WRE Development Ltd v Lafarge Canada Inc, 2022 MBCA 11

Citation: WRE Development Ltd v Lafarge Canada Inc, 2022 MBCA 11 Date: 20220131 Docket: AI21-30-09600 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella Madam Justice Lori T. Spivak BETWEEN : WRE DEVELOPMENT LTD. ) ) ( Plaintiff) Appellant ) ) S. F. Vincent - and - ) for the Appellant ) LAFARGE CANADA INC. ) ) J. D. Kendall and (Defendant) Respondent ) J. A.

Gietz ) for the Respondent AND BETWEEN : ) ) LAFARGE CANADA INC. ) Appeal heard: ) October 22, 2021 (Plaintiff by Counterclaim) ) ) - and - ) Judgment delivered: ) January 31, 2022 WRE DEVELOPMENT LTD. ) ) (Defendant by Counterclaim) ) On appeal from 2021 MBQB 37 spivak JA [ 1 ] This is WRE Development Ltd. (the plaintiff)’s appeal of the dismissal of its action for long delay under r 24.02(1) of the MB, Court of Queen’s Bench Rules , MR 553/88 (the Rules ).

That rule provides that, where three or more years have passed without a “significant advance” in an action, the court must, on motion, dismiss the action unless one of the exceptions in rr 24.02(1)(

a) to 24.02(1)(

e) applies. The motion judge concluded that there was no significant advance in the action for a period in excess of three years and that none of the exceptions applied such that the action must be dismissed. [ 2 ] The plaintiff’s action arises from the construction of an apartment building and allegations of deficiencies in components provided by Lafarge Canada Inc. (the defendant).

The plaintiff appeals on the grounds that the motion judge erred in failing to find that (1) the defendant’s production of construction drawings was a significant advance in the action, (2) the defendant’s agreement to produce the construction drawings was an express agreement to the delay within the exception of r 24.02(1)(

a) of the Rules , and (3) the defendant’s own delay in providing the construction drawings and failure to answer undertakings disentitled it from having the action dismissed. [ 3 ] For the reasons that follow, I would dismiss the appeal. The motion judge committed no reversible error in determining that the plaintiff’s action must be dismissed under r 24.02(1). There is no basis for appellate intervention. Background

[ 4 ] This action concerns the construction of an apartment building which was built between 2010 and 2012. The plaintiff, a property developer, sought damages in respect of pre-cast end wall panels supplied and installed by the defendant, which it alleged were not sufficiently insulated in breach of the parties’ agreement. [ 5 ] The statement of claim was filed on June 29, 2015. A statement of defence and counterclaim was filed on August 10, 2015, which claimed an amount owing in respect of an unpaid invoice.

The plaintiff filed a reply and defence to counterclaim on September 9, 2015. [ 6 ] By May 2016, the parties had exchanged unsworn affidavits of documents. Examinations for discovery were held on June 8 and 9, 2016 (the examinations). At the examinations, 39 undertakings were given by the plaintiff’s representative and 26 undertakings were given by the defendant’s representative.

Immediately following the examinations, plaintiff’s counsel, (not counsel on this appeal), asked defendant’s counsel to provide full-size legible copies of certain specific construction drawings that were sent to the plaintiff’s project manager. Defendant’s counsel agreed to this request. [ 7 ] Since these drawings were not received by plaintiff’s counsel by March 6, 2017, he wrote to defendant’s counsel on that date requesting them again. Defendant’s counsel replied on March 15, 2017, seeking clarification of the drawings sought.

It was not until August 16, 2017 that plaintiff’s counsel responded, indicating that he wanted the drawings that were sent to the plaintiff’s project manager, as well as a full-size set of all the construction drawings that the defendant had disclosed (the drawings). As he was still not in receipt of the drawings by April 30, 2018, plaintiff’s counsel sent a second request for their provision to defendant’s counsel. Additional emails were exchanged between counsel in May 2018 and, on June 1, 2018, the drawings were ultimately received by plaintiff’s counsel, who then provided copies to the plaintiff.

As a result of communications with the plaintiff in June 2019, plaintiff’s counsel instructed a junior lawyer in his office to commence work to answer the plaintiff’s undertakings. There was no further communication between counsel following the provision of the drawings on June 1, 2018 and the filing of the motion for dismissal for delay on August 26, 2019. [ 8 ] The defendant’s motion was dismissed by the senior master by written endorsement on October 1, 2020.

