Executive Summary: Key Legal and Evidentiary Issues

• Sunder Building Supplies Ltd. appealed a chambers judge's order dismissing its action for long delay under rule 4.33 of the Alberta Rules of Court, Alta Reg 124/2010.
   
• Central to the appeal was whether sporadic correspondence between the parties — including a September 2019 email undertaking to file a response affidavit — constituted a "significant advance" in the action sufficient to reset the three-year clock.
   
• At issue was also whether the respondent's request to adjourn the application sine die engaged the participation exception under subrule 4.33(2)(b), thereby excusing further inaction by the appellant.
   
• The appellant argued the parties had agreed to a suspension period under subrule 4.33(5), which would have excluded that time from the three-year calculation.
   
• Questions of fact and mixed fact and law were reviewed on the standard of palpable and overriding error, with the chambers judge's findings given significant deference on appeal.
   
• None of the appellant's three grounds of appeal — significant advance, participation exception, or suspension agreement — were found to displace the chambers judge's conclusion.

Facts of the case

Sunder Building Supplies Ltd. filed a statement of claim in October 2017 seeking relief under what is now the Prompt Payment and Construction Lien Act, RSA 2000, c P-26.4. It then applied to have its lien declared valid and to obtain judgment. Questioning of the appellant's deponent on the supporting affidavit took place in September 2019, after which the application was adjourned sine die to allow the respondent, 7th Avenue Sky Property Inc., time to file a response affidavit and be questioned if the appellant wished.

Following the adjournment, correspondence between counsel was sporadic. On September 23, 2019, counsel for the respondent stated that the affiant was returning from Toronto and would swear the affidavit as soon as he returned, and that a sworn copy would be sent upon receipt. There was a further adjournment, and the appellant sent letters requesting the affidavit be filed within a week or two, failing which it would bring its application for judgment. The respondent replied that the proposed deadlines were too brief and raised other matters including settlement discussions.

In April 2022, the appellant sent a letter attaching a draft litigation plan and stated that if no response was received by May 6, 2022, it would bring an application to set a litigation plan — this did not occur. On June 30, 2022, the respondent sent a letter acknowledging a phone conversation from May 20, 2022, and reiterated its position that the appellant might be entitled to at most $23,873.97, rather than the higher amount claimed. No response was received. On September 7, 2022, the respondent sent a follow-up to its June 30, 2022 proposal, again without response.

On March 21, 2023, the appellant brought its application for judgment. The respondent filed a cross-application to dismiss the action for long delay. A master allowed the cross-application and dismissed the appellant's action. The chambers judge reached the same conclusion on review, and Sunder appealed to the Court of Appeal.

Procedural rule at issue

Rule 4.33 of the Alberta Rules of Court provides that if three or more years pass without a significant advance in an action, the court must dismiss it unless a specified exception applies. The assessment of whether a significant advance has occurred is functional and contextual. Subrule 4.33(2)(b) provides an exception where the defendant has participated in an application or proceeding since the delay in a manner that warrants the action continuing. Subrule 4.33(5) provides that parties may agree in writing to a suspension period that will be excluded from the three-year calculation.

Reasoning and analysis

On the first ground — whether a significant advance had occurred — the Court noted that the chambers judge carefully considered the correspondence relied upon by the appellant and concluded that the matter had proceeded in fits and starts, with the parties often speaking at cross-purposes. The chambers judge found the respondent did not obstruct or delay the action, and concluded that the September 23, 2019 email was an undertaking to file the affidavit, but that it later became clear the affidavit would not be filed imminently. It was therefore incumbent on the appellant to enforce that undertaking or otherwise advance the action within the three-year period. The Court of Appeal was not satisfied the chambers judge committed a reviewable error in finding that three or more years had passed without a significant advance.

On the second ground — the participation exception under subrule 4.33(2)(b) — the Court acknowledged that it would have been preferable for counsel for the respondent to have been more forthcoming about the respondent's intention regarding the affidavit. However, the Court was not persuaded the appellant had demonstrated the chambers judge erred in his exercise of discretion on whether the respondent's participation was of the kind that warranted the action continuing.

On the third ground — an agreed suspension period under subrule 4.33(5) — the Court found nothing in the record indicating that a written suspension agreement had been reached, and the appellant failed to identify a reviewable error on that point.

Ruling and outcome

The Court of Appeal dismissed the appeal. Costs of the appeal were awarded to the respondent, 7th Avenue Sky Property Inc., pursuant to Column 3 of Schedule C of the Alberta Rules of Court. The quantum of those costs was not specified in the decision. The memorandum of judgment was filed at Calgary, Alberta on June 24, 2026.