Key Background

• Incident: A fire in 2015 destroyed a rented warehouse building in Alberta, leading to this $5 million lawsuit by the Plaintiffs, alleging losses of property stored there.
• Timeline:
  • 2017: Plaintiffs file the Statement of Claim.
  • 2020: Plaintiffs ordered to file an Affidavit of Records but failed to do so until February 2023.
  • 2023: Plaintiffs' Affidavit stated that all records were destroyed in the fire.

Rule 4.33 Application (3-Year Delay Without Advancement)

• Defendants’ Position:

  • Plaintiffs' late-filed Affidavit of Records (2023) is “blank” and does not constitute a significant advance.
  • No progress for over three years (February 2020–November 2023), violating Rule 4.33.

• Court’s Findings:

  • An affidavit of records is not automatically a significant advance; it must meaningfully progress the case.
  • Here, the affidavit provided clarity (i.e., Plaintiffs have no records to present) and eliminated uncertainty, which advanced the litigation in a substantive way.
  • Rule 4.33 dismissal denied.

Rule 4.31 Application (Inordinate/Inexcusable Delay)

• Defendants’ Position:

  • Nine years since the fire and significant prejudice due to fading memories and destroyed records.

• Court’s Findings:

  • Delay was significant but partly caused by Defendants' own slow responses during early stages (e.g., delays in filing their defence).
  • Plaintiffs’ lack of records is an evidentiary issue, not prejudicial delay.
  • No evidence of actual prejudice (e.g., faded witness memories).
  • Dismissal under Rule 4.31 also denied.

Conclusion

• Both dismissal applications (under Rules 4.33 and 4.31) were dismissed.
• Costs awarded to Plaintiffs. No amount specified.
• The parties must draft a litigation plan and attend a case conference.