He concluded that the provision of the drawings constituted a significant advance in the action and that the defendant could not rely on its own delay to take advantage of r 24.02(1). [ 9 ] In allowing the appeal and dismissing the action, the motion judge applied the functional test articulated in Ro-Dar Contracting Ltd v Verbeek Sand & Gravel Inc , 2016 ABCA 123 , and found that the delivery of the drawings without any other activity did not significantly advance the action. He further held that there was no express agreement to the delay within the meaning of r 24.02(1)(a).

While noting that the defendant’s delay was objectionable and disentitled it to costs, he rejected the plaintiff’s argument that this should prevent the dismissal of the action and highlighted that it was the plaintiff’s responsibility to prosecute the action. Rule 24.02 [ 10 ] As explained by Simonsen JA in Buhr v Buhr , 2021 MBCA 63 , r 24.02, which came into force on January 1, 2018, is a distinct departure from the former r 24.01, which previously governed motions for dismissal for delay (see para 4).

Both the former and the current rr 24.01 focus on the overall delay in the litigation as a whole and allow an action to be dismissed at any time if there has been delay in prosecution that has resulted in significant prejudice to a party. In contrast, r 24.02 focusses on gaps in the litigation and is not prejudice-based. Described as a drop-dead rule, dismissal is mandatory if there has been no significant advance in an action for three or more years and none of the exceptions apply (see Ro-Dar at para 12; and Buhr at para 33 ).

The rule is part of an overhaul of the Rules intended to expedite and bring finality to civil proceedings and weed out inactive cases (see Buhr at para 33 ).

It follows the recognition in Hryniak v Mauldin , 2014 SCC 7 , of the strong public interest in the timely resolution of civil disputes and that a culture shift is required to address unreasonable cost and delay as a barrier to access to justice (see also Glenwood Label & Box Mfg Ltd v Brunswick Label Systems Inc et al , 2019 MBCA 12 at para 5 ). [ 11 ] Rule 24.02(1) provides: Dismissal for long delay 24.02(1) If three or more years have passed without a significant advance in an action, the court must, on motion, dismiss the action unless (

a) all parties have expressly agreed to the delay; (

b) the action has been stayed or adjourned pursuant to an order; (

c) an order has been made extending the time for a significant advance in the action to occur; (

d) the delay is provided for as the result of a case conference, case management conference or pre-trial conference; or

(

e) a motion or other proceeding has been taken since the delay and the moving party has participated in the motion or other proceeding for a purpose and to the extent that warrants the action continuing. [ 12 ] Rule 24.02 is similar to the current and former rr 4.33 of the AB, Rules of Court , AR 124/2010 , vol 1, so jurisprudence from that jurisdiction provides helpful guidance in interpreting the rule (see Buhr at para 8 ).

Issues [ 13 ] The plaintiff submits that the motion judge erred: (1) in finding that the defendant’s provision of the drawings was not a significant advance in the action; (2) in finding that the defendant’s undertaking or agreement to produce the drawings was not an express agreement to the delay under r 24.02(1)(a); and (3) in finding that the defendant’s delay did not preclude the dismissal of the action.

Standard of Review [ 14 ] While a decision to dismiss an action for delay under the current r 24.01(1) is discretionary, under r 24.02, a court must dismiss an action if there has been a period of three or more years without a significant advance and none of the exceptions in rr 24.02(1) (

a) to 24.02(1)(

e) apply. Therefore, as confirmed in Buhr , appellate review of a decision under r 24.02(1) is to be conducted on the standard set out in Housen v Nikolaisen , 2002 SCC 33 (see para 30). [ 15 ] Accordingly, the articulation and application of the correct legal test under r 24.02(1) are questions of law, which are reviewed on the standard of correctness.

Interpretation of r 24.02(1) also raises a question of law. Palpable and overriding error is the standard of review for questions of mixed fact and law, such as determining whether the facts satisfy the legal tests set out in the rules. Findings of fact are also entitled to deference absent palpable and overriding error (see Ro-Dar at para 11; Flock v Flock Estate , 2017 ABCA 67 at para 13 ; Delver v Gladue , 2019 ABCA 54 at paras 3-4 ; and Buhr at para 30 ).

