early 2022) and that efforts to advance the file would have to occur otherwise. [ 21 ] I disagree. [ 22 ] For one thing, rejection of the defendant’s requests was no guarantee that requests by the plaintiff would also be denied.

The plaintiff may have raised or emphasized different or additional factors or considerations or otherwise convinced the Court that case management or a case conference would or could be useful. Or requests by the plaintiff at a different time may been treated differently. [ 23 ] In any case, a significant advance requires, at minimum, an advance.

I do not accept that requesting, and being denied, case management or a case conference, represents any real advance: the action remained where it was before the requests, with the requests and denials not moving the action any closer to trial. [ 24 ] Here I refer to the “step not completed” analysis in Ivkovic (cited above). [ 25 ] And to Steparyk v Alberta , 2014 ABQB 367 (Crighton J. as she then was) affd 2015 ABCA 125 : Looking at this action through a “macro-view lens” (to borrow language from Justice Topolniski in Nash v Snow ), nothing happened in the five years preceding the date the Crown filed the application for dismissal for long delay that enables the Respondent to avoid the effect of Rule 4.33 .

I am similarly of the view that the request for case management did nothing to significantly advance the action. The letter requesting case management does not even suggest that case management was necessary for any of the prescribed reasons for which a case management judge is usually appointed. Further, this was a unilateral request without prior consultation with the Crown as to its position. I agree with the Crown that the nature and timing of the request for case management in September, 2013 was nothing more than an attempt to do something before Rule 15.4 was repealed.

The only reason for the request was its similarity to another case already being managed by a particular judge.

The appointment itself, at best, offered the prospect of a more expeditious progress, but it is certainly not evidence of advancement in fact. [paras 20-22] [emphasis added] [ 26 ] Case-management meetings and case conferences can represent or be the framework for significant advances: see, for example, Vander Griendt v Canvest Capital Management Corp , 2014 ABQB 542 (Martin J. as she then was) (paras 102 and 103 ); Patil v Cenovus Energy Inc , 2018 ABQB 565 (Master Prowse as he then was); reversed 2018 ABQB 994 ; latter decision reversed 2020 ABCA 385 (paras 13-15 of the Master’s decision); LDS v SCA , 2020 ABQB 586 (Belzil J.) affd 2021 ABQB 59 (paras 24 and 25 of QB decision); Riehs Estate (Re) , 2021 ABQB 821 (Armstrong J.) (paras 20 and 21 ); and Ziolkoski (Re) , 2022 ABQB 548 (Fraser J.) (para 42 ). [ 27 ] In this case, the requests for case management and a case conference, being both unilateral (defendant only) and, in any case, unsuccessful, did not represent significant (or any) advances.

D.

Defendant’s requests that plaintiff participate in dispute resolution [ 28 ] The plaintiff did not emphasize the defendant’s series of “let’s JDR this” letters between January 17, 2020 and January 20, 2022 i.e. as possible significant advances. [ 29 ] For completeness’ sake, I adopt and apply here the “step not completed” analysis above i.e. with the plaintiff not agreeing to any of these proposals or responding at all. [ 30 ] As above, such unproductive steps are not significant (or any) advances. [ 31 ] Even if the parties had agreed to participate in a JDR, the agreement alone (i.e. all aside from whether the JDR proceeded) would not have been a significant advance.

Per Weaver v Cherniawsky (ABCA – cited above): The chambers judge did not err when she concluded that the November 21, 2011 email exchange between the appellant’s counsel and the JDR booking Coordinator did not significantly advance the action. This was merely a failed attempt to

schedule a JDR and nothing more . Considering the lawsuit’s nature, value, importance and quality, the failed attempt did not move the lawsuit forward in a meaningful way. The mere agreement to

schedule a JDR with no follow up within a reasonable time when the proposed dates were not available does not significantly advance an action. The appellant’s contention that a formal request for JDR was sufficient to significantly advance the action relies on form not substance , and

does not pass scrutiny on a functional approach. [paras 19 and 20] [emphasis added] [ 32 ] For a similar treatment of minimal steps towards alternate dispute resolution, see Cochrane (Town) v Austech Holdings Inc , 2022 ABCA 377 (paras 8 and 31-36 ). E. Further questioning of defendant [ 33 ] With none of the above steps qualifying as significant advances, the last significant advance on this file, per the chronology above, was the further questioning of the defendant on February 15, 2017. (Both sides recognized this step as such an advance.) F.

