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CIVIL PROCEDURE - Disposition without trial - Dismissal of action

Monday, July 08, 2019 @ 9:42 AM  


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Appeal by the defendant from a decision setting aside a Master’s decision finding that the respondent had not significantly advanced his wrongful dismissal suit in the three-year period and dismissing his action. The respondent commenced the action in 2013. In July 2017, the appellants applied for the dismissal of the action due to delay. The chambers judge found that the respondent’s July 2014 application for summary judgment that was never heard qualified as a significant advance. He also characterized a June 2015 notice to admit to which the appellant responded as improper and having no legal effect as a significant advance. The judge also accorded significant advance status to an October 2016 single email from the respondent to the appellant’s counsel asking for potential summary judgment hearing dates that evoked no response. In the 15-month period following June 2015, the respondent did not communicate with the appellant.

HELD: Appeal allowed. None of the three acts qualified as an advance. The parties were not any closer to the resolution of their dispute at the end of the three-year period from July 2014 to July 2017 than they were at its start. The potential of an unheard application was not a marker of the advancement of an action. A notice to admit that a responder claimed was irrelevant, improper or unnecessary had no legal effect, other than a possible future costs consequence, and could not be characterized as a step that advanced an action. The judge’s determination that the time limits on the respondent were reset sometime after October 2016 and well before July 2017 because of the appellant ignoring the respondent’s correspondence was incorrect. Had counsel responded and provided potential hearing dates, this would not have qualified as a significant advance.

Jacobs v. McElhanney Land Surveys Ltd., [2019] A.J. No. 714, Alberta Court of Appeal, J.D.B. McDonald, T.W. Wakeling and K.P. Feehan JJ.A., June 4, 2019. Digest No. TLD-July82019003