Analysis and Decision Did the Motion Judge Err in Concluding That the Provision of the Drawings Was Not a Significant Advance in the Action? [ 16 ] Whether an action has been significantly advanced 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 the objectives of the rules of court.

It is a question of mixed fact and law reviewed for palpable and overriding error absent extricable legal error (see Ro-Dar at para 11). [ 17 ] In Buhr , this Court adopted the meaning of significant advance as described by the Alberta Court of Appeal in Ro-Dar ; Morrison v Galvanic Applied Sciences Inc , 2019 ABCA 207 ; and Jacobs v McElhanney Land Surveys Ltd , 2019 ABCA 220 (see Buhr at paras 69-70 ).

A significant advance exists if, in the applicable timeframe, something has been done that increased, by a measureable degree, the likelihood that either the parties or the court would have sufficient information to rationally assess the parties’ positions and be in a better position to either settle or adjudicate the action (see Morrison at para 35 ; and Buhr at para 69 ).

A significant advance means important or notable progress towards the resolution of an action (see Jacobs at para 85 ; and Buhr at para 70 ). [ 18 ] A step by either party will be taken into account in deciding whether a thing has been done in three years to significantly advance the action (see Flock at para 17 (7)). [ 19 ] Determining whether a step significantly advances the action requires a functional approach (see Buhr at para 71 ).

The court must view the whole picture of what transpired in the three-year period framed by the real issues in dispute and viewed through a lens trained on a qualitative assessment. This necessarily involves assessing various factors, including the nature, value and quality, genuineness and timing of the step at issue and whether that step moved the lawsuit forward in a meaningful way in the context of the action (see Ro-Dar at para 21; Ursa Ventures Ltd v Edmonton (City) , 2016 ABCA 135 at para 19 ; and Buhr at para 71 ).

The focus is on the substance of the step taken and its effect on the litigation rather than its form (see Ursa at para 19; and Weaver v Cherniawsky , 2016 ABCA 152 at para 18 ). [ 20 ] The functional test was correctly identified by the motion judge who stated that, “When I assess the defendant’s delivery of the [drawings] to the plaintiff on a qualitative basis and in its proper context, as instructed by [ Ro-Dar ] and the cases that have followed it, I find it did not constitute a significance advance of the action” (at para 12). [ 21 ] The plaintiff argues that the motion judge made a palpable and overriding error in failing to find that the provision of the drawings were a significant advance, given the undisputed evidence of their importance to this construction case and the Alberta case law which has held that the provision of an answer to an undertaking is usually a matter that materially advances an action. [ 22 ] The motion judge accepted the plaintiff’s submission that the delivery of the drawings was a partial answer to an undertaking as it was part of a broader undertaking given by the defendant at its examination for discovery.

He acknowledged that the drawings “were obviously important to the matters at issue,” but appropriately noted that “their importance must be considered in the

context of the progress of the action as a whole” (at para 14). Consistent with the functional approach, he addressed whether the provision of the drawings moved the lawsuit closer to resolution in a meaningful way.

He found that, when the motion for delay was filed, the parties were no closer to resolving this litigation than they had been when the examinations were concluded in June 2016, and that the provision of the drawings in June 2018 did nothing to meaningfully progress the action or move it closer to trial and had no functional impact on the advancement of the case during the balance of the three-year period in question. [ 23 ] Of understandable significance to the motion judge was that the relevance of the drawings to the action ought to have been obvious from the outset and their absence from the defendant’s production could have been easily remedied by ordinary diligence of both parties.

Moreover, the motion judge considered that, following the examinations, essentially nothing happened, aside from the provision of the drawings by the defendant which followed several intermittent requests by plaintiff’s counsel.

Applying the functional approach, he was entitled to find that, without any other activity during the whole of the three-year period, this did not qualify as a significant advance. [ 24 ] As for the Alberta jurisprudence that has considered the significance of the provision of answers to undertakings in this context, the plaintiff relies on Alderson v Wawanesa Life Insurance Company , 2020 ABCA 243 .

In Alderson , the Court referred to its older decision in Ravvin Holdings Ltd v Ghitter , 2008 ABCA 208 , for the proposition that, “as a general rule, a response to an undertaking usually materially advances an action because it is an extension of the discovery process” (at para 15). [ 25 ] Whether the provision of answers to undertakings amounts to a significant advance in an action was addressed by this Court in Buhr . In Buhr , it was observed that the Alberta jurisprudence indicates that, while the provision of answers to undertakings will usually be a significant advance, this is not necessarily so.