No significant advances for over three years [ 34 ] Measuring three years from that date takes us to February 15, 2020. [ 35 ] With none of the exceptions in R. 4.33(2)(

a) applying (i.e. no stay or adjournment of the action, no suspension of the time clock, and no litigation plan providing otherwise) and with us now well past February 15, 2020, the action must be dismissed, subject to the possible operation of exception in R. 4.33(2)(b). [ 36 ] It bars dismissal of an otherwise dead action where “an application has been filed or proceedings have been taken since the delay and the applicant [i.e. the defendant here] has participated in them for a purpose and to the extent that, in the opinion of the Corut, warrants the action continuing.” [ 37 ] I consider that exception below.

V. “Applicant’s participation in an application or proceeding” A. The rule [ 38 ] For ease of reference, I reproduce this part of R. 4.33:

(2) If 3 or more years have passed without a significant advance in an action, the Court, on application, must dismiss the action as against the applicant, unless ... (

b) an application has been filed or proceedings have been taken since the delay and the applicant has participated in them for a purpose and to the extent that, in the opinion of the Court, warrants the action continuing. B.

Participation qualifying as waiver [ 39 ] Per Flock v Flock Estate , 2017 ABCA 67 , this exception operates “where defendants have actively participated in an action to an extent and degree that could lead a plaintiff to fairly assume that the defendant has waived the delay”, citing Krieter v Alberta , 2014 ABQB 349 at para 50 (Master Hanebury). [ 40 ] In Krieter , Master Hanebury elaborated on the nature of such participation: The parties provided no case law that has considered this exception.

However, several questions would appear relevant in light of its purpose, including: was the participation minimal ; did it do anything to advance the action ; and, by its nature was it likely to make the plaintiff believe that the defendant was ignoring or acquiescing to the ticking clock? [para 63] [ 41 ] It is not necessary that such participation represent a “significant advance”, only that the requirements of R. 4.33(2)(

b) are met. Here see CWC Well Services Corp v Option Industries Inc , 2019 ABCA 331 (paras 3-9 ). In that case, consent to a litigation plan and initial steps to comply with it were seen as delay-waiving participation (para 9).

C. “Proceeding” [ 42 ] On a threshold point, with no “application [having] been filed” at the material time, context-wise, any “participation” here had to have been in a “proceeding [having] been taken” (per R. 4.33(2)(b)). [ 43 ] Did the defendant’s exploratory steps towards a JDR, case management, or a case conference, or any of them, amount to “proceedings”? [ 44 ] In Rana v Rana , 2022 ABCA 270 , Wakeling JA (in chambers) commented: The [next] question – is an application for permission to appeal a “proceeding”? – requires careful consideration. “Proceeding” is not a defined term in the Judicature Act , the

Interpretation Act [17] or the Alberta Rules of Court

But it is a term of art for those with legal training. [19] Professor Garner, in Black’s Law Dictionary, reproduces this helpful passage from Edwin Bryant’s The Law of Pleading Under the Codes of Civil Procedure: “Proceeding” is a word much used to express the business done in courts. A proceeding in court is

an act done by the authority or direction of the court, express or implied. It is more comprehensive than the word “action,” but it may include in its general sense all the steps taken or measures adopted in the prosecution or defence of an action, including the pleadings and judgment.

As applied to actions, the term “proceeding” may include – (1) the institution of the action; (2) the appearance of the defendant; (3) all ancillary or provisional steps, such as arrest, attachment of property, garnishment, injunction ...; (4) the pleadings; (5) the taking of testimony before trial; (6) all motions made in the action; (7) the trial; (8) the judgment; (9) the execution ...; (11) the taking of the appeal or writ of error ...; (13) the enforcement of the judgement, or a new trial, as may be directed by the court of last resort.

I am satisfied that an application for permission to appeal is a “proceeding” under

section 23.1(7) of the Judicature Act .

Section 23.1(8) supports this conclusion. It contemplates that the Court of Appeal has a role to play in hearing

section 23.1 applications. [paras 21-24] [emphasis added] [footnotes omitted] [ 45 ] In Slovak v Canada (AG) , 2017 ABQB 761 , Master Robertson observed: In my view, however broad the word “proceedings” should be interpreted in this context, it means some activity that might significantly advance the action , as in Kreiter .

That is, to reset the three-year clock after the three years have passed something must be done that in and of itself constitutes a significant advance in the action, and defence counsel must participate in it. [para 37] [ 46 ] In Krieter (cited above), Master Hanebury had commented: The term “proceeding” is not defined in the Rules of Court. While the term “proceeding” can equate to a hearing or meeting, its broader definition includes “all steps in an action from its commencement to the rendering of a decision and the execution of judgment”: Dawe v. Evans , 2009 ABQB 724 , para. 30 .

