Executive Summary: Key Legal and Evidentiary Issues

• Two lawyers who had shared space, clients, and fees at a small law firm from 2004 to 2007 disputed the terms of their oral work agreement, with the respondent's action originating from a Statement of Claim filed in 2009.
   
• At issue was whether the appellant's response to the respondent's 2019 Form 37 constituted participation in the proceedings sufficient to warrant the action continuing under Rule 4.33(2)(b) of Alberta's Rules of Court.
   
• The appellant argued his response to the 2019 Form 37 was equivocal and did not satisfy the three-part common law test for waiver, as he lacked full knowledge of his rights and had not unequivocally expressed an intention to waive them.
   
• Applying CWC Well Services Corp v Option Industries Inc, 2019 ABCA 331, the Court of Appeal confirmed that Rule 4.33(2)(b) is not to be interpreted by reference to the common law test for waiver or estoppel, but holistically on its plain wording.
   
• Under Rule 4.31, the chambers justice found overall delay but concluded it was not inordinate given the Covid-19 pandemic's mitigating effect, and that any prejudice from the deaths of three Siksika Nation elder witnesses was too speculative to warrant dismissal.
   
• Deference to the chambers justice's findings under both Rules 4.31 and 4.33 was upheld, as the appellant failed to establish any error in principle, palpable and overriding error of fact, or unreasonable exercise of discretion.

Facts of the case

Wilfred Lorne Willier, operating as Willier & Company, and Raymond Lee Francoeur were lawyers who shared space and clients and split fees in a small law firm from 2004 to 2007. A dispute arose over the oral agreement that had governed their working relationship during that period. Willier filed a Statement of Claim in 2009, and questioning was completed by 2012. In 2013, Willier applied to schedule the matter for trial, representing that it was ready to proceed. That application was adjourned when it came before the court in the spring of 2013. The parties then engaged in an unsuccessful judicial dispute resolution (JDR) in 2016, following which Willier promptly tendered a second Form 37 in July 2016. A second JDR, also unsuccessful, was held in December 2018. Willier tendered a further Form 37 in June 2019, indicating readiness for trial in September 2019. Francoeur responded, suggesting early 2020 as being more realistic. Willier tendered another Form 37 in December 2020, and in February 2021, Willier's counsel's legal assistant followed up on it. In June 2021, Willier applied to set a trial date. In August 2021, Francoeur filed applications to dismiss the action under Rules 4.31 and 4.33 of the Alberta Rules of Court.

Rules at issue

The applications turned on two procedural rules. Rule 4.33 provides for dismissal where there has been no significant advance of an action for three or more years, subject to exceptions including under Rule 4.33(2)(b), which preserves the action where a party has participated in proceedings to a degree that warrants the action continuing. Rule 4.31 governs dismissal for inordinate delay causing significant prejudice.

Reasoning and analysis

The chambers justice, Justice J.T. Eamon, found that neither the failed December 2018 JDR nor the communications surrounding the 2019 Form 37 significantly advanced the action before the expiry of three years from the last significant advance. However, he found that Francoeur's response to the 2019 Form 37 — in which Francoeur stated he would be prepared to represent to the court that he would be ready for trial by early 2020 — evinced an intention that he was prepared to continue toward trial, and thereby waived his objection to the delay within the meaning of Rule 4.33(2)(b).

On appeal, Francoeur argued his response was equivocal and did not satisfy the common law three-part test for waiver. The Court of Appeal rejected that argument, reaffirming its earlier holding in CWC Well Services Corp v Option Industries Inc, 2019 ABCA 331, that Rule 4.33(2)(b) is not to be interpreted by reference to the common law test for waiver or estoppel, but must be read holistically on its present wording. The court noted that the relevant perspective under the rule is what the respondent could fairly assume from the appellant's communication, and that the chambers justice's finding on this point was entitled to deference. The court further noted that the chambers justice expressly acknowledged there was no evidence that an expert report from the expert named in Francoeur's June 2019 response was ever provided, and that his opinion that the communication could lead Willier to fairly assume Francoeur had waived the delay was entitled to deference.

As for Rule 4.31, the chambers justice reviewed the full chronology of the litigation, found overall delay, but concluded it was not inordinate given that some of the delay was mitigated by the Covid-19 pandemic. He further found that any prejudice arising from the deaths of three Siksika Nation elders who would have been witnesses was too speculative to apply the presumption of prejudice, and that the parties had both seemed willing to tolerate the delay. The Court of Appeal held that a discretionary decision under Rule 4.31 is entitled to deference unless based on an error in principle or a clearly unreasonable exercise of discretion, citing 1199096 Alberta Inc v Imperial Oil Ltd, 2025 ABCA 303. The appellant had not established that it was unreasonable for the chambers justice to infer, given the nature of the litigation and the parties' conduct, that no significant prejudice had arisen.

Ruling and overall outcome

The Court of Appeal, per de Wit, Fagnan, and Grosse JJ.A., dismissed the appeal. The court found that Francoeur had not established any error in principle, palpable and overriding error of fact or mixed fact and law, or unreasonable exercise of discretion on the part of the chambers justice. The respondent, Willier (Willier & Company), was the successful party in the appeal, with the action preserved to proceed. No monetary award was made in this decision; the matter concerns procedural dismissal applications only.