Terroco Drilling Ltd. v. Tusk Energy Corp., 2014 ABQB 419

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 25, 2014
• Citations: 2014 ABQB 419;(2014), 590 A.R. 329 (QBM)

Terroco Drilling v. Tusk Energy Corp. (2014), 590 A.R. 329 (QBM)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. AU.040

Terroco Drilling Ltd. (plaintiff/defendant by counterclaim) v. Tusk Energy Corporation (defendant/plaintiff by counterclaim)

(0810 00123; 2014 ABQB 419)

Indexed As: Terroco Drilling Ltd. v. Tusk Energy Corp.

Alberta Court of Queen's Bench

Judicial District of Red Deer

Hanebury, Master

July 11, 2014.

Summary:

The plaintiff sued the defendant regarding outstanding invoices. The defendant applied to dismiss the action on the basis that three or more years had passed without a significant advance in the action.

A Master of the Alberta Court of Queen's Bench allowed the application, dismissing the action.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - At issue on this "drop dead" application to dismiss the action for delay was whether the defendant's response to the plaintiff's request under rule 5.14 for copies of the records listed in the defendant's affidavit of records had significantly advanced the action - The parties agreed that the relevant time period was November 1, 2013 and the three years prior; it did not matter who had advanced the action; the only thing that could have advanced the action was the delivery of the records; and the records were relevant and material - A Master of the Alberta Court of Queen's Bench dismissed the action for delay - The plaintiff had requested copies of records that were already available to it - This was not a mandatory step necessary to proceed to trial - On a functional analysis, the provision to opposing counsel of copies of records already made available for viewing by way of the affidavit of records did not significantly advance the action - The provision of copies of the records did not move the action closer to trial in a significant way.

Cases Noticed:

Top Grade Solutions Inc. v. Flying Pizza 73 Inc. et al. (2009), 480 A.R. 181; 2009 ABQB 492, dist. [para. 9].

Huynh et al. v. Rosman et al. (2013), 559 A.R. 319; 2013 ABQB 218, refd to. [para. 13].

Morash v. Alberta (2000), 250 A.R. 269; 213 W.A.C. 269; 2000 ABCA 24, refd to. [para. 15].

Chan v. Calgary Remand Centre et al. (2012), 540 A.R. 245; 2012 ABQB 325 (Master), refd to. [para. 15].

Heikkila v. Apex Land Corp. et al. (2009), 467 A.R. 302; 2009 ABQB 12 (Master), affd. [2010] A.R. Uned. 825; 2010 ABQB 55, affd. (2011), 502 A.R. 243; 517 W.A.C. 243; 2011 ABCA 87, refd to. [para. 18].

Gresiuk v. Wawanesa Mutual Insurance Co. (2002), 316 A.R. 269 (Q.B.), refd to. [para. 18].

Matthews v. Great-West Life Assurance Co. et al. (2002), 313 A.R. 86; 2002 ABQB 297, refd to. [para. 19].

Bentley v. Stringer (1999), 246 A.R. 1; 1999 ABQB 432, refd to. [para. 19].

Howard v. Calgary Chief of Police et al. (2001), 302 A.R. 266; 2001 ABQB 904, refd to. [para. 20].

Balogun v. Pandher (2003), 349 A.R. 390; 2003 ABQB 943, refd to. [para. 21].

Webber v. Canada (Attorney General) et al. (2005), 385 A.R. 209; 2005 ABQB 718, refd to. [para. 21].

Lamont Highway Service Ltd. v. Scraba, 1999 ABQB 1057 (Master), refd to. [para. 21].

Peterka v. Nieman et al., [1998] A.R. Uned. 18; 1998 ABCA 14, refd to. [para. 21].

Kurian v. Administrator, Motor Vehicle Accident Claims Act (Alta.) et al., 2007 ABQB 838, refd to. [para. 33].

Authors and Works Noticed:

Alberta, Rules of Court Committee, Results of Consultation "Drop Dead" Rule 4.33, para. 4.3 [para. 15].

Counsel:

Beamer Comfort (Bennett Jones LLP), for the applicant/defendant - plaintiff by counterclaim;

Richard Van Dorp (Peacock Linder & Halt LLP), for the respondent/plaintiff - defendant by counterclaim.

This application was heard on March 25, 2014, by Hanebury, Master, of the Alberta Court of Queen's Bench, Judicial District of Red Deer, who delivered the following memorandum of decision on July 11, 2014.