In the context of rule 4.33(1) this broader definition is clearly more applicable. A Notice to Admit is a step in an action, albeit not a mandatory step. In my view, in the context of the rule, a Notice to Admit comes within the definition of “proceeding”. This requirement is met. [paras 55-58] [emphasis added] D.

No “proceeding” here [ 47 ] Applying even the broad understanding of “proceedings” above, the letters from the defendant’s counsel to the plaintiff’s counsel proposing a JDR do not count as “proceedings.” At most, they were preliminary steps towards a proceeding, which a JDR itself would represent i.e. as one element or component of an action i.e. one step on the journey towards (a possible) trial.

Where (as here) the plaintiff’s counsel did not agree to a JDR, or even respond to the letters, no “proceeding” was launched. [ 48 ] Same for the defendant’s counsel’s letters to the Court requesting case management and, later, a case conference. Such letters are preliminary steps towards case management or a case conference, which can themselves also be fairly characterized as “proceedings”, using the same “component or element of an action” definition.

Again, where both requests were denied, no such “proceedings” were launched. [ 49 ] By definition, with none of these letters themselves amounting to “proceedings”, and with no JDR, case management or case conference actually occurring or even agreed to by the plaintiff, there was nothing in which the defendant “participated” i.e within the meaning of R. 4.33(2)(b). [ 50 ] It would have been different if the plaintiff had agreed to a JDR and one had occurred, with the defendant participating.

Same if case management had been approved, and launched, and the defendant had participated in such sessions or in the follow-up steps directed in them. Or same for a case conference i.e. if the defendant had participated in the meeting or in any directed steps following the meeting. [ 51 ] The drafters of Rule 4.33(2)(

b) obviously required more than preliminary or preparatory steps here.

As I see it, the goal was to distinguish between formal proceedings i.e. litigation steps, in where the defendant’s participation is unequivocally signalling its willingness to press on in the action i.e. effectively waiving the accumulated delay, on the one hand, and, on the other, tentative, or preliminary, or exploratory actions or steps i.e. “testing the waters” things, where a defendant (as here) may be truly wishing to re- engage in the action or, on the other hand, may simply be seeking to see whether the plaintiff still “has a pulse” (e.g. possibly the “let’s JDR” letters here) or whether the Court will see any value in case management or a case conference i.e. in injecting any life into the action via judicial oversight.

E. In any case, insufficient “participation” here [ 52 ] Assuming the existence of “proceedings” here, in the present case the defendant’s “let’s get moving” activities not only did not get any results, they also cannot be read as unequivocal signs of waiver of or acquiescence to the accumulated delay since February 15, 2017 i.e. the last actual significant advance of the action (i.e. further questioning of the defendant by the plaintiff). [ 53 ] As emphasized in CWC Well Services , participation by a defendant engaging R. 4.33(2)(

b) must be such that it is “fair” for the plaintiff to assume waiver of the accumulated delay. [ 54 ] Conduct that is equivocal -- that can be reasonably be read other ways -- is not sufficient.

[ 55 ] The defendant’s letters did not irrevocably commit it to participating in any JDR that the plaintiff might have roused itself to exploring or in any case management or case conference that might have been ordered. At that point, the defendant would have faced an election: step away from the “proceeding” or “almost proceeding” and (for example) invoke its right to seek a delay dismissal.

Or step aboard the “proceeding” or “almost proceeding” and effectively abandon (via waiver or acquiescence) any dismissal-for-delay rights. [ 56 ] With the plaintiff not responding (and thus no JDR launched) and with case management and a case conference being refused, the defendant did not have to elect between getting on board (or back on board) the action train or stepping away.

As I see it, the defendant was free to invoke its dismissal-for-delay rights i.e. shift to bringing this R. 4.33 application without in any sense having signalled waiver or acquiescence to the plaintiff, at least in any unequivocal sense. [ 57 ] It is not as if the plaintiff was lulled into believing the defendant had waived or acquiesced to the delay here i.e. in the sense of the plaintiff doing anything to re-engage i.e. in the belief that the defendant had done so.

This plaintiff remained asleep throughout the defendant’s exploratory (JDR, case management, case conference) steps. [ 58 ] Plus, nothing in the evidence shows that the defendant expressly or explicitly agreed to waive its dismissal-for-delay rights, to suspend the delay clock, or otherwise abandon or limit its delay-associated rights. [ 59 ] And the defendant’s letter writing here was marked less involved and less formal than the examples of waiver-reflecting participation by a defendant given in Trout Lake Store Inc v Canadian Imperial Bank of Commerce , 2003 ABCA 259 (“[f]or instance if ... the parties participated in extensive examinations for discovery, exchanged expert reports, and obtained a trial date ...”). [ 60 ] In this case, faced with the plaintiff’s long period of inactivity, the defendant should be permitted to “poke the bear” -- try to see if the plaintiff is willing to move the action ahead -- e.g. by agreeing to a JDR or other mediation or to see if the Court will assist by directing case management or at least a case conference – without necessarily being seen as waiving the accumulated delay. [ 61 ] It might be different if the plaintiff had agreed to JDR and one had been held, with both sides participating, or if case management had been directed and both parties had participated in it, or a case conference had been ordered with both participating.