Instead, the quality of the step or thing must be analyzed. In other words, the functional test provides for no starting point in the analysis, but is a broad-based inquiry into whether the answer to an undertaking moves the litigation forward in a meaningful way considering the nature, value, importance and quality of the action—consistent with the focus on substance and effect rather than form (see paras 77-78; see also St Jean Estate v Edmonton (City) , 2014 ABQB 47 at paras 18-19 ; and Ursa at para 19).

In Buhr , it was noted that, while some undertakings were answered, several key undertakings on material issues remained outstanding and the motion judge in that case was entitled to conclude that the partial answers to undertakings were not a significant advance in the action. [ 26 ] In this case, the motion judge’s approach was consistent with the above principles. He specifically stated that his decision did not mean that the provision of some or all of a party’s answers to undertakings can never constitute a significant advance, as sometimes it does and other times it does not.

He reasoned that whether or not answers to undertakings constitute a significant advance in an action will vary from one case to the next because it will depend on the outcome of the qualitative assessment in the context of the matters at issue and the activity during the three-year period as a whole. He took into account that, except for the delivery of the drawings, all of the defendant’s 26 undertakings arising from the examinations remained outstanding, as did all of the plaintiff’s 39 undertakings.

It was clearly open to the motion judge to conclude that the defendant’s partial answer to one undertaking, in an otherwise dormant action, did not meaningfully advance the case. [ 27 ] The motion judge applied the functional approach and reasonably concluded that this did not significantly advance the action. His determination is without palpable and overriding error and is entitled to deference.

Did the Motion Judge Err in Failing to Find an Express Agreement to the Delay Pursuant to Rule 24.02(1)(a)? [ 28 ] An exception to the automatic effect of r 24.02 occurs where there is an express agreement to the delay, as provided in r 24.02(1)(a). Whether an express agreement to the delay, also known as a standstill agreement, has been entered into by the parties is a question of fact reviewable on a standard of palpable and overriding error (see Bugg v Beau Canada Exploration Ltd , 2006 ABCA 201 at para 7 ; and Brian W Conway Professional Corporation v Perera , 2015 ABCA 404 at para 9 ( Conway )).

Determining if such an agreement exists and its nature depends on the facts and circumstances of the case (see Turek v Oliver , 2014 ABCA 327 at para 6 ). [ 29 ] The plaintiff submits that the defendant’s agreement to produce the drawings should be considered an express agreement to the delay.

It argues that, having undertaken or agreed to produce the drawings, the defendant was contractually bound to do so and refrain from doing something inconsistent (i.e., bringing a motion to dismiss for delay). [ 30 ] The Alberta decisions that have considered the comparable rule provide helpful guidance on the meaning of an express agreement to the delay as contemplated by this exception. [ 31 ] In Bugg , the Alberta Court of Appeal explained the meaning of an express agreement in the following way (at paras 8- 9, 18): Rule 243.1(1) dictates that a standstill agreement must be “express”.

Black’s Law Dictionary defines that term as follows: Clear; definite; explicit; plain; direct; unmistakable; not dubious or ambiguous. Declared in terms; set forth in words. Directly and distinctly stated. Made known distinctly and explicitly, and not left to inference .... Manifested by direct and appropriate language, as distinguished from that which is inferred from conduct. The word is usually contrasted with “implied”.

Henry Campbell Black, Black’s Law Dictionary , 6th ed. (St. Paul. MN: West Publishing Co., 1990.) In the context of R. 243.1(1), express means that the parties’ intention is clear and not left to inference: Webber v. Canada (Attorney General) , 2005 ABQB 718 at para. 54 . A standstill agreement cannot be implied from conduct: 525812 Alberta Ltd. v. Purewal (2004), 366 A.R. 1 , 2004 ABQB 938 at para. 13 . At the very least, the evidence must establish the basic elements of an agreement: for example, the identity of the parties to the contract, when the standstill began and its essential terms.

It follows that a standstill agreement can be written, oral, or partly written and partly oral, as long as it is express and not based on intent or inference. This

interpretation is consistent with Webber , supra and 525812 Alberta Ltd. , supra . Because it will be more difficult to prove an oral agreement, the best course of action is to reduce the agreement to writing and specifically set out its terms. This Court has said: “when a standstill agreement is entered into, it would be preferable to describe it as such, and to state precisely what steps in the litigation process are waived or suspended pending the exploration of settlement”: Wasyleshko v.

