Swaleh v Lloyd, 2024 ABCA 9

In the Court of Appeal of Alberta Citation: Swaleh v Lloyd, 2024 ABCA 9 Date: 20240111 Docket: 2303-0102AC Registry: Edmonton Between: Shahab Swaleh Respondent (Plaintiff) - and - Thomas C. Lloyd Appellant (Defendant) _______________________________________________________ The Court: The Honourable Chief Justice Ritu Khullar The Honourable Justice Patricia Rowbotham The Honourable Justice Kevin Feth _______________________________________________________ Memorandum of Judgment Delivered from the Bench Appeal from the Decision of The Honourable Justice W.P. Sullivan

Dated the 28th day of April, 202 3 ( 2023 ABKB 262 , Docket: 1703 04257) _______________________________________________________ Memorandum of Judgment Delivered from the Bench _______________________________________________________ Rowbotham, JA (for the Court): [ 1 ] This is an appeal of a chambers judge’s decision dismissing the appellant’s appeal of his unsuccessful application under Rule 4.33 to dismiss this action on the basis that there was no significant advance in the action for more than three years: Swaleh v Lloyd , 2023 ABKB 262 . [ 2 ] The lawsuit claims negligence on the part of the appellant, a lawyer who represented the respondent in an action against a builder.

Ironically that action was dismissed for long delay. [ 3 ] The procedural history is set out in the reasons of the chambers judge. The main issue is whether the respondent’s application to add the Law Society of Alberta and Alberta Lawyers Indemnity Association (ALIA), as parties to the action significantly advanced it. An applications judge dismissed the application.

The Court of King’s Bench and this Court dismissed the appeals of that order. [ 4 ] In the context of this appeal, both the applications judge and the chambers judge found that the application to add the parties significantly advanced the action and declined to strike the appeal under Rule 4.33. [ 5 ] The appellant’s argument is two-fold. First, he says the chambers judge did not acknowledge or consider the functional approach under Rule 4.33.

Upon review of the record and the reasons of both the chambers judge and the applications judge, we are satisfied that the chambers judge understood what legal principles applied under Rule 4.33. [ 6 ] Although the chambers judge’s analysis was brief, when an appeal from an applications judge to a chambers judge involves the same record and the same submissions, it is not an error for a chambers judge to summarily describe their analysis and conclusions with reference to the applications judge’s decision if they otherwise find that it was correct in fact and law: HOOPP Realty Inc v Emery Jamieson LLP , 2020 ABCA 159 at para 41 , leave to appeal to SCC dismissed, 39233 (12 November 2020).

See also, Western Energy Services Corp v Savanna Energy Services Corp , 2023 ABCA 125 at para 74 . [ 7 ] In this case, the chambers judge considered the history of the action and the parties’ positions regarding the progress of the action.

He summarized the submissions made before the applications judge regarding the functional approach under Rule 4.33 with reference to the comments of the appellant’s counsel that a “significant advance is something that moves the lawsuit forward in an essential way, considering its nature, value, importance and quality.” [ 8 ] Additionally, the chambers judge referred to the applications judge’s articulation of the purpose of the long delay rule “to sort of prune out actions that have not been advanced. It is a mandatory rule. The whole purpose is to make sure that cases move along”.

He also noted the discussion between the applications judge and the respondent that based upon Apex Land Corp v Heikkila, 2011 ABCA 87 , 502 AR 243, “knowing who the parties [are] is a significant advance” and the applications judge’s comment that “if it is close, you should not dismiss.” The chambers judge concluded that after considering all the filed material, the attention the applications judge gave to the issues that were before her, and the history of the proceedings in the Court of Appeal and the Court of King’s Bench, the applications judge’s decision was correct. [ 9 ] The appellant’s second argument is that the chambers judge failed to properly apply the functional approach when he concluded that the respondent’s appeals with respect to adding the Law Society of Alberta and ALIA as parties to the action constituted a significant advance in the action. [ 10 ] The appellant’s position before this Court is the same as it was in the courts below.

A determination of whether an action has been “significantly advanced” under Rule 4.33 is entitled to deference.

It involves “an assessment and measurement of the effect of what happened in the action during the period of alleged delay, measured in light of the facts and objectives of the Rules of Court ”: Ro-Dar Contracting Ltd v Verbeek Sand & Gravel Inc , 2016 ABCA 123 at para 11 , 616 AR 366. [ 11 ] In the circumstances of this case, and given the deferential standard of review, we discern no error with the chambers judge’s conclusion that the appeals constituted a significant advance in the action that would warrant this Court’s intervention. The appeal is dismissed.

(Discussion with counsel) [ 12 ] We make the following directions: 1. If the respondent intends to rely upon expert evidence, the expert reports will be filed and served within 6 months of the date of this judgment; 2. All other timelines can be addressed by the Rules of Court ; 3. If there are other procedural issues, the parties can return to the Court of King’s Bench. Appeal heard on January 8, 2024 Memorandum filed at Edmonton, Alberta this 11th day of January, 2024 Rowbotham J.A. Appearances: L. K. Feehan for the Appellant S. Swaleh Respondent