Ursa Ventures Ltd. v. Edmonton (City), 2016 ABCA 135

• Judge: Martin, Rowbotham and Wakeling, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: December 11, 2015
• Citations: 2016 ABCA 135;[2016] A.R. TBEd. MY.058

Ursa Ventures Ltd. v. Edmonton, [2016] A.R. TBEd. MY.058

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2016] A.R. TBEd. MY.058

Ursa Ventures Ltd. (respondent/plaintiff) v. The City of Edmonton (appellant/defendant)

(1501-0197-AC; 2016 ABCA 135)

Indexed As: Ursa Ventures Ltd. v. Edmonton (City)

Alberta Court of Appeal

Martin, Rowbotham and Wakeling, JJ.A.

May 11, 2016.

Summary:

The defendant applied to dismiss the plaintiff's action (a commercial law case) for long delay pursuant to rule 4.33. Neither party had delivered its affidavit of records in accordance with the time limits in the Rules of Court. The plaintiff had served its affidavit of records on the defendant roughly three weeks before the end of the three-year period following the date the defendant filed its statement of defence. The defendant contended that, since the service of the statement of defence on November 24, 2010, three or more years had passed without a significant advance in the action; specifically, that the service of the plaintiff's purported affidavit of records on October 31, 2013, did not significantly advance the action.

The Alberta Court of Queen's Bench, in a decision reported at [2015] A.R. TBEd. JL.055, dismissed the application. The plaintiff's affidavit of records was not deficient or inadequate, and it significantly advanced the action in that it alerted the defendant of the nature and extent of the plaintiff's documents. The defendant appealed.

The Alberta Court of Appeal, Wakeling, J.A., dissenting, dismissed the appeal.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - The Alberta Court of Appeal considered rule 4.33 of the Alberta Rules of Court, the so-called "drop dead" rule - The appeal raised two issues: (i) whether a mandatory step under the Rules (here, the affidavit of records) always "significantly advance[s] the action"; and (ii) whether the chambers judge erred in finding that the plaintiff's affidavit of records significantly advanced the action - Rowbotham, J.A., in dismissing the appeal, stated that "Morasch v. Alberta [(2000) (Alta. C.A.)] has been overtaken by changes in the Rules and the modern approach to civil litigation. ... [I]t is not in keeping with the foundational principles underlying the current Rules and the modern approach to litigation ... . It does not matter whether the last step taken is mandated by the Rules or not: the analysis should be the same. That is, did the substance of the step taken to advance the action (not its form) significantly advance the action? ... Each piece of litigation is unique and the content, value, and timing of the advance in the action said to 'reset the clock' must be assessed within the context of that lawsuit. This is the heart of the functional approach. The chambers judge acknowledged the 'sea change' in approach and adopted the functional approach when he concluded that a mandatory step under the Rules does not always 'significantly' advance an action. ... It is clear that the chambers judge considered this affidavit of records in the context of this lawsuit. He looked at its nature (a sworn affidavit) and the allegations in the pleadings. He was aware of the timing of the affidavit (within weeks of the three-year time limit). He balanced these factors, as he was obliged to do in employing the functional approach. It is not this court's role to reweigh factors. His decision is entitled to appellate deference" - See paragraphs 1 to 32.

Counsel:

W.A. Olinyk and A. Turcza-Karhut, for the appellant;

D. Holl, for the respondent.

This appeal was heard on December 11, 2015, before Martin, Rowbotham and Wakeling, JJ.A., of the Alberta Court of Appeal, who delivered the following memorandum of judgment and reasons, filed at Calgary, on May 11, 2016:

Rowbotham, J.A. - see paragraphs 1 to 36;

Martin, J.A. - see paragraphs 37 to 42;

Wakeling, J.A., dissenting - see paragraphs 43 to 171.