Chamakese (1999), 228 A.R. 384 , 1999 ABCA 47 . [ 32 ] The test in Bugg was affirmed in Conway , where the Court upheld the chambers judge who found that an email exchange between counsel agreeing to hold matters in abeyance pending information on the solvency of several parties amounted to a standstill agreement.

The Court considered that it was clear that the parties agreed to refrain from taking procedural steps until the solvency issue was determined. [ 33 ] As well, in Flock , the Court stated that an agreement to excuse time may be oral, but it cannot be implied and, under the rule, must be express; so conduct alone will not suffice.

An exchange of correspondence will suffice if it is clear and precise enough (i.e., parties, start of period and essential terms) (see para 17(11)). [ 34 ] In Krasulja v Manaigre , 2021 MBQB 131 , one of the issues was whether an email exchange between counsel granting an indefinite extension of time to file a defence to a counterclaim was an agreement to the delay. After noting the comments in Bugg and Conway regarding the meaning of an express agreement, Greenberg J stated that the question was whether the email exchange evidenced a clear intent to delay proceedings — which she found was the case.

She rejected the suggestion that something formal in the nature of a written contract was required, noting that there is nothing in r 24.02(1)(

a) that suggests an agreement to delay need be in any specific form as long as it is express, that is to say, it must be clear. [ 35 ] Here, the motion judge endorsed the senior master’s reasons for declining to find an express agreement, noting that “Black’s Law Dictionary defines express as ‘clear; definite; explicit; unmistakeable’ (at para 18).

The motion judge found that there “is no evidence of a clear, definite, explicit or unmistakable agreement to the delay in this case” ( ibid ). [ 36 ] The plaintiff argues that this case is similar to Bugg , where a defendant’s undertaking to file a statement of defence, following the granting of several extensions of time to do so, was found to be a standstill agreement. Bugg is distinguishable as it involved requests by the defendant in that case to extend time for its benefit, coupled with an undertaking to file a defence.

As it was apparent that the plaintiff in Bugg was relying on that undertaking and agreed to refrain from taking the next step and noting default, the Court held that the defendant could not then “turn his back” and rely on the delay rule (at para 14). The Court found it clear that the “standstill” was to remain in effect until the statement of defence was filed (at para 20). [ 37 ] In contrast to Bugg , this is not a case where the parties’ intentions are clear and not left to inference. In saying this, I recognize that, as noted in Krasulja , agreements that pre-date r 24.02(1)(

a) should be interpreted with some regard to past practice (see para 35). I also acknowledge that plaintiff’s counsel believed that nothing further was needed to be done until the drawings were produced. However, neither the discussions after the examinations nor the follow-up emails make mention of anything resembling an understanding regarding delay or indicate that the parties turned their minds to holding matters in abeyance.

Without more, merely requesting the drawings from the defendant that it undertook to provide and awaiting receipt does not evince a clear intent to have matters standstill pending their provision and amount to an express agreement to the delay. Rather, contrary to the plain wording of r 24.02(1)(

a) and the jurisprudence, this would be to imply an agreement. The motion judge’s conclusion, that there was no express agreement to the delay, is without error and is justified on the evidence. [ 38 ] I pause to offer a comment about prudent practice going forward. While no specific form for an express agreement under r 24.02(1)(

a) is required, the best course of action is for parties to turn their minds to this rule and, in circumstances where an express agreement to the delay is intended, to specifically address that agreement and its terms with reference to the rule (see Conway at para 32 ; and Krasulja at para 33 ). Did the Motion Judge Err in Failing to Find That the Defendant’s Delay Disentitled It from Having the Action Dismissed? [ 39 ] The plaintiff asserts that the motion judge erred in finding that the defendant could rely on its own delay in providing the drawings in support of its motion and that the defendant’s failure to answer any of its undertakings did not preclude dismissal of the action.

[ 40 ] Let me say at the outset that the plaintiff’s argument regarding the relevance of defence delay is to be distinguished from a defendant’s acquiescence in a motion or proceeding since the delay pursuant to the exception in r 24.02(1)(

e) has no application here.

