By Ian Carruthers and Noel Harper
DISCLAIMER: This blog is intended to inform the reader about how the law was applied in a particular case. It should not be taken as advice regarding the outcome of any other case, even one that may have similar facts. The Court’s decision will depend on the facts of each case. Please call 1-844-210-9511 or visit carrutherslaw.ca if you would like to know more about your specific case.
Welcome to our final example of how Rule 4.33 applies within Alberta’s court system. We hope you have learned something over this past month that can help you avoid having your case ‘drop dead’. This week’s case involves a dispute between two organizations that resulted in an application to dismiss the action for delay nearly a decade after the initial statement of claim was filed. Here is what you need to know:
The statement of claim for the debt action – wherein the plaintiff alleged they entered into a written loan agreement with the defendant, which the defendant denied – was filed on December 28, 2007, with the statement of defence being filed on April 19, 2008. The action entered case management on September 22, 2009.
A consent order was agreed upon on February 1, 2010, which included amending the pleadings, producing required documents, and ultimately resuming the questioning process. As such, the defendant filed their amended statement of defence and counterclaim on February 5. The action was removed from case management on February 3, 2011.
The plaintiff filed a statement of defence to the defendant’s counterclaim on September 27, 2013. This statement consisted of five paragraphs, in which the plaintiff “adopts the allegations in [the plaintiff’s] statement of claim and sets out a general, boilerplate denial,” according to the decision.
On September 26, 2016, the plaintiff filed a supplemental affidavit of records, which included a general ledger showing deposits from the defendant as well as balance sheets from 1999, 2005 and 2006.
On November 21, 2016, the plaintiff filed an application for a procedural order, and on December 5, 2016, the defendant filed to dismiss the action under Rule 4.33. Both applications were adjourned to be heard in special chambers at a later date.
Both parties agreed that the consent order of February 1, 2010 was a significant advancement of the action, but while the plaintiff argued that their subsequent statement of defence to the counterclaim in 2013 and supplemental affidavit of records filed in 2016 both advanced the action, the defendant submitted that neither filing did so.
Therefore, only if both the statement of defence to counterclaim and the supplemental affidavit of records are found to have significantly advanced the action will it be allowed to proceed, and the delay application dismissed. If either one of these steps did not advance the action, the defendant’s delay application will be granted, and the action dismissed outright.
Come back on Friday for the solution and a brief explanation of the case in question.