In any of these examples, it would be fair to conclude that, instead of using the accumulated delay as ammunition for a dismissal application, the defendant had effectively elected to engage or re-engage in the action when it had an opportunity to stop the action. [ 62 ] The same cannot be said where the defendant’s initial steps yield no progress. The defendant should be understood to have proposed as follows: “This action is going nowhere. Will you wake up and participate in a JDR, which is a necessary precondition to moving on to trial i.e. if we are unable to resolve things at the JDR?

If we have a JDR, you can treat me as effectively waiving the accumulated delay. But if you do not agree to a JDR, I have the right to move to dismiss for long delay and I may do so. It’s up to you.” [ 63 ] In other words, it was not incumbent on the defendant to couch his proposals with “without prejudice” language (even if that would have made his position crystal-clear). [ 64 ] I believe it was implicit in the defendant’s proposals that he was not necessarily surrendering his dismissal-for-delay rights.

The plaintiff actually held the key here: if it had signed on to the defendant’s “let’s JDR” proposal, and a JDR had proceeded, the plaintiff would have crystallized a potential participation-reflecting-waiver circumstance. [ 65 ] By not taking up the defendant’s JDR proposal, the plaintiff left the defendant open to saying (effectively): “okay – you’re not willing to participate ...

I’m changing direction and will now seek dismissal based on the accumulated delay.” [ 66 ] Same thing, effectively, for the failed requests for case management and a case conference. [ 67 ] On this aspect, see also Vasiljevic v Kotur , 2023 ABKB 292 (Poelman J.): ... the plaintiff [alternatively] relies upon an exception to the mandatory dismissal of an action if three or more years have passed without a significant advance.

Rule 4.33 (2) excepts the case where “proceedings have been taken since the delay and the applicant has participated in them for a purpose and to the extent that, in the opinion of the Court, warrants the action continuing.” He says the defendants’ participation “included filing the Amended Statements of Defence and requesting dates for questioning on October 29, 2018” (brief, para 134). In my view, these steps do not constitute participating as contemplated by rule 4.33 (2).

The amended pleadings were filed only on compulsion by the plaintiff and could not have signalled a willingness to continue to participate in the action. A letter or telephone call about arranging dates for questioning, without ever settling upon agreed dates, also does not qualify. [paras 69 and 70] [emphasis added] [ 68 ] For these reasons, I find that none of the defendant’s actions described above, alone or collectively, was participation qualifying under R. 4.33(2)(

b) i.e. as waiving the accumulated delay. VI. Conclusion

[ 69 ] With no significant advance of the action since February 15, 2017, no waiver by the defendant of the accumulated delay, and no other exception explaining or justifying the delay, per R. 4.33(2) the plaintiff’s action must be and is hereby struck. [ 70 ] The defendant is entitled to costs of the application under

Schedule C. [ 71 ] The defendant is also entitled to the return of the monies garnished from him as reflected on the Court’s procedure record for the action, which were paid into Court (in the amount of $41,478) on or about March 10, 2015, plus accumulated interest. VII. Closing note [ 72 ] The plaintiff’s counsel noted at the start of the application that the defendant’s supporting affidavit was sworn by a legal assistant at the defendant’s lawyer’s firm and that none of the referenced letters were attached as exhibits.

Per her, “information and belief” evidence was insufficient for a final-relief order, including striking under R. 4.33, per R. 13.18(3). [ 73 ] Having said that, she also acknowledged that there was “no disagreement with what is set out in the steps”, which I understood to mean the key-event chronology in the defendant’s affidavit, and that the parties were on “common ground” with “what happened and when.” [ 74 ] In these circumstances, I do not see that any additional clarity, precision, or other benefit would have flowed from requiring a personal-knowledge-based affidavit anchored in copies of the letters.

Heard in Edmonton, Alberta on December 19, 2023 . Dated at Edmonton, Alberta this 26 th day of January, 2024. M. J. Lema J.C.K.B.A. Appearances: Iain M. Cameron Cameron & Cameron Barristers & Solicitors for the Defendant (Applicant) Coralie J. Mohr Witten LLP for the Plaintiff (Respondent)