It is also different from considerations of defence delay in the context of the discretionary delay rule under r 24.01 (see Transamerica Life Canada v Oakwood Associates Advisory Group Ltd , 2019 ABCA 276 at para 28 ; and The Workers Compensation Board v Ali , 2020 MBCA 122 at para 41 ). [ 41 ] The relevance of defence delay in the context of dismissal for long delay has been considered in several Alberta decisions. [ 42 ] In Turek , the plaintiff consistently pursued production of the defendant’s affidavit of records (including bringing an application to require its production), and, at the defendant’s request, repeatedly granted extensions for its provision.

The affidavit was not forthcoming; instead, the defendant moved to strike for long delay. In upholding the dismissal of the defendant’s motion, the Court stated that “[t]he drop dead rule was never designed to encourage the sort of ambush that was unleashed [t]here, after months of courtesies by one side and obfuscation and unresponsiveness by the other” (at para 6). [ 43 ] This principle was clarified in Janstar Homes Ltd v Elbow Valley West Ltd , 2016 ABCA 417 , a case involving a series of exchanges between counsel regarding the scheduling of examination dates with delay in responses by both sides.

The plaintiff advanced a similar argument to that in the present case — that the defendant was responsible for a significant portion of the delay and should not be entitled to rely on that to its benefit. In rejecting this argument in Janstar Homes , the Court noted that, while there were delays in timely responses by both sides, there was no ambush by the defendant. Further, the Court highlighted that the initiative at all times remains with the plaintiff to pursue its lawsuit in a timely fashion.

On the other hand, a defendant is obliged not to engage in tactics that obstruct, stall or delay an action that the plaintiff is advancing (see paras 25-26). Similarly, in Flock , the Court reiterated that the plaintiff bears the ultimate responsibility for prosecuting its claim in a timely manner.

A defendant, while never required to actively move the plaintiff’s action along, cannot purposely obstruct, stall or delay the action (see para 17(4)). [ 44 ] Although the issue of defence delay was not squarely before this Court in Buhr , the above principles were recognized when it stated that, “[w]hile a defendant cannot intentionally obstruct, stall or delay an action, it need not move a plaintiff’s action along” (at para 82). [ 45 ] The motion judge rightly acknowledged that the defendant’s delay in providing the drawings was objectionable and should be strongly discouraged.

Nevertheless, he properly considered that it is the plaintiff’s responsibility to prosecute its action and that it could have filed a motion to compel the drawings and the defendant’s answers to undertakings, but chose not to do so. [ 46 ] Moreover, the motion judge considered this to be a case where there was no evidence that the defendant engaged in tactics to obstruct, stall or delay the action.

In fact, plaintiff’s counsel acknowledged as such in argument before him. [ 47 ] Furthermore, while the defendant’s delay of two years to provide the drawings is not to be condoned, months passed within this timeframe before the plaintiff responded to the defendant’s request for clarification of the documents sought and followed up after the defendant failed to produce the drawings once clarification was provided. Therefore, although some of the delay is quite fairly attributable to the defendant, there was plaintiff delay during this time as well.

Additionally, following receipt of the drawings, there was a further year of inactivity before the defendant filed its motion. So, this is not a situation of ambush as described in the caselaw or as argued by the plaintiff. [ 48 ] Finally, while the plaintiff relies on 994552 NWT Ltd v Bowers , 2019 ABQB 195 ( Bowers ) as support for its position that a defendant’s failure to answer undertakings can preclude dismissal for long delay, that case is distinguishable.

In Bowers , several defendants failed to provide answers to undertakings despite the plaintiff obtaining orders to compel their production and granting several requests for extensions of time to respond.

In dismissing the motion for delay, the Court noted the applicable principles from Turek and Janstar Homes , and considered it key that the defendants were acting contrary to court orders which should not be condoned (see paras 45-47, 56). [ 49 ] In the end, the motion judge held that neither the defendant’s delay in providing the drawings nor its failure to answer undertakings prevented the defendant from having the action dismissed under the long-delay rule. In my view, he made no palpable and overriding error or error of law in so concluding.

Conclusion [ 50 ] For the above reasons, the motion judge did not err in determining that the action must be dismissed pursuant to r 24.02(1). The appeal is therefore dismissed. [ 51 ] As previously mentioned, although I am of the view that the motion judge did not err in failing to find that the defendant’s delay disentitled dismissal of the action, I share his concerns about the defendant’s delay in providing the drawings. As such, I would dismiss the appeal without costs. JA I agree: JA

I agree: JA